[House Report 104-112]
[From the U.S. Government Publishing Office]
104th Congress 1st
Session HOUSE OF REPRESENTATIVES Report
104-112
_______________________________________________________________________
CLEAN WATER AMENDMENTS OF 1995
----------
R E P O R T
of the
COMMITTEE ON TRANSPORTATION
AND INFRASTRUCTURE
on
H.R. 961
together with
ADDITIONAL, SUPPLEMENTAL, AND
DISSENTING VIEWS
[Including cost estimate of the Congressional Budget Office]
May 3, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
104th Congress 1st HOUSE OF REPRESENTATIVES Report
Session
104-112
_______________________________________________________________________
CLEAN WATER AMENDMENTS OF 1995
__________
R E P O R T
of the
COMMITTEE ON TRANSPORTATION
AND INFRASTRUCTURE
on
H.R. 961
together with
ADDITIONAL, SUPPLEMENTAL, AND
DISSENTING VIEWS
[Including cost estimate of the Congressional Budget Office]
May 3, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
CLEAN WATER AMENDMENTS OF 1995
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-112
_______________________________________________________________________
CLEAN WATER AMENDMENTS OF 1995
_______________________________________________________________________
May 3, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
ADDITIONAL, SUPPLEMENTAL, AND DISSENTING VIEWS
[To accompany H.R. 961]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 961) to amend the Federal Water
Pollution Control Act, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
The amendment.................................................... 3
Purpose and summary.............................................. 86
Need for legislation............................................. 87
Unfunded mandates............................................ 87
Nonpoint source discharges................................... 88
Stormwater................................................... 89
Flexibility and increased State role......................... 93
Small communities............................................ 94
Risk assessment and cost-benefit analysis.................... 95
Sound science................................................ 97
Wetlands..................................................... 97
Navigational dredging........................................ 98
Discussion of the Committee bill (H.R. 961) and section-by-
section analysis............................................... 98
Title I: Research and Related Programs....................... 98
Section 101. National goals and policies................. 98
Section 102. Research, investigations, training and
information............................................ 100
Section 103. State management assistance................. 102
Section 104. Mine water pollution control................ 102
Section 105. Water sanitation in rural and native Alaska
villages............................................... 102
Section 106. Authorization of appropriations for
Chesapeake program..................................... 102
Section 107. Great Lakes management...................... 102
Title II: Construction Grants................................ 105
Section 201. Uses of funds............................... 105
Section 202. Administration of closeout of construction
grant program.......................................... 105
Section 203. Sewage collection systems................... 105
Section 204. Treatment works defined..................... 105
Section 205. Value engineering review.................... 105
Section 206. Grants for wastewater treatment............. 105
Title III: Standards and Enforcement......................... 106
Section 301. Effluent limitations........................ 106
Section 302. Pollution prevention opportunities.......... 107
Section 303. Water quality standards and implementation
plans.................................................. 111
Section 304. Use of biological monitoring................ 112
Section 305. Arid areas.................................. 114
Section 306. Total maximum daily loads................... 115
Section 307. Revision of criteria, standards, and
limitations............................................ 115
Section 308. Information and guidelines.................. 117
Section 309. Secondary treatment......................... 117
Section 310. Toxic pollutants............................ 119
Section 311. Local pretreatment authority................ 120
Section 312. Compliance with management practices........ 121
Section 313. Federal enforcement......................... 122
Section 314. Response plans for discharges of oil or
hazardous substances................................... 122
Section 315. Marine sanitation devices................... 123
Section 316. Federal facilities.......................... 123
Section 317. Clean lakes................................. 124
Section 318. Cooling water intake structures............. 124
Section 319. Nonpoint source management programs......... 124
Section 320. National estuary program.................... 128
Section 321. State watershed management programs......... 128
Section 322. Stormwater management programs.............. 131
Section 323. Risk assessment and disclosure requirements. 143
Section 324. Benefit and cost criterion.................. 147
Title IV: Permits and Licenses............................... 152
Section 401. Waste treatment systems for concentrated
animal feeding operations.............................. 152
Section 402. Permit reform............................... 153
Section 403. Review of state programs and permits........ 153
Section 404. Statistical noncompliance................... 154
Section 405. Anti-backsliding requirements............... 154
Section 406. Intake credits.............................. 155
Section 407. Combined sewer overflows.................... 155
Section 408. Sanitary sewer overflows.................... 155
Section 409. Abandoned mines............................. 156
Section 410. Beneficial use of biosolids................. 156
Section 411. Waste treatment systems defined............. 157
Section 412. Thermal discharges.......................... 159
Title V: General Provisions.................................. 159
Section 501. Consultation with States.................... 159
Section 502. Navigable waters defined.................... 160
Section 503. CAFO definition clarification............... 160
Section 504. Publicly owned treatment work defined....... 160
Section 505. State water quantity rights................. 160
Section 506. Implementation of water pollution laws with
respect to vegetable oil............................... 161
Section 507. Needs estimate.............................. 162
Section 508. General program authorizations.............. 162
Section 509. Indian tribes............................... 162
Section 510. Food processing and food safety............. 163
Section 511. Audit dispute resolution.................... 163
Title VI: State Water Pollution Control Revolving Funds...... 163
Section 601. General authority for capitalization grants. 163
Section 602. Capitalization grant agreements............. 164
Section 603. Water pollution control revolving loan funds 164
Section 604. Allotment of funds.......................... 165
Section 605. Authorization of appropriations............. 167
Section 606. State nonpoint source water pollution
control revolving funds................................ 169
Title VII: Miscellaneous Provisions.......................... 170
Section 701. Technical amendments........................ 170
Section 702. John A. Blatnik National Fresh Water Quality
Research Laboratory.................................... 170
Section 703. Wastewater service for Colonias............. 170
Section 704. Savings in municipal drinking water costs... 170
Title VIII: Wetlands Conservation and Management............. 170
Title IX: Navigational Dredging.............................. 182
Miscellaneous issues............................................. 183
Hearings and previous legislative activity....................... 184
Committee consideration.......................................... 187
Committee oversight findings..................................... 200
Oversight findings and recommendations of the Committee on
Government Reform and Oversight................................ 200
Committee cost estimate.......................................... 200
Congressional Budget Office estimates............................ 201
Inflationary impact statement.................................... 209
Changes in existing law made by the bill, as reported............ 209
Additional, supplemental and dissenting views....................
Exchange of letters.............................................. 433
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Clean Water
Amendments of 1995''.
(b) Table of Contents.--
Sec. 1. Short title; table of contents.
Sec. 2. Definition.
Sec. 3. Amendment of Federal Water Pollution Control Act.
TITLE I--RESEARCH AND RELATED PROGRAMS
Sec. 101. National goals and policies.
Sec. 102. Research, investigations, training, and information.
Sec. 103. State management assistance.
Sec. 104. Mine water pollution control.
Sec. 105. Water sanitation in rural and Native Alaska villages.
Sec. 106. Authorization of appropriations for Chesapeake program.
Sec. 107. Great lakes management.
TITLE II--CONSTRUCTION GRANTS
Sec. 201. Uses of funds.
Sec. 202. Administration of closeout of construction grant program.
Sec. 203. Sewage collection systems.
Sec. 204. Treatment works defined.
Sec. 205. Value engineering review.
Sec. 206. Grants for wastewater treatment.
TITLE III--STANDARDS AND ENFORCEMENT
Sec. 301. Effluent limitations.
Sec. 302. Pollution prevention opportunities.
Sec. 303. Water quality standards and implementation plans.
Sec. 304. Use of biological monitoring.
Sec. 305. Arid areas.
Sec. 306. Total maximum daily loads.
Sec. 307. Revision of criteria, standards, and limitations.
Sec. 308. Information and guidelines.
Sec. 309. Secondary treatment.
Sec. 310. Toxic pollutants.
Sec. 311. Local pretreatment authority.
Sec. 312. Compliance with management practices.
Sec. 313. Federal enforcement.
Sec. 314. Response plans for discharges of oil or hazardous substances.
Sec. 315. Marine sanitation devices.
Sec. 316. Federal facilities.
Sec. 317. Clean lakes.
Sec. 318. Cooling water intake structures.
Sec. 319. Nonpoint source management programs.
Sec. 320. National estuary program.
Sec. 321. State watershed management programs.
Sec. 322. Stormwater management programs.
Sec. 323. Risk assessment and disclosure requirements.
Sec. 324. Benefit and cost criterion.
TITLE IV--PERMITS AND LICENSES
Sec. 401. Waste treatment systems for concentrated animal feeding
operations.
Sec. 402. Permit reform.
Sec. 403. Review of State programs and permits.
Sec. 404. Statistical noncompliance.
Sec. 405. Anti-backsliding requirements.
Sec. 406. Intake credits.
Sec. 407. Combined sewer overflows.
Sec. 408. Sanitary sewer overflows.
Sec. 409. Abandoned mines.
Sec. 410. Beneficial use of biosolids.
Sec. 411. Waste treatment systems defined.
Sec. 412. Thermal discharges.
TITLE V--GENERAL PROVISIONS
Sec. 501. Consultation with States.
Sec. 502. Navigable waters defined.
Sec. 503. CAFO definition clarification.
Sec. 504. Publicly owned treatment works defined.
Sec. 505. State water quantity rights.
Sec. 506. Implementation of water pollution laws with respect to
vegetable oil.
Sec. 507. Needs estimate.
Sec. 508. General program authorizations.
Sec. 509. Indian tribes.
Sec. 510. Food processing and food safety.
Sec. 511. Audit dispute resolution.
TITLE VI--STATE WATER POLLUTION CONTROL REVOLVING FUNDS
Sec. 601. General authority for capitalization grants.
Sec. 602. Capitalization grant agreements.
Sec. 603. Water pollution control revolving loan funds.
Sec. 604. Allotment of funds.
Sec. 605. Authorization of appropriations.
Sec. 606. State nonpoint source water pollution control revolving
funds.
TITLE VII--MISCELLANEOUS PROVISIONS
Sec. 701. Technical amendments.
Sec. 702. John A. Blatnik National Fresh Water Quality Research
Laboratory.
Sec. 703. Wastewater service for colonias.
Sec. 704. Savings in municipal drinking water costs.
TITLE VIII--WETLANDS CONSERVATION AND MANAGEMENT
Sec. 801. Short title.
Sec. 802. Findings and statement of purpose.
Sec. 803. Wetlands conservation and management.
Sec. 804. Definitions.
Sec. 805. Technical and conforming amendments.
Sec. 806. Effective date.
TITLE IX--NAVIGATIONAL DREDGING
Sec. 901. References to act.
Sec. 902. Ocean dumping permits.
Sec. 903. Dredged material permits.
Sec. 904. Permit conditions.
Sec. 905. Special provisions regarding certain dumping sites.
Sec. 906. References to Administrator.
SEC. 2. DEFINITION.
In this Act, the term ``Administrator'' means the Administrator of
the Environmental Protection Agency.
SEC. 3. AMENDMENT OF FEDERAL WATER POLLUTION CONTROL ACT.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Federal Water Pollution
Control Act (33 U.S.C. 1251-1387).
TITLE I--RESEARCH AND RELATED PROGRAMS
SEC. 101. NATIONAL GOALS AND POLICIES.
(a) Nonpoint Source Pollution; State Strategies.--Section 101(a) (33
U.S.C. 1251(a)) is amended--
(1) by striking ``and'' at the end of paragraph (6);
(2) in paragraph (7)--
(A) by inserting ``, including public and private
sector programs using economic incentives,'' after
``programs'';
(B) by inserting ``, including stormwater,'' after
``nonpoint sources of pollution'' the first place it
appears; and
(C) by striking the period at the end and inserting a
semicolon; and
(3) by adding at the end the following:
``(8) it is the national policy to support State efforts
undertaken in consultation with tribal and local governments to
identify, prioritize, and implement water pollution prevention
and control strategies;''.
(b) Role of State, Tribal, and Local Governments.--Section 101(a) is
further amended by adding at the end the following:
``(9) it is the national policy to recognize, support, and
enhance the role of State, tribal, and local governments in
carrying out the provisions of this Act;''.
(c) Reclamation and Reuse.--
(1) Reclamation.--Section 101(a)(4) is amended by inserting
after ``works'' the following: ``and to reclaim waste water
from municipal and industrial sources''.
(2) Beneficial reuse.--Section 101(a) is further amended by
adding at the end the following:
``(10) it is the national policy that beneficial reuse of
waste water effluent and biosolids be encouraged to the fullest
extent possible; and''.
(d) Water Use Efficiency.--Section 101(a) is further amended by
adding at the end the following:
``(11) it is the national policy that water use efficiency be
encouraged to the fullest extent possible.''.
(e) Net Benefits.--Section 101 is further amended by adding at the
end the following:
``(h) Net Benefits.--It is the national policy that the development
and implementation of water quality protection programs pursuant to
this Act--
``(1) be based on scientifically objective and unbiased
information concerning the nature and magnitude of risk; and
``(2) maximize net benefits to society in order to promote
sound regulatory decisions and promote the rational and
coherent allocation of society's limited resources.''.
SEC. 102. RESEARCH, INVESTIGATIONS, TRAINING, AND INFORMATION.
(a) National Programs.--Section 104(a) (33 U.S.C. 1254(a)) is
amended--
(1) by striking ``and'' at the end of paragraph (5);
(2) by striking the period at the end of paragraph (6) and
inserting ``; and''; and
(3) by adding at the end the following:
``(7) in cooperation with appropriate Federal, State, and
local agencies, conduct, promote, and encourage to the maximum
extent feasible, in watersheds that may be significantly
affected by nonpoint sources of pollution, monitoring and
measurement of water quality by means and methods that will
help to identify the relative contributions of particular
nonpoint sources.''.
(b) Grants to Local Governments.--Section 104(b)(3) (33 U.S.C.
1254(b)(3)) is amended by inserting ``local governments,'' after
``interstate agencies,''.
(c) Technical Assistance for Rural and Small Treatment Works.--
Section 104(b) (33 U.S.C. 1254(b)) is amended--
(1) by striking ``and'' at the end of paragraph (6);
(2) by striking the period at the end of paragraph (7) and
inserting a semicolon; and
(3) by adding at the end the following new paragraphs:
``(8) make grants to nonprofit organizations to provide
technical assistance and training to rural and small publicly
owned treatment works to enable such treatment works to achieve
and maintain compliance with the requirements of this Act; and
``(9) disseminate information to rural, small, and
disadvantaged communities with respect to the planning, design,
construction, and operation of treatment works.''.
(d) Wastewater Treatment in Impoverished Communities.--Section 104(q)
(33 U.S.C. 1254(q)) is amended by adding at the end the following:
``(5) Small impoverished communities.--
``(A) Grants.--The Administrator may make grants to
States to provide assistance for planning, design, and
construction of publicly owned treatment works to
provide wastewater services to rural communities of
3,000 or less that are not currently served by any
sewage collection or water treatment system and are
severely economically disadvantaged, as determined by
the Administrator.
``(B) Authorization.--There is authorized to be
appropriated to carry out this paragraph $50,000,000
per fiscal year for fiscal years 1996 through 2000.''.
(e) Authorization of Appropriations.--Section 104(u) (33 U.S.C.
1254(u)) is amended--
(1) by striking ``and'' before ``(6)''; and
(2) by inserting before the period at the end the following:
``; and (7) not to exceed $50,000,000 per fiscal year for each
of fiscal years 1996 through 2000 for carrying out the
provisions of subsections (b)(3), (b)(8), and (b)(9), except
that not less than 20 percent of the sums appropriated pursuant
to this clause shall be available for carrying out the
provisions of subsections (b)(8) and (b)(9)''.
SEC. 103. STATE MANAGEMENT ASSISTANCE.
Section 106(a) (33 U.S.C. 1256(a)) is amended--
(1) by striking ``and'' before ``$75,000,000'';
(2) by inserting after ``1990'' the following: ``, such sums
as may be necessary for each of fiscal years 1991 through 1995,
and $150,000,000 per fiscal year for each of fiscal years 1996
through 2000''; and
(3) by adding at the end the following: ``States or
interstate agencies receiving grants under this section may use
such funds to finance, with other States or interstate
agencies, studies and projects on interstate issues relating to
such programs.''.
SEC. 104. MINE WATER POLLUTION CONTROL.
Section 107 (33 U.S.C. 1257) is amended to read as follows:
``SEC. 107. MINE WATER POLLUTION CONTROL.
``(a) Acidic and Other Toxic Mine Drainage.--The Administrator shall
establish a program to demonstrate the efficacy of measures for
abatement of the causes and treatment of the effects of acidic and
other toxic mine drainage within qualified hydrologic units affected by
past coal mining practices for the purpose of restoring the biological
integrity of waters within such units.
``(b) Grants.--
``(1) In general.--Any State or Indian tribe may apply to the
Administrator for a grant for any project which provides for
abatement of the causes or treatment of the effects of acidic
or other toxic mine drainage within a qualified hydrologic unit
affected by past coal mining practices.
``(2) Application requirements.--An application submitted to
the Administrator under this section shall include each of the
following:
``(A) An identification of the qualified hydrologic
unit.
``(B) A description of the extent to which acidic or
other toxic mine drainage is affecting the water
quality and biological resources within the hydrologic
unit.
``(C) An identification of the sources of acidic or
other toxic mine drainage within the hydrologic unit.
``(D) An identification of the project and the
measures proposed to be undertaken to abate the causes
or treat the effects of acidic or other toxic mine
drainage within the hydrologic unit.
``(E) The cost of undertaking the proposed abatement
or treatment measures.
``(c) Federal Share.--
``(1) In general.--The Federal share of the cost of a project
receiving grant assistance under this section shall be 50
percent.
``(2) Lands, easements, and rights-of-way.--Contributions of
lands, easements, and rights-of-way shall be credited toward
the non-Federal share of the cost of a project under this
section but not in an amount exceeding 25 percent of the total
project cost.
``(3) Operation and maintenance.--The non-Federal interest
shall bear 100 percent of the cost of operation and maintenance
of a project under this section.
``(d) Prohibited Projects.--No acidic or other toxic mine drainage
abatement or treatment project may receive assistance under this
section if the project would adversely affect the free-flowing
characteristics of any river segment within a qualified hydrologic
unit.
``(e) Applications From Federal Entities.--Any Federal entity may
apply to the Administrator for a grant under this section for the
purposes of an acidic or toxic mine drainage abatement or treatment
project within a qualified hydrologic unit located on lands and waters
under the administrative jurisdiction of such entity.
``(f) Approval.--The Administrator shall approve an application
submitted pursuant to subsection (b) or (e) after determining that the
application meets the requirements of this section.
``(g) Qualified Hydrologic Unit Defined.--For purposes of this
section, the term `qualified hydrologic unit' means a hydrologic unit--
``(1) in which the water quality has been significantly
affected by acidic or other toxic mine drainage from past coal
mining practices in a manner which adversely impacts biological
resources; and
``(2) which contains lands and waters eligible for assistance
under title IV of the Surface Mining and Reclamation Act of
1977.''.
SEC. 105. WATER SANITATION IN RURAL AND NATIVE ALASKA VILLAGES.
(a) In General.--Section 113 (33 U.S.C. 1263) is amended by striking
the section heading and designation and subsections (a) through (f) and
inserting the following:
``SEC. 113. ALASKA VILLAGE PROJECTS AND PROGRAMS.
``(a) Grants.--The Administrator is authorized to make grants--
``(1) for the development and construction of facilities
which provide sanitation services for rural and Native Alaska
villages;
``(2) for training, technical assistance, and educational
programs relating to operation and maintenance for sanitation
services in rural and Native Alaska villages; and
``(3) for reasonable costs of administering and managing
grants made and programs and projects carried out under this
section; except that not to exceed 4 percent of the amount of
any grant made under this section may be made for such costs.
``(b) Federal Share.--A grant under this section shall be 50 percent
of the cost of the program or project being carried out with such
grant.
``(c) Special Rule.--The Administrator shall award grants under this
section for project construction following the rules specified in
subpart H of part 1942 of title 7 of the Code of Federal Regulations.
``(d) Grants to State for Benefit of Villages.--Grants under this
section may be made to the State for the benefit of rural Alaska
villages and Alaska Native villages.
``(e) Coordination.--In carrying out activities under this
subsection, the Administrator is directed to coordinate efforts between
the State of Alaska, the Secretary of Housing and Urban Development,
the Secretary of Health and Human Services, the Secretary of the
Interior, the Secretary of Agriculture, and the recipients of grants.
``(f) Funding.--There is authorized to be appropriated $25,000,000
for fiscal years beginning after September 30, 1995, to carry out this
section.''.
(b) Conforming Amendment.--Section 113(g) is amended by inserting
after ``(g)'' the following: ``Definitions.--''.
SEC. 106. AUTHORIZATION OF APPROPRIATIONS FOR CHESAPEAKE PROGRAM.
Section 117(d) (33 U.S.C. 1267(d)) is amended--
(1) in paragraph (1), by inserting ``such sums as may be
necessary for fiscal years 1991 through 1995, and $3,000,000
per fiscal year for each of fiscal years 1996 through 2000''
after ``1990,''; and
(2) in paragraph (2), by inserting ``such sums as may be
necessary for fiscal years 1991 through 1995, and $18,000,000
per fiscal year for each of fiscal years 1996 through 2000''
after ``1990,''.
SEC. 107. GREAT LAKES MANAGEMENT.
(a) Great Lakes Research Council.--
(1) In general.--Section 118 (33 U.S.C. 1268) is amended--
(A) in subsection (a)(3)--
(i) by striking subparagraph (E) and
inserting the following:
``(E) `Council' means the Great Lakes Research
Council established by subsection (d)(1);'';
(ii) by striking ``and'' at the end of
subparagraph (I);
(iii) by striking the period at the end of
subparagraph (J) and inserting ``; and''; and
(iv) by adding at the end the following:
``(K) `Great Lakes research' means the application of
scientific or engineering expertise to explain,
understand, and predict a physical, chemical,
biological, or socioeconomic process, or the
interaction of 1 or more of the processes, in the Great
Lakes ecosystem.'';
(B) by striking subsection (d) and inserting the
following:
``(d) Great Lakes Research Council.--
``(1) Establishment of council.--There is established a Great
Lakes Research Council.
``(2) Duties of council.--The Council--
``(A) shall advise and promote the coordination of
Federal Great Lakes research activities to avoid
unnecessary duplication and ensure greater
effectiveness in achieving protection of the Great
Lakes ecosystem through the goals of the Great Lakes
Water Quality Agreement;
``(B) not later than 1 year after the date of the
enactment of this subparagraph and biennially
thereafter and after providing opportunity for public
review and comment, shall prepare and provide to
interested parties a document that includes--
``(i) an assessment of the Great Lakes
research activities needed to fulfill the goals
of the Great Lakes Water Quality Agreement;
``(ii) an assessment of Federal expertise and
capabilities in the activities needed to
fulfill the goals of the Great Lakes Water
Quality Agreement, including an inventory of
Federal Great Lakes research programs,
projects, facilities, and personnel; and
``(iii) recommendations for long-term and
short-term priorities for Federal Great Lakes
research, based on a comparison of the
assessments conducted under clauses (i) and
(ii);
``(C) shall identify topics for and participate in
meetings, workshops, symposia, and conferences on Great
Lakes research issues;
``(D) shall make recommendations for the uniform
collection of data for enhancing Great Lakes research
and management protocols relating to the Great Lakes
ecosystem;
``(E) shall advise and cooperate in--
``(i) improving the compatible integration of
multimedia data concerning the Great Lakes
ecosystem; and
``(ii) any effort to establish a
comprehensive multimedia data base for the
Great Lakes ecosystem; and
``(F) shall ensure that the results, findings, and
information regarding Great Lakes research programs
conducted or sponsored by the Federal Government are
disseminated in a timely manner, and in useful forms,
to interested persons, using to the maximum extent
practicable mechanisms in existence on the date of the
dissemination, such as the Great Lakes Research
Inventory prepared by the International Joint
Commission.
``(3) Membership.--
``(A) In general.--The Council shall consist of 1
research manager with extensive knowledge of, and
scientific expertise and experience in, the Great Lakes
ecosystem from each of the following agencies and
instrumentalities:
``(i) The Agency.
``(ii) The National Oceanic and Atmospheric
Administration.
``(iii) The National Biological Service.
``(iv) The United States Fish and Wildlife
Service.
``(v) Any other Federal agency or
instrumentality that expends $1,000,000 or more
for a fiscal year on Great Lakes research.
``(vi) Any other Federal agency or
instrumentality that a majority of the Council
membership determines should be represented on
the Council.
``(B) Nonvoting members.--At the request of a
majority of the Council membership, any person who is a
representative of a Federal agency or instrumentality
not described in subparagraph (A) or any person who is
not a Federal employee may serve as a nonvoting member
of the Council.
``(4) Chairperson.--The chairperson of the Council shall be a
member of the Council from an agency specified in clause (i),
(ii), or (iii) of paragraph (3)(A) who is elected by a majority
vote of the members of the Council. The chairperson shall serve
as chairperson for a period of 2 years. A member of the Council
may not serve as chairperson for more than 2 consecutive terms.
``(5) Expenses.--While performing official duties as a member
of the Council, a member shall be allowed travel or
transportation expenses under section 5703 of title 5, United
States Code.
``(6) Interagency cooperation.--The head of each Federal
agency or instrumentality that is represented on the Council--
``(A) shall cooperate with the Council in
implementing the recommendations developed under
paragraph (2);
``(B) on written request of the chairperson of the
Council, may make available, on a reimbursable basis or
otherwise, such personnel, services, or facilities as
may be necessary to assist the Council in carrying out
the duties of the Council under this section; and
``(C) on written request of the chairperson, shall
furnish data or information necessary to carry out the
duties of the Council under this section.
``(7) International cooperation.--The Council shall
cooperate, to the maximum extent practicable, with the research
coordination efforts of the Council of Great Lakes Research
Managers of the International Joint Commission.
``(8) Reimbursement for requested activities.--Each Federal
agency or instrumentality represented on the Council may
reimburse another Federal agency or instrumentality or a non-
Federal entity for costs associated with activities authorized
under this subsection that are carried out by the other agency,
instrumentality, or entity at the request of the Council.
``(9) Federal advisory committee act.--The Federal Advisory
Committee Act (5 U.S.C. App.) shall not apply to the Council.
``(10) Effect on other law.--Nothing in this subsection
affects the authority of any Federal agency or instrumentality,
under any law, to undertake Great Lakes research activities.'';
(C) in subsection (e)--
(i) in paragraph (1) by striking ``the
Program Office and the Research Office shall
prepare a joint research plan'' and inserting
``the Program Office, in consultation with the
Council, shall prepare a research plan''; and
(ii) in paragraph (3)(A) by striking ``the
Research Office, the Agency for Toxic
Substances and Disease Registry, and Great
Lakes States'' and inserting ``the Council, the
Agency for Toxic Substances and Disease
Registry, and Great Lakes States,''; and
(D) in subsection (h)--
(i) by adding ``and'' at the end of paragraph
(1);
(ii) by striking ``; and'' at the end of
paragraph (2) and inserting a period; and
(iii) by striking paragraph (3).
(2) Conforming Amendment.--The second sentence of section
403(a) of the Marine Protection, Research, and Sanctuaries Act
of 1972 (16 U.S.C. 1447b(a)) is amended by striking ``Great
Lakes Research Office authorized under'' and inserting ``Great
Lakes Research Council established by''.
(b) Consistency of Programs With Federal Guidance.--Section
118(c)(2)(C) (33 U.S.C. 1268(c)(2)(C)) is amended by adding at the end
the following: ``For purposes of this section, a State's standards,
policies, and procedures shall be considered consistent with such
guidance if the standards, policies, and procedures are based on
scientifically defensible judgments and policy choices made by the
State after consideration of the guidance and provide an overall level
of protection comparable to that provided by the guidance, taking into
account the specific circumstances of the State's waters.''.
(c) Reauthorization of Assessment and Remediation of Contaminated
Sediments Program.--Section 118(c)(7) is amended by adding at the end
the following:
``(D) Reauthorization of assessment and remediation
of contaminated sediments program.--
``(i) In general.--The Administrator, acting
through the Program Office, in consultation and
cooperation with the Assistant Secretary of the
Army having responsibility for civil works,
shall conduct at least 3 pilot projects
involving promising technologies and practices
to remedy contaminated sediments (including at
least 1 full-scale demonstration of a
remediation technology) at sites in the Great
Lakes System, as the Administrator determines
appropriate.
``(ii) Selection of sites.--In selecting
sites for the pilot projects, the Administrator
shall give priority consideration to--
``(I) the Ashtabula River in Ohio;
``(II) the Buffalo River in New York;
``(III) Duluth and Superior Harbor in
Minnesota;
``(IV) the Fox River in Wisconsin;
``(V) the Grand Calumet River in
Indiana; and
``(VI) Saginaw Bay in Michigan.
``(iii) Deadlines.--In carrying out this
subparagraph, the Administrator shall--
``(I) not later than 18 months after
the date of the enactment of this
subparagraph, identify at least 3 sites
and the technologies and practices to
be demonstrated at the sites (including
at least 1 full-scale demonstration of
a remediation technology); and
``(II) not later than 5 years after
such date of enactment, complete at
least 3 pilot projects (including at
least 1 full-scale demonstration of a
remediation technology).
``(iv) Additional projects.--The
Administrator, acting through the Program
Office, in consultation and cooperation with
the Assistant Secretary of the Army having
responsibility for civil works, may conduct
additional pilot- and full-scale pilot projects
involving promising technologies and practices
at sites in the Great Lakes System other than
the sites selected under clause (i).
``(v) Execution of projects.--The
Administrator may cooperate with the Assistant
Secretary of the Army having responsibility for
civil works to plan, engineer, design, and
execute pilot projects under this subparagraph.
``(vi) Non-federal contributions.--The
Administrator may accept non-Federal
contributions to carry out pilot projects under
this subparagraph.
``(vii) Authorization of appropriations.--
There are authorized to be appropriated to
carry out this subparagraph $3,500,000 for each
of fiscal years 1996 through 2000.
``(E) Technical information and assistance.--
``(i) In general.--The Administrator, acting
through the Program Office, may provide
technical information and assistance involving
technologies and practices for remediation of
contaminated sediments to persons that request
the information or assistance.
``(ii) Technical assistance priorities.--In
providing technical assistance under this
subparagraph, the Administrator, acting through
the Program Office, shall give special priority
to requests for integrated assessments of, and
recommendations regarding, remediation
technologies and practices for contaminated
sediments at Great Lakes areas of concern.
``(iii) Coordination with other
demonstrations.--The Administrator shall--
``(I) coordinate technology
demonstrations conducted under this
subparagraph with other federally
assisted demonstrations of contaminated
sediment remediation technologies; and
``(II) share information from the
demonstrations conducted under this
subparagraph with the other
demonstrations.
``(iv) Other sediment remediation
activities.--Nothing in this subparagraph
limits the authority of the Administrator to
carry out sediment remediation activities under
other laws.
``(v) Authorization of appropriations.--There
are authorized to be appropriated to carry out
this subparagraph $1,000,000 for each of fiscal
years 1996 through 2000.''.
(d) Authorization of Appropriations.--
(1) Research and management.--Section 118(e)(3)(B) (33 U.S.C.
1268(e)(3)(B)) is amended by inserting before the period at the
end the following: ``, such sums as may be necessary for fiscal
year 1995, and $4,000,000 per fiscal year for each of fiscal
years 1996, 1997, and 1998''.
(2) Great lakes programs.--Section 118(h) (33 U.S.C. 1268(h))
is amended--
(A) by striking ``and'' before ``$25,000,000''; and
(B) by inserting before the period at the end of the
first sentence the following: ``, such sums as may be
necessary for fiscal years 1992 through 1995, and
$17,500,000 per fiscal year for each of fiscal years
1996 through 2000''.
TITLE II--CONSTRUCTION GRANTS
SEC. 201. USES OF FUNDS.
(a) Nonpoint Source Program.--Section 201(g)(1) (33 U.S.C.
1281(g)(1)) is amended by striking the period at the end of the first
sentence and all that follows through the period at the end of the last
sentence and inserting the following: ``and for any purpose for which a
grant may be made under sections 319(h) and 319(i) of this Act
(including any innovative and alternative approaches for the control of
nonpoint sources of pollution).''.
(b) Retroactive Eligibility.--Section 201(g)(1) is further amended by
adding at the end the following: ``The Administrator, with the
concurrence of the States, shall develop procedures to facilitate and
expedite the retroactive eligibility and provision of grant funding for
facilities already under construction.''.
SEC. 202. ADMINISTRATION OF CLOSEOUT OF CONSTRUCTION GRANT PROGRAM.
Section 205(g)(1) (33 U.S.C. 1285(g)(1)) is amended by adding at the
end the following: ``The Administrator may negotiate an annual budget
with a State for the purpose of administering the closeout of the
State's construction grants program under this title. Sums made
available for administering such closeout shall be subtracted from
amounts remaining available for obligation under the State's
construction grant program under this title.''.
SEC. 203. SEWAGE COLLECTION SYSTEMS.
Section 211(a) (33 U.S.C. 1291(a)) is amended--
(1) in clause (1) by striking ``an existing collection
system'' and inserting ``a collection system existing on the
date of the enactment of the Clean Water Amendments of 1995'';
and
(2) in clause (2)--
(A) by striking ``an existing community'' and
inserting ``a community existing on such date of
enactment''; and
(B) by striking ``sufficient existing'' and inserting
``sufficient capacity existing on such date of
enactment''.
SEC. 204. TREATMENT WORKS DEFINED.
(a) Inclusion of Other Lands.--Section 212(2)(A) (33 U.S.C.
1292(2)(A)) is amended--
(1) by striking ``any works, including site'';
(2) by striking ``is used for ultimate'' and inserting ``will
be used for ultimate''; and
(3) by inserting before the period at the end the following:
``and acquisition of other lands, and interests in lands, which
are necessary for construction''.
(b) Policy on Cost Effectiveness.--Section 218(a) (33 U.S.C. 1298(a))
is amended by striking ``combination of devices and systems'' and all
that follows through ``from such treatment;'' and inserting ``treatment
works;''.
SEC. 205. VALUE ENGINEERING REVIEW.
Section 218(c) (33 U.S.C. 1298(c)) is amended by striking
``$10,000,000'' and inserting ``$25,000,000''.
SEC. 206. GRANTS FOR WASTEWATER TREATMENT.
(a) Coastal Localities.--The Administrator shall make grants under
title II of the Federal Water Pollution Control Act to appropriate
instrumentalities for the purpose of construction of treatment works
(including combined sewer overflow facilities) to serve coastal
localities. No less than $10,000,000 of the amount of such grants shall
be used for water infrastructure improvements in New Orleans, no less
than $3,000,000 of the amount of such grants shall be used for water
infrastructure improvements in Bristol County, Massachusetts, and no
less than \1/3\ of the amount of such grants shall be used to assist
localities that meet both of the following criteria:
(1) Need.--A locality that has over $2,000,000,000 in
category I treatment needs documented and accepted in the
Environmental Protection Agency's 1992 Needs Survey database as
of February 4, 1993.
(2) Hardship.--A locality that has wastewater user charges,
for residential use of 7,000 gallons per month based on Ernst &
Young National Water and Wastewater 1992 Rate Survey, greater
than 0.65 percent of 1989 median household income for the
metropolitan statistical area in which such locality is located
as measured by the Bureau of the Census.
(b) Federal Share.--Notwithstanding section 202(a)(1) of the Federal
Water Pollution Control Act, the Federal share of grants under
subsection (a) shall be 80 percent of the cost of construction, and the
non-Federal share shall be 20 percent of the cost of construction.
(c) Small Communities.--The Administrator shall make grants to States
for the purpose of providing assistance for the construction of
treatment works to serve small communities as defined by the State;
except that the term ``small communities'' may not include any locality
with a population greater than 75,000. Funds made available to carry
out this subsection shall be allotted by the Administrator to the
States in accordance with the allotment formula contained in section
604(a) of the Federal Water Pollution Control Act.
(d) Authorization of Appropriations.--There is authorized to be
appropriated for making grants under this section $300,000,000 for
fiscal year 1996. Such sums shall remain available until expended and
shall be equally divided between subsections (a) and (c) of this
section. Such authorization of appropriation shall take effect only if
the total amount appropriated for fiscal year 1996 to carry out title
VI of the Federal Water Pollution Control Act is at least
$3,000,000,000.
TITLE III--STANDARDS AND ENFORCEMENT
SEC. 301. EFFLUENT LIMITATIONS.
(a) Compliance Schedules.--Section 301(b) (33 U.S.C. 1311(b)) is
amended--
(1) in paragraph (1)(C) by striking ``not later than July 1,
1977,'';
(2) by striking the period at the end and inserting ``not
later than 3 years after the date such limitations are
established;''; and
(3) by striking ``, and in no case later than March 31,
1989'' each place it appears.
(b) Modifications for Nonconventional Pollutants.--
(1) General authority.--Section 301(g)(1) (33 U.S.C.
1311(g)(1)) is amended by striking ``(when determined by the
Administrator to be a pollutant covered by subsection
(b)(2)(F)) and any other pollutant which the Administrator
lists under paragraph (4) of this subsection'' and inserting
``and any other pollutant covered by subsection (b)(2)(F)''.
(2) Procedural requirements for listing and removal of
pollutants.--Section 301(g) (33 U.S.C. 1311(g)) is further
amended by striking paragraphs (4) and (5).
(c) Coal Remining.--Section 301(p)(2) (33 U.S.C. 1311(p)(2)) is
amended by inserting before the period at the end the following: ``;
except where monitoring demonstrates that the receiving waters do not
meet such water quality standards prior to commencement of remining and
where the applicant submits a plan which demonstrates to the
satisfaction of the Administrator or the State, as the case may be,
that identified measures will be utilized to improve the existing water
quality of the receiving waters''.
(d) Preexisting Coal Remining Operations.--Section 301(p) (33 U.S.C.
1311) is amended by adding at the end the following:
``(5) Preexisting coal remining operations.--Any operator of
a coal mining operation who conducted remining at a site on
which coal mining originally was conducted before the effective
date of the Surface Mining Control and Reclamation Act of 1977
shall be deemed to be in compliance with sections 301, 302,
306, 307, and 402 of this Act if--
``(A) such operator commenced remining at such
operation prior to the adoption of this subsection in a
State program approved under section 402 and performed
such remining under a permit pursuant to such Act; and
``(B) the post-mining discharges from such operation
do not add pollutants to the waters of the United
States in excess of those pollutants discharged from
the remined area before the coal remining operation
began.''.
SEC. 302. POLLUTION PREVENTION OPPORTUNITIES.
(a) Innovative Production Processes.--Subsection (k) of section 301
(33 U.S.C. 1311(k)) is amended to read as follows:
``(k) Innovative Production Processes, Technologies, and Methods.--
``(1) In general.--In the case of any point source subject to
a permit under section 402, the Administrator, with the consent
of the State in which the point source is located, or the State
in consultation with the Administrator, in the case of a State
with an approved program under section 402, may, at the request
of the permittee and after public notice and opportunity for
comment, extend the deadline for the point source to comply
with any limitation established pursuant to subsection
(b)(1)(A), (b)(2)(A), or (b)(2)(E) and make other appropriate
modifications to the conditions of the point source permit, for
the purpose of encouraging the development and use of an
innovative pollution prevention technology (including an
innovative production process change, innovative pollution
control technology, or innovative recycling method) that has
the potential to--
``(A) achieve an effluent reduction which is greater
than that required by the limitation otherwise
applicable;
``(B) meet the applicable effluent limitation to
water while achieving a reduction of total emissions to
other media which is greater than that required by the
otherwise applicable emissions limitations for the
other media;
``(C) meet the applicable effluent limitation to
water while achieving a reduction in energy
consumption; or
``(D) achieve the required reduction with the
potential for significantly lower costs than the
systems determined by the Administrator to be
economically achievable.
``(2) Duration of extensions.--The extension of the
compliance deadlines under paragraph (1) shall not extend
beyond the period necessary for the owner of the point source
to install and use the innovative process, technology, or
method in full-scale production operations, but in no case
shall the compliance extensions extend beyond 3 years from the
date for compliance with the otherwise applicable limitations.
``(3) Consequences of failure.--In determining the amount of
any civil or administrative penalty pursuant to section 309(d)
or 309(g) for any violations of a section 402 permit during the
extension period referred to in paragraph (1) that are caused
by the unexpected failure of an innovative process, technology,
or method, a court or the Administrator, as appropriate, shall
reduce or eliminate the penalty for such violation if the
permittee has made good-faith efforts both to implement the
innovation and to comply with any interim limitations.
``(4) Report.--Not later than 1 year after the date of the
enactment of this subsection, the Administrator shall review,
analyze, and compile in a report information on innovative and
alternative technologies which are available for preventing and
reducing pollution of navigable waters, submit such report to
Congress, and publish in the Federal Register a summary of such
report and a notice of the availability of such report. The
Administrator shall annually update the report prepared under
this paragraph, submit the updated report to Congress, and
publish in the Federal Register a summary of the updated report
and a notice of its availability.''.
(b) Pollution Prevention Programs.--Section 301 (33 U.S.C. 1311) is
amended--
(1) in subsection (l) by striking ``subsection (n)'' and
inserting ``subsections (n), (q), and (r)''; and
(2) by adding at the end the following:
``(q) Pollution Prevention Programs.--
``(1) In general.--Notwithstanding any other provision of
this Act, the Administrator (with the concurrence of the State)
or a State with an approved program under section 402, after
public notice and an opportunity for comment, may issue a
permit under section 402 which modifies the requirements of
subsection (b) of this section or section 306 and makes
appropriate modifications to the conditions of the permit, or
may modify the requirements of section 307, if the
Administrator or State determines that pollution prevention
measures or practices (including recycling, source reduction,
and other measures to reduce discharges or other releases of
pollutants to the environment beyond those otherwise required
by law) together with such modifications will achieve an
overall reduction in emissions to the environment (including
emissions to water and air and disposal of solid wastes) from
the facility at which the permitted discharge is located that
is greater than would otherwise be achievable if the source
complied with the requirements of subsection (b) or section 306
or 307 and will result in an overall net benefit to the
environment.
``(2) Term of modification.--A modification made pursuant to
paragraph (1) shall extend for the term of the permit or, in
the case of modifications under section 307(b), for up to 10
years, and may be extended further if the Administrator or
State determines at the expiration of the initial modifications
that such modifications will continue to enable the source to
achieve greater emissions reduction than would otherwise be
attainable.
``(3) Nonextension of modification.--Upon expiration of a
modification that is not extended further under paragraph (2),
the source shall have a reasonable period of time, not to
exceed 2 years, to come into compliance with otherwise
applicable requirements of this Act.
``(4) Report.--Not later than 3 years after the date of the
enactment of this subsection, the Administrator shall submit to
Congress a report on the implementation of this subsection and
the emissions reductions achieved as a result of modifications
made pursuant to this subsection.''.
(c) Pollution Reduction Agreements.--Section 301 is further amended
by adding at the end the following:
``(r) Pollution Reduction Agreements.--
``(1) In general.--Notwithstanding any other provision of
this Act, the Administrator (with the concurrence of the State)
or a State with an approved program under section 402, after
public notice and an opportunity for comment, may issue a
permit under section 402 which modifies the requirements of
subsection (b) of this section or section 306 and makes
appropriate modifications to the conditions of the permit, or
may modify the requirements of section 307, if the
Administrator or State determines that the owner or operator of
the source of the discharge has entered into a binding
contractual agreement with any other source of discharge in the
same watershed to implement pollution reduction controls or
measures beyond those otherwise required by law and that the
agreement is being implemented through modifications of a
permit issued under section 402 to the other source, by
modifications of the requirements of section 307 applicable to
the other source, or by nonpoint source control practices and
measures under section 319 applicable to the other source. The
Administrator or State may modify otherwise applicable
requirements pursuant to this section whenever the
Administrator or State determines that such pollution reduction
control or measures will result collectively in an overall
reduction in discharges to the watershed that is greater than
would otherwise be achievable if the parties to the pollution
reduction agreement each complied with applicable requirements
of subsection (b), section 306 or 307 resulting in a net
benefit to the watershed.
``(2) Notification to affected states.--Before issuing or
modifying a permit under this subsection allowing discharges
into a watershed that is within the jurisdiction of 2 or more
States, the Administrator or State shall provide written notice
of the proposed permit to all States with jurisdiction over the
watershed. The Administrator or State shall not issue or modify
such permit unless all States with jurisdiction over the
watershed have approved such permit or unless such States do
not disapprove such permit within 90 days of receiving such
written notice.
``(3) Term of modification.--Modifications made pursuant to
this subsection shall extend for the term of the modified
permits or, in the case of modifications under section 307, for
up to 10 years, and may be extended further if the
Administrator or State determines, at the expiration of the
initial modifications, that such modifications will continue to
enable the sources trading credits to achieve greater reduction
in discharges to the watershed collectively than would
otherwise be attainable.
``(4) Nonextension of modification.--Upon expiration of a
modification that is not extended further under paragraph (3),
the source shall have a reasonable period of time, not to
exceed 2 years, to come into compliance with otherwise
applicable requirements of this Act.
``(5) Limitation on statutory construction.--Nothing in this
subsection shall be construed to authorize the Administrator or
a State, as appropriate, to compel trading among sources or to
impose nonpoint source control practices without the consent of
the nonpoint source discharger.
``(6) Report.--Not later than 3 years after the date of the
enactment of this subsection, the Administrator shall submit a
report to Congress on the implementation of paragraph (1) and
the discharge reductions achieved as a result of modifications
made pursuant to paragraph (1).''.
(d) Antibacksliding.--Section 402(o)(2) (33 U.S.C. 1342(o)(2)) is
amended--
(1) in subparagraph (D)--
(A) by inserting ``301(q), 301(r),'' after
``301(n),''; and
(B) by striking ``or'' the last place it appears;
(2) in subparagraph (E) by striking the period at the end and
inserting ``; or''; and
(3) by inserting after subparagraph (E) the following:
``(F) the permittee is taking pollution prevention or
water conservation measures that produce a net
environmental benefit, including, but not limited to,
measures that result in the substitution of one
pollutant for another pollutant; increase the
concentration of a pollutant while decreasing the
discharge flow; or increase the discharge of a
pollutant or pollutants from one or more outfalls at a
permittee's facility, when accompanied by offsetting
decreases in the discharge of a pollutant or pollutants
from other outfalls at the permittee's facility.''.
(e) Antidegradation Review.--Section 303(d) (33 U.S.C. 1313(d)) is
amended by adding at the end the following:
``(5) Antidegradation review.--The Administrator may not
require a State, in implementing the antidegradation policy
established under this section, to conduct an antidegradation
review in the case of--
``(A) increases in a discharge which are authorized
under section 301(g), 301(k), 301(q), 301(r), or
301(t);
``(B) increases in the concentration of a pollutant
in a discharge caused by a reduction in wastewater
flow;
``(C) increases in the discharge of a pollutant or
pollutants from one or more outfalls at a permittee's
facility, when accompanied by offsetting decreases in
the discharge of a pollutant or pollutants from other
outfalls at the permittee's facility;
``(D) reissuance of a permit where there is no
increase in existing effluent limitations and, if a new
effluent limitation is being added to the permit, where
the new limitation is for a pollutant that is newly
found in an existing discharge due solely to improved
monitoring methods; or
``(E) a new or increased discharge which is temporary
or short-term or which the State determines represents
an insignificant increased pollutant loading.''.
(f) Innovative Pretreatment Production Processes.--Subsection (e) of
section 307 (33 U.S.C. 1317(e)) is amended to read as follows:
``(e) Innovative Pretreatment Production Processes, Technologies, and
Methods.--
``(1) In general.--In the case of any facility that proposes
to comply with the national categorical pretreatment standards
developed under subsection (b) by applying an innovative
pollution prevention technology (including an innovative
production process change, innovative pollution control
technology, or innovative recycling method) that meets the
requirements of section 301(k), the Administrator or the State,
in consultation with the Administrator, in the case of a State
which has a pretreatment program approved by the Administrator,
upon application of the facility and with the concurrence of
the treatment works into which the facility introduces
pollutants, may extend the deadlines for compliance with the
applicable national categorical pretreatment standards
established under this section and make other appropriate
modifications to the facility's pretreatment requirements if
the Administrator or the State, in consultation with the
Administrator, in the case of a State which has a pretreatment
program approved by the Administrator determines that--
``(A) the treatment works will require the owner of
the source to conduct such tests and monitoring during
the period of the modification as are necessary to
ensure that the modification does not cause or
contribute to a violation by the treatment works under
section 402 or a violation of section 405;
``(B) the treatment works will require the owner of
the source to report on progress at prescribed
milestones during the period of modification to ensure
that attainment of the pollution reduction goals and
conditions set forth in this section is being achieved;
and
``(C) the proposed extensions or modifications will
not cause or contribute to any violation of a permit
granted to the treatment works under section 402, any
violation of section 405, or a pass through of
pollutants such that water quality standards are
exceeded in the body of water into which the treatment
works discharges.
``(2) Interim limitations.--A modification granted pursuant
to paragraph (1) shall include interim standards that shall
apply during the temporary period of the modification and shall
be the more stringent of--
``(A) those necessary to ensure that the discharge
will not interfere with the operation of the treatment
works;
``(B) those necessary to ensure that the discharge
will not pass through pollutants at a level that will
cause water quality standards to be exceeded in the
navigable waters into which the treatment works
discharges;
``(C) the limits established in the previously
applicable control mechanism, in those cases in which
the limit from which a modification is being sought is
more stringent than the limit established in a previous
control mechanism applicable to such source.
``(3) Duration of extensions and modifications.--The
extension of the compliance deadlines and the modified
pretreatment requirements established pursuant to paragraph (1)
shall not extend beyond the period necessary for the owner to
install and use the innovative process, technology, or method
in full-scale production operation, but in no case shall the
compliance extensions and modified requirements extend beyond 3
years from the date for compliance with the otherwise
applicable standards.
``(4) Consequences of failure.--In determining the amount of
any civil or administrative penalty pursuant to section 309(d)
or 309(g) for any pretreatment violations, or violations by a
publicly owned treatment works, caused by the unexpected
failure of an innovative process, technology, or method, a
court or the Administrator, as appropriate, shall reduce, or
eliminate, the penalty amount for such violations provided the
facility made good-faith efforts both to implement the
innovation and to comply with the interim standards and, in the
case of a publicly owned treatment works, good-faith efforts
were made to implement the pretreatment program.''.
SEC. 303. WATER QUALITY STANDARDS AND IMPLEMENTATION PLANS.
(a) No Reasonable Relationship.--Section 303(b) (33 U.S.C. 1313(b))
is amended by adding at the end the following:
``(3) No reasonable relationship.--No water quality standard
shall be established under this subsection where there is no
reasonable relationship between the costs and anticipated
benefits of attaining such standard.''.
(b) Revision of State Standards.--
(1) Review of revisions by the administrator.--Section
303(c)(1) is amended by striking ``three'' and all that follows
through ``1972'' and inserting the following: ``5-year period
beginning on the date of the enactment of the Clean Water
Amendments of 1995 and, for criteria that are revised by the
Administrator pursuant to section 304(a), on or before the
180th day after the date of such revision by the
Administrator''.
(2) Factors.--Section 303(c) (33 U.S.C. 1313(c)) is amended
by striking paragraph (2)(A) and inserting the following:
``(2) State adoption of water quality standards.--
``(A) In general.--
``(i) Submission to administrator.--Whenever
the State revises or adopts a new water quality
standard, such standard shall be submitted to
the Administrator.
``(ii) Designated uses and water quality
criteria.--The revised or new standard shall
consist of the designated uses of the navigable
waters involved and the water quality criteria
for such waters based upon such uses.
``(iii) Protection of human health.--The
revised or new standard shall protect human
health and the environment and enhance water
quality.
``(iv) Development of standards.--In
developing revised or new standards, the State
may consider information reasonably available
on the likely social, economic, energy use, and
environmental cost associated with attaining
such standards in relation to the benefits to
be attained. The State may provide a
description of the considerations used in the
establishment of the standards.
``(v) Record of state's review.--The record
of a State's review under paragraph (1) of an
existing standard or adoption of a new standard
that includes water quality criteria issued or
revised by the Administrator after the date of
the enactment of this sentence shall contain
available estimates of costs of compliance with
the water quality criteria published by the
Administrator under section 304(a)(12) and any
comments received by the State on such
estimate.
``(vi) Limitation on statutory
construction.--Nothing in this subsection shall
be construed to limit or delay the use of any
guidance of the Administrator interpreting
water quality criteria to allow the use of a
dissolved metals concentration measurement or
similar adjustment in determining compliance
with a water quality standard or establishing
effluent limitations.''.
(c) Revision of Designated Uses.--Section 303(c)(2) (33 U.S.C.
1313(c)(2)) is amended by adding at the end the following:
``(C) Revision of designated uses.--
``(i) Regulations.--After consultation with
State officials and not later than 1 year after
the date of the enactment of this subparagraph,
the Administrator shall propose, and not later
than 2 years after such date of enactment shall
issue, a revision to the Administrator's
regulations regarding designation of uses of
waters by States.
``(ii) Waters not attaining designated
uses.--For navigable waters not attaining
designated uses, the Administrator shall
identify conditions that make attainment of the
designated use infeasible and shall allow a
State to modify the designated use if the State
determines that such condition or conditions
are present with respect to a particular
receiving water, or if the State determines
that the costs of achieving the designated use
are not justified by the benefits.
``(iii) Waters attaining designated uses.--
For navigable waters attaining the designated
use applicable to such waters for all
pollutants, the Administrator shall allow a
State to modify the designated use only if the
State determines that continued maintenance of
the water quality necessary to support the
designated use will result in significant
social or economic dislocations substantially
out of proportion to the benefits to be
achieved from maintenance of the designated
use.
``(iv) Modification of point source limits.--
Notwithstanding any other provision of this
Act, water quality based limits applicable to
point sources may be modified as appropriate to
conform to any modified designated use under
this section.''.
SEC. 304. USE OF BIOLOGICAL MONITORING.
(a) Laboratory Biological Monitoring Criteria.--Subparagraph (B) of
section 303(c)(2) (33 U.S.C. 1313(c)(2)) is amended--
(1) by inserting ``Criteria for toxic pollutants.--'' after
``(B)'';
(2) by moving such subparagraph 4 ems to the right;
(3) by inserting after the third sentence the following:
``Criteria for whole effluent toxicity based on laboratory
biological monitoring or assessment methods shall employ an
aquatic species indigenous, or representative of indigenous,
and relevant to the type of waters covered by such criteria and
shall take into account the accepted analytical variability
associated with such methods in defining an exceedance of such
criteria.''.
(b) Permit Procedures.--Section 402 is amended by adding at the end
the following:
``(q) Biological Monitoring Procedures.--
``(1) Responding to exceedances.--If a permit issued under
this section contains terms, conditions, or limitations
requiring biological monitoring or whole effluent toxicity
testing designed to meet criteria for whole effluent toxicity
based on laboratory biological monitoring or assessment methods
described in section 303(c)(2)(B), the permit shall establish
procedures for responding to an exceedance of such criteria
that includes analysis, identification, reduction, or, where
feasible, elimination of any effluent toxicity. The failure of
a biological monitoring test or whole effluent toxicity test
shall not result in a finding of a violation under this Act,
unless it is demonstrated that the permittee has failed to
comply with such procedures.
``(2) Discontinuance of use.--The permit shall allow the
permittee to discontinue such procedures--
``(A) if the permittee is an entity, other than a
publicly owned treatment works, if the permittee
demonstrates through a field bio-assessment study that
a balanced and healthy population of aquatic species
indigenous, or representative of indigenous, and
relevant to the type of waters exists in the waters
that are affected by the discharge, and if the
applicable water quality standards are met for such
waters; or
``(B) if the permittee is a publicly owned treatment
works, the source or cause of such toxicity cannot,
after thorough investigation, be identified.''.
(c) Information on Water Quality Criteria.--Section 304(a)(8) (33
U.S.C. 1314(a)(8)) is amended--
(1) by striking ``, after'' and all that follows through
``1987,''; and
(2) by inserting after ``publish'' the following: ``,
consistent with section 303(c)(2)(B) of this Act,''.
SEC. 305. ARID AREAS.
(a) Constructed Water Conveyances.--Section 303(c)(2) (33 U.S.C.
1313(c)(2)) is amended by adding at the end the following:
``(D) Standards for constructed water conveyances.--
``(i) Relevant factors.--If a State exercises
jurisdiction over constructed water conveyances
in establishing standards under this section,
the State may consider the following:
``(I) The existing and planned uses
of water transported in a conveyance
system.
``(II) Any water quality impacts
resulting from any return flow from a
constructed water conveyance to
navigable waters and the need to
protect downstream users.
``(III) Management practices
necessary to maintain the conveyance
system.
``(IV) State or regional water
resources management and water
conservation plans.
``(V) The authorized purpose for the
constructed conveyance.
``(ii) Relevant uses.--If a State adopts or
reviews water quality standards for constructed
water conveyances, it shall not be required to
establish recreation, aquatic life, or fish
consumption uses for such systems if the uses
are not existing or reasonably foreseeable or
such uses impede the authorized uses of the
conveyance system.''.
(b) Criteria and Guidance for Ephemeral and Effluent-Dependent
Streams.--Section 304(a) (33 U.S.C. 1314(a)) is amended by adding at
the end the following:
``(9) Criteria and guidance for ephemeral and effluent-
dependent streams.--
``(A) Development.--Not later than 2 years after the
date of the enactment of this paragraph, and after
providing notice and opportunity for public comment,
the Administrator shall develop and publish--
``(i) criteria for ephemeral and effluent-
dependent streams; and
``(ii) guidance to the States on development
and adoption of water quality standards
applicable to such streams.
``(B) Factors.--The criteria and guidance developed
under subparagraph (A) shall take into account the
limited ability of ephemeral and effluent-dependent
streams to support aquatic life and certain designated
uses, shall include consideration of the role the
discharge may play in maintaining the flow or level of
such waters, and shall promote the beneficial use of
reclaimed water pursuant to section 101(a)(10).''.
(c) Factors Required To Be Considered by Administrator.--Section
303(c)(4) is amended by adding at the end the following: ``In revising
or adopting any new standard for ephemeral or effluent-dependent
streams under this paragraph, the Administrator shall consider the
factors referred to in section 304(a)(9)(B).''.
(d) Definitions.--Section 502 (33 U.S.C. 1362) is amended by adding
at the end the following:
``(21) The term `effluent-dependent stream' means a stream or a
segment thereof--
``(A) with respect to which the flow (based on the annual
average expected flow, determined by calculating the average
mode over a 10-year period) is primarily attributable to the
discharge of treated wastewater;
``(B) that, in the absence of a discharge of treated
wastewater and other primary anthropogenic surface or
subsurface flows, would be an ephemeral stream; or
``(C) that is an effluent-dependent stream under applicable
State water quality standards.
``(22) The term `ephemeral stream' means a stream or segments thereof
that flows periodically in response to precipitation, snowmelt, or
runoff.
``(23) The term `constructed water conveyance' means a manmade water
transport system constructed for the purpose of transporting water in a
waterway that is not and never was a natural perennial waterway.''.
SEC. 306. TOTAL MAXIMUM DAILY LOADS.
Section 303(d)(1)(C) (33 U.S.C. 1313(d)(1)(C)) is amended to read as
follows:
``(C) Total maximum daily loads.--
``(i) State determination of reasonable
progress.--Each State shall establish, to the
extent and according to a schedule the State
determines is necessary to achieve reasonable
progress toward the attainment or maintenance
of water quality standards, for the waters
identified in paragraph (1)(A) of this
subsection, and in accordance with the priority
ranking, the total maximum daily load, for
those pollutants which the Administrator
identifies under section 304(a)(2) as suitable
for such calculation.
``(ii) Phased total maximum daily loads.--
Total maximum daily loads may reflect load
reductions the State expects will be realized
over time resulting from anticipated
implementation of best management practices,
storm water controls, or other nonpoint or
point source controls; so long as by December
31, 2015, such loads are established at levels
necessary to implement the applicable water
quality standards with seasonal variations and
a margin of safety.
``(iii) Considerations.--In establishing each
load, the State shall consider the availability
of scientifically valid data and information,
the projected reductions achievable by control
measures or practices for all sources or
categories of sources, and the relative cost-
effectiveness of implementing such control
measures or practices for such sources.''.
SEC. 307. REVISION OF CRITERIA, STANDARDS, AND LIMITATIONS.
(a) Revision of Water Quality Criteria.--
(1) Factors.--Section 304(a)(1) (33 U.S.C. 1314(a)(1)) is
amended--
(A) by striking ``and (C)'' and inserting ``(C)'';
and
(B) by striking the period at the end and inserting
the following: ``(D) on the organisms that are likely
to be present in various ecosystems; (E) on the
bioavailability of pollutants under various natural and
man induced conditions; (F) on the magnitude, duration,
and frequency of exposure reasonably required to induce
the adverse effects of concern; and (G) on the
bioaccumulation threat presented under various natural
conditions.''.
(2) Certification.--Section 304(a) (33 U.S.C. 1314(a)) is
amended by adding at the end the following:
``(10) Certification.--
``(A) In general.--Not later than 5 years after the
date of the enactment of this paragraph, and at least
once every 5 years thereafter, the Administrator shall
publish a written certification that the criteria for
water quality developed under paragraph (1) reflect the
latest and best scientific knowledge.
``(B) Updating of existing criteria.--Not later than
90 days after the date of the enactment of this
paragraph, the Administrator shall publish a schedule
for updating, by not later than 5 years after the date
of the enactment of this paragraph, the criteria for
water quality developed under paragraph (1) before the
date of the enactment of this subsection.
``(C) Deadline for revision of certain criteria.--Not
later than 1 year after the date of the enactment of
this paragraph, the Administrator shall revise and
publish criteria under paragraph (1) for ammonia,
chronic whole effluent toxicity, and metals as
necessary to allow the Administrator to make the
certification under subparagraph (A).''.
(b) Consideration of Certain Contaminants.--Section 304(a) (33 U.S.C.
1314(a)) is amended by adding at the end the following:
``(11) Consideration of certain contaminants.--In developing
and revising criteria for water quality criteria under
paragraph (1), the Administrator shall consider addressing, at
a minimum, each contaminant regulated pursuant to section 1412
of the Public Health Service Act (42 U.S.C. 300g-1).''.
(c) Cost Estimate.--Section 304(a) (33 U.S.C. 1314(a)) is further
amended by adding at the end the following:
``(12) Cost estimate.--Whenever the Administrator issues or
revises a criteria for water quality under paragraph (1), the
Administrator, after consultation with Federal and State
agencies and other interested persons, shall develop and
publish an estimate of the costs that would likely be incurred
if sources were required to comply with the criteria and an
analysis to support the estimate. Such analysis shall meet the
requirements relevant to the estimation of costs published in
guidance issued under section 324(b).''.
(d) Revision of Effluent Limitations.--
(1) Elimination of requirement for annual revision.--Section
304(b) (33 U.S.C. 1314(b)) is amended in the matter preceding
paragraph (1) by striking ``and, at least annually
thereafter,'' and inserting ``and thereafter shall''.
(2) Special rule.--Section 304(b) (33 U.S.C. 1314(b)) is
amended by striking the period at the end of the first sentence
and inserting the following: ``; except that guidelines issued
under paragraph (1)(A) addressing pollutants identified
pursuant to subsection (a)(4) shall not be revised after
February 15, 1995, to be more stringent unless such revised
guidelines meet the requirements of paragraph (4)(A).''.
(e) Schedule for Review of Guidelines.--Section 304(m)(1) (33 U.S.C.
1314(m)(1)) is amended to read as follows:
``(1) Publication.--Not later than 3 years after the date of
the enactment of the Clean Water Amendments of 1995, the
Administrator shall publish in the Federal Register a plan
which shall--
``(A) identify categories of sources discharging
pollutants for which guidelines under subsection (b)(2)
of this section and section 306 have not been
previously published;
``(B) establish a schedule for determining whether
such discharge presents a significant risk to human
health and the environment and whether such risk is
sufficient, when compared to other sources of
pollutants in navigable waters, to warrant regulation
by the Administrator; and
``(C) establish a schedule for issuance of effluent
guidelines for those categories identified pursuant to
subparagraph (B).''.
(f) Revision of Pretreatment Requirements.--Section 304(g)(1) (33
U.S.C. 1314(g)(1)) is amended by striking ``and review at least
annually thereafter and, if appropriate, revise'' and insert ``and
thereafter revise, as appropriate,''.
(g) Central Treatment Facility Exemption.--Section 304 (33 U.S.C.
1314) is amended by adding at the end the following:
``(n) Central Treatment Facility Exemption.--The exemption from
effluent guidelines for the Iron and Steel Manufacturing Point Source
Category set forth in section 420.01(b) of title 40, Code of Federal
Regulations, for the facilities listed in such section shall remain in
effect for any facility that met the requirements of such section on or
before July 26, 1982, until the Administrator develops alternative
effluent guidelines for the facility.''.
SEC. 308. INFORMATION AND GUIDELINES.
Section 304(i)(2)(D) (33 U.S.C. 1314(i)(2)(D)) is amended by striking
``any person'' and all that follows through the period at the end and
inserting the following: ``any person (other than a retiree or an
employee or official of a city, county, or local governmental agency)
who receives a significant portion of his or her income during the
period of service on the board or body directly or indirectly from
permit holders or applicants for a permit).''.
SEC. 309. SECONDARY TREATMENT.
(a) Coastal Discharges.--Section 304(d) (33 U.S.C. 1314(d)) is
amended by adding at the end the following:
``(5) Coastal discharges.--For purposes of this subsection,
any municipal wastewater treatment facility shall be deemed the
equivalent of a secondary treatment facility if each of the
following requirements is met:
``(A) The facility employs chemically enhanced
primary treatment.
``(B) The facility, on the date of the enactment of
this paragraph, discharges through an ocean outfall
into an open marine environment greater than 4 miles
offshore into a depth greater than 300 feet.
``(C) The facility's discharge is in compliance with
all local and State water quality standards for the
receiving waters.
``(D) The facility's discharge will be subject to an
ocean monitoring program acceptable to relevant Federal
and State regulatory agencies.''.
(b) Modification of Secondary Treatment Requirements.--
(1) In general.--Section 301 (33 U.S.C. 1311) is amended by
adding at the end the following:
``(s) Modification of Secondary Treatment Requirements.--
``(1) In general.--The Administrator, with the concurrence of
the State, shall issue a 10-year permit under section 402 which
modifies the requirements of subsection (b)(1)(B) of this
section with respect to the discharge of any pollutant from a
publicly owned treatment works into marine waters which are at
least 150 feet deep through an ocean outfall which discharges
at least 1 mile offshore, if the applicant demonstrates that--
``(A) there is an applicable ocean plan and the
facility's discharge is in compliance with all local
and State water quality standards for the receiving
waters;
``(B) the facility's discharge will be subject to an
ocean monitoring program determined to be acceptable by
relevant Federal and State regulatory agencies;
``(C) the applicant has an Agency approved
pretreatment plan in place; and
``(D) the applicant, at the time such modification
becomes effective, will be discharging effluent which
has received at least chemically enhanced primary
treatment and achieves a monthly average of 75 percent
removal of suspended solids.
``(2) Discharge of any pollutant into marine waters
defined.--For purposes of this subsection, the term `discharge
of any pollutant into marine waters' means a discharge into
deep waters of the territorial sea or the waters of the
contiguous zone, or into saline estuarine waters where there is
strong tidal movement.
``(3) Deadline.--On or before the 90th day after the date of
submittal of an application for a modification under paragraph
(1), the Administrator shall issue to the applicant a modified
permit under section 402 or a written determination that the
application does not meet the terms and conditions of this
subsection.
``(4) Effect of failure to respond.--If the Administrator
does not respond to an application for a modification under
paragraph (1) on or before the 90th day referred to in
paragraph (3), the application shall be deemed approved and the
modification sought by the applicant shall be in effect for the
succeeding 10-year period.''.
(2) Extension of application deadline.--Section 301(j) (33
U.S.C. 1311(j)) is amended by adding at the end the following:
``(6) Extension of application deadline.--In the 365-day
period beginning on the date of the enactment of this
paragraph, municipalities may apply for a modification pursuant
to subsection (s) of the requirements of subsection (b)(1)(B)
of this section.''.
(c) Modifications for Small System Treatment Technologies.--Section
301 (33 U.S.C. 1311) is amended by adding at the end the following:
``(t) Modifications for Small System Treatment Technologies.--The
Administrator, with the concurrence of the State, or a State with an
approved program under section 402 may issue a permit under section 402
which modifies the requirements of subsection (b)(1)(B) of this section
with respect to the discharge of any pollutant from a publicly owned
treatment works serving a community of 20,000 people or fewer if the
applicant demonstrates to the satisfaction of the Administrator that--
``(1) the effluent from such facility originates primarily
from domestic users; and
``(2) such facility utilizes a properly constructed and
operated alternative treatment system (including recirculating
sand filter systems, constructed wetlands, and oxidation
lagoons) which is equivalent to secondary treatment or will
provide in the receiving waters and watershed an adequate level
of protection to human health and the environment and
contribute to the attainment of water quality standards.''.
(d) Puerto Rico.--Section 301 (33 U.S.C 1311) is further amended by
adding at the end the following:
``(u) Puerto Rico.--
``(1) Study by government of puerto rico.--Not later than 3
months after the date of the enactment of this section, the
Government of Puerto Rico may, after consultation with the
Administrator, initiate a study of the marine environment of
Anasco Bay off the coast of the Mayaguez region of Puerto Rico
to determine the feasibility of constructing a deepwater
outfall for the publicly owned treatment works located at
Mayaguez, Puerto Rico. Such study shall recommend one or more
technically feasible locations for the deepwater outfall based
on the effects of such outfall on the marine environment.
``(2) Application for modification.--Notwithstanding
subsection (j)(1)(A), not later than 18 months after the date
of the enactment of this section, an application may be
submitted for a modification pursuant to subsection (h) of the
requirements of subsection (b)(1)(B) of this section by the
owner of the publicly owned treatment works at Mayaguez, Puerto
Rico, for a deepwater outfall at a location recommended in the
study conducted pursuant to paragraph (1).
``(3) Initial determination.--On or before the 90th day after
the date of submittal of an application for modification under
paragraph (2), the Administrator shall issue to the applicant a
draft initial determination regarding the modification of the
existing permit.
``(4) Final determination.--On or before the 270th day after
the date of submittal of an application for modification under
paragraph (2), the Administrator shall issue a final
determination regarding such modification.
``(5) Effectiveness.--If a modification is granted pursuant
to an application submitted under this subsection, such
modification shall be effective only if the new deepwater
outfall is operational within 5 years after the date of the
enactment of this subsection. In all other aspects, such
modification shall be effective for the period applicable to
all modifications granted under subsection (h).''.
SEC. 310. TOXIC POLLUTANTS.
(a) Toxic Effluent Limitations and Standards.--Section 307(a)(2) (33
U.S.C. 1317(a)(2)) is amended--
(1) by striking ``(2) Each'' and inserting the following:
``(2) Toxic effluent limitations and standards.--
``(A) In general.--Each'';
(2) by moving paragraph (2) 2 ems to the right;
(3) by indenting subparagraph (A), as so designated, and
moving the remaining text of such subparagraph 2 ems further to
the right; and
(4) in subparagraph (A), as so designated, by striking the
third sentence; and
(5) by adding at the end the following:
``(B) Factors.--The published effluent standard (or
prohibition) shall take into account--
``(i) the pollutant's persistence, toxicity,
degradability, and bioaccumulation potential;
``(ii) the magnitude and risk of exposure to
the pollutant, including risks to affected
organisms and the importance of such organisms;
``(iii) the relative contribution of point
source discharges of the pollutant to the
overall risk from the pollutant;
``(iv) the availability of, costs associated
with, and risk posed by substitute chemicals or
processes or the availability of treatment
processes or control technology;
``(v) the beneficial and adverse social and
economic effects of the effluent standard,
including the impact on energy resources;
``(vi) the extent to which effective control
is being or may be achieved in an expeditious
manner under other regulatory authorities;
``(vii) the impact on national security
interests; and
``(viii) such other factors as the
Administrator considers appropriate.''.
(b) Beach Water Quality Monitoring.--
(1) In general.--Section 304 is further amended by adding at
the end the following:
``(o) Beach Water Quality Monitoring.--After consultation with
appropriate Federal, State, and local agencies and after providing
notice and opportunity for public comment, the Administrator shall
develop and issue, not later than 18 months after the date of the
enactment of this Act, guidance that States may use in monitoring water
quality at beaches and issuing health advisories with respect to
beaches, including testing protocols, recommendations on frequency of
testing and monitoring, recommendations on pollutants for which
monitoring and testing should be conducted, and recommendations on when
health advisories should be issued. Such guidance shall be based on the
best available scientific information and be sufficient to protect
public health and safety in the case of any reasonably expected
exposure to pollutants as a result of swimming or bathing.''.
(2) Reports.--Section 516(a) (33 U.S.C. 1375(a)) is amended
by striking ``and (9)'' and inserting ``(9) the monitoring
conducted by States on the water quality of beaches and the
issuance of health advisories with respect to beaches, and
(10)''.
(c) Fish Consumption Advisories.--Any fish consumption advisories
issued by the Administrator shall be based upon the protocols,
methodology, and findings of the Food and Drug Administration.
SEC. 311. LOCAL PRETREATMENT AUTHORITY.
Section 307 (33 U.S.C. 1317) is amended by adding at the end the
following new subsection:
``(f) Local Pretreatment Authority.--
``(1) Demonstration.--If, to carry out the purposes
identified in paragraph (2), a publicly owned treatment works
with an approved pretreatment program demonstrates to the
satisfaction of the Administrator, or a State with an approved
program under section 402, that--
``(A) such publicly owned treatment works is in
compliance, and is likely to remain in compliance, with
its permit under section 402, including applicable
effluent limitations and narrative standards;
``(B) such publicly owned treatment works is in
compliance, and is likely to remain in compliance, with
applicable air emission limitations;
``(C) biosolids produced by such publicly owned
treatment works meet beneficial use requirements under
section 405; and
``(D) such publicly owned treatment works is likely
to continue to meet all applicable State requirements;
the approved pretreatment program shall be modified to allow
the publicly owned treatment works to apply local limits in
lieu of categorical pretreatment standards promulgated under
this section.
``(2) Purposes.--The publicly owned treatment works may make
the demonstration to the Administrator or the State, as the
case may be, to apply local limits in lieu of categorical
pretreatment standards, as the treatment works deems necessary,
for the purposes of--
``(A) reducing the administrative burden associated
with the designation of an `industrial user' as a
`categorical industrial user'; or
``(B) eliminating additional redundant or unnecessary
treatment by industrial users which has little or no
environmental benefit.
``(3) Limitations.--
``(A) Significant noncompliance.--The publicly owned
treatment works may not apply local limits in lieu of
categorical pretreatment standards to any industrial
user which is in significant noncompliance (as defined
by the Administrator) with its approved pretreatment
program.
``(B) Procedures.--A demonstration to the
Administrator or the State under paragraph (1) must be
made under the procedures for pretreatment program
modification provided under this section and section
402.
``(4) Annual review.--
``(A) Demonstration relating to ability to meet
criteria.--As part of the annual pretreatment report of
the publicly owned treatment works to the Administrator
or State, the treatment works shall demonstrate that
application of local limits in lieu of categorical
pretreatment standards has not resulted in the
inability of the treatment works to meet the criteria
of paragraph (1).
``(B) Termination of authority.--If the Administrator
or State determines that application of local limits in
lieu of categorical pretreatment standards has resulted
in the inability of the treatment works to meet the
criteria of paragraph (1), the authority of a publicly
owned treatment works under this section shall be
terminated and any affected industrial user shall have
a reasonable period of time to be determined by the
Administrator or State, but not to exceed 2 years, to
come into compliance with any otherwise applicable
requirements of this Act.''.
SEC. 312. COMPLIANCE WITH MANAGEMENT PRACTICES.
Section 307 (33 U.S.C. 1317) is amended by adding at the end the
following:
``(g) Compliance With Management Practices.--
``(1) Special rule.--The Administrator or a State with a
permit program approved under section 402 may allow any person
that introduces silver into a publicly owned treatment works to
comply with a code of management practices with respect to the
introduction of silver into the treatment works for a period
not to exceed 5 years beginning on the date of the enactment of
this subsection in lieu of complying with any pretreatment
requirement (including any local limit) based on an effluent
limitation for the treatment works derived from a water quality
standard for silver--
``(A) if the treatment works has accepted the code of
management practices;
``(B) if the code of management practices meets the
requirements of paragraph (2); and
``(C) if the facility is--
``(i) part of a class of facilities for which
the code of management practices has been
approved by the Administrator or the State;
``(ii) in compliance with a mass limitation
or concentration level for silver attainable
with the application of the best available
technology economically achievable for such
facilities, as established by the Administrator
after a review of the treatment and management
practices of such class of facilities; and
``(iii) implementing the code of management
practices.
``(2) Code of management practices.--A code of management
practices meets the requirements of this paragraph if the code
of management practices--
``(A) is developed and adopted by representatives of
industry and publicly owned treatment works of major
urban areas;
``(B) is approved by the Administrator or the State,
as the case may be;
``(C) reflects acceptable industry practices to
minimize the amount of silver introduced into publicly
owned treatment works or otherwise entering the
environment from the class of facilities for which the
code of management practices is approved; and
``(D) addresses, at a minimum--
``(i) the use of the best available
technology economically achievable, based on a
review of the current state of such technology
for such class of facilities and of the
effluent guidelines for such facilities;
``(ii) water conservation measures available
to reduce the total quantity of discharge from
such facilities to publicly owned treatment
works;
``(iii) opportunities to recover silver (and
other pollutants) from the waste stream prior
to introduction into a publicly owned treatment
works; and
``(iv) operating and maintenance practices to
minimize the amount of silver introduced into
publicly owned treatment works and to assure
consistent performance of the management
practices and treatment technology specified
under this paragraph.
``(3) Interim extension for potws receiving silver.--In any
case in which the Administrator or a State with a permit
program approved under section 402 allows under paragraph (1) a
person to comply with a code of management practices for a
period of not to exceed 5 years in lieu of complying with a
pretreatment requirement (including a local limit) for silver,
the Administrator or State, as applicable, shall modify the
permit conditions and effluent limitations for any affected
publicly owned treatment works to defer for such period
compliance with any effluent limitation derived from a water
quality standard for silver beyond that required by section
301(b)(2), notwithstanding the provisions of section 303(d)(4)
and 402(o), if the Administrator or the State, as applicable,
finds that--
``(A) the quality of any affected waters and the
operation of the treatment works will be adequately
protected during such period by implementation of the
code of management practices and the use of best
technology economically achievable by persons
introducing silver into the treatment works;
``(B) the introduction of pollutants into such
treatment works is in compliance with paragraphs (1)
and (2); and
``(C) a program of enforcement by such treatment
works and the State ensures such compliance.''.
SEC. 313. FEDERAL ENFORCEMENT.
(a) Adjustment of Penalties.--Section 309 (33 U.S.C. 1319) is amended
by adding at the end the following:
``(h) Adjustment of Monetary Penalties for Inflation.--
``(1) In general.--Not later than 4 years after the date of
the enactment of this subsection, and at least once every 4
years thereafter, the Administrator shall adjust each monetary
penalty provided by this section in accordance with paragraph
(2) and publish such adjustment in the Federal Register.
``(2) Method.--An adjustment to be made pursuant to paragraph
(1) shall be determined by increasing or decreasing the maximum
monetary penalty or the range of maximum monetary penalties, as
appropriate, by multiplying the cost-of-living adjustment and
the amount of such penalty.
``(3) Cost-of-living adjustment defined.--In this subsection,
the term `cost-of-living' adjustment means the percentage (if
any) for each monetary penalty by which--
``(A) the Consumer Price Index for the month of June
of the calendar year preceding the adjustment; is
greater or less than
``(B) the Consumer Price Index for--
``(i) with respect to the first adjustment
under this subsection, the month of June of the
calendar year preceding the date of the
enactment of this subsection; and
``(ii) with respect to each subsequent
adjustment under this subsection, the month of
June of the calendar year in which the amount
of such monetary penalty was last adjusted
under this subsection.
``(4) Rounding.--In making adjustments under this subsection,
the Administrator may round the dollar amount of a penalty, as
appropriate.
``(5) Applicability.--Any increase or decrease to a monetary
penalty resulting from this subsection shall apply only to
violations which occur after the date any such increase takes
effect.''.
(b) Joining States as Parties in Actions Involving Municipalities.--
Section 309(e) (33 U.S.C. 1319(e)) is amended by striking ``shall be
joined as a party. Such State'' and inserting ``may be joined as a
party. Any State so joined as a party''.
SEC. 314. RESPONSE PLANS FOR DISCHARGES OF OIL OR HAZARDOUS SUBSTANCES.
(a) In General.--The requirements of section 311(j)(5) of the Federal
Water Pollution Control Act (33 U.S.C. 1321(j)(5)) shall not apply with
respect to--
(1) a municipal or industrial treatment works at which no
greater than a de minimis quantity of oil or hazardous
substances is stored; or
(2) a facility that stores process water mixed with a de
minimis quantity of oil.
(b) Regulations.--The President shall issue regulations clarifying
the meaning of the term ``de minimis quantity of oil or hazardous
substances'' as used in this section.
SEC. 315. MARINE SANITATION DEVICES.
Section 312(c)(1)(A) (33 U.S.C. 1322(c)(1)(A)) is amended by adding
at the end the following: ``Not later than 2 years after the date of
the enactment of this sentence, and at least once every 5 years
thereafter, the Administrator, in consultation with the Secretary of
the Department in which the Coast Guard is operating and after
providing notice and opportunity for public comment, shall review such
standards and regulations to take into account improvements in
technology relating to marine sanitation devices and based on such
review shall make such revisions to such standards and regulations as
may be necessary.''.
SEC. 316. FEDERAL FACILITIES.
(a) Application of Certain Provisions.--Section 313(a) (33 U.S.C.
1323(a)) is amended by striking all preceding subsection (b) and
inserting the following:
``SEC. 313. FEDERAL FACILITIES POLLUTION CONTROL.
``(a) Applicability of Federal, State, Interstate, and Local Laws.--
``(1) In general.--Each department, agency, or
instrumentality of the executive, legislative, and judicial
branches of the Federal Government--
``(A) having jurisdiction over any property or
facility, or
``(B) engaged in any activity resulting, or which may
result, in the discharge or runoff of pollutants,
and each officer, agent, or employee thereof in the performance
of his official duties, shall be subject to, and comply with,
all Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting
the control and abatement of water pollution in the same manner
and to the same extent as any nongovernmental entity, including
the payment of reasonable service charges.
``(2) Types of actions covered.--Paragraph (1) shall apply--
``(A) to any requirement whether substantive or
procedural (including any recordkeeping or reporting
requirement, any requirement respecting permits, and
any other requirement),
``(B) to the exercise of any Federal, State, or local
administrative authority, and
``(C) to any process and sanction, whether enforced
in Federal, State, or local courts or in any other
manner.
``(3) Penalties and fines.--The Federal, State, interstate,
and local substantive and procedural requirements,
administrative authority, and process and sanctions referred to
in paragraph (1) include all administrative orders and all
civil and administrative penalties and fines, regardless of
whether such penalties or fines are punitive or coercive in
nature or are imposed for isolated, intermittent, or continuing
violations.
``(4) Sovereign immunity.--
``(A) Waiver.--The United States hereby expressly
waives any immunity otherwise applicable to the United
States with respect to any requirement, administrative
authority, and process and sanctions referred to in
paragraph (1) (including any injunctive relief, any
administrative order, any civil or administrative
penalty or fine referred to in paragraph (3), or any
reasonable service charge).
``(B) Processing fees.--The reasonable service
charges referred to in this paragraph include fees or
charges assessed in connection with the processing and
issuance of permits, renewal of permits, amendments to
permits, review of plans, studies, and other documents,
and inspection and monitoring of facilities, as well as
any other nondiscriminatory charges that are assessed
in connection with a Federal, State, interstate, or
local water pollution regulatory program.
``(5) Exemptions.--
``(A) General authority of president.--The President
may exempt any effluent source of any department,
agency, or instrumentality in the executive branch from
compliance with any requirement to which paragraph (1)
applies if the President determines it to be in the
paramount interest of the United States to do so;
except that no exemption may be granted from the
requirements of section 306 or 307 of this Act.
``(B) Limitation.--No exemptions shall be granted
under subparagraph (A) due to lack of appropriation
unless the President shall have specifically requested
such appropriation as a part of the budgetary process
and the Congress shall have failed to make available
such requested appropriation.
``(C) Time period.--Any exemption under subparagraph
(A) shall be for a period not in excess of 1 year, but
additional exemptions may be granted for periods of not
to exceed 1 year upon the President's making a new
determination.
``(D) Military property.--In addition to any
exemption of a particular effluent source, the
President may, if the President determines it to be in
the paramount interest of the United States to do so,
issue regulations exempting from compliance with the
requirements of this section any weaponry, equipment,
aircraft, vessels, vehicles, or other classes or
categories of property, and access to such property,
which are owned or operated by the Armed Forces of the
United States (including the Coast Guard) or by the
National Guard of any State and which are uniquely
military in nature. The President shall reconsider the
need for such regulations at 3-year intervals.
``(E) Reports.--The President shall report each
January to the Congress all exemptions from the
requirements of this section granted during the
preceding calendar year, together with the President's
reason for granting such exemption.
``(6) Venue.--Nothing in this section shall be construed to
prevent any department, agency, or instrumentality of the
Federal Government, or any officer, agent, or employee thereof
in the performance of official duties, from removing to the
appropriate Federal district court any proceeding to which the
department, agency, or instrumentality or officer, agent, or
employee thereof is subject pursuant to this section, and any
such proceeding may be removed in accordance with chapter 89 of
title 28, United States Code.
``(7) Personal liability of federal employees.--No agent,
employee, or officer of the United States shall be personally
liable for any civil penalty under any Federal, State,
interstate, or local water pollution law with respect to any
act or omission within the scope of the official duties of the
agent, employee, or officer.
``(8) Criminal sanctions.--An agent, employee, or officer of
the United States shall be subject to any criminal sanction
(including any fine or imprisonment) under any Federal or State
water pollution law, but no department, agency, or
instrumentality of the executive, legislative, or judicial
branch of the Federal Government shall be subject to any such
sanction.''.
(b) Funds Collected by a State.--Section 313 (33 U.S.C. 1323) is
further amended by adding at the end the following:
``(c) Limitation on State Use of Funds.--Unless a State law in effect
on the date of the enactment of this subsection or a State constitution
requires the funds to be used in a different manner, all funds
collected by a State from the Federal Government in penalties and fines
imposed for the violation of a substantive or procedural requirement
referred to in subsection (a) shall be used by a State only for
projects designed to improve or protect the environment or to defray
the costs of environmental protection or enforcement.''.
(c) Enforcement.--Section 313 is further amended by adding at the end
the following:
``(d) Federal Facility Enforcement.--
``(1) Administrative enforcement by epa.--The Administrator
may commence an administrative enforcement action against any
department, agency, or instrumentality of the executive,
legislative, or judicial branch of the Federal Government
pursuant to the enforcement authorities contained in this Act.
``(2) Procedure.--The Administrator shall initiate an
administrative enforcement action against a department, agency,
or instrumentality under this subsection in the same manner and
under the same circumstances as an action would be initiated
against any other person under this Act. The amount of any
administrative penalty imposed under this subsection shall be
determined in accordance with section 309(d) of this Act.
``(3) Voluntary settlement.--Any voluntary resolution or
settlement of an action under this subsection shall be set
forth in an administrative consent order.
``(4) Conferral with epa.--No administrative order issued to
a department, agency, or instrumentality under this section
shall become final until such department, agency, or
instrumentality has had the opportunity to confer with the
Administrator.''.
(d) Limitation on Actions and Right of Intervention.--Section 313 is
further amended by adding at the end the following:
``(e) Limitation on Actions and Right of Intervention.--Any violation
with respect to which the Administrator has commenced and is diligently
prosecuting an action under this subsection, or for which the
Administrator has issued a final order and the violator has either paid
a penalty or fine assessed under this subsection or is subject to an
enforceable schedule of corrective actions, shall not be the subject of
an action under section 505 of this Act. In any action under this
subsection, any citizen may intervene as a matter of right.''.
(e) Definition of Person.--Section 502(5) (33 U.S.C. 1362(5)) is
amended by inserting before the period at the end the following: ``and
includes any department, agency, or instrumentality of the United
States''.
(f) Definition of Radioactive Materials.--Section 502 (33 U.S.C.
1362) is amended by adding at the end the following:
``(24) The term `radioactive materials' includes source materials,
special nuclear materials, and byproduct materials (as such terms are
defined under the Atomic Energy Act of 1954) which are used, produced,
or managed at facilities not licensed by the Nuclear Regulatory
Commission; except that such term does not include any material which
is discharged from a vessel covered by Executive Order 12344 (42 U.S.C.
7158 note; relating to the Naval Nuclear Propulsion Program).''.
(g) Conforming Amendments.--Section 313(b) (33 U.S.C. 1323(b)) is
amended--
(1) by striking ``(b)(1)'' and inserting the following:
``(b) Wastewater Facilities.--
``(1) Cooperation for use of wastewater control systems.--'';
(2) in paragraph (2) by inserting ``Limitation on
construction.--'' before ``Construction''; and
(3) by moving paragraphs (1) and (2) 2 ems to the right.
(h) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall only apply to
violations occurring after such date of enactment.
SEC. 317. CLEAN LAKES.
(a) Priority Lakes.--Section 314(d)(2) (33 U.S.C. 1324(d)(2)) is
amended by inserting ``Paris Twin Lakes, Illinois; Otsego Lake, New
York; Raystown Lake, Pennsylvania;'' after ``Minnesota;''.
(b) Funding.--Section 314 (33 U.S.C. 1324) is amended by adding at
the end the following:
``(e) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $10,000,000 per fiscal year for
each of fiscal years 1996 through 2000.''.
SEC. 318. COOLING WATER INTAKE STRUCTURES.
Section 316(b) (33 U.S.C. 1326(b)) is amended--
(1) by inserting after ``(b)'' the following: ``Standard for
Cooling Water Intake Structures.--'';
(2) by inserting before ``Any'' the following: ``(1) In
general.--'';
(3) by indenting paragraph (1), as designated by paragraph
(2) of this section, and moving such paragraph 2 ems to the
right; and
(4) by adding at the end the following:
``(2) New point source considerations.--In establishing a
standard referred to in paragraph (1) for cooling water intake
structures located at new point sources, the Administrator
shall consider, at a minimum, the following:
``(A) The relative technological, engineering, and
economic feasibility of possible technologies or
techniques for minimizing any such adverse
environmental impacts.
``(B) The relative technological, engineering, and
economic feasibility of possible site locations, intake
structure designs, and cooling water flow techniques.
``(C) The relative environmental, social, and
economic costs and benefits of possible technologies,
techniques, site locations, intake structure designs,
and cooling water flow techniques.
``(D) The projected useful life of the new point
source.
``(3) Existing point sources.--For existing point sources,
the Administrator may require the use of best technology
available in the case of existing cooling water intake
structures if the Administrator determines such structures are
having or could have a significant adverse impact on the
aquatic environment. In establishing a standard referred to in
paragraph (1) for such existing point sources, the
Administrator shall consider, at a minimum, the following:
``(A) The relative technological, engineering, and
economic feasibility of reasonably available retrofit
technologies or techniques for minimizing any such
adverse environmental impacts.
``(B) Other mitigation measures for offsetting the
anticipated adverse environmental impacts resulting
from the withdrawal of cooling water.
``(C) Relative environmental, social, and economic
costs and benefits of possible retrofit technologies,
techniques, and mitigation measures.
``(D) The projected remaining useful life of the
existing point source.
``(4) Definitions.--In this subsection, the following
definitions apply:
``(A) New point source.--The term `new point source'
means any point source the construction of which will
commence after the publication of proposed regulations
prescribing a standard for intake structures that will
be applicable to such source if such standard is
promulgated in accordance with paragraph (2).
``(B) Existing point source.--The term `existing
point source' means any point source that is not a new
point source.''.
SEC. 319. NONPOINT SOURCE MANAGEMENT PROGRAMS.
(a) State Assessment Report.--
(1) Contents.--Section 319(a)(1)(C) (33 U.S.C. 1329(a)(1)(C))
is amended by striking ``best management practices and''.
(2) Information used in preparation.--Section 319(a)(2) is
amended--
(A) by inserting ``, reviewing, and revising'' after
``developing''; and
(B) by striking ``section'' the first place it
appears and inserting ``subsection''.
(3) Review and revision.--Section 319(a) is amended by adding
at the end the following:
``(3) Review and revision.--Not later than 18 months after
the date of the enactment of the Clean Water Amendments of
1995, and every 5 years thereafter, the State shall review,
revise, and submit to the Administrator the report required by
this subsection.''.
(b) State Management Program.--
(1) Term of program.--Section 319(b)(1) is amended by
striking ``four'' and inserting ``5''.
(2) Contents.--Section 319(b)(2) is amended--
(A) in subparagraph (A)--
(i) by striking ``best'';
(ii) by striking ``paragraph (1)(B)'' and
inserting ``subsection (a)(1)(B)''; and
(iii) by inserting ``and measure'' after
``practice'';
(B) in subparagraph (B)--
(i) by striking ``nonregulatory or regulatory
programs for enforcement,'' and inserting ``one
or more of the following: voluntary programs,
incentive-based programs, regulatory programs,
enforceable policies and mechanisms, State
management programs approved under section 306
of the Coastal Zone Management Act of 1972,'';
and
(ii) by striking ``achieve implementation''
and all that follows before the period and
inserting ``manage categories, subcategories,
or particular nonpoint sources to the degree
necessary to provide for reasonable further
progress toward the goal of attaining water
quality standards within 15 years of approval
of the State program for those waters
identified under subsection (a)(1)(A)'';
(C) by striking subparagraph (C) and inserting the
following:
``(C) A schedule containing interim goals and
milestones for making reasonable progress toward the
attainment of standards, which may be demonstrated by
one or any combination of the following: improvements
in water quality (including biological indicators),
documented implementation of voluntary nonpoint source
control practices and measures, and adoption of
enforceable policies and mechanisms.'';
(D) in subparagraph (D) by striking ``A certification
of'' and inserting ``After the date of the enactment of
the Clean Water Amendments of 1995, a certification
by''; and
(E) by adding at the end the following:
``(G) A description of the monitoring or other
assessment which will be carried out under the program
for the purposes of monitoring and assessing the
effectiveness of the program, including the attainment
of interim goals and milestones.
``(H) An identification of activities on Federal
lands in the State that are inconsistent with the State
management program.
``(I) An identification of goals and milestones for
progress in attaining water quality standards,
including a projected date for attaining such standards
as expeditiously as practicable but not later than 15
years after the date of approval of the State program
for each of the waters listed pursuant to subsection
(a).''.
(3) Utilization of local and private experts.--Section
319(b)(3) is amended by inserting before the period at the end
the following: ``, including academic institutions, private
industry experts, and other individual experts in water
resource conservation and planning''.
(4) New technologies; use of resources; agricultural
programs.--Section 319(b) is amended by adding at the end the
following:
``(5) Recognition of new technologies.--In developing and
implementing a management program under this subsection, a
State may recognize and utilize new practices, technologies,
processes, products, and other alternatives.
``(6) Efficient and effective use of resources.--In
developing and implementing a management program under this
subsection, a State may recognize and provide for a methodology
which takes into account situations in which management
measures used to control one pollutant have an adverse impact
with respect to another pollutant. The methodology should
encourage the balanced combination of measures which best
address the various impairments on the watershed or site.
``(7) Recognition of agricultural programs.--Any agricultural
producer who has voluntarily developed and is implementing an
approved whole farm or ranch natural resources management plan
shall be considered to be in compliance with the requirements
of a State program developed under this section--
``(A) if such plan has been developed under a program
subject to a memorandum of agreement between the Chief
of the Natural Resources Conservation Service and the
Governor, or their respective designees; and
``(B) if such memorandum of agreement specifies--
``(i) the scope and content of the Natural
Resources Conservation Service program (not an
individual farm or ranch plan) in the State or
regions of the State;
``(ii) the terms of approval, implementation,
and duration of a voluntary farm or ranch plan
for agricultural producers;
``(iii) the responsibilities for assessing
implementation of voluntary whole farm and
ranch natural resource management plans; and
``(iv) the duration of such memorandum of
agreement.
At a minimum, such memorandum of agreement shall be reviewed
and may be revised every 5 years, as part of the State review
of its management program under this section.''.
(c) Submission of Management Programs.--Paragraph (2) of section
319(c) is amended to read as follows:
``(2) Time period for submission of management programs.--
Each management program shall be submitted to the Administrator
within 30 months of the issuance by the Administrator of the
final guidance under subsection (o) and every 5 years
thereafter. Each program submission after the initial
submission following the date of the enactment of the Clean
Water Amendments of 1995 shall include a demonstration of
reasonable further progress toward the goal of attaining water
quality standards within 15 years of approval of the State
program, including documentation of the degree to which the
State has achieved the interim goals and milestones contained
in the previous program submission. Such demonstration shall
take into account the adequacy of Federal funding under this
section.''.
(d) Approval and Disapproval of Reports and Management Programs.--
(1) Deadline.--Section 319(d)(1) is amended by inserting ``or
revised report'' after ``any report''.
(2) Disapproval.--Section 319(d)(2) is amended--
(A) in subparagraph (B) by inserting before the
semicolon the following: ``; except that such program
or portion shall not be disapproved solely because the
program or portion does not include enforceable
policies or mechanisms'';
(B) in subparagraph (D) by striking ``are not
adequate'' and all that follows before the semicolon
and inserting the following: ``will not result in
reasonable further progress toward the attainment of
applicable water quality standards under section 303 as
expeditiously as possible but not later than 15 years
after approval of the State program''; and
(C) in the text following subparagraph (D)--
(i) by striking ``3 months'' and inserting
``6 months''; and
(ii) by inserting ``or portion thereof''
before ``within three months of receipt''.
(3) Failure to submit report.--Section 319(d)(3) is amended--
(A) by striking ``the report'' and inserting ``a
report or revised report'';
(B) by striking ``30 months'' and inserting ``18
months''; and
(C) by striking ``of the enactment of this section''
and inserting ``on which such report is required to be
submitted under subsection (a)''.
(4) Program management by the administrator.--Section 319(d)
is amended by adding at the end the following:
``(4) Failure of state to submit program.--
``(A) Program management by the administrator.--If a
State fails to submit a management program or revised
management program under subsection (b) or the
Administrator disapproves such management program, the
Administrator shall prepare and implement a management
program for controlling pollution added from nonpoint
sources to the navigable waters within the State and
improving the quality of such waters in accordance with
subsection (b).
``(B) Notice and hearing.--If the Administrator
intends to disapprove a program submitted by a State,
the Administrator shall first notify the Governor of
the State in writing of the modifications necessary to
meet the requirements of this section. The
Administrator shall provide adequate public notice and
an opportunity for a public hearing for all interested
parties.
``(C) State revision of its program.--If, after
taking into account the level of funding actually
provided as compared with the level authorized under
subsection (j), the Administrator determines that a
State has failed to demonstrate reasonable further
progress toward the attainment of water quality
standards as required, the State shall revise its
program within 12 months of that determination in a
manner sufficient to achieve attainment of applicable
water quality standards by the deadline established by
this Act. If a State fails to make such a program
revision or the Administrator disapproves such a
revision, the Administrator shall prepare and implement
a nonpoint source management program for the State.''.
(e) Technical Assistance.--Section 319(f) is amended by inserting
``and implementing'' after ``developing''.
(f) Grant Program.--
(1) In general.--Section 319(h)(1) is amended--
(A) by amending the paragraph heading to read as
follows: ``Grants for preparation and implementation of
reports and management programs.--'';
(B) by striking ``for which a report submitted under
subsection (a) and a management program submitted under
subsection (b) is approved under this section'';
(C) by striking ``the Administrator shall make
grants'' and inserting ``the Administrator may make
grants under this subsection'';
(D) by striking ``under this subsection to such
State'' and inserting ``to such State'';
(E) by striking ``implementing such management
program'' and inserting ``preparing a report under
subsection (a) and in preparing and implementing a
management program under subsection (b)'';
(F) by inserting after the first sentence the
following: ``Grants for implementation of such
management program may be made only after such report
and management program are approved under this
section.''; and
(G) by adding at the end the following: ``The
Administrator is authorized to provide funds to a State
if necessary to implement an approved portion of a
State program or, with the approval of the Governor of
the State, to implement a component of a federally
established program. The Administrator may continue to
make grants to any State with a program approved on the
day before the date of the enactment of the Clean Water
Amendments of 1995 until the Administrator withdraws
the approval of such program or the State fails to
submit a revision of such program in accordance with
subsection (c)(2).''.
(2) Federal share.--Section 319(h)(3) is amended--
(A) by striking ``management program implemented''
and inserting ``report prepared and management program
prepared and implemented'';
(B) by striking ``60 percent'' and inserting ``75
percent'';
(C) by striking ``implementing such management
program'' and inserting ``preparing such report and
preparing and implementing such management program'';
and
(D) by inserting ``of program implementation'' after
``non-Federal share''.
(3) Limitation on grant amounts.--Section 319(h)(4) is
amended--
(A) by inserting before the first sentence the
following: ``The Administrator shall establish, after
consulting with the States, maximum and minimum grants
for any fiscal year to promote equity between States
and effective nonpoint source management.''; and
(B) by adding at the end the following: ``The minimum
percentage of funds allocated to each State shall be
0.5 percent of the amount appropriated.''.
(4) Allocation of grant funds.--Paragraph (5) of section
319(h) is amended to read as follows:
``(5) Allocation of grant funds.--Grants under this section
shall be allocated to States with approved programs in a fair
and equitable manner and be based upon rules and regulations
promulgated by the Administrator which shall take into account
the extent and nature of the nonpoint sources of pollution in
each State and other relevant factors.''.
(5) Use of funds.--Paragraph (7) of section 319(h) is amended
to read as follows:
``(7) Use of funds.--A State may use grants made available to
the State pursuant to this section for activities relating to
nonpoint source water pollution control, including--
``(A) providing financial assistance with respect to
those activities whose principal purpose is protecting
and improving water quality;
``(B) assistance related to the cost of preparing or
implementing the State management program;
``(C) providing incentive grants to individuals to
implement a site-specific water quality plan in amounts
not to exceed 75 percent of the cost of the project
from all Federal sources;
``(D) land acquisition or conservation easements
consistent with a site-specific water quality plan; and
``(E) restoring and maintaining the chemical,
physical, and biological integrity of urban and rural
waters and watersheds (including restoration and
maintenance of water quality, a balanced indigenous
population of shellfish, fish, and wildlife, aquatic
and riparian vegetation, and recreational activities in
and on the water) and protecting designated uses,
including fishing, swimming, and drinking water
supply.''.
(6) Compliance with state management program.--Paragraph (8)
of section 319(h) is amended to read as follows:
``(8) Compliance with state management program.--In any
fiscal year for which the Administrator determines that a State
has not made satisfactory progress in the preceding fiscal year
in meeting the schedule specified for such State under
subsection (b)(2)(C), the Administrator is authorized to
withhold grants pursuant to this section in whole or in part to
the State after adequate written notice is provided to the
Governor of the State.''.
(7) Allotment study.--Section 319(h) is amended by adding at
the end the following:
``(13) Allotment study.--
``(A) Study.--The Administrator, in consultation with
the States, shall conduct a study of whether the
allocation of funds under paragraph (5) appropriately
reflects the needs and costs of nonpoint source control
measures for different nonpoint source categories and
subcategories and of options for better reflecting such
needs and costs in the allotment of funds.
``(B) Report.--Not later than 5 years after the date
of the enactment of the Clean Water Amendments of 1995,
the Administrator shall transmit to Congress a report
on the results of the study conducted under this
subsection, together with recommendations.''.
(g) Grants for Protecting Ground Water Quality.--Section 319(i)(3) is
amended by striking ``$150,000'' and inserting ``$500,000''.
(h) Authorization of Appropriations.--Section 319(j) is amended--
(1) by striking ``and'' before ``$130,000,000'';
(2) by inserting after ``1991'' the following: ``, such sums
as may be necessary for fiscal years 1992 through 1995,
$100,000,000 for fiscal year 1996, $150,000,000 for fiscal year
1997, $200,000,000 for fiscal year 1998, $250,000,000 for
fiscal year 1999, and $300,000,000 for fiscal year 2000''; and
(3) by striking ``$7,500,000'' and inserting ``$25,000,000''.
(i) Consistency of Other Programs and Projects With Management
Programs.--Section 319(k) (33 U.S.C. 1329(k)) is amended--
(1) by striking ``allow States to review'' and inserting
``require coordination with States in'';
(2) by inserting before the period at the end the following:
``and the State watershed management program''; and
(3) by adding at the end the following: ``Federal agencies
that own or manage land, or issue licenses for activities that
cause nonpoint source pollution from such land, shall
coordinate their nonpoint source control measures with the
State nonpoint source management program and the State
watershed management program. A Federal agency and the Governor
of an affected State shall enter into a memorandum of
understanding to carry out the purposes of this paragraph. Such
a memorandum of understanding shall not relieve the Federal
agency of the agency's obligation to comply with its own
mandates.''.
(j) Reports of the Administrator.--
(1) Biennial reports.--Section 319(m)(1) is amended--
(A) in the paragraph heading by striking ``Annual''
and inserting ``Biennial''; and
(B) by striking ``1988, and each January 1'' and
inserting ``1995, and biennially''.
(2) Contents.--Section 319(m)(2) is amended--
(A) by striking the paragraph heading and all that
follows before ``at a minimum'' and inserting
``Contents.--Each report submitted under paragraph
(1),'';
(B) in subparagraph (A) by striking ``best management
practices'' and inserting ``measures''; and
(C) in subparagraph (B) by striking ``best management
practices'' and inserting ``the measures provided by
States under subsection (b)''.
(k) Set Aside for Administrative Personnel.--Section 319(n) is
amended by striking ``less'' and inserting ``more''.
(l) Guidance on Model Management Practices and Measures.--Section 319
is further amended by adding at the end the following:
``(o) Guidance on Model Management Practices and Measures.--
``(1) In general.--The Administrator shall publish guidance
to identify model management practices and measures which may
be undertaken, at the discretion of the State or appropriate
entity, under a management program established pursuant to this
section.
``(2) Consultation; public notice and comment.--The
Administrator shall develop the model management practices and
measures under paragraph (1) in consultation with the National
Oceanic and Atmospheric Administration, other appropriate
Federal and State departments and agencies, and academic
institutions, private industry experts, and other individual
experts in water conservation and planning, and after providing
notice and opportunity for public comment.
``(3) Publication.--The Administrator shall publish proposed
guidance under this subsection not later than 6 months after
the date of the enactment of this subsection and shall publish
final guidance under this subsection not later than 18 months
after such date of enactment. The Administrator shall
periodically review and revise the final guidance at least once
every 3 years after its publication.
``(4) Model management practices and measures defined.--For
the purposes of this subsection, the term `model management
practices and measures' means economically achievable measures
for the control of the addition of pollutants from nonpoint
sources of pollution which reflect the greatest degree of
pollutant reduction achievable through the application of the
best available nonpoint pollution control practices,
technologies, processes, siting criteria, operating methods, or
other alternatives. The Administrator may distinguish among
classes, types, and sizes within any category of nonpoint
sources.''.
(m) Inadequate Funding.--Section 319 is further amended by adding at
the end the following:
``(p) Inadequate Funding.--For each fiscal year beginning after the
date of the enactment of this subsection for which the total of amounts
appropriated to carry out this section are less than the total of
amounts authorized to be appropriated pursuant to subsection (j), the
deadline for compliance with any requirement of this section, including
any deadline relating to assessment reports or State program
implementation or monitoring efforts, shall be postponed by 1 year,
unless the Administrator and the State jointly certify that the amounts
appropriated are sufficient to meet the requirements of this
section.''.
(n) Coastal Nonpoint Pollution Control Programs.--
(1) Repeal.--Section 6217 of the Omnibus Budget
Reconciliation Act of 1990 (16 U.S.C. 1455b) is repealed.
(2) Inclusion of coastal management provisions in nonpoint
program.--Section 319 is amended--
(A) in subsection (a)(1)--
(i) by striking ``and'' at the end of
subparagraph (C);
(ii) by striking the period at the end of
subparagraph (D) and inserting ``(including
State management programs approved under
section 306 of the Coastal Zone Management Act
of 1972); and''; and
(iii) by adding at the end the following:
``(E) identifies critical areas, giving consideration
to the variety of natural, commercial, recreational,
ecological, industrial, and aesthetic resources of
immediate and potential value to the present and future
of the Nation's waters in the Coastal Zone.'';
(B) in subsection (a)(2) by inserting ``any
management program of the State approved under section
306 of the Coastal Zone Management Act of 1972,'' after
``314,'';
(C) in subsection (b)(2) by adding after subparagraph
(I), as added by subsection (b) of this section, the
following:
``(J) For coastal areas, the identification of, and
continuing process for identifying, land uses which
individually or cumulatively may cause or contribute
significantly to degradation of--
``(i) those coastal waters where there is a
failure to attain or maintain applicable water
quality standards or protected designated uses,
as determined by the State pursuant to the
State's water quality planning processes or
watershed planning efforts; and
``(ii) those coastal waters that are
threatened by reasonably foreseeable increases
in pollution loadings.''; and
(D) in subsection (c)(1) by inserting ``or coastal
zone management agencies'' after ``planning agencies''.
(o) Agricultural Inputs.--Section 319 is further amended by adding at
the end the following:
``(q) Agricultural Inputs.--For the purposes of this Act, any land
application of livestock manure shall not be considered a point source
and shall be subject to enforcement only under this section.''.
(p) Purpose.--Section 319 (33 U.S.C. 1329) is further amended by
adding at the end the following:
``(r) Purpose.--The purpose of this section is to assist States in
addressing nonpoint sources of pollution where necessary to achieve the
goals and requirements of this Act. It is recognized that State
nonpoint source programs need to be built upon a foundation that
voluntary initiatives represent the approach most likely to succeed in
achieving the objectives of this Act.''.
SEC. 320. NATIONAL ESTUARY PROGRAM.
(a) Technical Amendment.--Section 320(a)(2)(B) (33 U.S.C.
1330(a)(2)(B)) is amended to read as follows:
``(B) Priority consideration.--The Administrator
shall give priority consideration under this section to
Long Island Sound, New York and Connecticut;
Narragansett Bay, Rhode Island; Buzzards Bay,
Massachusetts; Massachusetts Bay, Massachusetts
(including Cape Cod Bay and Boston Harbor); Puget
Sound, Washington; New York-New Jersey Harbor, New York
and New Jersey; Delaware Bay, Delaware and New Jersey;
Delaware Inland Bays, Delaware; Albemarle Sound, North
Carolina; Sarasota Bay, Florida; San Francisco Bay,
California; Santa Monica Bay, California; Galveston
Bay, Texas; Barataria-Terrebonne Bay estuary complex,
Louisiana; Indian River Lagoon, Florida; Charlotte
Harbor, Florida; Barnegat Bay, New Jersey; and Peconic
Bay, New York.''.
(b) Grants.--Section 320(g)(2) (33 U.S.C. 1330(g)(2)) is amended by
inserting ``and implementation monitoring'' after ``development''.
(c) Authorization of Appropriations.--Section 320(i) (33 U.S.C.
1330(i)) is amended by striking ``1987'' and all that follows through
``1991'' and inserting the following: ``1987 through 1991, such sums as
may be necessary for fiscal years 1992 through 1995, and $19,000,000
per fiscal year for each of fiscal years 1996 through 2000''.
SEC. 321. STATE WATERSHED MANAGEMENT PROGRAMS.
(a) Establishment.--Title III (33 U.S.C. 1311-1330) is amended by
adding at the end the following:
``SEC. 321. STATE WATERSHED MANAGEMENT PROGRAMS.
``(a) State Watershed Management Program.--
``(1) Submission of program to administrator.--A State, at
any time, may submit a watershed management program to the
Administrator for approval.
``(2) Approval.--If the Administrator does not disapprove a
State watershed management program within 180 days of its
submittal or 240 days of a request for a public hearing
pursuant to paragraph (3) with respect to the program,
whichever is later, such program shall be deemed approved for
the purposes of this section. The Administrator shall approve
the program if the program includes, at a minimum, the
following elements:
``(A) The identification of the State agency with
primary responsibility for overseeing and approving
watershed management plans in general.
``(B) The description of any responsible entities
(including any appropriate State agency or substate
agency) to be utilized in implementing the program and
a description of their responsibilities.
``(C) A description of the scope of the program. In
establishing the scope of the program, the State may
address one or more watersheds, or pollutants,
concurrently or sequentially. The scope of the State
program may expand over time with respect to the
watersheds, pollutants, and factors to be addressed
under the program. In developing the State program, the
State shall take into account all regional and local
government watershed management programs that are
consistent with the proposed State program and shall
consult with the regional and local governments that
developed such programs. The State shall consider
recommendations from units of general purpose
government, special purpose districts, local water
suppliers, and appropriate water management agencies in
the development and scope of the program.
``(D) Provisions for carrying out an analysis,
consistent with the established scope of the program,
of the problems within each watershed covered under the
program.
``(E) An identification of watershed management units
for which management plans will be developed, taking
into consideration those waters where water quality is
threatened or impaired or otherwise in need of special
protection. A watershed management unit identified
under the program may include waters and associated
land areas in more than 1 State if the Governors of the
States affected jointly designate the watershed
management unit and may include waters and associated
lands managed or owned by the Federal Government.
``(F) A description of the activities required of
responsible entities (as specified under subsection
(e)(1)) and a description of the watershed plan
approval process of the State.
``(G) Documentation of the public participation in
development of the program and description of the
procedures that will be used for public participation
in the development and implementation of watershed
plans.
``(H) The identification of goals that will be
pursued in each watershed, including attainment of
State water quality standards (including site-specific
water quality standards) and the goals and objectives
of this Act.
``(I) An exclusion from the program of federally
approved activities with respect to linear utility
facilities, such as natural gas pipelines if such
facilities extend to multiple watersheds and result in
temporary or de minimis impacts.
``(J) A description of the process for consideration
of and achieving consistency with the purposes of
sections 319 and 322.
``(3) Disapproval process.--If the Administrator intends to
disapprove a program of a State submitted under this
subsection, the Administrator shall by a written notification
advise the State of the intent to disapprove and the reasons
for disapproval. If, within 30 days of receipt of such notice,
a State so requests, the Administrator shall conduct a public
hearing in the State on the intent to disapprove and the
reasons for such disapproval. A State may resubmit a revised
program that addresses the reasons contained in the
notification. If a State requests a public hearing, the
Administrator shall conduct the hearing in that State and issue
a final determination within 240 days of receipt of the State
watershed management program submittal.
``(4) Modification of program.--Each State with a watershed
management program that has been approved by the Administrator
under this section may, at any time, modify the watershed
management program. Any such modification shall be submitted to
the Administrator and shall remain in effect unless and until
the Administrator determines that the modified program no
longer meets the requirements of this section. In such event,
the provisions of paragraph (3) shall apply.
``(5) Status reports.--Each State with a watershed management
program that has been approved by the Administrator pursuant to
this subsection shall, not later than 1 year after the date of
approval, and annually thereafter, submit to the Administrator
an annual watershed program summary status report that includes
descriptions of any modifications to the program. The status
report shall include a listing of requests made for watershed
plan development and a listing of plans prepared and submitted
by local or regional entities and the actions taken by the
State on such plans including the reasons for those actions. In
consultation and coordination with the Administrator, a State
may use the report to satisfy, in full or in part, any
reporting requirements under sections 106, 303(d), 305(b), 314,
319, 320, 322, and 604(b).
``(b) Watershed Area in 2 or More States.--If a watershed management
unit is designated to include land areas in more than 1 State, the
Governors of States having jurisdiction over any lands within the
watershed management unit shall jointly determine the responsible
entity or entities.
``(c) Eligible Watershed Management and Planning Activities.--
``(1) In general.--In addition to activities eligible to
receive assistance under other sections of this Act as of the
date of the enactment of this subsection, the following
watershed management activities conducted by or on behalf of
the States pursuant to a watershed management program that is
approved by the Administrator under this section shall be
considered to be eligible to receive assistance under sections
106, 205(j), 319(h), 320, and 604(b):
``(A) Characterizing the waters and land uses.
``(B) Identifying and evaluating problems within the
watershed.
``(C) Selecting short-term and long-term goals for
watershed management.
``(D) Developing and implementing water quality
standards, including site-specific water quality
standards.
``(E) Developing and implementing measures and
practices to meet identified goals.
``(F) Identifying and coordinating projects and
activities necessary to restore or maintain water
quality or other related environmental objectives
within the watershed.
``(G) Identifying the appropriate institutional
arrangements to carry out a watershed management plan
that has been approved or adopted by the State under
this section.
``(H) Updating the plan.
``(I) Conducting training and public participation
activities.
``(J) Research to study benefits of existing
watershed program plans and particular aspects of the
plans.
``(K) Implementing any other activity considered
appropriate by the Administrator or the Governor of a
State with an approved program.
``(2) Factors to be considered.--In selecting watershed
management activities to receive assistance pursuant to
paragraph (1), the following factors shall be considered:
``(A) Whether or not the applicant has demonstrated
success in addressing water quality problems with
broadbased regional support, including public and
private sources.
``(B) Whether the activity will promote watershed
problem prioritization.
``(C) Whether or not the applicant can demonstrate an
ability to use Federal resources to leverage non-
Federal public and private monetary and in-kind support
from voluntary contributions, including matching and
cost sharing incentives.
``(D) Whether or not the applicant proposes to use
existing public and private programs to facilitate
water quality improvement with the assistance to be
provided pursuant to paragraph (1).
``(E) Whether or not such assistance will be used to
promote voluntary activities, including private
wetlands restoration, mitigation banking, and pollution
prevention to achieve water quality standards.
``(F) Whether or not such assistance will be used to
market mechanisms to enhance existing programs.
``(d) Public Participation.--Each State shall establish procedures to
encourage the public to participate in its program and in developing
and implementing comprehensive watershed management plans under this
section. A State watershed management program shall include a process
for public involvement in watershed management, to the maximum extent
practicable, including the formation and participation of public
advisory groups during State watershed program development. States must
provide adequate public notice and an opportunity to comment on the
State watershed program prior to submittal of the program to the
Administrator for approval.
``(e) Approved or State-Adopted Plans.--
``(1) Requirements.--A State with a watershed management
program that has been approved by the Administrator under this
section may approve or adopt a watershed management plan if the
plan satisfies the following conditions:
``(A) If the watershed includes waters that are not
meeting water quality standards at the time of
submission, the plan--
``(i) identifies the objectives of the plan,
including, at a minimum, State water quality
standards (including site-specific water
quality standards) and goals and objectives
under this Act;
``(ii) identifies pollutants, sources,
activities, and any other factors causing the
impairment of the waters;
``(iii) identifies cost effective actions
that are necessary to achieve the objectives of
the plan, including reduction of pollutants to
achieve any allocated load reductions
consistent with the requirements of section
303(d), and the priority for implementing the
actions;
``(iv) contains an implementation schedule
with milestones and the identification of
persons responsible for implementing the
actions;
``(v) demonstrates that water quality
standards and other goals and objectives of
this Act will be attained as expeditiously as
practicable but not later than any applicable
deadline under this Act;
``(vi) contains documentation of the public
participation in the development of the plan
and a description of the public participation
process that will be used during the plan
implementation;
``(vii) specifies a process to monitor and
evaluate progress toward meeting of the goals
of the plan; and
``(viii) specifies a process to revise the
plan as necessary.
``(B) For waters in the watershed attaining water
quality standards at the time of submission (including
threatened waters), the plan identifies the projects
and activities necessary to maintain water quality
standards and attain or maintain other goals after the
date of approval or adoption of the plan.
``(2) Terms of approved or adopted plan.--Each plan that is
approved or adopted by a State under this subsection shall be
effective for a period of not more than 10 years and include a
planning and implementation schedule with milestones within
that period. A revised and updated plan may be approved or
adopted by the State prior to the expiration of the period
specified in the plan pursuant to the same conditions and
requirements that apply to an initial plan for a watershed
approved under this subsection.
``(f) Guidance.--Not later than 1 year after the date of the
enactment of this section, the Administrator, after consultation with
the States and other interested parties, shall issue guidance on
provisions that States may consider for inclusion in watershed
management programs and State-approved or State-adopted watershed
management plans under this section.
``(g) Pollutant Transfer Opportunities.--
``(1) Pollutant transfer pilot projects.--Under an approved
watershed management program, any discharger or source may
apply to a State for approval to offset the impact of its
discharge or release of a pollutant by entering into
arrangements, including the payment of funds, for the
implementation of controls or measures by another discharger or
source through a pollution reduction credits trading program
established as part of the watershed management plan. The State
may approve such a request if appropriate safeguards are
included to ensure compliance with technology based controls
and to protect the quality of receiving waters.
``(2) Incentive grants.--The Administrator shall allocate
sums made available by appropriations to carry out pollution
reduction credits trading programs in selected watersheds
throughout the country.
``(3) Report.--Not later than 36 months after the date of the
enactment of this Act, the Administrator shall transmit to
Congress a report on the results of the program conducted under
this subsection.''.
(b) Incentives for Watershed Management.--
(1) Point source permits.--Section 402 (33 U.S.C. 1342) is
further amended by adding at the end the following:
``(r) Watershed Management.--
``(1) In general.--Notwithstanding any other provision of
this Act, a permit may be issued under this section with a
limitation that does not meet applicable water quality
standards if--
``(A) the receiving water is in a watershed with a
watershed management plan that has been approved
pursuant to section 321;
``(B) the plan includes assurances that water quality
standards will be met within the watershed by a
specified date; and
``(C) the point source does not have a history of
significant noncompliance with its effluent limitations
under a permit issued under this section, as determined
by the Administrator or a State with authority to issue
permits under this section.
``(2) Synchronized permit terms.--Notwithstanding subsection
(b)(1)(B), the term of a permit issued under this section may
be extended for an additional period if the discharge is
located in a watershed management unit for which a watershed
management plan will be developed pursuant to section 321.
Permits extended under this paragraph shall be synchronized
with the approval of the watershed management plan of a State
adopted pursuant to section 321.''.
(2) Multipurpose grants.--
(A) In general.--The Administrator may provide
assistance to a State with a watershed management
program that has been approved by the Administrator
under section 321 in the form of a multipurpose grant
that would provide for single application, work plan
and review, matching, oversight, and end-of-year
closeout requirements for grant funding under sections
104(b)(3), 104(g), 106, 314(b), 319, 320, and 604(b) of
the Federal Water Pollution Control Act.
(B) Terms.--The Administrator may attach terms that
shall apply for more than 1 year to grants made
pursuant to this paragraph. A State that receives a
grant under this paragraph may focus activities funded
under the provisions referred to in subparagraph (A) on
a priority basis in a manner consistent with watershed
management plans approved by the State under section
321(e) of the Federal Water Pollution Control Act.
(3) Planning.--Section 604(b) (33 U.S.C. 1384(b)) is amended
by adding at the end the following: ``In any fiscal year in
which a State is implementing a State watershed management
program approved under section 321, the State may reserve up to
an additional 2 percent of the sums allotted to the State for
such fiscal year for development of watershed management plans
under such program or $200,000, whichever is greater, if 50
percent of the amount reserved under this sentence will be made
available to local entities.''.
SEC. 322. STORMWATER MANAGEMENT PROGRAMS.
(a) State Programs.--Title III (33 U.S.C. 1311 et seq.) is further
amended by adding at the end the following new section:
``SEC. 322. STORMWATER MANAGEMENT PROGRAMS.
``(a) Purpose.--The purpose of this section is to assist States in
the development and implementation of stormwater control programs in an
expeditious and cost effective manner so as to enable the goals and
requirements of this Act to be met in each State no later than 15 years
after the date of approval of the stormwater management program of the
State. It is recognized that State stormwater management programs need
to be built on a foundation that voluntary pollution prevention
initiatives represent an approach most likely to succeed in achieving
the objectives of this Act.
``(b) State Assessment Reports.--
``(1) Contents.--After notice and opportunity for public
comment, the Governor of each State, consistent with or as part
of the assessment required by section 319, shall prepare and
submit to the Administrator for approval, a report which--
``(A) identifies those navigable waters within the
State which, without additional action to control
pollution from stormwater discharges, cannot reasonably
be expected to attain or maintain applicable water
quality standards or the goals and requirements of this
Act;
``(B) identifies those categories and subcategories
of stormwater discharges that add significant pollution
to each portion of the navigable waters identified
under subparagraph (A) in amounts which contribute to
such portion not meeting such water quality standards
or such goals and requirements;
``(C) describes the process, including
intergovernmental coordination and public
participation, for identifying measures to control
pollution from each category and subcategory of
stormwater discharges identified in subparagraph (B)
and to reduce, to the maximum extent practicable, the
level of pollution resulting from such discharges; and
``(D) identifies and describes State, local, and as
may be appropriate, industrial programs for controlling
pollution added from stormwater discharges to, and
improving the quality of, each such portion of the
navigable waters.
``(2) Information used in preparation.--In developing,
reviewing, and revising the report required by this subsection,
the State--
``(A) may rely upon information developed pursuant to
sections 208, 303(e), 304(f), 305(b), 314, 319, 320,
and 321 and subsection (h) of this section, information
developed from the group stormwater permit application
process in effect under section 402(p) of this Act on
the day before the date of the enactment of this Act,
and such other information as the State determines is
appropriate; and
``(B) may utilize appropriate elements of the waste
treatment management plans developed pursuant to
sections 208(b) and 303, to the extent such elements
are consistent with and fulfill the requirements of
this section.
``(3) Review and revision.--Not later than 18 months after
the date of the enactment of the Clean Water Amendments of
1995, and every 5 years thereafter, the State shall review,
revise, and submit to the Administrator the report required by
this subsection.
``(c) State Management Programs.--
``(1) In general.--In substantial consultation with local
governments and after notice and opportunity for public
comment, the Governor of each State for the State or in
combination with the Governors of adjacent States shall prepare
and submit to the Administrator for approval a stormwater
management program based on available information which the
State proposes to implement in the first 5 fiscal years
beginning after the date of submission of such management
program for controlling pollution added from stormwater
discharges to the navigable waters within the boundaries of the
State and improving the quality of such waters.
``(2) Specific contents.--Each management program proposed
for implementation under this subsection shall include the
following:
``(A) Identification of model management practices
and measures.--Identification of the model management
practices and measures which will be undertaken to
reduce pollutant loadings resulting from each category
or subcategory of stormwater discharges designated
under subsection (b)(1)(B), taking into account the
impact of the practice and measure on ground water
quality.
``(B) Identification of programs and resources.--
Identification of programs and resources necessary
(including, as appropriate, nonregulatory programs or
regulatory programs, enforceable policies and
mechanisms, technical assistance, financial assistance,
education, training, technology transfer, and
demonstration projects) to manage categories or
subcategories of stormwater discharges to the degree
necessary to provide for reasonable further progress
toward the goal of attainment of water quality
standards which contain the stormwater criteria
established under subsection (i) for designated uses of
receiving waters identified under subsection (b)(1)(A)
taking into consideration specific watershed
conditions, by not later than the last day of the 15-
year period beginning on the date of approval of the
State program.
``(C) Program for industrial, commercial, oil, gas,
and mining discharges.--A program for categories or
subcategories of industrial, commercial, oil, gas, and
mining stormwater discharges identified under
subsection (b)(1)(B) for the implementation of
management practices, measures, and programs identified
under subparagraphs (A) and (B). The program shall
include each of the following:
``(i) Voluntary activities.--Voluntary
stormwater pollution prevention activities for
categories and subcategories of such stormwater
discharges that are not contaminated by contact
with material handling equipment or activities,
heavy industrial machinery, raw materials,
intermediate products, finished products,
byproducts, or waste products at the site of
the industrial, commercial, oil, gas, or mining
activity. Such discharges may have incidental
contact with buildings or motor vehicles.
``(ii) Enforceable plans.--Enforceable
stormwater pollution prevention plans meeting
the requirements of subsection (d) for those
categories and subcategories of such stormwater
discharges that are not described in clause
(i).
``(iii) General permits.--General permits for
categories and subcategories of such stormwater
discharges if the State finds, based on
available information and after providing
notice and an opportunity for comment, that
reasonable further progress toward achieving
water quality standards in receiving waters
identified by the State by the date referred to
in subparagraph (B) cannot be made despite
implementation of voluntary activities under
clause (i) or prevention plans under clause
(ii) due to the presence of a pollutant or
pollutants identified by the State. A facility
in a category or subcategory identified by the
State shall not be subject to a general permit
under this clause if the facility demonstrates
that stormwater discharges from the facility
are not contributing to a violation of a water
quality standard established for designated
uses of the receiving waters and are not
significantly contributing the pollutant or
pollutants identified by the State with respect
to the receiving waters under this clause.
``(iv) Site-specific permits.--Site-specific
permits for categories or subcategories of such
stormwater discharges or individual facilities
in such categories or subcategories if the
State finds, based on available information and
after providing notice and an opportunity for
comment, that reasonable further progress
toward achieving water quality standards in
receiving waters identified by the State by the
date referred to in subparagraph (B) cannot be
made despite implementation of voluntary
activities under clause (i) or prevention plans
under clause (ii) and general permits under
clause (iii) due to the presence of a pollutant
or pollutants identified by the State. A
facility in a category or subcategory
identified by the State shall not be subject to
a site-specific permit under this clause if the
facility demonstrates that stormwater
discharges from the facility are not
contributing to a violation of a water quality
standard established for designated uses of the
receiving waters and are not significantly
contributing the pollutant or pollutants
identified by the State with respect to the
receiving waters under this clause.
``(v) Exemption of small businesses.--An
exemption for small businesses identified under
subsection (b)(1)(B) from clause (iii),
relating to general permits, and clause (iv),
relating to site-specific permits, unless the
State finds that, without the imposition of
such permits, such discharges will have a
significant adverse effect on water quality.
``(D) Program for municipal discharges.--A program
for municipal stormwater discharges identified under
subsection (b)(1)(B) to reduce pollutant loadings from
categories and subcategories of municipal stormwater
discharges.
``(E) Program for construction activities.--A program
for categories and subcategories of stormwater
discharges from construction activities identified
under subsection (b)(1)(B) for implementation of
management practices, measures, and programs identified
under subparagraphs (A) and (B). In developing the
program, the State shall consider current State and
local requirements, focus on pollution prevention
through the use of model management practices and
measures, and take into account the land area disturbed
by the construction activities. The State may require
effluent limits or other numerical standards to control
pollutants in stormwater discharges from construction
activities only if the State finds, after providing
notice and an opportunity for comment, that such
standards are necessary to achieve water quality
standards by the date referred to in subparagraph (B).
``(F) Bad actor provisions.--Provisions for taking
any actions deemed necessary by the State to meet the
goals and requirements of this section with respect to
dischargers which the State identifies, after notice
and opportunity for hearing--
``(i) as having a history of stormwater
noncompliance under this Act, State law, or the
regulations issued thereunder or the terms and
conditions of permits, orders, or
administrative actions issued pursuant thereto;
or
``(ii) as posing an imminent threat to human
health and the environment.
``(G) Schedule.--A schedule containing interim goals
and milestones for making reasonable progress toward
the attainment of standards as set forth in
subparagraph (B) established for the designated uses of
receiving waters, taking into account specific
watershed conditions, which may be demonstrated by one
or any combination of improvements in water quality
(including biological indicators), documented
implementation of voluntary stormwater discharge
control measures, or adoption of enforceable stormwater
discharge control measures.
``(H) Certification of adequate authority.--
``(i) In general.--A certification by the
Attorney General of the State or States (or the
chief attorney of any State water pollution
control agency that has authority under State
law to make such certification) that the laws
of the State or States, as the case may be,
provide adequate authority to implement such
management program or, if there is not such
adequate authority, a list of such additional
authorities as will be necessary to implement
such management program.
``(ii) Commitment.--A schedule for seeking,
and a commitment by the State or States to
seek, such additional authorities as
expeditiously as practicable.
``(I) Identification of federal financial assistance
programs.--An identification of Federal financial
assistance programs and Federal development projects
for which the State will review individual assistance
applications or development projects for their effect
on water quality pursuant to the procedures set forth
in Executive Order 12372 as in effect on September 17,
1983, to determine whether such assistance applications
or development projects would be consistent with the
program prepared under this subsection; for the
purposes of this subparagraph, identification shall not
be limited to the assistance programs or development
projects subject to Executive Order 12372 but may
include any programs listed in the most recent Catalog
of Federal Domestic Assistance which may have an effect
on the purposes and objectives of the State's
stormwater management program.
``(J) Monitoring.--A description of the monitoring of
navigable waters or other assessment which will be
carried out under the program for the purposes of
monitoring and assessing the effectiveness of the
program, including the attainment of interim goals and
milestones.
``(K) Identification of certain inconsistent federal
activities.--An identification of activities on Federal
lands in the State that are inconsistent with the State
management program.
``(L) Identification of goals and milestones.--An
identification of goals and milestones for progress in
attaining water quality standards, including a
projected date for attaining such standards as
expeditiously as practicable but not later than 15
years after the date of approval of the State program
for each of the waters listed pursuant to subsection
(b).
``(3) Utilization of local and private experts.--In
developing and implementing a management program under this
subsection, a State shall, to the maximum extent practicable,
involve local public and private agencies and organizations
which have expertise in stormwater management.
``(4) Development on watershed basis.--A State shall, to the
maximum extent practicable, develop and implement a stormwater
management program under this subsection on a watershed-by-
watershed basis within such State.
``(5) Regulations defining small businesses.--The
Administrator shall propose, not later than 6 months after the
date of the enactment of this section, and issue, not later
than 1 year after the date of such enactment, regulations to
define small businesses for purposes of this section.
``(d) Stormwater Pollution Prevention Plans.--
``(1) Implementation deadline.--Each stormwater pollution
prevention plan required under subsection (c)(2)(C)(ii) shall
be implemented not later than 180 days after the date of its
development and shall be annually updated.
``(2) Plan contents.--Each stormwater pollution prevention
plan required under subsection (c)(2)(C)(ii) shall include the
following components:
``(A) Establishment and appointment of a stormwater
pollution prevention team.
``(B) Description of potential pollutant sources.
``(C) An annual site inspection evaluation.
``(D) An annual visual stormwater discharge
inspection.
``(E) Measures and controls for reducing stormwater
pollution, including, at a minimum, model management
practices and measures that are flexible,
technologically feasible, and economically practicable.
For purposes of this paragraph, the term `model
management practices and measures' means preventive
maintenance, good housekeeping, spill prevention and
response, employee training, and sediment and erosion
control.
``(F) Prevention of illegal discharges of
nonstormwater through stormwater outfalls.
``(3) Certification.--Each facility subject to subsection
(c)(2)(C)(ii) shall certify to the State that it has
implemented a stormwater pollution prevention plan or a State
or local equivalent and that the plan is intended to reduce
possible pollutants in the facility's stormwater discharges.
The certification must be signed by a responsible officer of
the facility and must be affixed to the plan subject to review
by the appropriate State program authority. If a facility makes
such a certification, such facility shall not be subject to
permit or permit application requirements, mandatory model
management practices and measures, analytical monitoring,
effluent limitations or other numerical standards or guidelines
under subsection (c)(2)(C)(ii).
``(4) Plan adequacy.--The State stormwater management program
shall set forth the basis upon which the adequacy of a plan
prepared by a facility subject to subsection (c)(2)(C)(ii) will
be determined. In making such determination, the State shall
consider benefits to the environment, physical requirements,
technological feasibility and economic costs, human health or
safety, and nature of the activity at the facility or site.
``(e) Administrative Provisions.--
``(1) Cooperation requirement.--Any report required by
subsection (b) and any management program and report required
by subsection (c) shall be developed in cooperation with local,
substate, regional, and interstate entities which are
responsible for implementing stormwater management programs.
``(2) Time period for submission of management programs.--
Each management program shall be submitted to the Administrator
within 30 months of the issuance by the Administrator of the
final guidance under subsection (l) and every 5 years
thereafter. Each program submission after the initial
submission following the date of the enactment of the Clean
Water Amendments of 1995 shall include a demonstration of
reasonable further progress toward the goal of attaining water
quality standards as set forth in subsection (c)(2) established
for designated uses of receiving waters taking into account
specific watershed conditions by not later than the date
referred to in subsection (b)(2)(B), including a documentation
of the degree to which the State has achieved the interim goals
and milestones contained in the previous program submission.
Such demonstration shall take into account the adequacy of
Federal funding under this section.
``(3) Transition.--
``(A) In general.--Permits, including group and
general permits, issued pursuant to section 402(p), as
in effect on the day before the date of the enactment
of this section, shall remain in effect until the
effective date of a State stormwater management program
under this section. Stormwater dischargers shall
continue to implement any stormwater management
practices and measures required under such permits
until such practices and measures are modified pursuant
to this subparagraph or pursuant to a State stormwater
management program. Prior to the effective date of a
State stormwater management program, stormwater
dischargers may submit for approval proposed revised
stormwater management practices and measures to the
State, in the case of a State with an approved program
under section 402, or the Administrator. Upon notice of
approval by the State or the Administrator, the
stormwater discharger shall implement the revised
stormwater management practices and measures which, for
discharges subject to subsection (c)(2)(C)(i),
(c)(2)(D), (c)(2)(E), or (c)(2)(F), may be voluntary
pollution prevention activities. A stormwater
discharger operating under a permit continued in effect
under this subparagraph shall not be subject to
citizens suits under section 505.
``(B) New facilities.--A new nonmunicipal source of
stormwater discharge subject to a group or general
permit continued in effect under subparagraph (A) shall
notify the State or the Administrator, as appropriate,
of the source's intent to be covered by and shall
continue to comply with such permit. Until the
effective date of a State stormwater management program
under this section, the State may impose enforceable
stormwater management measures and practices on a new
nonmunicipal source of stormwater discharge not subject
to such a permit if the State finds that the stormwater
discharge is likely to pose an imminent threat to human
health and the environment or to pose significant
impairment of water quality standards.
``(C) Special rule.--Industrial facilities included
in a Part 1 group stormwater permit application
approved by the Administrator pursuant to section
122.26(c)(2) of title 40, Code of Federal Regulations,
as in effect on the date of the enactment of this
section, may, in lieu of continued operation under
existing permits, certify to the State or the
Administrator, as appropriate, that such facilities are
implementing a stormwater pollution prevention plan
consistent with subsection (d). Upon such
certification, the facility will no longer be subject
to such permit.
``(D) Pre-1987 permits.--Notwithstanding the repeal
of section 402(p) by the Clean Water Amendments Act of
1995 or any other amendment made to section 402 on or
before the date of the enactment of such Act, a
discharge with respect to which a permit has been
issued under section 402 before February 4, 1987, shall
not be subject to the provisions of this section.
``(E) Antibacksliding.--Section 402(o) shall not
apply to any activity carried out in accordance with
this paragraph.
``(f) Approval or Disapproval of Reports or Management Programs.--
``(1) Deadline.--Subject to paragraph (2), not later than 180
days after the date of submission to the Administrator of any
report or revised report or management program under this
section, the Administrator shall either approve or disapprove
such report or management program, as the case may be. The
Administrator may approve a portion of a management program
under this subsection. If the Administrator does not disapprove
a report, management program, or portion of a management
program in such 180-day period, such report, management
program, or portion shall be deemed approved for purposes of
this section.
``(2) Procedure for disapproval.--If, after notice and
opportunity for public comment and consultation with
appropriate Federal and State agencies and other interested
persons, the Administrator determines that--
``(A) the proposed management program or any portion
thereof does not meet the requirements of subsection
(b) of this section or is not likely to satisfy, in
whole or in part, the goals and requirements of this
Act;
``(B) adequate authority does not exist, or adequate
resources are not available, to implement such program
or portion; or
``(C) the practices and measures proposed in such
program or portion will not result in reasonable
progress toward the goal of attainment of applicable
water quality standards as set forth in subsection
(c)(2) established for designated uses of receiving
waters taking into consideration specific watershed
conditions as expeditiously as possible but not later
than 15 years after approval of a State stormwater
management program under this section;
the Administrator shall within 6 months of the receipt of the
proposed program notify the State of any revisions or
modifications necessary to obtain approval. The State shall
have an additional 6 months to submit its revised management
program, and the Administrator shall approve or disapprove such
revised program within 3 months of receipt.
``(3) Failure of state to submit report.--If a Governor of a
State does not submit a report or revised report required by
subsection (b) within the period specified by subsection
(e)(2), the Administrator shall, within 18 months after the
date on which such report is required to be submitted under
subsection (b), prepare a report for such State which makes the
identifications required by paragraphs (1)(A) and (1)(B) of
subsection (b). Upon completion of the requirement of the
preceding sentence and after notice and opportunity for a
comment, the Administrator shall report to Congress of the
actions of the Administrator under this section.
``(4) Failure of state to submit management program.--
``(A) Program management by administrator.--Subject
to paragraph (5), if a State fails to submit a
management program or revised management program under
subsection (c) or the Administrator does not approve
such management program, the Administrator shall
prepare and implement a management program for
controlling pollution added from stormwater discharges
to the navigable waters within the State and improving
the quality of such waters in accordance with
subsection (c).
``(B) Notice and hearing.--If the Administrator
intends to disapprove a program submitted by a State
the Administrator shall first notify the Governor of
the State, in writing, of the modifications necessary
to meet the requirements of this section. The
Administrator shall provide adequate public notice and
an opportunity for a public hearing for all interested
parties.
``(C) State revision of its program.--If, after
taking into account the level of funding actually
provided as compared with the level authorized, the
Administrator determines that a State has failed to
demonstrate reasonable further progress toward the
attainment of water quality standards as required, the
State shall revise its program within 12 months of that
determination in a manner sufficient to achieve
attainment of applicable water quality standards by the
deadline established by this section. If a State fails
to make such a program revision or the Administrator
does not approve such a revision, the Administrator
shall prepare and implement a stormwater management
program for the State.
``(5) Local Management Programs; Technical Assistance.--If a
State fails to submit a management program under subsection (c)
or the Administrator does not approve such a management
program, a local public agency or organization which has
expertise in, and authority to, control water pollution
resulting from nonpoint sources in any area of such State which
the Administrator determines is of sufficient geographic size
may, with approval of such State, request the Administrator to
provide, and the Administrator shall provide, technical
assistance to such agency or organization in developing for
such area a management program which is described in subsection
(c) and can be approved pursuant to this subsection. After
development of such management program, such agency or
organization shall submit such management program to the
Administrator for approval.
``(g) Interstate Management Conference.--
``(1) Convening of conference; notification; purpose.--
``(A) Convening of conference.--If any portion of the
navigable waters in any State which is implementing a
management program approved under this section is not
meeting applicable water quality standards or the goals
and requirements of this Act as a result, in whole or
in part, of pollution from stormwater in another State,
such State may petition the Administrator to convene,
and the Administrator shall convene, a management
conference of all States which contribute significant
pollution resulting from stormwater to such portion.
``(B) Notification.--If, on the basis of information
available, the Administrator determines that a State is
not meeting applicable water quality standards or the
goals and requirements of this Act as a result, in
whole or in part, of significant pollution from
stormwater in another State, the Administrator shall
notify such States.
``(C) Time limit.--The Administrator may convene a
management conference under this paragraph not later
than 180 days after giving such notification under
subparagraph (B), whether or not the State which is not
meeting such standards requests such conference.
``(D) Purpose.--The purpose of the conference shall
be to develop an agreement among the States to reduce
the level of pollution resulting from stormwater in the
portion of the navigable waters and to improve the
water quality of such portion.
``(E) Protection of water rights.--Nothing in the
agreement shall supersede or abrogate rights to
quantities of water which have been established by
interstate water compacts, Supreme Court decrees, or
State water laws.
``(F) Limitations.--This subsection shall not apply
to any pollution which is subject to the Colorado River
Basin Salinity Control Act. The requirement that the
Administrator convene a management conference shall not
be subject to the provisions of section 505 of this
Act.
``(2) State management program requirement.--To the extent
that the States reach agreement through such conference, the
management programs of the States which are parties to such
agreements and which contribute significant pollution to the
navigable waters or portions thereof not meeting applicable
water quality standards or goals and requirements of this Act
will be revised to reflect such agreement. Such management
programs shall be consistent with Federal and State law.
``(h) Grants for Stormwater Research.--
``(1) In general.--To determine the most cost-effective and
technologically feasible means of improving the quality of the
navigable waters and to develop the criteria required pursuant
to subsection (i) of this Act, the Administrator shall
establish an initiative through which the Administrator shall
fund State and local demonstration programs and research to--
``(A) identify adverse impacts of stormwater
discharges on receiving waters;
``(B) identify the pollutants in stormwater which
cause impact; and
``(C) test innovative approaches to address the
impacts of source controls and model management
practices and measures for runoff from municipal storm
sewers.
Persons conducting demonstration programs and research funded
under this subsection shall also take into account the physical
nature of episodic stormwater flows, the varying pollutants in
stormwater, the actual risk the flows pose to the designated
beneficial uses, and the ability of natural ecosystems to
accept temporary stormwater events.
``(2) Award of funds.--The Administrator shall award the
demonstration and research program funds taking into account
regional and population variations.
``(3) Authorization of appropriations.--There are authorized
to be appropriated to carry out this subsection $20,000,000 per
fiscal year for fiscal years 1996 through 2000. Such sums shall
remain available until expended.
``(4) Inadequate funding.--For each fiscal year beginning
after the date of the enactment of this subsection for which
the total amounts appropriated to carry out this subsection are
less than the total amounts authorized to be appropriated
pursuant to this subsection, any deadlines established under
subsection (c)(2)(L) for compliance with water quality
standards shall be postponed by 1 year.
``(i) Development of Stormwater Criteria.--
``(1) In general.--To reflect the episodic character of
stormwater which results in significant variances in the
volume, hydraulics, hydrology, and pollutant load associated
with stormwater discharges, the Administrator shall establish,
as an element of the water quality standards established for
the designated uses of the navigable waters, stormwater
criteria which protect the navigable waters from impairment of
the designated beneficial uses caused by stormwater discharges.
The criteria shall be technologically and financially feasible
and may include performance standards, guidelines, guidance,
and model management practices and measures and treatment
requirements, as appropriate, and as identified in subsection
(h)(1).
``(2) Information to be used in development.--The stormwater
discharge criteria to be established under this subsection--
``(A) shall be developed from--
``(i) the findings and conclusions of the
demonstration programs and research conducted
under subsection (h);
``(ii) the findings and conclusions of the
research and monitoring activities of
stormwater dischargers performed in compliance
with permit requirements of this Act; and
``(iii) other relevant information, including
information submitted to the Administrator
under the industrial group permit application
process in effect under section 402 of this Act
on the day before the date of the enactment of
this section;
``(B) shall be developed in consultation with persons
with expertise in the management of stormwater
(including officials of State and local government,
industrial and commercial stormwater dischargers, and
public interest groups); and
``(C) shall be established as an element of the water
quality standards that are developed and implemented
under this Act by not later than December 31, 2008.
``(j) Collection of Information.--The Administrator shall collect and
make available, through publications and other appropriate means,
information pertaining to model management practices and measures and
implementation methods, including, but not limited to--
``(1) information concerning the costs and relative
efficiencies of model management practices and measures for
reducing pollution from stormwater discharges; and
``(2) available data concerning the relationship between
water quality and implementation of various management
practices to control pollution from stormwater discharges.
``(k) Reports of Administrator.--
``(1) Biennial reports.--Not later than January 1, 1996, and
biennially thereafter, the Administrator shall transmit to the
Committee on Transportation and Infrastructure of the House of
Representatives and the Committee on Environment and Public
Works of the Senate, a report for the preceding fiscal year on
the activities and programs implemented under this section and
the progress made in reducing pollution in the navigable waters
resulting from stormwater discharges and improving the quality
of such waters.
``(2) Contents.--Each report submitted under paragraph (1),
at a minimum shall--
``(A) describe the management programs being
implemented by the States by types of affected
navigable waters, categories and subcategories of
stormwater discharges, and types of measures being
implemented;
``(B) describe the experiences of the States in
adhering to schedules and implementing the measures
under subsection (c);
``(C) describe the amount and purpose of grants
awarded pursuant to subsection (h);
``(D) identify, to the extent that information is
available, the progress made in reducing pollutant
loads and improving water quality in the navigable
waters;
``(E) indicate what further actions need to be taken
to attain and maintain in those navigable waters (i)
applicable water quality standards, and (ii) the goals
and requirements of this Act;
``(F) include recommendations of the Administrator
concerning future programs (including enforcement
programs) for controlling pollution from stormwater;
and
``(G) identify the activities and programs of
departments, agencies, and instrumentalities of the
United States that are inconsistent with the stormwater
management programs implemented by the States under
this section and recommended modifications so that such
activities and programs are consistent with and assist
the States in implementation of such management
programs.
``(l) Guidance on Model Stormwater Management Practices and
Measures.--
``(1) In general.--The Administrator, in consultation with
appropriate Federal, State, and local departments and agencies,
and after providing notice and opportunity for public comment,
shall publish guidance to identify model management practices
and measures which may be undertaken, at the discretion of the
State or appropriate entity, under a management program
established pursuant to this section. In preparing such
guidance, the Administrator shall consider integration of a
stormwater management program of a State with, and the
relationship of such program to, the nonpoint source management
program of the State under section 319.
``(2) Publication.--The Administrator shall publish proposed
guidance under this subsection not later than 6 months after
the date of the enactment of this subsection and shall publish
final guidance under this subsection not later than 18 months
after such date of enactment. The Administrator shall
periodically review and revise the final guidance upon adequate
notice and opportunity for public comment at least once every 3
years after its publication.
``(3) Model management practices and measures defined.--For
the purposes of this subsection, the term ``model management
practices and measures'' means economically achievable measures
for the control of pollutants from stormwater discharges which
reflect the most cost-effective degree of pollutant reduction
achievable through the application of the best available
practices, technologies, processes, siting criteria, operating
methods, or other alternatives.
``(m) Enforcement With Respect to Stormwater Dischargers Violating
State Management Programs.--Stormwater dischargers that do not comply
with State management program requirements under subsection (c) are
subject to applicable enforcement actions under sections 309 and 505 of
this Act.
``(n) Entry and Inspection.--In order to carry out the objectives of
this section, an authorized representative of a State, upon
presentation of his or her credentials, shall have a right of entry to,
upon, or through any property at which a stormwater discharge or
records required to be maintained under the State stormwater management
program are located.
``(o) Limitation on Discharges Regulated Under Watershed Management
Program.--Stormwater discharges regulated under section 321 in a manner
consistent with this section shall not be subject to this section.
``(p) Mineral Exploration and Mining Sites.--
``(1) Exploration sites.--For purposes of subsection
(c)(2)(F), stormwater discharges from construction activities
shall include stormwater discharges from mineral exploration
activities; except that, for exploration at abandoned mined
lands, the stormwater program under subsection (c)(2)(F) shall
be limited to the control of pollutants added to stormwater by
contact with areas disturbed by the exploration activity.
``(2) Mining sites.--Stormwater discharges at ore mining and
dressing sites shall be subject to this section. If any such
discharge is commingled with mine drainage or process
wastewater from mining operations, such discharge shall be
treated as a discharge from a point source for purposes of this
Act.
``(3) Abandoned mined lands.--Stormwater discharges from
abandoned mined lands shall be subject to section 319; except
that if the State, after notice and an opportunity for comment,
finds that regulation of such stormwater discharges under this
section is necessary to make reasonable further progress toward
achieving water quality standards by the date referred to in
subsection (c)(2)(B), such discharges shall be subject to this
section.
``(4) Surface mining control and reclamation act sites.--
Notwithstanding paragraph (3), stormwater discharges from
abandoned mined lands site which are subject to the Surface
Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201-
1328) shall be subject to section 319.
``(5) Definitions.--For purposes of this subsection, the
following definitions apply:
``(A) Abandoned mined lands.--The term `abandoned
mined lands' means lands which were used for mineral
activities and abandoned or left in an inadequate
reclamation status and for which there is no continuing
reclamation responsibility under State or Federal laws.
``(B) Process waste water.--The term `process waste
water' means any water other than stormwater which
comes into contact with any raw material, intermediate
product, finished product, byproduct, or waste product
as part of any mineral beneficiation processes employed
at the site.
``(C) Mine drainage.--The term `mine drainage' means
any water drained, pumped, or siphoned from underground
mine workings or mine pits, but such term shall not
include stormwater runoff from tailings dams, dikes,
overburden, waste rock piles, haul roads, access roads,
and ancillary facility areas.''.
(b) Repeal of Limitation on Permit Requirement.--Section 402(l) (33
U.S.C. 1342(l)) is repealed.
(c) Repeal of Municipal and Industrial Stormwater Discharges
Program.--Section 402(p) (33 U.S.C. 1342(p)) is repealed.
(d) Definitions.--Section 502 (33 U.S.C. 1362) is amended--
(1) by adding at the end of paragraph (14) the following:
``The term does not include a stormwater discharge.''; and
(2) by adding at the end the following:
``(25) The term `stormwater' means runoff from rain, snow melt, or
any other precipitation-generated surface runoff.
``(26) The term `stormwater discharge' means a discharge from any
conveyance which is used for the collecting and conveying of stormwater
to navigable waters and which is associated with a municipal storm
sewer system or industrial, commercial, oil, gas, or mining activities
or construction activities.''.
SEC. 323. RISK ASSESSMENT AND DISCLOSURE REQUIREMENTS.
Title III (33 U.S.C. 1311-1330) is further amended by adding at the
end the following:
``SEC. 323. RISK ASSESSMENT AND DISCLOSURE REQUIREMENTS.
``(a) General Rule.--The Administrator or the Secretary of the Army
(hereinafter in this section referred to as the `Secretary'), as
appropriate, shall develop and publish a risk assessment before
issuing--
``(1) any standard, effluent limitation, water quality
criterion, water quality based requirement, or other regulatory
requirement under this Act (other than a permit or a purely
procedural requirement); or
``(2) any guidance under this Act which, if issued as a
regulatory requirement, would result in an annual increase in
cost of $25,000,000 or more.
``(b) Contents of Risk Assessments.--A risk assessment developed
under subsection (a), at a minimum, shall--
``(1) identify and use all relevant and readily obtainable
data and information of sufficient quality, including data and
information submitted to the Agency in a timely fashion;
``(2) identify and discuss significant assumptions,
inferences, or models used in the risk assessment;
``(3) measure the sensitivity of the results to the
significant assumptions, inferences, or models that the risk
assessment relies upon;
``(4) with respect to significant assumptions, inferences, or
models that the results are sensitive to, identify and
discuss--
``(A) credible alternatives and the basis for the
rejection of such alternatives;
``(B) the scientific or policy basis for the
selection of such assumptions, inferences, or models;
and
``(C) the extent to which any such assumptions,
inferences, or models have been validated or conflict
with empirical data;
``(5) to the maximum extent practical, provide a description
of the risk, including, at minimum, best estimates or other
unbiased representation of the most plausible level of risk and
a description of the specific populations or natural resources
subject to the assessment;
``(6) to the maximum extent practical, provide a quantitative
estimate of the uncertainty inherent in the risk assessment;
and
``(7) compare the nature and extent of the risk identified in
the risk assessment to other risks to human health and the
environment.
``(c) Risk Assessment Guidance.--Not later than 180 days after the
date of the enactment of this section, and after providing notice and
opportunity for public comment, the Administrator, in consultation with
the Secretary, shall issue, and thereafter revise, as appropriate,
guidance for conducting risk assessments under subsection (a).
``(d) Margin of Safety.--When establishing a margin of safety for use
in developing a regulatory requirement described in subsection (a)(1)
or guidance described in subsection (a)(2), the Administrator or the
Secretary, as appropriate, shall provide, as part of the risk
assessment under subsection (a), an explicit and, to the extent
practical, quantitative description of the margin of safety relative to
an unbiased estimate of the risk being addressed.
``(e) Discretionary Exemptions.--The Administrator or the Secretary,
as appropriate, may exempt from the requirements of this section any
risk assessment prepared in support of a regulatory requirement
described in subsection (a)(1) which is likely to result in annual
increase in cost of less than $25,000,000. Such exemptions may be made
for specific risk assessments or classes of risk assessments.
``(f) General Rule on Applicability.--The requirements of this
section shall apply to any regulatory requirement described in
subsection (a)(1) or guidance described in subsection (a)(2) that is
issued after the last day of the 1-year period beginning on the date of
the enactment of this section.
``(g) Significant Regulatory Actions and Guidance.--
``(1) Applicability of requirements.--In addition to the
regulatory requirements and guidance referred to in subsection
(f), the requirements of this section shall apply to--
``(A) any standard, effluent limitation, water
quality criterion, water quality based requirement, or
other regulatory requirement issued under this Act
during the period described in paragraph (2) which is
likely to result in an annual increase in cost of
$100,000,000 or more; and
``(B) any guidance issued under this Act during the
period described in paragraph (2) which, if issued as a
regulatory requirement, would be likely to result in
annual increase in cost of $100,000,000 or more.
``(2) Covered period.--The period described in this paragraph
is the period beginning on February 15, 1995, and ending on the
last day of the 1-year period beginning on the date of the
enactment of this Act.
``(3) Review.--Any regulatory requirement described in
paragraph (1)(A) or guidance described in paragraph (1)(B)
which was issued before the date of the enactment of this
section shall be reviewed and, with respect to each such
requirement or guidance, the Administrator or the Secretary, as
appropriate, shall based on such review--
``(A) certify that the requirement or guidance meets
the requirements of this section without revision; or
``(B) reissue the requirement or guidance, after
providing notice and opportunity for public comment,
with such revisions as may be necessary for compliance
with the requirements of this section.
``(4) Deadline.--Any regulatory requirement described in
paragraph (1)(A) or guidance described in paragraph (1)(B) for
which the Administrator or the Secretary, as appropriate, does
not issue a certification or revisions under paragraph (3) on
or before the last day of the 18-month period beginning on the
date of the enactment of this section shall cease to be
effective after such last day until the date on which such
certification or revisions are issued.''.
SEC. 324. BENEFIT AND COST CRITERION.
Title III (33 U.S.C. 1311-1330) is further amended by adding at the
end the following:
``SEC. 324. BENEFIT AND COST CRITERION.
``(a) Decision Criterion.--
``(1) Certification.--The Administrator or the Secretary of
the Army (hereinafter in this section referred to as the
`Secretary'), as appropriate, shall not issue--
``(A) any standard, effluent limitation, or other
regulatory requirement under this Act; or
``(B) any guidance under this Act which, if issued as
a regulatory requirement, would result in an annual
increase in cost of $25,000,000 or more,
unless the Administrator or the Secretary certifies that the
requirement or guidance maximizes net benefits to society. Such
certification shall be based on an analysis meeting the
requirements of subsection (b).
``(2) Effect of criterion.--Notwithstanding any other
provision of this Act, the decision criterion of paragraph (1)
shall supplement and, to the extent there is a conflict,
supersede the decision criteria otherwise applicable under this
Act; except that the resulting regulatory requirement or
guidance shall be economically achievable.
``(3) Substantial evidence.--Notwithstanding any other
provision of this Act, no regulation or guidance subject to
this subsection shall be issued by the Administrator or the
Secretary unless the requirement of paragraph (1) is met and
the certification is supported by substantial evidence.
``(b) Benefit and Cost Analysis Guidance.--
``(1) In general.--Not later than 180 days after the date of
the enactment of this section, and after providing notice and
opportunity for public comment, the Administrator, in
concurrence with the Administrator of the Office of Information
and Regulatory Affairs, shall issue, and thereafter revise, as
appropriate, guidance for conducting benefit and cost analyses
in support of making certifications required by subsection (a).
``(2) Contents.--Guidance issued under paragraph (1), at a
minimum, shall--
``(A) require the identification of available policy
alternatives, including the alternative of not
regulating and any alternatives proposed during periods
for public comment;
``(B) provide methods for estimating the incremental
benefits and costs associated with plausible
alternatives, including the use of quantitative and
qualitative measures;
``(C) require an estimate of the nature and extent of
the incremental risk avoided by the standard, effluent
limitation, or other regulatory requirement, including
a statement that places in context the nature and
magnitude of the estimated risk reduction; and
``(D) require an estimate of the total social,
environmental, and economic costs of implementing the
standard, effluent limitation, or other regulatory
requirement.
``(c) Exemptions.--The following shall not be subject to the
requirements of this section:
``(1) The issuance of a permit.
``(2) The implementation of any purely procedural
requirement.
``(3) Water quality criteria established under section 304.
``(4) Water quality based standards established under section
303.
``(d) Discretionary Exemptions.--The Administrator or the Secretary,
as appropriate, may exempt from this section any regulatory requirement
that is likely to result in an annual increase in costs of less than
$25,000,000. Such exemptions may be made for specific regulatory
requirements or classes of regulatory requirements.
``(e) General Rule on Applicability.--The requirements of this
section shall apply to any regulatory requirement described in
subsection (a)(1)(A) or guidance described in subsection (a)(1)(B) that
is issued after the last day of the 1-year period beginning on the date
of the enactment of this section.
``(f) Significant Regulatory Actions and Guidance.--
``(1) Applicability of requirements.--In addition to the
regulatory requirements and guidance referred to in subsection
(e), this section shall apply to--
``(A) any standard, effluent limitation, or other
regulatory requirement issued under this Act during the
period described in paragraph (2) which is likely to
result in an annual increase in cost of $100,000,000 or
more; and
``(B) any guidance issued under this Act during the
period described in paragraph (2) which, if issued as a
regulatory requirement, would be likely to result in
annual increase in cost of $100,000,000 or more.
``(2) Covered period.--The period described in this paragraph
is the period beginning on February 15, 1995, and ending on the
last day of the 1-year period beginning on the date of the
enactment of this Act.
``(3) Review.--Any regulatory requirement described in
paragraph (1)(A) or guidance described in paragraph (1)(B)
which was issued before the date of the enactment of this
section shall be reviewed and, with respect to each such
requirement or guidance, the Administrator or the Secretary, as
appropriate, shall, based on such review--
``(A) certify that the requirement or guidance meets
the requirements of this section without revision; or
``(B) reissue the requirement or guidance, after
providing notice and opportunity for public comment,
with such revisions as may be necessary for compliance
with the requirements of this section.
``(4) Deadline.--Any regulatory requirement described in
paragraph (1)(A) or guidance described in paragraph (1)(B) for
which the Administrator or the Secretary, as appropriate, does
not issue a certification or revisions under paragraph (3) on
or before the last day of the 18-month period beginning on the
date of the enactment of this section shall cease to be
effective after such last day until the date on which such
certification or revisions are issued.
``(g) Study.--Not later than 5 years after the date of the enactment
of this section, the Administrator, in consultation with the
Administrator of the Office of Information and Regulatory Affairs,
shall publish an analysis regarding the precision and accuracy of
benefit and cost estimates prepared under this section. Such study, at
a minimum, shall--
``(1) compare estimates of the benefits and costs prepared
under this section to actual costs and benefits achieved after
implementation of regulations or other requirements;
``(2) examine and assess alternative analytic methods for
conducting benefit and cost analysis, including health-health
analysis; and
``(3) make recommendations for the improvement of benefit and
cost analyses conducted under this section.''.
TITLE IV--PERMITS AND LICENSES
SEC. 401. WASTE TREATMENT SYSTEMS FOR CONCENTRATED ANIMAL FEEDING
OPERATIONS.
Section 402(a) is amended by adding the following new paragraph:
``(6) Concentrated animal feeding operations.--For purposes
of this section, waste treatment systems, including retention
ponds or lagoons, used to meet the requirements of this Act for
concentrated animal feeding operations, are not waters of the
United States. An existing concentrated animal feeding
operation that uses a natural topographic impoundment or
structure on the effective date of this Act, which is not
hydrologically connected to any other waters of the United
States, as a waste treatment system or wastewater retention
facility may continue to use that natural topographic feature
for waste storage regardless of its size, capacity, or previous
use.''.
SEC. 402. PERMIT REFORM.
(a) Duration and Reopeners.--Section 402(b)(1) (33 U.S.C. 1342(b)(1))
is amended--
(1) in subparagraph (B) by striking ``five'' and inserting
``10'' and by striking ``and'';
(2) by inserting ``and'' after the semicolon at the end of
subparagraph (D); and
(3) by adding at the end the following new subparagraph:
``(E) can be modified as necessary to address a
significant threat to human health and the
environment;''.
(b) Review of Effluent Limitations.--Section 301(d) (33 U.S.C.
1311(d)) is amended to read as follows:
``(d) Review of Effluent Limitations.--Any effluent limitation
required by subsection (b)(2) that is established in a permit under
section 402 shall be reviewed at least every 10 years when the permit
is reissued, and, if appropriate, revised.''.
(c) Discharge Limit.--Section 402(b)(1)(A) (33 U.S.C. 1342(b)(1)(A))
is amended by inserting after the semicolon at the end the following:
``except that in no event shall a discharge limit in a permit under
this section be set at a level below the lowest level that the
pollutant can be reliably quantified on an interlaboratory basis for a
particular test method, as determined by the Administrator using
approved analytical methods under section 304(h);''.
SEC. 403. REVIEW OF STATE PROGRAMS AND PERMITS.
(a) Review of State Programs.--Section 402(c) (33 U.S.C. 1342(c)) is
amended by inserting before the first sentence the following: ``Upon
approval of a State program under this section, the Administrator shall
review administration of the program by the State once every 3
years.''.
(b) Review of State Permits.--Section 402(d)(2) (33 U.S.C.
1342(d)(2)) is amended--
(1) in the first sentence by striking ``as being outside the
guidelines and requirements of this Act'' and inserting ``as
presenting a substantial risk to human health and the
environment''; and
(2) in the second sentence by striking ``and the effluent
limitations'' and all that follows before the period.
(c) Court Proceedings to Prohibit Introduction of Pollutants into
Treatment Works.--Section 402(h) (33 U.S.C. 1342(h)) is amended by
inserting after ``approved or where'' the following: ``the discharge
involves a significant source of pollutants to the waters of the United
States and''.
SEC. 404. STATISTICAL NONCOMPLIANCE.
(a) Number of Excursions.--Section 402(k) (33 U.S.C. 1342(k)) is
amended by inserting after the first sentence the following: ``In any
enforcement action or citizen suit under section 309 or 505 of this Act
or applicable State law alleging noncompliance with a technology-based
effluent limitation established pursuant to section 301, a permittee
shall be deemed in compliance with the technology-based effluent
limitation if the permittee demonstrates through reference to
information contained in the applicable rulemaking record that the
number of excursions from the technology-based effluent limitation are
no greater, on an annual basis, than the number of excursions expected
from the technology on which the limit is based and that the discharges
do not violate an applicable water-quality based limitation or
standard.''.
(b) Pretreatment Standards.--Section 307(d) (33 U.S.C. 1317(d)) is
amended by adding at the end the following: ``In any enforcement action
or citizen suit under section 309 or 505 of this Act or applicable
State law alleging noncompliance with a categorical pretreatment
standard or local pretreatment limit established pursuant to this
section, a person who demonstrates through reference to information
contained in the applicable rulemaking record--
``(1) that the number of excursions from the categorical
pretreatment standard or local pretreatment limit are no
greater, on an annual basis, than the number of excursions
expected from the technology on which the pretreatment standard
or local pretreatment limit is based, and
``(2) that the introduction of pollutants into a publicly
owned treatment works does not cause interference with such
works or cause a violation by such works of an applicable
water-quality based limitation or standard,
shall be deemed in compliance with the standard under the Act.''.
SEC. 405. ANTI-BACKSLIDING REQUIREMENTS.
Section 402(o) (33 U.S.C. 1343(o)) is amended by adding at the end
the following:
``(4) Nonapplicability to publicly owned treatment works.--
The requirements of this subsection shall not apply to
permitted discharges from a publicly owned treatment works if
the treatment works demonstrates to the satisfaction of the
Administrator that--
``(A) the increase in pollutants is a result of
conditions beyond the control of the treatment works
(such as fluctuations in normal source water
availabilities due to sustained drought conditions);
and
``(B) effluent quality does not result in impairment
of water quality standards established for the
receiving waters.''.
SEC. 406. INTAKE CREDITS.
Section 402 (33 U.S.C. 1342) is further amended by inserting after
subsection (k) the following:
``(l) Intake Credits.--
``(1) In general.--Notwithstanding any provision of this Act,
in any effluent limitation or other limitation imposed under
the permit program established by the Administrator under this
section, any State permit program approved under this section
(including any program for implementation under section
118(c)(2)), any standards established under section 307(a), or
any program for industrial users established under section
307(b), the Administrator, as applicable, shall or the State,
as applicable, may provide credits for pollutants present in or
caused by intake water such that an owner or operator of a
point source is not required to remove, reduce, or treat the
amount of any pollutant in an effluent below the amount of such
pollutant that is present in or caused by the intake water for
such facility--
``(A)(i) if the source of the intake water and the
receiving waters into which the effluent is ultimately
discharged are the same;
``(ii) if the source of the intake water meets the
maximum contaminant levels or treatment techniques for
drinking water contaminants established pursuant to the
Safe Drinking Water Act for the pollutant of concern;
or
``(iii) if, at the time the limitation or standard is
established, the level of the pollutant in the intake
water is the same as or lower than the amount of the
pollutant in the receiving waters, taking into account
analytical variability; and
``(B) if, for conventional pollutants, the
constituents of the conventional pollutants in the
intake water are the same as the constituents of the
conventional pollutants in the effluent.
``(2) Allowance for incidental amounts.--In determining
whether the condition set forth in paragraph (1)(A)(i) is being
met, the Administrator shall or the State may, as appropriate,
make allowance for incidental amounts of intake water from
sources other than the receiving waters.
``(3) Credit for nonqualifying pollutants.--The Administrator
shall or a State may provide point sources an appropriate
credit for pollutants found in intake water that does not meet
the requirement of paragraph (1).
``(4) Monitoring.--Nothing in this section precludes the
Administrator or a State from requiring monitoring of intake
water, effluent, or receiving waters to assist in the
implementation of this section.''.
SEC. 407. COMBINED SEWER OVERFLOWS.
Section 402 (33 U.S.C. 1342) is further amended by adding at the end
the following:
``(s) Combined Sewer Overflows.--
``(1) Requirement for permits.--Each permit issued pursuant
to this section for a discharge from a combined storm and
sanitary sewer shall conform with the combined sewer overflow
control policy signed by the Administrator on April 11, 1994.
``(2) Term of permit.--
``(A) Compliance deadline.--Notwithstanding any
compliance schedule under section 301(b), or any permit
limitation under section 402(b)(1)(B), the
Administrator (or a State with a program approved under
subsection (b)) may issue a permit pursuant to this
section for a discharge from a combined storm and
sanitary sewer, that includes a schedule for compliance
with a long-term control plan under the control policy
referred to in paragraph (1), for a term not to exceed
15 years.
``(B) Extension.--Notwithstanding the compliance
deadline specified in subparagraph (A), the
Administrator or a State with a program approved under
subsection (b) shall extend, on request of an owner or
operator of a combined storm and sanitary sewer and
subject to subparagraph (C), the period of compliance
beyond the last day of the 15-year period--
``(i) if the Administrator or the State
determines that compliance by such last day is
not within the economic capability of the owner
or operator; and
``(ii) if the owner or operator demonstrates
to the satisfaction of the Administrator or the
State reasonable further progress towards
compliance with a long-term control plan under
the control policy referred to in paragraph
(1).
``(C) Limitations on extensions.--
``(i) Extension not appropriate.--
Notwithstanding subparagraph (B), the
Administrator or the State need not grant an
extension of the compliance deadline specified
in subparagraph (A) if the Administrator or the
State determines that such an extension is not
appropriate.
``(ii) New York-New Jersey.--Prior to
granting an extension under subparagraph (B)
with respect to a combined sewer overflow
discharge originating in the State of New York
or New Jersey and affecting the other of such
States, the Administrator or the State from
which the discharge originates, as the case may
be, shall provide written notice of the
proposed extension to the other State and shall
not grant the extension unless the other State
approves the extension or does not disapprove
the extension within 90 days of receiving such
written notice.
``(3) Savings clause.--Any consent decree or court order
entered by a United States district court, or administrative
order issued by the Administrator, before the date of the
enactment of this subsection establishing any deadlines,
schedules, or timetables, including any interim deadlines,
schedules, or timetables, for the evaluation, design, or
construction of treatment works for control or elimination of
any discharge from a municipal combined storm and sanitary
sewer system shall be modified upon motion or request by any
party to such consent decree or court order, to extend to
December 31, 2009, at a minimum, any such deadlines, schedules,
or timetables, including any interim deadlines, schedules, or
timetables as is necessary to conform to the policy referred to
in paragraph (1) or otherwise achieve the objectives of this
subsection. Notwithstanding the preceding sentence, the period
of compliance with respect to a discharge referred to in
paragraph (2)(C)(ii) may only be extended in accordance with
paragraph (2)(C)(ii).''.
SEC. 408. SANITARY SEWER OVERFLOWS.
Section 402 (33 U.S.C. 1342) is further amended by adding at the end
the following:
``(t) Sanitary Sewer Overflows.--
``(1) Development of policy.--Not later than 2 years after
the date of the enactment of this subsection, the
Administrator, in consultation with State and local governments
and water authorities, shall develop and publish a national
control policy for municipal separate sanitary sewer overflows.
The national policy shall recognize and address regional and
economic factors.
``(2) Issuance of permits.--Each permit issued pursuant to
this section for a discharge from a municipal separate sanitary
sewer shall conform with the policy developed under paragraph
(1).
``(3) Compliance deadline.--Notwithstanding any compliance
schedule under section 301(b), or any permit limitation under
subsection (b)(1)(B), the Administrator or a State with a
program approved under subsection (b) may issue a permit
pursuant to this section for a discharge from a municipal
separate sanitary sewer due to stormwater inflows or
infiltration. The permit shall include at a minimum a schedule
for compliance with a long-term control plan under the policy
developed under paragraph (1), for a term not to exceed 15
years.
``(4) Extension.--Notwithstanding the compliance deadline
specified in paragraph (3), the Administrator or a State with a
program approved under subsection (b) shall extend, on request
of an owner or operator of a municipal separate sanitary sewer,
the period of compliance beyond the last day of such 15-year
period if the Administrator or the State determines that
compliance by such last day is not within the economic
capability of the owner or operator, unless the Administrator
or the State determines that the extension is not appropriate.
``(5) Effect on other actions.--Before the date of
publication of the policy under paragraph (1), the
Administrator or Attorney General shall not initiate any
administrative or judicial civil penalty action in response to
a municipal separate sanitary sewer overflow due to stormwater
inflows or infiltration.
``(6) Savings clause.--Any consent decree or court order
entered by a United States district court, or administrative
order issued by the Administrator, before the date of the
enactment of this subsection establishing any deadlines,
schedules, or timetables, including any interim deadlines,
schedules, or timetables, for the evaluation, design, or
construction of treatment works for control or elimination of
any discharge from a municipal separate sanitary sewer shall be
modified upon motion or request by any party to such consent
decree or court order, to extend to December 31, 2009, at a
minimum, any such deadlines, schedules, or timetables,
including any interim deadlines, schedules, or timetables as is
necessary to conform to the policy developed under paragraph
(1) or otherwise achieve the objectives of this subsection.''.
SEC. 409. ABANDONED MINES.
Section 402 (33 U.S.C. 1342) is further amended by inserting after
subsection (o) the following:
``(p) Permits for Remediating Party on Abandoned or Inactive Mined
Lands.--
``(1) Applicability.--Subject to this subsection, including
the requirements of paragraph (3), the Administrator, with the
concurrence of the concerned State or Indian tribe, may issue a
permit to a remediating party under this section for discharges
associated with remediation activity at abandoned or inactive
mined lands which modifies any otherwise applicable requirement
of sections 301(b), 302, and 403, or any subsection of this
section (other than this subsection).
``(2) Application for a permit.--A remediating party who
desires to conduct remediation activities on abandoned or
inactive mined lands from which there is or may be a discharge
of pollutants to waters of the United States or from which
there could be a significant addition of pollutants from
nonpoint sources may submit an application to the
Administrator. The application shall consist of a remediation
plan and any other information requested by the Administrator
to clarify the plan and activities.
``(3) Remediation Plan.--The remediation plan shall include
(as appropriate and applicable) the following:
``(A) Identification of the remediating party,
including any persons cooperating with the concerned
State or Indian tribe with respect to the plan, and a
certification that the applicant is a remediating party
under this section.
``(B) Identification of the abandoned or inactive
mined lands addressed by the plan.
``(C) Identification of the waters of the United
States impacted by the abandoned or inactive mined
lands.
``(D) A description of the physical conditions at the
abandoned or inactive mined lands that are causing
adverse water quality impacts.
``(E) A description of practices, including system
design and construction plans and operation and
maintenance plans, proposed to reduce, control,
mitigate, or eliminate the adverse water quality
impacts and a schedule for implementing such practices
and, if it is an existing remediation project, a
description of practices proposed to improve the
project, if any.
``(F) An analysis demonstrating that the identified
practices are expected to result in a water quality
improvement for the identified waters.
``(G) A description of monitoring or other assessment
to be undertaken to evaluate the success of the
practices during and after implementation, including an
assessment of baseline conditions.
``(H) A schedule for periodic reporting on progress
in implementation of major elements of the plan.
``(I) A budget and identified funding to support the
activities described in the plan.
``(J) Remediation goals and objectives.
``(K) Contingency plans.
``(L) A description of the applicant's legal right to
enter and conduct activities.
``(M) The signature of the applicant.
``(N) Identification of the pollutant or pollutants
to be addressed by the plan.
``(4) Permits.--
``(A) Contents.--Permits issued by the Administrator
pursuant to this subsection shall--
``(i) provide for compliance with and
implementation of a remediation plan which,
following issuance of the permit, may be
modified by the applicant after providing
notification to and opportunity for review by
the Administrator;
``(ii) require that any modification of the
plan be reflected in a modified permit;
``(iii) require that if, at any time after
notice to the remediating party and opportunity
for comment by the remediating party, the
Administrator determines that the remediating
party is not implementing the approved
remediation plan in substantial compliance with
its terms, the Administrator shall notify the
remediating party of the determination together
with a list specifying the concerns of the
Administrator;
``(iv) provide that, if the identified
concerns are not resolved or a compliance plan
approved within 180 days of the date of the
notification, the Administrator may take action
under section 309 of this Act;
``(v) provide that clauses (iii) and (iv) not
apply in the case of any action under section
309 to address violations involving gross
negligence (including reckless, willful, or
wanton misconduct) or intentional misconduct by
the remediating party or any other person;
``(vi) not require compliance with any
limitation issued under sections 301(b), 302,
and 403 or any requirement established by the
Administrator under any subsection of this
section (other than this subsection); and
``(vii) provide for termination of coverage
under the permit without the remediating party
being subject to enforcement under sections 309
and 505 of this Act for any remaining
discharges--
``(I) after implementation of the
remediation plan;
``(II) if a party obtains a permit to
mine the site; or
``(III) upon a demonstration by the
remediating party that the surface
water quality conditions due to
remediation activities at the site,
taken as a whole, are equal to or
superior to the surface water qualities
that existed prior to initiation of
remediation.
``(B) Limitations.--The Administrator shall only
issue a permit under this section, consistent with the
provisions of this subsection, to a remediating party
for discharges associated with remediation action at
abandoned or inactive mined lands if the remediation
plan demonstrates with reasonable certainty that the
actions will result in an improvement in water quality.
``(C) Public participation.--The Administrator may
only issue a permit or modify a permit under this
section after complying with subsection (b)(3).
``(D) Effect of failure to comply with permit.--
Failure to comply with terms of a permit issued
pursuant to this subsection shall not be deemed to be a
violation of an effluent standard or limitation issued
under this Act.
``(E) Limitations on statutory construction.--This
subsection shall not be construed--
``(i) to limit or otherwise affect the
Administrator's powers under section 504; or
``(ii) to preclude actions pursuant to
section 309 or 505 for any violations of
sections 301(a), 302, 402, and 403 that may
have existed for the abandoned or inactive
mined land prior to initiation of remediation
covered by a permit issued under this
subsection, unless such permit covers
remediation activities implemented by the
permit holder prior to issuance of the permit.
``(5) Definitions.--In this subsection the following
definitions apply:
``(A) Remediating party.--The term `remediating
party' means--
``(i) the United States (on non-Federal
lands), a State or its political subdivisions,
or an Indian tribe or officers, employees, or
contractors thereof; and
``(ii) any person acting in cooperation with
a person described in clause (i), including a
government agency that owns abandoned or
inactive mined lands for the purpose of
conducting remediation of the mined lands or
that is engaging in remediation activities
incidental to the ownership of the lands.
Such term does not include any person who, before or
following issuance of a permit under this section,
directly benefited from or participated in any mining
operation (including exploration) associated with the
abandoned or inactive mined lands.
``(B) Abandoned or inactive mined lands.--The term
`abandoned or inactive mined lands' means lands that
were formerly mined and are not actively mined or in
temporary shutdown at the time of submission of the
remediation plan and issuance of a permit under this
section.
``(C) Mined lands.--The term `mined lands' means the
surface or subsurface of an area where mining
operations, including exploration, extraction,
processing, and beneficiation, have been conducted.
Such term includes private ways and roads appurtenant
to such area, land excavations, underground mine
portals, adits, and surface expressions associated with
underground workings, such as glory holes and
subsidence features, mining waste, smelting sites
associated with other mined lands, and areas where
structures, facilities, equipment, machines, tools, or
other material or property which result from or have
been used in the mining operation are located.
``(6) Regulations.--The Administrator may issue regulations
establishing more specific requirements that the Administrator
determines would facilitate implementation of this subsection.
Before issuance of such regulations, the Administrator may
establish, on a case-by-case basis after notice and opportunity
for public comment as provided by subsection (b)(3), more
specific requirements that the Administrator determines would
facilitate implementation of this subsection in an individual
permit issued to the remediating party.''.
SEC. 410. BENEFICIAL USE OF BIOSOLIDS.
(a) References.--Section 405(a) (33 U.S.C. 1345(a)) is amended by
inserting ``(also referred to as `biosolids')'' after ``sewage sludge''
the first place it appears.
(b) Approval of State Programs.--Section 405(f) (33 U.S.C. 1345(f))
is amended by adding at the end the following:
``(3) Approval of state programs.--Notwithstanding any other
provision of law, the Administrator shall approve for purposes
of this subsection State programs that meet the standards for
final use or disposal of sewage sludge established by the
Administrator pursuant to subsection (d).''.
(c) Studies and Projects.--Section 405(g) (33 U.S.C. 1345(g)) is
amended--
(1) in the first sentence of paragraph (1) by inserting
``building materials,'' after ``agricultural and horticultural
uses,'';
(2) in paragraph (1) by adding at the end the following:
``Not later than January 1, 1997, and after providing notice
and opportunity for public comment, the Administrator shall
issue guidance on the beneficial use of sewage sludge.''; and
(3) in paragraph (2) by striking ``September 30, 1986,'' and
inserting ``September 30, 1995,''.
SEC. 411. WASTE TREATMENT SYSTEMS DEFINED.
Title IV (33 U.S.C. 1341-1345) is further amended by adding at the
end the following:
``SEC. 406. WASTE TREATMENT SYSTEMS DEFINED.
``(a) Issuance of Regulations.--Not later than 1 year of the date of
the enactment of this section, the Administrator, after consultation
with State officials, shall issue a regulation defining `waste
treatment systems'.
``(b) Inclusion of Areas.--
``(1) Areas which may be included.--In defining the term
`waste treatment systems' under subsection (a), the
Administrator may include areas used for the treatment of
wastes if the Administrator determines that such inclusion will
not interfere with the goals of this Act.
``(2) Areas which shall be included.--In defining the term
`waste treatment systems' under subsection (a), the
Administrator shall include, at a minimum, areas used for
detention, retention, treatment, settling, conveyance, or
evaporation of wastewater, stormwater, or cooling water
unless--
``(A) the area was created in or resulted from the
impoundment or other modification of navigable waters
and construction of the area commenced after the date
of the enactment of this section;
``(B) on or after February 15, 1995, the owner or
operator allows the area to be used by interstate or
foreign travelers for recreational purposes; or
``(C) on or after February 15, 1995, the owner or
operator allows the taking of fish or shellfish from
the area for sale in interstate or foreign commerce.
``(c) Interim Period.--Before the date of issuance of regulations
under subsection (a), the Administrator or the State (in the case of a
State with an approved permit program under section 402) shall not
require a new permit under section 402 or section 404 for any discharge
into any area used for detention, retention, treatment, settling,
conveyance, or evaporation of wastewater, stormwater, or cooling water
unless the area is an area described in subsection (b)(2)(A),
(b)(2)(B), or (b)(2)(C).
``(d) Savings Clause.--Any area which the Administrator or the State
(in the case of a State with an approved permit program under section
402) determined, before February 15, 1995, is a water of the United
States and for which, pursuant to such determination, the Administrator
or State issued, before February 15, 1995, a permit under section 402
for discharges into such area shall remain a water of the United
States.
``(e) Regulation of Other Areas.--With respect to areas constructed
for detention, retention, treatment, settling, conveyance, or
evaporation of wastewater, stormwater, or cooling water that are not
waste treatment systems as defined by the Administrator pursuant to
this section and that the Administrator determines are navigable waters
under this Act, the Administrator or the States, in establishing
standards pursuant to section 303(c) of this Act or implementing other
requirements of this Act, shall give due consideration to the uses for
which such areas were designed and constructed, and need not establish
standards or other requirements that will impede such uses.''.
SEC. 412. THERMAL DISCHARGES.
A municipal utility that before the date of the enactment of this
section has been issued a permit under section 402 of the Federal Water
Pollution Control Act for discharges into the Upper Greater Miami
River, Ohio, shall not be required under such Act to construct a
cooling tower or operate under a thermal management plan unless--
(1) the Administrator or the State of Ohio determines based
on scientific evidence that such discharges result in harm to
aquatic life; or
(2) the municipal utility has applied for and been denied a
thermal discharge variance under section 316(a) of such Act.
TITLE V--GENERAL PROVISIONS
SEC. 501. CONSULTATION WITH STATES.
Section 501 (33 U.S.C. 1361) is amended by adding at the end the
following new subsection:
``(g) Consultation With States.--
``(1) In general.--The Administrator shall consult with and
substantially involve State governments and their
representative organizations and, to the extent that they
participate in the administration of this Act, tribal and local
governments, in the Environmental Protection Agency's
decisionmaking, priority setting, policy and guidance
development, and implementation under this Act.
``(2) Inapplicability of federal advisory committee act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not apply
to meetings held to carry out paragraph (1)--
``(A) if such meetings are held exclusively between
Federal officials and elected officers of State, local,
and tribal governments (or their designated employees
with authority to act on their behalf) acting in their
official capacities; and
``(B) if such meetings are solely for the purposes of
exchanging views, information, or advice relating to
the management or implementation of this Act.
``(3) Implementing guidelines.--No later than 6 months after
the date of the enactment of this paragraph, the Administrator
shall issue guidelines for appropriate implementation of this
subsection consistent with applicable laws and regulations.''.
SEC. 502. NAVIGABLE WATERS DEFINED.
Section 502(7) (33 U.S.C. 1362(7)) is amended by adding at the end
the following: ``Such term does not include `waste treatment systems',
as defined under section 406.''.
SEC. 503. CAFO DEFINITION CLARIFICATION.
Section 502(14) (33 U.S.C. 1362(14)) is further amended--
(1) by inserting ``(other than an intermittent nonproducing
livestock operation such as a stockyard or a holding and
sorting facility)'' after ``feeding operation''; and
(2) by adding at the end the following: ``The term does
include an intermittent nonproducing livestock operation if the
average number of animal units that are fed or maintained in
any 90-day period exceeds the number of animal units determined
by the Administrator or the State (in the case of a State with
an approved permit program under section 402) to constitute a
concentrated animal feeding operation or if the operation is
designated by the Administrator or State as a significant
contributor of pollution.''.
SEC. 504. PUBLICLY OWNED TREATMENT WORKS DEFINED.
Section 502 (33 U.S.C. 1362) is further amended by adding at the end
the following:
``(27) The term `publicly owned treatment works' means a treatment
works, as defined in section 212, located at other than an industrial
facility, which is designed and constructed principally, as determined
by the Administrator, to treat domestic sewage or a mixture of domestic
sewage and industrial wastes of a liquid nature. In the case of such a
facility that is privately owned, such term includes only those
facilities that, with respect to such industrial wastes, are carrying
out a pretreatment program meeting all the requirements established
under section 307 and paragraphs (8) and (9) of section 402(b) for
pretreatment programs (whether or not the treatment works would be
required to implement a pretreatment program pursuant to such
sections).''.
SEC. 505. STATE WATER QUANTITY RIGHTS.
(a) Policy.--Section 101(g) (33 U.S.C. 1251(g)) is amended by
inserting before the period at the end of the last sentence ``and in
accordance with section 510(b) of this Act''.
(b) State Authority.--Section 510 (33 U.S.C. 1370) is amended--
(1) by striking the section heading and ``Sec. 510. Except''
and inserting the following:
``SEC. 510. STATE AUTHORITY.
``(a) In General.--Except''; and
(2) by adding at the end the following new subsection:
``(b) Water Rights.--Nothing in this Act shall be construed to
supersede, abrogate, or otherwise impair any right or authority of a
State to allocate quantities of water (including boundary waters).
Nothing in this Act shall be implemented, enforced, or construed to
allow any officer or agency of the United States to utilize directly or
indirectly the authorities established under this Act to impose any
requirement not imposed by the State which would supersede, abrogate,
or otherwise impair rights to the use of water resources allocated
under State law, interstate water compact, or Supreme Court decree, or
held by the United States for use by a State, its political
subdivisions, or its citizens. No water rights arise in the United
States or any other person under the provisions of this Act. This
subsection shall not be construed as limiting any State's authority
under section 401 of this Act, as excusing any person from obtaining a
permit under section 402 or 404 of this Act, or as excusing any
obligation to comply with requirements established by a State to
implement section 319.''.
SEC. 506. IMPLEMENTATION OF WATER POLLUTION LAWS WITH RESPECT TO
VEGETABLE OIL.
(a) Differentiation Among Fats, Oils, and Greases.--
(1) In general.--In issuing or enforcing a regulation, an
interpretation, or a guideline relating to a fat, oil, or
grease under a Federal law related to water pollution control,
the head of a Federal agency shall--
(A) differentiate between and establish separate
classes for--
(i)(I) animal fats; and
(II) vegetable oils; and
(ii) other oils, including petroleum oil; and
(B) apply different standards and reporting
requirements (including reporting requirements based on
quantitative amounts) to different classes of fat and
oil as provided in paragraph (2).
(2) Considerations.--In differentiating between the classes
of animal fats and vegetable oils referred to in paragraph
(1)(A)(i) and the classes of oils described in paragraph
(1)(A)(ii), the head of the Federal agency shall consider
differences in physical, chemical, biological, and other
properties, and in the environmental effects, of the classes.
(b) Definitions.--In this section, the following definitions apply:
(1) Animal fat.--The term ``animal fat'' means each type of
animal fat, oil, or grease, including fat, oil, or grease from
fish or a marine mammal and any fat, oil, or grease referred to
in section 61(a)(2) of title 13, United States Code.
(2) Vegetable oil.--The term ``vegetable oil'' means each
type of vegetable oil, including vegetable oil from a seed,
nut, or kernel and any vegetable oil referred to in section
61(a)(1) of title 13, United States Code.
SEC. 507. NEEDS ESTIMATE.
Section 516(b)(1) (33 U.S.C. 1375(b)(1)) is amended--
(1) in the first sentence by striking ``biennially revised''
and inserting ``quadrennially revised''; and
(2) in the second sentence by striking ``February 10 of each
odd-numbered year'' and inserting ``December 31, 1997, and
December 31 of every 4th calendar year thereafter''.
SEC. 508. GENERAL PROGRAM AUTHORIZATIONS.
Section 517 (33 U.S.C. 1376) is amended--
(1) by striking ``and'' before ``$135,000,000''; and
(2) by inserting before the period at the end the following:
``, and such sums as may be necessary for each of fiscal years
1991 through 2000''.
SEC. 509. INDIAN TRIBES.
(a) Cooperative Agreements.--Section 518(d) (33 U.S.C. 1377(d)) is
amended by adding at the end the following: ``In exercising the review
and approval provided in this paragraph, the Administrator shall
respect the terms of any cooperative agreement that addresses the
authority or responsibility of a State or Indian tribe to administer
the requirements of this Act within the exterior boundaries of a
Federal Indian reservation, so long as that agreement otherwise
provides for the adequate administration of this Act.''.
(b) Dispute Resolution.--Section 518 is amended--
(1) by redesignating subsection (h) as subsection (j); and
(2) by inserting after subsection (g) the following new
subsection:
``(h) Dispute Resolution.--The Administrator shall promulgate, in
consultation with States and Indian tribes, regulations which provide
for the resolution of any unreasonable consequences that may arise as a
result of differing water quality standards that may be set by States
and Indian tribes located on common bodies of water. Such mechanism
shall provide, in a manner consistent with the objectives of this Act,
that persons who are affected by differing tribal or State water
quality permit requirements have standing to utilize the dispute
resolution process, and for the explicit consideration of relevant
factors, including the effects of differing water quality permit
requirements on upstream and downstream dischargers, economic impacts,
and present and historical uses and quality of the waters subject to
such standards.''.
(c) Petitions for Review.--Section 518 (33 U.S.C. 1377) is amended by
inserting after subsection (h) (as added by subsection (b) of this
section) the following:
``(i) District Courts; Petition for Review; Standard of Review.--
Notwithstanding the provisions of section 509, the United States
district courts shall have jurisdiction over actions brought to review
any determination of the Administrator under section 518. Such an
action may be brought by a State or an Indian tribe and shall be filed
with the court within the 90-day period beginning on the date of the
determination of the Administrator is made. In any such action, the
district court shall review the Administrator's determination de
novo.''.
(d) Definitions.--Section 518(j)(1), as redesignated by subsection
(b) of this section, is amended by inserting before the semicolon at
the end the following: ``, and, in the State of Oklahoma, such term
includes lands held in trust by the United States for the benefit of an
Indian tribe or an individual member of an Indian tribe, lands which
are subject to Federal restrictions against alienation, and lands which
are located within a dependent Indian community, as defined in section
1151 of title 18, United States Code''.
(e) Reservation of Funds.--Section 518(c) (33 U.S.C. 1377(c)) is
amended in the first sentence--
(1) by striking ``beginning after September 30, 1986,'';
(2) by striking ``section 205(e)'' and inserting ``section
604(a)'';
(3) by striking ``one-half of''; and
(4) by striking ``section 207'' and inserting ``sections 607
and 608''.
SEC. 510. FOOD PROCESSING AND FOOD SAFETY.
Title V (33 U.S.C. 1361-1377) is amended by redesignating section 519
as section 521 and by inserting after section 518 the following:
``SEC. 519. FOOD PROCESSING AND FOOD SAFETY.
``In developing any effluent guideline under section 304(b),
pretreatment standard under section 307(b), or new source performance
standard under section 306 that is applicable to the food processing
industry, the Administrator shall consult with and consider the
recommendations of the Food and Drug Administration, Department of
Health and Human Services, Department of Agriculture, and Department of
Commerce. The recommendations of such departments and agencies and a
description of the Administrator's response to those recommendations
shall be made part of the rulemaking record for the development of such
guidelines and standards. The Administrator's response shall include an
explanation with respect to food safety, including a discussion of
relative risks, of any departure from a recommendation by any such
department or agency.''.
SEC. 511. AUDIT DISPUTE RESOLUTION.
Title V (33 U.S.C. 1361-1377) is further amended by inserting before
section 521, as redesignated by section 510 of this Act, the following:
``SEC. 520. AUDIT DISPUTE RESOLUTION.
``(a) Establishment of Board.--The Administrator shall establish an
independent Board of Audit Appeals (hereinafter in this section
referred to as the `Board') in accordance with the requirements of this
section.
``(b) Duties.--The Board shall have the authority to review and
decide contested audit determinations related to grant and contract
awards under this Act. In carrying out such duties, the Board shall
consider only those regulations, guidance, policies, facts, and
circumstances in effect at the time of the grant or contract award.
``(c) Prior Eligibility Decisions.--The Board shall not reverse
project cost eligibility determinations that are supported by an
decision document of the Environmental Protection Agency, including
grant or contract approvals, plans and specifications approval forms,
grant or contract payments, change order approval forms, or similar
documents approving project cost eligibility, except upon a showing
that such decision was arbitrary, capricious, or an abuse of law in
effect at the time of such decision.
``(d) Membership.--
``(1) Appointment.--The Board shall be composed of 7 members
to be appointed by the Administrator not later than 90 days
after the date of the enactment of this section.
``(2) Terms.--Each member shall be appointed for a term of 3
years.
``(3) Qualifications.--The Administrator shall appoint as
members of the Board individuals who are specially qualified to
serve on the Board by virtue of their expertise in grant and
contracting procedures. The Administrator shall make every
effort to ensure that individuals appointed as members of the
Board are free from conflicts of interest in carrying out the
duties of the Board.
``(e) Basic Pay and Travel Expenses.--
``(1) Rates of pay.--Except as provided in paragraph (2),
members shall each be paid at a rate of basic pay, to be
determined by the Administrator, for each day (including travel
time) during which they are engaged in the actual performance
of duties vested in the Board.
``(2) Prohibition of compensation of federal employees.--
Members of the Board who are full-time officers or employees of
the United States may not receive additional pay, allowances,
or benefits by reason of their service on the Board.
``(3) Travel expenses.--Each member shall receive travel
expenses, including per diem in lieu of subsistence, in
accordance with sections 5702 and 5703 of title 5, United
States Code.
``(f) Administrative Support Services.--Upon the request of the
Board, the Administrator shall provide to the Board the administrative
support services necessary for the Board to carry out its
responsibilities under this section.
``(g) Disputes Eligible for Review.--The authority of the Board under
this section shall extend to any contested audit determination that on
the date of the enactment of this section has yet to be formally
concluded and accepted by either the grantee or the Administrator.''.
TITLE VI--STATE WATER POLLUTION CONTROL REVOLVING FUNDS
SEC. 601. GENERAL AUTHORITY FOR CAPITALIZATION GRANTS.
Section 601(a) (33 U.S.C. 1381(a)) is amended by striking ``(1) for
construction'' and all that follows through the period and inserting
``to accomplish the purposes of this Act.''.
SEC. 602. CAPITALIZATION GRANT AGREEMENTS.
(a) Requirements For Construction of Treatment Works.--Section
602(b)(6) (33 U.S.C. 1382(b)(6)) is amended--
(1) by striking ``before fiscal year 1995''; and
(2) by striking ``201(b)'' and all that follows through
``218'' and inserting ``211''.
(b) Compliance With Other Federal Laws.--Section 602 (33 U.S.C. 1382)
is amended by adding at the end the following:
``(c) Other Federal Laws.--
``(1) Compliance with other federal laws.--If a State
provides assistance from its water pollution control revolving
fund established in accordance with this title and in
accordance with a statute, rule, executive order, or program of
the State which addresses the intent of any requirement or any
Federal executive order or law other than this Act, as
determined by the State, the State in providing such assistance
shall be treated as having met the Federal requirements.
``(2) Limitation on applicability of other federal laws.--If
a State does not meet a requirement of a Federal executive
order or law other than this Act under paragraph (1), such
Federal law shall only apply to Federal funds deposited in the
water pollution control revolving fund established by the State
in accordance with this title the first time such funds are
used to provide assistance from the revolving fund.''.
(c) Guidance for Small Systems.--Section 602 (33 U.S.C. 1382) is
amended by adding at the end the following new subsection:
``(d) Guidance for Small Systems.--
``(1) Simplified procedures.--Not later than 1 year after the
date of the enactment of this subsection, the Administrator
shall assist the States in establishing simplified procedures
for small systems to obtain assistance under this title.
``(2) Publication of manual.--Not later than 1 year after the
date of the enactment of this subsection, and after providing
notice and opportunity for public comment, the Administrator
shall publish a manual to assist small systems in obtaining
assistance under this title and publish in the Federal Register
notice of the availability of the manual.
``(3) Small system defined.--For purposes of this title, the
term `small system' means a system for which a municipality or
intermunicipal, interstate, or State agency seeks assistance
under this title and which serves a population of 20,000 or
less.''.
SEC. 603. WATER POLLUTION CONTROL REVOLVING LOAN FUNDS.
(a) Activities Eligible for Assistance.--Section 603(c) (33 U.S.C.
1383(c)) is amended to read as follows:
``(c) Activities Eligible for Assistance.--
``(1) In general.--The amounts of funds available to each
State water pollution control revolving fund shall be used only
for providing financial assistance to activities which have as
a principal benefit the improvement or protection of water
quality to a municipality, intermunicipal agency, interstate
agency, State agency, or other person. Such activities may
include the following:
``(A) Construction of a publicly owned treatment
works if the recipient of such assistance is a
municipality.
``(B) Implementation of lake protection programs and
projects under section 314.
``(C) Implementation of a management program under
section 319.
``(D) Implementation of a conservation and management
plan under section 320.
``(E) Implementation of a watershed management plan
under section 321.
``(F) Implementation of a stormwater management
program under section 322.
``(G) Acquisition of property rights for the
restoration or protection of publicly or privately
owned riparian areas.
``(H) Implementation of measures to improve the
efficiency of public water use.
``(I) Development and implementation of plans by a
public recipient to prevent water pollution.
``(J) Acquisition of lands necessary to meet any
mitigation requirements related to construction of a
publicly owned treatment works.
``(2) Fund amounts.--The water pollution control revolving
fund of a State shall be established, maintained, and credited
with repayments, and the fund balance shall be available in
perpetuity for providing financial assistance described in
paragraph (1). Fees charged by a State to recipients of such
assistance may be deposited in the fund for the sole purpose of
financing the cost of administration of this title.''.
(b) Extended Repayment Period for Disadvantaged Communities.--Section
603(d)(1) (33 U.S.C. 1383(d)(1)) is amended--
(1) in subparagraph (A) by inserting after ``20 years'' the
following: ``or, in the case of a disadvantaged community, the
lesser of 40 years or the expected life of the project to be
financed with the proceeds of the loan''; and
(2) in subparagraph (B) by striking ``not later than 20 years
after project completion'' and inserting ``upon the expiration
of the term of the loan''.
(c) Loan Guarantees for Innovative Technology.--Section 603(d)(5) (33
U.S.C. 1383(d)(5)) is amended to read as follows:
``(5) to provide loan guarantees for--
``(A) similar revolving funds established by
municipalities or intermunicipal agencies; and
``(B) developing and implementing innovative
technologies.''.
(d) Administrative Expenses.--Section 603(d)(7) (33 U.S.C.
1383(d)(7)) is amended by inserting before the period at the end the
following: ``or $400,000 per year, whichever is greater, plus the
amount of any fees collected by the State for such purpose under
subsection (c)(2)''.
(e) Technical and Planning Assistance for Small Systems.--Section
603(d) (33 U.S.C. 1383(d)) is amended--
(1) by striking ``and'' at the end of paragraph (6);
(2) by striking the period at the end of paragraph (7) and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(8) to provide to small systems technical and planning
assistance and assistance in financial management, user fee
analysis, budgeting, capital improvement planning, facility
operation and maintenance, repair schedules, and other
activities to improve wastewater treatment plant operations;
except that such amounts shall not exceed 2 percent of all
grant awards to such fund under this title.''.
(f) Consistency With Planning Requirements.--Section 603(f) (33
U.S.C. 1383(f)) is amended by striking ``and 320'' and inserting ``320,
321, and 322''.
(g) Limitations on Construction Assistance.--Section 603(g) (33
U.S.C. 1383(g)) is amended to read as follows:
``(g) Limitations on Construction Assistance.--The State may provide
financial assistance from its water pollution control revolving fund
with respect to a project for construction of a treatment works only
if--
``(1) such project is on the State's priority list under
section 216 of this Act; and
``(2) the recipient of such assistance is a municipality in
any case in which the treatment works is privately owned.''.
(h) Interest Rates.--Section 603 is further amended by adding at the
end the following:
``(i) Interest Rates.--In any case in which a State makes a loan
pursuant to subsection (d)(1) to a disadvantaged community, the State
may charge a negative interest rate of not to exceed 2 percent to
reduce the unpaid principal of the loan. The aggregate amount of all
such negative interest rate loans the State makes in a fiscal year
shall not exceed 20 percent of the aggregate amount of all loans made
by the State from its revolving loan fund in such fiscal year.
``(j) Disadvantaged Community Defined.--As used in this section, the
term `disadvantaged community' means the service area of a publicly
owned treatment works with respect to which the average annual
residential sewage treatment charges for a user of the treatment works
meet affordability criteria established by the State in which the
treatment works is located (after providing for public review and
comment) in accordance with guidelines to be established by the
Administrator, in cooperation with the States.''.
(i) Sale of Treatment Works.--Section 603 is further amended by
adding at the end the following:
``(k) Sale of Treatment Works.--
``(1) In general.--Notwithstanding any other provisions of
this Act, any State, municipality, intermunicipality, or
interstate agency may transfer by sale to a qualified private
sector entity all or part of a treatment works that is owned by
such agency and for which it received Federal financial
assistance under this Act if the transfer price will be
distributed, as amounts are received, in the following order:
``(A) First reimbursement of the agency of the
unadjusted dollar amount of the costs of construction
of the treatment works or part thereof plus any
transaction and fix-up costs incurred by the agency
with respect to the transfer less the amount of such
Federal financial assistance provided with respect to
such costs.
``(B) If proceeds from the transfer remain after such
reimbursement, repayment of the Federal Government of
the amount of such Federal financial assistance less
the applicable share of accumulated depreciation on
such treatment works (calculated using Internal Revenue
Service accelerated depreciation schedule applicable to
treatment works).
``(C) If any proceeds of such transfer remain after
such reimbursement and repayment, retention of the
remaining proceeds by such agency.
``(2) Release of condition.--Any requirement imposed by
regulation or policy for a showing that the treatment works are
no longer needed to serve their original purpose shall not
apply.
``(3) Selection of buyer.--A State, municipality,
intermunicipality, or interstate agency exercising the
authority granted by this subsection shall select a qualified
private sector entity on the basis of total net cost and other
appropriate criteria and shall utilize such competitive
bidding, direct negotiation, or other criteria and procedures
as may be required by State law.
``(l) Private Ownership of Treatment Works.--
``(1) Regulatory review.--The Administrator shall review the
law and any regulations, policies, and procedures of the
Environmental Protection Agency affecting the construction,
improvement, replacement, operation, maintenance, and transfer
of ownership of current and future treatment works owned by a
State, municipality, intermunicipality, or interstate agency.
If permitted by law, the Administrator shall modify such
regulations, policies, and procedures to eliminate any
obstacles to the construction, improvement, replacement,
operation, and maintenance of such treatment works by qualified
private sector entities.
``(2) Report.--Not later than 180 days after the date of
enactment of this subsection, the Administrator shall submit to
Congress a report identifying any provisions of law that must
be changed in order to eliminate any obstacles referred to in
paragraph (1).
``(3) Definition.--For purposes of this section, the term
`qualified private sector entity' means any nongovernmental
individual, group, association, business, partnership,
organization, or privately or publicly held corporation that--
``(A) has sufficient experience and expertise to
discharge successfully the responsibilities associated
with construction, operation, and maintenance of a
treatment works and to satisfy any guarantees that are
agreed to in connection with a transfer of treatment
works under subsection (k);
``(B) has the ability to assure protection against
insolvency and interruption of services through
contractual and financial guarantees; and
``(C) with respect to subsection (k), to the extent
consistent with the North American Free Trade Agreement
and the General Agreement on Tariffs and Trade--
``(i) is majority-owned and controlled by
citizens of the United States; and
``(ii) does not receive subsidies from a
foreign government.''.
SEC. 604. ALLOTMENT OF FUNDS.
(a) In General.--Section 604(a) (33 U.S.C. 1384(a)) is amended to
read as follows:
``(a) Formula for Fiscal Years 1996-2000.--Sums authorized to be
appropriated pursuant to section 607 for each of fiscal years 1996,
1997, 1998, 1999, and 2000 shall be allotted for such year by the
Administrator not later than the 10th day which begins after the date
of the enactment of the Clean Water Amendments of 1995. Sums authorized
for each such fiscal year shall be allotted in accordance with the
following table:
Percentage of sums
``States: authorized:
Alabama....................................... 1.0110
Alaska........................................ 0.5411
Arizona....................................... 0.7464
Arkansas...................................... 0.5914
California.................................... 7.9031
Colorado...................................... 0.7232
Connecticut................................... 1.3537
Delaware...................................... 0.4438
District of Columbia.......................... 0.4438
Florida....................................... 3.4462
Georgia....................................... 1.8683
Hawaii........................................ 0.7002
Idaho......................................... 0.4438
Illinois...................................... 4.9976
Indiana....................................... 2.6631
Iowa.......................................... 1.2236
Kansas........................................ 0.8690
Kentucky...................................... 1.3570
Louisiana..................................... 1.0060
Maine......................................... 0.6999
Maryland...................................... 2.1867
Massachusetts................................. 3.7518
Michigan...................................... 3.8875
Minnesota..................................... 1.6618
Mississippi................................... 0.8146
Missouri...................................... 2.5063
Montana....................................... 0.4438
Nebraska...................................... 0.4624
Nevada........................................ 0.4438
New Hampshire................................. 0.9035
New Jersey.................................... 4.5156
New Mexico.................................... 0.4438
New York...................................... 12.1969
North Carolina................................ 1.9943
North Dakota.................................. 0.4438
Ohio.......................................... 5.0898
Oklahoma...................................... 0.7304
Oregon........................................ 1.2399
Pennsylvania.................................. 4.2145
Rhode Island.................................. 0.6071
South Carolina................................ 0.9262
South Dakota.................................. 0.4438
Tennessee..................................... 1.4668
Texas......................................... 4.6458
Utah.......................................... 0.4764
Vermont....................................... 0.4438
Virginia...................................... 2.2615
Washington.................................... 1.9217
West Virginia................................. 1.4249
Wisconsin..................................... 2.4442
Wyoming....................................... 0.4438
Puerto Rico................................... 1.1792
Northern Marianas............................. 0.0377
American Samoa................................ 0.0812
Guam.......................................... 0.0587
Pacific Islands Trust Territory............... 0.1158
Virgin Islands................................ 0.0576.''.
(b) Conforming Amendment.--Section 604(c)(2) is amended by striking
``title II of this Act'' and inserting ``this title''.
SEC. 605. AUTHORIZATION OF APPROPRIATIONS.
Section 607 (33 U.S.C. 1387(a)) is amended--
(1) by striking ``and'' at the end of paragraph (4);
(2) by striking the period at the end of paragraph (5) and
inserting a semicolon; and
(3) by adding at the end the following:
``(6) such sums as may be necessary for fiscal year 1995;
``(7) $2,500,000,000 for fiscal year 1996;
``(8) $2,500,000,000 for fiscal year 1997;
``(9) $2,500,000,000 for fiscal year 1998;
``(10) $2,500,000,000 for fiscal year 1999; and
``(11) $2,500,000,000 for fiscal year 2000.''.
SEC. 606. STATE NONPOINT SOURCE WATER POLLUTION CONTROL REVOLVING
FUNDS.
Title VI (33 U.S.C. 1381-1387) is amended--
(1) in section 607 by inserting after ``title'' the
following: ``(other than section 608)''; and
(2) by adding at the end the following:
``SEC. 608. STATE NONPOINT SOURCE WATER POLLUTION CONTROL REVOLVING
FUNDS.
``(a) General Authority.--The Administrator shall make capitalization
grants to each State for the purpose of establishing a nonpoint source
water pollution control revolving fund for providing assistance--
``(1) to persons for carrying out management practices and
measures under the State management program approved under
section 319; and
``(2) to agricultural producers for the development and
implementation of the water quality components of a whole farm
or ranch resource management plan and for implementation of
management practices and measures under such a plan.
A State nonpoint source water pollution control revolving fund shall be
separate from any other State water pollution control revolving fund;
except that the chief executive officer of the State may transfer funds
from one fund to the other fund.
``(b) Applicability of Other Requirements of This Title.--Except to
the extent the Administrator, in consultation with the chief executive
officers of the States, determines that a provision of this title is
not consistent with a provision of this section, the provisions of
sections 601 through 606 of this title shall apply to grants made under
this section in the same manner and to the same extent as they apply to
grants made under section 601 of this title. Paragraph (5) of section
602(b) shall apply to all funds in a State revolving fund established
under this section as a result of capitalization grants made under this
section; except that such funds shall first be used to assure
reasonable progress toward attainment of the goals of section 319, as
determined by the Governor of the State. Paragraph (7) of section
603(d) shall apply to a State revolving fund established under this
section, except that the 4-percent limitation contained in such section
shall not apply to such revolving fund.
``(c) Apportionment of Funds.--Funds made available to carry out this
section for any fiscal year shall be allotted among the States by the
Administrator in the same manner as funds are allotted among the States
under section 319 in such fiscal year.
``(d) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $500,000,000 per fiscal year for
each of fiscal years 1996 through 2000.''.
TITLE VII--MISCELLANEOUS PROVISIONS
SEC. 701. TECHNICAL AMENDMENTS.
(a) Section 118.--Section 118(c)(1)(A) (33 U.S.C. 1268(c)(1)(A)) is
amended by striking the last comma.
(b) Section 120.--Section 120(d) (33 U.S.C. 1270(d)) is amended by
striking ``(1)''.
(c) Section 204.--Section 204(a)(3) (33 U.S.C. 1284(a)(3)) is amended
by striking the final period and inserting a semicolon.
(d) Section 205.--Section 205 (33 U.S.C. 1285) is amended--
(1) in subsection (c)(2) by striking ``and 1985'' and
inserting ``1985, and 1986'';
(2) in subsection (c)(2) by striking ``through 1985'' and
inserting ``through 1986'';
(3) in subsection (g)(1) by striking the period following ``4
per centum''; and
(4) in subsection (m)(1)(B) by striking ``this'' the last
place it appears and inserting ``such''.
(e) Section 208.--Section 208 (33 U.S.C. 1288) is amended--
(1) in subsection (h)(1) by striking ``designed'' and
inserting ``designated''; and
(2) in subsection (j)(1) by striking ``September 31, 1988''
and inserting ``September 30, 1988''.
(f) Section 301.--Section 301(j)(1)(A) (33 U.S.C. 1311(j)(1)(A)) is
amended by striking ``that'' the first place it appears and inserting
``than''.
(g) Section 309.--Section 309(d) (33 U.S.C. 1319(d)) is amended by
striking the second comma following ``Act by a State''.
(h) Section 311.--Section 311 (33 U.S.C. 1321) is amended--
(1) in subsection (b) by moving paragraph (12) (including
subparagraphs (A), (B) and (C)) 2 ems to the right; and
(2) in subsection (h)(2) by striking ``The'' and inserting
``the''.
(i) Section 505.--Section 505(f) (33 U.S.C. 1365(f)) is amended by
striking the last comma.
(j) Section 516.--Section 516 (33 U.S.C. 1375) is amended by
redesignating subsection (g) as subsection (f).
(k) Section 518.--Section 518(f) (33 U.S.C. 1377(f)) is amended by
striking ``(d)'' and inserting ``(e)''.
SEC. 702. JOHN A. BLATNIK NATIONAL FRESH WATER QUALITY RESEARCH
LABORATORY.
(a) Designation.--The laboratory and research facility established
pursuant to section 104(e) of the Federal Water Pollution Control Act
(33 U.S.C. 1254(e)) that is located in Duluth, Minnesota, shall be
known and designated as the ``John A. Blatnik National Fresh Water
Quality Research Laboratory''.
(b) References.--Any reference in a law, map, regulation, document,
paper, or other record of the United States to the laboratory and
research facility referred to in subsection (a) shall be deemed to be a
reference to the ``John A. Blatnik National Fresh Water Quality
Research Laboratory''.
SEC. 703. WASTEWATER SERVICE FOR COLONIAS.
(a) Grant Assistance.--The Administrator may make grants to States
along the United States-Mexico border to provide assistance for
planning, design, and construction of treatment works to provide
wastewater service to the communities along such border commonly known
as ``colonias''.
(b) Federal Share.--The Federal share of the cost of a project
carried out using funds made available under subsection (a) shall be 50
percent. The non-Federal share of such cost shall be provided by the
State receiving the grant.
(c) Treatment Works Defined.--For purposes of this section, the term
``treatment works'' has the meaning such term has under section 212 of
the Federal Water Pollution Control Act.
(d) Authorization of Appropriations.--There is authorized to be
appropriated for making grants under subsection (a) $50,000,000 for
fiscal year 1996. Such sums shall remain available until expended.
SEC. 704. SAVINGS IN MUNICIPAL DRINKING WATER COSTS.
(a) Study.--The Administrator of the Environmental Protection Agency,
in consultation with the Director of the Office of Management and
Budget, shall review, analyze, and compile information on the annual
savings that municipalities realize in the construction, operation, and
maintenance of drinking water facilities as a result of actions taken
under the Federal Water Pollution Control Act.
(b) Contents.--The study conducted under subsection (a), at a
minimum, shall contain an examination of the following elements:
(1) Savings to municipalities in the construction of drinking
water filtration facilities resulting from actions taken under
the Federal Water Pollution Control Act.
(2) Savings to municipalities in the operation and
maintenance of drinking water facilities resulting from actions
taken under such Act.
(3) Savings to municipalities in health expenditures
resulting from actions taken under such Act.
(c) Report.--Not later than 1 year after the date of the enactment of
this Act, the Administrator shall transmit to Congress a report
containing the results of the study conducted under subsection (a).
TITLE VIII--WETLANDS CONSERVATION AND MANAGEMENT
SEC. 801. SHORT TITLE.
This title may be cited as the ``Comprehensive Wetlands Conservation
and Management Act of 1995''.
SEC. 802. FINDINGS AND STATEMENT OF PURPOSE.
(a) Findings.--Congress finds that--
(1) wetlands play an integral role in maintaining the quality
of life through material contributions to our national economy,
food supply, water supply and quality, flood control, and fish,
wildlife, and plant resources, and thus to the health, safety,
recreation and economic well-being of citizens throughout the
Nation;
(2) wetlands serve important ecological and natural resource
functions, such as providing essential nesting and feeding
habitat for waterfowl, other wildlife, and many rare and
endangered species, fisheries habitat, the enhancement of water
quality, and natural flood control;
(3) much of the Nation's resource has sustained significant
degradation, resulting in the need for effective programs to
limit the loss of ecologically significant wetlands and to
provide for long-term restoration and enhancement of the
wetlands resource base;
(4) most of the loss of wetlands in coastal Louisiana is not
attributable to human activity;
(5) because 75 percent of the Nation's wetlands in the lower
48 States are privately owned and because the majority of the
Nation's population lives in or near wetlands areas, an
effective wetlands conservation and management program must
reflect a balanced approach that conserves and enhances
important wetlands values and functions while observing private
property rights, recognizing the need for essential public
infrastructure, such as highways, ports, airports, pipelines,
sewer systems, and public water supply systems, and providing
the opportunity for sustained economic growth;
(6) while wetlands provide many varied economic and
environmental benefits, they also present health risks in some
instances where they act as breeding grounds for insects that
are carriers of human and animal diseases;
(7) the Federal permit program established under section 404
of the Federal Water Pollution Control Act was not originally
conceived as a wetlands regulatory program and is insufficient
to ensure that the Nation's wetlands resource base will be
conserved and managed in a fair and environmentally sound
manner; and
(8) navigational dredging plays a vital role in the Nation's
economy and, while adequate safeguards for aquatic resources
must be maintained, it is essential that the regulatory process
be streamlined.
(b) Purpose.--The purpose of this title is to establish a new Federal
regulatory program for certain wetlands and waters of the United
States--
(1) to assert Federal regulatory jurisdiction over a broad
category of specifically identified activities that result in
the degradation or loss of wetlands;
(2) to provide that each Federal agency, officer, and
employee exercise Federal authority under section 404 of the
Federal Water Pollution Control Act to ensure that agency
action under such section will not limit the use of privately
owned property so as to diminish its value;
(3) to account for variations in wetlands functions in
determining the character and extent of regulation of
activities occurring in wetlands areas;
(4) to provide sufficient regulatory incentives for
conservation, restoration, or enhancement activities;
(5) to encourage conservation of resources on a watershed
basis to the fullest extent practicable;
(6) to protect public safety and balance public and private
interests in determining the conditions under which activity in
wetlands areas may occur; and
(7) to streamline the regulatory mechanisms relating to
navigational dredging in the Nation's waters.
SEC. 803. WETLANDS CONSERVATION AND MANAGEMENT.
Title IV (33 U.S.C. 1341 et seq.) is further amended by striking
section 404 and inserting the following new section:
``SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WATERS OF THE UNITED
STATES.
``(a) Prohibited Activities.--No person shall undertake an activity
in wetlands or waters of the United States unless such activity is
undertaken pursuant to a permit issued by the Secretary or is otherwise
authorized under this section.
``(b) Authorized Activities.--
``(1) Permits.--The Secretary is authorized to issue permits
authorizing an activity in wetlands or waters of the United
States in accordance with the requirements of this section.
``(2) Nonpermit activities.--An activity in wetlands or
waters of the United States may be undertaken without a permit
from the Secretary if that activity is authorized under
subsection (e)(6) or (e)(8) or is exempt from the requirements
of this section under subsection (f) or other provisions of
this section.
``(c) Wetlands Classification.--
``(1) Regulations; applications.--
``(A) Deadline for issuance of regulations.--Not
later than 1 year after the date of the enactment of
the Comprehensive Wetlands Conservation and Management
Act of 1995, the Secretary shall issue regulations to
classify wetlands as type A, type B, or type C wetlands
depending on the relative ecological significance of
the wetlands.
``(B) Application requirement.--Any person seeking to
undertake activities in wetlands or waters of the
United States for which a permit is required under this
section shall make application to the Secretary
identifying the site of such activity and requesting
that the Secretary determine, in accordance with
paragraph (3) of this subsection, the classification of
the wetlands in which such activity is proposed to
occur. The applicant may also provide such additional
information regarding such proposed activity as may be
necessary or appropriate for purposes of determining
the classification of such wetlands or whether and
under what conditions the proposed activity may be
permitted to occur.
``(2) Deadlines for classifications.--
``(A) General rule.--Except as provided in
subparagraph (B) of this paragraph, within 90 days
following the receipt of an application under paragraph
(1), the Secretary shall provide notice to the
applicant of the classification of the wetlands that
are the subject of such application and shall state in
writing the basis for such classification. The
classification of the wetlands that are the subject of
the application shall be determined by the Secretary in
accordance with the requirements for classification of
wetlands under paragraph (3) and subsection (i).
``(B) Rule for advance classifications.--In the case
of an application proposing activities located in
wetlands that are the subject of an advance
classification under subsection (h), the Secretary
shall provide notice to the applicant of such
classification within thirty days following the receipt
of such application, and shall provide an opportunity
for review of such classification under paragraph (5)
and subsection (i).
``(3) Classification system.--Upon application under this
subsection, the Secretary shall--
``(A) classify as type A wetlands those wetlands that
are of critical significance to the long-term
conservation of the aquatic environment of which such
wetlands are a part and which meet the following
requirements:
``(i) such wetlands serve critical wetlands
functions, including the provision of critical
habitat for a concentration of avian, aquatic,
or wetland dependent wildlife;
``(ii) such wetlands consist of or may be a
portion of ten or more contiguous acres and
have an inlet or outlet for relief of water
flow; except that this requirement shall not
operate to preclude the classification as type
A wetlands lands containing prairie pothole
features, playa lakes, or vernal pools if such
lands otherwise meet the requirements for type
A classification under this paragraph;
``(iii) there exists a scarcity within the
watershed or aquatic environment of identified
functions served by such wetlands such that the
use of such wetlands for an activity in
wetlands or waters of the United States would
seriously jeopardize the availability of these
identified wetlands functions; and
``(iv) there is unlikely to be an overriding
public interest in the use of such wetlands for
purposes other than conservation;
``(B) classify as type B wetlands those wetlands that
provide habitat for a significant population of wetland
dependent wildlife or provide other significant
wetlands functions, including significant enhancement
or protection of water quality or significant natural
flood control; and
``(C) classify as type C wetlands all wetlands that--
``(i) serve limited wetlands functions;
``(ii) serve marginal wetlands functions but
which exist in such abundance that regulation
of activities in such wetlands is not necessary
for conserving important wetlands functions;
``(iii) are prior converted cropland;
``(iv) are fastlands; or
``(v) are wetlands within industrial,
commercial, or residential complexes or other
intensely developed areas that do not serve
significant wetlands functions as a result of
such location.
``(4) Request for determination of jurisdiction.--
``(A) In general.--A person who holds an ownership
interest in property, or who has written authorization
from such a person, may submit a request to the
Secretary identifying the property and requesting the
Secretary to make one or more of the following
determinations with respect to the property:
``(i) Whether the property contains waters of
the United States.
``(ii) If the determination under clause (i)
is made, whether any portion of the waters
meets the requirements for delineation as
wetland under subsection (g).
``(iii) If the determination under clause
(ii) is made, the classification of each
wetland on the property under this subsection.
``(B) Provision of information.--The person shall
provide such additional information as may be necessary
to make each determination requested under subparagraph
(A).
``(C) Determination and notification by the
secretary.--Not later than 90 days after receipt of a
request under subparagraph (A), the Secretary shall--
``(i) notify the person submitting the
request of each determination made by the
Secretary pursuant to the request; and
``(ii) provide written documentation of each
determination and the basis for each
determination.
``(D) Authority to seek immediate review.--Any person
authorized under this paragraph to request a
jurisdictional determination may seek immediate
judicial review of any such jurisdictional
determination or may proceed under subsection (i).
``(5) De novo determination after advance classification.--
Within 30 days of receipt of notice of an advance
classification by the Secretary under paragraph (2)(B) of this
subsection, an applicant may request the Secretary to make a de
novo determination of the classification of wetlands that are
the subject of such notice.
``(d) Right to Compensation.--
``(1) In general.--The Federal Government shall compensate an
owner of property whose use of any portion of that property has
been limited by an agency action under this section that
diminishes the fair market value of that portion by 20 percent
or more. The amount of the compensation shall equal the
diminution in value that resulted from the agency action. If
the diminution in value of a portion of that property is
greater than 50 percent, at the option of the owner, the
Federal Government shall buy that portion of the property for
its fair market value.
``(2) Duration of limitation on use.--Property with respect
to which compensation has been paid under this section shall
not thereafter be used contrary to the limitation imposed by
the agency action, even if that action is later rescinded or
otherwise vitiated. However, if that action is later rescinded
or otherwise vitiated, and the owner elects to refund the
amount of the compensation, adjusted for inflation, to the
Treasury of the United States, the property may be so used.
``(3) Effect of state law.--If a use is a nuisance as defined
by the law of a State or is already prohibited under a local
zoning ordinance, no compensation shall be made under this
section with respect to a limitation on that use.
``(4) Exceptions.--
``(A) Prevention of hazard to health or safety or
damage to specific property.--No compensation shall be
made under this section with respect to an agency
action the primary purpose of which is to prevent an
identifiable--
``(i) hazard to public health or safety; or
``(ii) damage to specific property other than
the property whose use is limited.
``(B) Navigation servitude.--No compensation shall be
made under this section with respect to an agency
action pursuant to the Federal navigation servitude, as
defined by the courts of the United States, except to
the extent such servitude is interpreted to apply to
wetlands.
``(5) Procedure.--
``(A) Request of owner.--An owner seeking
compensation under this section shall make a written
request for compensation to the agency whose agency
action resulted in the limitation. No such request may
be made later than 180 days after the owner receives
actual notice of that agency action.
``(B) Negotiations.--The agency may bargain with that
owner to establish the amount of the compensation. If
the agency and the owner agree to such an amount, the
agency shall promptly pay the owner the amount agreed
upon.
``(C) Choice of remedies.--If, not later than 180
days after the written request is made, the parties do
not come to an agreement as to the right to and amount
of compensation, the owner may choose to take the
matter to binding arbitration or seek compensation in a
civil action.
``(D) Arbitration.--The procedures that govern the
arbitration shall, as nearly as practicable, be those
established under title 9, United States Code, for
arbitration proceedings to which that title applies. An
award made in such arbitration shall include a
reasonable attorney's fee and other arbitration costs
(including appraisal fees). The agency shall promptly
pay any award made to the owner.
``(E) Civil action.--An owner who does not choose
arbitration, or who does not receive prompt payment
when required by this section, may obtain appropriate
relief in a civil action against the agency. An owner
who prevails in a civil action under this section shall
be entitled to, and the agency shall be liable for, a
reasonable attorney's fee and other litigation costs
(including appraisal fees). The court shall award
interest on the amount of any compensation from the
time of the limitation.
``(F) Source of payments.--Any payment made under
this section to an owner and any judgment obtained by
an owner in a civil action under this section shall,
notwithstanding any other provision of law, be made
from the annual appropriation of the agency whose
action occasioned the payment or judgment. If the
agency action resulted from a requirement imposed by
another agency, then the agency making the payment or
satisfying the judgment may seek partial or complete
reimbursement from the appropriated funds of the other
agency. For this purpose the head of the agency
concerned may transfer or reprogram any appropriated
funds available to the agency. If insufficient funds
exist for the payment or to satisfy the judgment, it
shall be the duty of the head of the agency to seek the
appropriation of such funds for the next fiscal year.
``(6) Limitation.--Notwithstanding any other provision of
law, any obligation of the United States to make any payment
under this section shall be subject to the availability of
appropriations.
``(7) Duty of notice to owners.--Whenever an agency takes an
agency action limiting the use of private property, the agency
shall give appropriate notice to the owners of that property
directly affected explaining their rights under this section
and the procedures for obtaining any compensation that may be
due to them under this section.
``(8) Rules of construction.--
``(A) Effect on constitutional right to
compensation.--Nothing in this section shall be
construed to limit any right to compensation that
exists under the Constitution, laws of the United
States, or laws of any State.
``(B) Effect of payment.--Payment of compensation
under this section (other than when the property is
bought by the Federal Government at the option of the
owner) shall not confer any rights on the Federal
Government other than the limitation on use resulting
from the agency action.
``(9) Treatment of certain actions.--A diminution in value
under this subsection shall apply to surface interests in lands
only or water rights allocated under State law; except that--
``(A) if the Secretary determines that the
exploration for or development of oil and gas or
mineral interests is not compatible with limitations on
use related to the surface interests in lands that have
been classified as type A or type B wetlands located
above such oil and gas or mineral interests (or located
adjacent to such oil and gas or mineral interests where
such adjacent lands are necessary to provide reasonable
access to such interests), the Secretary shall notify
the owner of such interests that the owner may elect to
receive compensation for such interests under paragraph
(1); and
``(B) the failure to provide reasonable access to oil
and gas or mineral interests located beneath or
adjacent to surface interests of type A or type B
wetlands shall be deemed a diminution in value of such
oil and gas or mineral interests.
``(10) Jurisdiction.--The arbitrator or court under paragraph
(5)(D) or (5)(E) of this subsection, as the case may be, shall
have jurisdiction, in the case of oil and gas or mineral
interests, to require the United States to provide reasonable
access in, across, or through lands that may be the subject of
a diminution in value under this subsection solely for the
purpose of undertaking activity necessary to determine the
value of the interests diminished and to provide other
equitable remedies deemed appropriate.
``(11) Limitations on statutory construction.--No action
under this subsection shall be construed--
``(A) to impose any obligation on any State or
political subdivision thereof to compensate any person,
even in the event that the Secretary has approved a
land management plan under subsection (f)(2) or an
individual and general permit program under subsection
(l); or
``(B) to alter or supersede requirements governing
use of water applicable under State law.
``(e) Requirements Applicable to Permitted Activity.--
``(1) Issuance or denial of permits.--Following the
determination of wetlands classification pursuant to subsection
(c) if applicable, and after compliance with the requirements
of subsection (d) if applicable, the Secretary may issue or
deny permits for authorization to undertake activities in
wetlands or waters of the United States in accordance with the
requirements of this subsection.
``(2) Type a wetlands.--
``(A) Sequential analysis.--The Secretary shall
determine whether to issue a permit for an activity in
waters of the United States classified under subsection
(c) as type A wetlands based on a sequential analysis
that seeks, to the maximum extent practicable, to--
``(i) avoid adverse impact on the wetlands;
``(ii) minimize such adverse impact on
wetlands functions that cannot be avoided; and
``(iii) compensate for any loss of wetland
functions that cannot be avoided or minimized.
``(B) Mitigation terms and conditions.--Any permit
issued authorizing activities in type A wetlands may
contain such terms and conditions concerning mitigation
(including those applicable under paragraph (3) for
type B wetlands) that the Secretary deems appropriate
to prevent the unacceptable loss or degradation of type
A wetlands. The Secretary shall deem the mitigation
requirement of this section to be met with respect to
activities in type A wetlands if such activities (i)
are carried out in accordance with a State-approved
reclamation plan or permit which requires recontouring
and revegetation following mining, and (ii) will result
in overall environmental benefits being achieved.
``(3) Type b wetlands.--
``(A) General rule.--The Secretary may issue a permit
authorizing activities in type B wetlands if the
Secretary finds that issuance of the permit is in the
public interest, balancing the reasonably foreseeable
benefits and detriments resulting from the issuance of
the permit. The permit shall be subject to such terms
and conditions as the Secretary finds are necessary to
carry out the purposes of the Comprehensive Wetlands
Conservation and Management Act of 1995. In determining
whether or not to issue the permit and whether or not
specific terms and conditions are necessary to avoid a
significant loss of wetlands functions, the Secretary
shall consider the following factors:
``(i) The quality and quantity of significant
functions served by the areas to be affected.
``(ii) The opportunities to reduce impacts
through cost effective design to minimize use
of wetlands areas.
``(iii) The costs of mitigation requirements
and the social, recreational, and economic
benefits associated with the proposed activity,
including local, regional, or national needs
for improved or expanded infrastructure,
minerals, energy, food production, or
recreation.
``(iv) The ability of the permittee to
mitigate wetlands loss or degradation as
measured by wetlands functions.
``(v) The environmental benefit, measured by
wetlands functions, that may occur through
mitigation efforts, including restoring,
preserving, enhancing, or creating wetlands
values and functions.
``(vi) The marginal impact of the proposed
activity on the watershed of which such
wetlands are a part.
``(vii) Whether the impact on the wetlands is
temporary or permanent.
``(B) Determination of project purpose.--In
considering an application for activities on type B
wetlands, there shall be a rebuttable presumption that
the project purpose as defined by the applicant shall
be binding upon the Secretary. The definition of
project purpose for projects sponsored by public
agencies shall be binding upon the Secretary, subject
to the authority of the Secretary to impose mitigation
requirements to minimize impacts on wetlands values and
functions, including cost effective redesign of
projects on the proposed project site.
``(C) Mitigation requirements.--Except as otherwise
provided in this section, requirements for mitigation
shall be imposed when the Secretary finds that
activities undertaken under this section will result in
the loss or degradation of type B wetlands functions
where such loss or degradation is not a temporary or
incidental impact. When determining mitigation
requirements in any specific case, the Secretary shall
take into consideration the type of wetlands affected,
the character of the impact on wetland functions,
whether any adverse effects on wetlands are of a
permanent or temporary nature, and the cost
effectiveness of such mitigation and shall seek to
minimize the costs of such mitigation. Such mitigation
requirement shall be calculated based upon the specific
impact of a particular project. The Secretary shall
deem the mitigation requirement of this section to be
met with respect to activities in type B wetlands if
such activities (i) are carried out in accordance with
a State-approved reclamation plan or permit which
requires recontouring and revegetation following
mining, and (ii) will result in overall environmental
benefits being achieved.
``(D) Rules governing mitigation.--In accordance with
subsection (j), the Secretary shall issue rules
governing requirements for mitigation for activities
occurring in wetlands that allow for--
``(i) minimization of impacts through project
design in the proposed project site consistent
with the project's purpose, provisions for
compensatory mitigation, if any, and other
terms and conditions necessary and appropriate
in the public interest;
``(ii) preservation or donation of type A
wetlands or type B wetlands (where title has
not been acquired by the United States and no
compensation under subsection (d) for such
wetlands has been provided) as mitigation for
activities that alter or degrade wetlands;
``(iii) enhancement or restoration of
degraded wetlands as compensation for wetlands
lost or degraded through permitted activity;
``(iv) creation of wetlands as compensation
for wetlands lost or degraded through permitted
activity if conditions are imposed that have a
reasonable likelihood of being successful;
``(v) compensation through contribution to a
mitigation bank program established pursuant to
paragraph (4);
``(vi) offsite compensatory mitigation if
such mitigation contributes to the restoration,
enhancement or creation of significant wetlands
functions on a watershed basis and is balanced
with the effects that the proposed activity
will have on the specific site; except that
offsite compensatory mitigation, if any, shall
be required only within the State within which
the proposed activity is to occur, and shall,
to the extent practicable, be within the
watershed within which the proposed activity is
to occur, unless otherwise consistent with a
State wetlands management plan;
``(vii) contribution of in-kind value
acceptable to the Secretary and otherwise
authorized by law;
``(viii) in areas subject to wetlands loss,
the construction of coastal protection and
enhancement projects;
``(ix) contribution of resources of more than
one permittee toward a single mitigation
project; and
``(x) other mitigation measures, including
contributions of other than in-kind value
referred to in clause (vii), determined by the
Secretary to be appropriate in the public
interest and consistent with the requirements
and purposes of this Act.
``(E) Limitations on requiring mitigation.--
Notwithstanding the provisions of subparagraph (C), the
Secretary may determine not to impose requirements for
compensatory mitigation if the Secretary finds that--
``(i) the adverse impacts of a permitted
activity are limited;
``(ii) the failure to impose compensatory
mitigation requirements is compatible with
maintaining wetlands functions;
``(iii) no practicable and reasonable means
of mitigation are available;
``(iv) there is an abundance of similar
significant wetlands functions and values in or
near the area in which the proposed activity is
to occur that will continue to serve the
functions lost or degraded as a result of such
activity, taking into account the impacts of
such proposed activity and the cumulative
impacts of similar activity in the area;
``(v) the temporary character of the impacts
and the use of minimization techniques make
compensatory mitigation unnecessary to protect
significant wetlands values; or
``(vi) a waiver from requirements for
compensatory mitigation is necessary to prevent
special hardship.
``(4) Mitigation banks.--
``(A) Establishment.--Not later than 6 months after
the date of the enactment of this subparagraph, after
providing notice and opportunity for public review and
comment, the Secretary shall issue regulations for the
establishment, use, maintenance, and oversight of
mitigation banks. The regulations shall be developed in
consultation with the heads of other appropriate
Federal agencies.
``(B) Provisions and requirements.--The regulations
issued pursuant to subparagraph (A) shall ensure that
each mitigation bank--
``(i) provides for the chemical, physical,
and biological functions of wetlands or waters
of the United States which are lost as a result
of authorized adverse impacts to wetlands or
other waters of the United States;
``(ii) to the extent practicable and
environmentally desirable, provides in-kind
replacement of lost wetlands functions and be
located in, or in proximity to, the same
watershed or designated geographic area as the
affected wetlands or waters of the United
States;
``(iii) be operated by a public or private
entity which has the financial capability to
meet the requirements of this paragraph,
including the deposit of a performance bond or
other appropriate demonstration of financial
responsibility to support the long-term
maintenance of the bank, fulfill
responsibilities for long-term monitoring,
maintenance, and protection, and provide for
the long-term security of ownership interests
of wetlands and uplands on which projects are
conducted to protect the wetlands functions
associated with the mitigation bank;
``(iv) employ consistent and scientifically
sound methods to determine debits by evaluating
wetlands functions, project impacts, and
duration of the impact at the sites of proposed
permits for authorized activities pursuant to
this section and to determine credits based on
wetlands functions at the site of the
mitigation bank;
``(v) provide for the transfer of credits for
mitigation that has been performed and for
mitigation that shall be performed within a
designated time in the future, provided that
financial bonds shall be posted in sufficient
amount to ensure that the mitigation will be
performed in the case of default; and
``(vi) provide opportunity for public notice
of and comment on proposals for the mitigation
banks; except that any process utilized by a
mitigation bank to obtain a permit authorizing
operations under this section before the date
of the enactment of the Comprehensive Wetlands
Conservation and Management Act of 1995
satisfies the requirement for such public
notice and comment.
``(5) Procedures and deadlines for final action.--
``(A) Opportunity for public comment.--Not later than
15 days after receipt of a complete application for a
permit under this section, together with information
necessary to consider such application, the Secretary
shall publish notice that the application has been
received and shall provide opportunity for public
comment and, to the extent appropriate, opportunity for
a public hearing on the issuance of the permit.
``(B) General procedures.--In the case of any
application for authorization to undertake activities
in wetlands or waters of the United States that are not
eligible for treatment on an expedited basis pursuant
to paragraph (8), final action by the Secretary shall
occur within 90 days following the date such
application is filed, unless--
``(i) the Secretary and the applicant agree
that such final action shall occur within a
longer period of time;
``(ii) the Secretary determines that an
additional, specified period of time is
necessary to permit the Secretary to comply
with other applicable Federal law; except that
if the Secretary is required under the National
Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.) to prepare an environmental
impact statement, with respect to the
application, the final action shall occur not
later than 45 days following the date such
statement is filed; or
``(iii) the Secretary, within 15 days from
the date such application is received, notifies
the applicant that such application does not
contain all information necessary to allow the
Secretary to consider such application and
identifies any necessary additional
information, in which case, the provisions of
subparagraph (C) shall apply.
``(C) Special rule when additional information is
required.--Upon the receipt of a request for additional
information under subparagraph (B)(iii), the applicant
shall supply such additional information and shall
advise the Secretary that the application contains all
requested information and is therefore complete. The
Secretary may--
``(i) within 30 days of the receipt of notice
of the applicant that the application is
complete, determine that the application does
not contain all requested additional
information and, on that basis, deny the
application without prejudice to resubmission;
or
``(ii) within 90 days from the date that the
applicant provides notification to the
Secretary that the application is complete,
review the application and take final action.
``(D) Effect of not meeting deadline.--If the
Secretary fails to take final action on an application
under this paragraph within 90 days from the date that
the applicant provides notification to the Secretary
that such application is complete, a permit shall be
presumed to be granted authorizing the activities
proposed in such application under such terms and
conditions as are stated in such completed application.
``(6) Type c wetlands.--Activities in wetlands that have been
classified as type C wetlands by the Secretary may be
undertaken without authorization required under subsection (a)
of this section.
``(7) States with substantial conserved wetlands.--
``(A) In general.--With respect to type A and type B
wetlands in States with substantial conserved wetlands
areas, at the option of the permit applicant, the
Secretary shall issue permits authorizing activities in
such wetlands pursuant to this paragraph. Final action
on issuance of such permits shall be in accordance with
the procedures and deadlines of paragraph (5). The
Secretary may include conditions or requirements for
minimization of adverse impacts to wetlands functions
when minimization is economically practicable. No
permit to which this paragraph applies shall include
conditions, requirements, or standards for mitigation
to compensate for adverse impacts to wetlands or waters
of the United States or conditions, requirements, or
standards for avoidance of adverse impacts to wetlands
or waters of the United States.
``(B) Economic base lands.--Upon application by the
owner of economic base lands in a State with
substantial conserved wetlands areas, the Secretary
shall issue individual and general permits to owners of
such lands for activities in wetlands or waters of the
United States. The Secretary shall reduce the
requirements of subparagraph (A)--
``(i) to allow economic base lands to be
beneficially used to create and sustain
economic activity; and
``(ii) in the case of lands owned by Alaska
Native entities, to reflect the social and
economic needs of Alaska Natives to utilize
economic base lands.
The Secretary shall consult with and provide assistance
to the Alaska Natives (including Alaska Native
Corporations) in promulgation and administration of
policies and regulations under this section.
``(8) General permits.--
``(A) General authority.--The Secretary may issue, by
rule in accordance with subsection (j), general permits
on a programmatic, State, regional, or nationwide basis
for any category of activities involving an activity in
wetlands or waters of the United States if the
Secretary determines that such activities are similar
in nature and that such activities, when performed
separately and cumulatively, will not result in the
significant loss of ecologically significant wetlands
values and functions.
``(B) Procedures.--Permits issued under this
paragraph shall include procedures for expedited review
of eligibility for such permits (if such review is
required) and may include requirements for reporting
and mitigation. To the extent that a proposed activity
requires a determination by the Secretary as to the
eligibility to qualify for a general permit under this
subsection, such determination shall be made within 30
days of the date of submission of the application for
such qualification, or the application shall be treated
as being approved.
``(C) Compensatory mitigation.--Requirements for
compensatory mitigation for general permits may be
imposed where necessary to offset the significant loss
or degradation of significant wetlands functions where
such loss or degradation is not a temporary or
incidental impact. Such compensatory mitigation shall
be calculated based upon the specific impact of a
particular project.
``(D) Grandfather of existing general permits.--
General permits in effect on day before the date of the
enactment of the Comprehensive Wetlands Conservation
and Management Act of 1995 shall remain in effect until
otherwise modified by the Secretary.
``(E) States with substantial conserved lands.--Upon
application by a State or local authority in a State
with substantial conserved wetlands areas, the
Secretary shall issue a general permit applicable to
such authority for activities in wetlands or waters of
the United States. No permit issued pursuant to this
subparagraph shall include conditions, requirements, or
standards for mitigation to compensate for adverse
impacts to wetlands or waters of the United States or
shall include conditions, requirements, or standards
for avoidance of adverse impacts of wetlands or waters
of the United States.
``(9) Other waters of the united states.--The Secretary may
issue a permit authorizing activities in waters of the United
States (other than those classified as type A, B, or C wetlands
under this section) if the Secretary finds that issuance of the
permit is in the public interest, balancing the reasonably
foreseeable benefits and detriments resulting from the issuance
of the permit. The permit shall be subject to such terms and
conditions as the Secretary finds are necessary to carry out
the purposes of the Comprehensive Wetlands Conservation and
Management Act of 1995. In determining whether or not to issue
the permit and whether or not specific terms and conditions are
necessary to carry out such purposes, the Secretary shall
consider the factors set forth in paragraph (3)(A) as they
apply to nonwetlands areas and such other provisions of
paragraph (3) as the Secretary determines are appropriate to
apply to nonwetlands areas.
``(f) Activities not Requiring Permit.--
``(1) In general.--Activities undertaken in any wetlands or
waters of the United States are exempt from the requirements of
this section and are not prohibited by or otherwise subject to
regulation under this section or section 301 or 402 of this Act
(except effluent standards or prohibitions under section 307 of
this Act) if such activities--
``(A) result from normal farming, silviculture,
aquaculture, and ranching activities and practices,
including but not limited to plowing, seeding,
cultivating, haying, grazing, normal maintenance
activities, minor drainage, burning of vegetation in
connection with such activities, harvesting for the
production of food, fiber, and forest products, or
upland soil and water conservation practices;
``(B) are for the purpose of maintenance, including
emergency reconstruction of recently damaged parts, of
currently serviceable structures such as dikes, dams,
levees, flood control channels or other engineered
flood control facilities, water control structures,
water supply reservoirs (where such maintenance
involves periodic water level drawdowns) which provide
water predominantly to public drinking water systems,
groins, riprap, breakwaters, utility distribution and
transmission lines, causeways, and bridge abutments or
approaches, and transportation structures;
``(C) are for the purpose of construction or
maintenance of farm, stock or aquaculture ponds,
wastewater retention facilities (including dikes and
berms) that are used by concentrated animal feeding
operations, or irrigation canals and ditches or the
maintenance of drainage ditches;
``(D) are for the purpose of construction of
temporary sedimentation basins on a construction site,
or the construction of any upland dredged material
disposal area, which does not include placement of fill
material into the navigable waters;
``(E) are for the purpose of construction or
maintenance of farm roads or forest roads, railroad
lines of up to 10 miles in length, or temporary roads
for moving mining equipment, access roads for utility
distribution and transmission lines if such roads or
railroad lines are constructed and maintained, in
accordance with best management practices, to assure
that flow and circulation patterns and chemical and
biological characteristics of the waters are not
impaired, that the reach of the waters is not reduced,
and that any adverse effect on the aquatic environment
will be otherwise minimized;
``(F) are undertaken on farmed wetlands, except that
any change in use of such land for the purpose of
undertaking activities that are not exempt from
regulation under this subsection shall be subject to
the requirements of this section to the extent that
such farmed wetlands are `wetlands' under this section;
``(G) result from any activity with respect to which
a State has an approved program under section 208(b)(4)
of this Act which meets the requirements of
subparagraphs (B) and (C) of such section;
``(H) are consistent with a State or local land
management plan submitted to the Secretary and approved
pursuant to paragraph (2);
``(I) are undertaken in connection with a marsh
management and conservation program in a coastal parish
in the State of Louisiana where such program has been
approved by the Governor of such State or the designee
of the Governor;
``(J) are undertaken on lands or involve activities
within a State's coastal zone which are excluded from
regulation under a State coastal zone management
program approved under the Coastal Zone Management Act
of 1972 (16 U.S.C. 1451, et seq.);
``(K) are undertaken in incidentally created
wetlands, unless such incidentally created wetlands
have exhibited wetlands functions and values for more
than 5 years in which case activities undertaken in
such wetlands shall be subject to the requirements of
this section;
``(L) are for the purpose of preserving and enhancing
aviation safety or are undertaken in order to prevent
an airport hazard;
``(M) result from aggregate or clay mining activities
in wetlands conducted pursuant to a State or Federal
permit that requires the reclamation of such affected
wetlands if such reclamation will be completed within 5
years of the commencement of activities at the site
and, upon completion of such reclamation, the wetlands
will support wetlands functions equivalent to the
functions supported by the wetlands at the time of
commencement of such activities;
``(N) are for the placement of a structural member
for a pile-supported structure, such as a pier or dock,
or for a linear project such as a bridge, transmission
or distribution line footing, powerline structure, or
elevated or other walkway;
``(O) are for the placement of a piling in waters of
the United States in a circumstance that involves--
``(i) a linear project described in
subparagraph (N); or
``(ii) a structure such as a pier, boathouse,
wharf, marina, lighthouse, or individual house
built on stilts solely to reduce the potential
of flooding;
``(P) are for the clearing (including mechanized
clearing) of vegetation within a right-of-way
associated with the development and maintenance of a
transmission or distribution line or other powerline
structure or for the maintenance of water supply
reservoirs which provide water predominantly to public
drinking water systems;
``(Q) are undertaken in or affecting waterfilled
depressions created in uplands incidental to
construction activity, or are undertaken in or
affecting pits excavated in uplands for the purpose of
obtaining fill, sand, gravel, aggregates, or minerals,
unless and until the construction or excavation
operation is abandoned; or
``(R) are undertaken in a State with substantial
conserved wetlands areas and--
``(i) are for purposes of providing critical
infrastructure, including water and sewer
systems, airports, roads, communication sites,
fuel storage sites, landfills, housing,
hospitals, medical clinics, schools, and other
community infrastructure;
``(ii) are for construction and maintenance
of log transfer facilities associated with log
transportation activities;
``(iii) are for construction of tailings
impoundments utilized for treatment facilities
(as determined by the development document) for
the mining subcategory for which the tailings
impoundment is constructed; or
``(iv) are for construction of ice pads and
ice roads and for purposes of snow storage and
removal.
``(2) State or local management plan.--Any State or political
subdivision thereof acting pursuant to State authorization may
develop a land management plan with respect to lands that
include identified wetlands. The State or local government
agency may submit any such plan to the Secretary for review and
approval. The Secretary shall, within 60 days, notify in
writing the designated State or local official of approval or
disapproval of any such plan. The Secretary shall approve any
plan that is consistent with the purposes of this section. No
person shall be entitled to judicial review of the decision of
the Secretary to approve or disapprove a land management plan
under this paragraph. Nothing in this paragraph shall be
construed to alter, limit, or supersede the authority of a
State or political subdivision thereof to establish land
management plans for purposes other than the provisions of this
subsection.
``(g) Rules for Delineating Wetlands.--
``(1) Standards.--
``(A) Issuance of rule.--The Secretary is authorized
and directed to establish standards, by rule in
accordance with subsection (j), that shall govern the
delineation of lands as `wetlands' for purposes of this
section. Such rules shall be established after
consultation with the heads of other appropriate
Federal agencies and shall be binding on all Federal
agencies in connection with the administration or
implementation of any provision of this section. The
standards for delineation of wetlands and any decision
of the Secretary, the Secretary of Agriculture (in the
case of agricultural lands and associated
nonagricultural lands), or any other Federal officer or
agency made in connection with the administration of
this section shall comply with the requirements for
delineation of wetlands set forth in subparagraphs (B)
and (C).
``(B) Exceptions.--The standards established by rule
or applied in any case for purposes of this section
shall ensure that lands are delineated as wetlands only
if such lands are found to be `wetlands' under section
502 of this Act; except that such standards may not--
``(i) result in the delineation of lands as
wetlands unless clear evidence of wetlands
hydrology, hydrophytic vegetation, and hydric
soil are found to be present during the period
in which such delineation is made, which
delineation shall be conducted during the
growing season unless otherwise requested by
the applicant;
``(ii) result in the classification of
vegetation as hydrophytic if such vegetation is
equally adapted to dry or wet soil conditions
or is more typically adapted to dry soil
conditions than to wet soil conditions;
``(iii) result in the classification of lands
as wetlands unless some obligate wetlands
vegetation is found to be present during the
period of delineation; except that if such
vegetation has been removed for the purpose of
evading jurisdiction under this section, this
clause shall not apply;
``(iv) result in the conclusion that wetlands
hydrology is present unless water is found to
be present at the surface of such lands for 21
consecutive days in the growing seasons in a
majority of the years for which records are
available; and
``(v) result in the classification of lands
as wetlands that are temporarily or
incidentally created as a result of adjacent
development activity.
``(C) Normal circumstances.--In addition to the
requirements of subparagraph (B), any standards
established by rule or applied to delineate wetlands
for purposes of this section shall provide that `normal
circumstances' shall be determined on the basis of the
factual circumstances in existence at the time a
classification is made under subsection (h) or at the
time of application under subsection (e), whichever is
applicable, if such circumstances have not been altered
by an activity prohibited under this section.
``(2) Land area cap for type a wetlands.--No more than 20
percent of any county, parish, or borough shall be classified
as type A wetlands. Type A wetlands in Federal or State
ownership (including type A wetlands in units of the National
Wildlife Refuge System, the National Park System, and lands
held in conservation easements) shall be included in
calculating the percent of type A wetlands in a county, parish,
or borough.
``(3) Agricultural lands.--
``(A) Delineation by secretary of agriculture.--For
purposes of this section, wetlands located on
agricultural lands and associated nonagricultural lands
shall be delineated solely by the Secretary of
Agriculture in accordance with section 1222(j) of the
Food Security Act of 1985 (16 U.S.C. 3822(j)).
``(B) Exemption of lands exempted under food security
act.--Any area of agricultural land or any activities
related to the land determined to be exempt from the
requirements of subtitle C of title XII of the Food
Security Act of 1985 (16 U.S.C. 3821 et seq.) shall
also be exempt from the requirements of this section
for such period of time as those lands are used as
agricultural lands.
``(C) Effect of appeal determination pursuant to food
security act.--Any area of agricultural land or any
activities related to the land determined to be exempt
pursuant to an appeal taken pursuant to subtitle C of
title XII of the Food Security Act of 1985 (16 U.S.C.
3821 et seq.) shall be exempt under this section for
such period of time as those lands are used as
agricultural lands.
``(h) Mapping and Public Notice Requirements.--
``(1) Provision of public notice.--Not later than 90 days
after the date of the enactment of the Comprehensive Wetlands
Conservation and Management Act of 1995, the Secretary shall
provide the court of each county, parish, or borough in which
the wetland subject to classification under subsection (c) is
located, a notice for posting near the property records of the
county, parish, or borough. The notice shall--
``(A) state that wetlands regulated under this
section may be located in the county, parish, or
borough;
``(B) provide an explanation understandable to the
general public of how wetlands are delineated and
classified;
``(C) describe the requirements and restrictions of
the regulatory program under this section; and
``(D) provide instructions on how to obtain a
delineation and classification of wetlands under this
section.
``(2) Provision of delineation determinations.--On completion
under this section of a delineation and classification of
property that contains wetlands or a delineation of property
that contains waters of the United States that are not
wetlands, the Secretary of Agriculture, in the case of wetlands
located on agricultural lands and associated nonagricultural
lands, and the Secretary, in the case of other lands, shall--
``(A) file a copy of the delineation, including the
classification of any wetland located on the property,
with the records of the property in the local
courthouse; and
``(B) serve a copy of the delineation determination
on every owner of the property on record and any person
with a recorded mortgage or lien on the property.
``(3) Notice of enforcement actions.--The Secretary shall
file notice of each enforcement action under this section taken
with respect to private property with the records of the
property in the local courthouse.
``(4) Wetlands identification and classification project.--
``(A) In general.--The Secretary and the Secretary of
Agriculture shall undertake a project to identify and
classify wetlands in the United States that are
regulated under this section. The Secretaries shall
complete such project not later than 10 years after the
date of the enactment of the Comprehensive Wetlands
Conservation and Management Act of 1995.
``(B) Applicability of delineation standards.--In
conducting the project under this section, the
Secretaries shall identify and classify wetlands in
accordance with standards for delineation of wetlands
established by the Secretaries under subsection (g).
``(C) Public hearings.--In conducting the project
under this section, the Secretaries shall provide
notice and an opportunity for a public hearing in each
county, parish or borough of a State before completion
of identification and classification of wetlands in
such county, parish, or borough.
``(D) Publication.--Promptly after completion of
identification and classification of wetlands in a
county, parish, or borough under this section, the
Secretaries shall have published information on such
identification and classification in the Federal
Register and in publications of wide circulation and
take other steps reasonably necessary to ensure that
such information is available to the public.
``(E) Reports.--The Secretaries shall report to
Congress on implementation of the project to be
conducted under this section not later than 2 years
after the date of the enactment of the Comprehensive
Wetlands Conservation and Management Act of 1995 and
annually thereafter.
``(F) Recordation.--Any classification of lands as
wetlands under this section shall, to the maximum
extent practicable, be recorded on the property records
in the county, parish, or borough in which such
wetlands are located.
``(i) Administrative Appeals.--
``(1) Regulations establishing procedures.--Not later than 1
year after the date of the enactment of the Comprehensive
Wetlands Conservation and Management Act of 1995, the Secretary
shall, after providing notice and opportunity for public
comment, issue regulations establishing procedures pursuant to
which--
``(A) a landowner may appeal a determination of
regulatory jurisdiction under this section with respect
to a parcel of the landowner's property;
``(B) a landowner may appeal a wetlands
classification under this section with respect to a
parcel of the landowner's property;
``(C) any person may appeal a determination that the
proposed activity on the landowner's property is not
exempt under subsection (f);
``(D) a landowner may appeal a determination that an
activity on the landowner's property does not qualify
under a general permit issued under this section;
``(E) an applicant for a permit under this section
may appeal a determination made pursuant to this
section to deny issuance of the permit or to impose a
requirement under the permit; and
``(F) a landowner or any other person required to
restore or otherwise alter a parcel of property
pursuant to an order issued under this section may
appeal such order.
``(2) Deadline for filing appeal.--An appeal brought pursuant
to this subsection shall be filed not later than 30 days after
the date on which the decision or action on which the appeal is
based occurs.
``(3) Deadline for decision.--An appeal brought pursuant to
this subsection shall be decided not later than 90 days after
the date on which the appeal is filed.
``(4) Participation in appeals process.--Any person who
participated in the public comment process concerning a
decision or action that is the subject of an appeal brought
pursuant to this subsection may participate in such appeal with
respect to those issues raised in the person's written public
comments.
``(5) Decisionmaker.--An appeal brought pursuant to this
subsection shall be heard and decided by an appropriate and
impartial official of the Federal Government, other than the
official who made the determination or carried out the action
that is the subject of the appeal.
``(6) Stay of penalties and mitigation.--A landowner or any
other person who has filed an appeal under this subsection
shall not be required to pay a penalty or perform mitigation or
restoration assessed under this section or section 309 until
after the appeal has been decided.
``(j) Administrative Provisions.--
``(1) Final regulations for issuance of permits.--Not later
than 1 year after the date of the enactment of the
Comprehensive Wetlands Conservation and Management Act of 1995,
the Secretary shall, after notice and opportunity for comment,
issue (in accordance with section 553 of title 5 of the United
States Code and this section) final regulations for
implementation of this section. Such regulations shall, in
accordance with this section, provide--
``(A) standards and procedures for the classification
and delineation of wetlands and procedures for
administrative review of any such classification or
delineation;
``(B) standards and procedures for the review of
State or local land management plans and State programs
for the regulation of wetlands;
``(C) for the issuance of general permits, including
programmatic, State, regional, and nationwide permits;
``(D) standards and procedures for the individual
permit applications under this section;
``(E) for enforcement of this section;
``(F) guidelines for the specification of sites for
the disposal of dredged or fill material for
navigational dredging; and
``(G) any other rules and regulations that the
Secretary deems necessary or appropriate to implement
the requirements of this section.
``(2) Navigational dredging guidelines.--Guidelines developed
under paragraph (1)(F) shall--
``(A) be based upon criteria comparable to the
criteria applicable to the territorial seas, the
contiguous zone, and the oceans under section 403(c);
and
``(B) ensure that with respect to the issuance of
permits under this section--
``(i) the least costly, environmentally
acceptable disposal alternative will be
selected, taking into consideration cost,
existing technology, short term and long term
dredging requirements, and logistics;
``(ii) a disposal site will be specified
after comparing reasonably available upland,
confined aquatic, beneficial use, and open
water disposal alternatives on the basis of
relative risk, environmental acceptability,
economics, practicability, and current
technological feasibility;
``(iii) a disposal site will be specified
after comparing the reasonably anticipated
environmental and economic benefits of
undertaking the underlying project to the
status quo; and
``(iv) in comparing alternatives and
selection of a disposal site, management
measures may be considered and utilized to
limit, to the extent practicable, adverse
environmental effects by employing suitable
chemical, biological, or physical techniques to
prevent unacceptable adverse impacts on the
environment.
``(3) Judicial review of final regulations.--Any judicial
review of final regulations issued pursuant to this section and
the Secretary's denial of any petition for the issuance,
amendment, or repeal of any regulation under this section shall
be in accordance with sections 701 through 706 of title 5 of
the United States Code; except that a petition for review of
action of the Secretary in issuing any regulation or
requirement under this section or denying any petition for the
issuance, amendment, or repeal of any regulation under this
section may be filed only in the United States Court of Appeals
for the District of Columbia, and such petition shall be filed
within 90 days from the date of such issuance or denial or
after such date if such petition for review is based solely on
grounds arising after such ninetieth day. Action of the
Secretary with respect to which review could have been obtained
under this subsection shall not be subject to judicial review
in civil or criminal proceedings for enforcement.
``(4) Interim regulations.--The Secretary shall, within 90
days after the date of the enactment of the Comprehensive
Wetlands Conservation and Management Act of 1995, issue interim
regulations consistent with this section to take effect
immediately. Notice of the interim regulations shall be
published in the Federal Register, and such regulations shall
be binding until the issuance of final regulations pursuant to
paragraph (1); except that the Secretary shall provide adequate
procedures for waiver of any provisions of such interim
regulations to avoid special hardship, inequity, or unfair
distribution of burdens or to advance the purposes of this
section.
``(5) Administration by secretary.--Except where otherwise
expressly provided in this section, the Secretary shall
administer this section. The Secretary or any other Federal
officer or agency in which any function under this section is
vested or delegated is authorized to perform any and all acts
(including appropriate enforcement activity), and to prescribe,
issue, amend, or rescind such rules or orders as such officer
or agency may find necessary or appropriate with this
subsection, subject to the requirements of this subsection.
``(k) Enforcement.--
``(1) Compliance order.--Whenever, on the basis of reliable
and substantial information and after reasonable inquiry, the
Secretary finds that any person is or may be in violation of
this section or of any condition or limitation set forth in a
permit issued by the Secretary under this section, the
Secretary shall issue an order requiring such persons to comply
with this section or with such condition or limitation.
``(2) Notice and other procedural requirements relating to
orders.--A copy of any order issued under this subsection shall
be sent immediately by the Secretary to the Governor of the
State in which the violation occurs and the Governors of other
affected States. The person committing the asserted violation
that results in issuance of the order shall be notified of the
issuance of the order by personal service made to the
appropriate person or corporate officer. The notice shall state
with reasonable specificity the nature of the asserted
violation and specify a time for compliance, not to exceed 30
days, which the Secretary determines is reasonable taking into
account the seriousness of the asserted violation and any good
faith efforts to comply with applicable requirements. If the
person receiving the notice disputes the Secretary's
determination, the person may file an appeal as provided in
subsection (i). Within 60 days of a decision which denies an
appeal, or within 150 days from the date of notification of
violation by the Secretary if no appeal is filed, the Secretary
shall prosecute a civil action in accordance with paragraph (3)
or rescind such order and be estopped from any further
enforcement proceedings for the same asserted violation.
``(3) Civil action enforcement.--The Secretary is authorized
to commence a civil action for appropriate relief, including a
permanent or temporary injunction, for any violation for which
the Secretary is authorized to issue a compliance order under
paragraph (1). Any action under this paragraph may be brought
in the district court of the United States for the district in
which the defendant is located or resides or is doing business,
and such court shall have jurisdiction to restrain such
violation and to require compliance. Notice of the commencement
of such action shall be given immediately to the appropriate
State.
``(4) Civil penalties.--Any person who violates any condition
or limitation in a permit issued by the Secretary under this
section and any person who violates any order issued by the
Secretary under paragraph (1) shall be subject to a civil
penalty not to exceed $25,000 per day for each violation
commencing on expiration of the compliance period if no appeal
is filed or on the 30th day following the date of the denial of
an appeal of such violation. The amount of the penalty imposed
per day shall be in proportion to the scale or scope of the
project. In determining the amount of a civil penalty, the
court shall consider the seriousness of the violation or
violations, the economic benefit (if any) resulting from the
violation, any history of such violations, any good-faith
efforts to comply with the applicable requirements, the
economic impact of the penalty on the violator, and such other
matters as justice may require.
``(5) Criminal penalties.--If any person knowingly and
willfully violates any condition or limitation in a permit
issued by the Secretary under this section or knowingly and
willfully violates an order issued by the Secretary under
paragraph (1) and has been notified of the issuance of such
order under paragraph (2) and if such violation has resulted in
actual degradation of the environment, such person shall be
punished by a fine of not less than $5,000 nor more than
$50,000 per day of violation, or by imprisonment for not more
than 3 years, or by both. If a conviction of a person is for a
violation committed after a first conviction of such person
under this paragraph, punishment shall be by a fine of not more
than $100,000 per day of violation, or imprisonment of not more
than 6 years, or by both. An action for imposition of a
criminal penalty under this paragraph may only be brought by
the Attorney General.
``(l) State Regulation.--
``(1) Submission of proposed state program.--The Governor of
any State desiring to administer its own individual or general
permit program for some or all of the activities covered by
this section within any geographical region within its
jurisdiction may submit to the Secretary a description of the
program it proposes to establish and administer under State law
or under an interstate compact. In addition, such State shall
submit a statement from the chief legal officer in the case of
the State or interstate agency, that the laws of such State, or
the interstate compact, as the case may be, provide adequate
authority to carry out the described program.
``(2) State authorities required for approval.--Not later
than 1 year after the date of the receipt by the Secretary of a
program and statement submitted by any State under paragraph
(1), the Secretary shall determine whether such State has the
following authority with respect to the issuance of permits
pursuant to such program:
``(A) to issue permits which--
``(i) apply, and assure compliance with, any
applicable requirements of this section; and
``(ii) can be terminated or modified for
cause, including--
``(I) violation of any condition of
the permit;
``(II) obtaining a permit by
misrepresentation, or failure to
disclose fully all relevant facts; or
``(III) change in any condition that
requires either a temporary or
permanent reduction or elimination of
the permitted activity;
``(B) to issue permits which apply, and ensure
compliance with, all applicable requirements of section
308 of this Act or to inspect, monitor, enter, and
require reports to at least the same extent as required
in section 308 of this Act;
``(C) to ensure that the public, and any other State
the waters of which may be affected, receive notice of
each application for a permit and to provide an
opportunity for public hearing before a ruling on each
such application;
``(D) to ensure that the Secretary receives notice of
each application for a permit and that, prior to any
action by the State, both the applicant for the permit
and the State have received from the Secretary
information with respect to any advance classification
applicable to wetlands that are the subject of such
application;
``(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 recommendation
to the permitting State with respect to any permit
application and, if any part of such written
recommendations are not accepted by the permitting
State, that the permitting State will notify such
affected State (and the Secretary) in writing of its
failure to so accept such recommendations together with
its reasons for doing so; and
``(F) to abate violations of the permit or the permit
program, including civil and criminal penalties and
other ways and means of enforcement.
``(3) Approval; resubmission.--If, with respect to a State
program submitted under paragraph (1) of this section, the
Secretary determines that the State--
``(A) has the authority set forth in paragraph (2),
the Secretary shall approve the program and so notify
such State and suspend the issuance of permits under
subsection (b) for activities with respect to which a
permit may be issued pursuant to the State program; or
``(B) does not have the authority set forth in
paragraph (2) of this subsection, the Secretary shall
so notify such State and provide a description of the
revisions or modifications necessary so that the State
may resubmit the program for a determination by the
Secretary under this subsection.
``(4) Effect of failure of secretary to make timely
decision.--If the Secretary fails to make a determination with
respect to any program submitted by a State under this
subsection within 1 year after the date of receipt of the
program, the program shall be treated as being approved
pursuant to paragraph (3)(A) and the Secretary shall so notify
the State and suspend the issuance of permits under subsection
(b) for activities with respect to which a permit may be issued
by the State.
``(5) Transfer of pending applications for permits.--If the
Secretary approves a State permit program under paragraph
(3)(A) or (4), the Secretary shall transfer any applications
for permits pending before the Secretary for activities with
respect to which a permit may be issued pursuant to the State
program to the State for appropriate action.
``(6) General permits.--Upon notification from a State with a
permit program approved under this subsection that such State
intends to administer and enforce the terms and conditions of a
general permit issued by the Secretary under subsection (e)
with respect to activities in the State to which such general
permit applies, the Secretary shall suspend the administration
and enforcement of such general permit with respect to such
activities.
``(7) Review by secretary.--Every 5 years after approval of a
State administered program under paragraph (3)(A), the
Secretary shall review the program to determine whether it is
being administered in accordance with this section. If, on the
basis of such review, the Secretary finds that a State is not
administering its program in accordance with this section or if
the Secretary determines based on clear and convincing evidence
after a public hearing that a State is not administering its
program in accordance with this section and that substantial
adverse impacts to wetlands or waters of the United States are
imminent, the Secretary shall notify the State and, if
appropriate corrective action is not taken within a reasonable
time, not to exceed 90 days after the date of the receipt of
such notification, the Secretary shall--
``(A) withdraw approval of the program until the
Secretary determines such corrective action has been
taken; and
``(B) resume the program for the issuance of permits
under subsections (b) and (e) for all activities with
respect to which the State was issuing permits until
such time as the Secretary makes the determination
described in paragraph (2) and the State again has an
approved program.
``(m) Miscellaneous Provisions.--
``(1) State authority to control discharges.--Nothing in this
section shall preclude or deny the right of any State or
interstate agency to control activities in waters within the
jurisdiction of such State, including any activity of any
Federal agency, and each such agency shall comply with such
State or interstate requirements both substantive and
procedural to control such activities to the same extent that
any person is subject to such requirements. This section shall
not be construed as affecting or impairing the authority of the
Secretary to maintain navigation.
``(2) Availability to public.--A copy of each permit
application and each permit issued under this section shall be
available to the public. Such permit application or portion
thereof shall further be available on request for the purpose
of reproduction.
``(3) Publication in federal register.--The Secretary shall
have published in the Federal Register all memoranda of
agreement, regulatory guidance letters, and other guidance
documents of general applicability to implementation of this
section at the time they are distributed to agency regional or
field offices. In addition, the Secretary shall prepare, update
on a biennial basis and make available to the public for
purchase at cost--
``(A) an indexed publication containing all Federal
regulations, general permits, memoranda of agreement,
regulatory guidance letters, and other guidance
documents relevant to the permitting of activities
pursuant to this section; and
``(B) information to enable the general public to
understand the delineation of wetlands, the permitting
requirements referred to in subsection (e), wetlands
restoration and enhancement, wetlands functions,
available nonregulatory programs to conserve and
restore wetlands, and other matters that the Secretary
considers relevant.
``(4) Compliance.--
``(A) Compliance with permit.--Compliance with a
permit issued pursuant to this section, including any
activity carried out pursuant to a general permit
issued under this section, shall be deemed in
compliance, for purposes of sections 309 and 505, with
sections 301, 307, and 403.
``(B) Cranberry production.--Activities associated
with expansion, improvement, or modification of
existing cranberry production operations shall be
deemed in compliance, for purposes of sections 309 and
505, with section 301, if--
``(i) the activity does not result in the
modification of more than 10 acres of wetlands
per operator per year and the modified wetlands
(other than where dikes and other necessary
facilities are placed) remain as wetlands or
other waters of the United States; or
``(ii) the activity is required by any State
or Federal water quality program.
``(5) Limitation on fees.--Any fee charged in connection with
the delineation or classification of wetlands, the submission
or processing of an application for a permit authorizing an
activity in wetlands or waters of the United States, or any
other action taken in compliance with the requirements of this
section (other than fines for violations under subsection (k))
shall not exceed the amount in effect for such fee on February
15, 1995.
``(6) Balanced implementation.--
``(A) In general.--In implementing his or her
responsibilities under the regulatory program under
this section, the Secretary shall balance the objective
of conserving functioning wetlands with the objective
of ensuring continued economic growth, providing
essential infrastructure, maintaining strong State and
local tax bases, and protecting against the
diminishment of the use and value of privately owned
property.
``(B) Minimization of adverse effects on private
property.--In carrying out this section, the Secretary
and the heads of all other Federal agencies shall seek
in all actions to minimize the adverse effects of the
regulatory program under this section on the use and
value of privately owned property.
``(7) Procedures for emergencies.--The Secretary shall
develop procedures for facilitating actions under this section
that are necessary to respond to emergency conditions
(including flood events and other emergency situations) which
may involve loss of life and property damage. Such procedures
shall address circumstances requiring expedited approvals as
well as circumstances requiring no formal approval under this
section.
``(8) Use of property.--For purposes of this section, a use
of property is limited by an agency action if a particular
legal right to use that property no longer exists because of
the action.
``(9) Limitation on classification of certain waters.--For
purposes of this section, no water of the United States or
wetland shall be subject to this section based solely on the
fact that migratory birds use or could use such water or
wetland.
``(10) Transition rules.--
``(A) Permit required.--After the effective date of
this section under section 806 of the Comprehensive
Wetlands Conservation and Management Act of 1995, no
permit for any activity in wetlands or waters of the
United States may be issued except in accordance with
this section. Any application for a permit for such an
activity pending under this section on such effective
date shall be deemed to be an application for a permit
under this section.
``(B) Prior permits.--Any permit for an activity in
wetlands or waters of the United States issued under
this section prior to the effective date referred to in
subparagraph (A) shall be deemed to be a permit under
this section and shall continue in force and effect for
the term of the permit unless revoked, modified,
suspended, or canceled in accordance with this section.
``(C) Reevaluation.--
``(i) Petition.--Any person holding a permit
for an activity in wetlands or water of the
United States on the effective date referred to
in subparagraph (A) may petition, after such
effective date, the Secretary for reevaluation
of any decision made before such effective date
concerning (I) a determination of regulatory
jurisdiction under this section, or (II) any
condition imposed under the permit. Upon
receipt of a petition for reevaluation, the
Secretary shall conduct the reevaluation in
accordance with the provisions of this section.
``(ii) Modification of permit.--If the
Secretary finds that the provisions of this
section apply with respect to activities and
lands which are subject to the permit, the
Secretary shall modify, revoke, suspend,
cancel, or continue the permit as appropriate
in accordance with the provisions of this
section; except that no compensation shall be
awarded under this section to any person as a
result of reevaluation pursuant to this
subparagraph and, if the permit covers
activities in type A wetlands, the permit shall
continue in effect without modification.
``(iii) Procedure.--The reevaluation shall be
carried out in accordance with time limits set
forth in subsection (e)(5) and shall be subject
to administrative appeal under subsection (i).
``(D) Previously denied permits.--No permit shall be
issued under this section, no exemption shall be
available under subsection (f), and no exception shall
be available under subsection (g)(1)(B), for any
activity for which a permit has previously been denied
by the Secretary on more than one occasion unless such
activity--
``(i) has been approved by the affected
State, county, and local government within the
boundaries of which the activity is proposed;
``(ii) in the case of unincorporated land,
has been approved by all local governments
within 1 mile of the proposed activity; and
``(iii) would result in a net improvement to
water quality at the site of such activity.
``(11) Definitions.--In this section the following
definitions apply:
``(A) Activity in wetlands or waters of the united
states.--The term `activity in wetlands or waters of
the United States' means--
``(i) the discharge of dredged or fill
material into waters of the United States,
including wetlands at a specific disposal site;
or
``(ii) the draining, channelization, or
excavation of wetlands.
``(B) Agency.--The term `agency' has the meaning
given that term in section 551 of title 5, United
States Code.
``(C) Agency action.--The term `agency action' has
the meaning given that term in section 551 of title 5,
United States Code, but also includes the making of a
grant to a public authority conditioned upon an action
by the recipient that would constitute a limitation if
done directly by the agency.
``(D) Agricultural land.--The term `agricultural
land' means cropland, pastureland, native pasture,
rangeland, an orchard, a vineyard, nonindustrial forest
land, an area that supports a water dependent crop
(including cranberries, taro, watercress, or rice), and
any other land used to produce or support the
production of an annual or perennial crop (including
forage or hay), aquaculture product, nursery product,
or wetland crop or the production of livestock.
``(E) Conserved wetlands.--The term `conserved
wetlands' means wetlands that are located in the
National Park System, National Wildlife Refuge System,
National Wilderness System, the Wild and Scenic River
System, and other similar Federal conservation systems,
combined with wetlands located in comparable types of
conservation systems established under State and local
authority within State and local land use systems.
``(F) Economic base lands.--The term `economic base
lands' means lands conveyed to, selected by, or owned
by Alaska Native entities pursuant to the Alaska Native
Claims Settlement Act, Public Law 92-203 or the Alaska
Native Allotment Act of 1906 (34 Stat. 197), and lands
conveyed to, selected by, or owned by the State of
Alaska pursuant to the Alaska Statehood Act, Public Law
85-508.
``(G) Fair market value.--The term `fair market
value' means the most probable price at which property
would change hands, in a competitive and open market
under all conditions requisite to a fair sale, between
a willing buyer and a willing seller, neither being
under any compulsion to buy or sell and both having
reasonable knowledge of relevant facts, at the time the
agency action occurs.
``(H) Law of a state.--The term `law of a State'
includes the law of a political subdivision of a State.
``(I) Mitigation bank.--The term `mitigation bank'
means a wetlands restoration, creation, enhancement, or
preservation project undertaken by one or more parties,
including private and public entities, expressly for
the purpose of providing mitigation compensation
credits to offset adverse impacts to wetlands or other
waters of the United States authorized by the terms of
permits allowing activities in such wetlands or waters.
``(J) Navigational dredging.--The term `navigational
dredging' means the dredging of ports, waterways, and
inland harbors, including berthing areas and local
access channels appurtenant to a Federal navigation
channel.
``(K) Property.--The term `property' means land and
includes the right to use or receive water.
``(L) Secretary.--The term `Secretary' means the
Secretary of the Army.
``(M) State with substantial conserved wetlands
areas.--The term `State with substantial conserved
wetlands areas' means any State which--
``(i) contains at least 10 areas of wetlands
for each acre of wetlands filled, drained, or
otherwise converted within such State (based
upon wetlands loss statistics reported in the
1990 United States Fish and Wildlife Service
Wetlands Trends report to Congress entitled
`Wetlands Losses in the United States 1780's to
1980's'); or
``(ii) the Secretary of the Army determines
has sufficient conserved wetlands areas to
provided adequate wetlands conservation in such
State, based on the policies set forth in this
Act.
``(N) Wetlands.--The term `wetlands' means those
lands that meet the criteria for delineation of lands
as wetlands set forth in subsection (g).''.
SEC. 804. DEFINITIONS.
Section 502 (33 U.S.C. 1362) is further amended--
(1) in paragraph (6)--
(A) by striking ``dredged spoil,'';
(B) by striking ``or (B)'' and inserting ``(B)''; and
(C) by inserting before the period at the end ``; and
(C) dredged or fill material''; and
(2) by adding at the end thereof the following new
paragraphs:
``(28) The term `wetlands' means lands which have a predominance of
hydric soils and which are inundated by surface water at a frequency
and duration sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
``(29) The term `creation of wetlands' means an activity that brings
a wetland into existence at a site where it did not formerly occur for
the purpose of compensatory mitigation.
``(30) The term `enhancement of wetlands' means any activity that
increases the value of one or more functions in existing wetlands.
``(31) The term `fastlands' means lands located behind legally
constituted man-made structures or natural formations, such as levees
constructed and maintained to permit the utilization of such lands for
commercial, industrial, or residential purposes consistent with local
land use planning requirements.
``(32) The term `wetlands functions' means the roles wetlands serve,
including flood water storage, flood water conveyance, ground water
recharge, erosion control, wave attenuation, water quality protection,
scenic and aesthetic use, food chain support, fisheries, wetlands plant
habitat, aquatic habitat, and habitat for wetland dependent wildlife.
``(33) The term `growing season' means, for each plant hardiness
zone, the period between the average date of last frost in spring and
the average date of first frost in autumn.
``(34) The term `incidentally created wetlands' means lands that
exhibit wetlands characteristics sufficient to meet the criteria for
delineation of wetlands, where one or more of such characteristics is
the unintended result of human induced alterations of hydrology.
``(35) The term `maintenance' when used in reference to wetlands
means activities undertaken to assure continuation of a wetland or the
accomplishment of project goals after a restoration or creation project
has been technically completed, including water level manipulations and
control of nonnative plant species.
``(36) The term `mitigation banking' means wetlands restoration,
enhancement, preservation or creation for the purpose of providing
compensation for wetland degradation or loss.
``(37) The term `normal farming, silviculture, aquaculture and
ranching activities' means normal practices identified as such by the
Secretary of Agriculture, in consultation with the Cooperative
Extension Service for each State and the land grant university system
and agricultural colleges of the State, taking into account existing
practices and such other practices as may be identified in consultation
with the affected industry or community.
``(38) The term `prior converted cropland' means any agricultural
land that was manipulated (by drainage or other physical alteration to
remove excess water from the land) or used for the production of any
annual or perennial agricultural crop (including forage or hay),
aquacultural product, nursery product or wetlands crop, or the
production of livestock before December 23, 1985.
``(39) The term `restoration' in reference to wetlands means an
activity undertaken to return a wetland from a disturbed or altered
condition with lesser acreage or fewer functions to a previous
condition with greater wetlands acreage or functions.
``(40) The term `temporary impact' means the disturbance or
alteration of wetlands caused by activities under circumstances in
which, within 3 years following the commencement of such activities,
such wetlands--
``(A) are returned to the conditions in existence prior to
the commencement of such activity; or
``(B) display conditions sufficient to ensure, that without
further human action, such wetlands will return to the
conditions in existence prior to the commencement of such
activity.
``(41) The term `airport hazard' has the meaning such term has under
section 47102 of title 49, United States Code.''.
SEC. 805. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Violation.--Section 301(a) (33 U.S.C. 1311(a)) is amended--
(1) by striking ``402, and 404'' and inserting ``and 402'';
and
(2) by adding at the end the following: ``Except as in
compliance with this section and section 404, the undertaking
of any activity in wetlands or waters of the United States
shall be unlawful.''.
(b) Federal Enforcement.--Section 309 (33 U.S.C. 1319) is amended--
(1) in subsection (a)(1) by striking ``or 404'';
(2) in subsection (a)(3) by striking ``or in a permit issued
under section 404 of this Act by a State'';
(3) in each of subsections (c)(1)(A) and (c)(2)(A) by
striking ``or in a permit'' and all that follows through
``State;'' and inserting a semicolon;
(4) in subsection (c)(3)(A) by striking ``or in a permit''
and all that follows through ``State, and'' and inserting
``and'';
(5) by adding at the end of subsection (c) the following:
``(8) Treatment of certain violations.--Any person who
violates section 301 with respect to an activity in wetlands or
waters of the United States for which a permit is required
under section 404 shall not be subject to punishment under this
subsection but shall be subject to punishment under section
404(k)(5).'';
(6) in subsection (d) by striking ``, or in a permit issued
under section 404 of this Act by a State,'';
(7) by adding at the end of subsection (d) the following:
``Any person who violates section 301 with respect to an
activity in wetlands or waters of the United States for which a
permit is required under section 404 shall not be subject to a
civil penalty under this subsection but shall be subject to a
civil penalty under section 404(k)(4).'';
(8) in subsection (g)(1)--
(A) by striking ``--'' and all that follows through
``(A)'';
(B) by striking ``or in a permit issued under section
404 by a State, or''; and
(C) by striking ``(B)'' and all that follows through
``as the case may be,'' and inserting ``the
Administrator'';
(9) by adding at the end of subsection (g) the following:
``(12) Treatment of certain violations.--Any person who
violates section 301 with respect to an activity in wetlands or
waters of the United States for which a permit is required
under section 404 shall not be subject to assessment of a civil
penalty under this subsection but shall be subject to
assessment of a civil penalty under section 404(k)(4).'';
(10) by striking ``or Secretary'', ``or the Secretary'', ``or
the Secretary, as the case may be,'', ``or Secretary's'', and
``and the Secretary'' each place they appear; and
(11) in subsection (g)(9)(B) by inserting a comma after
``Administrator''.
SEC. 806. EFFECTIVE DATE.
This title, including the amendments made by this title, shall take
effect on the 90th day following the date of the enactment of this Act.
TITLE IX--NAVIGATIONAL DREDGING
SEC. 901. REFERENCES TO ACT.
Except as otherwise expressly provided, whenever in this title an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Marine Protection,
Research, and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.).
SEC. 902. OCEAN DUMPING PERMITS.
(a) Issuance of Permits.--Section 102 (33 U.S.C. 1412) is amended--
(1) in the section heading by striking ``environmental
protection agency''; and
(2) in subsection (a)--
(A) by striking ``Administrator'' each place it
appears and inserting ``Secretary'';
(B) by striking paragraph (G) and redesignating
paragraphs (A), (B), (C), (D), (E), (F), (H), and (I)
as paragraphs (1) through (8), respectively;
(C) in paragraph (4), as so redesignated, by
redesignating subparagraphs (i) through (iii) as
subparagraphs (A) through (C), respectively; and
(D) by striking the first and second sentences
following the indented paragraphs.
(b) Categories of Permits.--Section 102(b) (33 U.S.C. 1412(b)) is
amended by striking ``Administrator'' and inserting ``Secretary''.
(c) Designation of Sites.--Section 102(c) (33 U.S.C. 1412(c)) is
amended--
(1) by striking ``Administrator'' each place it appears and
inserting ``Secretary''; and
(2) in paragraph (3) by striking ``Secretary'' each place it
appears and inserting ``Administrator''.
(d) Special Rules.--Sections 102(d) and 102(e) (33 U.S.C. 1412(d) and
1412(e)) are amended by striking ``Administrator'' each place it
appears and inserting ``Secretary''.
SEC. 903. DREDGED MATERIAL PERMITS.
(a) Disposal Sites.--Section 103 (33 U.S.C. 1413) is amended--
(1) in the section heading by striking ``corps of engineers''
and inserting ``dredged material''; and
(2) in subsection (b)--
(A) by striking ``by the Administrator'' each place
it appears;
(B) by striking ``, with the concurrence of the
Administrator,''; and
(C) in paragraph (3) by striking ``Administrator''
and inserting ``Secretary''.
(b) Consultation With the Administrator.--Section 103(c) (33 U.S.C.
1413(c) is amended to read as follows:
``(c) Consultation With the Administrator.--Prior to issuing a permit
to any person under this section, the Secretary shall first consult
with the Administrator.''.
(c) Waivers.--Section 103(d) (33 U.S.C. 1413(d)) is amended by
striking ``request a waiver'' and all that follows through the period
at the end and inserting ``grant a waiver.''.
SEC. 904. PERMIT CONDITIONS.
Section 104 (33 U.S.C. 1414) is amended--
(1) by striking ``Administrator or the Secretary, as the case
may be,'' each place it appears and inserting ``Secretary'';
(2) in subsection (a) by inserting a comma before ``after
consultation'';
(3) in subsection (h)--
(A) by striking ``Administrator of the Environmental
Protection Agency'' and inserting ``Secretary''; and
(B) in the last sentence by striking ``Administrator
determines'' and inserting ``Secretary determines'';
and
(4) in subsection (i)--
(A) by striking ``Administrator'' each place it
appears and inserting ``Secretary'';
(B) in paragraph (3) by striking ``Merchant Marine
and Fisheries'' and inserting ``Transportation and
Infrastructure''; and
(C) in paragraph (4)(D) by striking ``of the
Environmental Protection Agency''.
SEC. 905. SPECIAL PROVISIONS REGARDING CERTAIN DUMPING SITES.
Section 104A (33 U.S.C. 1414a) is amended by striking
``Administrator'' each place it appears and inserting ``Secretary''.
SEC. 906. REFERENCES TO ADMINISTRATOR.
With respect to any function transferred from the Administrator to
the Secretary of the Army by an amendment made by this title and
exercised after the effective date of such transfer, reference in any
Federal law to the Administrator shall be considered to refer to the
Secretary of the Army.
Purpose and Summary
The purpose of the bill is to reauthorize and amend the
Clean Water Act to provide a flexible, scientifically sound,
and cost-effective basis on which to maintain and continue
improvements in water quality.
Need for Legislation
The objective of the Federal Water Pollution Control Act
(referred to as the Clean Water Act, CWA, or Act) is to restore
and maintain the chemical, physical, and biological integrity
of the nation's waters. The Act was last amended
comprehensively in 1987 and most of its authorizations of
appropriations expired in 1991. Funding has been provided
through the annual appropriations process.
The Clean Water Act is a program that requires further
direction from Congress. In general, it has worked well to
provide the nation with clean, healthy water through a
partnership among Federal, State and local governments and
industry. However, much of the improvements in water quality
achieved to date have been through the implementation of ``end-
of-pipe'' controls on industrial and municipal point source
dischargers. Additional regulation of these point sources is
increasingly costly and achieves increasingly smaller marginal
benefits.
Moreover, a majority of the remaining water quality
problems in rivers, streams and lakes are caused by ``wet
weather flows,'' e.g., agricultural and urban runoff, and
municipal and industrial storm sewer discharges. The urban
streets, rural fields, and other sources that create this
runoff problem are not amenable to traditional ``end-of-pipe,''
``command-and-control'' regulatory approaches. Accordingly, the
current Act has not been able to effectively address the
problems associated with such wet weather flows. Attempts to
impose command-and-control approaches on wet weather flows have
led to regulations or permits that require unattainable results
or results that are attainable only at enormous costs, much of
which will be borne by cities and towns.
During the seven days of hearings in February and March
1995, and at hearings held in the 103d Congress, the Committee
heard extensive testimony about specific areas that need to be
addressed through comprehensive Clean Water Act reauthorization
legislation, including the need to (1) provide relief from
unfunded mandates, (2) develop better approaches to control of
pollution from nonpoint and stormwater runoff and other wet
weather flows, (3) provide additional flexibility and an
increased State and local role in implementation of the Act,
(4) provide financial and regulatory relief to small
communities, (5) incorporate risk assessment and cost-benefit
analysis into the standard setting process, (6) ensure that
standards are based on sound science, and (7) comprehensively
reform the regulatory process for permitting activities that
take place in wetlands.
Unfunded Mandates
The Committee must support efforts to provide State and
local governments relief from the impacts of unfunded mandates.
On March 23, 1995, President Clinton signed into law the
Unfunded Mandates Reform Act of 1995. However, this Act does
not address the impacts of unfunded mandates in existing law.
During the debate on the Unfunded Mandates Reform Act, the
Clean Water Act was cited as placing the most costly unfunded
mandates on local governmental entities.
The National Association of Counties estimates that the
Clean Water Act resulted in unfunded mandates costing counties
$1.2 billion in 1993, and will result in unfunded mandates
costing $6.5 billion from 1994 to 1998. In a 1993 survey on the
impact of unfunded federal mandates on America's counties,
conducted by Price Waterhouse, counties particularly cited the
Clean Water Act's inflexible procedures and ``cookie-cutter''
approach, regardless of local conditions, as a reason for the
size of the Clean Water Act's unfunded mandates. Counties also
cited (1) the need to build and operate ``hugely expensive
wastewater treatment plants'' to meet secondary treatment
requirements, (2) impracticable stormwater regulations, (3)
``sludge regulations that require wastewater treatment plant
biosolids to be treated, then limits their disposal'' and (4)
``wetlands regulations that prohibit the cleaning of some
drainage ditches without a permit from the Corps of
Engineers,'' as reasons for the expense and burden imposed by
the Clean Water Act.
The United States Conference of Mayors estimates that the
Clean Water Act resulted in unfunded mandates costing cities
$3.6 billion in 1993 and will result in unfunded mandates
costing $29.3 billion from 1994 to 1998. Sadly and ironically,
in response to a question in a 1993 survey conducted by Price
Waterhouse on the impact of all Federal unfunded mandates on
United States cities that asked what municipal projects had
been delayed or forgone due to the need to divert resources to
meet costly federal mandates, many cities responded that they
were unable to make needed improvements in their sewer system
infrastructure. By failing to maintain sewer systems, these
communities are likely to face even more expensive costs
associated with correcting infiltration or overflow problems
associated with aging sewer systems. In addition, delaying or
forgoing projects to extend sewer systems to households now
serviced by septic tanks could result in impairment of water
quality associated with failing septic tanks. Accordingly,
Federal mandates are forcing communities to make funding
choices that can be detrimental to the environment.
The bill addresses unfunded mandates by providing increased
funding to meet Clean Water Act mandates an by providing
regulatory relief by increasing both the flexibility and cost-
effectiveness of the Act. Specifically, the bill authorizes
$2.5 billion a year from fiscal year 1996 through fiscal year
2000 for capitalization grants to States for the State
Revolving Loan Fund (SRF). The bill also authorizes $500
million per year for a SRF dedicated to addressing nonpoint
sources of pollution. The bill will double (to $150 million a
year) previously authorized levels for grants to States for
administering and enforcing water pollution control programs.
The bill establishes a $150 million a year grant fund for water
infrastructure improvements for small communities and a $150
million a year grant fund for coastal localities, contingent on
full funding of the SRF.
Nonpoint Source Discharges
Nonpoint source discharges include runoff from rural
fields, urban streets, and other areas. During consideration of
H.R. 961, the Committee heard testimony stating that it is not
feasible to collect and treat this runoff prior to discharge.
Instead, the most effective method of control is the prevention
of pollution in runoff through management practices and
measures. However, causes and the nature of runoff are
extremely site-specific. Accordingly, a top-down approach for
the development and implementation of management practices and
measures is not appropriate.
The Committee also heard testimony regarding the
controversy and criticism generated by section 6217 of the
Coastal Zone Management Program. Enacted as part of the Omnibus
Budget Reconciliation Act of 1990, section 6217 creates a
separate coastal nonpoint source management program
administered by both the United States Environmental Protection
Agency (EPA) and the National Oceanic and Atmospheric
Administration (NOAA). This separate program addresses the same
nonpoint source runoff problem that is addressed under section
319 of the Act. As a result, landowners in coastal areas are
subject to two different regulatory programs implemented by as
many as three different regulatory offices, all to address the
same runoff. In addition, the Coastal States Organization has
criticized the section 6217 coastal nonpoint source program as
an inflexible program with unrealistic time frames that does
not allow States to target resources to impaired waters. To
eliminate unnecessary bureaucracy, ensure that landowners are
not subject to conflicting regulatory requirements, and to
provide States with flexibility to target resources, the bill
repeals section 6217 and folds it into the section 319 nonpoint
source program by requiring identification of impaired or
threatened coastal areas within that program.
The bill strengthens the existing section 319 nonpoint
source program by authorizing $1 billion over five years for
State program grants and establishing a new State revolving
loan fund that is dedicated to control of nonpoint sources and
is capitalized at $2.5 billion over five years.
The bill requires States to develop and implement nonpoint
source management programs that must include goals and
milestones for achieving water quality standards as soon as
practicable but no later than 15 years from the date of program
approval. If a State does not develop an approvable program,
EPA must develop and implement a program for the State.
The bill requires EPA to develop guidance on model
management practices and measures. The Committee expects,
however, that States will work with conservation districts and
other local groups to tailor management measures to best
address specific situations and to rely first on voluntary
measures. States also have the authority to require enforceable
measures for the control of nonpoint source pollution. However,
the bill expresses the belief that nonpoint source programs
should be built upon a foundation of voluntary initiatives that
represent the approach most likely to succeed in achieving the
objectives of the Act.
Stormwater
The current stormwater permitting program at section 402(p)
of the Act was added in 1987. This section required industrial
facilities and municipalities with populations over 250,000 to
obtain permits for stormwater discharges by February 4, 1991,
and municipalities with populations over 100,000 to obtain
permits by February 4, 1993 (collectively, Phase I
dischargers). However, EPA did not promulgate its stormwater
permit regulations until November 1990. EPA administratively
extended the deadline by which such dischargers were to have
filed individual permit applications or obtained coverage under
a general permit to October 1, 1992 (which extension was
subsequently approved by Congress).
The entire permit application process has been very complex
and confusing for both regulators and the regulated community.
Not knowing how to regulate stormwater, EPA required extensive
data collection and information in permit applications. As a
result, according to the February 9, 1995, testimony of Mr.
Stephen John, on behalf of the National League of Cities,
before the Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment, the average
cost to a city of a Phase I stormwater permit application is
$625,000. According to the Price Waterhouse survey of the
impact of federal unfunded mandates on cities, Tulsa,
Oklahoma's stormwater permit application cost $1.1 million. As
of May 1994, only 24 municipal stormwater permits had actually
been issued.
Approximately 60,000 industrial sources, at EPA's urging,
opted to apply for a stormwater permit under EPA's group permit
application process. These entities spent approximately $150
million to collect the data necessary to put those applications
together. However, EPA then decided not to issue a group
application; segregated 700 groups into 29 sectors in a manner
that combined groups with very different stormwater discharges;
and has proposed (but has not yet issued) 29 multi-sector
permits.
The purpose and requirements of stormwater discharge
permits remain unclear. The statute currently requires permits
for industrial discharges to meet all applicable requirements
of sections 402 and 301. Permits for municipal stormwater
discharges are required to reduce the discharge of pollutants
to the maximum extent practicable. Compliance with these
requirements is to be achieved no later than three years from
the date a permit is issued.
To meet the statutory deadlines, most industrial facilities
sought coverage under State general stormwater permits, which
require stormwater pollution prevention planning. Some
individual permits do have numerical effluent limitations.
Similarly, some municipal permits require management practices
and measures to reduce pollution, but others include numerical
effluent limitations, which are currently unachievable.
The EPA's own estimate of costs to municipalities to comply
with the current stormwater permitting requirements of the
Clean Water Act, is between $3.4 billion and $5.3 billion
annually. If current law is interpreted, as it is by some
States, to require stormwater discharges to meet numerical
limits based on fishable, swimmable water quality standards,
the National League of Cities estimates the cost of controls
necessary to meet those limits to be over $1 trillion.
Through the exercise of data collection and the confusion
of permitting, both regulators and the regulated community
learned that a bureaucratic permitting framework, federally
mandated controls, and end-of-pipe limitations are not
appropriate for control of stormwater runoff. Accordingly, the
Phase I permitting program has resulted in extraordinary
expenditures of time and resources, with minimal environmental
benefit beyond that achieved through pollution prevention
plans.
Since October 1, 1994, an additional 7 million facilities
and thousands of communities (Phase II dischargers) have been
potentially subject to this broken program. Accordingly, rapid
legislative action is needed to fix the stormwater management
program.
As expressed by participants in meetings held on the
stormwater program by the Rensselaerville Institute in 1992 and
1993, the most appropriate fix is one which provides for
flexible, site-specific, pollution prevention measures, not
nationally mandated controls:
States feel that they have more knowledge of the
industrial risks within their boundaries and know what
is needed to bring those risks into compliance. A
number of focus groups cited the uselessness of having
EPA develop requirements for any given industry when it
did not understand specific industries.
[W]orking in partnership with States and permittees
rather than through a ``command and control''
relationship could get the program in place more
quickly and maximize its effectiveness.
U.S. EPA, Report on the EPA Storm Water Management Program, Vol
1, at 18 (Oct. 1992) (EPA830-R-92-001).
Much wisdom about storm water controls are not
readily generalizable.
Pollution prevention should be emphasized.
EPA needs to allow State and local flexibility to
address priorities as they have identified them.
U.S. EPA, Office of Water, EPA Group Involvement Project, at
11-12 (Rensselaerville Institute) (Sept. 1993).
At the Rensselaerville Institute meetings, two different
structures for stormwater programs were discussed: (1) A
traditional national program where EPA provides mandates and
the States and localities attempt to meet them, and (2) a
decentralized program which identifies a national performance
target and allows States to develop programs to meet that
target.
The bill adopts the latter approach by replacing the
current section 402(p) permitting program with new section 322
State stormwater management programs. The bill requires States
to develop stormwater management programs within four years and
to meet the goal of attainment of water quality standards for
stormwater within 15 years of program approval. To meet that
goal, States have the flexibility to target receiving waters
and sources of stormwater discharges. The premise of the
program is that pollution prevention measures are most likely
to result in attainment of the goal of achieving water quality
standards. Accordingly, State controls begin with enforceable
pollution prevention plans and may proceed to general and site-
specific permits as determined to be necessary by the State.
Recently, EPA proposed a ``fix'' to its stormwater permit
program, which would delay permit applications for Phase II
dischargers until August 2, 2001, and adjust the requirements
for Phase II dischargers through a negotiated rulemaking. 60
Fed. Reg. 17950 (Apr. 7, 1995). Under its proposal, EPA may
target particular Phase II sources for permit applications
sooner than 2001. This proposal leaves in place the current
stormwater permitting program both for Phase I sources and for
those Phase II sources that EPA targets for early permits.
In contrast, the bill reforms the stormwater program for
both Phase I and Phase II sources and will bring more sources
under control in a shorter time frame. In addition, by
providing a hierarchy of control measures, the bill creates an
incentive for facilities to achieve improvements as soon as
possible, to avoid a State determination that additional
controls on the facility are necessary. Accordingly, the
approach taken by the bill is both more cost-effective and
better for the environment than either current law or EPA's
proposal.
EPA's ``fix'' was negotiated with the Natural Resources
Defense Counsel (NRDC), which threatened to sue EPA for its
failure to impose its stormwater permit program on the 7
million facilities that have been potentially subject to the
stormwater permit program since October 1, 1994. EPA did not
consult various affected parties until after it had reached its
agreements with NRDC. Those affected parties strongly oppose
EPA's ``fix.''
On February 16, 1995, the National Association of Counties,
the National League of Cities, the United States Conference of
Mayors, and the National Association of Flood and Stormwater
Management Agencies wrote to EPA Assistant Administrator for
Water, Robert Perciasepe, to express their concerns over EPA's
proposal:
On behalf of the National Association of Counties,
the National League of Cities, the U.S. Conference of
Mayors, and the National Association of Flood and
Stormwater Management Agencies, we are writing to
express our very serious concerns about the Agency's
proposed interim final rule on stormwater.
* * * * * * *
Third, we have significant problems with the process
EPA is proposing. We cannot endorse a process that does
not, and cannot resolve our major problem with the
stormwater management program--the requirement to meet
numerical effluent limits. As EPA knows, and as NRDC
has publicly admitted, there are no strategies,
technologies or methods known or available that will
assure the attainment of water quality standards in
stormwater runoff. Absent the ability to address this
pivotal issue, we consider it a disservice to all of
our members to engage in a process that can only result
in cosmetic changes with no ability to bring cost
effectiveness and ``common sense'' to the program. We
would be irresponsible to accept a process that has the
potential to subject our members to a burdensome and
costly mandate determined by those who have neither the
responsibility for implementing nor financing such a
mandate.
* * * * * * *
Rather than proposing to broaden the program, EPA
should be requesting funding to determine whether the
objectives of the stormwater program are achievable and
if so how and at what cost relative to the benefits.
EPA should be asking Congress for immediate action to
delay further expansion of the program to additional
communities.
The new State stormwater management program created by section
322 of the bill addresses the concerns of these public sector
groups.
Flexibility and Increased State Role
Many parties testified on the need to increase State and
local flexibility to prevent the Act from imposing ``one-size-
fits-all'' standards and requirements that do not reflect
regional and local differences. Flexibility is necessary to
achieve the greatest environmental benefits from scarce
resources.
State organizations also have communicated to the Committee
the need to give States increased flexibility and a greater
role in implementing the Act to allow States to address real
risks in a more cost-effective manner.
In its recent report to Congress on its review of EPA's
role in setting the nation's environmental priorities the
National Academy of Public Administration (NAPA) endorsed both
increased flexibility and an increased State role in program
implementation. In particular, the NAPA report recommended that
both EPA and Congress give more responsibility and
decisionmaking authority to States and localities.
The bill responds to this concern in a variety of ways. It
allows States to take into account the unique nature of streams
in arid areas when establishing water quality standards. This
flexibility addresses concerns raised by cities in Arizona and
other arid areas that are faced with illogical requirements to
meet water quality standards developed for perennial streams,
or to monitor for nonexistent pollutants in dry stream beds to
develop a stormwater permit application.
The bill allows EPA or States to modify technology-based
permit requirements to allow dischargers to take pollution
prevention measures or to engage in pollution trading, provided
there is reduction in overall discharges and a net
environmental benefit. This approach is endorsed in the recent
NAPA report. NAPA recommends that EPA be given the authority to
allow facilities to go ``beyond compliance'' to implement
multi-media pollution control measures that depart from
technology standards. NAPA predicts that the benefits of such
flexibility in terms of risk reduction and efficiency would be
substantial.
The bill also provides relief from in the application of
secondary treatment requirements for municipal wastewater
treatment facilities that discharge from ocean outfalls. This
flexibility addresses concerns expressed by communities faced
with the prospect of spending billions of dollars for secondary
treatment that will provide questionable added environmental
benefit.
The bill allows municipal treatment works to impose local
pretreatment limits on facilities that introduce pollutants
into the treatment works, in lieu of national categorical
pretreatment standards, provided the treatment works
demonstrates that it will remain in compliance with its
effluent limits, sludge quality standards, air emissions
limits, and all other applicable State requirements. Thus, the
bill provides relief from otherwise redundant treatment that
may occur if a facility must install equipment to meet national
categorical pretreatment standards before discharging to a POTW
that already has established local pretreatment limits to
prevent pass-through of toxics and already adequately treats
the indirect discharger's wastes.
The nonpoint source and stormwater programs discussed above
also maximize State flexibility to fashion their State programs
to meet the national goal of attainment of water quality
standards.
Small Communities
The impacts of Clean Water Act mandates fall particularly
hard on small communities. Several provisions of the bill
relating to funding, technical assistance, and regulatory
relief address this concern.
Relating to funding, the bill provides up to $250,000,000
in grants for wastewater treatment plants at hardship coastal
communities and communities with a population of 75,000 or
fewer. The bill requires EPA to issue guidance on simplified
procedures for communities with populations of 20,000 or fewer
to obtain assistance from the SRF. Disadvantaged communities
are eligible for extended repayment schedules of up to 40 years
and negative interest rates as low as negative 2% on SRF loans.
States may use up to 2% of SRF grants for technical assistance
to small communities.
The bill establishes a technical assistance ``circuit
rider'' program for rural and small publicly owned treatment
works (POTWs) and authorizes $10,000,000 for this program.
The bill provides regulatory relief by allowing EPA or a
State to modify secondary treatment requirements for POTWs
serving communities with a population of 20,000 or fewer if the
effluent is from domestic users and the treatment works has an
alternative treatment system that is equivalent to secondary
treatment or that provides an adequate level of protection.
With this amendment, the Committee intends to allow small
communities to utilize alternative treatment systems such as
constructed wetlands, recirculating sand filters, oxidation
lagoons, and other natural land-based and water-based systems
to meet the goals of secondary treatment. Again, the NAPA
report supports this type of flexibility by recommending that
if a city or county can demonstrate that it can attain or
exceed required levels of environmental quality or risk
reduction by non-traditional means, a State should be able to
approve a plan that achieves this and waive the regulatory
requirements that make less sense for the community.
In addition, the provisions of the bill that (1) codify
EPA's Combined Sewer Overflow Policy to allow permits and
schedules for compliance with water quality standards from such
discharges to be modified to allow for long-term control
strategies of up to 15 years, and, (2) require EPA to develop a
control policy for sanitary overflows (SSOs), both provide
interim relief that is particularly important for small
communities. Finally, the stormwater provisions of the bill
reform the stormwater program so stormwater discharges from
communities with populations under 100,000 will be regulated
under new State Stormwater Management Programs rather than the
current stormwater permitting program. By repealing section
402(p), the bill ensures that small communities are no longer
subject to enforcement actions and citizen suits for failure to
have a stormwater discharge permit.
Risk Assessment and Cost-Benefit Analysis
In the last twenty-five years, the cost to our citizens of
complying with environmental regulation has risen dramatically.
Today, it is estimated that each American household, on
average, expends $1,500 each year for environmental protection.
These costs are expected to rise. Under existing legislative
requirements, society's pollution control costs are expected to
equal federal defense spending by the year 2000 (see Figure 1).
Approximately a third of these costs (the most recent EPA
estimate is $64 billion) are attributable to Clean Water Act
requirements.
With resources of this magnitude being obligated to protect
our nation's water quality it is extremely important that
policy makers (1) have information that is based on sound
scientific analyses of potential risks to public health and the
environment, and (2) weigh the costs of proposed Clean Water
Act regulations against their benefits before they are
promulgated. Unfortunately, the current Clean Water Act not
only does not encourage these activities but, in some cases, it
precludes them. As Senator Daniel P. Moynihan has stated,
``Truth be told, I suspect that environmental decisions have
been based more on feelings than on facts.''
On February 28, 1995, by a vote of 286 to 141, the House of
Representatives passed H.R. 1022, the Risk Assessment and Cost-
Benefit Act of 1995, placing general requirements on regulatory
agencies to perform risk assessments and benefit-cost analyses
before promulgating significant regulations. The Committee
endorses the application of H.R. 1022 requirements to new Clean
Water Act regulations and has adopted, in sections 323 and 324
of this bill, complementary provisions that tailor H.R. 1022
requirements to Clean Water Act programs. The Committee
believes these provisions will promote sound regulatory
decisions and achieve a more rational and coherent allocation
of society's limited resources.
Sound Science
The Committee also heard repeatedly of the need to ensure
that Clean Water Act standards and requirements are based on
sound scientific evidence and principles. One example that was
brought to the Committee's attention repeatedly is the need to
update EPA's criteria documents that are used as the basis for
setting State water quality standards.
Many EPA criteria, particularly those for metals, are based
on outdated scientific assumptions. To address this concern,
the bill requires EPA to update all of its water quality
criteria within 5 years as necessary to certify that the
criteria are based on the latest and best scientific knowledge,
beginning with metals, which must be updated within one year.
Wetlands
Section 404 of the Clean Water Act was originally designed
to regulate the discharge of dredged or fill material into
``navigable waters'' at specified disposal sites. However, over
time (and without significant change in statutory authority)
the scope of the section 404 program, especially in terms of
the types of activities regulated and the geographical extent
of jurisdiction, expanded well beyond the original
congressional intent. As a result of a myriad of judicial
interpretations and administrative decisions, the program has
become one of the most complex, controversial and burdensome
aspects of the Clean Water Act. As a result, the program
suffers from lack of public understanding, widespread
opposition, and wide-ranging calls for reform.
At the same time, the nation has come to better understand
and appreciate the benefits to the aquatic environment that
could be achieved under section 404, especially through
preservation of truly valuable wetlands functions.
Unfortunately, the program as it now exists often results in
extraordinary delays and costs; a disregard of private property
rights; overzealous and inconsistent application by the
government; a lack of public awareness of and input to changing
government policies; and bickering among the Federal agencies
running the program.
Title VIII of the bill will assure that the nation's truly
valuable aquatic resources are preserved and that regulatory
burdens on activities that are recurring in nature and have
minor impacts will be reduced or eliminated. Reforms include
the following measures.
Landowners who have their property devalued by regulatory
actions will be compensated (paid from the regulatory agencies'
budgets), consistent with H.R. 925, passed by the House of
Representatives on March 3, 1995.
The fact that not all wetlands are of equal value will be
taken into consideration in making regulatory decisions. A high
degree of protection will be given to the most valuable
wetlands, but low-value wetlands will not be subject to Federal
permits. In fact, the type of activities occurring in wetlands
that are regulated will actually be broadened to assure that
valuable wetland resources are afforded a high degree of
protection.
States will have expanded opportunities and incentives to
assume all or part of the program and State and local resource
management programs will be given greater weight.
Procedural reforms, agency disclosure requirements, and
administrative appeals will streamline the process, assure
better public understanding and opportunity for input, and
assure fairness to applicants.
Existing provisions intended to minimize or exempt minor,
routine activities will be updated and expanded.
Management of the program will be concentrated in a single
agency for increased consistency, expedited reviews, and
accountability.
Navigational Dredging
As with wetlands regulation, the regulatory process for
navigational dredging has degraded to the point that such work
is delayed for years, often while agencies argue over details
having little significance.
Title IX of the bill modifies the regulatory provisions of
the Ocean Dumping Act to assign responsibility for implementing
those provisions to the Secretary of the Army, acting through
the Chief of Engineers, consistent with the approach taken in
Title VIII. Procedures for navigational dredging will be
streamlined while preserving existing public review and
environmental safeguards.
Discussion of the Committee Bill (H.R. 961) and Section-by-Section
Analysis
title i--research and related programs
Section 101. National goals and policies
Section 101 of the bill identifies additional national
goals and policies of the Clean Water Act. These additional
goals and policies embody many of the general themes throughout
H.R. 961: devolution and deference to State and local
governments, increased emphasis on risk-based and market-based
approaches, and more resources toward nonpoint and other ``wet
weather flow'' issues.
Subsection (a) adds nonpoint source pollution goals and
policies by stating that it is the national policy that
programs, including public and private sector programs using
economic incentives, for the control of nonpoint sources of
pollution, including stormwater, be developed and implemented
in an expeditious manner so as to enable the goals of the Act
to be met through the control of both point and nonpoint
sources of pollution.
In endorsing economic incentives and voluntary initiatives
as viable options to control nonpoint sources, the Committee
was particularly mindful of recommendations soon to be formally
announced by the National Forum on Nonpoint Source Pollution.
Convened over a year ago by the Conservation Fund and the
National Geographical Society, the Forum includes prominent
environmentalists and EPA senior management as well as
Governors with leadership roles in the National Governors
Association, agribusiness executives, and farmers. The Forum,
recognizing the limited applicability of ``command-and-
control'' regulations to diffuse sources of contaminated
runoff, recommends that economic incentives, voluntary
initiatives and education play leading roles in a revitalized
national effort to curb excessive nonpoint source pollution.
A few examples from the Forum's recommendations illustrate
the types of economic or market ``incentives'' that could be
employed to reduce nonpoint source pollution. Incentives can be
defined to include actions or policies which either encourage
and reward, or discourage and penalize, certain behavior but
which, unlike regulations, do not legally force or prohibit it.
One such Forum-proposed market incentive is the nonpoint
source-oriented water quality monitoring which section 102 of
the bill calls for EPA and cooperating agencies to conduct.
Other examples include preferential lending rates by financial
institutions, preferential premiums by insurance carriers, and
preferential property tax rates by local governments reserved
for agricultural or other nonpoint enterprises that implement
``best management practices'' to minimize nonpoint pollution.
Another example is the pollution reduction ``trading''
agreement between a point and nonpoint source authorized in
section 302 of the bill.
Subsection (b) addresses the respective roles of State,
Tribal, and local governments in implementing the statute by
stating that it is the national policy to recognize, support
and enhance the role of the State, Tribal and local governments
in carrying out the purposes of the Act. Generally, most of the
success of the Clean Water Act depends on a ``bottom-up''
rather than ``top-down'' approach to water pollution control.
Subsection (c) States that it is the national policy to
encourage reclamation and beneficial reuse of wastewater and
biosolids. H.R. 961, like previous reauthorization bills,
recognizes the importance of and need for wastewater
reclamation and beneficial reuse. The beneficial recycling of
``biosolids'' (a new term used in the bill and to be included
in amended section 405 of the Act) is an environmentally and
scientifically sound practice that, among other things, can
conserve water and improve soil fertility.
Subsection (d) states that it is the national policy to
encourage water use efficiency. H.R. 961, like the existing
Clean Water Act, recognizes that water use efficiency and water
conservation can be integrally related to water quality. The
Committee has received an abundance of testimony over the years
from wastewater treatment officials, water quality regulators,
environmental organizations, and others on this issue. H.R. 961
encourages, but does not require, water use efficiency.
Subsection (e) states that it is the national policy that
the development and implementation of water quality protection
programs pursuant to this Act be based on scientifically
objective and unbiased information concerning the nature and
magnitude of risk and maximize net benefits to society in order
to promote sound regulatory decisions and promote the rational
and coherent allocation of society's limited resources.
Sections 323 and 324 of the bill implement this policy by
requiring EPA to perform risk assessments and to certify that
regulations, other than water quality standards and criteria,
maximize net benefits. Recognizing that the overall objective
of the statute is the restoration and maintenance of the
chemical, physical, and biological integrity of our nation's
waters, the bill only requires that the costs of EPA developed
water quality standards be reasonably related to the benefits
(including, of course, achieving the objective of the statute).
It does not require that costs be taken into account in
establishing water quality criteria. It also does not require
that the quantified benefits exceed the quantified costs.
Section 102. Research, investigations, training, and information
National Programs. Section 102(a) provides that national
programs created for the prevention, reduction and elimination
of pollution, in cooperation with appropriate Federal, State,
and local agencies, are to conduct, promote, and encourage
monitoring and measurement of water quality. These programs are
to employ means and methods which will assist Federal, State
and local agencies to identify relative contributions of
particular nonpoint sources into those watersheds which are
significantly affected by nonpoint sources of pollution.
Based upon a recommendation of the National Forum on
Nonpoint Source Pollution, the bill calls upon EPA and
cooperating agencies at all levels of government to deploy
water quality monitors in nonpoint source-influenced watersheds
so that these monitors can help to identify the relative
contributions of significant individual nonpoint sources. Most
existing monitors were not sited with this objective in mind.
The potential value of this approach is great and the need
enormous. Without the most rudimentary information to
distinguish sources which are significant contributors to water
quality problems in a watershed from those which are not, both
individual source owners and public officials have a limited
foundation on which to base the voluntary actions, incentive
measures, or regulation which may be appropriate. The Forum
considered an example in the Midwest where the availability of
such source-specific information surprised all concerned by
showing one source to be the main contributor to the
watershed's water quality problem--prompting the source owner
to undertake voluntary corrective action.
Grants to Local Government. Section 102(b) makes local
governments eligible for grants under Section 104(b)(3) of the
CWA. Local entities are key members to a successful partnership
in combatting water pollution.
Technical Assistance for Rural and Small Treatment Works.
The Committee recognizes the financially burdensome situation
facing the rural and small treatment works of our nation in
their efforts to improve the water quality of the communities
which they serve. Section 102(c) authorizes the EPA to make
grants to nonprofit organizations for the purposes of providing
technical assistance and training to rural and small, POTWs
through a ``circuit rider'' program modelled after the
``circuit rider'' program for drinking water systems under the
Safe Drinking Water Act. The Committee intends, for purposes of
this program, that ``rural and small'' shall mean communities
with populations of 20,000 or less. Technical assistance is
important to ensure the effective use of scarce funding, and
can lead to less costly resolutions to water quality problems.
Additionally, for the purposes of providing a complete and
thorough support program, these organizations are directed to
disseminate information to rural, small and disadvantaged
communities with respect to the construction and operation of
treatment works.
Wastewater Treatment in Impoverished Communities. Section
102(d) authorizes $50 million per year for fiscal years 1996
through 2000 for EPA to award grants to the States for funding
the planning, design and construction of POTWs in small,
impoverished communities of 3,000 people or less that lack
centralized sewage treatment systems and are severely
economically disadvantaged.
In communities with these circumstances, the committee
believes the award of federal grant monies is justified for the
protection of human health and the environment, and as further
insurance for the Government's investment, grant monies may be
used for training, technical assistance and educational
programs relating to the operation and maintenance of such
sanitation services.
Despite enactment of the Federal Water Pollution Control
Act of 1972 and the expenditure of billions in federal funds
for the construction of OPTWs, thousands of small communities
still are not served by central wastewater treatment facilities
today. Many small impoverished communities lack the resources
even to repay low or zero-interest loans under the current SRF
structure. Without financial assistance, untreated human sewage
will continue to flow from pipes and seep from poorly
functioning septic systems and privies, posing human health and
environmental risks.
The Committee anticipates working closely with the
Administrator to develop appropriate criteria regarding
``severely economically disadvantaged.''
Authorization of Appropriations. Section 102(e)
demonstrates the Committee's recognition of the importance of
adequate funding to continue research, investigation and
training in the areas of pollution prevention; and ensures that
sound scientific information is available to all communities
for addressing pollution problems. For instance, these funds
could be used for research and technical guidance to reduce
pollution from stormwater. This provision authorizes $50
million per year for fiscal years 1996 through 2000 for grants
to agencies, institutions, organizations, and individuals for
the purposes of research, investigation, experiments, training,
relating to the causes, effects, extent, prevention, reduction,
and elimination of pollution. One such recipient could
certainly include the Water Environmental Research Foundation.
These grants also are to be used for providing technical
assistance to rural and small treatment works, except that no
less than 20 percent of these sums shall be made available for
providing technical assistance to rural and small treatment
works.
Section 103. State management assistance
Section 103 authorizes $150 million per year for fiscal
years 1996 through 2000 under section 106 of the Act to assist
States in administering State water pollution control programs
and allowing the use of such funds to finance studies and
projects on an interstate basis. This authorization is twice
the amount historically authorized under this section. By this
increase the Committee recognizes the Federal government's
responsibility to fund currently mandated Clean Water Act
requirements and support the additional burdens required under
this legislation, such as the development and implementation of
stormwater management programs under section 322, and the
administration of State-delegated wetlands permitting programs
under section 404.
Section 104. Mine water pollution control
Section 104 establishes a demonstration program to
illustrate the efficacy of measures to be used for abatement
and treatment of the effects of acidic and other toxic mine
drainage. The purpose of these measures is to restore the
biological integrity of waters within the areas affected by
past coal mining practices. Both States and Federal entities
may apply for grants pursuant to this section.
Section 105. Water sanitation in rural and Native Alaska villages
Section 105 authorizes $25 million, to be distributed
through grants by the Administrator, for the purposes of
developing and constructing sanitation facilities for rural and
Native Alaska villages; and for providing training, technical
assistance and educational programs relating to these
sanitation services. Additionally, the funds may also be used
for reasonable costs of administering and managing the grants;
however, funds used for costs should not exceed four percent of
the grant.
Section 106. Authorization of appropriations for Chesapeake program
Section 106 authorizes $3 million per year for fiscal years
1996 through 2000 for the Chesapeake Bay Program, and $18
million per year for fiscal years 1996 through 2000 for
interstate development plan grants under the Chesapeake Bay
program.
Section 107. Great Lakes management
Great Lakes Research Council. Section 107(a) establishes a
council to promote the coordination of Federal Great Lakes
research activities. The Great Lakes are unique and valuable
national asset as one of the largest fresh water repository
systems in the world, supporting a vast ecosystem. The Great
Lakes not only provide an important source of drinking water
for the region, but also provide recreational and industrial
opportunities for the nation. The council will facilitate State
and Federal efforts to preserve the integrity of the Great
Lakes System through the goals of the Great Lakes Water Quality
Agreement.
Consistency of Programs With Federal Guidance. Section
107(b) amends section 118(c)(2)(C) of the Act by adding a new
sentence to provide that, for purposes of the Great Lakes
Initiative, a State's standards, procedures and policies shall
be consistent with EPA guidance if they are based on
scientifically defensible judgments and policy choices made by
the State. These standards, procedures and policies should be
made by the State after considering the guidance, and should
provide an overall level of protection comparable to that
provided by the guidance, taking into account the specific
circumstances of the State's waters.
Currently, section 118(c)(2) of the CWA directs EPA to
publish proposed water quality guidance for the Great Lakes
System. Within two years after the final guidance is published
by EPA, Great Lakes States must adopt water quality standards,
antidegradation policies, and implementation procedures for
waters within the Great Lakes System, which are consistent with
such guidance. If a State does not do so within two years, EPA
shall promulgate them for that State.
On March 13, 1995, EPA issued the Final Water Quality
Guidance for the Great Lakes System, also known as the ``Great
Lakes initiative'' or ``GLI.'' (60 Fed. Reg. 15366, March 23,
1995). Many witnesses testified that the final GLI goes
considerably beyond the statutory requirement of section
118(c)(2) that EPA issue ``guidance,'' and restricts the
ability of the States to make their own judgments about the
most effective way to achieve the laudable goal of protecting
the Great Lakes System.
H.R. 961 clarifies the intent of the statutory requirement
that State's adopt water quality programs for a State
``consistent with GLI.'' A State's program would be considered
``consistent'' if (1) it was based on scientifically defensible
judgments and policy choices made by the State after taking the
GLI into account, and (2) if it provides an overall level of
protection comparable to that provided by the GLI. It is not
intended, nor should the effect of the amendment be, that any
Great Lake State be relieved of its responsibility to develop
and implement an effective water quality program. One of the
principles behind the GLI is the benefit of uniformity among
the various Great Lakes States.
However, the current GLI places an extremely high burden on
a State that proposes to adopt a requirement in its water
quality program that differs from the corresponding GLI
requirement. Section 132.4(h) of the GLI appears to provide
that, for pollutants regulated under the GLI, a State must
demonstrate that the GLI requirement is ``not scientifically
defensible'' before it adopts a different water quality
criteria or implementation procedure. Given the deference
courts usually afford EPA on technical matters, States may face
an almost impossible burden in developing alternative
requirements that are protective of human health and the
environment when a State's specific water quality circumstances
are taken into account. The bill would provide greater
flexibility but retain accountability to continue protecting
and improving water quality.
The phrase ``overall level of protection comparable to that
provided by the guidance,'' clarifies that a State's program
does not need to provide the identical level of protection on a
provision by provision basis as that afforded by the GLI, to be
considered ``consistent with'' the GLI. Section 132.5(g)(3) of
the GLI requires that each and every element of a State's water
quality program must be as protective as the corresponding
element in the GLI for a State's water quality program to be
deemed ``consistent with'' the GLI. States should be permitted
to demonstrate to EPA that, overall, their programs provide a
comparable level of protection, even if particular elements of
a State's program are not adopted from the GLI. The bill
provides the States with the ability to make this
demonstration.
Finally, the bill specifies that when EPA is evaluating
whether the State's program is consistent with the GLI, EPA
must take ``into account the specific circumstances of the
State's waters.'' The GLI allows States limited ability to take
sit-specific circumstances into account in the development of
their programs, and even then, only with respect to the
adoption or development of water quality criteria or values.
The GLI should permit a State to demonstrate that the specific
circumstances of the State's waters justify different
requirements in other elements of the State's water quality
programs--not just in the adoption or development of criteria
or values. The bill would allow the States to develop their
implementation procedures in a manner that appropriately
addresses the States' specific water quality situations.
In short, EPA's final GLI, while a considerable improvement
over earlier proposals, is still very restrictive and does not
provide the States with sufficient flexibility to tailor their
water quality programs to their needs. The bill remedies these
deficiencies, while providing an appropriate level of
environmental protection and keeping in place a mechanism to
significantly improve water quality.
Reauthorization of Assessment and Remediation of
Contaminated Sediments (ARCS) Program. Section 107(c)
authorizes $3.5 million per year for fiscal years 1996 through
2000 for the ARCS program and $1 million per year for fiscal
years 1996 through 2000 for technical assistance. Initially,
the Administrator of EPA, in consultation with the Assistant
Secretary of the Army, is directed to conduct three projects
involving promising technologies and practices to remedy
contaminated sediments at sites in the Great Lakes System. The
Administrator also has the discretion to expand the number of
projects.
Authorization of Appropriations. Section 107(d) authorizes
$4 million per year for fiscal years 1996, 1997 and 1998, for
the health research report identified in section 118 of the
Act. Additionally, the bill provides an authorization of $17.5
million per year for fiscal years 1996 through 2000 for the
Great Lakes Programs.
title ii--construction grants
Section 201. Uses of funds
Subsection (a) removes the limitation in existing law that
no more than 20 percent of a State's SRF financing may be
obligated to correct combined sewer overflows, construct
collector sewer projects, and correct infiltration inflow.
Subsection (b) requires EPA, with the concurrence of the
States, to develop procedures to facilitate and expedite the
retroactivity and provision of grant funding for facilities
already under construction.
Section 202. Administration of closeout of construction grant program
This section allows EPA to negotiate a budget with States
for using grant funds to administer the closeout of the
construction grant program.
Section 203. Sewage collection systems
Section 203 expands funding eligibility for sewage
collection systems in existence after 1972 but prior to the
date of enactment of the Clean Water Amendments of 1995.
Section 204. Treatment works defined
Subsection (a) amends the definition of ``treatment works''
under section 212 of the Act to clarify that the existing
definition includes all land acquisition necessary for
construction of the treatment works. This unambiguously makes
such costs eligible for funding under the SRF program.
Subsection (b) is a technical correction to remove
unnecessary language in section 218 of the Act relating to cost
effectiveness.
Section 205. Value engineering review
Section 205 raises the threshold for requiring value
engineering review for a project from $10 million to $25
million.
Section 206. Grants for wastewater treatment
Section 206 authorizes $300 million for fiscal year 1996
(if the total amount appropriated to carry out Title VI of the
Act is at least $3 billion in fiscal year 1996) for grants to
(1) coastal localities including, but not limited to, New
Orleans, Louisiana, coastal localities in Bristol County,
Massachusetts, and other coastal localities meeting certain
needs and hardship conditions and (2) small communities for the
purpose of constructing treatment works.
In many cases, funds authorized in this section will be
used for responding to combined sewer overflows (CSOs).
Construction of CSO control facilities is costly and local
communities currently bear most of the cost. EPA conservatively
estimates that CSO construction needs are presently $42 billion
depending on case-by-case permit decisions yet to be made by
the Agency or delegated to States under the National Pollutant
Discharge Elimination System permit program. These costs will
have a major impact on local governments and their sewer
ratepayers.
Much of the initial CSO permitting and construction effort
focuses on coastal areas. The cities of Richmond and Lynchburg,
Virginia, for instance, have developed and are implementing CSO
control plans based on individual consent orders to comply with
the Clean Water Act's CSO control requirements. Both city
discharges influence the Chesapeake Bay. The Committee intends
that some of the funds authorized in this section be available,
on an equal basis, to Richmond and Lynchburg. Lynchburg's
required program totals $250 million for 16,000 customers
resulting in rates of 1.25 percent of median household income
by 1998. Richmond's control program totals $400 million which
will result in rates of 1.8 percent of median household income.
These construction programs include innovative and alternative
control features that will be of use to other communities in
planning and designing least cost CSO facilities.
title iii--standards and enforcement
Title III of the bill includes the provisions that amend
Title III of the Clean Water Act. Title III of the Act
addresses standards, effluent limitations, pretreatment
standards, inspections, and enforcement.
Section 301. Effluent limitations
Compliance Schedules. Section (a) amends section 301(b) of
the Act to replace obsolete deadlines for compliance with
effluent limitations with a three-year deadline. This section
has prospective effect only and does not affect any past or
pending enforcement actions.
Modifications for Nonconventional Pollutants. Section (b)
amends section 301(g) of the Act to remove the requirement that
EPA first list a pollutant before the permitting authority (EPA
or a State) may use the flexibility provided under section
301(g) to allow a permittee to comply with Best Practicable
Control Technology or water quality standards (whichever is
applicable) is lieu of Best Available Technology. The
demonstrations a permittee must make before it is eligible for
such a modification are not amended.
Since 1977, the Act has contained authority for a permit
holder to receive a site-specific variance from Best Available
Technology limitations for nonconventional pollutants, where
the discharger demonstrates that less stringent limitations are
sufficient to protect water quality and designated uses. In
essence, this is a provision to prevent ``treatment for
treatment's sake.'' This provision has been used very
infrequently, however, in part because in 1987 Congress
restricted the variance to five listed pollutants and any
others that EPA adds to that list. To date, no pollutants have
been added. Because this variance is applied on a case-by-case
basis, it is not necessary to restrict it to certain
pollutants.
The Committee expects the permitting authority to subject
any requests for a variance under this section to careful
review to ensure that the permittee qualifies for the variance.
Coal Remining. Section (c) amends section 301(p) of the Act
to allow EPA or a State to make modifications to effluent
limitations in permits for coal remining even if the remining
operation exceeds State water quality standards if (1) the
receiving waters do not meet water quality standards prior to
remining and (2) as part of its permit application, the
applicant submits a plan which demonstrates that identified
measures will be utilized to improve the existing quality of
the receiving water.
This provision removes a barrier to remining operations
that can be environmentally beneficial by reducing pollutants
in discharges from former mining operations, thereby improving
water quality.
Preexisting Coal Remining Operations. Section (d) amends
section 301(p) to provide that operators of a coal remining
operation that commenced remining prior to the adoption of
section 301(p) in a State program approved under section 402
are deemed to be in compliance with sections 301, 302, 306,
307, and 402 of this Act if (1) the post-mining discharges from
the operation are the same or better than discharges prior to
the coal remining operation and (2) the remining was conducted
under a Surface Mining Control and Reclamation Act permit.
Section 302. Pollution prevention opportunities
The current system of command and control regulation has
gone about as far as it can go in making major gains for the
environment, and more creative solutions are needed to deal
with the problems that remain. Pollution prevention, or not
generating waste in the first place, is one approach to
continuing environmental improvements.
One of the most frequent complaints heard by the Committee
during its consideration of the bill relates to the ``one-size-
fits-all'' requirements of the Clean Water Act. Through its
rigid application of numerical and technology-based standards
applicable at the end of the pipe, the Clean Water Act
currently does not encourage multi-pollution prevention
efforts. The ``one-size-fits-all'' approach to environmental
standards was effective when most sources of pollution were
uncontrolled. Now, with typical control technologies achieving
95 to over 99 percent efficiency, the cost of achieving the
last increment can be astronomical relative to the benefits
derived. And, with its focus on one media alone, the Clean
Water Act misses opportunities to rationalize the controls it
imposes, so benefits across all media can be missed. Section
302 of the bill amends the Clean Water Act to provide
additional flexibility to allow permittees to engage in
pollution prevention measures that are environmentally
beneficial.
In reviewing requests for the permit modifications provided
for under this section, the Committee expects the permitting
authority to subject any such requests to careful review to
ensure that the permittee qualifies for the modification. In
determining whether the modification will result in an overall
net environmental benefit, the Committee expects the permitting
authority to examine both acute and chronic effects on water
quality. Through the permitting process, the public will have
an opportunity to review and comment on any proposed
modification. In addition, EPA retains the authority even in
delegated States to review and, if appropriate, disapprove
State permits. Accordingly, only those permit modifications
that truly result in an environmental benefit should be
authorized.
Innovative Production Processes. Under section 301(k) of
the current Act, EPA or a State may provide a waiver of a
technology-based effluent limitation if the permittee proposes
to develop and use an innovative pollution prevention
technology in accordance with standards set out in that
section. Section (a) amends section 301(k) to extend these
innovative technology waivers from 2 to 3 years. This section
also authorizes EPA or the State to make other appropriate
modifications to permit conditions to implement the innovative
pollution prevention technology. In addition, this section
directs a court or EPA to take into account a permittee's good
faith efforts to implement the innovative technology to reduce
or eliminate any penalties for violations caused by the
unexpected failure of the innovative technology. Finally, this
section requires EPA to publish a report on innovative
technologies. In implementing this section, the Committee
intends the permitting authority to condition the permit upon
implementation of the innovative pollution control technology
that is designed to achieve the standards set forth in this
section. The Committee does not intend the permitting authority
to impose any permit limitations for pollutants in media other
than water.
Pollution Prevention Programs. Section (b) adds a new
section 301(q) to the Act to authorize EPA or the State to
modify technology-based standards in a permit or pretreatment
program, where the permitting authority determines that
pollution prevention measures taken by the source will achieve
an overall reduction in emissions to the environment from the
facility (including offsetting reductions in the discharge of
pollutants by that source to other environmental media) that is
(1) beyond that required by law, (2) greater than would
otherwise be achievable, and (3) will result in an overall net
benefit to the environment.
The modification to the permit (or pretreatment program)
may be extended beyond its initial term of 10 years. However,
if the permitting authority does not extend the permit
modification, the permittee shall have a reasonable period to
time, not to exceed 2 years to come into compliance with
otherwise applicable requirements of the Act.
The Committee intends to provide the permitting authority
with the flexibility to make appropriate adjustments to a
permit to the extent necessary to allow an environmentally
beneficial pollution prevention project to go forward. For
example, a plant in Louisiana developed a multimedia pollution
prevention project that would have avoided a costly expansion
of its end-of-pipe wastewater treatment system to meet
limitations for Total Suspended Solids. The project would have
recovered 40,000 pounds of product each day, reduced land
disposal by 3,000 pounds a day, cut air emissions and saved
energy. However, pilot studies showed that while the rigid
numerical standard for Total Suspended Solids could be met
under most weather conditions, the engineers could not
guarantee that the system would meet the standard 100 percent
of the time. A very cold day in Louisiana might cause the limit
to be exceeded by an environmentally insignificant amount. The
plant could not take the risk of going forward with the project
without the certainty of meeting the standard.
Because the Act does not currently give permitting
authorities any flexibility with respect to effluent
limitations, this innovative solution could not be implemented.
Under the bill, the permitting authority could condition the
permit on implementation of this pollution prevention project
and revise the standard for Total Suspended Solids in the
permit to the level attainable by that project.
In a report of the National Advisory Council for
Environmental Policy and Technology (NACEPT), industry and
environmentalists agreed that the Clean Water effluent
guidelines process must be more flexible, and must impart the
pollution prevention mindset. Business and environmental
leaders have been struggling with this issue for some time.
While they may not agree on the approach, they agree that
environmental standards should be set in ways that encourage
pollution prevention strategies. H.R. 961 has recognized this
issue by allowing the Administrator, or authorized State, to
modify the technology-based requirements of a section 402
permit if pollution prevention measures or practices will
result in greater overall reductions in emissions to the
environment than would be otherwise achievable under the
existing command-and-control regime.
For the purposes of this section, the term ``pollution
prevention measures or practices (including recycling, source
reduction and other measures to reduce discharges or other
releases to the environment beyond those otherwise required by
law)'' is intended to allow dischargers the maximum flexibility
to choose measures that provide the greatest opportunity for
cost-effective improvements in environmental performance. The
Agency is not expected to define or limit by regulations what
measures will qualify. In addition, this section does not
authorize the permitting authority to mandate particular
measures or practices beyond those required by law in a permit
without the consent of the permittee.
Because new Section 301(q) only amends the Clean Water Act,
it may only be used to modify a Clean Water permit limit. It
does not provide authority for modification of any requirement
under another statute and does not provide authority to impose
limits on pollutants in media other than water. This action
represents the limits of this Committee's jurisdiction. It
should not be viewed as indicating opposition to a broader
flexibility provision that would allow for modifications such
as those available under 301(q) for other requirements of other
environmental statutes, or multi-media permits.
The concept of ``overall net benefit to the environment''
means that a facility can comply with the Act by implementing
technology that can achieve greater net reductions in releases,
waste generation, or health or environmental risk either in a
single medium or across several media, than would otherwise be
achieved in the aggregate under existing requirements. The
assessment of net benefits should not require an exhaustive
risk analysis, but the risk reduction consequences of proposed
measures should be compared to those under the otherwise
required measures. It will be left to the permitting
authority's discretion to determine whether a discharger's
proposed pollution prevention measure will result in an overall
net benefit to the environment. The Committee fully expects EPA
to issue guidance to permit writers to help them make these
determinations. The Committee believes, however, that the
facility should be free to demonstrate to the satisfaction of
the permitting authority a verifiable means of measuring the
net benefits. By not specifying a formula for such
determinations, however, it is expected that innovative
techniques will more rapidly develop.
Pollution Reduction Agreements. Section (c) adds a new
section 301(r) to the Act that authorizes EPA or the State to
modify a permit (or a pretreatment program) where the
permitting authority determines that the permittee has entered
into a binding contractual agreement with another source within
a watershed to implement pollution reduction measures beyond
those required by law such that there will be an overall
reduction in discharges to the watershed that is greater than
would otherwise be achievable and resulting in a net benefit to
the watershed.
If a proposed trading agreement will result discharges into
a watershed that is within the jurisdiction of two or more
States, the permitting authority must notify the affected
States or the proposed permit modification. An affected State
may disapprove the proposed trading agreement if it acts within
90 days of receiving such notice.
New section 301(r) is intended to further promote
innovative approaches to pollution prevention, either
separately or in conjunction with new section 301(q). New
section 301(r) allows a source to enter into a binding
contractual agreement with another source in the same watershed
to gain greater reductions in discharges to the watershed than
would otherwise be achieved.
The President's ``Reinventing Environmental Regulation''
initiative calls for an effluent trading program ``as a cost-
effective approach for reducing water pollution.'' The
Administration estimates the potential cost savings for three
types of effluent trading:
$611 million to $5.6 billion for point source/
nonpoint source trading;
$8.4 million to $1.9 billion for point source/point
source trading;
$658 million to $7.5 billion for trading among
indirect dischargers.
Further reductions from sources that are already well-
controlled can be extremely expensive when compared to the
environmental benefit achieved. Often reduction opportunities
from less well controlled sources, such as certain nonpoint
sources, are greater, and can be achieved far more cheaply.
This provision will give EPA, the States, and sources the
flexibility to explore the most cost-effective solutions to
water pollution problems. This in turn, will increase actual
progress in improving water quality.
Antibacksliding. Section (d) amends section 402(o) of the
Act to exempt pollution prevention programs, pollution
reduction agreements and certain pollution prevention or water
conservation measures from antibacksliding provisions.
The current antibacksliding prohibition in section 402(o)
generally prohibits the renewal or modification of a discharge
permit to contain a less stringent effluent limitation. The
provision is a barrier to changes in permit limitations that
actually produce a net benefit to the environment.
Types of pollution prevention activities for which
antibacksliding barriers have been raised include utilizing
treated wastewater as cooling water or substituting one process
chemical for a less toxic one. In the first case, the use of
treated wastewater as cooling water could require an increase
in permit limitations for the cooling water discharge, to
reflect pollutants in the treated wastewater (which would be
discharged to surface waters anyway). In the second case,
substituting a detergent cleaning process for chlorinated
solvent cleaning would require an increase in a permit
limitation for phosphate, even though the permitted discharge
of the more toxic solvent would decrease. While these types of
changes might fall within one of the current exemptions to
section 402(o), this amendment assures that the antibacksliding
prohibition does not discourage pollution prevention measures.
Antidegradation Review. Section (d) amends section 303(d)
to preclude EPA from requiring a State to perform an
antidegradation review in the case of increased discharges
resulting from permit modifications for nonconventional
pollutants under section 301(g), to encourage innovative
technologies under section 301(k), for pollution prevention
programs under new section 301(q), for pollution reduction
agreements under new section 301(r), and for POTWs serving
populations of 20,000 people or fewer under new section 301(t).
EPA's current antidegradation policy regulations require a
special review of actions that result in ``degradation'' or
``lowering of water quality.'' In some instances this has been
interpreted very broadly to include any increase in any permit
limitation, even though the overall impact on water quality is
beneficial or insignificant. Steps to increase water recycling
and decrease consumptive uses of water may be subjected to
antidegradation review because they result in an increase in
the concentration of a pollutant in the discharge, even though
the mass of the pollutant discharged remains the same or
decreases.
The amendment does not preclude a State from conducting an
antidegradation review if it so chooses. Instead, the amendment
restores the State's primary responsibility for ensuring that
water quality is protected.
Innovative Pretreatment Production Processes, Technologies,
and Methods. Section (f) amends section 307(e) to make changes
to the existing pretreatment innovative technology waiver
similar to those made to the general innovative technology
waiver under section 302(a) of the bill.
Section 303. Water quality standards and implementation plans
No Reasonable Relationship. Subsection (a) amends section
303(b) of the Act of preclude EPA from establishing a water
quality standard under 303(b) where the costs of attaining such
a standard are not reasonably related to the anticipated
benefits.
This cost-benefit test applies to EPA only. No requirement
of any cost-benefit analysis is placed on the State water
quality standard setting process.
Revision of State Standards. Subsection (b) amends section
303(c) of the Act to make certain revisions to the process by
which States set water quality standards.
First, an amendment to section 303(c)(1) revises the
timetable for State review of water quality standards from
three years to five years. In addition, this amendment requires
a State to initiate review of a State water quality standard
that includes criteria that are revised by EPA, within 180 days
of such revision. The amendment only requires States to hold a
public hearing initiating the review process within the 180 day
time period specified in the bill. The Committee does not
expect a State to complete a revision of a State water quality
standard (if the State determines such revision is necessary)
within 180 days. Nor does it require a State to complete the
review process after the public hearing if the State determines
that revision of its State water quality standard is not
appropriate.
Second, section 303(c)(2) is amended to allow States to
consider costs and benefits when setting water quality
standards. In addition, this section is amended to require
States, when reviewing a State water quality standard that
contains criteria which EPA has revised since the date of
enactment of this bill, to include in any administrative record
required under State law a copy of the EPA's estimate of the
cost of complying with the revised criteria (that section
307(c) of the bill requires EPA to develop), if available. The
State administrative record also shall include any comments
received by the State on the EPA cost estimate during its
review of its State water quality standard.
Revision of Designated Uses. Subsection (c) requires EPA to
amend its regulations regarding designation of uses of waters
by States. For State waters that are not attaining their
designated uses, EPA must amend its regulations to allow a
State to modify the designated use of such waters if the State
determines that attainment of the designated use is infeasible
(as defined by the Administrator), or if the State determines
that the costs of achieving the designated use are not
justified by the benefits. For State waters that are attaining
their designated uses, EPA must amend its regulations to allow
a State to modify the designated use of such a water only if
the State determines that continued maintenance of water
quality necessary to support the designated use will result in
significant social or economic dislocations substantially out
of proportion to the benefits. This amendment also allows a
permitting authority to modify water quality based limits in
permits to conform to any modified designated use.
This amendment gives States greater flexibility in revising
the designated uses of receiving waters. This flexibility is
necessary because, in 1975, EPA required States to designate
all waters that had not yet been assigned a designed use as
``fishable, swimmable'' waters. Accordingly, some waters, such
as certain dry stream beds in the arid west, have been assigned
totally infeasible designated uses.
Section 304. Use of biological monitoring
Section 304 of the bill provides important revisions to the
biological monitoring provisions of section 303(c)(2)(B) of the
Act. Biological monitoring and whole effluent toxicity testing
was incorporated into the Clean Water Act in 1987 to provide
for the detection of toxicity to receiving waters where
chemical specific criteria were not available. However, in
implementing this authority, EPA has chosen to use a limited
number of non-site specific species for use in biological
monitoring. In addition, EPA's whole effluent toxicity test has
proven to be inherently unreliable, with a variability of plus
or minus 30% or greater. Notwithstanding the irrelevance of
many test species and the variability of the test, EPA has
chosen to treat each whole effluent toxicity test failure as a
violation of the Act enforceable by EPA or through citizen
suits. Thus, dischargers face up to $25,000 per day penalties
for each test failure when the only way to completely guarantee
against test failures is to construct highly advanced and
costly treatment processes such as reverse osmosis.
Laboratory Biological Monitoring Criteria. To address
concerns over the relevance and reliability of such testing,
section 304(a) of the bill amends section 303(c)(2) to require
criteria for whole effluent toxicity based on laboratory
biological monitoring or assessment methods to use an aquatic
species that is indigenous or representative of indigenous and
relevant to the type of waters covered by such criteria. In
addition, such criteria must take into account analytical
variability. The Committee intends to prevent the permitting
authority from using highly sensitive species that are not
found in the receiving water ecosystem for whole effluent
toxicity testing. However, the Committee also recognizes that
some flexibility is required because if a receiving water is
degraded, only the most hardy species may remain. Accordingly,
the Committee intends the permitting authority to use species
that are representative of species that one finds in a
receiving water but for the water quality impairment.
Permit Procedures. To address concern over the
inappropriate use of biological monitoring or whole effluent
toxicity testing as enforceable permit conditions, section
304(b) of the bill adds a new subsection (q) to section 402 to
specifically address permit conditions relating to biological
monitoring. Under this new subsection, permits requiring
biological monitoring or whole effluent toxicity testing must
include procedures for responding to test failure by
identifying and reducing, or, where feasible, eliminating, the
source of toxicity. The new subsection also specifies that the
failure of a biological monitoring test or whole effluent
toxicity test will not result in a finding of violation under
this Act unless the permittee has failed to comply with such
procedures. Finally, new subsection (q) specifies that a permit
be written to allow permittees to discontinue response
procedures if certain conditions are met. If the permittee is a
POTW, the permittee may discontinue response procedures if the
source or cause of the toxicity cannot, after a thorough
investigation, be identified. If the permittee is not a POTW,
the permittee may discontinue response procedures if the
permittee performs a field bioassessment study and demonstrates
that a balanced and healthy population of aquatic species lives
in the receiving waters affected by the discharge and water
quality standards (other than the standard for whole effluent
toxicity) are met for such waters.
The Committee intends the permit writer to have the
flexibility to include conditions necessary to protect water
quality in the permit, within the parameters specified in new
subsection (q). Response procedures may include testing and
investigations to identify the source of the toxicity. Once the
source of toxicity is identified, the response procedures may
then require reduction of the source of toxicity, or, if
feasible, elimination of the source of toxicity entirely
through pollution prevention or source reduction.
If an industrial discharger cannot identify the source of
toxicity, the permit conditions may still require that
discharger to take actions to reduce or eliminate the toxicity
through treatment or otherwise unless the permittee
demonstrates that there is no toxicity problem in the receiving
waters through a field bioassessment study.
If, however, a POTW cannot identify the source of toxicity
after a thorough investigation, the permit must allow it to
discontinue its response procedures. Feasible response
procedures for POTWs do not include any requirement to install
treatment technology. This ``off-ramp'' is appropriate for a
POTW, which does not have complete control over the pollutants
introduced to its treatment system. A treatment works' toxicity
test failure may be the result of unintended combinations of
innocuous substances from household products discharged to
sewers or illegal discharges beyond the control of the
treatment works. Toxicity from these types of sources is a
short-term event. Of course, if the treatment works has another
test failure the next time it conducts whole effluent toxicity
testing, the response procedures begin anew.
Information on Water Quality Criteria. Section 304(c) of
the bill amends section 304(a)(8) of the Act to ensure that
information published by EPA on water quality criteria for
toxicity using biological monitoring and assessment methods is
consistent with the requirements of section 303(c)(2)(B), as
amended.
Section 305. Arid areas
Water bodies in the western, arid part of the United States
often have very different characteristics from water bodies in
other parts of the country. The Clean Water Act does not
currently take into account regional differences. For example,
in the West there is extensive use of canals for irrigation
waters and other purposes. Not all of these canals are waters
of the United States. However, if a canal is a water of the
United States, flexibility is needed in setting water quality
standards to allow the canal to serve its intended purpose. In
addition, some waters in arid areas are not perennial streams.
These streams have water only seasonally or after a storm
event. Other streams in arid areas consist entirely of effluent
much of the year and, but for the effluent, would be dry stream
beds. This section of the bill provides flexibility to allow
States to take into account the unique characteristics of the
arid West when setting water quality standards for these
waters.
Constructed Water Conveyances. Section 305(a) of the bill
amends section 303(c)(2) of the Act to authorize States to take
into consideration relevant uses, return flow from,
maintenance, and purposes of constructed water conveyances; and
State or regional water resources management and water
conservation plans, when setting water quality standards for
constructed water conveyances. Nothing in this provision is
intended to affect any authorities or programs of the Bureau of
Reclamation.
Criteria and Guidance for Ephemeral and Effluent-Dependent
Streams. Section 305(b) amends section 304(a) of the Act to
require EPA to develop and publish criteria for ephemeral and
effluent-dependent streams and guidance to States for
developing water quality standards for such streams within 2
years of enactment, taking into account factors relevant to
such streams.
Factors Required to be Considered by Administrator. Section
305(c) amends section 303(c)(4) of the Act to require EPA to
take into account relevant factors when revising or adopting
any new standard for ephemeral or effluent-dependent streams.
Definitions. Section 305(d) amends section 502 to add
definitions for effluent-dependent streams, ephemeral streams,
and constructed water conveyances.
Section 306. Total maximum daily loads
Currently, section 303(d)(1)(C) of the Clean Water Act
requires States to calculate a total maximum daily load (TMDL)
for each receiving water that is not currently meeting
applicable water quality standards. As a result of this
statutory language, States have been sued for failure to
establish TMDLs, even where a State may not have sufficient
data to do so. In addition, when a State is not able to
identify all sources of pollution contributing to a violation
of a water quality standard, EPA requires that the entire load
reduction necessary to meet water quality standards be assigned
to point sources in the absence of ``reasonable assurances''
that nonpoint source pollution reductions will be achieved.
The bill amends section 303(d)(1)(C) to provide States with
greater flexibility in performing TMDLs by giving States the
authority to determine whether and when a TMDL is necessary to
achieve further reasonable progress toward the attainment or
maintenance of water quality standards. States also are
authorized to consider anticipated load reductions from
implementation of management practices, stormwater controls or
other nonpoint or point source controls when establishing
TMDLs.
To ensure that, when a State decides to establish a TMDL,
it does so in a scientifically sound manner, the bill also
requires States to consider the availability of scientifically
valid data and information, projected reductions for all
sources, and cost-effectiveness of control measures when
establishing TMDLs.
Section 307. Revision of criteria, standards, and limitations
During consideration of H.R. 961, the Committee heard many
expressions of concern over the need to ensure that water
quality criteria, standards, and effluent limitations are based
on sound science. The amendments in this section of the bill
address this concern.
Revision of Water Quality Criteria. Section 307(a) of the
bill amends section 304(a) of the Act to add factors to be
reflected in EPA water quality criteria, including what
organisms are likely to be present in the ecosystem,
bioavailability of pollutants, exposure required to induce
adverse effects, and bioaccumulation threat.
This amendment also requires EPA to certify every 5 years
that water quality criteria reflect the latest and best
scientific knowledge. EPA must update all existing criteria
within 5 years, and ammonia, chronic effluent toxicity, and
metals within 1 year, as necessary to make this certification.
Particular concern has been raised regarding metals criteria
documents. EPA knows that these many of the metals criteria are
out of date and will result in limitations below what is
necessary to protect human health and the environment, but has
not updated these criteria due to other priorities. This
amendment makes updating metals criteria, as well as criteria
for ammonia and chronic whole effluent toxicity, a high
priority for the agency.
Consideration of Certain Contaminants. Section 307(b)
amends section 304(a) of the Act to require EPA to consider
contaminants regulated under the Safe Drinking Water Act when
developing and revising water quality criteria.
Cost Estimate. Section 307(c) amends section 304(a) to
require EPA, when issuing or revising water quality criteria,
to develop and publish an estimate of the costs that would
likely be incurred if sources were required to comply with the
criteria. The Committee recognizes that EPA will have to make
assumptions and use model scenarios to develop this cost
estimates. However, the Committee believes that it is important
for the public and States to have information regarding costs
of compliance with water quality criteria when such criteria
are incorporated into water quality standards. This amendment
does not require EPA to perform a cost-benefit analysis, nor
does it require water quality criteria to meet any cost-
effectiveness test. The criteria document and the cost
information can be two separate, stand-alone documents.
Revision of Effluent Limitations. Section 307(d) amends
section 304(b) of the Act. First, this amendment eliminates the
impracticable requirement that EPA review all of the
categorical effluent guidelines every year. Second, this
amendment clarifies that, where Best Practicable Technology
effluent guidelines have already been published for an
industrial category, additional, more stringent requirements
for conventional pollutants can be imposed only if they meet
the Best Conventional Technology economic reasonableness tests
currently specified in section 304(b)(4)(B) of the Act.
In 1977, Congress concluded that Best Practical Technology
had largely addressed control of industrial discharges of
conventional pollutants. Additional efforts were focused on
toxics, but additional conventional pollutant treatment could
be required if economically reasonable. Recently, in effluent
guidelines rulemakings for the pulp and paper and
pharmaceutical manufacturing categories, EPA has suggested that
it can impose more stringent conventional pollutant limitations
which do not meet Best Conventional Technology economic
reasonableness tests, simply by revising Best Practicable
Technology. This would result in precisely the ``treatment for
treatment's sake'' that Congress sought to avoid in 1977. As
Congress concluded in 1977, an industry category should not be
required to make even further reductions in conventional
pollutants where the cost is greater than what additional
removal of the same conventional pollutants would cost at a
POTW.
Schedule for Review of Guidelines. Section 307(e) amends
section 304(m) of the Act to require EPA to identify categories
of sources for which guidelines under section 304(b)(2) and
section 306 have not been set, determine which sources have
discharges that present a significant risk to human health and
the environment and establish a schedule for issuing effluent
guidelines for such sources.
EPA's current effluent guidelines plan is based on a 1992
consent degree settling a 1989 lawsuit filed by the Natural
Resources Defense Council (NRDC) against EPA. The consent
decree lists certain industry categories for which EPA must
develop effluent guidelines and commits EPA to a schedule for
conducting preliminary studies, and proposing and issuing
additional effluent guidelines. In this consent decree, NRDC
disputed whether EPA has the discretion to decide not to
proceed with the development of an effluent guideline where EPA
determines that the guideline would not have the potential to
significantly reduce risk to human health or the environment.
NRDC reserved the right to sue EPA again if the agency did not
issue the guidelines listed in the decree and continue to issue
additional effluent guidelines on the schedule set forth in the
decree, even if EPA determined that no significant risk would
be reduced by issuing those guidelines. This amendment
supersedes the NRDC consent degree to ensure that EPA has the
flexibility to, and in fact does, focus its limited resources
for guidelines development on sources that present a
significant risk.
Revision of Pretreatment Requirements. Section 307(f) of
the bill amends section 304(g) to eliminate the impracticable
requirement that EPA review all of the categorical pretreatment
standards every year.
Central Treatment Facility Exemption. Section 307(g) adds a
new subsection to section 304 of the Act to codify the existing
regulatory exemption from effluent guidelines for certain
central treatment facilities in the Iron and Steel
Manufacturing Point Source Category. When the effluent
guidelines for the Iron and Steel Manufacturing category were
promulgated in the early 1980's, EPA did not evaluate
facilities that treat all of their individual waste streams in
a ``central treatment facility.'' In order to settle challenges
raised by industry representatives, the effluent guideline
regulation was amended by EPA to provide an exemption for
certain treatment facilities that received the combined waste
streams of a number of processes and source subcategories at
steel plants. The 21 central treatment facilities subject to
the exemption were listed by name in the regulation at 40
C.F.R. section 420.01. This exemption was to last until the
regulation was amended to establish effluent guidelines
specifically for central treatment facilities. EPA has never
published a revised effluent guideline applicable to central
treatment facilities. Accordingly, the exemption for central
treatment facilities at any of the listed steel plants
continues to be available.
Section 308. Information and guidelines
Section 308 amends section 304(i) of the Act to modify
current requirements for eligibility to sit on permit review
boards to increase flexibility for government officials and
retirees.
Section 309. Secondary treatment
The debate on Clean Water Act reauthorization, as well as
the debate on unfunded mandates generally, identified the Clean
Water Act requirement that municipal wastewater treatment
plants meet secondary treatment standards as one of the most
burdensome mandates on manicipalities. A significant number of
smaller communities have been unable to meet this requirement
for a number of reasons. Capital costs for construction of
costly and sophisticated secondary treatment facilities are
often beyond the means of small communities, even with zero
interest loans. The technical expertise to operate and maintain
these facilities is often not available in these communities.
In addition, to be cost-effective, secondary treatment
facilities require an economy of scale not found in small
communities. This section of the bill adds flexibility to the
implementation of secondary treatment requirements to address
these concerns. In addition, secondary treatment may provide no
environmental benefit when the treatment plant discharges
through a deep ocean outfall. This section of the bill also
addresses these concerns.
Coastal Discharges. Section 309(a) amends section 304(d) of
the Act to provide that a municipal wastewater treatment
facility be considered a secondary treatment facility if the
facility discharge is subject to chemically enhanced primary
treatment; discharges through an ocean outfall greater than 4
miles offshore; is in compliance with all State and local water
quality standards for reciving waters; and is subject to an
ocean monitoring program.
Modification of Secondary Treatment Requirements. Section
309(b) adds a new section 301(s) to the Act to require EPA to
modify secondary treatment requirements if the POTW discharges
pollutants into marine waters that are at least 150 feet deep
through an ocean outfall which discharges at least 1 mile
offshore; the facility's discharge is in compliance with all
water quality standards for receiving waters; the discharge
will be subject to an ocean monitoring program; the applicant
has in place an EPA-approved pretreatment plan; and the
effluent has received chemically enhanced primary treatment and
achieves a monthly average removal of 75% removal of suspended
solids.
Modifications for Small System Treatment Technologies.
Section 309(c) amends section 301 to add a new subsection (t)
to allow EPA or a State to issue a permit that modifies
secondary treatment requirements for POTWs serving communities
with a population of 20,000 or fewer if the POTW demonstrates
(1) that the effluent is from domestic users, and (2) the
facility has an alternative treatment system that is equivalent
to secondary treatment or will provide an adequate level of
protection to human health and the environment and contribute
to the attainment of water quality standards in the receiving
water and watershed.
The Committee intends for this amendment to provide EPA and
States with the statutory authority and increased flexibility
to approve innovative alternative treatment systems for small
communities, and to deem that such systems meet the technology-
based requirements of the Act. Many alternatives to full
secondary treatment have been researched, developed, or
improved to the point that they now represent a realistic
alternative for small communities. These treatment systems,
which include constructed wetlands, recirculating sand filters,
oxidation lagoons, and other ``natural'' land-based and water-
based systems, offer an environmentally protective, cost-
effective, and relatively low technology option for helping
small communities meet their wastewater needs.
Puerto Rico. Section 309(d) further amends section 301 to
add a new subsection (u) to allow Puerto Rico to initiate a
study to determine the feasibility of a deepwater outfall for
the POTW located at Mayaguez, Puerto Rico and allow the
Mayaguez treatment works to submit an application for a 301(h)
waiver of secondary treatment requirements within 18 months of
enactment.
The community of Mayaguez has been prevented from
constructing a deep ocean outfall to improve the effectiveness
of its sewage treatment program. Mayaguez has been unable to
receive a wavier from secondary treatment requirements,
preventing the construction of a deep ocean outfall. Section
309(d) would allow such an application, and allow EPA to review
a new deep ocean outfall proposal pursuant to current Clean
Water Act standards for such outfalls. Section 309(d) does not
alter the rigorous criteria for issuing such a waiver, or
override the judgment of EPA.
Puerto Rico has elicited comments from scientists and waste
water treatment experts, who are in agreement on the merits of
constructing a deep ocean outfall in Mayaguez. Apparently, it
will save the Commonwealth of Puerto Rico approximately $65
million and have environmental benefit as well.
The history of Puerto Rico's difficulties in gaining
approval from EPA for a deep ocean outfall are well documented.
Section 309(d) should allow Puerto Rico and the EPA to reach
accord on the construction of a deep ocean outfall. This
provision allows EPA to review Puerto Rico's new deep ocean
outfall application. It allows Puerto Rico to apply under
existing Section 301(h) standards for a modification that best
protects the marine environment. It presents a reasonable
compromise, allowing the Commonwealth and EPA to implement a
municipal sewage disposal program that is based on sound
science and appropriate environmental and economic
considerations.
Under this provision, EPA is required to make a final
determination within nine months of receiving an application.
If EPA grants the waiver, Puerto Rico is required to complete
construction of the outfall within five years of the date of
enactment. These requirements ensure that the Agency and the
Commonwealth act expeditiously to construct a facility that
will benefit the environment and the residents of Puerto Rico.
This measure is consistent with existing waiver standards
in the Clean Water Act, and will only be fully implemented by
EPA if environmental and economic objectives can be
successfully met.
Section 310. Toxic pollutants
Toxic Effluent Limitations and Standards. Section 310(a) of
the bill amends section 307(a)(2) of the Act to require that
specific factors be considered by EPA in promulgating effluent
standards (or prohibitions) for toxic chemicals. The factors to
be considered include the pollutant's persistence, toxicity,
degradability, and bioaccumulation potential; the magnitude of
risk; the relative contribution of point source discharges to
the risk; the availability of substitute chemicals; the
beneficial and adverse social and economic effect; the
availability of other regulatory authorities; and such other
factors as the Administrator deems appropriate.
Beach Water Quality Monitoring. Section 310(b) of the bill
amends 304 of the Act to require EPA, in consultation with
Federal, State, and local agencies, to issue guidance within 18
months of enactment on beach water quality monitoring and the
issuance of health advisories. EPA also must report on
information available on State beach water quality monitoring.
Fish Consumption Advisories. Section 310(c) of the bill
specifies that any fish consumption advisories issued by EPA
must be based on the protocols, methodology, and findings of
FDA.
Section 311. Local pretreatment authority
Section 311 of the bill adds a new subsection (f) to
section 307 of the Act to allow a POTW to apply local limits in
lieu of national categorical pretreatment standards for the
purpose of eliminating redundant treatment or reducing the
administrative burden on the POTW.
Industrial pretreatment and EPA-approved local pretreatment
limits have been an integral part of POTW operations for many
decades. Some local programs even predate passage of the 1972
Act. Considering the complexities of operating POTWs and
attaining water quality, the implementation of pretreatment
programs is among the most important contributions that POTWs
have been making to environmental protection, while at the same
time protecting the treatment facility and generating
beneficially usable biosolids.
Section 307(b) of the present Act authorizes EPA to
establish and revise federal pretreatment standards; provides
that the revision of categorical standards for individual POTWs
``reflect the removal'' of toxic pollutants by such POTWs; and
provides that ``[n]othing in this subsection shall affect any
pretreatment requirement established by any State or local law
not in conflict with any pretreatment standard under this
section.''
POTW pretreatment programs have been a highly successful
part of the Act in reducing the discharge of toxics to POTWs
and enhancing the quality of the nation's waters. Such programs
remain critically important to water quality and to the ability
of POTWs to meet federal biosolids and air quality
requirements.
For many POTWs, these environmental objectives can best be
achieved by use of locally developed pretreatment limits in
lieu of federal categorical standards. Currently, such local
pretreatment limits regulate many more industries than those
covered by federal categorical standards.
The use of local limits to achieve such objectives and
requirements can result in the elimination of additional,
redundant, or unnecessary treatment by industrial users of
POTWs which has little or no environmental benefit. Such
redundant or unnecessary treatment should be limited as a
matter of common sense, so long as the POTW can meet the
objectives of the Act.
EPA has always recognized the utility of local limits since
more stringent local limits must be applied in lieu of
categorical standards. The mechanism for calculation of local
limits was developed by EPA to protect the POTW, prevent pass
through of pollutants (including toxics), and protect the
quality of biosolids. To be approved, a local pretreatment
program must prevent the discharge of any pollution which would
interfere with, pass through, or otherwise be incompatible with
the POTW.
In contrast, national categorical pretreatment standards
are technology-based standards. As a result, national standards
often are not consistent with local standards and in some cases
may conflict with the needs of a local POTW. For example, a
national categorical pretreatment standard for a can coating
operation requires removal of phosphorus, even where the
facility discharges to a POTW that has a phosphorus deficiency.
As a result, the facility must pretreat for phosphorus, thereby
using energy and creating sludge, and the POTW has to buy
phosphorus to add to its system.
Section 311 of the bill strengthens environmental
protection while allowing common sense flexibility by allowing
approved pretreatment programs at POTWs to be operated under
performance based statutory conditions without sacrificing
water quality or other environmental objectives.
To obtain approval to apply local limits in lieu of
categorical pretreatment standards, a POTW must make four
demonstrations to the permitting authority: (1) the POTW is in
compliance, and is likely to remain in compliance, with its
permit under section 402; (2) the POTW is in compliance, and is
likely to remain in compliance, with applicable air emissions
limitations; (3) biosolids produced by the POTW meet beneficial
use requirements under section 405; and (4) the POTW is likely
to continue to meet all applicable State requirements. The
permitting authority may disapprove any request if it believes
that these criteria will not be met.
Two important limitations are placed on this provision.
First, a POTW may not apply local limits in lieu of categorical
pretreatment requirements applicable to any industrial user
that is in significant noncompliance (as defined by EPA) with
the pretreatment program. Second, the demonstration to EPA or
the State under section 307(f)(1) must be made under the
procedures for pretreatment program modification provided for
under sections 307 and 402 of the Act.
Finally, the POTW must demonstrate continued compliance
with the conditions of this section in its annual pretreatment
report to EPA or the State.
Section 312. Compliance with management practices
Section 312 of the bill adds new section 307(g) to the Act
to authorize EPA or a State to allow persons who introduce
silver into POTWs to comply with a code of management practices
in lieu of a pretreatment requirement for silver for a period
not to exceed five years from the date of enactment. The code
of management practices must meet requirements set out in this
section, be approved by EPA, and be accepted by the POTW. The
person introducing silver into the POTW also must comply with a
Best Available Technology standard.
If EPA or a State allows persons to comply with such a code
of management practices in lieu of a pretreatment standard for
silver under this section, EPA or a State must modify the
POTW's permit conditions and effluent limitations to defer, for
a period not to exceed five years, compliance with any effluent
limitation derived from a water quality standard for silver if
the receiving waters will be adequately protected.
This amendment provides relief for the photoprocessing
industry and other users of silver who introduce silver into
POTWs. In order to comply with extremely stringent water
quality standards for silver, POTWs have enforced equally
stringent local pretreatment limits on indirect dischargers of
silver. However, State water quality standards for silver are
based on outdated scientific assumptions, so both the water
quality standards that POTWs must meet and the local
pretreatment limits that the photoprocessing industry and other
users of silver must meet are unnecessarily stringent.
In 1990, EPA published draft chronic water quality criteria
for silver. After publication, EPA concluded that silver does
not pose a human health hazard, withdrew these draft criteria,
and advised States that water quality standards for silver are
not needed. In fact, EPA has even deleted the primary Maximum
Contaminant Level of silver under the Safe Drinking Water Act.
EPA also has recognized that silver, and several other metals,
is more appropriately measured and regulated on the basis of
its dissolved form, rather than on the basis of total metals,
as in previous water quality standards.
Before EPA's recognition of its error, many States adopted
water quality standards for silver based on the inaccurate and
subsequently withdrawn silver criteria and have not taken
action to revise or delete these standards. As a result, POTWs
in many effluent limitations for silver, and many indirect
dischargers are therefore subject to impossibly low local
limits for silver, with no environmental benefit.
Section 312 of the bill gives EPA the flexibility to
provide interim relief from these overly stringent silver
limits for five years. Under other provisions of the bill, EPA
is required to update its criteria documents for metals within
one year, and States are required to hold a hearing to consider
review of their State water quality standard within 180 days of
EPA's revision of any applicable water quality criterion.
Accordingly, the Committee expects that States with water
quality standards for silver will revise those standards within
the next five years.
Section 313. Federal enforcement
Adjustment of Penalties. Section 313(a) of the bill amends
section 309 of the Act to provide for a consumer price index
adjustment to automatically increase or decrease all penalty
limits in the Act.
Joining States as Parties in Actions Involving
Municipalities. Section 313(b) amends section 309(e) of the Act
to make the joining of States as parties to litigation
involving municipalities permissive rather than mandatory.
Section 314. Response plans for discharges of oil or hazardous
substances
Section 314 includes a general provision relating to the
applicability of certain oil or hazardous substance response
planning requirements under the CWA.
The provision clarifies how total facility oil storage
capacity should be calculated under the EPA's regulations
implementing section 311(j)(5) of the CWA, as amended by the
Oil Pollution Act of 1990 (OPA). The provision is necessary to
ensure that requirements imposed by section 311(j)(5) to
prepare facility response plans (FRPs), and to engage in
training and certain other activities, are triggered only when
a facility poses a threat of ``substantial harm'' to the
environment due to its potential to release significant
quantities of oil.
This provision also clarifies that the requirements of
section 311(j)(5) do not apply to municipal and industrial
treatment works, or to facilities that store quantities of
process water mixed with de minimis quantities of oil. This is
consistent with the Congressional intent behind the OPA. The
Committee recognizes, through this provision, that municipal
and industrial treatment works, and facilities storing process
water mixed with de minimis quantities of oil, do not pose the
threat of harm to the environment that Congress sought to
address through section 311(j)(5).
Section 314 also directs the President to issue regulations
clarifying the meaning of the term ``de minimis quantities of
oil or hazardous substances.''
Section 315. Marine sanitation devices
Section 315 of the bill amends section 312(c) of the Act to
require EPA to review and, if necessary, revise standards for
marine sanitation devices within 2 years of enactment, and
every 5 years thereafter, following notice and comment, and in
consultation with the Coast Guard.
Section 316. Federal facilities
In 1972, Congress included provisions on Federal facility
compliance with our nation's water pollution laws in section
313 of the Clean Water Act. Section 313 called for federal
facilities to comply with all Federal, State, and local water
pollution requirements.
In April 1992, the U.S. Supreme Court ruled in U.S. Dept.
of Energy v. Ohio, that States could not impose certain fines
and penalties against Federal agencies, for violations of the
Clean Water Act and the Resource Conservation Recovery Act
(RCRA). This decision led to the enactment of the Federal
Facilities Compliance Act (H.R. 2194) in the 102nd Congress to
clarify that Congress intended to waive sovereign immunity for
agencies in violation of RCRA. Federal agencies in violation of
the RCRA are now subject to State levied fines and penalties.
The 1992 Act, however, did not address the Supreme Court's
decision with regard to the Clean Water Act.
Section 316 of H.R. 961, clarifies the intent of section
313 of the Clean Water Act. This measure reaffirms the waiver
of sovereign immunity. This waiver subjects the Federal
government to the full range of enforcement mechanisms
available under the Clean Water Act.
Section 316 is primarily a restatement of existing policies
in the Clean Water Act governing Federal facilities. Changes
made by section 316, including the clarification of the waiver
of sovereign immunity, apply prospectively.
Subsection (a), Applicability of Federal, State, Interstate
and local laws, is modeled after section 313(a) of the Act and
is intended to embody the same concepts as section 313. New
paragraph 313(a)(7) of the Clean Water Act subjects agents,
employees, and officers of the U.S. to criminal sanctions under
Federal or State water pollution laws. The Committee, however,
does not intend that agents, employees or officers be subject
to criminal sanctions if their failure to comply with the Clean
Water Act is caused by action or inaction of their employers--
such as an agency's failure to purchase appropriate wastewater
treatment equipment or provide adequate funding to maintain
treatment operations.
Subsection (b), Funds Collected by a State is designed to
ensure that States are using revenues collected for Federal
violations of water laws to improve water quality.
Subsection (c), Enforcement, gives EPA the authority to
bring an administrative enforcement action against another
Federal government entity.
Subsection (d), Limitation on Actions and Right of
Intervention, precludes citizen suits under section 505
relating to violations that the Administrator is diligently
pursuing or has resolved through issuance of a final order.
Subsection (e), Definition of Person, defines person to
include any department, agency, or instrumentality of the
United States.
Subsection (f), Definition of Radioactive Materials, adds
definition of radioactive materials to section 502 of the Act.
This term excludes materials discharged from certain vessels in
the Naval Nuclear Propulsion Program.
Section 317. Clean lakes
Section 317 of the bill amends section 314(d) of the Act to
add Paris Twin Lakes, Illinois; Otsego Lake, New York; and
Raystown Lake, Pennsylvania, to the Clean Lakes program
priority list. This section also authorizes $10 million per
year for fiscal year 1996 to fiscal year 2000 to carry out the
Clean Lakes program.
Section 318. Cooling water intake structures
Section 318 of the bill amends section 316(b) of the Act to
identify factors for EPA to take into account in determining
best technology available for new and existing cooling water
intake structures.
Section 319. Nonpoint source management programs
Section 319, a central feature of H.R. 961, strengthens,
coordinates, and improves the nation's current approach to
nonpoint sources of pollution. Hearings, government and
scientific reports, and public opinion all seem to agree on one
point: nonpoint, or diffuse, water pollution presents one of
the nation's greatest remaining challenges. H.R. 961 responds
by providing additional funding, flexibility with
accountability, agency-wide coordination, and incentives for
innovative, market-based approaches, while retaining the basic
structure and framework of existing section 319 of the Clean
Water Act. The Committee explicitly rejected proposals for
broader revisions, placing greater command-and-control
authority within EPA and NOAA.
Subsection (a) modifies state assessment report
requirements in section 319 of the Act.
Subsection (b) includes various modifications to existing
section 319(b), relating to contents, requirements, and
mechanisms for each state program. Among other things, it
requires each section 319 program to include management
practices and measures to reduce pollutant loadings that may
include voluntary and incentive-based programs, regulatory
programs, enforceable policies and mechanisms, State management
programs approved under section 306 of the Coastal Zone
Management Act, and other methods to manage nonpoint sources to
the degree necessary to provide for reasonable further progress
toward attaining water quality standards within 15 years of
State program approval.
The amendments throughout subsection (b) include several
references to the goal of attaining water quality standards and
making reasonable further progress towards attainment of water
quality standards. One consistent theme runs throughout the
section, however: specific and unrealistic deadlines should not
be mandated from Washington, D.C. Instead, each state should
tailor its program so that reasonable further progress can be
made. A rigid 15 year deadline, particularly without interim
goals and milestones, can be counterproductive and lead to
needless litigation or prematurely imposed enforceable
mechanisms. Therefore, the Committee does not intend this
section to establish an absolute deadline of 15 years for
attainment of water quality standards.
For purposes of this section, reasonable progress toward
water quality standards attainment may be demonstrated by a
variety of measures and mechanisms. Adequacy of Federal funding
is a factor in determining reasonable progress. The program
also must include identification of goals and milestones for
attaining water quality standards, including a projected date
for attaining such standards as expeditiously as possible, but
no later than 15 years from the date of program approval.
Again, however, the intent of the Committee is that the 15 year
date be an overall goal of each program. The real measure of
success will be whether each state can demonstrate reasonable
further progress on a periodic basis.
In addition, subsection (b) adds a new section 319(b)(7) in
recognition of agricultural programs. Compliance with approved
whole farm or ranch natural resources management plans will
constitute compliance with the State management program if
certain conditions are met.
In section 319(b)(7), the word ``program'' refers to the
process of developing voluntary whole farm and ranch natural
resource management plans that, when implemented, will achieve
water quality results consistent with a State's nonpoint source
management program. The Memorandum of Agreement (MOA) between
the Governor and the Chief of the Natural Resources
Conservation Service (NRCS) or their designees should outline
the scope of the voluntary natural resources management plans
that will be developed for individual farms or ranches.
The MOA should focus on the process and the anticipated
water quality results in a given State. In order to facilitate
the tailoring of plans for site-specific conditions and
operations, specific conservation practices or management
techniques for an individual farm or ranch would not be
prescribed in the MOA. In developing the MOA, NRCS and the
State should strive for maximum flexibility due to the
variability of farm and ranch operations and resource
conditions such as geology, soils, climate, crops and so forth
that occur within the State. An individual farm and/or ranch
plan should be approved and considered to be in compliance with
the requirements of this section, as established in the MOA,
for a period of no less than the five-year duration of the MOA.
It is anticipated that practices specified in individual plans
may be implemented in varying time frames within the duration
of the plan, and implementation should not be interrupted by
frequent plan revisions. The MOA must recognize the need to
encourage farmers and ranchers to develop and implement whole
farm and ranch plans by allowing reasonable implementation time
periods, for example, time periods that provide for economic
recovery of costs. The farmer may request a plan revision at
any time and should request a revision to accommodate any
significant operational changes or unforeseen technical
problems within the farming/ranching enterprise.
Subsections (c) and (d) include numerous provisions on
submission, review, and approval of state management programs.
In particular, subsection (d) authorizes EPA to review State
programs and, in limited instances, to prepare and implement a
program for a given State. This is just one of several examples
of retaining accountability--i.e. safeguards to ensure
enviromental progress.
Subsection (e) expands opportunities for technical
assistance to states under existing section 319 by making
implementation, not just development, of programs eligible for
assistance.
Subsections (f) and (h) authorize funding for technical and
financial assistance by EPA including grants for preparing and/
or implementing reports and programs. These are certainly some
of the most significant provisions in the bill, in part,
because they recognize the need for increased attention and
resources for nonpoint source pollution. Subsection (f)
increases the Federal cost share from 60% to 75% and requires
EPA to establish an allotment formula for distribution to the
States. The bill also expands eligible uses of funds. EPA is
authorized to withhold grants to States that are not in
compliance. Subsection (h) increases program funding levels $50
million each year from $100 million for fiscal year 1996 to
$300 million for FY2000.
Subsections (g) and (h) recognize the importance of ground
water protection by raising the existing cap on ground water/
nonpoint source grants that any one state may receive from
$150,000 to $500,000 and by increasing the annual cap for the
national nonpoint source program from $7.5 million/year to $25
million/year.
Subsection (i) modifies current section 319 provisions on
consistency of other projects and programs with State 319
programs. The bill requires a Memorandum of Understanding
between a State and Federal agency that owns lands within the
watershed covered by the nonpoint source program to coordinate
nonpoint source control measures.
Subsections (j) and (k) include various provisions on
reports of the Administrator and set-asides for administrative
personnel.
Subsection (l) directs EPA to publish guidance on model
management practices and measures for consideration by the
States.
The Guidance on Model Management Practices and Measures is
a true ``guidance'' document, to be used by States at their
discretion in developing State nonpoint source management
programs. The measures and practices specified in this guidance
can only be general in design, since specific measures and
practices must be appropriately designed to meet the unique
geologic and hydrologic characteristics of the area. For
agricultural measures and practices, the guidance should
appropriately defer to Local Field Office Technical Guides. The
definition of Model Management Practices and Measures should
also consider whether the measure or practice is economically
achievable for an individual participant.
Subsection (m) includes an unfunded mandate safeguard,
i.e., compliance dates are delayed one year for each year
Congress does not appropriate 100% of authorized funds, unless
EPA and the State jointly certify that the amounts appropriated
are sufficient to meet the requirements of this section. The
Committee recognizes that adequate funding is crucial to the
success of any nonpoint source program.
Subsection (n) repeals section 6217 of the Omnibus Budget
Reconciliation Act of 1990, but at the same time folds some of
the successful aspects of the coastal zone management program
into section 319 of the Clean Water Act.
For example, sections 319 (a) and (b) are amended to
require States to identify critical areas, taking into
consideration the value of coastal areas. For coastal areas,
each State program must include an identification of land uses
that individually or cumulatively cause or contribute to
significant degradation of those coastal waters not attaining
or maintaining water quality standards and those coastal waters
threatened by foreseeable increases in pollutant loadings. In
addition, States must cooperate with coastal zone management
agencies in developing reports and management programs under
this section.
Subsection (o), agricultural inputs, clarifies that land
application of agricultural inputs, including livestock manure,
is not a point source and is regulated only under section 319--
and not subject to citizen suits.
Agriculture involves the purposeful disturbance of land
surfaces, the application of crop nutrients, animal manures and
protection products to augment and enhance natural processes in
the production of food and natural fiber. While farmers and
ranchers can manage these nonpoint source activities, they
cannot be controlled in the same fashion as point source
activities. Runoff from nonpoint source activities is largely
the consequence of natural hydrologic and geologic occurrences
beyond the control of farmers and ranchers. That is why
Congress has chosen to address diffuse, nonpoint source
activities like land application of livestock manure and
agricultural inputs, in a separate nonpoint source section,
with States responsible for determining how best to work with
farmers and ranchers in managing nonpoint source runoff. This
section clarifies and strengthens the statutory distinction
with respect to these agricultural nonpoint source activities.
Subsection (p) amends section 319 of the Act to include an
overriding purpose: to assist states in addressing nonpoint
sources of pollution where necessary to achieve the goals and
requirements of the Act. The provision further recognizes that
State nonpoint source programs need to be built upon a
foundation that voluntary initiatives represent the approach
most likely to succeed in achieving the objectives of the Act.
Section 320. National Estuary Program
Section 320 of the bill amends section 320 of the Act to
make a technical correction to the listing of priority
estuaries in existing law and adds Charlotte Harbor, Florida,
and Barnegat Bay, New Jersey, to the priority list. This
section also authorizes $19 million a year for fiscal year 1996
through 2000 and allows such funds to be used for grants for
monitoring of implementation in addition to grants for the
development of conservation and management plans.
Section 321. State watershed management programs
Section 321 of the bill establishes in the Clean Water Act
a comprehensive, new section on watershed management.
Throughout the Committee's hearings--both this Congress and
last--and in countless governmental and nongovernmental
meetings, reports, and recommendations, there has been
remarkable consensus on the need for a watershed-based,
``hollistic'' approach to water pollution control. Section 321
responds to this need by establishing in the Act an entirely
voluntary mechanism for States to use and coordinate existing
authorities and to experiment with new authorities (such as
pollutant transfer pilot projects) to increase the focus on
watersheds.
The Committee recognizes that the ``watershed-based
approach'' is not a new concept to the Clean Water Act. For
example, many of the provisions in sections 208, 314, 319, and
320 already explicitly or implicitly refer to or rely upon
management principles that focus on watersheds. Section 321,
however, will provide even greater focus by providing various
incentives and removing potential obstacles.
For example, some of the incentives include: (1) expanded
eligibility of watershed planning and implementation activities
for financial assistance; (2) increased flexibility for
issuance of point source permits; (3) opportunities for
pollutant transfers (trading); (4) multipurpose grants; and (5)
additional planning set-asides.
While section 321 is many things, it is not a new
regulatory program or mechanism for EPA or states to expand
regulatory authorities. Like section 319 and other sections in
title III, new section 321 is intended to be a program for
planning, managing, and coordinating. It does not include new
regulatory powers for the control of pollution sources that
could not be controlled under other Clean Water Act sections.
Instead, it embodies the belief that States can generally
achieve water quality standards most effectively and
expeditiously at the local watershed level by coordinating
these multiple authorities in concert with the active
involvement and cooperation of ``stakeholders'' in that
watershed, who are in the best position to identify problems
and design and implement suitable solutions.
Subsection (a) establishes a new section 321 in the Clean
Water Act.
A State may submit a watershed management program at any
time, and expedited program approval is provided for if a
program contains minimum elements on program structure, scope,
watersheds covered, requirements, goals, and consistency with
the nonpoint source and stormwater sections.
A State is provided significant flexibility in establishing
the scope of the program with respect to watersheds, pollutants
and factors to be addressed. This allows a State to tailor
program capabilities to water quality problems specific to the
State, and reflects the extent of the State's resources and
capabilities. To ensure local input, the State is to take into
account all regional and local watershed management programs,
and consider recommendations from units of local government and
water suppliers and agencies.
To encourage prioritization in use of the watershed
approach and scarce resources, a State is required to take into
consideration those waters where water quality is threatened or
impaired or otherwise in need of special protection in
identifying which watersheds will be addressed. Management
units for multistate watersheds may be included if jointly
designated by the States, and may include Federally owned or
managed waters and associated lands.
To facilitate flexibility in applying the watershed
approach at the local level, a State may go beyond the goals
and objectives of this Act and include State water quality
standards, including site-specific standards in identifying
goals to be pursued in each watershed. However, Federal
requirements and authorities apply only to the stated goals and
objectives of this Act. For purposes of this section, the term
``site-specific'' is intended to clarify that a State may
establish standards different from a statewide standard for a
particular water body or section of a river or stream, to the
extent deemed necessary and appropriate to reflect that site or
area's unique water quality attributes. It is not intended to
apply to a particular point or nonpoint source.
A State may submit modifications for an approved program to
the Administrator at any time, which shall remain in effect
until or unless the Administrator determines the program no
longer meets requirements. Each State with an approved program
shall provide an annual summary status report to the
Administrator. In an effort to reduce paperwork burdens, this
report may also be used to satisfy reporting requirements under
other sections of the Act. Responsible entities for multistate
watersheds shall be jointly determined by the States involved.
Approved State programs and specific watershed plans could
receive funding under various existing CWA authorities. As an
incentive for local watershed management, expanded eligibility
for assistance is established for watershed management costs
associated with activities such as analysis, standard setting,
identification and coordination of projects, activities and
institutional arrangements, training, and public participation.
For a watershed already attaining water quality standards,
a plan need only identify how standards will be maintained for
approval by a State with an approved program. To help ensure
that a local watershed plan will be compatible with State water
quality obligations under this Act, additional conditions are
established for watershed plans including impaired areas,
including identification of problems and how standards will be
met consistent with this Act's deadlines.
A State with an approved program has the flexibility to
deem approval of a local watershed plan, including interim
milestones, to be in effect for up to 10 years.
To assist States, the Administrator is required to issue
guidance within one year on provisions that States may consider
for inclusion in watershed programs and local plans. States and
other interested parties are to be consulted in development of
the guidance. This guidance is not an enforceable mechanism.
States are not required to use the guidance, in whole or in
part, as a condition of program or plan approval, so long as
minimum requirements of this section are satisfied.
This section establishes a pilot project under which a
discharger or source may apply for approval to offset the
impact of its discharge by arranging for another discharger or
source to implement controls or measures through a pollution
credits trading program established as part of a watershed
plan. Arrangements could include payment of funds. If a State
so chooses, this pilot project allows selective approval of
pollutant trading within a watershed if appropriate safeguards
are included. The Administrator shall facilitate the pilot
project by allocating funds to pollution credits programs in
selected watersheds throughout the country. A report is to be
submitted to Congress on the results of this pilot program
within 36 months of enactment.
From a water quality perspective, trading is most feasible
if it occurs within the context of an integrated watershed
planning process to ensure that the net reduction occurs in the
same receiving waters. Pollutant trading within a watershed can
provide overall water quality progress more flexibly and cost-
effectively. Currently, some sources are expected to experience
sharply increased costs, and even financial hardship, for the
next increment of pollution discharge reduction in revised
NPDES permits, in waters that remain impaired despite expensive
efforts already undertaken to date. The same or greater
reductions might be accomplished at a significantly lower cost
through pollutant trading, particularly in those instances
where more affordable best available technologies may have
already been utilized to eliminate the majority of discharges
in earlier staged reductions.
A properly designed pollutant trading program can be a
positive incentive for the development and implementation of
local watershed plans. Effective development and implementation
of a local watershed plan hinges upon willingness by all
stakeholders to participate.
Subsection (b) includes additional incentives for states to
develop watershed programs.
Specific incentives that benefit permitted point sources
are provided to encourage watershed management. A permitted
source that does not have a history of a significant
noncompliance may be issued a discharge permit with a
limitation that does not meet standards if the receiving water
is located in a watershed with an approved plan that contains
assurances that standards will be met by a specified date
through the combined efforts of both point and nonpoint
sources. Permit extensions in such a watershed are also
permissible in order to synchronize permit terms.
The Administrator may provide a multipurpose grant for a
State's approved watershed program, combining funds available
under different sections of this Act and applying terms that
apply for more than one year. This is intended to reduce
administrative burdens for both the State and the Agency and
provide flexibility to a State in focusing on priority
activities. A State may also reserve limited additional funds
for development of local watershed plans if half is made
available to local entities. This encourages a State to make
more planning funds available to local entities.
Section 322. Stormwater management programs
State Programs. Subsection (a) of the bill adds a new
section 322 to the Act which replaces the current section
402(p) stormwater permitting program with mandatory State
stormwater management programs.
Section 322 recognizes that stormwater discharges are more
characteristic of nonpoint sources and are fundamentally
different from point sources whose discharges are more readily
predictable and controllable. To avoid the continued imposition
of significant control costs and regulatory burdens that have
resulted in little, if any, water quality improvement, the
Committee has removed certain stormwater management from the
permitting requirements of section 402 of the Clean Water Act.
Rather than imposing a national permitting scheme, the bill
directs States to assess State waters, determine what
categories and subcategories of stormwater discharges should be
subject to controls, and identify control measures to be taken
by those categories and subcategories to allow attainment of
applicable water quality standards. The intent of the Committee
is to remove the costly requirements of the existing section
402(p) stormwater management program that creates bureaucracy
and red-tape unrelated to environmental benefits. The new
State-run program will allow a State to target both waters
adversely impacted by stormwater pollution and categories of
dischargers, and then gives the State the broad authority and
flexibility to control pollution from stormwater discharged by
those categories.
Purpose. Subsection (a) of the new section 322 identifies
the purpose of the section, which is to help States develop
cost-effective stormwater pollution controls in an expeditious
manner to allow States to meet the goals and requirements of
the Act no later than 15 years from the date of approval of a
State stormwater management program.
State Assessment Reports. Subsection (b) requires States to
prepare an assessment report identifying those navigable waters
that the State does not reasonably expect to attain or maintain
applicable water quality standards or the goals and
requirements of the Act, without controls on stormwater
discharges to those waters. The State assessment report also
must identify those categories and subcategories of dischargers
that add significant pollution from stormwater discharges to
the waters that the State identifies in the assessment report
and that are a contributing cause of the State's determination
that such waters will not attain or maintain water quality
standards or the goals and requirements of the Act.
The categories of discharges that are potentially subject
to control are stormwater discharges from municipal storm
sewers and industrial, commercial, oil, gas, mining, and
construction activities. These categories include approximately
7.7 million commercial and light industrial facilities and
thousands of small municipalities that are Phase II dischargers
potentially subject to permitting under section 402(p) as
currently in effect. Under new section 322, States have the
flexibility to exempt de minimis contributors of pollution
(such as small businesses, small municipalities, and small
construction sites) from regulation. The Committee does not
believe that it is essential for every activity with stormwater
runoff and every municipality to be included in the State's
stormwater management program.
The State assessment reports also must identify the process
the State proposes to undertake to identify measures for
controlling pollution from the categories and subcategories of
stormwater discharges that will be subject to the State
program.
Finally, the State assessment report must identify and
describe existing or proposed State, local, and if appropriate,
industrial programs for controlling pollution from stormwater.
The intent of this section is to allow each State to
develop a program that is tailored to its needs. Accordingly,
the bill allows States to target facilities and municipalities
and to target receiving waters.
The State must provide notice of and an opportunity for
comment on the State assessment reports. However, the decisions
made by the State that are discussed in the report, including
identification of dischargers (both municipal and nonmunicipal)
that add ``significant pollution'' to navigable waters and
navigable waters that require protection under the State
Stormwater Management Program are matters committed to the
discretion of the State.
The assessment report must be submitted to EPA for approval
within 18 months of enactment and must be reviewed, revised and
submitted to EPA for approval every 5 years thereafter.
State Stormwater Management Programs. Subsection (c)
requires each State to develop a State stormwater management
program, in conjunction and cooperation with affected local
governments, that will be implemented during the first five
years after program approval. The elements of the State program
are spelled out in paragraph (2).
Model Management Practices and Measures. Paragraph (2)(A)
requires States to identify model management practices and
measures to reduce pollutant loadings from each category or
subcategory of stormwater discharges targeted by the State for
regulation. States may utilize such model management practices
and measures identified by EPA in guidance issued pursuant to
new section 322(l). The identification of model management
practices and measures in a State program is not intended to
preclude facilities from implementing stormwater pollution
prevention plans that identify other effective measures for the
control of stormwater pollution.
Programs and Resources. Paragraph (2)(B) requires States to
identify the programs and resources it has determined are
necessary to provide for reasonable further progress toward and
achievement of the goal of attaining water quality standards
(that include stormwater criteria) by not later than 15 years
from the date of program approval.
Industrial, Commercial, Oil, Gas, and Mining Discharges.
Paragraph (2)(C) requires States to develop a program for
categories and subcategories of industrial, commercial, oil,
gas, and mining activities that provide incentives to implement
pollution prevention practices and eliminate the exposure of
stormwater to pollutants.
This section establishes a hierarchy of regulatory
frameworks. For noncontract facilities, described below, the
hierarchy begins with voluntary pollution prevention plans and
proceeds, if the State determines it is necessary, to general
permits and then site-specific permits. For contract
facilities, also described below, the hierarchy begins with
enforceable pollution prevention plans and proceeds to general
and then site-specific permits as determined to be necessary by
the State.
Noncontract facilities. Facilities where stormwater has no
contact with material handling equipment, heavy industrial
machinery, raw materials, intermediate products, finished
products, byproducts or waste products at the site of an
industrial, commercial, oil, gas, or mining facility
potentially subject to regulation under this section, are not
subject to enforceable stormwater pollution controls. However,
the State programs should encourage the use voluntary pollution
prevention planning to control the introduction of pollutants
to receiving waters from stormwater discharges. A facility
where stormwater comes into incidental contact with buildings
and motor vehicles only shall be considered a noncontact
facility. Currently, under EPA's interpretation of section
402(p), such noncontact facilities are not regulated.
Pollution Prevention Plans. For facilities where stormwater
does come into contact with such materials, each State program
must require enforceable pollution prevention plans. The
minimum requirements for the enforceable pollution prevention
plans are set forth in subsection (d) and are more stringent
than pollution prevention plans currently required under
general stormwater permits. Such pollution prevention plans are
self-implemented and self-certified, but must be kept available
for State review. If, upon review, the State determines that
the plan does not meet the requirements of subsection (d), the
State may require the facility to amend its plan and may take
enforceable action against the facility under section 309 of
the Act.
General Permits. A State program may propose to require
general permits for categories and subcategories of stormwater
discharges where the State finds, after providing notice and an
opportunity for comment, that reasonable further progress
towards achieving water quality standards (that contain
stormwater criteria) in a particular receiving water cannot be
made due to the presence of a pollutant or pollutants specified
by the State imposes general permits on such categories and
subcategories, despite the implementation of voluntary
activities (if a non-contact is targeted) or enforceable
pollution prevention plans (if a category where stormwater
comes into contact with pollutants from facility materials is
targeted). The bill does not set any minimum period of time for
implementation of pollution prevention plans by a category or
subcategory before a State may make such a finding. The State
may make this finding at any point after implementation of
pollution prevention plans that the State believes it has
adequate data to determine that this control mechanism alone
will not result in reasonable further progress toward achieving
water quality standards.
The State's identification of such categories and
subcategories and pollutants is a matter committed to the
discretion of the State. However, in the administrative
proceeding provided under State law for the issuance of
permits, a facility in a targeted category or subcategory shall
have the opportunity to demonstrate that stormwater discharges
from that facility are not contributing to a violation of a
water quality standard established for designated uses of the
receiving water and are not significantly contributing the
pollutant or pollutants identified by the State. If the
facility makes this demonstration, it shall not be subject to
the proposed general permit. In accepting or rejecting any
demonstration made by a facility under this subparagraph, the
State shall apply the standards applicable to general permit
decisions under State law. The State's decision to accept or
reject the demonstration will be reviewable to the extent that
general permits are reviewable under State law.
Site-Specific Permits. A State program may propose to
require site-specific permits for categories and subcategories
of stormwater discharges, or individual facilities in such
categories or subcategories, whether the State finds, after
providing notice and an opportunity for comment, that
reasonable further progress towards achieving water quality
standards (that contain stormwater criteria) in a particular
receiving water cannot be made, unless the State imposes such
permits, due to the presence of a pollutant or pollutants
specified by the State, despite the implementation of voluntary
activities (if non-contact facilities are targeted), or
enforceable pollution prevention plans and general permits (if
facilities where stormwater comes into contact with pollutants
from site materials are targeted). The bill does not set any
minimum period of time for implementation of general permits by
a category or subcategory, or an individual facility, before a
State may make such a finding. The State may make this finding
at any point after implementation of general permits that the
State believes it has adequate data to determine that this
control mechanism alone will not result in reasonable further
progress toward achieving water quality standards.
The State's identification of such categories and
subcategories (or individual facilities) and pollutants is a
matter committed to the discretion of the State. However, in
the administrative proceeding provided under State law for the
issuance of permits, individual facilities shall have the
opportunity to demonstrate that stormwater discharges from that
facility are not contributing to a violation of a water quality
standard established for designated uses of the receiving water
and are not significantly contributing the pollutant or
pollutant identified by the State. If the State finds that the
facility has met its burden and has made this demonstration,
applying the standard applicable under State law for the
issuance of site-specific permits, the facility shall not be
subject to the proposed site-specific permit. The State's
decision to accept or reject the demonstration will be
reviewable to the same extent that site-specific permits are
reviewable under State law.
Small Business. For small businesses engaged in industrial,
commercial, oil, gas or mining activities, States may not
require general permits or site-specific permits unless the
State finds that, without such permits, stormwater discharges
from small businesses will have a significant adverse effect on
water quality. The State's finding under this subparagraph is
committed to the State's discretion. If the State makes this
finding with respect to a category or subcategory of small
business (or an individual business) such a category or
subcategory (or individual business) shall be regulated in the
same fashion as other industrial, commercial, oil, gas or
mining activities. Paragraph (5) requires EPA to define small
businesses for the purpose of this section.
Municipal Discharges. Paragraph (2)(D) requires States to
develop a program for the reduction of pollution from municipal
stormwater discharges sufficient to allow the State to meet the
goals of this section and the Act. The State's identification,
of those municipalities that will be subject to the State
stormwater management program is a matter committed to the
discretion of the State. However, it is the intent of the
Committee that States work closely with local governments to
develop the municipal stormwater program.
Construction Activities. Paragraph (2)(E) governs
stormwater discharges from construction activities. The bill
does not require States to regulate construction activities in
the same fashion as industrial, commercial, oil, gas or mining
activities generally. The Committee recognizes that for
construction activities, many States already have stormwater
runoff and/or erosion and sediment control requirements in
place that are working to control stormwater runoff from
construction activities through pollution prevention practices
and measures. Accordingly, States must develop a program for
construction activities that is consistent with current State
and local requirements to avoid duplicative regulatory
requirements.
The program for construction activities also must take into
account land area disturbed by the construction activities and
should consider differences in soil conditions, project
duration, location, topography, and vegetation when identifying
management practices and measures.
The program for construction activities also must focus on
pollution prevention through model management practices and
measures. States are encouraged to use voluntary programs and
enforceable pollution prevention plans in lieu of a permitting
framework to require implementation of pollution prevention
management practices.
The State may impose effluent limits or other numerical
standards to control pollutants in stormwater discharges from
construction activities only if the State finds, after
providing notice and an opportunity for comment, that such
standards are necessary to achieve water quality standards.
This finding shall be reviewable in the context of any
applicable permit appeal proceeding. Such review shall be in
accordance with procedures and standards applicable to permit
decisions under State law.
States retain the flexibility to reduce (as well as
increase) controls established for categories and subcategories
of industrial, commercial, oil, gas, mining or construction
activities based on the State findings and facility
demonstrations provided for in this section. Thus, not only do
facilities have an incentive to prevent stormwater pollution to
avoid increased controls, they have the incentive to reduce any
stormwater pollution that is the basis for a permitting
requirement or an effluent limitation to work their way
``back'' to enforceable pollution prevention planning with a
goal of ``no contact'' (where economically and technologically
feasible) and voluntary pollution prevention activities. Thus,
the public and the environment benefit by a net reduction in
discharges of identified pollution to waters and improved water
quality and dischargers and States benefit by reduced
administrative burdens.
Bad Actor Provisions. Notwithstanding any other
requirements of this section, a State may take any action it
deems necessary to address stormwater discharges from bad
actors. Accordingly, Paragraph (2)(F) requires State stormwater
management programs to include a bad actor provision that
specifies that programs for specific types of dischargers (and
any hierarchy of controls specified in those programs) are
superseded where the State identifies, after notice and an
opportunity for a hearing, a discharger that has a history of
stormwater noncompliance under the Clean Water Act, State law,
or implementing regulations, permits, orders, or administrative
actions, or poses an imminent threat to human health and the
environment. The State stormwater management program need not
spell out what specific actions the State will take against
particular bad actors.
The identification of a discharger that has a history of
stormwater noncompliance or poses an imminent threat shall be
subject to the same standards and procedures applicable to
formal adjudications under the State law governing
administrative procedure. The discharger's right to review
shall be dependent on State administrative law and whatever due
process State law requires for the actions the State proposes
to take against the bad actor.
In identifying bad actors, the State may rely on a
discharger's failure to comply with stormwater requirements in
existence prior to the date of enactment of this bill. However,
a discharger subject to section 402(p)(6) (a Phase II
discharger) is not a bad actor solely by reason of a failure to
obtain or apply for a stormwater discharge permit. In addition,
a discharger subject to section 402(p)(4) (a Phase I
discharger) is not a bad actor solely by reason of a failure to
obtain a stormwater discharge permit if the discharger
submitted a complete stormwater permit application as required
under section 402(p) (including those facilities that were part
of an approved group stormwater permit application) prior to
the date of enactment of this bill in a timely fashion.
Schedule. Under Paragraph (2)(G), each State stormwater
management program must include a schedule for making
reasonable progress toward attainment of the goal of meeting
water quality standards (which contain stormwater criteria)
within 15 years of the date of program approval. The goal of
the program is meeting water quality standards. However, the
state programs are developed as five-year implementation plans.
The State program must be updated and revised after each five-
year internal. The Committee does not expect that water quality
standards will be met in all waters impacted by stormwater
discharges in the first five years of program implementation.
However, a State program must make reasonable further progress
toward the goal of attaining water quality standards.
Reasonable further progress may be shown by any combination
of improvements in water quality, documented implementation of
voluntary stormwater discharge control measures, or adoption of
enforcement stormwater discharge control measure.
Certification of Adequate Authority. Under Paragraph
(2)(H), a State must certify that it has adequate authority to
implement the stormwater management program, or list additional
authorities that will be necessary to implement the program and
a commitment to seek such additional authorities as
expectiously as possible. It is the intent of the Committee
that States be able to use existing authorities to the maximum
extend possible under State law, including existing permitting
authorities, to implement this program.
Identification of Federal Financial Assistance Programs.
Paragraph (2)(I) requires a State to identify Federal financial
assistance programs and Federal development projects that the
State will review for their effect on water quality and for
consistency with the State's stormwater management program.
Monitoring. Paragraph (2)(J) requires States to describe
the monitoring of navigable waters that will be carried out for
the purpose of assessing the effectiveness of the State
program.
Identification of Certain Inconsistent Federal Activities.
Paragraph (2)(K) requires States to identify activities on
Federal lands that are inconsistent with the State management
program.
Identification of Goals and Milestones. Paragraph (2)(L)
requires the State to identify goals and milestones for
achieving progress toward the attainment of water quality
standards (that include stormwater criteria), including a
projected date for attainment that cannot be later than 15
years from the date of program approval.
Utilization of Local and Private Experts. Paragraph (3)
requires a State to involve local public and private agencies
and organizations with expertise in stormwater management when
developing and implementing the State stormwater management
program. Private organizations include industrial facilities
and related trade associations, including those whose expertise
in stormwater management was developed from participation in
EPA's group stormwater permit application process.
Development on a Watershed Basis. Paragraph (4) requires
States to develop and implement State stormwater management
programs on a watershed basis to the maximum extent
practicable.
Regulations Defining Small Businesses. Paragraph (5)
requires EPA to issue regulations defining small businesses for
the purposes of this section. In defining small businesses, the
Committee expects EPA to consult with the Small Business
Administration Office of Advocacy and to examine the definition
of small business used in other environmental statutes.
Stormwater Pollution Prevention Plans. Subsection (d) sets
forth the requirements for the stormwater pollution prevention
plans that must be implemented by industrial, commercial, oil,
gas, and mining facilities under subsection (c)(2)(C)(ii). If
equivalent, State or local erosion control plans, or spill
prevention, control and countermeasure plans may qualify under
this subsection as a stormwater pollution prevention plan.
A facility that is complying with a stormwater pollution
prevention plan meeting the requirements of this subsection
shall not be subject to permits, mandatory model management
practices and measures, analytical monitoring, effluent
limitations or other numerical standards under section
322(c)(2)(C)(ii).
Administrative Provisions. Subsection (e) of new section
322 includes administrative provisions.
Cooperation Requirement. Subsection (e)(1) requires a State
to develop both the State assessment report and the State
stormwater implementation plan in cooperation with local,
substate, regional, and interstate entities which are
responsible for implementing a stormwater management program.
Time Period for Submission of Management Programs.
Subsection (e)(2) requires States to initially submit their
stormwater management programs to EPA within 30 months of the
date that EPA issues its guidance on model stormwater
management practices and measures (as required under subsection
(1) of new section 322). Every five years, States must resubmit
their program to EPA along with a demonstration of reasonable
further progress toward the goal of attaining water quality
standards (that contain stormwater criteria) and a
documentation of the degree to which the State has achieved the
interim goals and milestones contained in the previous program
submission. The State's demonstration shall take into account
the adequacy of Federal funding under this section.
Transition. Subsection (e)(3) identifies the rules that
apply during the period of time from enactment of this section
to the date a State program is approved. Notwithstanding the
repeal of section 402(p), section 402(p) remains in effect
during the transition period only as authority for permits and
enforcement measures as provided for in section 322. All
permits issued pursuant to section 402(p) remain in effect,
except as provided for in this subsection, until superseded by
an approved State stormwater management program. Stormwater
dischargers operating under permit applications because no
permit has yet been issued, shall continue to operate under the
terms and conditions in the permit description that accompanies
the application, unless the permitting authority disapproves
the application.
All conditions of those permits and permit applications,
including requirements for the payment of fees, also remain in
effect unless and until such conditions are modified by the
State. However, prior to the effective date of the State
stormwater management program, a stormwater discharger may
request the State or EPA, as applicable, to modify its
stormwater permit. For example, the discharger may seek
approval to have effluent limitations or numerical standards
removed from the permit.
Notwithstanding the repeal of section 402(p), during the
transition period after the date of enactment of the bill and
before the effective date of a State stormwater management
program, States shall retain any authority conferred by section
402(p) to enforce the permitting requirements that section
imposed on Phase I stormwater dischargers. However, any
stormwater discharger (both municipal and nonmunicipal) that is
complying with a stormwater discharge permit or application
continued in effect under this section shall not be subject to
citizen suits under section 505.
Any new nonmunicipal facility that begins operation during
this transition period that would have been a Phase I facility
if it had commenced operation prior to the date of enactment of
this Act, shall be subject to any applicable general permit
that covers its type of operations. To be in compliance with
this section, such facilities are required to notify the State
or Administrator that the facility intends to be covered by and
shall comply with such permit.
If there is no general permit applicable to the new
nonmunicipal facility, the State may impose enforceable
stormwater management measures under this section, State
authorities, or section 402(p) of the Clean Water Act as in
effect prior to the date of enactment of this Act, if the State
finds that the stormwater discharge is likely to impose an
imminent threat to human health and the environment or to pose
a significant impairment of water quality standards. Such a
finding is committed to the discretion of the State.
In recognition of the valuable information such dischargers
have collected, the considerable resources expended upon such
applications, the technical sophistication and relatively high
compliance rates of such dischargers, an industrial facility
that is included in a part 1 group stormwater permit
application approved by EPA under 40 C.F.R. section
122.26(c)(2), may choose to immediately implement a stormwater
pollution prevention plan consistent with subsection (d) of new
section 322 in lieu of continued operation under existing
permits. This option is available during the transition period
only. To exercise this option, the facility must certify to the
State, or EPA as appropriate, that it is operating under
stormwater pollution prevention plan that is consistent with
subsection (d). Upon such certification, the facility shall no
longer be subject to its existing permit. However, failure to
implement and comply with a stormwater pollution prevention
plan that is consistent with subsection (d) shall be a
violation of the Act subject to enforcement under section 309
and citizen suits under section 505.
Stormwater discharges for which permits were required under
section 402 prior to the 1987 amendments (which added section
402(p) to the Act) are not addressed under new section 322.
Such stormwater discharges remain point source discharges
subject to section 402.
Notwithstanding the fact that permits under section 402(p)
are continued in effect during the transition period, the
antibacksliding provisions of section 402(o) shall not apply to
any modifications of permits that may occur during the period
of time between the date of enactment of this Act and the
effective date of a State stormwater management program. Of
course, section 402(o) has no application to a State stormwater
management program, when implemented.
Approval or Disapproval of Reports or Management Programs.
Subsection (f) provides EPA with the authority to approve or
disapprove a State assessment report or a State stormwater
management program (or portion of a management program). If EPA
does not disapprove a report or program within 180 days of
submission, the report or program shall be deemed to be
approved.
To disapprove a proposed State stormwater management
program (or a portion of a program), EPA must determine, after
providing notice and an opportunity for comment, that (1) the
proposed program does not contain the elements required by this
section, (2) the proposed program will not satisfy the goals
and requirements of the Act, (3) the State does not have
adequate authority or resources to implement the program (or
portion being disapproved), or (4) the practices and measures
that the State proposes to implement will not result in
reasonable further progress toward the attainment of water
quality standards.
To disapprove a program or portion of a program, EPA also
must notify the State within six months of the date the State
submitted the program to EPA of the revisions or modifications
necessary for approval. The State then shall have an additional
six months from date of notification of disapproval to revise
and resubmit its program and EPA shall have an additional three
months from the date of receipt of the revised program to
approve or disapprove it.
When reviewing a State stormwater management program, EPA
shall not condition approval of a State's program unless it
makes the determinations provided for in subsection (f)(2).
Federal Takeover of State Programs. If a State does not
submit a State assessment report (which under subsection (b)
must be submitted within 18 months from the date of enactment)
by the date which a State stormwater management program must be
submitted to EPA, EPA must prepare an assessment report for the
State.
If a State does not submit a stormwater management program,
or if EPA disapproves the proposed State program, EPA shall
prepare and implement a stormwater management program for the
State.
If, upon reviewing a program submitted for renewal five
years after the date of initial program approval, EPA
determines (after taking into account the level of funding
provided compared to the level authorized) that the State has
not demonstrated reasonable further progress toward attainment
of water quality standards, the State shall have 12 months to
revise its program in a manner sufficient to achieve water
quality standards within 15 years from the date of initial
program approval. If the State fails to revise its program or
EPA disapproves the revision, EPA shall prepare and implement a
stormwater management program for the State. EPA's disapproval
of the revision also shall be subject to notice and comment.
As an alternative to Federal takeover of a State stormwater
management program under this subsection, EPA and a State may
approve a program submitted by a unit of general purpose local
government or a local public agency or organization. If the
State agrees, a local public agency or organization may seek
technical assistance from EPA to develop such a program, which
may be applicable to subsections of the State that EPA
determines are of sufficient geographic size to allow
implementation of a separate stormwater management program.
If EPA or a local agency implements a State stormwater
management program, or a portion of a State program, that
agency shall have the responsibilities and authorities for
program implementation placed upon or provided to the States by
the new section 322 and shall comply with the requirements
imposed on States under this section.
Interstate Management Conference. Under subsection (g) a
State may ask EPA to convene an interstate management
conference if a portion of the State's navigable waters are not
meeting water quality standards or the goals or requirements of
the Clean Water Act because of pollution from stormwater
discharges that originate in another State. If EPA determines
that the State has correctly identified stormwater discharges
originating in another State as the source of its water quality
problem, EPA shall notify the affected States and convene an
interstate management conference within 180 days of such
notification.
The purpose of the management conference is to develop an
agreement among the affected States relating to pollution from
stormwater discharges. If the States reach agreement, their
State stormwater management programs shall be revised to
reflect that agreement.
Grants for Stormwater Research. For the purpose of
determining the most cost-effective and technologically
feasible means of addressing pollution from stormwater
discharges and to develop stormwater criteria, subsection (h)
authorizes $20 million annually to be awarded by EPA for grants
for State and local demonstration projects and research to (1)
identify adverse impact of stormwater, (2) identify pollutants
in stormwater that have an adverse impact, and (3) test
innovative approaches to address the impacts of source controls
and model management practices and measures.
For each year that Congress fails to appropriate the full
$20 million authorized under this subsection, any deadlines
established in a State program for compliance with water
quality standards shall be postponed by one year.
Development of Stormwater Criteria. Subsection (i) requires
EPA to develop stormwater criteria as an element of water
quality standards established for designated uses of navigable
waters by December 31, 2008. The stormwater criteria need not
be numeric criteria. The criteria may include performance
standards, guidelines, guidance, and model management practices
and measures and treatment requirements. In addition, in
developing such criteria, EPA should consider the importance of
land-based transportation developments to national defense,
Postal Service operations and interstate commerce.
Collection of Information. Subsection (j) requires EPA to
collect and make publicly available information pertaining to
model management practice and measures and implementation
methods.
Reports of EPA. Subsection (k) requires EPA to submit a
biennial report to Congress on activities and programs
implemented under section 322 and progress made in reducing
pollution in navigable waters from stormwater discharges.
Guidance on Model Stormwater Management Practices and
Measures. Subsection (l) requires EPA to publish guidance on
model stormwater management practices and measures. EPA's
guidance must consider the fact that a State may choose to
integrate its stormwater management program with its section
319 nonpoint source management program.
Enforcement. Subsection (m) specifies that State stormwater
management programs are federally enforceable under sections
309 and 505 of the Clean Water Act.
Entry and Inspection. Subsection (n) specifies that a State
has the right to enter and inspect any property at which there
is a stormwater discharge or at which records required to be
maintained under a State stormwater management program and
located.
Stormwater Discharges Regulated Under a Watershed Program.
A State that chooses to develop a watershed program under
section 321 of the Act need not develop and implement a State
stormwater management program for those stormwater discharges
that are addressed under the State watershed program, which
shall be deemed to be the State stormwater management program
with respect to such discharges. However, subsection (o)
specifies that the State's regulation of stormwater discharges
under section 321 must be consistent with this section.
Consistency does not require duplication of a section 322
program within a section 321 program. However, if a State
chooses to use the authority provided under section 322 to
require a permit on a stormwater discharge in the context of a
section 321 watershed program (which does not give States any
authority to require permits for nonpoint sources of
pollution), the State must make the findings and utilize the
administrative procedures provided for under section 322. In
addition, consistent with this section, a State may not under
section 321 require compliance with numerical standards or
limitations based on water quality standards until such
standards incorporate stormwater criteria.
Mineral Exploration and Mining Sites. Subsection (p)
clarifies how stormwater discharges from mineral exploration
and mining sites are to be regulated following the date of
enactment.
Stormwater discharges from mineral exploration sites are to
be regulated in the same manner as stormwater discharges from
construction activities, consistent with current law. Mineral
exploration activities are generally of short duration and
affect only a limited area where core drilling or bulk sampling
is conducted. For exploration activities at inactive or
abandoned mine sites, the operator's responsibility for control
of stormwater is limited to the area disturbed by the
exploration activity in order to provide an incentive for
exploring such sites in historically mined areas without
incurring liability for the ground not disturbed by the
exploration operation.
Stormwater discharges from ore mining and dressing sites
that are commingled with mine drainage and process wastewater
are regulated as point source discharges under section 402, and
not as stormwater discharges under section 322.
Stormwater discharges from abandoned mined lands are to be
regulated under section 319, unless the State determines, in
its sole discretion, that regulation under section 322 is
necessary to make reasonable further progress toward achieving
water quality standards. However, due to the additional
remediation authorities and resources available under the
Surface Mining Control and Reclamation Act, abandoned mined
lands subject to that Act shall be subject to section 319 only.
All other stormwater discharges from mining activities are
regulated under section 322.
Section 322(b) of the bill repeals the limitation on
permits for stormwater from agricultural return flows and oil,
gas and operations under section 402(l). By repealing section
402(p) and the exemption in section 402(l), the Committee does
not intend to change the Clean Water Act's current approach to
agricultural stormwater runoff from cropland, pasture,
rangelands and other agricultural areas. Diffuse agricultural
runoff is addressed under section 319 and not the newly
established section 322; stormwater runoff from oil and gas
operations is regulated under new section 322; and stormwater
runoff from mining operations is regulated as specified in new
section 322(p), as discussed above.
Section 322(c) of the bill repeals section 402(p) of the
Clean Water Act. Notwithstanding this repeal, authorities and
requirements under section 402(p) remain in effect as provided
for in this section until such time as a State stormwater
management program is approved.
Section 322(d) of the bill defines the terms stormwater and
stormwater discharge and amends the definition of point source.
Stormwater is defined as runoff from rain, snow melt, or
any other precipitation-generated surface runoff.
Stormwater discharge is defined as a discharge from any
conveyance used for collecting and conveying stormwater to
navigable waters and which is associated with a municipal storm
sewer or industrial, commercial, oil, gas, or mining activity.
A conveyance shall include any ditch or channel formed by the
runoff and is not limited to artificially constructed
conveyances.
Stormwater discharges are excluded from the definition of
point source.
Section 323. Risk assessment and disclosure requirements
Section 323 of the bill adds a new section 323 to the Act.
This section is presented in two parts. First, the subsections
of section 323 are briefly summarized in the order they appear
in the bill. Second, the Committee's views regarding the
intended effect of section 323 are described. Although this
discussion focuses on the responsibilities placed on the
Administrator of EPA, these responsibilities also generally
apply to relevant activities performed by the Secretary of the
Army.
Subsection (a) requires the Administrator of EPA to develop
and publish a risk assessment before issuing any standard,
effluent limitation, water quality criterion, water quality
based requirement, or other regulatory requirement that is not
a permit or a purely procedural requirement, and any guidance
that, if a rule, would result in costs of $25 million or more
per year.
Subsection (b) delineates the minimum contents of risk
assessments. Risk assessments must identify and discuss data,
assumptions, risk to specific populations or natural resources,
and uncertainty.
Subsection (c) provides for the Administrator of EPA, in
consultation with the Secretary of the Army, to issue guidance
for conducting risk assessments covered under this section. The
guidance shall be issued within 180 days of enactment.
Subsection (d) requires that EPA provide an explicit and
practical quantitative description of any margin of safety
relative to an unbiased estimate of the risk being addressed.
In the past, margins of safety have been adopted in response to
legislative requirements and at the discretion of the Agency.
Subsection (e) allows EPA to exempt from the requirements
of this section, regulations that would result in costs of less
than $25 million or more per year.
Subsection (f) establishes an effective date for these
requirements as one year following the date of enactment of
this section.
Under subsection (g) EPA must conduct risk assessments for
regulatory requirements and guidance issued after February 15,
1995, that would result in costs of $100 million or more per
year. Such reviews must be completed within 18 months of
enactment of this section. The Committee notes that this
provision and a similar provision under section 324 (subsection
324(f)(1)(B)) has, unfortunately, been widely mischaracterized
and that these mischaracterizations have caused unnecessary
confusion.\1\ Thus far only one requirement, the Great Lakes
Initiative issued in March 1995, would need to be reviewed
under this subsection. Further, since rules costing $100
million or more are already required to be evaluated by EPA and
the Office of Management and Budget under Executive Order
12866, the Committee expects that the retroactive review
required by sections 323 and 324 will place little or no
additional burden on EPA, assuming EPA has complied with the
Executive Order.
\1\ For instance, the retroactive coverage of section 324 has been
described as repealing ``23 years of existing major Clean Water Act
standards by requiring extensive cost-benefit and risk assessment
reviews for all major existing standards within an impossible deadline
of 18 months.'' (Letter to Congress from Jay Hair of the National
Wildlife Federation dated April 3, 1995.)
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Overall, the Committee intends that section 323 be
consistent with the general risk assessment provisions of H.R.
1022, the Risk Assessment and Cost-Benefit Act of 1995, which
passed the House of Representatives on February 28, 1995 by a
vote of 286 to 141. Section 323 tailors the requirements of
H.R. 1022 to the Clean Water Act.
Section 323 sets out minimum requirements for risk
assessments that are performed in support of significant
regulations and guidance. The thrust of these requirements is
to fundamentally change the way EPA presents the results of
risk assessments to decision makers. Three aspects of this
section will lead to this change, each of which is described
below.
First, the requirements of subsection 323(b) will ensure
that the risk assessments reflect sound science. As Mary Jo
Garries, Chief of Standards and Certification for Maryland's
Department of the Environment recently noted, ``Too often * * *
in the rush to meet public demand for water quality protection,
standards are hastily and imperfectly derived. The
imperfections are frequently the result of inadequate science,
which can take many forms.'' Specific requirements under
sections 323(b) (1), (3), and (4) will require federal risk
assessors to identify and use all relevant and readily
obtainable scientific data and justify the selection of
significant assumptions, inferences or models that could
significantly change the findings of the risk assessment.
Second, section 323(b) will require EPA to produce best
estimates (or similar unbiased descriptions) of the risk to be
regulated. The Committee expects these estimates will be a
principal product of risk assessments. Currently, EPA does not
provide best estimates of the reduction in health and
environmental risks a proposed regulation will achieve.
Further, EPA typically does not describe the margin of safety a
proposed standard incorporates. Both of these problems are
caused, at least in part, by embedded and often hidden
conservation assumptions in risk assessments. This results in
estimates that reflect a degree of risk that is more serious
than an unbiased estimate would indicate. For instance, EPA
risk assessments for dioxin exceed those adopted by other
governments by a factor of a thousand and exceed independently
generated ``most likely estimates'' by a factor of 5,000.
The problems this presents for decision makers, including
State policymakers who must use EPA risk assessments to set
water quality standards, are significant. As a Department of
Energy study concluded last year, ``By design, many science
policy decisions lead to risk assessment results that are more
likely to overstate than to understate risks'' and,
unfortunately:
Risk assessors often fail to emphasize the existence
and extent of science policy in risk assessment. Where
the role of science policy is not explicitly explained,
risk estimates may be erroneously communicated to
policy makers, risk managers, the media, and the public
as uncontrovered fact. * * * Risk assessors should
ensure that such miscommunication does not occur.\2\
\2\ U.S. Department of Energy, ``Choices in Risk Assessment: The
Role of Science Policy in the Environmental Risk Management Process,''
Washington, DC, 1994, p. 241 and 244.
The absence of best estimates further complicates
policymaking in instances where risk assessments are used in
conjunction with information on economic effects in making
regulatory decisions (as opposed to using risk assessments to
set health-based standards). EPA's current risk assessment
process forces EPA decision makers to compare indeterminately
conservative estimates of risk reduction against best estimates
of compliance costs. Because the level of conservatism embodied
in risk estimates may vary by more than a factor of ten, this
necessarily warps the intent of policymakers who may otherwise
believe they are making consistent and rational decisions
regarding the expenditure of resources to protect public health
and the environment.
A more logical structure for assessing risks in pursuit of
health and environmental protection is to produce a best
estimate (or similar unbiased characterization) of the risk
along with a description of the uncertainty of the estimate and
then make an explicit and deliberate policy decision regarding
the margin of safety that is desirable. A margin of safety may
be necessary in order to protect certain specific populations
or subpopulations that are more sensitive to harm than the
population or ecosystem in general or in order to take into
account key uncertainties in the risk assessment, or because it
is required by statute. Defining an explicit margin of safety
is precisely the type of process engineers use in designing
dams, bridges, or other structures whose failure could result
in a significant loss of life or environmental damage.
Sections 323(b) (5) and (6) and subsection 323(d) address
these problems. They will require EPA to provide best estimates
(or other unbiased descriptions) of the risk being assessed,
describe the uncertainty inherent in these estimates and
explicitly identify and describe margins of safety adopted by
the Agency. It is important to note that the best estimate (or
other unbiased estimation) must include a description of the
specific populations or natural resources the best estimate is
based on. For instance, the prevalence and variability of the
populations used could be critical to interpreting such an
estimate.
The Committee recognizes that in order to meet these
requirements EPA will have to attempt to separate questions of
science from questions of policy. This is intentional. In 1983
the National Academy of Science recommended that:
regulatory agencies take steps to establish and
maintain a clear conceptual distinction between
assessment of risks and consideration of risk
management alternatives; that is, the scientific
findings and policy judgements embodied in risk
assessments should be explicitly distinguished from the
political, economic, and technical considerations that
influence the design and choice of regulatory
strategies.\3\
\3\ National Research Council, ``Risk Assessment in the Federal
Government: Managing the Process'' (also known as the ``Red Book'').
National Academy Press, Washington, DC 1983, p. 7.
However, the Committee also recognizes that policy and
scientific determinations are often intertwined an can be
difficult to segregate. These provisions of section 323 are
intended to separate policy and scientific findings as much as
is practical and require risk assessors to explicitly identify
and describe policy decisions whenever they are made.
The third change section 323 invokes is the greater use of
risk assessment results in setting EPA priorities. Subsection
323(b)(7) would require EPA to compare the nature and extent of
a risk to other risks to human health and the environment. This
reflects the importance of placing risk reductions in context
and forcing some evaluation of whether resources being directed
at the proposed risk reduction may be inadequate or may be
better directed at other more important priorities.
Among its several uses, the use of risk assessment as a
priority setting device offers the greatest opportunity for
benefiting public health and the environment. Comparative risk
can indicate where a reallocation of resources may result in
greater environmental benefits at no increased cost to society.
The Committee is concerned at the lack of prioritization that
takes place within the water program and across EPA. Numerous
bipartisan groups and experts including EPA's Science Advisory
Board, the Carnegie Commission on Science, Technology, and
Government, the Environmental Working Group, former EPA
Administrator William Reilly, and Supreme Court Justice Stephen
Breyer have recommended that EPA's planning and budgeting
process needs to reflect risk-based priorities.
The Committee expects that section 323 requirements for
producing unbiased risk estimates and comparisons to other
risks, along with establishing consistent guidelines for risk
assessments, will make it easier to deliberately set priorities
among water related regulatory activities, and compare these
activities to other priorities outside of the water program.
Such information will help future policymakers, including this
Committee, determine how laws, regulations, and budgets should
be changed to improve federal environmental programs.
Section 324. Benefit and cost criterion
Section 324 of the bill adds a new section 324 to the Act.
This new section is presented in two parts. First, subsections
of section 324 are briefly summarized. Following this, the
Committee's views regarding the intended effect of this section
are presented. Although the discussion of section 324 focuses
on the responsibilities placed on the Administrator of EPA,
they also apply to relevant activities performed by the
Secretary of the Army.
Subsection (a) requires the Administrator of EPA to certify
that new regulations (and new guidance that, if issued as a
rule, would result in an annual increase in costs of $25
million or more per year) maximize net benefits to society. The
requirement to maximize net benefits supplements and, to the
extent there is a conflict, supersedes decision criteria
otherwise applicable under the Clean Water Act, except that the
resulting regulatory requirement or guidance must be
economically achievable.
Subsection (b) directs EPA to issue guidance for conducting
benefit-cost analyses within 180 days of enactment. The
guidance shall include procedures for identifying policy
alternatives and methods for estimating incremental benefits
and costs.
Subsection (c) exempts from the requirements of this
section permits, purely procedural requirements, water quality
criteria, and water quality based standards.
Subsection (d) allows the Administrator of EPA the
discretion to exempt from the requirements of this section any
regulations that would result in costs of less than $25 million
per year.
Subsection (e) sets out the general effective date of
section 324 as one year from the date of enactment.
Subsection (f) requires EPA to review, using the criterion
of this section, any regulatory requirements and guidance
issued after February 15, 1995, if such regulations or guidance
would result in costs of $100 million or more per year. As
mentioned above, the effect of this requirement may need some
clarification (see the summary of subsection 323(g) above).
Subsection (g) directs EPA to perform a study within 5
years of enactment regarding the precision and accuracy of
benefit and cost estimates developed to comply with this
section.
Overall, the Committee intends that section 324 be
consistent with the benefit-cost provisions of H.R. 1022, the
Risk Assessment and Cost-Benefit Act of 1995 which passed the
House of Representatives on February 28, 1995, by a vote of 286
to 141. Section 324 tailors these requirements to the Clean
Water Act resulting in some important differences which are
described below. None of these differences are intended to
conflict with the requirements of H.R. 1022 but, rather, should
supplement or complement the benefit-cost requirements of H.R.
1022.
As noted earlier in this report, since 1972 Clean Water Act
regulations, and technology-based standards in particular, have
resulted in significant improvements in the nation's water
quality. For instance, the United States Geological Survey
recently noted that the concentrations in fish of three
important toxic elements (arsenic, cadmium, and lead) decreased
by more than 50 percent nationwide from 1976 to 1986.\4\
Nonetheless, there is evidence that the improvement in water
quality has come at an unnecessarily high cost and the
efficiency of Clean Water Act requirements will simply become
increasingly worse.
\4\ USGS, ``National Water Summary 1990-91, 1993, p. 135.
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A number of independent sources have recommended that
future Clean Water Act regulations need to reflect a better
balance between benefits and costs to society. Indeed, the
limited data available indicate current regulations are
extremely inefficient. One estimate placed the annual costs of
compliance with Clean Water Act requirements in the mid-1980s
at approximately $28 billion, while the benefits achieved over
the same time period were approximately half this ($14
billion).\5\ Further, a recent analysis indicates that under
existing provisions of the Clean Water Act, future regulations
may be even less cost-effective, resulting in costs that will
outweigh benefits by as much as four to one.\6\
\5\ See Freeman, A. M., Water Pollution Policy, in ``Policies for
Environmental Protection,'' edited by Paul Portney, pp. 122-127,
Resources for the Future, Washington DC, 1990.
\6\ Lyon, Randolph and Scott Farrow, ``An Economic Analysis of
Clean Water Issues'', ``Water Resources Research,'' January 1995, pp.
213-223.
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The purpose of section 324 is to ensure that future
regulations reflect a rational and coherent allocation of
society's resources. Over twenty years ago Bill Ruckelshaus,
then Administrator of EPA, argued against the adoption of
technology-based limits. He testified before this Committee:
``Effluent limitations are a means for achievement. They should
not become an end unto themselves, nor should they be defined
in statutory law solely in terms of the technology needed to
achieve them.'' He further stated:
There must be a rational, sober evaluation of
alternatives because we are always dealing with finite
resources. For instance, the extraordinary costs which
may be necessary to take the last five percent of
pollutants from a specific effluent in a specific river
basin may have no reasonable relationship to the
benefits to be derived. Without a consideration of the
nature and use of the receiving water, and the costs to
society, we may be wasting resources which could be
more effectively used to clean the air, dispose of
solid wastes, or effectively address water pollution
control in another body of water. As you well know, the
alternative uses of finite resources are infinite.
(Testimony of William Ruckelshaus before the Committee
on Public Works, December 7, 1971.)
On the same day, Russell Train, then the Chairman of the
Council on Environmental Quality, predicted that:
If we insist that the public pay--through tax
revenues and increased prices for manufactured goods--
many billions of dollars for water cleanup beyond the
point where added benefits can be demonstrated or even
assumed, I believe we will hurt the environmental cause
in two ways: First, the public legitimately will
question our wisdom on this and other environmental
matters and perhaps feel that the measures needed to
deal with environmental problems are being exaggerated.
Second, the imposition of enormous incremental costs
unsupported by water quality benefits attained will
divert an inordinate amount of our resources from other
environmental priorities, where they could be more
effectively utilized. (Testimony of Russell Train
before the Committee on Public Works, December 7,
1971.)
Despite Train's warning, the Clean Water Act was amended to
incorporate technology-based limitations with a modicum of
regard for benefit-cost considerations. Today the credibility
of federal environmental regulations is strained and the
allocation of environmental protection resources is patently
out of line with any set of rational priorities. As Peter
Rogers, a water policy expert at Harvard University states,
``there is an urgent need to review the cost-effectiveness, the
timetables, the attainability, and the prescriptive nature of
the present technology-based standards and regulations.''
The Committee believes it is important to make sure that
new or revised federal regulations be justified by the benefits
they will attain. If proposed regulations cannot meet such a
test, they will need to be reworked to make them less costly or
achieve greater benefits. The benefit-cost requirement embodied
in section 324 will force regulators to place a higher value on
the resources they compel taxpayers, consumers, and others to
use to restore and protect the nation's waters. It is the
Committee's intention that this requirement will spur greater
innovation and flexibility in the ways federal regulations are
formulated and will ultimately achieve greater environmental
protection than existing approaches at less cost. For instance,
this section should encourage regulators to seek out situations
where environmental protection and economic growth do not
conflict, but go hand in hand.
As mentioned above, section 324 contains some provisions
that are different from those adopted in H.R. 1022. These
include the criteria for benefit-cost review, the treatment of
guidance, and exemptions from the review requirement. Each of
these differences is described briefly below.
The most notable difference between section 324 and H.R.
1022 is the criteria for review. H.R. 1022 adopts three
decision criteria:
benefit-cost analyses are based on objective and
unbiased scientific and economic evaluations of all
significant and relevant information and risk
assessments;
the incremental risk reduction or other benefits of
any strategy chosen will be likely to justify, and be
reasonably related to, the incremental costs incurred
by society; and
that other alternative strategies identified or
considered by the agency were found either (A) to be
less cost-effective at achieving a substantially
equivalent reduction in risk, or (B) to provide less
flexibility to State, local, or tribal governments or
regulated entities in achieving the otherwise
applicable objectives of the regulation.
Section 324 adopts only one decision criterion: the regulation
must ``maximize net benefits to society'' (section 324(a)(1)).
The Committee believes that, for the purposes of the Clean
Water Act, this standard is consistent with, and preferable to,
the criteria listed in H.R. 1022 for the following reasons.
First, the Committee expects that the first criterion of
H.R. 1022, that benefit-cost analyses will be based on complete
and unbiased information, will be incorporated into the
guidance that will be issued under section 324(b).
Second, the Committee notes that the second and third
criteria of H.R. 1022, that incremental benefits be reasonably
related to incremental costs and that the regulation must be
the most cost-effective or flexible, are similar to standards
already used under certain provisions of the Clean Water Act.
For instance, applicants for permit modifications under section
302(b)(2)(A) of the Act must show that the costs of achieving a
effluent limitation are not reasonably related to the benefits
and a cost-effectiveness test is used to help determine best
available technology (BAT) standards under section 301(b)(2) of
the Act.
The Committee considers EPA's current implementation of
these criteria as contrary to the intent of H.R. 1022 and
section 324. For instance, as implemented under the Clean Water
Act, the cost-effectiveness test does not always consider the
option of no additional regulation (see, for instance, the list
of options presented in ``Cost-Effectiveness Analysis For
Proposed Effluent Limitations Guidelines And Standards For The
Coastal Subcategory Of The Oil And Gas Extraction Point Source
Category'' published by EPA in February 1995 on page 2-7). The
Committee is concerned that EPA may consider its current
interpretation of these tests as being consistent with the
criteria of H.R. 1022.
The ``maximize net benefits'' criterion adopted in section
324 will solve this potential problem. For instance, it clearly
requires EPA to consider all possible regulatory alternatives.
In fact, because it may result in the selection of alternatives
that could require a facility be closed (e.g., zero discharge
that is not technically feasible), section 324(a)(2) limits the
effect of the criterion by requiring the resulting regulatory
requirement must be economically achievable. It is important to
note that the ``maximize net benefits'' criterion does not
conflict with cost-effectiveness and other criteria used in
H.R. 1022, but, rather, subsumes them.\7\
\7\ For a discussion of the relationship between benefit-cost
criteria see Stokey, Edith and Richard Zeckhauser, ``A Primer for
Policy Analysis,'' Norton, New York, 1978, pp. 137-155.
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The second reason the ``maximize net benefits'' criterion
has been adopted for Clean Water Act requirements is that it
will be administratively easier for EPA to implement than the
three certifications under H.R. 1022. Since 1981, under
President Reagan's Executive Order 12291, EPA has been required
to estimate the costs and benefits of all new regulations. This
requirement was renewed in 1993 under President Clinton's
Executive Order 12866. Under these Executive Orders over 3,000
EPA rules have gone through benefit-cost review. The ``maximize
net benefits'' test under section 324 would subject new Clean
Water Act regulations to the identical benefit-cost analysis
required under Executive Order 12866. Thus section 324 would
compel no additional analysis beyond that already required,
assuming EPA has been complying with Executive Order 12866.
A second important difference between section 324 and H.R.
1022 is that it covers not only significant regulations (which
are covered by H.R. 1022) but other significant regulatory
requirements and significant guidance (see subsections
324(a)(1) (A) and (B)). The Committee intends for section 324
to cover the same set of policy documents as has been covered
by Executive Orders 12291 and 12866. These are ``agency
statements of general applicability and future effect, which
the agency intends to have the force and effect of law, that is
designed to implement, interpret, or prescribe law or policy or
to describe the procedure or practice requirements of the
agency'' (Executive Order 12866, section 3(d)). The Committee
notes that many documents EPA releases as ``guidance'' (such as
the Great Lakes Initiative) have a stronger effect than that
word typically connotes and that these documents will be
improved by benefit-cost review.
Finally, section 324 lists Clean Water Act-specific
exemptions not found in H.R. 1022. These include the issuance
of individual permits, purely procedural requirements, and,
importantly, rules governing the formulation of water quality-
based standards. The Committee does not intend that the
consideration of benefits or costs confuse EPA's development of
water quality criteria under section 304 of the Clean Water
Act, which represent non-regulatory scientific assessments of
ecological effects. Further, while the Committee believes water
quality-based standards should not be promulgated by EPA unless
they result in benefits that are at least reasonably related to
the costs of compliance with such standards (see section 303),
it is not the Committee's intention to require EPA to
``maximize net benefits to society'' when establishing water-
quality based standards.
Benefit-cost analysis will not only result in better
decision making at the first instance but will offer a baseline
for determining whether regulations are, in fact, resulting in
the benefits and costs that were anticipated. The Committee
notes that federal policymakers are currently greatly
restricted in what they can learn from the promulgation of past
regulation because there is seldom a clear record of what was
originally intended or expected. Section 324 should provide a
basis for creating a feedback loop in the policymaking process
so regulators can determine whether their original goals were
met and what types of regulation may better protect human
health and the environment at less cost.
As a final note, the Committee recognizes the difficulty
regulators face in attempting to perform benefit-cost analysis.
First, it may be morally challenging. People often balk at
admitting to the exchangeability of certain things. We would
prefer to maintain that some things are beyond price. However,
when society makes a decision to give up some of one good thing
(e.g., reduced dredging of harbors) in order to get more of
another good thing (e.g., reduced risk from contaminated
sediments), a tradeoff necessarily takes place.
The decisions that must be made by government involve
painful choices. They affect both the quantity and distribution
not only of goods and benefits, but also of potential health
and environmental damage. As James DeLong, former research
director of the Administrative Conference of the United States,
has pointed out:
It is easy to understand why people would want to
avoid making such choices and would rather act in
ignorance than with knowledge and responsibility for
the consequences of their choices. While this may be
understandable, I do not regard it as an acceptable
moral position. To govern is to choose, and government
officials--whether elected or appointed--betray their
obligations to the welfare of the people who hired them
if they adopt a policy of happy ignorance and
nonresponsibility for consequences.
Benefit-cost analysis is designed not to dictate individual
values, but to take them into account when decisions must be
made collectively. Its use is grounded on the principle that,
in democracy, government must act as an agent of the citizens.
A second challenge regulators may face in using benefit-
cost analysis is technical. How are benefits and costs to be
assessed? The Committee notes that the field of benefit-cost
analysis is more developed than is generally recognized. As
discussed above, benefit-cost analysis of all Clean Water rules
has been required since 1981 and a federal guidance for
conducing benefit-cost analysis, issued with EPA's concurrence,
was published over five years ago.
Further, the Committee does not intend that these analyses
prolong the decision making process. The level of detail and
effort required to complete these analyses should be
commensurate with the expected impact of the requirement or
guidance. It will come as no surprise if this section will
initially be difficult to implement. It will require a change
in thinking which will not be easy. However, the Committee
expects that the estimation of benefits and costs will
eventually become routine and subsequent benefit-cost analyses
will greatly benefit from the experience gained under the
Executive Orders and the first regulations or guidance assessed
under this section.
title iv--permits and licenses
Title IV of the bill amends Title IV of the Act, which
addresses permits and licenses.
Section 401. Waste treatment systems for concentrated animal feeding
operations
This section amends section 402 of the CWA to clarify the
scope of EPA's existing exemption from permitting for certain
waste treatment systems involving concentrated animal feeding
operations (CAFOs) and impoundments.
The Committee recognizes that both manmade and naturally
existing impoundments are utilized by CAFOs to meet the water
quality protection goals and effluent guidelines of the CWA.
The Committee recognizes that, in certain parts of the country,
a small number of CAFOs utilize playa lakes as waste retention
facilities to store rainfall runoff, and process generated
wastwater produced by the facility. Historically, these playa
lakes have functioned well as waste retention systems due to
lack of hydrologic connection to jurisdictional waters of the
United States and by providing excess storage and evaporative
capacity. It would be counterproductive to classify such
structures as waters of the United States, thus restricting
their future use. It is the Committee's intent that a
concentrated animal feeding operation utilizing a natural
topographic impoundment, including a playa lake, on the
effective date of this Act is authorized under this Act to
continue use of the impoundment.
Section 402. Permit reform
Duration and Reopeners. Section 402(a) of the bill amends
section 402(b) of the Act to extend permit terms from 5 to 10
years. The ten year permit term does not preclude the
permitting authority from terminating or modifying the permit
for cause, including as necessary to address a significant
threat to human health and the environment.
Review of Effluent Limitations. Section 402(b) of the bill
amends section 301(d) to require that effluent limitations in
permits be reviewed at least every ten years, when the permit
is reissued.
Discharge Limit. Section 402(c) of the bill amends section
402(b) of the Act to prohibit the permitting authority from
setting discharge limits in permits that are below the lowest
level that the pollutant can be reliably quantified on an
interlaboratory basis for a particular test method, as
determined by EPA using approved analytical methods. The
requirement that the quantification level be achieved on an
interlaboratory basis precludes the permitting authority from
setting permit limits below a quantification level that is
achieved by only one or two laboratories.
Section 403. Review of State programs and permits
Section 403 of the bill amends section 402 to revise EPA's
oversight of decisions made by States regarding implementation
of State permitting programs. First, this section amends
section 402(a) of the Act to place EPA review of State programs
on a three year cycle. Second, this section amends section
402(d) to change the standard for EPA disapproval of State
permits from ``outside the guidelines and requirements of this
Act'' to ``as presenting a substantial risk to human health and
the environment.'' Third, this section amends section 402(h) to
allow EPA to take judicial action to prohibit the introduction
of pollutants to a treatment works only where the discharge
involves a significant source of pollutants to the waters of
the United States.
Section 404. Statistical noncompliance
Section 404 of the bill amends section 402(k) of the Act to
provide permittees and indirect dischargers with an affirmative
defense to allegations of noncompliance with technology-based
effluent limitations or pretreatment standards if the permittee
or indirect discharger can show, through reference to
information from EPA's rulemaking docket on the development of
the relevant effluent guideline, that the technology on which
the effluent limitation or pretreatment standard is based does
not achieve that limitation or standard 100% of the time.
Technology-based effluent limitations guidelines under the
Clean Water Act are supposed to be based upon the pollutant
concentration levels that can be achieved by application of the
Best Practicable, Best Conventional, and Best Available
Technology. In setting these technology-based limits, EPA
identifies the model technology that meets the statutory
criteria, and then collects data on the pollutant concentration
levels that application of such technology is capable of
achieving. Not surprisingly, the achievable levels vary from
day to day. In deciding what discharger limits to promulgate,
EPA analyzes the data from the model technology and, using a
statistical methodology, determines the daily maximum pollutant
concentration level that the model technology can achieve 99
percent of the time, and the monthly average level that the
technology can achieve 95 percent of the time. It does not set
the limits at the highest daily maximum or monthly average
concentration levels that the model technology achieved
because, most of the time, the model achieves lower levels.
Exceedences even 1 percent or 5 percent of the time expose
dischargers to significant penalties, even when they are
properly using the very technology on which the limits were
based. For example, it is not uncommon in some industries for a
discharge permit to contain limits on 50 pollutants. In such a
case, a discharger using EPA's model technology would be
expected to exceed its daily maximum limits 120 times and its
monthly average limits 150 times during a 5-year permit term.
The maximum potential penalty for this discharger for
violations that are expected by EPA's methodology to occur is
$115 million.
EPA has argued that it can use its prosecutorial discretion
not to bring enforcement actions against dischargers for the
occasional exceedances expected from a technology. However,
citizen suits are not constrained by prosecutorial discretion.
Accordingly, this amendment gives dischargers with occasional
permit exceedences a defense to liability if they can
demonstrate that their performance is the same as the model
technology on which EPA based their permit limits. Nothing in
this amendment allows dischargers to reduce their current level
of treatment and nothing in this amendment affects water-
quality-based effluent limitations.
Section 405. Anti-backsliding requirements
Section 405 of the bill amends section 402(o) of the Act to
provide that anti-backsliding restrictions do not apply to a
POTW if the POTW demonstrates to EPA that the increase in its
discharge is the result of conditions beyond its control and
does not impair the water quality of the receiving waters.
Section 406. Intake credits
Section 406 of the bill amends section 402 of the Act to
require EPA to take into account the presence of pollutants in
a discharger's intake water (i.e., water that is taken into a
facility before the facility treats it for any purpose) if the
source of the intake water and the receiving water is the same;
if the source of the intake water meets drinking water
standards; or if the level of a pollutant in the intake water
is the same or lower than the level of that pollutant in the
receiving water. However, intake credits are not required for a
conventional pollutant where the constituents of the
conventional pollutant in the intake water are not the same as
the constituents of the conventional pollutant in the effluent.
This amendment also requires EP to provide an appropriate
intake credit in other circumstances, creating a presumption in
favor of the use of intake credits. In some cases, the
appropriate intake credit may be none at all. However, EPA must
explain why intake credits are inappropriate with respect to a
particular discharge permit.
This amendment does not preempt States and require them to
provide intake credits as well. However, the amendment does
ensure that States will retain the flexibility to provide
intake credits. In the context of the Great Lakes Initiative,
EPA has suggested that it has the authority to preclude States
from granting intake credits. This amendment makes it clear
that EPA has no such authority.
Section 407. Combined sewer overflows
Section 407 adds new subsection (s) to section 402 of the
Act to specifically address combined storm and sanitary sewer
system overflows (CSOs). New section 402(s)(1) contains the
general requirement that permits for CSOs are consistent with
the comprehensive CSO control policy finalized and signed by
the Administrator on April 11, 1994. Section 402(s)(2) provides
permit terms, including compliance deadlines for long term
control plans and extended deadlines based on economic
capability and reasonable further progress demonstrations.
Section 402(s)(2)(C) includes additional limitations on
extensions. Since it has been demonstrated that some of the
untreated wastes discharged during storm events from CSOs
located in New York have had negative impacts on the shore
areas of New Jersey (resulting in a court-imposed deadline for
compliance), the opportunity for extension has been limited.
Any extension requested by either New York or New Jersey for a
discharge which would affect the other State would have to be
agreed to in advance, in writing, by the governors of both
States.
New section 402(s)(2)(C)(3) includes a savings clause
relating to consent decrees and court orders entered or issued
before enactment of H.R. 961. Certain deadlines, schedules or
timetables shall be modified to extend to December 31, 2009.
Section 408. Sanitary sewer overflows
Section 408 adds new subsection (t) to section 402 of the
Act to specifically address sanitary sewer system overflows
(SSOs). New section 402(t)(1) directs the Administrator to
develop and publish a national control policy for municipal
separate sanitary sewer overflows. The SSO policy must
recognize and address regional and economic factors. The
Committee also expects the Administrator to provide a thorough
assessment of the problem, including the magnitude, frequency,
location, nature, impact, health effects, and existing
regulatory controls of SSOs.
Paragraphs (2) and (3) require permits for SSOs to conform
to the SSO policy and to include compliance deadlines,
including deadlines for long term control plans. Paragraph (4)
allows for an extension of such deadlines if certain conditions
are met.
Paragraph (5) provides that, prior to publication of the
SSO policy, the Administrator or Attorney General may not
initiate any administrative or judicial civil penalty action in
response to an SSO due to stormwater inflows or infiltration.
Paragraph (6) includes a savings clause similar to the one
applicable to CSOs; specifically, certain deadlines, schedules
or timetables shall be extended to December 31, 2009.
Section 409. Abandoned mines
This section authorizes EPA to issue permits to
governmental entities and persons cooperating with governmental
entities that are remediating abandoned mines. The permits
modify otherwise applicable Clean Water Act requirements and
require the incorporation of a remediation plan. The
remediation plan must include, among other things, a
description of the physical conditions at the site which are
causing adverse water quality impacts and a description of the
practices proposed to reduce, control, mitigate or eliminate
the adverse conditions, along with a schedule for implementing
such practices. The remediation plan must demonstrate, with
reasonable certainty, that the actions taken will result in an
improvement of water quality.
Abandoned mines continue to pose a problem as a major
source of water pollution, as thousands of stream miles are
severely impacted by drainage and runoff. These mine sites are
of particular concern in the Western States, where sites are
numerous and the water supply so precious. However, through
remedial actions, water quality previously tainted by mining
activities can be improved. The current CWA scheme, however,
does not provide the flexibility nor the incentive for
undertaking or encouraging such remedial action. The Committee
strongly favors remedial measures to improve water quality, and
intends through implementation of section 409, to encourage
such activities for abandoned mine sites.
Section 410. Beneficial use of biosolids
Subsection 410(a) amends section 405 of the CWA to
acknowledge that sewage sludge is also referred to as
biosolids. Beneficial recycling of biosolids is an
environmentally and scientifically sound practice that can,
among other things, improve soil fertility and water
conservation. The Committee supports these and other efforts to
encourage greater public acceptance of beneficial reuse.
Subsection (b) of the bill directs the Administrator to
approve delegation of a State biosolid program if the State
includes all the substantive standards for Final Use and
Disposal of Sewage Sludge, 40 C.F.R. Part 503, as revised.
EPA's insistence on strict adoption of procedural
requirements has delayed delegation. This provision will
provide needed flexibility to the States for accepting primacy
over the Part 503 program. The biosolids program will operate
most effectively when run by the States, and States should be
given maximum flexibility to develop their biosolids programs,
consistent with the Part 503 regulations. Even though the
regulations have been in place for over two years, no State has
yet assumed primacy for the program.
Subsection (c) further amends section 405 of the CWA by
including a reference to ``building materials'' (such as
``biobricks''), directing the Administrator to issue additional
guidance on beneficial use of sewage sludge and updating the
funding authorization for the section. The Committee strongly
encourages the Administrator to actively promote the
development and use of biobricks, one of several promising
beneficial uses of sewage sludge. Biobricks, a mixture of
sewage sludge, clay and shale, have virtually identical
characteristics as other bricks, but added benefits. For
example, use of biobricks can help preserve valuable landfill
space and conserve energy and water.
Section 411. Waste treatment systems defined
Section 411 of the bill adds new section 406 to the Act to
require EPA to issue regulations defining waste treatment
systems. Such regulations must include areas used for
detention, retention, treatment, settlement, conveyance, or
evaporation of wastewater, stormwater, or cooling water within
the definition of waste treatment system unless (1) such area
was created in a navigable water after the date of enactment,
(2) the owner or operator of the area allows it to be used by
interstate or foreign travelers for recreational purposes, or
(3) the owner or operator of the area allows it to be used for
fishing for sale in interstate or foreign commerce.
Under section 502 of the bill, waste treatment systems (as
defined by EPA within the parameters of new section 406) are
excluded from the definition of navigable waters. This
amendment confirms what is already evident from structure and
purposes of the Act and from EPA's current applicable
regulatory definition of ``navigable waters.'' It should not
even be necessary to amend the Act to make it clear that,
except in unusual circumstances, areas used for the treatment
of wastewaters prior to their discharge to navigable waters are
not themselves navigable waters. However, EPA has not
consistently applied the regulatory definition of navigable
waters, creating uncertainty for the regulated community.
On May 19, 1980, EPA promulgated a definition a ``navigable
waters'' at 40 C.F.R. section 122.2 that excluded ``waste
treatment systems, including treatment ponds or lagoons
designed to meet the requirements of the Clean Water Act (other
than cooling ponds as defined in 40 C.F.R. section 423.11(m)
which also meet the criteria of this definition).'' In the
definition, EPA also provided that: ``This exclusion applies
only to manmade bodies of water which neither were originally
created in waters of the United States (such as disposal areas
in wetlands) nor resulted from the impoundment of waters of the
United States.''
The exception in 40 C.F.R. section 122.2 to the general
exclusion of waste treatment systems from the definition of
navigable waters was suspended by EPA on July 21, 1980. (45
Fed. Reg. 48620.) At that time, EPA agreed that the definition
of navigable waters may be overboard and should be reexamined.
In addition, there no longer is a definition of cooling ponds
at 40 C.F.R. section 423.11(m), or elsewhere in EPA's
regulations.
EPA has not consistently interpreted its regulations to
exclude from the definition of navigable waters all waste
treatment systems that may have been constructed in
jurisdictional waters, or even all waste treatment systems that
were clearly constructed outside of jurisdictional waters. In a
December 13, 1993, memorandum, Robert Perciasepe, EPA Assistant
Administrator for Water reviewed issues relating to whether a
new utility cooling pond constructed in part in jurisdictional
wetlands would be considered a ``navigable water.'' Mr.
Perciasepe concluded that ``due to the ambiguities in the
existing regulation and apparent lack of national consistency,
EPA should begin rulemaking development to air the policy
issues and clarify the jurisdictional status of steam electric
cooling ponds.'' EPA has informed the Committee that currently
it is not working on the development of such a rulemaking.
In the meantime, under Mr. Perciasepe's memorandum, EPA
Regions have the discretion to make decisions regarding whether
waste treatment systems are navigable waters on a case-by-case
basis. The memorandum specifies that (1) Regions may regulate
treatment systems as navigable waters based on an actual or
potential connection to interstate commerce (which under some
court decisions may include potential use of water by migratory
birds), (2) Regions may interpret the current regulatory
exclusion for waste treatment systems as including all cooling
ponds, whether or not built in jurisdictional waters, or (3)
Regions may take into account the particular uses of a cooling
pond to decide whether it is a navigable water.
Although built partially in wetlands, Region IV ultimately
decided that the cooling pond that was the subject of the 1993
Perciasepe memorandum was not a navigable water. However, a
later regulatory official may decide to revisit that decision.
In short, companies and individuals today live under a very
real fear that cooling ponds and surface impoundments they are
using for waste treatment may suddenly be determined to be
navigable waters, and subject to the full panoply of Clean
Water Act requirements. This is not simply a theoretical
concern. There are companies and individuals that are currently
under threat of EPA enforcement action in which they are
alleged to have discharged without an NPDES permit into
settling and evaporation basins that no one previously had ever
suggested were navigable waters.
In requiring EPA to clarify the definition of navigable
waters as it applies to waste treatment systems, the Committee
is making the policy decision that EPA may not revisit an
earlier decision to allow the creation of a waste treatment
system in a jurisdictional area, such as wetlands, without
requiring an NPDES permit for discharges to that waste
treatment system. Accordingly, such waste treatment systems are
grandfathered. If, however, EPA has asserted jurisdiction over
the system and has issued a final NPDES permit for discharges
to that system, those areas remain navigable waters.
In developing its regulations, EPA has the discretion to
regulate a waste treatment system as a navigable water only if
(1) such area was created in a navigable water after the date
of enactment, (2) the owner or operator of the area allows it
to be used by interstate or foreign travelers for recreational
purposes, or (3) the owner or operator of the area allows it to
be used for fishing for sale in interstate or foreign commerce.
In giving EPA discretion over the jurisdictional status of such
areas, the Committee is not requiring that such areas be
regulated as navigable waters. In fact, EPA may conclude that
such areas are adequately protected under State law or other
Federal law; that non-waste treatment uses of the area are
sufficiently limited; that classification of an area as a waste
treatment system will not pose any significant risk to public
health; that facilities open for certain non-treatment uses
after the operative date have been or will be closed; that
failure to include such areas within the definition of waste
treatment system would undermine the achievement of the goals
or requirements of the Act; or that Clean Water Act regulation
of such areas is not necessary for other policy reasons
identified during the rulemaking process. EPA's rules also may
allow for case-by-case classification of existing or proposed
areas as ``waste treatment systems'' if such classification is
given finality.
Finally, for those areas constructed as waste treatment
systems that are nevertheless classified as navigable waters
subject to regulation under the Act, the amendment directs EPA
and the States to take into account the treatment purposes for
which the area was constructed, and allow a permitting
authority to tailor any regulatory requirements, including
water quality standards, to avoid interfering with continued
use of the area for waste treatment. In particular, as to heat,
which generally would not be expected to pose any threat to
human health, the Committee would expect that thermal standards
or other requirements imposed, if any, would not constrain
continued use of the area for heat dissipation.
Section 412. Thermal discharges
The intent of section 412 is to require that either the EPA
or the State of Ohio determine, based on scientific evidence,
that thermal discharges from the Piqua Municipal Utility are
actually causing harm to aquatic life, before they require the
Utility to construct a cooling tower or operate under a thermal
management plan. Additionally, the Committee intends that the
Utility not be required to construct the cooling tower of
implement the thermal management plan until it has had the
opportunity to utilize all rights of appeal and judicial
review.
title v--general provisions
Section 501. Consultation with States
Section 501 amends the CWA to require, among other things,
that EPA consult and substantially involve State and local
governments in CWA decisionmaking and implementation efforts.
Furthermore, it exempts meetings held between federal officials
and State, local, and tribal officials for the purposes of
exchanging views, information, or advice relating to the
management or implementation of this Act from the Federal
Advisory Committee Act.
The Committee repeatedly received requests, throughout the
testimony on CWA reform, to increase the role of State and
local governments in the decisionmaking process regarding water
issues. Numerous examples were provided demonstrating that
water issues could be more effectively addressed at the State
and local level, rather than solely at the federal level. Due
to the size and rich diversity of our nation's water supply,
State and local interests, often times, are in a better
position to address water issues unique to their region. The
Committee acknowledges this fact, and recognizes the importance
of State and local input into the decisionmaking process.
Section 502. Navigable waters defined
Section 502 of the bill amends section 502(7) of the Act to
exclude ``waste treatment systems,'' as defined under new
section 406, from the definition of navigable waters.
Section 503. CAFO definition clarification
Section 503 amends section 502(14) of the CWA to clarify
the definition of a concentrated animal feeding operation
(CAFO) as a point source. Unlike typical concentrated
production facilities where animals are fed and maintained on a
continuous basis for extended periods of time, intermittent
nonproducing livestock operations are short-term, temporary
facilities. These operations, such as stockyards or holding and
sorting facilities, typically house livestock less than 24
hours for one to two days per week, and keep feeding and
watering to a minimum.
Section 503 clarifies CAFO to include intermittent
nonproducing operations only if the average number of animal
units that are fed or maintained in any 90 consecutive day
period exceeds the number of animal units determined by EPA or
the State to constitute a CAFO; or if the operation is
designated by EPA or State as a significant contributor of
pollution.
Section 504. Publicly owned treatment works defined
Section 504 of the bill amends section 502 to add a
definition for POTWs. To encourage privatization of treatment
works, this definition includes all treatment works, other than
those located at industrial facilities, that EPA determines are
designed and constructed principally to treat domestic sewage
or a mixture of domestic sewage and liquid industrial wastes,
and, if privately owned, are carrying out and complying with a
pretreatment program that meets the requirements of section 307
of the Act.
Section 505. State water quantity rights
Section 505 amends section 510 of the Act to clarify that
the Act does not abrogate a State's right to allocate
quantities of water or authorize the Federal Government to
allocate quantities of water. The provision responds in part to
the increasing concern that the Federal Government may try to
circumvent the intent of section 101(g) by superseding,
abrogating, or otherwise impairing State authorities to
allocate water or superseding, abrogating, or otherwise
impairing rights to quantities of water established by State
law. The Committee reiterates that the Clean Water Act is a
water quality and water pollution control statute and is not to
be used by the Federal Government as a means to accomplish
other ``agendas'' such as water quantity allocation.
During its hearing process, the Committee became aware of
several potential impacts of the Supreme Court's decision in
PUD No. 1 of Jefferson County v. Washington Department of
Ecology (1994). The case is particularly relevant to
relationships among Federal and State agencies and to the
Federal regulation of U.S. hydroelectric resources. In this
case, the Supreme Court ruled, among other things, that State
water quality agencies, under section 401 of the Act, could
impose stream flow requirements and place other mandatory
conditions on hydropower projects to support designated uses.
This decision raises significant policy issues regarding
duplication of review in the licensing process for hydropower
projects regulated by the Federal Energy Regulatory Commission
(FERC). Of primary concern is the consequence that State water
quality agencies, under the purview of section 401, might
consider and place mandatory conditions on hydropower projects
to address issues that are already considered within the
Federal licensing process.
Notably, the Supreme Court's decision in PUD No. 1 of
Jefferson County v. Washington Department of Ecology did not
address how to resolve potential conflicts between State water
quality agency certification requirements and the comprehensive
statutory responsibilities of FERC under the Federal Power Act.
As a result, hydroelectric licensees are left with some
uncertainly and a process that does not necessarily allow for
resolution of intergovernmental conflicts or provide the
stability and accountability necessary for an effective and
workable regulatory program.
While recognizing the need for clarification and regulatory
reform, the Committee did not include legislative language on
this issue in order to allow adequate time for the hydropower
community and state representatives to collaborate on
development of a mutually agreeable resolution to the program.
Should negotiations in this regard prove unsuccessful, the
Committee plans to work with others to resolve the issue
legislatively by addressing questions of duplication in the
hydropower licensing process, the role of FERC, and proper
deference to State water quality agencies.
Section 506. Implementation of water pollution laws with respect to
vegetable oil
Section 506 requires federal agencies to differentiate
among types of oil when issuing or enforcing regulations or
guidelines relating to water pollution control laws. For
purposes of this section the phrase ``water pollution control
laws'' is a reference to the CWA and the Oil Pollution Act of
1990. The requirements to apply different standards and
reporting requirements (including reporting requirements based
on quantitative amounts) is a reference to the so-called
``sheen rule'' and the need to include a quantitative,
volumetric component to such reporting requirements.
Section 507. Needs estimate
Section 507 of the bill amends section 516(b) of the Act to
authorize the existing needs estimate to be prepared
quadrennially rather than biennially.
Section 508. General program authorizations
Section 508 of the bill amends section 517 of the Act to
authorize such sums as may be necessary for fiscal years 1996-
2000 to carry out the Act.
Section 509. Indian tribes
Section 509(a) of the bill amends section 518 of the Act to
require EPA to respect the terms of cooperative agreements that
address the authority of a State or Indian Tribe to administer
this Act. The Committee believes that the most appropriate
method to ensure consistent implementation of this section
between State and Tribal authorities is the development of
cooperative agreements. It is the Committee's view that the
Administrator should not revise the division of responsibility
between a State and a Tribe under this section so long as the
cooperative agreement provides for adequate administration of
the section.
Section 509(b) amends section 518 to require EPA to issue
regulations providing for resolution of disputes arising from
differing water quality standards that may be issued by States
and Indian Tribes located on common bodies of water. The
Committee is of the opinion that there should be a process to
resolve disputes between States and Indian Tribes over
differing water quality standards located on common water
bodies. The Committee also believes that all persons who are
impacted by differing water quality standards between the
States and Indian Tribes should have standing to utilize the
dispute resolution process.
Section 509(c) amends section 518 to give United States
District Courts the jurisdiction to review any EPA
determinations under Section 518. Because of the cost and
burden on States and Indian Tribes associated with challenge to
EPA actions, the Committee believes that the proper forum for
challenges to actions under this section are the U.S. District
Courts that are proximate to the impacted parties. It is also
the Committee's view that given the complex legal regimes
attendant to States and Indian Tribes under this Section that
the District Court should undertake its review de novo
including the taking of evidence.
Section 509(d) defines ``Federal Indian Reservation'' to
include, in the State of Oklahoma, lands held in trust by the
United States for the benefit of a Tribe, lands subject to
federal restrictions against alienation, and lands located
within a dependent Indian community. This provision simply
conforms the Act to take into account the unique status of
certain Indian Tribes within the State of Oklahoma.
Section 509(e) amends section 518(c) to reserve 1 percent
of sums appropriated under sections 607 and 608 for Indian
Tribes. This provision raised from one-half of 1 percent the
amounts to be made available to Indian Tribes. This will allow
for additional resources to be authorized for use by Native
Americans to alleviate some of the most pressing Clean Water
needs.
Section 510. Food processing and food safety
Section 510 of the bill adds section 519 to the Act to
require EPA to consult with FDA, the Department of Health and
Human Services, the Department of Agriculture, and the
Department of Commerce when developing any effluent guideline,
pretreatment standard, or new source performance standard
applicable to the food processing industry and to consider and
explain any departure from any comments from these entities
with respect to food safety.
Section 511. Audit dispute resolution
Section 511 of the bill adds new section 520 to the Act to
require EPA to establish an independent Board of Audit Appeals
to review and decide contested audit determination with respect
to grant and contract awards under the Act.
Over the past several years, as the construction grants
program has been phased-out, funded projects have undergone
rigorous close-out audits to ensure that funds were
appropriately expended and that completed projects comply with
the grantee's stated plans, designs, and specifications. The
Committee has heard testimony over the past several years about
disallowance by auditors of previously approved project costs
where there is no fraud or abuse.
For example, in the case of the Las Virgenes Municipal
Water District in California, an audit disallowed all EPA
approved project costs, totalling more than $10 million,
because of potential ineligible portions of the sludge disposal
facility project. The audit decision was based on the
conclusion that the previously approved project design was
unacceptable because it resulted in excess disposal capacity.
After four years of appeals to EPA, the disallowed costs were
reversed. The grantee was awarded all of the costs with the
exception of $126,000.
This example is not unique. A survey of audit performed in
Region IX between 1985 and 1992 revealed that auditors
disallowed approximately 53% of previously approved costs.
However, on appeal, 93% of all project costs were upheld. The
survey also found that during this time period, EPA spent $12
million to conduct audits, but recovered only $3.5 million
based on the final audit resolution.
The current audit and appeals process is not cost-effective
and has forced local governments to initiate costly and time
consuming appeals that could be handled more efficiently. The
Committee also is concerned about the potential conflict of
interest created by the fact that, currently, EPA reviews
decisions of auditors, even though it is EPA's own project
decisions that are the subject of the audit. Accordingly, this
amendment directs EPA to establish an independent audit appeals
board. This board will provide both local government officials
and EPA with an impartial process through which claims can be
reviewed and settled, minimizing costs to Federal, State, and
local government.
title vi--state water pollution control revolving funds
Section 601. General authority for capitalization grants
This section broadens the authorized uses of State
revolving loan fund (SRF) assistance to include any activities
that accomplish the purposes of the Clean Water Act. (See
conforming provisions in section 603 below.)
Section 602. Capitalization grant agreements
Section 602 removes administrative requirements previously
imposed on Title II grant recipients and currently extended to
applicants who receive SRF capitalization grant loans. Other
cross-cutting federal requirements that may apply to the use of
SRF loans (e.g., regulations implementing the Drug-Free
Workplace Act of 1988) will be considered met if a State has an
applicable program which addresses the intent of the federal
requirement. Existing federal requirements would only apply to
activities receiving federal capitalization grants. Activities
funded by State resources and funds from repaid federal grants
would not be covered by federal requirements. This section also
requires EPA to issue guidance within one year of enactment on
simplified procedures to aid small communities (populations of
20,000 or less) in obtaining assistance under the SRF program.
(See section 603 below for other provisions affecting small
communities.)
Section 603. Water pollution control revolving loan funds
Section 603 broadens the activities eligible for SRF loans
to those actions that have as their principal benefit the
protection or improvement of water quality. This includes non-
point source programs, watershed management, stormwater
management, and measures to improve water use efficiency.
Nothing in this section is intended to supersede or otherwise
affect other EPA programs under the Safe Drinking Water Act.
Nothing in this section authorizes the use of funds for
consolidation of small drinking water systems or plumbing
replacement. Disadvantaged communities would be eligible for
extended repayment schedules of up to 40 years and negative
interest rates as low as negative two percent.
``Disadvantaged'' would be defined by the State based on
guidance to be issued by EPA. States may use up to 2 percent of
SRF grants for technical assistance to small communities.
Subsection (i) also allows States or relevant agencies to
transfer treatment works to a qualified private sector agency.
This subsection generally codifies provisions of Executive
Order 12803 issued April 30, 1992.
In section 603(c) of the bill, the Committee has expanded
the eligible purposes for which State revolving loan funds may
be used to include loan guarantees for developing and
implementing innovative technologies for purposes of meeting
the goals and requirements of the Clean Water Act. This will
provide more flexibility to States in assisting private sector
projects that may provide substantial water quality benefits.
The Committee is aware that there may be cases in which the
recipient of a guarantee will be willing to pay the cost of the
guarantee. This type of financing would protect the interests
of the State revolving loan fund while enabling the recipient
to obtain financing at a reasonable rate. The Committee
encourages States to explore this type of financing to promote
private sector solutions to water quality problems.
Section 604. Allotment of funds
Section 604 provides for a new allotment formula based on
population and recently estimated needs, but adjusts the
formula to insert a hold harmless and cap limitation to prevent
any State from losing or gaining approximately 10 percent of
the State's prior allotment. Without the hold harmless and cap
limitation, the allotments to many States would change
drastically. For instance, over 14 States would see a reduction
of over 50 percent in their allotments (see Figure 2). The 10
percent limitation will ameliorate these potentially disruptive
changes.
Section 605. Authorization of appropriations
Section 605 authorizes general SRF capitalization grants at
$2.5 billion each year for fiscal years 1996 through 2000. It
is the Committee's view that authorizing SRF capitalization
grants at this level is critical to assisting States and local
governments in keeping pace with Clean Water Act needs.
In the near term EPA estimates that current Clean Water Act
mandates will cost municipalities approximately $23 billion in
fiscal year 1996. This is more than six times the total amount
of Federal grants to States and local governments for all
environmental needs proposed for 1996 (see Figure 3). In the
longer term, EPA estimates that States face over $137 billion
in capital needs to meet existing Clean Water Act requirements
over the next 20 years.
On a related issue, the Committee also received testimony
critical of the manner in which EPA disburses SRF
capitalization grants to States. EPA currently disburses grants
through a letter of credit (LOC) procedure whereby the Agency
makes commitments to the States through a LOC account
established between EPA and the State. Funds are disbursed when
States ``draw'' against the LOC to meet financial obligations.
Thus, ``draws'' are made as costs are incurred to meet
construction invoices, premiums for the purchase of bond
insurance, and satisfy other fiscal needs.
When it enacted the SRF program, Congress intended for
capitalization payments to be made in the form of cash or
check. The use of LOCs to disburse funds was not discussed or
contemplated. LOCs were developed later by the Executive Branch
to defer outlays.
The LOC disbursement method effectively prohibits States
from implementing authorized uses of SRF funds which require
access to cash in advance of meeting obligations (see section
603(d) of the Act for a list of authorized uses).
Unfortunately, the authorized uses of the fund the LOC method
obstructs are those uses that offer States very productive
capital generation. The Committee is concerned that, in
implementing the LOC approach, the Executive Branch has
deprived the federal government of maximizing the effectiveness
of its investment in water quality improvement.
The Committee believes cash payments would result in a more
beneficial and productive use of limited federal funds and
calls upon the Administration to work with the appropriate
Committees of Congress in studying the advisability and
feasibility of moving from the current LOC method for
disbursing capitalization grants to cash disbursement as
originally intended by Congress.
Section 606. State nonpoint source water pollution control revolving
funds
Nonpoint source pollution represents the largest remaining
challenge to achieving clean water standards. Recognizing that
resource allocations should reflect this changing priority,
this section amends Title VI to authorize $500,000,000 per year
for a separate State nonpoint source revolving fund dedicated
to nonpoint source pollution. Since each State faces a
different range of water quality problems and priorities, the
Committee has provided for maximum flexibility by allowing each
State to transfer funds from one fund to the other.
The Committee expects States to utilize these funds
aggressively in providing financial assistance to farmers,
ranchers and others involved in nonpoint source activities for
the purpose of implementing management measures and for
development and implementation of the water quality components
of whole farm and ranch plans designed to reduce nonpoint
source runoff, with a priority for impaired waters. This
dedicated fund also may be used by States to implement the new
stormwater management programs that States are required to
develop to address stormwater runoff under section 322 of the
bill. States are authorized and encourages to utilize the full
range of flexibility in utilizing SRF funds, including low- and
negative-interest loans to serve as cost-share grants.
title vii--miscellaneous provisions
Section 701. Technical amendments
Section 701 provides a number of technical corrections to
be made to Title 33 of the U.S. code, including grammatical
corrections, typographical errors and misspellings, and
inadvertent deletions from original text.
Section 702. John A. Blatnik National Fresh Water Quality Research
Laboratory
Section 702 renames the National Fresh Water Laboratory in
Duluth, Minnesota for former Chairman of the Committee on
Public Works and Transportation, John A. Blatnik. Chairman
Blatnik included authorization of the National Fresh Water
Laboratory in the 1961 reauthorization of the water pollution
control law, as a companion to the National Salt Water
Laboratory already established in Rhode Island.
Section 703. Wastewaster service for colonias
Section 703 authorizes $50 million for grants to States
along the United States-Mexican border to assist in the
planning, design, and construction of wastewater treatment
works for communities along the border, known as ``Colonias.''
These grants shall be administered through the EPA. The federal
cost of projects undertaken pursuant to these grants shall be
limited to 50 percent, with the non-federal share to be
provided by the State receiving the grant.
Section 704. Savings in municipal drinking water costs
The Committee believes that municipalities will achieve
substantial savings from implementation of CWA reforms, in
addition to the environmental benefits expected. Section 704
requires EPA to perform a study of the annual savings that
municipalities realize specifically in the construction,
operation, and maintenance of drinking water supplies as a
result of actions taken pursuant to the CWA; and to report its
findings to Congress within one year.
title viii--wetlands conservation and management
Title VIII replaces section 404 of the existing Federal
Water Pollution Control Act (FWPCA) with a new, comprehensive
program to regulate discharges of dredged or fill material into
waters of the United States (including wetlands) and drainage,
channelization and excavation activities in wetlands.
Section 801 cites Title VIII as the ``Comprehensive
Wetlands Conservation and Management Act of 1995.''
Section 802 includes findings and statements of purpose.
Findings include declarations regarding the importance of
wetlands to the Nation; the need for a regulatory approach that
balances wetlands conservation and enhancement with
consideration of private property rights and the need for
essential infrastructure and economic growth; the fact that
section 404 was not originally established as a wetlands
regulatory program and, under current law, is not effective as
such; and the need to streamline regulatory procedures for
navigational dredging. Purposes of Title VIII include the
assertion by Congress that, for the first time, Federal
regulatory jurisdiction should be applied to a broad category
of activities that cause wetland losses; that Federal agency
actions should not limit use of private property or diminish
its value; that the relative value of wetlands as measured by
the functions they perform should be taken into account in
establishing the regulatory requirements applied to activities
in wetlands; and that procedures for regulating navigational
dredging should be streamlined.
Section 803 is the principal component of Title VIII. It
strikes the current section 404 of the FWPCA and replaces it
with a new section 404. The following paragraphs summarize the
new provisions of section 404:
New section 404(a) specifies that no person may undertake
an activity in a wetland or a water of the United States
without a permit from the Secretary of the Army (``Secretary'')
unless otherwise authorized by this section.
New section 404(b) authorizes the Secretary to issue
permits in accordance with this section. No Federal permit is
required under section 404 for an activity occurring in a Type
C wetland, or that is authorized under a general permit, or
that is exempt from permit requirements. This provision does
not limit State or local government's ability to regulate
activities pursuant to their own authorities.
New section 404(c) establishes procedures for the
classification of wetlands for purposes of this title and
procedures for obtaining wetland classifications. The
classification of wetlands according to the relative functions
they perform is an essential element of the reforms this title
achieves.
Under existing law, there is no meaningful provision for
determining the degree of rigor to be applied in regulating
proposed activities in wetlands. Today, all federal
jurisdictional wetlands are subject to the same degree of
regulatory rigor whether the wetland in question is a pristine
wooded swamp or a small, degraded wetland in an industrial
development. The regulatory agencies suggest that distinctions
with respect to various classes of wetlands are reflected in
their regulatory decisions, although these distinctions are not
reflected in the provisions of the statute. Indeed, the Corps
of Engineers and the Environmental Protection Agency issued
guidance to their field offices in 1993 on this issue.
The Committee believes strongly that the federal wetlands
regulatory program must reflect the reality that all wetlands
are not equal. Some wetlands provide greater environmental
functions than others and should be treated accordingly. New
section 404(c) will remedy this problem in current law by
requiring that regulatory emphasis be placed on conserving and
enhancing the truly valuable wetland resources while requiring
the traditional ``public interest'' balancing be applied to
most wetlands. Regulation of low value wetlands will be left to
the discretion of State and local governments. This approach
will also allow the limited federal funding and personnel
resources available for this program to be concentrated on
those wetland resources that are most important to the goals of
the FWPCA.
The Secretary is required to issue regulations within one
year of enactment on procedures to be used in classifying
wetlands. Persons seeking to undertake activities in wetlands
regulated under this section must apply to the Secretary to
make a determination on the classification of the affected
wetland. Within 90 days of receipt of the application, the
Secretary must advise the person of the wetland classification
and the basis for such classification. In those cases where the
activity would affect a wetland that has already been
classified pursuant to the advance classification program under
section 404(h), the Secretary must, within 30 days of receipt
of the application, provide that information to the person and
allow opportunity for a de novo classification and an
administrative appeal of the classification.
Type A wetlands are defined as those which are of critical
significance to the long-term conservation of the aquatic
environment and which meet specified requirements. Such
requirements include that Type A wetlands (1) serve critical
wetlands functions; (2) are at least 10 acres in size (or a
part of a wetland that is at least that large) and have either
an inlet or an outlet providing for the flow of water into or
out of the wetland; (3) occur in a watershed or aquatic
environment where there is a scarcity of Type A wetland
functions; and (4) are wetlands in which there is unlikely to
be an overriding public interest in the use of such wetlands
other than conservation.
In issuing regulations on wetland classification, the
Secretary is expected to establish clear parameters for
applying such terms as ``critical significance'' and
``scarcity.'' Areas that are wetlands under this section but do
not satisfy the requirements for Type A wetlands shall be
deemed to be either Type B or Type C wetlands. The Committee
has included language that assures that areas such as prairie
potholes, vernal pools and playa lakes are not excluded from
being classified as Type A wetlands solely because of their
limited size or lack of an inlet or outlet for the flow of
water; This provision, however, is not intended to prejudge
that such areas are Type A wetlands. Depending on the wetland
functions they perform and the application of wetland
delineation criteria, such areas may be Type B or Type C
wetlands or may not qualify as Federal jurisdictional wetlands
at all. These determinations must be made on a case-by-case
basis.
Type B wetlands are those which provide habitat for
significant populations of wetland wildlife or perform other
significant wetland functions. Such wetlands will provide
enhancement or protection of water quality, significant natural
flood control or similar benefits, but in amounts less than
that provided by Type A wetlands. As with Type A wetlands, the
Secretary shall define ``significant'' and other key terms in
regulations. The Committee anticipates that most wetlands will
be determined to be Type B wetlands under this Act.
Type C wetlands are the least valuable wetlands in terms of
the functions they perform. They include such areas as those
which serve limited wetland functions; which serve some wetland
functions but exist in relatively abundant quantity such that
Federal regulation is not required to conserve important
wetland functions; and areas that are within developed areas
that do not serve significant wetlands functions. Wetlands
shall not be classified as being Type C merely because they are
located in developed areas. The committee recognizes that many
valuable wetlands are located in or adjacent to urban centers
or other developed sites.
A landowner may request and obtain a determination of
whether a wetland or other water of the United States is
present on his or her property and, if wetlands are present,
the classification of such wetlands. The Secretary must make
determinations and notify the owner within 90 days of such a
request and must provide documentation on the basis for making
the determination. In the event that the landowner disagrees
with the Secretary's determinations, the owner may pursue a
judicial review of or an administrative appeal of the
determination.
New section 404(d) prescribes the requirements and
procedures for remedies to Federal regulatory actions taken
under this section that limit the use of property thereby
reducing the property's value. These provisions are consistent
with those contained in H.R. 925, which was passed by the House
of Representatives on March 3, 1995. These provisions require
that a property owner who has a portion of his or her property
value diminished by 20% or more by an agency action under this
section shall be compensated by the Federal Government for that
amount. If the affected portion of the property is diminished
by more than 50%, the property owner has the right to require
the Federal Government to purchase the affected portion of the
property for its fair market value. Compensation shall not be
made with respect to any agency action taken to prevent a
nuisance as defined by State law; an activity prohibited under
local zoning ordinance; or a hazard to public health or safety
or that is potentially damaging to other property. For example,
if a permit is denied for a structure that would otherwise
result in flooding to an adjacent property, the permit
applicant would not be eligible for compensation under this
title.
Once compensation has been made under this title, the
affected portion of the property generally cannot be used in a
manner that is contrary to the limitation imposed by the
regulatory action of the agency. Payment for compensation is to
be made from the annual appropriation of the agency causing the
reduction in property value. For example, if the Secretary's
application of the public interest review for activity in a
Type B wetland causes denial of the permit, the Secretary's
civil works appropriation will be the source of funds for
compensation. Another example would be action taken through the
section 404 permit process by the Secretary of the Interior or
Secretary of Commerce under the Endangered Species Act that
prohibits or limits use of property. In this case funds would
come from the appropriation of the Interior or Commerce
Department.
New section 404(e) addresses general procedures to be
followed in reviewing permit applications. The procedures
include application of a ``sequential analysis'' for activities
in Type A wetlands. This sequence requires that, to the maximum
extent practicable, impacts on wetlands shall be avoided as the
first step in the evaluation of the permit application.
Associated with this approach is the presumption that there is
a non-wetland alternative location for the activity. An example
of where a presumption that there is a non-wetland alternative
could be inappropriate is the development of oil and gas or
other mineral deposits. If no non-wetland alternative is
practicable, the sequence requires that impacts be minimized
through such means as project redesign. Any remaining impacts
would then be mitigated through the application of compensatory
mitigation.
The term ``sequential analysis'' as used here refers to the
process described in the Memorandum of Agreement, dated
February 6, 1990, between the Secretary and the Administrator
of the Environmental Protection Agency. Application of the
sequential analysis procedures shall supplement, but not
replace, a review of impacts of the proposed activity on the
public interest. For mining activities, mitigation requirements
will be deemed to be satisfied where State-approved reclamation
plans or permits are in effect if normal reclamation activities
are included and if the activity results in net environmental
benefits. Permits for activities in Type A wetlands may contain
appropriate terms and conditions to prevent unacceptable
wetlands losses.
Permit applications for activities in Type B wetlands are
evaluated through application of a ``public interest'' review
which balances environmental, economic and social concerns and
reaches a conclusion on issuance of a permit based on the
weighing of reasonably foreseeable benefits and detriments
associated with the proposal. Among the factors to be
considered are mitigation costs, overall social, economic and
recreational benefits, the ability of the applicant to provide
mitigation, the degree of wetlands impact in the context of the
total watershed, and whether impacts of the activity are
permanent. Unless the Secretary can clearly demonstrate to the
contrary, the project purpose as defined by the applicant shall
be binding on the Secretary and, in the case of applications
from public agencies, the applicant's definition of project
purpose shall always be binding on the Secretary.
In evaluating terms and conditions that are necessary to
preserve wetland functions, the Secretary shall consider new
technologies and methods which have potential for reducing
adverse impacts while providing a productive, cost-effective
use for recycled resources. One such method incorporates the
use of portable road-building mats for temporary, all-weather
roads across wetlands, streams and soft ground. The mats, which
are made from recycled scrap tires, have been used successfully
in the United States and in Canada in the construction,
logging, oil and gas, mining and cross-country pipeline
industries. The committee encourages the Secretary, where
practicable, to use or encourage contractors to use such
portable road building mats made from scrap tires and to
encourage permit applicants to consider this and other new
technologies.
Requirements for compensatory mitigation are addressed in
detail in the legislation. These are applicable to activities
in Type B and Type A wetlands when the Secretary determines
that compensatory mitigation is appropriate in such wetlands.
Mitigation shall not be required where the Secretary finds that
adverse impacts to wetlands will be temporary or incidental.
Mitigation requirements shall be determined based on the
specific impact of the proposed activity at the site of such
activity, not on the impacts of prior activities or activities
occurring at different locations. The Secretary is to issue
regulations applicable to mitigation requirements for permits
issued under this section. Among the considerations to be
addressed are allowance for mitigation through changes in
project design as well as through compensatory actions;
mitigation through the enhancement or restoration of degraded
wetlands; mitigation through contribution to a mitigation bank;
circumstances where off-site mitigation would be appropriate;
contributions of in-kind value; construction of coastal wetland
protection and enhancement projects; and circumstances where
out-of-kind mitigation would be appropriate.
In certain instances, the Secretary may determine that
compensatory mitigation is not required. These instances
include a finding that: there are limited adverse impacts
associated with the permitted activity; practicable and
reasonable means of providing mitigation are not available;
wetlands functions are provided in the area of the permitted
activity in relative abundance such that wetlands functions
will continue to occur, taking into account project-specific
and cumulative impacts; the adverse wetland impacts are
temporary; and hardship factors limit the applicant's ability
to provide mitigation.
The use of ``mitigation banks'' is authorized as an
additional means of accomplishing compensatory mitigation for
activities under this title. Such banks will provide a greater
degree of flexibility to the Secretary and to applicants in
finding means of assuring that permitted activities do not
result in significant wetlands losses. These procedures are
similar to those proposed by the Administration in March 1995.
The Secretary is required to issue regulations within 6 months.
Such regulations are to address requirements that assure that
chemical, physical and biological functions lost through
permitted activities are compensated. Emphasis is to be placed
on providing for in-kind replacement and proximity to the
affected watershed to the extent that this is feasible and
makes sense environmentally. This provision is not intended,
however, to preclude out-of-kind mitigation where circumstances
warrant. Mitigation banks may be operated by a public or
private entity as long as such entity has the financial
capability to assure the long-term viability of the bank. The
means of determining wetland impacts and bank debit amounts are
to be based on scientifically sound and consistent methods.
Arrangements for mitigation banks are to provide for the
transfer of credits for mitigation to be accomplished in the
future as well as for mitigation that has already taken place.
Deadlines for making decisions on permit issuance are
included to give certainty to applicants and discipline to the
regulatory program. Except for circumstances involving
compliance with other federal law, such as the National
Environmental Policy Act, the Secretary must take final action
within 90 days of receipt of a complete permit application for
an individual permit; otherwise the permit shall be presumed to
be issued in accordance with the proposal's description as
contained in the application. If the application's is not
complete, the applicant must be notified within 15 days of
receipt and must be advised of the additional information that
is required. The applicant is also given a role in determining
when the permit application is complete. Once the applicant
advises the Secretary that the application is complete, the
Secretary must either take final action on the application
within 90 days or, if the application does not contain all of
the requested information, deny the application, without
prejudice, within 30 days. This will provide greater certainty
to applicants regarding the status of their application. It
will also place greater emphasis on advising the applicant of
additional information that is required to evaluate the
proposal and will result in more accurate statistics on the
regulatory program.
Activities occurring in Type C wetlands are those that do
not impact wetland functions sufficiently to warrant the
exercise of federal regulatory authority under this title.
While such activities may be addressed under State and local
regulatory programs, they do not require a federal permit under
this title.
States in which there are substantial conserved wetlands
warrant regulatory procedures and restrictions that are
commensurate to the relative abundance of wetlands within the
State. For example, in the State of Alaska there is estimated
to be 172,000,000 acres of remaining wetlands, more than the
remaining wetlands in the other 49 states combined. An
extremely small fraction of the State's historical wetlands
base has been lost. Those losses are estimated to be less than
200,000 acres. In cases such as this, permit applicants should
have the option of regulatory review procedures that reflect
the abundance of wetlands in the State. Procedures in this case
will preclude requirements to avoid activities in wetlands. In
addition, compensatory mitigation shall not be required and
requirements for minimization of impacts shall be contingent on
such minimization being economically practicable. Further,
where activities occur on economic base lands in a State with
substantial conserved wetlands, the Secretary is directed to
issue permits that do not require minimization where the
interests of economic development so warrant where Alaska
Native lands are involved.
Provisions in existing law to authorize the use of
``general permits'' to streamline and shorten the review time
for certain activities are retained and modified to facilitate
use of this approach. General permits may apply to activities
that are similar in nature and that do not have significant
adverse effects when considered singly and cumulatively. For
those inquiries that require the Secretary to determine whether
the provisions of a general permit apply, the Secretary must
make the determination and advise the applicant within 30 days;
otherwise the application shall be deemed to be approved.
Compensatory mitigation may be required for activities approved
under general permits and, as with individually issued permits,
mitigation requirements shall be determined based on the
specific impact of the proposed activity at the site of such
activity, not on the impacts of prior activities or activities
occurring at different locations. In States with substantial
conserved wetlands, such as the State of Alaska, the Secretary
shall issue general permits when requested to do so by a State
or local authority; such permits will not contain compensatory
mitigation and avoidance requirements, but may contain
requirements for minimization of adverse effects.
While certain provisions (such as those relating to wetland
classifications and delineations in new subsections 404 (c) and
(g) and the sequential analysis addressed in new subsection
404(e)(2)) are applicable to activities in wetlands, this title
also applies to activities in waters of the United States that
do not satisfy the criteria used to delineate wetlands, such as
streams, rivers, and lakes. The regulation of activities in
these areas shall be evaluated using the ``public interest''
balancing requirements as described for use in evaluating
activities occurring in Type B wetlands. The procedural reforms
in this title are to apply to activities in non-wetland areas.
While this is clarified in most provisions of the bill through
use of phrases such as ``or waters of the United States,'' the
committee reiterates that procedural reform provisions of this
title apply to activities in such areas. These provisions
include, but are not necessarily intended to be limited to the
following: the Secretary's authority to issue permits and
impose conditions to permits (including the requirements for
compensatory mitigation), determinations of project purpose,
mitigation banking, processing of permit applications and
deadlines for final actions, general permits, activities not
requiring permits, administrative appeals, procedures
applicable to rulemaking, enforcement and violations,
assumption of regulatory programs by States, administrative
provisions contained in new section 404(m), and definitions.
New section 404(f) replaces existing section 404(f) to
modify the categories of activities that do not require permits
under this title. A modification is necessary to clarify
congressional intent where agency and judicial interpretations
have resulted in regulatory expansion beyond the original
statute. The list of activities not originally envisioned as
being regulated as ``discharges of dredged or fill material''
has grown to the point that a complete revision of the listing
of exempted activities is necessary. While many of these
activities merely repeat the exemptions under existing law or
are a codification or clarification of existing regulatory
exemptions taken through administrative action, several new
activities are added to reflect the committee's views on
routine, minor work that should not be regulated under this
title. Reflecting the above factors, the groups of activities
that do not require permits include activities such as: normal
agricultural activities whether they be farming, silviculture,
aquaculture or ranching; maintenance and emergency
reconstruction of facilities for flood control, water supply
reservoirs, transportation structures and utility lines;
construction and maintenance of farm, stock and aquaculture
ponds, wastewater retention features of certain feedlot
operations, and irrigation canals and drainage ditches;
activities to preserve and enhance aviation safety or to
prevent an airport hazard; temporary sedimentation basins for
construction projects and dredged material disposal areas in
upland areas; and farm, forest, mining and utility access roads
and short railroad lines, where such roads and railroad lines
include application of best management practices; activities
carried out in farmed wetlands where land use changes intended
to circumvent regulatory requirements of this section are not
involved; and activities that result from a State approved
management plan, are consistent with a State or local land
management plans approved by the Secretary, are in connection
with a State-approved marsh management and conservation program
in Louisiana, or are excluded under an approved State coastal
zone management program.
Activities undertaken in areas that may technically satisfy
wetland delineation criteria, where one or more criteria result
from human alterations or human induced alterations to the
area's hydrology, are also exempt unless such areas have
exhibited wetlands functions for more than 5 years. For
example, areas adjacent to road fills and other engineered
works that lack properly designed or maintained drainage
facilities such that the creation of wetlands is an incidental
result of the work may technically satisfy wetland delineation
criteria prescribed in this title. However, since such areas
are not intended to result in the creation of wetlands,
activities in them shall not be subject to this section unless
the areas have performed wetland functions for more than 5
years.
Activities intended to preserve and enhance aviation safety
or to prevent an airport hazard are also exempt. This
exemption, however, shall not preclude the applicability of the
National Environmental Policy Act or other federal laws that
may be applicable to projects such as construction of new
runways. An example of work to be exempt from regulation under
this provision is the clearing of vegetation blocking the
control tower's view of the runway approach zone. The provision
is intended to address situations such as this, not as a
mechanism to bypass existing environmental requirements for
construction of new runway projects at airports.
Additional activities that do not require permits under
this section include certain federal or State-approved mining
activities where any required reclamation is completed within 5
years of commencement of mining activities and activities
associated with the placement of piling and related structural
members for bridges, utility lines, piers, lighthouses, and
houses built on stilts to reduce flooding and similar
structures. Activities in States with substantially conserved
wetlands, such as the State of Alaska, also do not require
permits if they are to provide for critical infrastructure
needs, are associated with log transfer facilities, are for
certain tailings impoundments, or are for ice pads and roads.
New section 404(g) provides the rules for delineating
wetlands for purposes of this title. One of the most
controversial and least understood aspects of this regulatory
program is the geographic limits of federal regulatory
jurisdiction as measured by ``wetlands.'' Scientists and
regulatory professionals have debated the limits of federal
jurisdiction for decades. While the committee does not presume
to address wetlands as that term may relate to non-regulatory
Federal programs, State and local regulatory programs,
scientific study, academic endeavors and general conservation
goals, it does intend to establish a reasonable relationship
between water and the limits of federal regulation under this
title. The Committee has heard criticisms of its efforts to
establish such a relationship and its determination that
regulatory jurisdiction be based upon specific criteria and
parameters as not being ``scientific'' and as something that
Congress cannot and should not define. The Committee's
conclusion is that, while technical experts, regulatory
personnel, and special interest groups may debate the use of
specific criteria (especially ones with which they do agree),
the establishment of geographic limits of federal regulatory
jurisdiction is very much a policy matter that is Congress's
responsibility to address. In addition to a closer nexus to
water, the rules for delineating federal regulatory wetlands
must be reasonable, consistent and understandable by the
regulated public. The delineation criteria must remove the
uncertainty that has plagued property owners for years due to
changing wetlands delineation criteria and inconsistent
application.
The Secretary, in consultation with other federal agencies
shall promulgate rules within one year for delineating lands as
wetlands for purposes of this title. These rules may not result
in an area being determined as ``wetland'' unless (1) there is
clear evidence of three indicators: wetlands hydrology,
hydrophytic vegetation and hydric soil being present during the
period in which the wetland delineation is made (which shall
normally be made during the growing season); (2) vegetation
classified as hydrophytic is more adapted to wet soil
conditions than to dry soil conditions; (3) some obligate
wetlands vegetation is present during the period of delineation
(unless it has been removed in order to avoid jurisdiction
under this title); (4) water is found to be present at the
surface for at least 21 consecutive days during the growing
season for a majority of years for which data is available; and
(5) the area is not a wetland that is temporarily or
incidentally created as a result of adjacent development
activity. Rules promulgated by the Secretary shall also provide
that current circumstances be used to delineate wetlands,
provided that such circumstances have not been altered by
activity prohibited under this title. To preclude excessive
burdens on county, parish and borough governments having an
abundance of wetlands, a cap of 20% is placed on the amount of
wetlands in those jurisdictions that can be classified as Type
A wetlands. Such wetlands in excess of the cap that would
otherwise be classified as Type A shall be classified as Type B
wetlands.
Special rules are established for wetland delineations on
agricultural lands and associated nonagricultural lands.
Wetlands on such lands are to be delineated solely by the
Secretary of Agriculture in accordance with the standards
established by the Secretary of the Army through rulemaking.
The Secretary of Agriculture, acting through the Chief of the
Natural Resources Conservation Service, has expertise and
capability to conduct these delineations. Authorizing the
Secretary of Agriculture to make delineations in agricultural
areas and associated nonagricultural areas will end an era of
confusion and frustration for agricultural land owners who have
been subjected to conflicting wetlands programs under section
404 provisions and provisions of Title XII of the Food Security
Act of 1985 (``Swampbuster''). Areas that the Secretary of
Agriculture determines to be exempt from the requirements of
the Swampbuster program or that the Secretary determines to be
exempt as a result of an appeal under Swampbuster shall also be
exempt from regulation under this title. Such exemption from
the requirements for section 404 permits shall remain in effect
as long as such areas are used as agriculture lands.
New section 404(h) requires public notice, including
notices for posting near property records for site-specific
information, of information relating to wetlands delineation,
wetlands classification, and enforcement actions. For wetland
delineations and classifications, notice will be made by the
Secretary or, in the case of agricultural lands and associated
nonagricultural lands, the Secretary of Agriculture. For
enforcement actions, notice shall be made by the Secretary and
shall be filed with the affected property records.
The Secretary and the Secretary of Agriculture shall
undertake a project to develop maps indicating the extent of
wetlands in the United States delineated in accordance with the
requirements of this title and wetland classifications in
accordance with rules promulgated by the Secretary for that
purpose. This mapping project is to be complete within 10
years; however, the Secretaries are directed to accomplish this
effort in less time if applicable. This mapping project is not
intended to result in all cases in maps that are of sufficient
detail to be used as the sole source of information for making
regulatory decisions under this title; rather, they are
intended to provide guidance to property owners, prospective
permit applicants, Federal, State and local governments,
regulatory personnel and the public and to supplement more
detailed case-by-case decisions that may be required. The
Committee directs the Secretaries to use existing data and
resources to the maximum extent practicable in preparing these
wetlands maps. As part of the mapping project, the Secretaries
are to make maximum use of public notices and public hearings
prior to finalizing the maps and shall assure widespread
dissemination of information on completed maps.
New section 404(i) establishes an administrative process
for the appeal of regulatory actions by the Secretary,
including jurisdictional determinations, wetlands
classification, decisions regarding the applicability of
exemptions from permit requirements, the applicability of
general permits to particular proposals, permit denials,
conditions imposed in permits, and certain enforcement orders.
Persons filing an appeal must do so within 30 days of the
Secretary's action prompting the appeal and a decision on the
appeal must be rendered within 90 days after filing. Persons
providing written comment on any regulatory action mentioned
above that involves a public comment process may participate in
the appeal process on any issue raised in their written
comment. The decisionaker on matters brought to appeal shall be
an impartial federal official who has not participated in the
regulatory process leading to the appeal. Until a final
decision is made on the appeal, the person filing the appeal
shall not be required to pay any penalty or perform any
mitigation or restoration that would otherwise be required.
New section 404(j) establishes deadlines and transition
rules for the issuance of regulations implementing this title,
including those relating to wetland delineation and
classification, State and local land management plans that
relate to exemptions from permit requirements, individual and
general permits, enforcement actions, guidelines applicable to
navigational dredging, and other rules that may be necessary.
The Secretary must issue interim regulations within 90 days and
final regulations within 1 year.
One of the principal reforms of this title is to place
management responsibility and accountability to the Congress
and the public in the hands of a single agency. Except where
otherwise specified, this title shall be administered by the
Secretary of the Army, acting through the Chief of Engineers.
Due to the unique yet extensive nature of agricultural lands
and regulated activity on such lands, the Secretary of
Agriculture shall be the sole agency making wetland
delineations on agricultural lands and associated
nonagricultural lands. These reforms will bring consistency and
predictability to this program and eliminate interagency
second-guessing.
New section 404(k) describes procedures for enforcement,
including conditions under which actions may be brought against
unauthorized activities for civil penalties and criminal fines.
Although much of this section is from existing law, several
changes have been made. Regarding compliance orders: orders
issued by the Secretary must be based on reliable and
substantial information and can only be made after reasonable
inquiry; persons disputing the Secretary's action may file an
appeal and the Secretary must either pursue a civil action or
rescind the order within 60 days; and if there is no appeal,
the Secretary must take final action within 150 days. For civil
penalties, changes include a requirement that the period during
which civil monetary penalties accrue commences at the end of
the compliance period (up to 30 days after receipt of the
compliance order) or, if an appeal is filed, 30 days after
denial of such an appeal. The amount of the penalty shall not
exceed $25,000 per day for each violation but the exact amount
shall be in proportion to the scale or scope of the project.
Changes to procedures and requirements for criminal penalties
include a requirement that a violation has resulted in actual
degradation of the environment and a requirement that action
may be brought only by the Attorney General.
New section 404(l) creates a more flexible program for
State assumption of the section 404 program or parts of the
program. This is consistent with one of the legislation's
central themes of encouraging a greater role for State and
local governments in the decision making in and the management
of water pollution programs affecting the States. The majority
of these provisions are from existing law; however, several
changes have been incorporated, including greater opportunity
to assume the program within geographic subdivisions of the
State, and periodic reviews of State performance under
delegated programs rather than an ad-hoc approach that creates
uncertainty. The committee directs the Secretary to encourage
States to assume greater roles in the regulation of activities
under this title that occur within State boundaries and to
expedite the review and approval of State proposals. In
addition, States may seek funds from grants made under section
106 of the FWPCA, as modified by this Act, for purposes of
administering delegated section 404 programs.
New section 404(m) contains a number of provisions relating
to administration of the program, several of which are from
existing law. The provisions (1) emphasize the right of States
to control activities in waters within their jurisdiction,
including the activities of federal agencies; (2) require
permit applications and permits be made available for public
information; (3) require publication of all regulations,
memoranda of agreement and guidance associated with this
program in the Federal Register; (4) deem activities associated
with cranberry production to be in compliance with key
provisions of existing law, under certain conditions; (5)
prohibit any increase in regulatory fees; (6) require the
Secretary to balance wetlands conservation with economic growth
in implementing this title and to minimize adverse effects on
property values; (7) require the development of a procedures to
address regulatory requirements for emergency conditions; (8)
clarify that the use of property is limited by an agency action
if a legal right to use that property no longer exists because
of the action; (9) preclude federal regulatory jurisdiction
from being applied in cases where such application would be
based solely on the use or potential use by migratory birds;
and (10) provide for a transition from the existing regulatory
regime to the changes put into effect by this title. Transition
provisions include (1) a requirement that all permits issued
after the effective date of this title be issued in accordance
with this title; (2) a provision that previously issued permits
continue in force; (3) an allowance for reconsideration of
previously issued permits under the new regulatory procedures,
if requested by the permittee, regarding the extent of
regulatory jurisdiction or conditions imposed under a permit;
and (4) requirements applicable to activities for which permits
have been previously denied.
Section 404(m) also contains a number of definitions of
terms used in the new section 404. One of the most significant
terms is ``activity'' as used throughout this title, which
means the discharge of dredged or fill material into waters of
the United States, including wetlands, or the draining,
channelization, or excavation of wetlands. By using this term,
this would be the first legislation to recognize actions other
than the discharge of dredged or fill materials that have
potential for the degradation of water quality and wetland
functions. Other defined terms are ``agency'', ``agency
action'', ``agricultural land'', ``conserved wetlands'',
``economic base lands'', ``fair market value'', ``law of a
State'', ``mitigation bank'', ``navigational dredging'',
``property'', ``Secretary'', ``State with substantial conserved
wetlands areas'', and ``wetlands''.
Section 804 includes definitions used in section 502 of the
FWPCA, including ``wetlands'', ``creation of wetlands'',
``enhancement of wetlands'', ``fastlands'', ``wetlands
functions'', ``growing season'', ``incidentally created
wetlands'', ``maintenance'', ``mitigation banking'', ``normal
farming, silviculture, aquaculture and ranching activities'',
``prior converted cropland'', ``restoration'', ``temporary
impacts'', and ``airport hazard''. This section also amends
section 502 of existing law by making conforming changes to the
existing definition of ``pollutant''.
Section 805 amends section 309 of existing law to include
conforming changes to reflect that wetlands enforcement
provisions are to be centrally located in section 404 and
implemented by the Secretary.
Section 806 provides that this title and its amendments are
effect 90 days after enactment of this Act.
TITLE IX--NAVIGATIONAL DREDGING
Title IX modifies the regulatory provisions of the Marine
Protection, Research and Sanctuaries Act to reassign
responsibility for administering those provisions from the
Administrator of the Environmental Protection Agency to the
Secretary of the Army. Consistent with a central theme of Title
VIII, the committee believes that the regulation of the
transportation and disposal of material in ocean waters should
be managed by a single agency and is designating the Secretary,
acting through the Chief of Engineers, as the lead federal
agency.
Section 901 states that amendments made by this title are
to be considered as changes to the Marine Protection, Research,
and Sanctuaries Act of 1972.
Section 902 amends existing section 102 (relating to the
transportation and dumping of material, other than dredged
material, into ocean waters) by designating the Secretary of
the Army as being the principal federal agency implementing the
section, rather than the Administrator of the EPA.
Section 903 amends existing section 103 (relating to the
transportation and dumping of dredged material into ocean
waters) by designating the Secretary of the Army as being the
principal federal agency implementing the section, rather than
the Administrator of the EPA.
Section 904 amends existing section 104 (relating to
conditions on ocean dumping permits) by designating the
Secretary of the Army as being the principal federal agency
implementing the section, rather than the Administrator of the
EPA.
Section 905 amends existing section 104A (relating to
dumping of municipal sludge in the New York Bight Apex) by
designating the Secretary of the Army as being the principal
federal agency implementing the section, rather than the
Administrator of the EPA.
Section 906 specifies that references to the Administrator
of EPA in any federal law with respect to any function
transferred from EPA to the Secretary pursuant to this title
shall be deemed as a reference to the Secretary of the Army.
Miscellaneous Issues
The Committee does not intend this bill to amend, repeal,
supersede or otherwise modify the application of Section 214(g)
of the Caribbean Basin Economic Recovery Act (CBERA) (P.L. 98-
67, Section 214(g)). It is the intent of the Committee that the
exemption contained therein shall remain in full force and
effect. The Committee notes that representatives of the U.S.
Environmental Protection Agency have reviewed the relevant
provisions of this bill and concur in the view that CBERA
Section 214(g) is not affected by H.R. 961, as reported.
The Committee recognizes that all indirect dischargers to a
POTW must comply with all aspects and requirements of the Clean
Water Act, including compliance with applicable pretreatment
requirements, whether the indirect discharger that introduces
pollutants to the treatment works is a municipality or special
district which collects wastewater from individual indirect
dischargers or whether the indirect discharger that introduces
pollutants to the treatment works is itself an industrial
facility.
During the Committee's mark-up of H.R. 961, several
amendments addressing the issue of environmental justice were
offered, but withdrawn. The Committee did not include specific
environmental justice provisions in H.R. 961 because the
Committee believes that there is adequate flexibility in the
current Act to address environmental justice concerns. The
Committee encourages EPA to take into account disadvantaged,
low-income, and high-risk populations when implementing the
Act, including in the development of water quality criteria and
the collection of data.
Hearings and Previous Legislative Activity
H.R. 961, the ``Clean Water Amendments of 1995,'' was
introduced by Congressman Bud Shuster along with 15 additional
bipartisan cosponsors, on February 15, 1995. The bill was
referred solely to the Committee on Transportation and
Infrastructure. The legislation reflects the theme of
devolution in authority over the nation's waters by increasing
the role of State and local governments in the decision making
process, and emphasizes flexibility and accountability.
During the 103rd Congress the former Committee on Public
Works and Transportation's Subcommittee on Water Resources and
Environment held 12 hearings on Clean Water Act (CWA)
reauthorization issues including: (1) funding and
infrastructure; (2) point source regulation; (3) nonpoint
source regulation; and (4) wetlands. H.R. 961 originated in the
103rd Congress last spring as the ``Bipartisan Alternative.''
The Bipartisan Alternative was produced in response to a bill
drafted by then-Chairman Norm Mineta and Congressman Sherwood
Boehlert (H.R. 3948).
A bipartisan coalition of Committee members had strong
objections to H.R. 3948, based largely on its command-and-
control nature and the top-down decision power given to the
Federal EPA. The coalition used the base structure of H.R. 3948
to craft the Bipartisan Alternative, but broadened its appeal
by including additional input from State and local governments,
industry, agriculture, and other affected stakeholders. The
coalition's bill provided greater flexibility to State and
local governments and fewer regulatory provisions, while it
retained H.R. 3948's provisions on infrastructure and program
funding. Ultimately, however, neither bill was considered or
ever reported out of Subcommittee.
In the 104th Congress, the newly named Committee on
Transportation and Infrastructure included CWA reform as a
priority on its agenda. Chairman Shuster directed Committee
staff to continue the outreach efforts begun with the
Bipartisan Alternative, to solicit views on how best to address
the problems of the CWA while continuing its successes in a
manner reflective of current conditions, and to develop a
comprehensive ``Bipartisan Initiative'' to be considered by the
Committee within the first 100 days of the new Congress.
Prior to any Subcommittee action, the Full Committee held a
January 31, 1995, oversight hearing on State perspectives on,
among other things, unfunded mandates, regulatory reform, block
grants and privatization issues relating to transportation and
infrastructure programs. The National Governors Association
(NGA) and other State organizations and officials praised the
overall intent and effect of the CWA, but called for numerous
reforms to reflect current needs. In particular, Governor
Nelson of Nebraska, testifying on behalf of NGA, called for
improved approaches to nonpoint pollution and stormwater;
increased flexibility and cost effectiveness; and a renewed
federal commitment to the SRF. Other themes included realistic
time frames, performance-based standards, and risk-based
approaches to water quality.
The Subcommittee on Water Resources and the Environment,
next, divided CWA issues into five major areas--wetlands,
nonpoint sources, funding, point sources, and stormwater--and
held seven additional hearings, seeking views and input from
all interested parties and officials.
The first Subcommittee hearing, held February 9, 1995,
focused on State and local perspectives. The witness list
included representatives from the National Conference of
Mayors, National League of cities, National Governors
Association, Association of State and Interstate Water
Pollution Control Administrators and various State water
agencies. The witnesses provided testimony on the importance of
continued funding of the State Revolving Fund, the necessity of
incorporating cost-effective criteria into the regulation
adoption process, the need for flexibility at the local level
to design water treatment programs that will most effectively
serve to address the water quality issues for a locale, and the
financial burdens imposed on communities by current CWA
unfunded mandates.
The second hearing, held February 16, 1995, provided a
forum for perspectives on business and economic development.
The witness list included representatives of various industries
including manufacturing, forestry, transportation,
construction, textiles and realty. In addition to expressing
views similar to those voiced in the first hearing on SRF
funding and permitting programs, these panelists emphasized the
following: cost effective risk reduction as the driving
principle behind development of water quality requirements; the
application of sound, state-of-the-art scientific information
for establishing water quality standards; and flexibility to
encourage industries to adopt pollution prevention methods
which contribute significant environmental benefits, through
innovative technology variances and reductions in multi-media
discharges.
The third hearing, held February 21, 1995, was reserved for
presentation of the Administration's views. The witness panel
included representatives from the U.S. Environmental Protection
Agency (EPA), the U.S. Department of Agriculture (USDA) and the
National Oceanic and Atmospheric Administration (NOAA). The EPA
testimony expressed the Administration's recognition of the
importance of continued SFR funding; the need to increase the
role of State and local authorities in the process of
addressing water quality issues, particularly in the area of
watershed management; and emphasized common sense approaches to
address water quality issues by combining flexible cost-
effective methods with realistic expectations. USDA addressed
nonpoint source pollution issues. The agency highlighted the
successes of their current land management programs, and
provided suggestions for improving watershed management
programs by increased local participation, program flexibility
and increased coordination between Federal and State agencies.
The NOAA discussed the Coastal Zone Management Act,
specifically the Coastal Zone Reauthorization Amendments of
1990, in relation to controlling nonpoint source pollution.
The panels for the fourth hearing, held February 24, 1995,
represented various agricultural interests, environmental
groups, and both public and private utilities. The agriculture
panelists addressed issues concerning policies regulating both
point and nonpoint sources of pollution and wetlands,
emphasizing, again, themes of local control; cost-effective
practices; continued funding; and sound, scientific information
to be used in setting standards. As to nonpoint source
pollution prevention policies in the area of agriculture,
specifically, the panelists agreed that the voluntary,
incentive-based methods provided under the current CWA scheme
were the most effective means to achieve increased water
quality. Environmental groups presented their positions on,
among other things, wet weather flows; toxic discharges; and
pollution prevention aspects, contending that CWA reform
required strengthened programs to address remaining water
quality problems. They acknowledged that increased flexibility,
such as pollutant trading, could be an effective tool in
achieving improved water quality at lower cost. The utilities,
while expressing specific concern over State water quality
certification and federal facility compliance in the hydropower
licensing process, emphasized the need for the CWA to ensure
reasonable, balanced, non-duplicative, cost-effective and
environmentally sound approaches to regulation of remaining
sources of pollution.
The fifth hearing, held March 7, 1995, involved six panels
of witnesses providing testimony specifically on reform of the
Section 404 wetlands permitting program, and property rights.
As an overview, the hearings primarily revolved around reform
of the individual permitting program, as opposed to the general
permitting program. The query which dominated the hearing was
whether Congress had intended to include wetlands regulation in
the description of ``navigable waters'' in the original CWA,
and if so, whether Congress envisioned the current wetlands
regulatory scheme. Repeatedly, witnesses requested Congress to
clarify its position concerning the definition of wetlands, the
protection of property rights, and the fairness of current
permit procedures.
Witnesses of the six panels included private citizens and
representives of agriculture; industry; Federal, State and
local government; and environmental groups. Testimony from the
hearings identified several areas of the current program which
cause the greatest problems to the regulated community, and
additionally, provided helpful suggestions to correct these
problems. Specifically, and repeatedly cited, were the
following concerns: the need for a definition of a wetlands,
and a system of classification where variances in wetlands
value are considered; streamlining of the wetlands permitting
process to reduce the time and costs involved, in addition to
eliminating multi-agency authority over wetlands regulation;
recognition that the State should play a greater role in
wetlands regulation due to the unique regional nature of the
issues; the importance of funding for education and research on
wetlands preservation, to provide incentives to voluntarily
adopt wetlands protective measures, and to promote restoration
and creation of wetlands, and finally, the dilemma concerning
regulatory ``takings'' of private property and compensation.
These concerns were identified by all panel participants at the
hearings in some form; however, views differed as how best to
resolve the issues.
The sixth hearing, held March 9, 1995, provided a forum for
members of Congress to express their views on a variety of
regional, local and miscellaneous CWA issues. Representatives
from federal and local government agencies, industry and
environmental groups also participated by discussing clean
water issues related to specific regions. The panel of
Congressional members highlighted the flaws in the current
regulatory scheme and discussed clean water proposals of
interest to their districts. The regional panels provided
testimony on clean water issues concerning, among other things,
harbors and estuaries, the Great Lakes region, and the western
arid States.
The seventh, and final hearing, was held in Utica, New
York, March 11, 1995. The testimony of the three panels,
comprised of representatives from local government, industry,
agriculture and environmental groups, addressed issues
concerning the control of nonpoint source water pollution.
Representatives of government, industry and agriculture
advocated a more localized approach to nonpoint source
pollution, emphasizing the need for flexible, voluntary State/
regional programs, and federal financial and technical
assistance. Environmental representatives advocated
strengthening the nonpoint source program to better control
pollution from nonpoint runoff.
In sum, H.R. 961's history dates back to the 103rd Congress
and the development of H.R. 3948 and the Bipartisan
Alternative. The deliberative process of the 104th Congress
continued the extensive efforts made to provide a forum for
development of H.R. 961 and for all interested parties to
express their views and ensure a role in the legislative
process. Although H.R. 961 could not accommodate every single
view and suggestion offered, the bill does reflect the
prevailing themes repeatedly expressed throughout the
information gathering process.
Committee Consideration
Clause 2(l)(2)(B) of rule XI requires each committee report
to include the total number of votes cast for and against on
each rollcall vote on a motion to report and on any amendment
offered to the measure or matter, and the names of those
members voting for and against.
Menendez Substitute to Franks (17-39)
This amendment relates to the permiting process for the
discharge of dredged material from navigational dredging.
Discharges subject to permitting under this section do not have
to obtain section 404 permits.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... ......... Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... N
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... ......... Mr. Mica......... N
Mr. Clyburn.................... ......... Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... Y Mr. Nadler....... N
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... ......... Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. N Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
franks amendment navigational dredging (56-4)
This amendment establishes a permitting process for
navigational dredging and would reduce EPA's role in the
permitting process.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... Y Mr. Hutchinson... Y
Mr. Bachus..................... Y Ms. Johnson...... Y
Mr. Baker...................... Y Mrs. Kelly....... Y
Mr. Barcia..................... Y Mr. Kim.......... Y
Mr. Bateman.................... Y Mr. LaHood....... Y
Mr. Blute...................... Y Mr. Latham....... Y
Mr. Boehlert................... Y Mr. Latourette... Y
Mr. Borski..................... Y Mr. Laughlin..... Y
Mr. Brewster................... Y Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... Y
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... Y Mr. Mica......... Y
Mr. Clyburn.................... N Mr. Mineta....... N
Mr. Coble...................... Y Ms. Molinari..... Y
Ms. Collins.................... Y Mr. Nadler....... N
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... N
Ms. Danner..................... Y Mr. Parker....... Y
Mr. Deal....................... Y Mr. Petri........ Y
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... Y Mr. Quinn........ Y
Mr. Ehlers..................... Y Mr. Rahall....... Y
Mr. Emerson.................... Y Mrs. Seastrand... Y
Mr. Ewing...................... Y Mr. Tate......... Y
Mr. Filner..................... Y Mr. Traficant.... Y
Mrs. Fowler.................... Y Mr. Tucker....... Y
Mr. Franks..................... Y Mr. Wamp......... Y
Mr. Gilchrest.................. Y Mr. Weller....... Y
Mr. Hayes...................... Y Mr. Wise......... Y
Mr. Horn....................... Y Mr. Young........ Y
Mr. Zeliff....... Y
------------------------------------------------------------------------
mineta waivers risk assessment (18-38)
This amendment would require EPA conduct risk assessments
before issuing or granting any site-specific permit
modifications or waivers.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... N Ms. Johnson...... .........
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... Y Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... .........
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Mr. Molinari..... N
Ms. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... Y Mr. Petri........ .........
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... ......... Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. N Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
boehlert srf amendment no. 6 (23-35)
This amendment would establish a separate $500 million/year
state revolving fund to provide loans to farmers, loggers, and
others implementing measures to control nonpoint source
pollution.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... Y Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... Y Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... Y
Ms. Brown...................... ......... Mr. Martini...... N
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... Y
Mr. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... Y Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... ......... Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... Y Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
ehlers great lakes initiative (27-24)
This amendment would strike language clarifying that the
Great Lakes Initiative in section 118 of the Clean Water Act is
merely guidance.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... Y Ms. Johnson...... .........
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... Y Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... Y Mr. LaTourette... Y
Mr. Borski..................... ......... Mr. Laughlin..... Y
Mr. Brewster................... Y Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... Y
Mr. Clement.................... N Mr. Menendez..... Y
Mr. Clinger.................... ......... Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... Y Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... Y Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... ......... Mr. Quinn........ N
Mr. Ehlers..................... Y Mr. Rahall....... Y
Mr. Emerson.................... ......... Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... .........
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... Y Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... PASS Mr. Wise......... .........
Mr. Horn....................... ......... Mr. Young........ N
Mr. Zeliff....... .........
------------------------------------------------------------------------
lipinski allocation formula (30-30)
This amendment sought to reinstate the allotment formula
that was in H.R. 961 as introduced.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... Y Mrs. Kelly....... Y
Mr. Barcia..................... N Mr. Kim.......... Y
Mr. Bateman.................... N Mr. LaHood....... Y
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... Y
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... N Mr. Mineta....... Y
Mr. Coble...................... Y Ms. Molinari..... Y
Ms. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... N
Mr. Cramer..................... N Mr. Oberstar..... N
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... Y Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... N Mr. Quinn........ Y
Mr. Ehlers..................... N Mr. Rahall....... .........
Mr. Emerson.................... N Mrs. Seastrand... Y
Mr. Ewing...................... Y Mr. Tate......... Y
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... Y Mr. Tucker....... Y
Mr. Franks..................... Y Mr. Wamp......... N
Mr. Gilchrest.................. N Mr. Weller....... Y
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
mineta risks and benefit-cost (20-28)
This amendment limits the risks that can be used for
comparison, changes the benefit-cost decision criterion, and
strikes the retroactive application of the benefit-cost
provisions.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... Y Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... ......... Mr. LaTourette... .........
Mr. Borski..................... Y Mr. Laughlin..... .........
Mr. Brewster................... ......... Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... .........
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... Y
Ms. Danner..................... ......... Mr. Parker....... .........
Mr. Deal....................... ......... Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... .........
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... ......... Mr. Tate......... .........
Mr. Filner..................... Y Mr. Traficant.... Y
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... ......... Mr. Wamp......... N
Mr. Gilchrest.................. N Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
mineta stormwater (23-31)
This amendment modifies the existing section 402(p)
stormwater program without repealing it as is done in H.R. 961.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... N
Mr. Bachus..................... ......... Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... Y Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... .........
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... .........
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... .........
Ms. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... Y Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... ......... Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... Y
Mrs. Fowler.................... ......... Mr. Tucker....... Y
Mr. Franks..................... ......... Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
young motion to table barcia (33-25)
Barcia amendment was to reoffer Lipinski amendment.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... Y Mr. Hutchinson... Y
Mr. Bachus..................... ......... Ms. Johnson...... N
Mr. Baker...................... Y Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... Y Mr. LaHood....... Y
Mr. Blute...................... Y Mr. Latham....... Y
Mr. Boehlert................... Y Mr. LaTourette... Y
Mr. Borski..................... N Mr. Laughlin..... Y
Mr. Brewster................... Y Mr. Lipinski..... N
Ms. Brown...................... N Mr. Martini...... .........
Mr. Clement.................... N Mr. Menendez..... N
Mr. Clinger.................... Y Mr. Mica......... .........
Mr. Clyburn.................... Y Mr. Mineta....... N
Mr. Coble...................... Y Ms. Molinari..... N
Ms. Collins.................... N Mr. Nadler....... N
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... Y Mr. Oberstar..... Y
Ms. Danner..................... Y Mr. Parker....... Y
Mr. Deal....................... N Mr. Petri........ Y
Mr. DeFazio.................... N Mr. Poshard...... N
Mr. Duncan..................... Y Mr. Quinn........ N
Mr. Ehlers..................... Y Mr. Rahall....... N
Mr. Emerson.................... Y Mrs. Seastrand... N
Mr. Ewing...................... Y Mr. Tate......... Y
Mr. Filner..................... N Mr. Traficant.... Y
Mrs. Fowler.................... N Mr. Tucker....... N
Mr. Franks..................... N Mr. Wamp......... Y
Mr. Gilchrest.................. Y Mr. Weller....... Y
Mr. Hayes...................... Y Mr. Wise......... N
Mr. Horn....................... Y Mr. Young........ Y
Mr. Zeliff....... Y
------------------------------------------------------------------------
mineta title viii substitute (11-39)
This amendment would strike Title VIII of H.R. 961 and
replace it with alternative wetlands protection language.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... .........
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... ......... Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... .........
Ms. Brown...................... ......... Mr. Martini...... N
Mr. Clement.................... N Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... .........
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Mr. Molinari..... N
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... ......... Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... ......... Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... ......... Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... N
Mr. Franks..................... ......... Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... N
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
GILCHRIST NAS STUDY (17-38)
This amendment would strike Title VIII of H.R. 961 and
limit further action on revisions to Section 404 of the Clean
Water Act until after the National Academy of Sciences
publishes results of its study on wetlands.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... N
Mr. Baker...................... ......... Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... Y Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... N
Ms. Brown...................... Y Mr. Martini...... N
Mr. Clement.................... N Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... .........
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... Y Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... ......... Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... ......... Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... Y Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
borski title VIII substitute (13-36)
This amendment would strike Title VIII of H.R. 961 and
replace it with a wetlands permitting proposal prepared by
certain state officials and omitting any provisions on the
definition of takings.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... N
Mr. Baker...................... ......... Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... ......... Mr. LaTourette... .........
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... N
Ms. Brown...................... N Mr. Martini...... N
Mr. Clement.................... ......... Mr. Menendez..... Y
Mr. Clinger.................... ......... Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... .........
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... ......... Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... ......... Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... ......... Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... .........
------------------------------------------------------------------------
petri great lakes initiative amendment (34-18)
This amendment provides that State water quality standards
and policies must be consistent with guidance in the Great
Lakes Initiative and provide a level of protection that is
comparable to that guidance.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... Y Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... N
Mr. Baker...................... Y Mrs. Kelly....... Y
Mr. Barcia..................... N Mr. Kim.......... Y
Mr. Bateman.................... Present Mr. LaHood....... Y
Mr. Blute...................... Y Mr. Latham....... Y
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... N Mr. Laughlin..... Y
Mr. Brewster................... ......... Mr. Lipinski..... Y
Ms. Brown...................... N Mr. Martini...... Y
Mr. Clement.................... ......... Mr. Menendez..... N
Mr. Clinger.................... Y Mr. Mica......... Y
Mr. Clyburn.................... N Mr. Mineta....... N
Mr. Coble...................... Y Ms. Molinari..... Y
Ms. Collins.................... ......... Mr. Nadler....... N
Mr. Costello................... Y Ms. Norton....... N
Mr. Cramer..................... Y Mr. Oberstar..... N
Ms. Danner..................... Y Mr. Parker....... Y
Mr. Deal....................... Y Mr. Petri........ Y
Mr. DeFazio.................... N Mr. Poshard...... Y
Mr. Duncan..................... Y Mr. Quinn........ Y
Mr. Ehlers..................... N Mr. Rahall....... N
Mr. Emerson.................... Y Mrs. Seastrand... Y
Mr. Ewing...................... ......... Mr. Tate......... Y
Mr. Filner..................... N Mr. Traficant.... .........
Mrs. Fowler.................... Y Mr. Tucker....... .........
Mr. Franks..................... Y Mr. Wamp......... Y
Mr. Gilchrest.................. N Mr. Weller....... Y
Mr. Hayes...................... Y Mr. Wise......... .........
Mr. Horn....................... Y Mr. Young........ Y
Mr. Zeliff....... Y
------------------------------------------------------------------------
NADLER NO CHLORINE (5-42)
This amendment would have called on the pulp and paper
industry to discontinue the use of chlorine in the making of
paper products.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... N
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... ......... Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... ......... Mr. Laughlin..... N
Mr. Brewster................... ......... Mr. Lipinski..... Y
Ms. Brown...................... ......... Mr. Martini...... N
Mr. Clement.................... N Mr. Menendez..... N
Mr. Clinger.................... N Mr. Mica......... .........
Mr. Clyburn.................... N Mr. Mineta....... N
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... N
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... N Mr. Poshard...... N
Mr. Duncan..................... ......... Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... N
Mr. Emerson.................... ......... Mrs. Seastrand... N
Mr. Ewing...................... ......... Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... .........
Mrs. Fowler.................... ......... Mr. Tucker....... .........
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... .........
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
emerson cooling ponds (44-10)
This amendment limits the need for new section 402 or 404
permits when a discharge is into an area used for detention,
retention, treatment, settling, conveyance or cooling.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... Y Mr. Hutchinson... Y
Mr. Bachus..................... Y Ms. Johnson...... N
Mr. Baker...................... Y Mrs. Kelly....... Y
Mr. Barcia..................... Y Mr. Kim.......... Y
Mr. Bateman.................... Y Mr. LaHood....... Y
Mr. Blute...................... Y Mr. Latham....... Y
Mr. Boehlert................... Y Mr. LaTourette... Y
Mr. Borski..................... N Mr. Laughlin..... .........
Mr. Brewster................... ......... Mr. Lipinski..... Y
Ms. Brown...................... ......... Mr. Martini...... Y
Mr. Clement.................... Y Mr. Menendez..... N
Mr. Clinger.................... Y Mr. Mica......... Y
Mr. Clyburn.................... Y Mr. Mineta....... N
Mr. Coble...................... Y Ms. Molinari..... Y
Ms. Collins.................... ......... Mr. Nadler....... N
Mr. Costello................... Y Ms. Norton....... N
Mr. Cramer..................... Y Mr. Oberstar..... N
Ms. Danner..................... Y Mr. Parker....... .........
Mr. Deal....................... Y Mr. Petri........ Y
Mr. DeFazio.................... N Mr. Poshard...... Y
Mr. Duncan..................... ......... Mr. Quinn........ Y
Mr. Ehlers..................... Y Mr. Rahall....... Y
Mr. Emerson.................... Y Mrs. Seastrand... Y
Mr. Ewing...................... Y Mr. Tate......... Y
Mr. Filner..................... N Mr. Traficant.... Y
Mrs. Fowler.................... Y Mr. Tucker....... N
Mr. Franks..................... Y Mr. Wamp......... Y
Mr. Gilchrest.................. Y Mr. Weller....... Y
Mr. Hayes...................... Y Mr. Wise......... .........
Mr. Horn....................... Y Mr. Young........ Y
Mr. Zeliff....... Y
------------------------------------------------------------------------
mineta amendment nps (14-38)
This amendment would strike the nonpoint source pollution
language in H.R. 961 and in its place insert language relating
to nonpoint source pollution and enforceable measures.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... ......... Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... Y Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... .........
Mr. Brewster................... ......... Mr. Lipinski..... N
Ms. Brown...................... ......... Mr. Martini...... N
Mr. Clement.................... ......... Mr. Menendez..... Y
Mr. Clinger.................... ......... Mr. Mica......... N
Mr. Clyburn.................... N Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... .........
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... N Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
borski amendment czara (17-35)
This amendment would modify rather than repeal the existing
program under section 6217 of CZARA
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... Y Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... .........
Mr. Brewster................... ......... Mr. Lipinski..... Y
Ms. Brown...................... ......... Mr. Martini...... N
Mr. Clement.................... N Mr. Menendez..... .........
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... Y
Ms. Danner..................... ......... Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... Y Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... ......... Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
mineta amendment 301(h) (13-41)
This amendment would delete provisions directing EPA to
grant the City of San Diego a waiver from secondary sewage
treatment under certain circumstances.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... Present Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... ......... Mr. Lipinski..... N
Ms. Brown...................... Y Mr. Martini...... N
Mr. Clement.................... Y Mr. Menendez..... .........
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... ......... Mr. Oberstar..... Y
Ms. Danner..................... ......... Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... N Mr. Traficant.... N
Mrs. Fowler.................... N Mr. Tucker....... N
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrist.................. N Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
MINETA SKELETAL REAUTHORIZATION (17-41)
This amendment would strike all of H.R. 961 after the
enacting clause and insert a less comprehensive Clean Water Act
reauthorization package focused on continued funding and
stormwater and combined sewer overflow revisions.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... N Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... Y
Ms. Brown...................... Y Mr. Martini...... N
Mr. Clement.................... N Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... ......... Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... N
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... ......... Mr. Traficant.... Y
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. Y Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... N
------------------------------------------------------------------------
final passage of H.R. 961, as amended (42-16)
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... Y Mr. Hutchinson... .........
Mr. Bachus..................... Y Ms. Johnson...... N
Mr. Baker...................... Y Mrs. Kelly....... Y
Mr. Barcia..................... Y Mr. Kim.......... Y
Mr. Bateman.................... Y Mr. LaHood....... Y
Mr. Blute...................... Y Mr. Latham....... Y
Mr. Boehlert................... N Mr. LaTourette... Y
Mr. Borski..................... N Mr. Laughlin..... Y
Mr. Brewster................... Y Mr. Lipinski..... N
Ms. Brown...................... N Mr. Martini...... Y
Mr. Clement.................... Y Mr. Menendez..... N
Mr. Clinger.................... Y Mr. Mica......... Y
Mr. Clyburn.................... N Mr. Mineta....... N
Mr. Coble...................... Y Ms. Molinari..... Y
Ms. Collins.................... ......... Mr. Nadler....... N
Mr. Costello................... Y Ms. Norton....... N
Mr. Cramer..................... Y Mr. Oberstar..... N
Ms. Danner..................... Y Mr. Parker....... Y
Mr. Deal....................... Y Mr. Petri........ Y
Mr. DeFazio.................... N Mr. Poshard...... Y
Mr. Duncan..................... Y Mr. Quinn........ Y
Mr. Ehlers..................... N Mr. Rahall....... N
Mr. Emerson.................... Y Mrs. Seastrand... Y
Mr. Ewing...................... Y Mr. Tate......... Y
Mr. Filner..................... ......... Mr. Traficant.... Y
Mrs. Fowler.................... Y Mr. Tucker....... Y
Mr. Franks..................... Y Mr. Wamp......... Y
Mr. Gilchrist.................. N Mr. Weller....... Y
Mr. Hayes...................... Y Mr. Wise......... N
Mr. Horn....................... Y Mr. Young........ Y
Mr. Zeliff....... Y
------------------------------------------------------------------------
MINETA UNFUNDED MANDATES (18-40)
This motion would have directed that the Committee report
on H.R. 961 comply with the provisions of the Unfunded Mandates
Reform Act of 1995 prior to the effective date contained in
that Act.
------------------------------------------------------------------------
Member Voted Member Voted
------------------------------------------------------------------------
Mr. Shuster.................... N Mr. Hutchinson... .........
Mr. Bachus..................... ......... Ms. Johnson...... Y
Mr. Baker...................... N Mrs. Kelly....... N
Mr. Barcia..................... N Mr. Kim.......... N
Mr. Bateman.................... N Mr. LaHood....... N
Mr. Blute...................... N Mr. Latham....... N
Mr. Boehlert................... N Mr. LaTourette... N
Mr. Borski..................... Y Mr. Laughlin..... N
Mr. Brewster................... N Mr. Lipinski..... N
Ms. Brown...................... Y Mr. Martini...... N
Mr. Clement.................... Y Mr. Menendez..... Y
Mr. Clinger.................... N Mr. Mica......... N
Mr. Clyburn.................... Y Mr. Mineta....... Y
Mr. Coble...................... N Ms. Molinari..... N
Ms. Collins.................... Y Mr. Nadler....... Y
Mr. Costello................... Y Ms. Norton....... Y
Mr. Cramer..................... N Mr. Oberstar..... Y
Ms. Danner..................... N Mr. Parker....... N
Mr. Deal....................... N Mr. Petri........ N
Mr. DeFazio.................... Y Mr. Poshard...... Y
Mr. Duncan..................... N Mr. Quinn........ N
Mr. Ehlers..................... N Mr. Rahall....... Y
Mr. Emerson.................... N Mrs. Seastrand... N
Mr. Ewing...................... N Mr. Tate......... N
Mr. Filner..................... ......... Mr. Traficant.... Y
Mrs. Fowler.................... N Mr. Tucker....... Y
Mr. Franks..................... N Mr. Wamp......... N
Mr. Gilchrest.................. N Mr. Weller....... N
Mr. Hayes...................... N Mr. Wise......... Y
Mr. Horn....................... N Mr. Young........ N
Mr. Zeliff....... Y
------------------------------------------------------------------------
Committee Oversight Findings
Clause 2(l)(3)(A) of rule XI requires each committee report
to contain oversight findings and recommendations required
pursuant to clause 2(b)(1) of rule X. The Committee has no
specific oversight findings.
Oversight Findings and Recommendations of the Committee on Government
Reform and Oversight
Clause 2(l)(3)(D) of rule XI requires each committee report
to contain a summary of the oversight findings and
recommendations made by the Government Reform and Oversight
Committee pursuant to clause 4(c)(2) of rule X, whenever such
findings have been timely submitted. The Committee on
Transportation and Infrastructure has received no such findings
or recommendations from the Committee on Government Reform and
Oversight.
Committee Cost Estimate
Clause 2(l)(3)(B) of rule XI requires each committee report
that accompanies a measure providing new budget authority, new
spending authority, or new credit authority or changing
revenues or tax expenditures to contain a cost estimate, as
required by section 308(a)(1) of the Congressional Budget Act
of 1974, as amended, and, when practicable with respect to
estimates of new budget authority, a comparison of the total
estimated funding levels for the relevant program (or programs)
to the appropriate levels under current law.
Clause 7(a) of rule XIII requires committees to include
their own cost estimates in certain committee reports, which
include, where practicable, a comparison of the total estimated
funding level for the relevant program (or programs) with the
appropriate levels under current law.
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office, pursuant to
section 403 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimates
Clause 2(l)(3)(C) of rule XI requires each committee report
to include a cost estimate prepared by the Director of the
Congressional Budget Office, pursuant to section 403 of the
Congressional Budget Act of 1974, if the cost estimate is
timely submitted. The following is the Congressional Budget
Office cost estimate:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 2, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed preliminary cost estimate for H.R. 961,
the Clean Water Amendments of 1995. We have not completed our
analysis of all the costs of this bill because we do not yet
have sufficient information to project the costs of some of the
authorizations. CBO will provide the committee with complete
cost projections as soon as they are available.
Enactment of H.R. 961 would affect direct spending and
receipts. Therefore, pay-as-you-go procedures would apply to
the bill.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
Robert A. Sunshine
(For June E. O'Neill, Director).
Enclosure.
Congressional Budget Office Cost Estimate
1. Bill number: H.R. 961.
2. Bill title: Clean Water Amendments of 1995.
3. Bill status: As ordered reported by the House Committee
on Transportation and Infrastructure on April 6, 1995.
4. Bill purpose: This bill would amend the Federal Water
Pollution Control Act (Clean Water Act), and would provide
additional authorizations of appropriations to assist state and
local governments in their efforts to correct water pollution
problems. The bill also would authorize such sums as are
necessary to continue Clean Water Act programs conducted by the
Environmental Protection Agency (EPA). In addition, H.R. 961
would repeal the current requirement for some local governments
and industries to obtain permits to discharge stormwater
runoff. Finally, the bill would replace the existing procedures
and criteria for identifying and regulating wetlands.
5. Estimated cost to the Federal Government: Most of the
spending that may occur under H.R. 961 would be subject to the
availability of appropriated funds. For purposes of this
estimate, CBO assumes that the bill will be enacted by the end
of this fiscal year, and that all funds authorized by the bill
for the 1996-2000 period will be appropriated. Estimated
outlays are based on historical spending patterns of clean
water programs administered by EPA. The following table
summarizes the estimated budgetary impact for the bill's
specified authorizations.
The bill also would increase federal receipts from
penalties for violations of the Clean Water Act, but these
amounts would not be significant.
The table below does not include any amounts of
appropriated funds that might be necessary to compensate
landowners because of the bill's amendments to section 404 of
the Clean Water Act. It also does not include potential direct
spending costs for the bill's provision that waives the federal
government's sovereign immunity under the Clean Water Act.
Costs for both of these provisions could be significant.
Finally, the table does not include estimated authorizations
for EPA and the U.S. Corps of Engineers to carry out their
responsibilities under sections 517 and 404 of the act,
respectively. CBO does not currently have sufficient
information to estimate the budgetary impact of these
provisions.
----------------------------------------------------------------------------------------------------------------
1996 1997 1998 1999 2000
----------------------------------------------------------------------------------------------------------------
Authorizations of appropriations:
Specified authorizations............................. 3,801 3,501 3,551 3,597 3,647
Estimated outlays.................................... 341 1,432 2,586 3,243 3,544
Estimated authorizations............................. \1\ \1\ \1\ \1\ \1\
Estimated outlays.................................... \1\ \1\ \1\ \1\ \1\
Direct spending:
Estimated budget authority........................... \1\ \1\ \1\ \1\ \1\
Estimated outlays.................................... \1\ \1\ \1\ \1\ \1\
Estimated revenues....................................... \2\ \2\ \2\ \2\ \2\
----------------------------------------------------------------------------------------------------------------
\1\ CBO has insufficient information to estimate these amounts.
\2\ Less than $500,000.
The costs of this bill fall primarily within budget
function 300. Other budget functions, particularly defense
(050), could be affected by the provision of the bill that
waives the federal government's sovereign immunity under the
Clean Water Act.
6. Basis of estimate: Title I--Research and related
programs. Section 102 would authorize appropriations of $250
million over the 1996-2000 period for EPA to make grants to
communities that are small or economically disadvantaged for
planning, design, and construction of publicly owned treatment
works (POTWs). An additional $250 million would be authorized
over the five-year period for grants to state and local
governments and nonprofit groups to research causes of water
pollution, conduct technical training in water pollution
abatement, and disseminate water pollution information. The
bill would reauthorize EPA grants for assistance to state and
interstate water pollution control programs, providing an
authorization of $150 million annually over the five-year
period. In addition, H.R. 961 would authorize a total of $25
million for water sanitation grants to rural and Native Alaskan
villages, $21 million annually over the 1996-2000 period for
the ongoing Chesapeake Bay program, and $26 million annually
over the same period for the continuing Great Lakes program.
Title II--Construction grants. This title authorizes the
appropriation of $300 million in 1996 for grants to fund water
pollution infrastructure improvements in New Orleans,
Louisiana, Bristol County, Massachusetts, and other communities
with a population of less than 75,000. Half of this sum would
be directed to communities with a severe need for wastewater
treatment improvements. Under current law, federal construction
grants made through Title II of the Clean Water Act cover 55
percent of the total project cost. H.R. 961 would change the
federal share to 80 percent.
Title III--Standards and enforcement. Title III would
change the way EPA established water quality criteria and
standards, by requiring risk assessments and cost-benefit
analysis before issuing new regulations. This title would
revise the current program designed to control pollution from
nonpoint sources, and would eliminate the stormwater permit
program for discharges from municipalities and industries.
Title III would authorize appropriations of $19 million
annually over the 1996-2000 period to continue the National
Estuary program, and an additional $10 million annually to
support the existing Clean Lakes program.
The bill would provide authorizations totalling $1 billion
over the five-year period for grants to administer and
implement land management practices and other projects to
control nonpoint sources of pollution. In addition to these
grants, the bill would authorize appropriations to state
revolving loan funds to make loans for nonpoint source
pollution control projects (see Title VI).
H.R. 961 would define municipal and industrial stormwater
discharges as a nonpoint source pollutant and would repeal the
current stormwater permitting program. The bill would direct
states to assess stormwater discharges and submit a program to
manage such discharges for EPA approval. The goal of the new
stormwater program is to attain water quality standards within
15 years of EPA approval of each state's program. H.R. 961
would authorize appropriations of $20 million annually over the
1996-2000 period for grants to states to conduct stormwater
research and demonstration programs.
Section 316 would explicitly waive any federal immunity
from administrative orders or civil or administrative fines or
penalties assessed under Clean Water Act, and would clarify
that federal facilities are subject to reasonable service
charges assessed in connection with a federal or state program.
This provision of the bill may encourage states to seek to
impose fines and penalties against the federal government under
the act. If federal agencies contest these fines and penalties,
it is possible that payments would have to be made from the
government's Claims and Judgments Fund, if not otherwise
provided from appropriated funds. The Claims and Judgments Fund
is a permanent, open-ended appropriation, and any amounts paid
from it would be considered direct spending. CBO cannot predict
the number or the dollar amount of judgments against the
government that could result from enactment of this section.
Further, it is impossible to determine whether those judgments
would be paid from the Claims and Judgments Fund or from
appropriated funds.
H.R. 961 would provide that penalty assessments for
violators of pollution laws be adjusted for inflation using the
Consumer Price Index (CPI). The initial adjustment would occur
no later than four years after the date of enactment of the
bill; adjustments would be made every four years thereafter.
CBO estimates that inflating penalty assessments would result
in increased revenues of less than $500,000 annually.
Title IV--Permits and licenses. This title would make
several amendments to the National Pollution Discharge
Elimination System, and would codify EPA's current policy for
controlling combined sewer overflows. In addition, the bill
directs EPA to develop a national control policy for overflows
from municipal separate sanitary sewers. No federal
expenditures are explicitly authorized by this title, and CBO
estimates that no significant additional resources would be
needed to implement these changes.
Title V--General provisions. This title would authorize
appropriations of such sums as are necessary for conducting
EPA's responsibilities under the Clean Water Act. Such funds
would be in addition to the bill's specified authorizations,
which are largely for grants to individual states and
communities. CBO does not yet have sufficient information from
EPA to estimate these amounts. Some costs would result from
Title III's requirements regarding risk assessment and cost-
benefit analysis of regulations expected to have an economic
impact of $25 million or more annually. At the same time, the
bill's provisions in Titles VIII and IX would save the agency
about $40 million annually, because EPA would no longer have
any responsibilities for wetlands or ocean dumping regulation.
Title VI--State water pollution control revolving funds.
EPA's major initiative for assisting local governments in
complying with water treatment provisions of the Clean Water
Act is the State Revolving Fund program (SRF). This title would
authorize appropriations of $2.5 billion annually over the
1996-2000 period for SRF grants. In addition, the bill would
establish a new revolving fund to help pay for local management
of nonpoint source water pollution. H.R. 961 would allow states
to shift any part of their grant from EPA between these two
revolving funds. Under current law, states may only use SRF
grants to make loans to local communities for clean water
infrastructure projects. Title VI would allow states to extend
the payback period on these loans for certain communities, and
would allow certain economically disadvantaged communities to
receive a partial grant in addition to a loan to pay for the
construction of clean water infrastructure projects through the
SRF program.
Title VII--Miscellaneous provisions. This title would
authorize the appropriation of $50 million for grants to assist
states along the U.S.-Mexican border with planning and
constructing treatment works in U.S. border communities known
as colonias. These communities were generally built without any
water or wastewater infrastructure.
Title VIII--Wetlands conservation and management. Title
VIII would rewrite section 404 of the Clean Water Act to
formalize the wetlands permitting process of the U.S. Army
Corps of Engineers. While the amended law would still require
persons who wish to develop or alter wetlands to seek a permit
from the Corps, the process would be made more responsive to
property owners by: (1) instituting deadlines for processing
permit applications, (2) specifying new standards for defining
and classifying wetlands (along with a hierarchy of allowable
permit conditions that can be applied to each classification),
(3) allowing more activities to be exempt from permitting or to
be addressed through general (non-individual) permits, (4)
establishing an administrative process under which property
owners could appeal agency findings and decisions, and (5)
creating a mechanism for compensating owners of affected lands
(subject to the appropriation of the necessary funds). Finally,
the bill would require the Corps and the Department of
Agriculture to begin a 10-year project of mapping all regulated
wetlands in the United States.
CBO cannot estimate the major cost of this title--
compensation for landowners whose property values are affected
by regulatory actions taken by the Corps under section 401.
Under this title, the federal government would be required to
compensate property owners when an agency action reduces the
value of the affected portion of their land by 20 percent or
more. The property owner would be able to seek compensation
through (1) a written request to the agency, (2) binding
arbitration, and/or (3) a civil action. In all cases, any
compensation amount negotiated or awarded would be paid by the
agency from operating funds. All obligations of the government
for such compensation would be subject to the availability of
appropriations. The ultimate cost of this provision would
depend on future actions taken by the agency, affected property
owners, and on the outcome of future arbitration and court
proceedings. CBO does not currently have sufficient basis to
estimate such costs.
Also, this title would raise to $5,000 and $50,000,
respectively, the minimum and maximum assessments for those
subject to criminal fines for violating permit requirements.
The current minimum and maximum fines are $2,500 and $25,000,
respectively. The fine assessed for a second offense would be
raised from $50,000 to $100,000 per day of violation. Based on
information provided by EPA, CBO estimates that additional
revenues from these changes would be less than $500,000
annually.
Any criminal fines collected would be deposited in the
Crime Victims Fund and spent in the following year. Thus,
direct spending from the fund would match the increase in
revenues from criminal fines with a one-year lag. Because
collections from ciminal fines are expected to be
insignificant, increased direct spending from the fund would
also be insignificant.
Title IX--Navigational dredging. This title would amend the
Marine Protection, Research, and Sanctuaries Act of 1972 to
designate the Corps as the lead agency for regulating ocean
dumping and dredging permits. We estimate that this title would
have no significant impact on federal spending.
7. Pay-as-you-go considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. Enactment of the bill would
increase governmental receipts from civil, criminal, and
administrative penalties, as well as direct spending from the
Crime Victims Fund. CBO estimates that any amounts involved
would be insignificant.
Section 316 would explicitly waive any federal immunity
from administrative orders, or civil or administrative fines or
penalties assessed under the Clean Water Act, and would clarify
that federal facilities are subject to reasonable service
charges assessed in connection with a federal or state Clean
Water Act program.
This provision may encourage states to seek to impose fines
and penalties against the federal government under the Clean
Water Act. If federal agencies contest these fines and
penalties, it is possible that payments would have to be made
from the government's Claims and Judgments Fund, if not
otherwise provided from appropriated funds. The Claims and
Judgments Fund is a permanent, open-ended appropriation, and
any amounts paid from it would be considered direct spending.
CBO cannot predict either the number or the dollar amount of
judgments against the government that could result from
enactment of this bill. Further, it is impossible to determine
whether such potential judgments would be paid from the Claims
and Judgments Fund or from appropriated funds.
8. Estimated cost to state and local governments: Major
changes made by H.R. 961. From the perspective of state and
local governments, this legislation would make several
important changes to current law. It would authorize increased
appropriations for the SRF program and modify the criteria
governing eligibility for the program; codify EPA's current
permitting policy for combined sewer overflow (CSO); repeal the
Clean Water Act's provisions regarding permits for separate
storm water discharges; and provide significant increases in
money available for projects to reduce NPS pollution.
State revolving funds. Title VI would authorize
appropriations of $12.5 billion over 5 years for EPA grants to
state revolving funds. (Funding for SRFs in fiscal year 1995 is
$1.2 billion.) Under the bill, the projects and activities that
are eligible for SRF assistance would be expanded. This title
also would authorize appropriations of $0.5 billion annually
over the 1996-2000 period for a new SRF and for grants
dedicated to managing nonpoint source pollution.
Title VI would authorize states to provide additional
assistance to small cities and economically disadvantaged local
governments with SRF funds. It would direct EPA and the states
to establish simplified procedures for small communities to use
to obtain SRF loans. This title would aid disadvantaged
communities by authorizing states to extent SRF loan terms up
to 40 years. Current law requires SRF loans to be repaid within
20 years. In addition, the bill would allow states to make
partial grants for clean water infrastructure projects to
disadvantaged communities with SRF money. The current SRF
program only provides loans.
Combined sewer overflow. Section 407 of the bill would
codify the CSO control policy issued by EPA on April 11, 1994.
Under this policy, National Pollution Discharge Elimination
System (NPDES) permits would be issued for up to 15 years to
municipalities with combined storm and sanitary sewer systems
that have a long-term plan to bring such discharges into
compliance. Because enactment of this section would not change
EPA's current policy, CBO estimates that this provision would
not affect spending by municipalities over the next 5 years.)
Some estimates of the total cost to correct CSO problems
range from $40 billion to $100 billion over the next 20 years.
EPA's estimate of the cost of correcting CSO problems is at the
low end of this range. (Under the current policy, the agency
estimates compliance costs for municipalities would average
$3.5 billion annually over the next 15 years.)
Storm water systems. Section 322 would call on states to
establish new programs to manage municipal and industrial
discharges of stormwater. The goal of these programs would be
to ensure that stormwater discharges comply with the
requirements of the Clean Water Act within 15 years following
approval of state management plans. The new state programs
would replace the current stormwater permitting system, which
would be repealed by the bill. Title III authorizes
appropriations of $20 million annually over the next 5 years to
pay for grants to states to conduct research on stormwater
discharge pollutants and demonstrate innovative solutions to
solving this problem.
EPA issued regulations in 1990 that govern the permitting
of municipal separate storm sewer systems serving a population
over 100,000, as well as storm water discharges associated with
industrial activity. Phase II regulations are to cover
municipal separate storm sewer systems serving fewer than
100,000 people, and other light industrial, commercial, and
residential facilities. EPA was required to issue regulations
for storm water discharges from phase II facilities by October
1, 1993--but has not done so. Depending on how the final phase
II regulations are structured, EPA estimates that up to 82
million people could be affected by the phase II stormwater
program at an estimated cost to local governments of $1 billion
to $3 billion annually under current law.
The bill would repeal the phased permit systems that
control stormwater discharges under current law, and would
require EPA to issue technologically and financially feasible
stormwater criteria by 2008. CBO believes that, over the long
term, it is likely that repealing the storm water permit
program would cost municipalities less than the permit program
that would be developed under current law. But, based on
information from EPA, CBO expects that it would take the agency
3 to 5 years to issue final regulations for the phase II
program. Therefore, we anticipate that any potential savings in
municipal expenses for controlling stormwater would be small
over the next 5 years.
Nonpoint sources (NPS). This legislation would not impose
significant additional spending requirements on states for
dealing with nonpoint sources, which are largely in private
hands. Nevertheless, the bill would authorize a large increase
in federal assistance to states for developing and implementing
management programs for controlling pollution added to waters
from nonpoint sources. The bill would authorize appropriations
of $1 billion over the 1996-2000 period for grants to state NPS
programs. For 1995, EPA is allocating $100 million for this
activity. Title III would increase the share of nonpoint source
control projects that can be funded by federal grants from 60
percent to 75 percent. In addition, Title VI would authorize
$500 million annually over the next 5 years for grants to new
state revolving funds for lands to public and private land
owners carrying out management practices and measures under a
state program for controlling nonpoint source pollution. These
additional funds, if appropriated, would make possible greater
state assistance to property owners for remedying nonpoint
sources.
Total grant funding. H.R. 961 would authorize
appropriations for grants averaging $3.6 billion a year over
the next five years, compared with about $2.1 billion
appropriated for fiscal year 1995. Hence, state and local
governments would receive 70 percent more federal assistance
for compliance with the Clean Water Act if the amounts
authorized are appropriated.
In a significant departure from current law, H.R. 961 would
link deadlines for state and local government compliance with
Clean Water Act requirements for nonpoint source pollution
control programs and for stormwater discharge control programs
to the level of federal funding provided. Under the bill, if
the amounts appropriated for these programs are less than the
amounts authorized, compliance schedules would be pushed
further into the future.
State and local government clean water infrastructure
needs. While the bill would authorize appropriations of grants
to states that are substantially above current levels, it would
not change the fact that most of the governmental costs for
implementing the Clean Water Act are a state and local
government responsibility. The primary cost to these
governments of complying with the Clean Water Act is for
constructing and operating projects for treating wastewater and
controlling nonpoint sources of pollution.
EPA conducts biennial surveys of the states that attempt to
estimate the cost of infrastructure projects that are needed to
comply with the Clean Water Act. EPA's 1992 Needs Survey
concludes that local governments need to spend $137 billion
over the next 20 years to build projects necessary to comply
with the existing requirements of the Clean Water Act.
Unfortunately, even this huge sum probably underestimates
actual needs. From 1990 to 1992, EPA's estimate of the capital
costs to build clean water infrastructure improvements rose 39
percent (up $53 billion). EPA attributes most of this increase
to improved documentation by states of their needs, and the use
of models by EPA to include the full cost of combined sewer
overflow improvements and partial costs for investments needed
for urban storm water problems and for projects to reduce
nonpoint source water pollution. As states improve their
documentation of infrastructure needs, and EPA refines its
models of undocumented needs, future needs surveys will likely
describe even greater costs for complying with the Clean Water
Act. The Association of State and Interstate Water Pollution
Control Administrators (ASIWPCA) estimates that $200 billion is
required under current law to meet clean water infrastructure
needs over the next 20 years.
H.R. 961 would make a significant departure from current
law, however, by linking the compliance schedules for two
aspects of the Clean Water Act to the annual levels of federal
funding provided to state and local governments for clean water
planning, research, and infrastructure financing. First, the
bill establishes a goal of attaining water quality standards
within 15 years following approval of state nonpoint source
control programs. This deadline would be extended by one year
if annual appropriations for section 319 grants are less than
the $1 billion authorized by the bill over the 1996-2000
period. Second, the new state stormwater management programs
that would be established by Title III also allow up to 15
years following program approval for stormwater discharges to
comply with the overall goals of the act. This deadline would
slip by one year for every year that appropriations for grants
to states to conduct stormwater discharge research and
demonstration projects are less than the annual $20 million
authorization specified in the bill. If EPA states agree that
amounts appropriated for these activities are sufficient, but
less than amounts authorized, EPA would not revise the
compliance deadlines.
9. Estimate comparison: None.
10. Previous CBO estimate: None.
11. Estimate prepared by: Kim Cawley, Deborah Reis, and
Melissa Sampson.
12. Estimate approved by: Peter Fontaine for Paul N. Van de
Water, Assistant Director for Budget Analysis.
inflationary impact statement
Clause 2(l)(4) of rule XI requires each committee report on
a bill or joint resolution of a public character to include an
analytical statement describing what impact enactment of the
measure would have on prices and costs in the operation of the
national economy. The Committee has determined that H.R. 961
has no inflationary impact on the national economy.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
TITLE I--RESEARCH AND RELATED PROGRAMS
declaration of goals and policy
Sec. 101. (a) The objective of this Act is to restore and
maintain the chemical, physical, and biological integrity of
the Nation's waters. In order to achieve this objective it is
hereby declared that, consistent with the provisions of this
Act--
(1) * * *
* * * * * * *
(4) it is the national policy that Federal financial
assistance be provided to construct publicly owned
waste treatment works and to reclaim waste water from
municipal and industrial sources;
* * * * * * *
(6) it is the national policy that a major research
and demonstration effort be made to develop technology
necessary to eliminate the discharge of pollutants into
the navigable waters, waters of the contiguous zone and
the oceans; [and]
(7) it is the national policy that programs,
including public and private sector programs using
economic incentives, for the control of nonpoint
sources of pollution, including stormwater, be
developed and implemented in an expeditious manner so
as to enable the goals of this Act to be met through
the control of both point and nonpoint sources of
pollution[.];
(8) it is the national policy to support State
efforts undertaken in consultation with tribal and
local governments to identify, prioritize, and
implement water pollution prevention and control
strategies;
(9) it is the national policy to recognize, support,
and enhance the role of State, tribal, and local
governments in carrying out the provisions of this Act;
(10) it is the national policy that beneficial reuse
of waste water effluent and biosolids be encouraged to
the fullest extent possible; and
(11) it is the national policy that water use
efficiency be encouraged to the fullest extent
possible.
* * * * * * *
(g) It is the policy of Congress that the authority of
each State to allocate quantities of water within its
jurisdiction shall not be superseded, abrogated or otherwise
impaired by this Act. It is the further policy of Congress that
nothing in this Act shall be construed to supersede or abrogate
rights to quantities of water which have been established by
any State. Federal agencies shall co-operate with State and
local agencies to develop comprehensive solutions to prevent,
reduce and eliminate pollution in concert with programs for
managing water resources and in accordance with section 510(b)
of this Act.
(h) Net Benefits.--It is the national policy that the
development and implementation of water quality protection
programs pursuant to this Act--
(1) be based on scientifically objective and unbiased
information concerning the nature and magnitude of
risk; and
(2) maximize net benefits to society in order to
promote sound regulatory decisions and promote the
rational and coherent allocation of society's limited
resources.
* * * * * * *
research, investigations, training, and information
Sec. 104. (a) The Administrator shall establish national
programs for the prevention, reduction, and elimination of
pollution and as part of such programs shall--
(1) * * *
* * * * * * *
(5) in cooperation with the States, and their
political subdivisions, and other Federal agencies
establish, equip, and maintain a water quality
surveillance system for the purpose of monitoring the
quality of the navigable waters and ground waters and
the contiguous zone and the oceans and the
Administrator shall, to the extent practicable, conduct
such surveillance by utilizing the resources of the
National Aeronautics and Space Administration, the
National Oceanic and Atmospheric Administration, the
Geological Survey, and the Coast Guard, and shall
report on such quality in the report required under
subsection (a) of section 516; [and]
(6) initiate and promote the coordination and
acceleration of research designed to develop the most
effective practicable tools and techniques for
measuring the social and economic costs and benefits of
activities which are subject to regulations under this
Act; and shall transmit a report on the results of such
research to the Congress not later than January 1,
1974[.]; and
(7) in cooperation with appropriate Federal, State,
and local agencies, conduct, promote, and encourage to
the maximum extent feasible, in watersheds that may be
significantly affected by nonpoint sources of
pollution, monitoring and measurement of water quality
by means and methods that will help to identify the
relative contributions of particular nonpoint sources.
(b) In carrying out the provisions of subsection (a) of
this section the Administrator is authorized to--
(1) * * *
* * * * * * *
(3) make grants to State water pollution control
agencies, interstate agencies, local governments, other
public or nonprofit private agencies, institutions,
organizations, and individuals, for purposes stated in
paragraph (1) of subsection (a) of this section;
* * * * * * *
(6) collect and disseminate, in cooperation with
other Federal departments and agencies, and with other
public or private agencies, institutions, and
organizations having related responsibilities, basic
data on chemical, physical, and biological effects of
varying water quality and other information pertaining
to pollution and the prevention, reduction, and
elimination thereof; [and]
(7) develop effective and practical processes,
methods, and prototype devices for the prevention,
reduction, and elimination of pollution[.];
(8) make grants to nonprofit organizations to provide
technical assistance and training to rural and small
publicly owned treatment works to enable such treatment
works to achieve and maintain compliance with the
requirements of this Act; and
(9) disseminate information to rural, small, and
disadvantaged communities with respect to the planning,
design, construction, and operation of treatment works.
* * * * * * *
(q)(1) * * *
* * * * * * *
(5) Small impoverished communities.--
(A) Grants.--The Administrator may make
grants to States to provide assistance for
planning, design, and construction of publicly
owned treatment works to provide wastewater
services to rural communities of 3,000 or less
that are not currently served by any sewage
collection or water treatment system and are
severely economically disadvantaged, as
determined by the Administrator.
(B) Authorization.--There is authorized to be
appropriated to carry out this paragraph
$50,000,000 per fiscal year for fiscal years
1996 through 2000.
* * * * * * *
(u) There is authorized to be appropriated (1) not to
exceed $100,000,000 per fiscal year for the fiscal year ending
June 30, 1973, the fiscal year ending June 30, 1974, and the
fiscal year ending June 30, 1975, not to exceed $14,039,000 for
the fiscal year ending September 30, 1980, not to exceed
$20,697,000 for the fiscal year ending September 30, 1981, not
to exceed $22,770,000 for the fiscal year ending September 30,
1982, such sums as may be necessary for fiscal years 1983
through 1985, and not to exceed $22,770,000 per fiscal year for
each of the fiscal years 1986 through 1990, for carrying out
the provisions of this section, other than subsections (g)(1)
and (2), (p), (r), and (t), except that such authorizations are
not for any research, development, or demonstration activity
pursuant to such provisions; (2) not to exceed $7,500,000 for
fiscal years 1973, 1974, and 1975, $2,000,000 for fiscal year
1977, $3,000,000 for fiscal year 1978, $3,000,000 for fiscal
year 1979, $3,000,000 for fiscal year 1980, $3,000,000 for
fiscal year 1981, $3,000,000 for fiscal year 1982, such sums as
may be necessary for fiscal years 1983 through 1985, and
$3,000,000 per fiscal year for each of the fiscal years 1986
through 1990, for carrying out the provisions of subsection
(g)(1); (3) not to exceed $2,500,000 for fiscal years 1973,
1974, and 1975, $1,000,000 for fiscal year 1977, $1,500,000 for
fiscal year 1978, $1,500,000 for fiscal year 1979, $1,500,000
for fiscal year 1980, $1,500,000 for fiscal year 1981,
$1,500,000 for fiscal year 1982, such sums as may be necessary
for fiscal years 1983 through 1985, and $1,500,000 per fiscal
year for each of the fiscal years 1986 through 1990, for
carrying out the provisions of subsection (g)(2); (4) not to
exceed $10,000,000 for each of the fiscal years ending June 30,
1973, June 30, 1974, and June 30, 1975, for carrying out the
provisions of subsection (p); (5) not to exceed $15,000,000 per
fiscal year for the fiscal years ending June 30, 1973, June 30,
1974, and June 30, 1975, for carrying out the provisions of
subsection (r); [and] (6) not to exceed $10,000,000 per fiscal
year for the fiscal years ending June 30, 1973, June 30, 1974,
and June 30, 1975, for carrying out the provisions of
subsection (t); and (7) not to exceed $50,000,000 per fiscal
year for each of fiscal years 1996 through 2000 for carrying
out the provisions of subsections (b)(3), (b)(8), and (b)(9),
except that not less than 20 percent of the sums appropriated
pursuant to this clause shall be available for carrying out the
provisions of subsections (b)(8) and (b)(9).
* * * * * * *
grants for pollution control programs
Sec. 106. (a) There are hereby authorized to be
appropriated the following sums, to remain available until
expended, to carry out the purposes of this section--
(1) $60,000,000 for the fiscal year ending June 30,
1973; and
(2) $75,000,000 for the fiscal year ending June 30,
1974, and the fiscal year ending June 30, 1975,
$100,000,000 per fiscal year for the fiscal years 1977,
1978, 1979, and 1980, $75,000,000 per fiscal year for
the fiscal years 1981 and 1982, such sums as may be
necessary for fiscal years 1983 through 1985, [and]
$75,000,000 per fiscal year for each of the fiscal
years 1986 through 1990, such sums as may be necessary
for each of fiscal years 1991 through 1995, and
$150,000,000 per fiscal year for each of fiscal years
1996 through 2000;
for grants to States and to interstate agencies to assist them
in administering programs for the prevention, reduction, and
elimination of pollution, including enforcement directly or
through appropriate State law enforcement officers or agencies.
States or interstate agencies receiving grants under this
section may use such funds to finance, with other States or
interstate agencies, studies and projects on interstate issues
relating to such programs.
* * * * * * *
[mine water pollution control demonstrations
[Sec. 107. (a) The Administrator in cooperation with the
Appalachian Regional Commission and other Federal agencies is
authorized to conduct, to make grants for, or to contract for,
projects to demonstrate comprehensive approaches to the
elimination or control of acid or other mine water pollution
resulting from active or abandoned mining operations and other
environmental pollution affecting water quality within all or
part of a watershed or river basin, including siltation from
surface mining. Such projects shall demonstrate the engineering
and economic feasibility and practicality of various abatement
techniques which will contribute substantially to effective and
practical methods of acid or other mine water pollution
elimination or control, and other pollution affecting water
quality, including techniques that demonstrate the engineering
and economic feasibility and practicality of using sewage
sludge materials and other municipal wastes to diminish or
prevent pollution affecting water quality from acid,
sedimentation, or other pollutants and in such projects to
restore affected lands to usefulness for forestry, agriculture,
recreation, or other beneficial purposes.
[(b) Prior to undertaking any demonstration project under
this section in the Appalachian region (as defined in section
403 of the Appalachian Regional Development Act of 1965, as
amended), the Appalachian Regional Commission shall determine
that such demonstration project is consistent with the
objectives of the Appalachian Regional Development Act of 1965,
as amended.
[(c) The Administrator, in selecting watersheds for the
purposes of this section, shall be satisfied that the project
area will not be affected adversely by the influx of acid or
other mine water pollution from nearby sources.
[(d) Federal participation in such projects shall be
subject to the conditions--
[(1) that the State shall acquire any land or interests
therein necessary for such project; and
[(2) that the State shall provide legal and practical
protection to the project area to insure against any
activities which will cause future acid or other mine
water pollution.
[(e) There is authorized to be appropriated $30,000,000 to
carry out the provisions of this section, which sum shall be
available until expended.]
SEC. 107. MINE WATER POLLUTION CONTROL.
(a) Acidic and Other Toxic Mine Drainage.--The Administrator
shall establish a program to demonstrate the efficacy of
measures for abatement of the causes and treatment of the
effects of acidic and other toxic mine drainage within
qualified hydrologic units affected by past coal mining
practices for the purpose of restoring the biological integrity
of waters within such units.
(b) Grants.--
(1) In general.--Any State or Indian tribe may apply
to the Administrator for a grant for any project which
provides for abatement of the causes or treatment of
the effects of acidic or other toxic mine drainage
within a qualified hydrologic unit affected by past
coal mining practices.
(2) Application requirements.--An application submitted
to the Administrator under this section shall include
each of the following:
(A) An identification of the qualified
hydrologic unit.
(B) A description of the extent to which acidic
or other toxic mine drainage is affecting the
water quality and biological resources within
the hydrologic unit.
(C) An identification of the sources of acidic
or other toxic mine drainage within the
hydrologic unit.
(D) An identification of the project and the
measures proposed to be undertaken to abate the
causes or treat the effects of acidic or other
toxic mine drainage within the hydrologic unit.
(E) The cost of undertaking the proposed
abatement or treatment measures.
(c) Federal Share.--
(1) In general.--The Federal share of the cost of a
project receiving grant assistance under this section
shall be 50 percent.
(2) Lands, easements, and rights-of-way.--Contributions
of lands, easements, and rights-of-way shall be
credited toward the non-Federal share of the cost of a
project under this section but not in an amount
exceeding 25 percent of the total project cost.
(3) Operation and maintenance.--The non-Federal
interest shall bear 100 percent of the cost of
operation and maintenance of a project under this
section.
(d) Prohibited Projects.--No acidic or other toxic mine
drainage abatement or treatment project may receive assistance
under this section if the project would adversely affect the
free-flowing characteristics of any river segment within a
qualified hydrologic unit.
(e) Applications From Federal Entities.--Any Federal entity may
apply to the Administrator for a grant under this section for
the purposes of an acidic or toxic mine drainage abatement or
treatment project within a qualified hydrologic unit located on
lands and waters under the administrative jurisdiction of such
entity.
(f) Approval.--The Administrator shall approve an application
submitted pursuant to subsection (b) or (e) after determining
that the application meets the requirements of this section.
(g) Qualified Hydrologic Unit Defined.--For purposes of this
section, the term ``qualified hydrologic unit'' means a
hydrologic unit--
(1) in which the water quality has been significantly
affected by acidic or other toxic mine drainage from
past coal mining practices in a manner which adversely
impacts biological resources; and
(2) which contains lands and waters eligible for
assistance under title IV of the Surface Mining and
Reclamation Act of 1977.
* * * * * * *
[alaska village demonstration projects
[Sec. 113. (a) The Administrator is authorized to enter
into agreements with the State of Alaska to carry out one or
more projects to demonstrate methods to provide for central
community facilities for safe water and elimination or control
of pollution in those native villages of Alaska without such
facilities. Such project shall include provisions for community
safe water supply systems, toilets, bathing and laundry
facilities, sewage disposal facilities, and other similar
facilities, and educational and informational facilities and
programs relating to health and hygiene. Such demonstration
projects shall be for the further purpose of developing
preliminary plans for providing such safe water and such
elimination or control of pollution for all native villages in
such State.
[(b) In carrying out this section the Administrator shall
cooperate with the Secretary of Health, Education, and Welfare
for the purpose of utilizing such of the personnel and
facilities of that Department as may be appropriate.
[(c) The Administrator shall report to Congress not later
than July 1, 1973, the results of the demonstration projects
authorized by this section together with his recommendations,
including and necessary legislation, relating to the
establishment of a statewide program.
[(d) There is authorized to be appropriated not to exceed
$2,000,000 to carry out this section. In addition, there is
authorized to be appropriated to carry out this section not to
exceed $200,000 for the fiscal year ending September 30, 1978,
and $220,000 for the fiscal year ending September 30, 1979.
[(e) The Administrator is authorized to coordinate with the
Secretary of the Department of Health, Education, and Welfare,
the Secretary of the Department of Housing and Urban
Development, the Secretary of the Department of the Interior,
the Secretary of the Department of Agriculture, and the heads
of any other departments or agencies he may deem appropriate to
conduct a joint study with representatives of the State of
Alaska and the appropriate Native organizations (as defined in
Public Law 92-203) to develop a comprehensive program for
achieving adequate sanitation services in Alaska villages. This
study shall be coordinated with the programs and projects
authorized by sections 104(q) and 105(e)(2) of this Act. The
Administrator shall submit a report of the results of the
study, together with appropriate supporting data and such
recommendations as he deems desirable, to the Committee on
Environment and Public Works of the Senate and to the Committee
on Public Works and Transportation of the House of
Representatives not later than December 31, 1979. The
Administrator shall also submit recommended administrative
actions, procedures, and any proposed legislation necessary to
implement the recommendations of the study no later than June
30, 1980.
[(f) The Administrator is authorized to provide technical,
financial and management assistance for operation and
maintenance of the demonstration projects constructed under
this section, until such time as the recommendations of
subsection (e) are implemented.]
SEC. 113. ALASKA VILLAGE PROJECTS AND PROGRAMS.
(a) Grants.--The Administrator is authorized to make grants--
(1) for the development and construction of
facilities which provide sanitation services for rural
and Native Alaska villages;
(2) for training, technical assistance, and
educational programs relating to operation and
maintenance for sanitation services in rural and Native
Alaska villages; and
(3) for reasonable costs of administering and
managing grants made and programs and projects carried
out under this section; except that not to exceed 4
percent of the amount of any grant made under this
section may be made for such costs.
(b) Federal Share.--A grant under this section shall be 50
percent of the cost of the program or project being carried out
with such grant.
(c) Special Rule.--The Administrator shall award grants under
this section for project construction following the rules
specified in subpart H of part 1942 of title 7 of the Code of
Federal Regulations.
(d) Grants to State for Benefit of Villages.--Grants under
this section may be made to the State for the benefit of rural
Alaska villages and Alaska Native villages.
(e) Coordination.--In carrying out activities under this
subsection, the Administrator is directed to coordinate efforts
between the State of Alaska, the Secretary of Housing and Urban
Development, the Secretary of Health and Human Services, the
Secretary of the Interior, the Secretary of Agriculture, and
the recipients of grants.
(f) Funding.--There is authorized to be appropriated
$25,000,000 for fiscal years beginning after September 30,
1995, to carry out this section.
(g) Definitions.--For the purpose of this section, the term
``village'' shall mean an incorporated or unincorporated
community with a population of ten to six hundred people living
within a two-mile radius. The term ``sanitation services''
shall mean water supply, sewage disposal, solid waste disposal
and other services necessary to maintain generally accepted
standards of personal hygiene and public health.
* * * * * * *
SEC. 117. CHESAPEAKE BAY.
(a) * * *
* * * * * * *
(d) Authorization of Appropriations.--There are hereby
authorized to be appropriated the following sums, to remain
available until expended, to carry out the purposes of this
section:
(1) $3,000,000 per fiscal year for each of the fiscal
years 1987, 1988, 1989, and 1990, such sums as may be
necessary for fiscal years 1991 through 1995, and
$3,000,000 per fiscal year for each of fiscal years
1996 through 2000 to carry out subsection (a); and
(2) $10,000,000 per fiscal year for each of the
fiscal years 1987, 1988, 1989, and 1990, such sums as
may be necessary for fiscal years 1991 through 1995,
and $18,000,000 per fiscal year for each of fiscal
years 1996 through 2000 for grants to States under
subsection (b).
SEC. 118. GREAT LAKES.
(a) Findings, Purpose, and Definitions.--
(1) * * *
* * * * * * *
(3) Definitions.--For purposes of this section, the
term--
(A) * * *
* * * * * * *
[(E) ``Research Office'' means the Great
Lakes Research Office established by subsection
(d);]
(E) ``Council'' means the Great Lakes
Research Council established by subsection
(d)(1);
* * * * * * *
(I) ``Lakewide Management Plan'' means a
written document which embodies a systematic
and comprehensive ecosystem approach to
restoring and protecting the beneficial uses of
the open waters of each of the Great Lakes, in
accordance with article VI and Annex 2 of the
Great Lakes Water Quality Agreement; [and]
(J) ``Remedial Action Plan'' means a written
document which embodies a systematic and
comprehensive ecosystem approach to restoring
and protecting the beneficial uses of areas of
concern, in accordance with article VI and
Annex 2 of the Great Lakes Water Quality
Agreement[.]; and
(K) ``Great Lakes research'' means the
application of scientific or engineering
expertise to explain, understand, and predict a
physical, chemical, biological, or
socioeconomic process, or the interaction of 1
or more of the processes, in the Great Lakes
ecosystem.
* * * * * * *
(c) Great Lakes Management.--
(1) Functions.--The Program Office shall--
(A) in cooperation with appropriate Federal,
State, tribal, and international agencies, and
in accordance with section 101(e) of this Act,
develop and implement specific action plans to
carry out the responsibilities of the United
States under the Great Lakes Water Quality
Agreement of 1978, as amended by the Water
Quality Agreement of 1987 and any other
agreements and amendments[,];
* * * * * * *
(2) Great lakes water quality guidance.--
(A) * * *
* * * * * * *
(C) Within two years after such Great Lakes
guidance is published, the Great Lakes States
shall adopt water quality standards,
antidegradation policies, and implementation
procedures for waters within the Great Lakes
System which are consistent with such guidance.
If a Great Lakes State fails to adopt such
standards, policies, and procedures, the
Administrator shall promulgate them not later
than the end of such two-year period. When
reviewing any Great Lakes State's water quality
plan, the agency shall consider the extent to
which the State has complied with the Great
Lakes guidance issued pursuant to this section.
For purposes of this section, a State's
standards, policies, and procedures shall be
considered consistent with such guidance if the
standards, policies, and procedures are based
on scientifically defensible judgments and
policy choices made by the State after
consideration of the guidance and provide an
overall level of protection comparable to that
provided by the guidance, taking into account
the specific circumstances of the State's
waters.
(7) 5-year study and demonstration projects.--(A) *
* *
* * * * * * *
(D) Reauthorization of assessment and
remediation of contaminated sediments
program.--
(i) In general.--The Administrator,
acting through the Program Office, in
consultation and cooperation with the
Assistant Secretary of the Army having
responsibility for civil works, shall
conduct at least 3 pilot projects
involving promising technologies and
practices to remedy contaminated
sediments (including at least 1 full-
scale demonstration of a remediation
technology) at sites in the Great Lakes
System, as the Administrator determines
appropriate.
(ii) Selection of sites.--In
selecting sites for the pilot projects,
the Administrator shall give priority
consideration to--
(I) the Ashtabula River in
Ohio;
(II) the Buffalo River in New
York;
(III) Duluth and Superior
Harbor in Minnesota;
(IV) the Fox River in
Wisconsin;
(V) the Grand Calumet River
in Indiana; and
(VI) Saginaw Bay in Michigan.
(iii) Deadlines.--In carrying out
this subparagraph, the Administrator
shall--
(I) not later than 18 months
after the date of the enactment
of this subparagraph, identify
at least 3 sites and the
technologies and practices to
be demonstrated at the sites
(including at least 1 full-
scale demonstration of a
remediation technology); and
(II) not later than 5 years
after such date of enactment,
complete at least 3 pilot
projects (including at least 1
full-scale demonstration of a
remediation technology).
(iv) Additional projects.--The
Administrator, acting through the
Program Office, in consultation and
cooperation with the Assistant
Secretary of the Army having
responsibility for civil works, may
conduct additional pilot- and full-
scale pilot projects involving
promising technologies and practices at
sites in the Great Lakes System other
than the sites selected under clause
(i).
(v) Execution of projects.--The
Administrator may cooperate with the
Assistant Secretary of the Army having
responsibility for civil works to plan,
engineer, design, and execute pilot
projects under this subparagraph.
(vi) Non-federal contributions.--The
Administrator may accept non-Federal
contributions to carry out pilot
projects under this subparagraph.
(vii) Authorization of
appropriations.--There are authorized
to be appropriated to carry out this
subparagraph $3,500,000 for each of
fiscal years 1996 through 2000.
(E) Technical information and assistance.--
(i) In general.--The Administrator,
acting through the Program Office, may
provide technical information and
assistance involving technologies and
practices for remediation of
contaminated sediments to persons that
request the information or assistance.
(ii) Technical assistance
priorities.--In providing technical
assistance under this subparagraph, the
Administrator, acting through the
Program Office, shall give special
priority to requests for integrated
assessments of, and recommendations
regarding, remediation technologies and
practices for contaminated sediments at
Great Lakes areas of concern.
(iii) Coordination with other
demonstrations.--The Administrator
shall--
(I) coordinate technology
demonstrations conducted under
this subparagraph with other
federally assisted
demonstrations of contaminated
sediment remediation
technologies; and
(II) share information from
the demonstrations conducted
under this subparagraph with
the other demonstrations.
(iv) Other sediment remediation
activities.--Nothing in this
subparagraph limits the authority of
the Administrator to carry out sediment
remediation activities under other
laws.
(v) Authorization of
appropriations.--There are authorized
to be appropriated to carry out this
subparagraph $1,000,000 for each of
fiscal years 1996 through 2000.
* * * * * * *
[(d) Great Lakes Research.--
[(1) Establishment of research office.--There is
established within the National Oceanic and Atmospheric
Administration the Great Lakes Research Office.
[(2) Identification of issues.--The Research Office
shall identify issues relating to the Great Lakes
resources on which research is needed. The Research
Office shall submit a report to Congress on such issues
before the end of each fiscal year which shall identify
any changes in the Great Lakes system with respect to
such issues.
[(3) Inventory.--The Research Office shall identify
and inventory, Federal, State, university, and tribal
environmental research programs (and, to the extent
feasible, those of private organizations and other
nations) relating to the Great Lakes system, and shall
update that inventory every four years.
[(4) Research exchange.--The Research Office shall
establish a Great Lakes research exchange for the
purpose of facilitating the rapid identification,
acquisition, retrieval, dissemination, and use of
information concerning research projects which are
ongoing or completed and which affect the Great Lakes
system.
[(5) Research program.--The Research Office shall
develop, in cooperation with the Coordination Office, a
comprehensive environmental research program and data
base for the Great Lakes system. The data base shall
include, but not be limited to, data relating to water
quality, fisheries, and biota.
[(6) Monitoring.--The Research Office shall conduct,
through the Great Lakes Environmental Research
Laboratory, the National Sea Grant College program,
other Federal laboratories, and the private sector,
appropriate research and monitoring activities which
address priority issues and current needs relating to
the Great Lakes.
[(7) Location.--The Research Office shall be located
in a Great Lakes State.]
(d) Great Lakes Research Council.--
(1) Establishment of council.--There is established a
Great Lakes Research Council.
(2) Duties of council.--The Council--
(A) shall advise and promote the coordination
of Federal Great Lakes research activities to
avoid unnecessary duplication and ensure
greater effectiveness in achieving protection
of the Great Lakes ecosystem through the goals
of the Great Lakes Water Quality Agreement;
(B) not later than 1 year after the date of
the enactment of this subparagraph and
biennially thereafter and after providing
opportunity for public review and comment,
shall prepare and provide to interested parties
a document that includes--
(i) an assessment of the Great Lakes
research activities needed to fulfill
the goals of the Great Lakes Water
Quality Agreement;
(ii) an assessment of Federal
expertise and capabilities in the
activities needed to fulfill the goals
of the Great Lakes Water Quality
Agreement, including an inventory of
Federal Great Lakes research programs,
projects, facilities, and personnel;
and
(iii) recommendations for long-term
and short-term priorities for Federal
Great Lakes research, based on a
comparison of the assessments conducted
under clauses (i) and (ii);
(C) shall identify topics for and participate
in meetings, workshops, symposia, and
conferences on Great Lakes research issues;
(D) shall make recommendations for the
uniform collection of data for enhancing Great
Lakes research and management protocols
relating to the Great Lakes ecosystem;
(E) shall advise and cooperate in--
(i) improving the compatible
integration of multimedia data
concerning the Great Lakes ecosystem;
and
(ii) any effort to establish a
comprehensive multimedia data base for
the Great Lakes ecosystem; and
(F) shall ensure that the results, findings,
and information regarding Great Lakes research
programs conducted or sponsored by the Federal
Government are disseminated in a timely manner,
and in useful forms, to interested persons,
using to the maximum extent practicable
mechanisms in existence on the date of the
dissemination, such as the Great Lakes Research
Inventory prepared by the International Joint
Commission.
(3) Membership.--
(A) In general.--The Council shall consist of
1 research manager with extensive knowledge of,
and scientific expertise and experience in, the
Great Lakes ecosystem from each of the
following agencies and instrumentalities:
(i) The Agency.
(ii) The National Oceanic and
Atmospheric Administration.
(iii) The National Biological
Service.
(iv) The United States Fish and
Wildlife Service.
(v) Any other Federal agency or
instrumentality that expends $1,000,000
or more for a fiscal year on Great
Lakes research.
(vi) Any other Federal agency or
instrumentality that a majority of the
Council membership determines should be
represented on the Council.
(B) Nonvoting members.--At the request of a
majority of the Council membership, any person
who is a representative of a Federal agency or
instrumentality not described in subparagraph
(A) or any person who is not a Federal employee
may serve as a nonvoting member of the Council.
(4) Chairperson.--The chairperson of the Council
shall be a member of the Council from an agency
specified in clause (i), (ii), or (iii) of paragraph
(3)(A) who is elected by a majority vote of the members
of the Council. The chairperson shall serve as
chairperson for a period of 2 years. A member of the
Council may not serve as chairperson for more than 2
consecutive terms.
(5) Expenses.--While performing official duties as a
member of the Council, a member shall be allowed travel
or transportation expenses under section 5703 of title
5, United States Code.
(6) Interagency cooperation.--The head of each
Federal agency or instrumentality that is represented
on the Council--
(A) shall cooperate with the Council in
implementing the recommendations developed
under paragraph (2);
(B) on written request of the chairperson of
the Council, may make available, on a
reimbursable basis or otherwise, such
personnel, services, or facilities as may be
necessary to assist the Council in carrying out
the duties of the Council under this section;
and
(C) on written request of the chairperson,
shall furnish data or information necessary to
carry out the duties of the Council under this
section.
(7) International cooperation.--The Council shall
cooperate, to the maximum extent practicable, with the
research coordination efforts of the Council of Great
Lakes Research Managers of the International Joint
Commission.
(8) Reimbursement for requested activities.--Each
Federal agency or instrumentality represented on the
Council may reimburse another Federal agency or
instrumentality or a non-Federal entity for costs
associated with activities authorized under this
subsection that are carried out by the other agency,
instrumentality, or entity at the request of the
Council.
(9) Federal advisory committee act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply
to the Council.
(10) Effect on other law.--Nothing in this subsection
affects the authority of any Federal agency or
instrumentality, under any law, to undertake Great
Lakes research activities.
(e) Research and Management Coordination.--
(1) Joint plan.--Before October 1 of each year, [the
Program Office and the Research Office shall prepare a
joint research plan] the Program Office, in
consultation with the Council, shall prepare a research
plan for the fiscal year which begins in the following
calendar year.
* * * * * * *
(3) Health research report.--(A) Not later than
September 30, 1994, the Program Office, in consultation
with [the Research Office, the Agency for Toxic
Substances and Disease Registry, and Great Lakes
States] the Council, the Agency for Toxic Substances
and Disease Registry, and Great Lakes States, shall
submit to the Congress a report assessing the adverse
effects of water pollutants in the Great Lakes System
on the health of persons in Great Lakes States and the
health of fish, shellfish, and wildlife in the Great
Lakes System. In conducting research in support of this
report, the Administrator may, where appropriate,
provide for research to be conducted under cooperative
agreements with Great Lakes States.
(B) There is authorized to be appropriated to the
Administrator to carry out this section not to exceed
$3,000,000 for each of fiscal years 1992, 1993, and
1994, such sums as may be necessary for fiscal year
1995, and $4,000,000 per fiscal year for each of fiscal
years 1996, 1997, and 1998.
* * * * * * *
(h) Authorizations of Great Lakes Appropriations.--There
are authorized to be appropriated to the Administrator to carry
out this section not to exceed $11,000,000 per fiscal year for
the fiscal years 1987, 1988, 1989, and 1990, [and] $25,000,000
for fiscal year 1991, such sums as may be necessary for fiscal
years 1992 through 1995, and $17,500,000 per fiscal year for
each of fiscal years 1996 through 2000. Of the amounts
appropriated each fiscal year--
(1) 40 percent shall be used by the Great Lakes
National Program Office on demonstration projects on
the feasibility of controlling and removing toxic
pollutants; and
(2) 7 percent shall be used by the Great Lakes
National Program Office for the program of nutrient
monitoring[; and].
[(3) 30 percent or $3,300,000, whichever is the
lesser, shall be transferred to the National Oceanic
and Atmospheric Administration for use by the Great
Lakes Research Office.]
* * * * * * *
Lake Champlain Management Conference
Sec. 120. (a) * * *
* * * * * * *
(d) Research Program.--[(1)] The Management Conference shall
establish a multi-disciplinary environmental research program
for Lake Champlain. Such research program shall be planned and
conducted jointly with the Lake Champlain Research Consortium.
* * * * * * * deg.
TITLE II--GRANTS FOR CONSTRUCTION OF TREATMENT WORKS
purpose
Sec. 201. (a) * * *
* * * * * * *
(g)(1) The Administrator is authorized to make grants to
any State, municipality, or intermunicipal or interstate agency
for the construction of publicly owned treatment works[. On and
after October 1, 1984, grants under this title shall be made
only for projects for secondary treatment or more stringent
treatment, or any cost effective alternative thereto, new
interceptors and appurtenances, and infiltration-in-flow
correction. Notwithstanding the preceding sentences, the
Administrator may make grants on and after October 1, 1984, for
(A) any project within the definition set forth in section
212(2) of this Act, other than for a project referred to in the
preceding sentence, and (B) any purpose for which a grant may
be made under sections 319 (h) and (i) of this Act (including
any innovative and alternative approaches for the control of
nonpoint sources of pollution), except that not more than 20
per centum (as determined by the Governor of the State) of the
amount allotted to a State under section 205 of this Act for
any fiscal year shall be obligated in such State under
authority of this sentence.] and for any purpose for which a
grant may be made under sections 319(h) and 319(i) of this Act
(including any innovative and alternative approaches for the
control of nonpoint sources of pollution). The Administrator,
with the concurrence of the States, shall develop procedures to
facilitate and expedite the retroactive eligibility and
provision of grant funding for facilities already under
construction.
* * * * * * *
limitations and conditions
Sec. 204. (a) Before approving grants for any project for
any treatment works under section 201(g)(1) the Administrator
shall determine--
(1) * * *
* * * * * * *
(3) that such works have been certified by the
appropriate State water pollution control agency as
entitled to priority over such other works in the State
in accordance with any applicable State plan under
section 303(e) of this Act, except that any priority
list developed pursuant to section 303(e)(3)(H) may be
modified by such State in accordance with regulations
promulgated by the Administrator to give higher
priority for grants for the Federal share of the cost
of preparing construction drawings and specifications
for any treatment works utilizing processes and
techniques meeting the guidelines promulgated under
section 304(d)(3) of this Act for grants for the
combined Federal share of the cost of preparing
construction drawings and specifications and the
building and erection of any treatment works meeting
the requirements of the next to the last sentence of
section 203(a) of this Act which utilizes processes and
techniques meeting the guidelines promulgated under
section 304(d)(3) of this Act[.];
* * * * * * *
allotment
Sec. 205. (a) * * *
* * * * * * *
(c)(1) * * *
(2) Sums authorized to be appropriated pursuant to section
207 for the fiscal years 1982, 1983, 1984, [and 1985] 1985, and
1986 shall be allotted for each such year by the Administrator
not later than the tenth day which begins after the date of
enactment of the Municipal Wastewater Treatment Construction
Grant Amendments of 1981. Notwithstanding any other provision
of law, sums authorized for the fiscal year ending September
30, 1982, shall be allotted in accordance with table 3 of
Committee Print Numbered 95-30 of the Committee on Public Works
and Transportation of the House of Representatives. Sums
authorized for the fiscal years ending September 30, 1983,
September 30, 1984, September 30, 1985, and September 30, 1986,
shall be allotted in accordance with the following table:
Fiscal years 1983
[through 1985]
States:
through 1986
Alabama................................................... .011398
* * * * * * *
(g)(1) The Administrator is authorized to reserve each
fiscal year not to exceed 2 per centum of the amount authorized
under section 207 of this title for purposes of the allotment
made to each State under this section on or after October 1,
1977, except in the case of any fiscal year beginning on or
after October 1, 1981, and ending before October 1, 1994, in
which case the percentage authorized to be reserved shall not
exceed 4 per centum[.] or $400,000 whichever amount is the
greater. Sums so reserved shall be available for making grants
to such State under paragraph (2) of this subsection for the
same period as sums are available from such allotment under
subsection (d) of this section, and any such grant shall be
available for obligation only during such period. Any grant
made from sums reserved under this subsection which has not
been obligated by the end of the period for which available
shall be added to the amount last allotted to such State under
this section and shall be immediately available for obligation
in the same manner and to the same extent as such last
allotment. Sums authorized to be reserved by this paragraph
shall be in addition to and not in lieu of any other funds
which may be authorized to carry out this subsection. The
Administrator may negotiate an annual budget with a State for
the purpose of administering the closeout of the State's
construction grants program under this title. Sums made
available for administering such closeout shall be subtracted
from amounts remaining available for obligation under the
State's construction grant program under this title.
* * * * * * *
(m) Discretionary Deposits Into State Water Pollution
Control Revolving Funds.--
(1) From construction grant allotments.--In addition
to any amounts deposited in a water pollution control
revolving fund established by a State under title VI,
upon request of the Governor of such State, the
Administrator shall make available to the State for
deposit, as capitalization grants, in such fund in any
fiscal year beginning after September 30, 1986, such
portion of the amounts allotted to such State under
this section for such fiscal year as the Governor
considers appropriate; except that (A) in fiscal year
1987 such deposit may not exceed 50 percent of the
amounts allotted to such State under this section for
such fiscal year, and (B) in fiscal year 1988, such
deposit may not exceed 75 percent of the amounts
allotted to such State under this section for [this]
such fiscal year.
* * * * * * *
areawide waste treatment management
Sec. 208. (a) * * *
* * * * * * *
(h)(1) The Secretary of the Army, acting through the Chief
of Engineers, in cooperation with the Administrator is
authorized and directed, upon request of the Governor or the
designated planning organization, to consult with, and provide
technical assistance to, any agency [designed] designated under
subsection (a) of this section in developing and operating a
continuing areawide waste treatment management planning process
under subsection (b) of this section.
* * * * * * *
(j)(1) The Secretary of Agriculture, with the concurrence
of the Administrator, and acting through the Soil Conservation
Service and such other agencies of the Department of
Agriculture as the Secretary may designate, is authorized and
directed to establish and administer a program to enter into
contracts, subject to such amounts as are provided in advance
by appropriation acts, of not less than five years nor more
than ten years with owners and operators having control of
rural land for the purpose of installing and maintaining
measures incorporating best management practices to control
nonpoint source pollution for improved water quality in those
States or areas for which the Administrator has approved a plan
under subsection (b) of this section where the practices to
which the contracts apply are certified by the management
agency designated under subsection (c)(1) of this section to be
consistent with such plans and will result in improved water
quality. Such contracts may be entered into during the period
ending not later than [September 31, 1988] September 30, 1988.
Under such contracts the land owners or operator shall agree--
(i) * * *
* * * * * * *
sewage collection systems
Sec. 211. (a) No grant shall be made for a sewage
collection system under this title unless such grant (1) is for
replacement or major rehabilitation of [an existing collection
system] a collection system existing on the date of the
enactment of the Clean Water Amendments of 1995 and is
necessary to the total integrity and performance of the waste
treatment works serving such community, or (2) is for a new
collection system in [an existing community] a community
existing on such date of enactment with [sufficient existing]
sufficient capacity existing on such date of enactment or
planned capacity adequately to treat such collected sewage and
is consistent with section 201 of this Act.
* * * * * * *
definitions
Sec. 212. As used in this title--
(1) * * *
(2)(A) The term ``treatment works'' means any devices and
systems used in the storage, treatment, recycling, and
reclamation of municipal sewage or industrial wastes of a
liquid nature to implement section 201 of this act, or
necessary to recycle or reuse water at the most economical cost
over the estimated life of the works, including intercepting
sewers, outfall sewers, sewage collection systems, pumping,
power, and other equipment, and their appurtenances;
extensions, improvements, remodeling, additions, and
alterations thereof; elements essential to provide a reliable
recycled supply such as standby treatment units and clear well
facilities; and [any works, including site] acquisition of the
land that will be an integral part of the treatment process
(including land use for the storage of treated wastewater in
land treatment systems prior to land application) or [is used
for ultimate] will be used for ultimate disposal of residues
resulting from such treatment and acquisition of other lands,
and interests in lands, which are necessary for construction.
* * * * * * *
cost effectiveness
Sec. 218. (a) It is the policy of Congress that a project
for waste treatment and management undertaken with Federal
financial assistance under this Act by any State, municipality,
or intermunicipal or interstate agency shall be considered as
an overall waste treatment system for waste treatment and
management, and shall be that system which constitutes the most
economical and cost-effective [combination of devices and
systems used in the storage, treatment, recycling, and
reclamation of municipal sewage or industrial wastes of a
liquid nature to implement section 201 of this Act, or
necessary to recycle or reuse water at the most economical cost
over the estimated life of the works, including intercepting
sewers, outfall sewers, sewage collection systems, pumping
power, and other equipment, and their appurtenances; extension,
improvements, remodeling, additions, and alterations thereof;
elements essential to provide a reliable recycled supply such
as standby treatment units and clear well facilities; and any
works, including site acquisition of the land that will be an
integral part of the treatment process (including land use for
the storage of treated wastewater in land treatment systems
prior to land application) or which is used for ultimate
disposal of residues resulting from such treatment;] treatment
works; water efficiency measures and devices; and any other
method or system for preventing, abating, reducing, storing,
treating, separating, or disposing of municipal waste,
including storm water runoff, or industrial waste, including
waste in combined storm water and sanitary sewer systems; to
meet the requirements of this Act.
* * * * * * *
(c) In furtherance of the policy set forth in subsection
(a) of this section, the Administrator shall require value
engineering review in connection with any treatment works,
prior to approval of any grant for the erection, building,
acquisition, alteration, remodeling, improvement, or extension
of such treatment works, in any case in which the cost of such
erection, building, acquisition, alteration, remodeling,
improvement, or extension is projected to be in excess of
[$10,000,000] $25,000,000. For purposes of this subsection, the
term ``value engineering review'' means a specialized cost
control technique which uses a systematic and creative approach
to identify and to focus on unnecessarily high cost in a
project in order to arrive at a cost saving without sacrificing
the reliability or efficiency of the project.
* * * * * * *
TITLE III--STANDARDS AND ENFORCEMENT
effluent limitations
Sec. 301. (a) Except as in compliance with this section and
sections 302, 306, 307, 318, [402, and 404] and 402 of this
Act, the discharge of any pollutant by any person shall be
unlawful. Except as in compliance with this section and section
404, the undertaking of any activity in wetlands or waters of
the United States shall be unlawful.
(b) In order to carry out the objective of this Act there
shall be achieved--
(1)(A) not later than July 1, 1977, effluent
limitations for point sources, other than publicly
owned treatment works, (i) which shall require the
application of the best practicable control technology
currently available as defined by the Administrator
pursuant to section 304(b) of this Act, or (ii) in the
case of a discharge into a publicly owned treatment
works which meets the requirements of subparagraph (B)
of this paragraph, which shall require compliance with
any applicable pretreatment requirements and any
requirements under section 307 of this Act; and
(B) for publicly owned treatment works in existence
on July 1, 1977, or approved pursuant to section 203 of
this Act prior to June 30, 1974 (for which construction
must be completed within four years of approval),
effluent limitations based upon secondary treatment as
defined by the Administrator pursuant to section
304(d)(1) of this Act; or,
(C) [not later than July 1, 1977,] any more stringent
limitation, including those necessary to meet water
quality standards, treatment standards, or schedule of
compliance, established pursuant to any State law or
regulations, (under authority preserved by section 510)
or any other Federal law or regulation, or required to
implement any applicable water quality standard
established pursuant to this Act[.] not later than 3
years after the date such limitations are established;
(2)(A) for pollutants identified in subparagraphs
(C), (D), and (F) of this paragraph, effluent
limitations for categories and classes of point
sources, other than publicly owned treatment works,
which (i) shall require application of the best
available technology economically achievable for such
category or class, which will result in reasonable
further progress toward the national goal of
eliminating the discharge of all pollutants, as
determined in accordance with regulations issued by the
Administrator pursuant to section 304(b)(2) of this
Act, which such effluent limitations shall require the
elimination of discharges of all pollutants if the
Administrator finds, on the basis of information
available to him (including information developed
pursuant to section 315), that such elimination is
technologically and economically achievable for
category or class of point sources as determined in
accordance with regulations issued by the Administrator
pursuant to section 304(b)(2) of this Act, or (ii) in
the case of the introduction of a pollutant into a
publicly owned treatment works which meets the
requirements of subparagraph (B) of this paragraph,
shall require compliance with any applicable
pretreatment requirements and any other requirement
under section 307 of this Act;
(C) with respect to all toxic pollutants referred to
in table 1 of Committee Print Numbered 95-30 of the
Committee on Public Works and Transportation of the
House of Representatives compliance with effluent
limitations in accordance with subparagraph (A) of this
paragraph as expeditiously as practicable but in no
case later than three years after the date such
limitations are promulgated under section 304(b)[, and
in no case later than March 31, 1989];
(D) for all toxic pollutants listed under paragraph
(1) of subsection (a) of section 307 of this Act which
are not referred to in subparagraph (C) of this
paragraph compliance with effluent limitation in
accordance with subparagraph (A) of this paragraph as
expeditiously as practicable, but in no case later than
three years after the date such limitations are
promulgated under section 304(b)[, and in no case later
than March 31, 1989];
(E) as expeditiously as practicable but in no case
later than three years after the date such limitations
are promulgated under section 304(b)[, and in no case
later than March 31, 1989], compliance with effluent
limitations for categories and classes of point
sources, other than publicly owned treatment works,
which in the case of pollutants identified pursuant to
section 304(a)(4) of this Act shall require application
of the best conventional pollutant control technology
as determined in accordance with regulations issued by
the Administrator pursuant to section 304(b)(4) of this
Act; and
(F) for all pollutants (other than those subject to
subparagraphs (C), (D), or (E) of this paragraph)
compliance with effluent limitations in accordance with
subparagraph (A) of this paragraph as expeditiously as
practicable but in no case later than 3 years after the
date such limitations are established[, and in no case
later than March 31, 1989].
(3)(A) for effluent limitations under paragraph
(1)(A)(i) of this subsection promulgated after January
1, 1982, and requiring a level of control substantially
greater or based on fundamentally different control
technology than under permits for an industrial
category issued before such date, compliance as
expeditiously as practicable but in no case later than
three years after the date such limitations are
promulgated under section 304(b)[, and in no case later
than March 31, 1989]; and
(B) for any effluent limitation in accordance with
paragraph (1)(A)(i), (2)(A)(i), or (2)(E) of this
subsection established only on the basis of section
402(a)(1) in a permit issued after enactment of the
Water Quality Act of 1987, compliance as expeditiously
as practicable but in no case later than three years
after the date such limitations are established[, and
in no case later than March 31, 1989].
* * * * * * *
[(d) Any effluent limitation required by paragraph (2) of
subsection (b) of this section shall be reviewed at least every
five years and, if appropriate, revised pursuant to the
procedure established under such paragraph.]
(d) Review of Effluent Limitations.--Any effluent limitation
required by subsection (b)(2) that is established in a permit
under section 402 shall be reviewed at least every 10 years
when the permit is reissued, and, if appropriate, revised.
* * * * * * *
(g) Modifications for Certain Nonconventional Pollutants.--
(1) General authority.--The Administrator, with the
concurrence of the State, may modify the requirements
of subsection (b)(2)(A) of this section with respect to
the discharge from any point source of ammonia,
chlorine, color, iron, and total phenols (4AAP) [(when
determined by the Administrator to be a pollutant
covered by subsection (b)(2)(F)) and any other
pollutant which the Administrator lists under paragraph
(4) of this subsection] and any other pollutant covered
by subsection (b)(2)(F).
* * * * * * *
[(4) Procedures for listing additional pollutants.--
[(A) General authority.--Upon petition of any
person, the Administrator may add any pollutant
to the list of pollutants for which
modification under this section is authorized
(except for pollutants identified pursuant to
section 304(a)(4) of this Act, toxic pollutants
subject to section 307(a) of this Act, and the
thermal component of discharges) in accordance
with the provisions of this paragraph.
[(B) Requirements for listing.--
[(i) Sufficient information.--The
person petitioning for listing of an
additional pollutant under this
subsection shall submit to the
Administrator sufficient information to
make the determinations required by
this subparagraph.
[(ii) Toxic criteria determination.--
The Administrator shall determine
whether or not the pollutant meets the
criteria for listing as a toxic
pollutant under section 307(a) of this
Act.
[(iii) Listing as toxic pollutant.--
If the Administrator determines that
the pollutant meets the criteria for
listing as a toxic pollutant under
section 307(a), the Administrator shall
list the pollutant as a toxic pollutant
under section 307(a).
[(iv) Nonconventional criteria
determination.--If the Administrator
determines that the pollutant does not
meet the criteria for listing as a
toxic pollutant under such section and
determines that adequate test methods
and sufficient data are available to
make the determinations required by
paragraph (2) of this subsection with
respect to the pollutant, the
Administrator shall add the pollutant
to the list of pollutants specified in
paragraph (1) of this subsection for
which modifications are authorized
under this subsection.
[(C) Requirements for filing of petitions.--A
petition for listing of a pollutant under this
paragraph--
[(i) must be filed not later than 270
days after the date of promulgation of
an applicable effluent guideline under
section 304;
[(ii) may be filed before
promulgation of such guideline; and
[(iii) may be filed with an
application for a modification under
paragraph (1) with respect to the
discharge of such pollutant.
[(D) Deadline for approval of petition.--A
decision to add a pollutant to the list of
pollutants for which modifications under this
subsection are authorized must be made within
270 days after the date of promulgation of an
applicable effluent guideline under section
304.
[(E) Burden of proof.--The burden of proof
for making the determinations under
subparagraph (B) shall be on the petitioner.
[(5) Removal of pollutants.--The Administrator may
remove any pollutant from the list of pollutants for
which modifications are authorized under this
subsection if the Administrator determines that
adequate test methods and sufficient data are no longer
available for determining whether or not modifications
may be granted with respect to such pollutant under
paragraph (2) of this subsection.]
* * * * * * *
(j)(1) Any application filed under this section for a
modification of the provisions of--
(A) subsection (b)(1)(B) under subsection (h) of this
section shall be filed not later [that] than the 365th
day which begins after the date of enactment of the
Municipal Wastewater Treatment Construction Grant
Amendments of 1981, except that a publicly owned
treatment works which prior to December 31, 1982, had a
contractual arrangement to use a portion of the
capacity of an ocean outfall operated by another
publicly owned treatment works which has applied for or
received modification under subsection (h), may apply
for a modification of subsection (h) in its own right
not later than 30 days after the date of the enactment
of the Water Quality Act of 1987, and except as
provided in paragraph (5);
* * * * * * *
(6) Extension of application deadline.--In the 365-
day period beginning on the date of the enactment of
this paragraph, municipalities may apply for a
modification pursuant to subsection (s) of the
requirements of subsection (b)(1)(B) of this section.
[(k) In the case of any facility subject to a permit under
section 402 which proposes to comply with the requirements of
subsection (b)(2)(A) or (b)(2)(E) of this section by replacing
existing production capacity with an innovative production
process which will result in an effluent reduction
significantly greater than that required by the limitation
otherwise applicable to such facility and moves toward the
national goal of eliminating the discharge of all pollutants,
or with the installation of an innovative control technique
that has a substantial likelihood for enabling the facility to
comply with the applicable effluent limitation by achieving a
significantly greater effluent reduction than that required by
the applicable effluent limitation and moves toward the
national goal of eliminating the discharge of all pollutants,
or by achieving the required reduction with an innovative
system that has the potential for significantly lower costs
than the systems which have been determined by the
Administrator to be economically achievable, the Administrator
(or the State with an approved program under section 402, in
consultation with the Administrator) may establish a date for
compliance under subsection (b)(2)(A) or (b)(2)(E) of this
section no later than two years after the date for compliance
with such effluent limitation which would otherwise be
applicable under such subsection, if it is also determined that
such innovative system has the potential for industrywide
application.]
(k) Innovative Production Processes, Technologies, and
Methods.--
(1) In general.--In the case of any point source
subject to a permit under section 402, the
Administrator, with the consent of the State in which
the point source is located, or the State in
consultation with the Administrator, in the case of a
State with an approved program under section 402, may,
at the request of the permittee and after public notice
and opportunity for comment, extend the deadline for
the point source to comply with any limitation
established pursuant to subsection (b)(1)(A),
(b)(2)(A), or (b)(2)(E) and make other appropriate
modifications to the conditions of the point source
permit, for the purpose of encouraging the development
and use of an innovative pollution prevention
technology (including an innovative production process
change, innovative pollution control technology, or
innovative recycling method) that has the potential
to--
(A) achieve an effluent reduction which is
greater than that required by the limitation
otherwise applicable;
(B) meet the applicable effluent limitation
to water while achieving a reduction of total
emissions to other media which is greater than
that required by the otherwise applicable
emissions limitations for the other media;
(C) meet the applicable effluent limitation
to water while achieving a reduction in energy
consumption; or
(D) achieve the required reduction with the
potential for significantly lower costs than
the systems determined by the Administrator to
be economically achievable.
(2) Duration of extensions.--The extension of the
compliance deadlines under paragraph (1) shall not
extend beyond the period necessary for the owner of the
point source to install and use the innovative process,
technology, or method in full-scale production
operations, but in no case shall the compliance
extensions extend beyond 3 years from the date for
compliance with the otherwise applicable limitations.
(3) Consequences of failure.--In determining the
amount of any civil or administrative penalty pursuant
to section 309(d) or 309(g) for any violations of a
section 402 permit during the extension period referred
to in paragraph (1) that are caused by the unexpected
failure of an innovative process, technology, or
method, a court or the Administrator, as appropriate,
shall reduce or eliminate the penalty for such
violation if the permittee has made good-faith efforts
both to implement the innovation and to comply with any
interim limitations.
(4) Report.--Not later than 1 year after the date of
the enactment of this subsection, the Administrator
shall review, analyze, and compile in a report
information on innovative and alternative technologies
which are available for preventing and reducing
pollution of navigable waters, submit such report to
Congress, and publish in the Federal Register a summary
of such report and a notice of the availability of such
report. The Administrator shall annually update the
report prepared under this paragraph, submit the
updated report to Congress, and publish in the Federal
Register a summary of the updated report and a notice
of its availability.
(l) Other than as provided in [subsection (n)] subsections
(n), (q), and (r) of this section, the Administrator may not
modify any requirement of this section as it applies to any
specific pollutant which is on the toxic pollutant list under
section 307(a)(1) of this Act.
* * * * * * *
(p) Modified Permit for Coal Remining Operations.--
(1) * * *
* * * * * * *
(2) Limitations.--The Administrator or the State may
only issue a permit pursuant to paragraph (1) if the
applicant demonstrates to the satisfaction of the
Administrator or the State, as the case may be, that
the coal remining operation will result in the
potential for improved water quality from the remining
operation but in no event shall such a permit allow the
pH level of any discharge, and in no event shall such a
permit allow the discharges of iron and manganese, to
exceed the levels being discharged from the remined
area before the coal remining operation begins. No
discharge from, or affected by, the remining operation
shall exceed State water quality standards established
under section 303 of this Act; except where monitoring
demonstrates that the receiving waters do not meet such
water quality standards prior to commencement of
remining and where the applicant submits a plan which
demonstrates to the satisfaction of the Administrator
or the State, as the case may be, that identified
measures will be utilized to improve the existing water
quality of the receiving waters.
* * * * * * *
(5) Preexisting coal remining operations.--Any
operator of a coal mining operation who conducted
remining at a site on which coal mining originally was
conducted before the effective date of the Surface
Mining Control and Reclamation Act of 1977 shall be
deemed to be in compliance with sections 301, 302, 306,
307, and 402 of this Act if--
(A) such operator commenced remining at such
operation prior to the adoption of this
subsection in a State program approved under
section 402 and performed such remining under a
permit pursuant to such Act; and
(B) the post-mining discharges from such
operation do not add pollutants to the waters
of the United States in excess of those
pollutants discharged from the remined area
before the coal remining operation began.
(q) Pollution Prevention Programs.--
(1) In general.--Notwithstanding any other provision
of this Act, the Administrator (with the concurrence of
the State) or a State with an approved program under
section 402, after public notice and an opportunity for
comment, may issue a permit under section 402 which
modifies the requirements of subsection (b) of this
section or section 306 and makes appropriate
modifications to the conditions of the permit, or may
modify the requirements of section 307, if the
Administrator or State determines that pollution
prevention measures or practices (including recycling,
source reduction, and other measures to reduce
discharges or other releases of pollutants to the
environment beyond those otherwise required by law)
together with such modifications will achieve an
overall reduction in emissions to the environment
(including emissions to water and air and disposal of
solid wastes) from the facility at which the permitted
discharge is located that is greater than would
otherwise be achievable if the source complied with the
requirements of subsection (b) or section 306 or 307
and will result in an overall net benefit to the
environment.
(2) Term of modification.--A modification made
pursuant to paragraph (1) shall extend for the term of
the permit or, in the case of modifications under
section 307(b), for up to 10 years, and may be extended
further if the Administrator or State determines at the
expiration of the initial modifications that such
modifications will continue to enable the source to
achieve greater emissions reduction than would
otherwise be attainable.
(3) Nonextension of modification.--Upon expiration of
a modification that is not extended further under
paragraph (2), the source shall have a reasonable
period of time, not to exceed 2 years, to come into
compliance with otherwise applicable requirements of
this Act.
(4) Report.--Not later than 3 years after the date of
the enactment of this subsection, the Administrator
shall submit to Congress a report on the implementation
of this subsection and the emissions reductions
achieved as a result of modifications made pursuant to
this subsection.
(r) Pollution Reduction Agreements.--
(1) In general.--Notwithstanding any other provision
of this Act, the Administrator (with the concurrence of
the State) or a State with an approved program under
section 402, after public notice and an opportunity for
comment, may issue a permit under section 402 which
modifies the requirements of subsection (b) of this
section or section 306 and makes appropriate
modifications to the conditions of the permit, or may
modify the requirements of section 307, if the
Administrator or State determines that the owner or
operator of the source of the discharge has entered
into a binding contractual agreement with any other
source of discharge in the same watershed to implement
pollution reduction controls or measures beyond those
otherwise required by law and that the agreement is
being implemented through modifications of a permit
issued under section 402 to the other source, by
modifications of the requirements of section 307
applicable to the other source, or by nonpoint source
control practices and measures under section 319
applicable to the other source. The Administrator or
State may modify otherwise applicable requirements
pursuant to this section whenever the Administrator or
State determines that such pollution reduction control
or measures will result collectively in an overall
reduction in discharges to the watershed that is
greater than would otherwise be achievable if the
parties to the pollution reduction agreement each
complied with applicable requirements of subsection
(b), section 306 or 307 resulting in a net benefit to
the watershed.
(2) Notification to affected states.--Before issuing
or modifying a permit under this subsection allowing
discharges into a watershed that is within the
jurisdiction of 2 or more States, the Administrator or
State shall provide written notice of the proposed
permit to all States with jurisdiction over the
watershed. The Administrator or State shall not issue
or modify such permit unless all States with
jurisdiction over the watershed have approved such
permit or unless such States do not disapprove such
permit within 90 days of receiving such written notice.
(3) Term of modification.--Modifications made
pursuant to this subsection shall extend for the term
of the modified permits or, in the case of
modifications under section 307, for up to 10 years,
and may be extended further if the Administrator or
State determines, at the expiration of the initial
modifications, that such modifications will continue to
enable the sources trading credits to achieve greater
reduction in discharges to the watershed collectively
than would otherwise be attainable.
(4) Nonextension of modification.--Upon expiration of
a modification that is not extended further under
paragraph (3), the source shall have a reasonable
period of time, not to exceed 2 years, to come into
compliance with otherwise applicable requirements of
this Act.
(5) Limitation on statutory construction.--Nothing in
this subsection shall be construed to authorize the
Administrator or a State, as appropriate, to compel
trading among sources or to impose nonpoint source
control practices without the consent of the nonpoint
source discharger.
(6) Report.--Not later than 3 years after the date of
the enactment of this subsection, the Administrator
shall submit a report to Congress on the implementation
of paragraph (1) and the discharge reductions achieved
as a result of modifications made pursuant to paragraph
(1).
(s) Modification of Secondary Treatment Requirements.--
(1) In general.--The Administrator, with the
concurrence of the State, shall issue a 10-year permit
under section 402 which modifies the requirements of
subsection (b)(1)(B) of this section with respect to
the discharge of any pollutant from a publicly owned
treatment works into marine waters which are at least
150 feet deep through an ocean outfall which discharges
at least 1 mile offshore, if the applicant demonstrates
that--
(A) there is an applicable ocean plan and the
facility's discharge is in compliance with all
local and State water quality standards for the
receiving waters;
(B) the facility's discharge will be subject
to an ocean monitoring program determined to be
acceptable by relevant Federal and State
regulatory agencies;
(C) the applicant has an Agency approved
pretreatment plan in place; and
(D) the applicant, at the time such
modification becomes effective, will be
discharging effluent which has received at
least chemically enhanced primary treatment and
achieves a monthly average of 75 percent
removal of suspended solids.
(2) Discharge of any pollutant into marine waters
defined.--For purposes of this subsection, the term
``discharge of any pollutant into marine waters'' means
a discharge into deep waters of the territorial sea or
the waters of the contiguous zone, or into saline
estuarine waters where there is strong tidal movement.
(3) Deadline.--On or before the 90th day after the
date of submittal of an application for a modification
under paragraph (1), the Administrator shall issue to
the applicant a modified permit under section 402 or a
written determination that the application does not
meet the terms and conditions of this subsection.
(4) Effect of failure to respond.--If the
Administrator does not respond to an application for a
modification under paragraph (1) on or before the 90th
day referred to in paragraph (3), the application shall
be deemed approved and the modification sought by the
applicant shall be in effect for the succeeding 10-year
period.
(t) Modifications for Small System Treatment Technologies.--
The Administrator, with the concurrence of the State, or a
State with an approved program under section 402 may issue a
permit under section 402 which modifies the requirements of
subsection (b)(1)(B) of this section with respect to the
discharge of any pollutant from a publicly owned treatment
works serving a community of 20,000 people or fewer if the
applicant demonstrates to the satisfaction of the Administrator
that--
(1) the effluent from such facility originates
primarily from domestic users; and
(2) such facility utilizes a properly constructed and
operated alternative treatment system (including
recirculating sand filter systems, constructed
wetlands, and oxidation lagoons) which is equivalent to
secondary treatment or will provide in the receiving
waters and watershed an adequate level of protection to
human health and the environment and contribute to the
attainment of water quality standards.
(u) Puerto Rico.--
(1) Study by government of puerto rico.--Not later
than 3 months after the date of the enactment of this
section, the Government of Puerto Rico may, after
consultation with the Administrator, initiate a study
of the marine environment of Anasco Bay off the coast
of the Mayaguez region of Puerto Rico to determine the
feasibility of constructing a deepwater outfall for the
publicly owned treatment works located at Mayaguez,
Puerto Rico. Such study shall recommend one or more
technically feasible locations for the deepwater
outfall based on the effects of such outfall on the
marine environment.
(2) Application for modification.--Notwithstanding
subsection (j)(1)(A), not later than 18 months after
the date of the enactment of this section, an
application may be submitted for a modification
pursuant to subsection (h) of the requirements of
subsection (b)(1)(B) of this section by the owner of
the publicly owned treatment works at Mayaguez, Puerto
Rico, for a deepwater outfall at a location recommended
in the study conducted pursuant to paragraph (1).
(3) Initial determination.--On or before the 90th day
after the date of submittal of an application for
modification under paragraph (2), the Administrator
shall issue to the applicant a draft initial
determination regarding the modification of the
existing permit.
(4) Final determination.--On or before the 270th day
after the date of submittal of an application for
modification under paragraph (2), the Administrator
shall issue a final determination regarding such
modification.
(5) Effectiveness.--If a modification is granted
pursuant to an application submitted under this
subsection, such modification shall be effective only
if the new deepwater outfall is operational within 5
years after the date of the enactment of this
subsection. In all other aspects, such modification
shall be effective for the period applicable to all
modifications granted under subsection (h).
* * * * * * *
Water quality standards and implementation plans
Sec. 303. (a) * * *
(b)(1) * * *
* * * * * * *
(3) No reasonable relationship.--No water quality standard
shall be established under this subsection where there is no
reasonable relationship between the costs and anticipated
benefits of attaining such standard.
(c)(1) The Governor of a State or the State water pollution
control agency of such State shall from time to time (but at
least once each [three year period beginning with the date of
enactment of the Federal Water Pollution Control Act Amendments
of 1972] 5-year period beginning on the date of the enactment
of the Clean Water Amendments of 1995 and, for criteria that
are revised by the Administrator pursuant to section 304(a), on
or before the 180th day after the date of such revision by the
Administrator) hold public hearings for the purpose of
reviewing applicable water quality standards and, as
appropriate, modifying and adopting standards. Results of such
review shall be made available to the Administrator.
[(2)(A) Whenever the State revises or adopts a new
standard, such revised or new standard shall be submitted to
the Administrator. Such revised or new water quality standard
shall consist of the designated uses of the navigable waters
involved and the water quality criteria for such waters based
upon such uses. Such standards shall be such as to protect the
public health or welfare, enhance the quality of water and
serve the purposes of this Act. Such standards shall be
established taking into consideration their use and value for
public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and other
purposes, and also taking into consideration their use and
value for navigation.]
(2) State adoption of water quality standards.--
(A) In general.--
(i) Submission to administrator.--Whenever
the State revises or adopts a new water quality
standard, such standard shall be submitted to
the Administrator.
(ii) Designated uses and water quality
criteria.--The revised or new standard shall
consist of the designated uses of the navigable
waters involved and the water quality criteria
for such waters based upon such uses.
(iii) Protection of human health.--The
revised or new standard shall protect human
health and the environment and enhance water
quality.
(iv) Development of standards.--In developing
revised or new standards, the State may
consider information reasonably available on
the likely social, economic, energy use, and
environmental cost associated with attaining
such standards in relation to the benefits to
be attained. The State may provide a
description of the considerations used in the
establishment of the standards.
(v) Record of state's review.--The record of
a State's review under paragraph (1) of an
existing standard or adoption of a new standard
that includes water quality criteria issued or
revised by the Administrator after the date of
the enactment of this sentence shall contain
available estimates of costs of compliance with
the water quality criteria published by the
Administrator under section 304(a)(12) and any
comments received by the State on such
estimate.
(vi) Limitation on statutory construction.--
Nothing in this subsection shall be construed
to limit or delay the use of any guidance of
the Administrator interpreting water quality
criteria to allow the use of a dissolved metals
concentration measurement or similar adjustment
in determining compliance with a water quality
standard or establishing effluent limitations.
(B) Criteria for toxic pollutants.--Whenever a State
reviews water quality standards pursuant to paragraph
(1) of this subsection, or revises or adopts new
standards pursuant to this paragraph, such State shall
adopt criteria for all toxic pollutants listed pursuant
to section 307(a)(1) of this Act for which criteria
have been published under section 304(a), the discharge
or presence of which in the affected waters could
reasonably be expected to interfere with those
designated uses adopted by the State, as necessary to
support such designated uses. Such criteria shall be
specific numerical criteria for such toxic pollutants.
Criteria for whole effluent toxicity based on
laboratory biological monitoring or assessment methods
shall employ an aquatic species indigenous, or
representative of indigenous, and relevant to the type
of waters covered by such criteria and shall take into
account the accepted analytical variability associated
with such methods in defining an exceedance of such
criteria. Where such numerical criteria are not
available, whenever a State reviews water quality
standards pursuant to paragraph (1), or revises or
adopts new standards pursuant to this paragraph, such
State shall adopt criteria based on biological
monitoring or assessment methods consistent with
information published pursuant to section 304(a)(8).
Nothing in this section shall be construed to limit or
delay the use of effluent limitations or other permit
conditions based on or involving biological monitoring
or assessment methods or previously adopted numerical
criteria.
(C) Revision of designated uses.--
(i) Regulations.--After consultation with
State officials and not later than 1 year after
the date of the enactment of this subparagraph,
the Administrator shall propose, and not later
than 2 years after such date of enactment shall
issue, a revision to the Administrator's
regulations regarding designation of uses of
waters by States.
(ii) Waters not attaining designated uses.--
For navigable waters not attaining designated
uses, the Administrator shall identify
conditions that make attainment of the
designated use infeasible and shall allow a
State to modify the designated use if the State
determines that such condition or conditions
are present with respect to a particular
receiving water, or if the State determines
that the costs of achieving the designated use
are not justified by the benefits.
(iii) Waters attaining designated uses.--For
navigable waters attaining the designated use
applicable to such waters for all pollutants,
the Administrator shall allow a State to modify
the designated use only if the State determines
that continued maintenance of the water quality
necessary to support the designated use will
result in significant social or economic
dislocations substantially out of proportion to
the benefits to be achieved from maintenance of
the designated use.
(iv) Modification of point source limits.--
Notwithstanding any other provision of this
Act, water quality based limits applicable to
point sources may be modified as appropriate to
conform to any modified designated use under
this section.
(D) Standards for constructed water conveyances.--
(i) Relevant factors.--If a State exercises
jurisdiction over constructed water conveyances
in establishing standards under this section,
the State may consider the following:
(I) The existing and planned uses of
water transported in a conveyance
system.
(II) Any water quality impacts
resulting from any return flow from a
constructed water conveyance to
navigable waters and the need to
protect downstream users.
(III) Management practices necessary
to maintain the conveyance system.
(IV) State or regional water
resources management and water
conservation plans.
(V) The authorized purpose for the
constructed conveyance.
(ii) Relevant uses.--If a State adopts or
reviews water quality standards for constructed
water conveyances, it shall not be required to
establish recreation, aquatic life, or fish
consumption uses for such systems if the uses
are not existing or reasonably foreseeable or
such uses impede the authorized uses of the
conveyance system.
* * * * * * *
(4) The Administrator shall promptly prepare and publish
proposed regulations setting forth a revised or new water
quality standard for the navigable waters involved--
(A) if a revised or new water quality standard
submitted by such State under paragraph (3) of this
subsection for such waters is determined by the
Administrator not to be consistent with the applicable
requirements of this Act, or
(B) in any case where the Administrator determines
that a revised or new standard is necessary to meet the
requirements of this Act.
The Administrator shall promulgate any revised or new standard
under this paragraph not later than ninety days after he
publishes such proposed standards, unless prior to such
promulgation, such State has adopted a revised or new water
quality standard which the Administrator determines to be in
accordance with this Act. In revising or adopting any new
standard for ephemeral or effluent-dependent streams under this
paragraph, the Administrator shall consider the factors
referred to in section 304(a)(9)(B).
(d)(1)(A) * * *
* * * * * * *
[(C) Each State shall establish for the waters identified
in paragraph (1)(A) of this subsection, and in accordance with
the priority ranking, the total maximum daily load, for those
pollutants which the Administrator identifies under section
304(a)(2) as suitable for such calculation. Such load shall be
established at a level necessary to implement the applicable
water quality standards with seasonal variations and a margin
of safety which takes into account any lack of knowledge
concerning the relationship between effluent limitations and
water quality.]
(C) Total maximum daily loads.--
(i) State determination of reasonable progress.--Each
State shall establish, to the extent and according to a
schedule the State determines is necessary to achieve
reasonable progress toward the attainment or
maintenance of water quality standards, for the waters
identified in paragraph (1)(A) of this subsection, and
in accordance with the priority ranking, the total
maximum daily load, for those pollutants which the
Administrator identifies under section 304(a)(2) as
suitable for such calculation.
(ii) Phased total maximum daily loads.--Total maximum
daily loads may reflect load reductions the State
expects will be realized over time resulting from
anticipated implementation of best management
practices, storm water controls, or other nonpoint or
point source controls; so long as by December 31, 2015,
such loads are established at levels necessary to
implement the applicable water quality standards with
seasonal variations and a margin of safety.
(iii) Considerations.--In establishing each load, the
State shall consider the availability of scientifically
valid data and information, the projected reductions
achievable by control measures or practices for all
sources or categories of sources, and the relative
cost-effectiveness of implementing such control
measures or practices for such sources.
* * * * * * *
(5) Antidegradation review.--The Administrator may not
require a State, in implementing the antidegradation policy
established under this section, to conduct an antidegradation
review in the case of--
(A) increases in a discharge which are authorized
under section 301(g), 301(k), 301(q), 301(r), or
301(t);
(B) increases in the concentration of a pollutant in
a discharge caused by a reduction in wastewater flow;
(C) increases in the discharge of a pollutant or
pollutants from one or more outfalls at a permittee's
facility, when accompanied by offsetting decreases in
the discharge of a pollutant or pollutants from other
outfalls at the permittee's facility;
(D) reissuance of a permit where there is no increase
in existing effluent limitations and, if a new effluent
limitation is being added to the permit, where the new
limitation is for a pollutant that is newly found in an
existing discharge due solely to improved monitoring
methods; or
(E) a new or increased discharge which is temporary
or short-term or which the State determines represents
an insignificant increased pollutant loading.
information and guidelines
Sec. 304. (a)(1) The Administrator, after consultation with
appropriate Federal and State agencies and other interested
persons, shall develop and publish, within one year after the
date of enactment of this title (and from time to time
thereafter revise) criteria for water quality accurately
reflecting the latest scientific knowledge (A) on the kind and
extent of all identifiable effects on health and welfare
including, but not limited to, plankton, fish, shellfish,
wildlife, plant life, shorelines, beaches, esthetics, and
recreation which may be expected from the presence of
pollutants in any body of water, including ground water; (B) on
the concentration and dispersal of pollutants, or their
byproducts, through biological, physical, and chemical
processes; [and] (C) on the effects of pollutants on biological
community diversity, productivity, and stability, including
information on the factors affecting rates of eutrophication
and rates of organic and inorganic sedimentation for varying
types of receiving waters[.] (D) on the organisms that are
likely to be present in various ecosystems; (E) on the
bioavailability of pollutants under various natural and man
induced conditions; (F) on the magnitude, duration, and
frequency of exposure reasonably required to induce the adverse
effects of concern; and (G) on the bioaccumulation threat
presented under various natural conditions.
* * * * * * *
(8) Information on water quality criteria.--The
Administrator[, after consultation with appropriate
State agencies and within 2 years after the date of the
enactment of the Water Quality Act of 1987,] shall
develop and publish, consistent with section
303(c)(2)(B) of this Act, information on methods for
establishing and measuring water quality criteria for
toxic pollutants on other bases than pollutant-by-
pollutant criteria, including biological monitoring and
assessment methods.
(9) Criteria and guidance for ephemeral and effluent-
dependent streams.--
(A) Development.--Not later than 2 years
after the date of the enactment of this
paragraph, and after providing notice and
opportunity for public comment, the
Administrator shall develop and publish--
(i) criteria for ephemeral and
effluent-dependent streams; and
(ii) guidance to the States on
development and adoption of water
quality standards applicable to such
streams.
(B) Factors.--The criteria and guidance
developed under subparagraph (A) shall take
into account the limited ability of ephemeral
and effluent-dependent streams to support
aquatic life and certain designated uses, shall
include consideration of the role the discharge
may play in maintaining the flow or level of
such waters, and shall promote the beneficial
use of reclaimed water pursuant to section
101(a)(10).
(10) Certification.--
(A) In general.--Not later than 5 years after
the date of the enactment of this paragraph,
and at least once every 5 years thereafter, the
Administrator shall publish a written
certification that the criteria for water
quality developed under paragraph (1) reflect
the latest and best scientific knowledge.
(B) Updating of existing criteria.--Not later
than 90 days after the date of the enactment of
this paragraph, the Administrator shall publish
a schedule for updating, by not later than 5
years after the date of the enactment of this
paragraph, the criteria for water quality
developed under paragraph (1) before the date
of the enactment of this subsection.
(C) Deadline for revision of certain
criteria.--Not later than 1 year after the date
of the enactment of this paragraph, the
Administrator shall revise and publish criteria
under paragraph (1) for ammonia, chronic whole
effluent toxicity, and metals as necessary to
allow the Administrator to make the
certification under subparagraph (A).
(11) Consideration of certain contaminants.--In
developing and revising criteria for water quality
criteria under paragraph (1), the Administrator shall
consider addressing, at a minimum, each contaminant
regulated pursuant to section 1412 of the Public Health
Service Act (42 U.S.C. 300g-1).
(12) Cost estimate.--Whenever the Administrator
issues or revises a criteria for water quality under
paragraph (1), the Administrator, after consultation
with Federal and State agencies and other interested
persons, shall develop and publish an estimate of the
costs that would likely be incurred if sources were
required to comply with the criteria and an analysis to
support the estimate. Such analysis shall meet the
requirements relevant to the estimation of costs
published in guidance issued under section 324(b).
(b) For the purposes of adopting or revising effluent
limitations under this Act the Administrator shall, after
consultation with appropriate Federal and State agencies and
other interested persons, publish within one year of enactment
of this title, regulations, providing guidelines for effluent
limitations, [and, at least annually thereafter,] and
thereafter shall revise, if appropriate, such regulations[.];
except that guidelines issued under paragraph (1)(A) addressing
pollutants identified pursuant to subsection (a)(4) shall not
be revised after February 15, 1995, to be more stringent unless
such revised guidelines meet the requirements of paragraph
(4)(A). Such regulations shall--
(1)(A) * * *
* * * * * * *
(d)(1) * * *
* * * * * * *
(5) Coastal discharges.--For purposes of this
subsection, any municipal wastewater treatment facility
shall be deemed the equivalent of a secondary treatment
facility if each of the following requirements is met:
(A) The facility employs chemically enhanced
primary treatment.
(B) The facility, on the date of the
enactment of this paragraph, discharges through
an ocean outfall into an open marine
environment greater than 4 miles offshore into
a depth greater than 300 feet.
(C) The facility's discharge is in compliance
with all local and State water quality
standards for the receiving waters.
(D) The facility's discharge will be subject
to an ocean monitoring program acceptable to
relevant Federal and State regulatory agencies.
* * * * * * *
(g)(1) For the purpose of assisting States in carrying out
programs under section 402 of this Act, the Administrator shall
publish, within one hundred and twenty days after the date of
enactment of this title, [and review at least annually
thereafter and, if appropriate, revise] and thereafter revise,
as appropriate, guidelines for pretreatment of pollutants which
he determines are not susceptible to treatment by publicly
owned treatment works. Guidelines under this subsection shall
be established to control and prevent the discharge into the
navigable waters, the contiguous zone, or the ocean (either
directly or through publicly owned treatment works) of any
pollutant which interferes with, passes through, or otherwise
is incompatible with such works.
* * * * * * *
(i) The Administrator shall (1) within sixty days after the
enactment of this title promulgate guidelines for the purpose
of establishing uniform application forms and other minimum
requirements for the acquisition of information from owners and
operators of point-sources of discharge subject to any State
program under section 402 of this Act, and (2) within sixty
days from the date of enactment of this title promulgate
guidelines establishing the minimum procedural and other
elements of any State program under section 402 of this Act
which shall include:
(A) * * *
* * * * * * *
(D) funding, personnel qualifications, and manpower
requirements (including a requirement that no board or
body which approves permit applications or portions
thereof shall include, as a member, [any person who
receives, or has during the previous two years
received, a significant portion of his income directly
or indirectly from permit holders or applicants for a
permit).] any person (other than a retiree or an
employee or official of a city, county, or local
governmental agency) who receives a significant portion
of his or her income during the period of service on
the board or body directly or indirectly from permit
holders or applicants for a permit).
* * * * * * *
(m) Schedule for Review of Guidelines.--
[(1) Publication.--Within 12 months after the date of
the enactment of the Water Quality Act of 1987, and
biennially thereafter, the Administrator shall publish
in the Federal Register a plan which shall--
[(A) establish a schedule for the annual
review and revision of promulgated effluent
guidelines, in accordance with subsection (b)
of this section;
[(B) identify categories of sources
discharging toxic or nonconventional pollutants
for which guidelines under subsection (b)(2) of
this section and section 306 have not
previously been published; and
[(C) establish a schedule for promulgation of
effluent guidelines for categories identified
in subparagraph (B), under which promulgation
of such guidelines shall be no later than 4
years after such date of enactment for
categories identified in the first published
plan or 3 years after the publication of the
plan for categories identified in later
published plans.]
(1) Publication.--Not later than 3 years after the
date of the enactment of the Clean Water Amendments of
1995, the Administrator shall publish in the Federal
Register a plan which shall--
(A) identify categories of sources
discharging pollutants for which guidelines
under subsection (b)(2) of this section and
section 306 have not been previously published;
(B) establish a schedule for determining
whether such discharge presents a significant
risk to human health and the environment and
whether such risk is sufficient, when compared
to other sources of pollutants in navigable
waters, to warrant regulation by the
Administrator; and
(C) establish a schedule for issuance of
effluent guidelines for those categories
identified pursuant to subparagraph (B).
* * * * * * *
(n) Central Treatment Facility Exemption.--The exemption from
effluent guidelines for the Iron and Steel Manufacturing Point
Source Category set forth in section 420.01(b) of title 40,
Code of Federal Regulations, for the facilities listed in such
section shall remain in effect for any facility that met the
requirements of such section on or before July 26, 1982, until
the Administrator develops alternative effluent guidelines for
the facility.
(o) Beach Water Quality Monitoring.--After consultation with
appropriate Federal, State, and local agencies and after
providing notice and opportunity for public comment, the
Administrator shall develop and issue, not later than 18 months
after the date of the enactment of this Act, guidance that
States may use in monitoring water quality at beaches and
issuing health advisories with respect to beaches, including
testing protocols, recommendations on frequency of testing and
monitoring, recommendations on pollutants for which monitoring
and testing should be conducted, and recommendations on when
health advisories should be issued. Such guidance shall be
based on the best available scientific information and be
sufficient to protect public health and safety in the case of
any reasonably expected exposure to pollutants as a result of
swimming or bathing.
* * * * * * *
toxic and pretreatment effluent standards
Sec. 307. (a)(1) * * *
[(2) Each] (2) Toxic effluent limitations and
standards.--
(A) In general.--Each toxic pollutant listed
in accordance with paragraph (1) of this
subsection shall be subject to effluent
limitations resulting from the application of
the best available technology economically
achieveable for the applicable category or
class of point sources established in
accordance with section 301(b)(2)(A) and
304(b)(2) of this Act. The Administrator, in
his discretion, may publish in the Federal
Register a proposed effluent standard (which
may include a prohibition) establishing
requirements for a toxic pollutant which, if an
effluent limitation is applicable to a class or
category of point sources, shall be applicable
to such category or class only if such standard
imposes more stringent requirements. [Such
published effluent standard (or prohibition)
shall take into account the toxicity of the
pollutant, its persistence, degradability, the
usual or potential presence of the affected
organisms in any waters, the importance of the
affected organisms and the nature and extent of
the effect of the toxic pollutant on such
organisms, and the extent to which effective
control is being or may be achieved under other
regulatory authority.] The Administrator shall
allow a period of not less than sixty days
following publication of any such proposed
effluent standard (or prohibition) for written
comment by interested persons on such proposed
standard. In addition, if within thirty days of
publication of any such proposed effluent
standard (or prohibition) any interested person
so requests, the Administrator shall hold a
public hearing in connection therewith. Such a
public hearing shall provide an opportunity for
oral and written presentations, such cross-
examination as the Administrator determines is
appropriate on disputed issues of material
fact, and the transcription of a verbatim
record which shall be available to the public.
After consideration of such comments and any
information and material presented at any
public hearing held on such proposed standard
or prohibition, the Administrator shall
promulgate such standards (or prohibition) with
such modifications as the Administrator finds
are justified. Such promulgation by the
Administrator shall be made within two hundred
and seventy days after publication of proposed
standard (or prohibition). Such standard (or
prohibition) shall be final except that if, on
judicial review, such standard was not based on
substantial evidence, the Administrator shall
promulgate a revised standard. Effluent
limitations shall be established in accordance
with sections 301(b)(2)(A) and 304(b)(2) for
every toxic pollutant referred to in table 1 of
Committee Print Numbered 95-30 of the Committee
on Public Works and Transportation of the House
of Representatives as soon as practicable after
the date of enactment of the Clean Water Act of
1977, but no later than July 1, 1980. Such
effluent limitations or effluent standards (or
prohibitions) shall be established for every
other toxic pollutant listed under paragraph
(1) of this subsection as soon as practicable
after it is so listed.
(B) Factors.--The published effluent standard
(or prohibition) shall take into account--
(i) the pollutant's persistence,
toxicity, degradability, and
bioaccumulation potential;
(ii) the magnitude and risk of
exposure to the pollutant, including
risks to affected organisms and the
importance of such organisms;
(iii) the relative contribution of
point source discharges of the
pollutant to the overall risk from the
pollutant;
(iv) the availability of, costs
associated with, and risk posed by
substitute chemicals or processes or
the availability of treatment processes
or control technology;
(v) the beneficial and adverse social
and economic effects of the effluent
standard, including the impact on
energy resources;
(vi) the extent to which effective
control is being or may be achieved in
an expeditious manner under other
regulatory authorities;
(vii) the impact on national security
interests; and
(viii) such other factors as the
Administrator considers appropriate.
* * * * * * *
(d) After the effective date of any effluent standard or
prohibition or pretreatment standard promulgated under this
section, it shall be unlawful for any owner or operator of any
source to operate any source in violation of any such effluent
standard or prohibition or pretreatment standard. In any
enforcement action or citizen suit under section 309 or 505 of
this Act or applicable State law alleging noncompliance with a
categorical pretreatment standard or local pretreatment limit
established pursuant to this section, a person who demonstrates
through reference to information contained in the applicable
rulemaking record--
(1) that the number of excursions from the
categorical pretreatment standard or local pretreatment
limit are no greater, on an annual basis, than the
number of excursions expected from the technology on
which the pretreatment standard or local pretreatment
limit is based, and
(2) that the introduction of pollutants into a
publicly owned treatment works does not cause
interference with such works or cause a violation by
such works of an applicable water-quality based
limitation or standard,
shall be deemed in compliance with the standard under the Act.
[(e) Compliance Date Extension for Innovative Pretreatment
Systems.--In the case of any existing facility that proposes to
comply with the pretreatment standards of subsection (b) of
this section by applying an innovative system that meets the
requirements of section 301(k) of this Act, the owner or
operator of the publicly owned treatment works receiving the
treated effluent from such facility may extend the date for
compliance with the applicable pretreatment standard
established under this section for a period not to exceed 2
years--
[(1) if the Administrator determines that the
innovative system has the potential for industrywide
application, and
[(2) if the Administrator (or the State in
consultation with the Administrator, in any case in
which the State has a pretreatment program approved by
the Administrator)--
[(A) determines that the proposed extension
will not cause the publicly owned treatment
works to be in violation of its permit under
section 402 or of section 405 or to contribute
to such a violation, and
[(B) concurs with the proposed extension.]
(e) Innovative Pretreatment Production Processes,
Technologies, and Methods.--
(1) In general.--In the case of any facility that
proposes to comply with the national categorical
pretreatment standards developed under subsection (b)
by applying an innovative pollution prevention
technology (including an innovative production process
change, innovative pollution control technology, or
innovative recycling method) that meets the
requirements of section 301(k), the Administrator or
the State, in consultation with the Administrator, in
the case of a State which has a pretreatment program
approved by the Administrator, upon application of the
facility and with the concurrence of the treatment
works into which the facility introduces pollutants,
may extend the deadlines for compliance with the
applicable national categorical pretreatment standards
established under this section and make other
appropriate modifications to the facility's
pretreatment requirements if the Administrator or the
State, in consultation with the Administrator, in the
case of a State which has a pretreatment program
approved by the Administrator determines that--
(A) the treatment works will require the
owner of the source to conduct such tests and
monitoring during the period of the
modification as are necessary to ensure that
the modification does not cause or contribute
to a violation by the treatment works under
section 402 or a violation of section 405;
(B) the treatment works will require the
owner of the source to report on progress at
prescribed milestones during the period of
modification to ensure that attainment of the
pollution reduction goals and conditions set
forth in this section is being achieved; and
(C) the proposed extensions or modifications
will not cause or contribute to any violation
of a permit granted to the treatment works
under section 402, any violation of section
405, or a pass through of pollutants such that
water quality standards are exceeded in the
body of water into which the treatment works
discharges.
(2) Interim limitations.--A modification granted
pursuant to paragraph (1) shall include interim
standards that shall apply during the temporary period
of the modification and shall be the more stringent
of--
(A) those necessary to ensure that the
discharge will not interfere with the operation
of the treatment works;
(B) those necessary to ensure that the
discharge will not pass through pollutants at a
level that will cause water quality standards
to be exceeded in the navigable waters into
which the treatment works discharges;
(C) the limits established in the previously
applicable control mechanism, in those cases in
which the limit from which a modification is
being sought is more stringent than the limit
established in a previous control mechanism
applicable to such source.
(3) Duration of extensions and modifications.--The
extension of the compliance deadlines and the modified
pretreatment requirements established pursuant to
paragraph (1) shall not extend beyond the period
necessary for the owner to install and use the
innovative process, technology, or method in full-scale
production operation, but in no case shall the
compliance extensions and modified requirements extend
beyond 3 years from the date for compliance with the
otherwise applicable standards.
(4) Consequences of failure.--In determining the
amount of any civil or administrative penalty pursuant
to section 309(d) or 309(g) for any pretreatment
violations, or violations by a publicly owned treatment
works, caused by the unexpected failure of an
innovative process, technology, or method, a court or
the Administrator, as appropriate, shall reduce, or
eliminate, the penalty amount for such violations
provided the facility made good-faith efforts both to
implement the innovation and to comply with the interim
standards and, in the case of a publicly owned
treatment works, good-faith efforts were made to
implement the pretreatment program.
(f) Local Pretreatment Authority.--
(1) Demonstration.--If, to carry out the purposes
identified in paragraph (2), a publicly owned treatment
works with an approved pretreatment program
demonstrates to the satisfaction of the Administrator,
or a State with an approved program under section 402,
that--
(A) such publicly owned treatment works is in
compliance, and is likely to remain in
compliance, with its permit under section 402,
including applicable effluent limitations and
narrative standards;
(B) such publicly owned treatment works is in
compliance, and is likely to remain in
compliance, with applicable air emission
limitations;
(C) biosolids produced by such publicly owned
treatment works meet beneficial use
requirements under section 405; and
(D) such publicly owned treatment works is
likely to continue to meet all applicable State
requirements;
the approved pretreatment program shall be modified to
allow the publicly owned treatment works to apply local
limits in lieu of categorical pretreatment standards
promulgated under this section.
(2) Purposes.--The publicly owned treatment works may
make the demonstration to the Administrator or the
State, as the case may be, to apply local limits in
lieu of categorical pretreatment standards, as the
treatment works deems necessary, for the purposes of--
(A) reducing the administrative burden
associated with the designation of an
``industrial user'' as a ``categorical
industrial user''; or
(B) eliminating additional redundant or
unnecessary treatment by industrial users which
has little or no environmental benefit.
(3) Limitations.--
(A) Significant noncompliance.--The publicly
owned treatment works may not apply local
limits in lieu of categorical pretreatment
standards to any industrial user which is in
significant noncompliance (as defined by the
Administrator) with its approved pretreatment
program.
(B) Procedures.--A demonstration to the
Administrator or the State under paragraph (1)
must be made under the procedures for
pretreatment program modification provided
under this section and section 402.
(4) Annual review.--
(A) Demonstration relating to ability to meet
criteria.--As part of the annual pretreatment
report of the publicly owned treatment works to
the Administrator or State, the treatment works
shall demonstrate that application of local
limits in lieu of categorical pretreatment
standards has not resulted in the inability of
the treatment works to meet the criteria of
paragraph (1).
(B) Termination of authority.--If the
Administrator or State determines that
application of local limits in lieu of
categorical pretreatment standards has resulted
in the inability of the treatment works to meet
the criteria of paragraph (1), the authority of
a publicly owned treatment works under this
section shall be terminated and any affected
industrial user shall have a reasonable period
of time to be determined by the Administrator
or State, but not to exceed 2 years, to come
into compliance with any otherwise applicable
requirements of this Act.
(g) Compliance With Management Practices.--
(1) Special rule.--The Administrator or a State with
a permit program approved under section 402 may allow
any person that introduces silver into a publicly owned
treatment works to comply with a code of management
practices with respect to the introduction of silver
into the treatment works for a period not to exceed 5
years beginning on the date of the enactment of this
subsection in lieu of complying with any pretreatment
requirement (including any local limit) based on an
effluent limitation for the treatment works derived
from a water quality standard for silver--
(A) if the treatment works has accepted the
code of management practices;
(B) if the code of management practices meets
the requirements of paragraph (2); and
(C) if the facility is--
(i) part of a class of facilities for
which the code of management practices
has been approved by the Administrator
or the State;
(ii) in compliance with a mass
limitation or concentration level for
silver attainable with the application
of the best available technology
economically achievable for such
facilities, as established by the
Administrator after a review of the
treatment and management practices of
such class of facilities; and
(iii) implementing the code of
management practices.
(2) Code of management practices.--A code of
management practices meets the requirements of this
paragraph if the code of management practices--
(A) is developed and adopted by
representatives of industry and publicly owned
treatment works of major urban areas;
(B) is approved by the Administrator or the
State, as the case may be;
(C) reflects acceptable industry practices to
minimize the amount of silver introduced into
publicly owned treatment works or otherwise
entering the environment from the class of
facilities for which the code of management
practices is approved; and
(D) addresses, at a minimum--
(i) the use of the best available
technology economically achievable,
based on a review of the current state
of such technology for such class of
facilities and of the effluent
guidelines for such facilities;
(ii) water conservation measures
available to reduce the total quantity
of discharge from such facilities to
publicly owned treatment works;
(iii) opportunities to recover silver
(and other pollutants) from the waste
stream prior to introduction into a
publicly owned treatment works; and
(iv) operating and maintenance
practices to minimize the amount of
silver introduced into publicly owned
treatment works and to assure
consistent performance of the
management practices and treatment
technology specified under this
paragraph.
(3) Interim extension for potws receiving silver.--In
any case in which the Administrator or a State with a
permit program approved under section 402 allows under
paragraph (1) a person to comply with a code of
management practices for a period of not to exceed 5
years in lieu of complying with a pretreatment
requirement (including a local limit) for silver, the
Administrator or State, as applicable, shall modify the
permit conditions and effluent limitations for any
affected publicly owned treatment works to defer for
such period compliance with any effluent limitation
derived from a water quality standard for silver beyond
that required by section 301(b)(2), notwithstanding the
provisions of section 303(d)(4) and 402(o), if the
Administrator or the State, as applicable, finds that--
(A) the quality of any affected waters and
the operation of the treatment works will be
adequately protected during such period by
implementation of the code of management
practices and the use of best technology
economically achievable by persons introducing
silver into the treatment works;
(B) the introduction of pollutants into such
treatment works is in compliance with
paragraphs (1) and (2); and
(C) a program of enforcement by such
treatment works and the State ensures such
compliance.
* * * * * * *
federal enforcement
Sec. 309. (a)(1) Whenever, on the basis of any information
available to him, the Administrator finds that any person is in
violation of any condition or limitation which implements
section 301, 302, 306, 307, 308, 318, or 405 of this Act in a
permit issued by a State under an approved permit program under
section 402 [or 404] of this Act, he shall proceed under his
authority in paragraph (3) of this subsection or he shall
notify the person in alleged violation and such State of such
finding. If beyond the thirtieth day after the Administrator's
notification the State has not commenced appropriate
enforcement action, the Administrator shall issue an order
requiring such person to comply with such condition or
limitation or shall bring a civil action in accordance with
subsection (b) of this section.
* * * * * * *
(3) Whenever on the basis of any information available to
him the Administrator finds that any person is in violation of
section 301, 302, 306, 307, 308, 318, or 405 of this Act, or is
in violation of any permit condition or limitation implementing
any of such sections in a permit issued under section 402 of
this Act by him or by a State [or in a permit issued under
section 404 of this Act by a State], he shall issue an order
requiring such person to comply with such section or
requirement, or he shall bring a civil action in accordance
with subsection (b) of this section.
* * * * * * *
(c) Criminal Penalties.--
(1) Negligent violations.--Any person who--
(A) negligently violates section 301, 302,
306, 307, 308, 311(b)(3), 318, or 405 of this
Act, or any permit condition or limitation
implementing any of such sections in a permit
issued under section 402 of this Act by the
Administrator or by a State, or any requirement
imposed in a pretreatment program approved
under section 402(a)(3) or 402(b)(8) of this
Act [or in a permit issued under section 404 of
this Act by the Secretary of the Army or by a
State]; or
* * * * * * *
(2) Knowing violations.--Any person who--
(A) knowingly violates section 301, 302, 306,
307, 308, 311(b)(3), 318, or 405 of this Act,
or any permit condition or limitation
implementing any of such sections in a permit
issued under section 402 of this Act by the
Administrator or by a State, or any requirement
imposed in a pretreatment program approved
under section 402(a)(3) or 402(b)(8) of this
Act [or in a permit issued under section 404 of
this Act by the Secretary of the Army or by a
State]; or
* * * * * * *
(3) Knowing endangerment.--
(A) General rule.--Any person who knowingly
violates section 301, 302, 306, 307, 308,
311(b)(3), 318, or 405 of this Act, or any
permit condition or limitation implementing any
of such sections in a permit issued under
section 402 of this Act by the Administrator or
by a State, [or in a permit issued under
section 404 of this Act by the Secretary of the
Army or by a State,] and who knows at that time
that he thereby places another person in
imminent danger of death or serious bodily
injury, shall, upon conviction, be subject to a
fine of not more than $250,000 or imprisonment
of not more than 15 years, or both. A person
which is an organization shall, upon conviction
of violating this subparagraph, be subject to a
fine of not more than $1,000,000. If a
conviction of a person is for a violation
committed after a first conviction of such
person under this paragraph, the maximum
punishment shall be doubled with respect to
both fine and imprisonment.
* * * * * * *
(8) Treatment of certain violations.--Any person who
violates section 301 with respect to an activity in
wetlands or waters of the United States for which a
permit is required under section 404 shall not be
subject to punishment under this subsection but shall
be subject to punishment under section 404(k)(5).
(d) Any person who violates section 301, 302, 306, 307,
308, 311(b)(3), 318 or 405 of this Act, or any permit condition
or limitation implementing any of such sections in a permit
issued under section 402 of this Act by the Administrator, or
by a State[, or in a permit issued under section 404 of this
Act by a State,], or any requirement imposed in a pretreatment
program approved under section 402(a)(3) or 402(b)(8) of this
Act, and any person who violates any order issued by the
Administrator under subsection (a) of this section, shall be
subject to a civil penalty not to exceed $25,000 per day for
each violation. In determining the amount of a civil penalty
the court shall consider the seriousness of the violation or
violations, the economic benefit (if any) resulting from the
violation, any history of such violations, any good-faith
efforts to comply with the applicable requirements, the
economic impact of the penalty on the violator, and such other
matters as justice may require. For purposes of this
subsection, a single operational upset which leads to
simultaneous violations of more than one pollutant parameter
shall be treated as a single violation. Any person who violates
section 301 with respect to an activity in wetlands or waters
of the United States for which a permit is required under
section 404 shall not be subject to a civil penalty under this
subsection but shall be subject to a civil penalty under
section 404(k)(4).
(e) Whenever a municipality is a party to a civil action
brought by the United States under this section, the State in
which such municipality is located [shall be joined as a party.
Such State] may be joined as a party. Any State so joined as a
party shall be liable for payment of any judgment, or any
expenses incurred as a result of complying with any judgment,
entered against the municipality in such action to the extent
that the laws of that State prevent the municipality from
raising revenues needed to comply with such judgment.
* * * * * * *
(g) Administrative Penalties.--
(1) Violations.--Whenever on the basis of any
information available[--
(A)] the Administrator finds that any person
has violated section 301, 302, 306, 307, 308,
318, or 405 of this Act, or has violated any
permit condition or limitation implementing any
of such sections in a permit issued under
section 402 of this Act by the Administrator or
by a State, [or in a permit issued under
section 404 by a State, or]
[(B) the Secretary of the Army (hereinafter
in this subsection referred to as the
``Secretary'') finds that any person has
violated any permit condition or limitation in
a permit issued under section 404 of this Act
by the Secretary,
the Administrator or Secretary, as the case may be,]
the Administrator may, after consultation with the
State in which the violation occurs, assess a class I
civil penalty or a class II civil penalty under this
subsection.
(2) Classes of penalties.--
(A) Class i.--The amount of a class I civil
penalty under paragraph (1) may not exceed
$10,000 per violation, except that the maximum
amount of any class I civil penalty under this
subparagraph shall not exceed $25,000. Before
issuing an order assessing a civil penalty
under this subparagraph, the Administrator [or
the Secretary, as the case may be,] shall give
to the person to be assessed such penalty
written notice of the Administrator's [or
Secretary's] proposal to issue such order and
the opportunity to request, within 30 days of
the date the notice is received by such person,
a hearing on the proposed order. Such hearing
shall not be subject to section 554 or 556 of
title 5, United States Code, but shall provide
a reasonable opportunity to be heard and to
represent evidence.
(B) Class ii.--The amount of a class II civil
penalty under paragraph (1) may not exceed
$10,000 per day for each day during which the
violation continues; except that the maximum
amount of any class II civil penalty under this
subparagraph shall not exceed $125,000. Except
as otherwise provided in this subsection, a
class II civil penalty shall be assessed and
collected in the same manner, and subject to
the same provisions, as in the case of civil
penalties assessed and collected after notice
and opportunity for a hearing on the record in
accordance with section 554 of title 5, United
States Code. The Administrator [and the
Secretary] may issue rules for discovery
procedures for hearings under this
subparagraph.
(3) Determining amount.--In determining the amount of
any penalty assessed under this subsection, the
Administrator [or the Secretary, as the case may be,]
shall take into account the nature, circumstances,
extent and gravity of the violation, or violations,
and, with respect to the violator, ability to pay, any
prior history of such violations, the degree of
culpability, economic benefit or savings (if any)
resulting from the violation, and such other matters as
justice may require. For purposes of this subsection, a
single operational upset which leads to simultaneous
violations of more than one pollutant parameter shall
be treated as a single violation.
(4) Rights of interested persons.--
(A) Public notice.--Before issuing an order
assessing a civil penalty under this subsection
the Administrator [or Secretary, as the case
may be,] shall provide public notice of and
reasonable opportunity to comment on the
proposed issuance of such order.
* * * * * * *
(C) Rights of interested persons to a
hearing.--If no hearing is held under paragraph
(2) before issuance of an order assessing a
penalty under this subsection, any person who
commented on the proposed assessment may
petition, within 30 days after the issuance of
such order, the Administrator [or Secretary, as
the case may be,] to set aside such order and
to provide a hearing on the penalty. If the
evidence presented by the petitioner in support
of the petition is material and was not
considered in the issuance of the order, the
Administrator [or Secretary] shall immediately
set aside such order and provide a hearing in
accordance with paragraph (2)(A) in the case of
a class I civil penalty and paragraph (2)(B) in
the case of a class II civil penalty. If the
Administrator [or Secretary] denies a hearing
under this subparagraph, the Administrator [or
Secretary] shall provide to the petitioner, and
publish in the Federal Register, notice of and
the reasons for such denial.
* * * * * * *
(6) Effect of order.--
(A) Limitation on actions under other
sections.--Action taken by the Administrator
[or the Secretary, as the case may be,] under
this subsection shall not affect or limit the
Administrator's [or Secretary's] authority to
enforce any provision of this Act; except that
any violation--
(i) with respect to which the
Administrator [or the Secretary] has
commenced and is diligently prosecuting
an action under this subsection,
* * * * * * *
(7) Effect of action on compliance.--No action by the
Administrator [or the Secretary] under this subsection
shall affect any person's obligation to comply with any
section of this Act or with the terms and conditions of
any permit issued pursuant to section 402 or 404 of
this Act.
(8) Judicial review.--Any person against whom a civil
penalty is assessed under this subsection or who
commented on the proposed assessment of such penalty in
accordance with paragraph (4) may obtain review of such
assessment--
(A) in the case of assessment of a class I
civil penalty, in the United States District
Court for the District of Columbia or in the
district in which the violation is alleged to
have occurred, or
(B) in the case of assessment of a class II
civil penalty, in United States Court of
Appeals for the District of Columbia Circuit or
for any other circuit in which such person
resides or transacts business,
by filing a notice of appeal in such court within the
30-day period beginning on the date the civil penalty
order is issued and by simultaneously sending a copy of
such notice by certified mail to the Administrator [or
the Secretary, as the case may be,] and the Attorney
General. The Administrator [or the Secretary] shall
promptly file in such court a certified copy of the
record on which the order was issued. Such court shall
not set aside or remand such order unless there is not
substantial evidence in the record, taken as a whole,
to support the finding of a violation or unless the
Administrator's [or Secretary's] assessment of the
penalty constitutes an abuse of discretion and shall
not impose additional civil penalties for the same
violation unless the Administrator's [or Secretary's]
assessment of the penalty constitutes an abuse of
discretion.
(9) Collection.--If any person fails to pay an
assessment of a civil penalty--
(A) after the order making the assessment has
become final, or
(B) after a court in an action brought under
paragraph (8) has entered a final judgment in
favor of the Administrator, [or the Secretary,
as the case may be,]
the Administrator [or the Secretary] shall request the
Attorney General to bring a civil action in an
appropriate district court to recover the amount
assessed (plus interest at currently prevailing rates
from the date of the final order or the date of the
final judgment, as the case may be). In such an action,
the validity, amount, and appropriateness of such
penalty shall not be subject to review. Any person who
fails to pay on a timely basis the amount of an
assessment of a civil penalty as described in the first
sentence of this paragraph shall be required to pay, in
addition to such amount and interest, attorneys fees
and costs for collection proceedings and a quarterly
nonpayment penalty for each quarter during which such
failure to pay persists. Such nonpayment penalty shall
be in an amount equal to 20 percent of the aggregate
amount of such person's penalties and nonpayment
penalties which are unpaid as of the beginning of such
quarter.
(10) Subpoenas.--The Administrator [or Secretary, as
the case may be,] may issue subpoenas for the
attendance and testimony of witnesses and the
production of relevant papers, books, or documents in
connection with hearings under this subsection. In case
of contumacy or refusal to obey a subpoena issued
pursuant to this paragraph and served upon any person,
the district court of the United States for any
district in which such person is found, resides, or
transacts business, upon application by the United
States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to
appear and give testimony before the administrative law
judge or to appear and produce documents before the
administrative law judge, or both, and any failure to
obey such order of the court may be punished by such
court as a contempt thereof.
* * * * * * *
(12) Treatment of certain violations.--Any person who
violates section 301 with respect to an activity in
wetlands or waters of the United States for which a
permit is required under section 404 shall not be
subject to assessment of a civil penalty under this
subsection but shall be subject to assessment of a
civil penalty under section 404(k)(4).
(h) Adjustment of Monetary Penalties for Inflation.--
(1) In general.--Not later than 4 years after the
date of the enactment of this subsection, and at least
once every 4 years thereafter, the Administrator shall
adjust each monetary penalty provided by this section
in accordance with paragraph (2) and publish such
adjustment in the Federal Register.
(2) Method.--An adjustment to be made pursuant to
paragraph (1) shall be determined by increasing or
decreasing the maximum monetary penalty or the range of
maximum monetary penalties, as appropriate, by
multiplying the cost-of-living adjustment and the
amount of such penalty.
(3) Cost-of-living adjustment defined.--In this
subsection, the term ``cost-of-living'' adjustment
means the percentage (if any) for each monetary penalty
by which--
(A) the Consumer Price Index for the month of
June of the calendar year preceding the
adjustment; is greater or less than
(B) the Consumer Price Index for--
(i) with respect to the first
adjustment under this subsection, the
month of June of the calendar year
preceding the date of the enactment of
this subsection; and
(ii) with respect to each subsequent
adjustment under this subsection, the
month of June of the calendar year in
which the amount of such monetary
penalty was last adjusted under this
subsection.
(4) Rounding.--In making adjustments under this
subsection, the Administrator may round the dollar
amount of a penalty, as appropriate.
(5) Applicability.--Any increase or decrease to a
monetary penalty resulting from this subsection shall
apply only to violations which occur after the date any
such increase takes effect.
* * * * * * *
oil and hazardous substance liability
Sec. 311. (a) * * *
(b)(1) * * *
* * * * * * *
(12) Withholding Clearance.--If any owner, operator,
or person in charge of a vessel is liable for a civil
penalty under this subsection, or if reasonable cause
exists to believe that the owner, operator, or person
in charge may be subject to a civil penalty under this
subsection, the Secretary of the Treasury, upon the
request of the Secretary of the department in which the
Coast Guard is operating or the Administrator, shall
with respect to such vessel refuse or revoke--
(A) the clearance required by section 4197 of
the Revised Statutes of the United States (46
U.S.C. App. 91);
(B) a permit to proceed under section 4367 of
the Revised Statutes of the United States (46
U.S.C. App. 313); and
(C) a permit to depart required under section
443 of the Tariff Act of 1930 (19 U.S.C. 1443);
as applicable. Clearance or a permit refused or revoked
under this paragraph may be granted upon the filing of
a bond or other surety satisfactory to the Secretary of
the department in which the Coast Guard is operating or
the Administrator.
* * * * * * *
(h) The liabilities established by this section shall in no
way affect any rights which (1) the owner or operator of a
vessel or of an onshore facility or an offshore facility may
have against any third party whose acts may in any way have
caused or contributed to such discharge, or (2) [The] the
United States Government may have against any third party whose
actions may in any way have caused or contributed to the
discharge of oil or hazardous substance.
* * * * * * *
marine sanitation devices
Sec. 312. (a) * * *
* * * * * * *
(c)(1)(A) Initial standards and regulations under this
section shall become effective for new vessels two years after
promulgation; and for existing vessels five years after
promulgation. Revisions of standards and regulations shall be
effective upon promulgation, unless another effective date is
specified, except that no revision shall take effect before the
effective date of the standard or regulation being revised. Not
later than 2 years after the date of the enactment of this
sentence, and at least once every 5 years thereafter, the
Administrator, in consultation with the Secretary of the
Department in which the Coast Guard is operating and after
providing notice and opportunity for public comment, shall
review such standards and regulations to take into account
improvements in technology relating to marine sanitation
devices and based on such review shall make such revisions to
such standards and regulations as may be necessary.
* * * * * * *
[federal facilities pollution control
[Sec. 313. (a) Each department, agency, or instrumentality
of the executive, legislative, and judicial branches of the
Federal Government (1) having jurisdiction over any property or
facility, or (2) engaged in any activity resulting, or which
may result, in the discharge or runoff of pollutants, and each
officer, agent, or employee thereof in the performance of his
official duties, shall be subject to, and comply with, all
Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting
the control and abatement of water pollution in the same
manner, and to the same extent as any nongovernmental entity
including the payment of reasonable service charges. The
preceding sentence shall apply (A) to any requirement whether
substantive or procedural (including any recordkeeping or
reporting requirement, any requirement respecting permits and
any other requirement, whatsoever), (B) to the exercise of any
Federal, State, or local administrative authority, and (C) to
any process and sanction, whether enforced in Federal, State,
or local courts or in any other manner. This subsection shall
apply notwithstanding any immunity of such agencies, officers,
agents, or employees under any law or rule of law. Nothing in
this section shall be construed to prevent any department,
agency, or instrumentality of the Federal Government, or any
officer, agent, or employee thereof in the performance of his
official duties, from removing to the appropriate Federal
district court any proceeding to which the department, agency,
or instrumentality or officer, agent, or employee thereof is
subject pursuant to this section, and any such proceeding may
be removed in accordance with 28 U.S.C. 1441 et seq. No
officer, agent, or employee of the United States shall be
personally liable for any civil penalty arising from the
performance of his official duties, for which he is not
otherwise liable, and the United States shall be liable only
for those civil penalties arising under Federal law or imposed
by a State or local court to enforce an order or the process of
such court. The President may exempt any effluent source of any
department, agency, or instrumentality in the executive branch
from compliance with any such a requirement if he determines it
to be in the paramount interest of the United States to do so;
except that no exemption may be granted from the requirements
of section 306 or 307 of this Act. No such exemptions shall be
granted due to lack of appropriation unless the President shall
have specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to make
available such requested appropriation. Any exemption shall be
for a period not in excess of one year, but additional
exemptions may be granted for periods of not to exceed one year
upon the President's making a new determination. The President
shall report each January to the Congress all exemptions from
the requirements of this section granted during the preceding
calendar year, together with his reason for granting such
exemption. In addition to any such exemption of a particular
effluent source, the President may, if he determines it to be
in the paramount interest of the United States to do so, issue
regulations exempting from compliance with the requirements of
this section any weaponry, equipment, aircraft, vessels,
vehicles, or other classes or categories of property, and
access to such property, which are owned or operated by the
Armed Forces of the United States (including the Coast Guard)
or by the National Guard of any State and which are uniquely
military in nature. The President shall reconsider the need for
such regulations at three-year intervals.]
SEC. 313. FEDERAL FACILITIES POLLUTION CONTROL.
(a) Applicability of Federal, State, Interstate, and Local
Laws.--
(1) In general.--Each department, agency, or
instrumentality of the executive, legislative, and
judicial branches of the Federal Government--
(A) having jurisdiction over any property or
facility, or
(B) engaged in any activity resulting, or
which may result, in the discharge or runoff of
pollutants,
and each officer, agent, or employee thereof in the
performance of his official duties, shall be subject
to, and comply with, all Federal, State, interstate,
and local requirements, administrative authority, and
process and sanctions respecting the control and
abatement of water pollution in the same manner and to
the same extent as any nongovernmental entity,
including the payment of reasonable service charges.
(2) Types of actions covered.--Paragraph (1) shall
apply--
(A) to any requirement whether substantive or
procedural (including any recordkeeping or
reporting requirement, any requirement
respecting permits, and any other requirement),
(B) to the exercise of any Federal, State, or
local administrative authority, and
(C) to any process and sanction, whether
enforced in Federal, State, or local courts or
in any other manner.
(3) Penalties and fines.--The Federal, State,
interstate, and local substantive and procedural
requirements, administrative authority, and process and
sanctions referred to in paragraph (1) include all
administrative orders and all civil and administrative
penalties and fines, regardless of whether such
penalties or fines are punitive or coercive in nature
or are imposed for isolated, intermittent, or
continuing violations.
(4) Sovereign immunity.--
(A) Waiver.--The United States hereby
expressly waives any immunity otherwise
applicable to the United States with respect to
any requirement, administrative authority, and
process and sanctions referred to in paragraph
(1) (including any injunctive relief, any
administrative order, any civil or
administrative penalty or fine referred to in
paragraph (3), or any reasonable service
charge).
(B) Processing fees.--The reasonable service
charges referred to in this paragraph include
fees or charges assessed in connection with the
processing and issuance of permits, renewal of
permits, amendments to permits, review of
plans, studies, and other documents, and
inspection and monitoring of facilities, as
well as any other nondiscriminatory charges
that are assessed in connection with a Federal,
State, interstate, or local water pollution
regulatory program.
(5) Exemptions.--
(A) General authority of president.--The
President may exempt any effluent source of any
department, agency, or instrumentality in the
executive branch from compliance with any
requirement to which paragraph (1) applies if
the President determines it to be in the
paramount interest of the United States to do
so; except that no exemption may be granted
from the requirements of section 306 or 307 of
this Act.
(B) Limitation.--No exemptions shall be
granted under subparagraph (A) due to lack of
appropriation unless the President shall have
specifically requested such appropriation as a
part of the budgetary process and the Congress
shall have failed to make available such
requested appropriation.
(C) Time period.--Any exemption under
subparagraph (A) shall be for a period not in
excess of 1 year, but additional exemptions may
be granted for periods of not to exceed 1 year
upon the President's making a new
determination.
(D) Military property.--In addition to any
exemption of a particular effluent source, the
President may, if the President determines it
to be in the paramount interest of the United
States to do so, issue regulations exempting
from compliance with the requirements of this
section any weaponry, equipment, aircraft,
vessels, vehicles, or other classes or
categories of property, and access to such
property, which are owned or operated by the
Armed Forces of the United States (including
the Coast Guard) or by the National Guard of
any State and which are uniquely military in
nature. The President shall reconsider the need
for such regulations at 3-year intervals.
(E) Reports.--The President shall report each
January to the Congress all exemptions from the
requirements of this section granted during the
preceding calendar year, together with the
President's reason for granting such exemption.
(6) Venue.--Nothing in this section shall be
construed to prevent any department, agency, or
instrumentality of the Federal Government, or any
officer, agent, or employee thereof in the performance
of official duties, from removing to the appropriate
Federal district court any proceeding to which the
department, agency, or instrumentality or officer,
agent, or employee thereof is subject pursuant to this
section, and any such proceeding may be removed in
accordance with chapter 89 of title 28, United States
Code.
(7) Personal liability of federal employees.--No
agent, employee, or officer of the United States shall
be personally liable for any civil penalty under any
Federal, State, interstate, or local water pollution
law with respect to any act or omission within the
scope of the official duties of the agent, employee, or
officer.
(8) Criminal sanctions.--An agent, employee, or
officer of the United States shall be subject to any
criminal sanction (including any fine or imprisonment)
under any Federal or State water pollution law, but no
department, agency, or instrumentality of the
executive, legislative, or judicial branch of the
Federal Government shall be subject to any such
sanction.
[(b)(1)]
(b) Wastewater Facilities.--
(1) Cooperation for use of wastewater control
systems.--The Administrator shall coordinate with the
head of each department, agency, or instrumentality of
the Federal Government having jurisdiction over any
property or facility utilizing federally owned
wastewater facilities to develop a program of
cooperation for utilizing wastewater control systems
utilizing those innovative treatment processes and
techniques for which guidelines have been promulgated
under section 304(d)(3). Such program shall include an
inventory of property and facilities which could
utilize such processes and techniques.
(2) Limitation on construction.--Construction shall
not be initiated for facilities for treatment of
wastewater at any Federal property or facility after
September 30, 1979, if alternative methods for
wastewater treatment at such property or facility
utilizing innovative treatment processes and
techniques, including but not limited to methods
utilizing recycle and reuse techniques and land
treatment are not utilized, unless the life cycle cost
of the alternative treatment works exceeds the life
cycle cost of the most cost effective alternative by
more than 15 per centum. The Administrator may waive
the application of this paragraph in any case where the
Administrator determines it to be in the public
interest, or that compliance with this paragraph would
interfere with the orderly compliance with the
conditions of a permit issued pursuant to section 402
of this Act.
(c) Limitation on State Use of Funds.--Unless a State law in
effect on the date of the enactment of this subsection or a
State constitution requires the funds to be used in a different
manner, all funds collected by a State from the Federal
Government in penalties and fines imposed for the violation of
a substantive or procedural requirement referred to in
subsection (a) shall be used by a State only for projects
designed to improve or protect the environment or to defray the
costs of environmental protection or enforcement.
(d) Federal Facility Enforcement.--
(1) Administrative enforcement by epa.--The
Administrator may commence an administrative
enforcement action against any department, agency, or
instrumentality of the executive, legislative, or
judicial branch of the Federal Government pursuant to
the enforcement authorities contained in this Act.
(2) Procedure.--The Administrator shall initiate an
administrative enforcement action against a department,
agency, or instrumentality under this subsection in the
same manner and under the same circumstances as an
action would be initiated against any other person
under this Act. The amount of any administrative
penalty imposed under this subsection shall be
determined in accordance with section 309(d) of this
Act.
(3) Voluntary settlement.--Any voluntary resolution
or settlement of an action under this subsection shall
be set forth in an administrative consent order.
(4) Conferral with epa.--No administrative order
issued to a department, agency, or instrumentality
under this section shall become final until such
department, agency, or instrumentality has had the
opportunity to confer with the Administrator.
(e) Limitation on Actions and Right of Intervention.--Any
violation with respect to which the Administrator has commenced
and is diligently prosecuting an action under this subsection,
or for which the Administrator has issued a final order and the
violator has either paid a penalty or fine assessed under this
subsection or is subject to an enforceable schedule of
corrective actions, shall not be the subject of an action under
section 505 of this Act. In any action under this subsection,
any citizen may intervene as a matter of right.
clean lakes
Sec. 314. (a) * * *
* * * * * * *
(d) Demonstration Program.--
(1) * * *
(2) Geographical requirements.--Demonstration
projects authorized by this subsection shall be
undertaken to reflect a variety of geographical and
environmental conditions. As a priority, the
Administrator shall undertake demonstration projects at
Lake Champlain, New York and Vermont; Lake Houston,
Texas; Beaver Lake, Arkansas; Greenwood Lake and
Belcher Creek, New Jersey; Deal Lake, New Jersey;
Alcyon Lake, New Jersey; Gorton's Pond, Rhode Island;
Lake Washington, Rhode Island; Lake Bomoseen, Vermont;
Sauk Lake, Minnesota; Paris Twin Lakes, Illinois;
Otsego Lake, New York; Raystown Lake, Pennsylvania; and
Lake Worth, Texas.
(e) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section $10,000,000 per
fiscal year for each of fiscal years 1996 through 2000.
* * * * * * *
thermal discharges
Sec. 316. (a) * * *
(b) Standard for Cooling Water Intake Structures.--
(1) In general.--Any standard established pursuant to
section 301 or section 306 of this Act and applicable
to a point source shall require that the location,
design, construction, and capacity of cooling water
intake structures reflect the best technology available
for minimizing adverse environmental impact.
(2) New point source considerations.--In establishing
a standard referred to in paragraph (1) for cooling
water intake structures located at new point sources,
the Administrator shall consider, at a minimum, the
following:
(A) The relative technological, engineering,
and economic feasibility of possible
technologies or techniques for minimizing any
such adverse environmental impacts.
(B) The relative technological, engineering,
and economic feasibility of possible site
locations, intake structure designs, and
cooling water flow techniques.
(C) The relative environmental, social, and
economic costs and benefits of possible
technologies, techniques, site locations,
intake structure designs, and cooling water
flow techniques.
(D) The projected useful life of the new
point source.
(3) Existing point sources.--For existing point
sources, the Administrator may require the use of best
technology available in the case of existing cooling
water intake structures if the Administrator determines
such structures are having or could have a significant
adverse impact on the aquatic environment. In
establishing a standard referred to in paragraph (1)
for such existing point sources, the Administrator
shall consider, at a minimum, the following:
(A) The relative technological, engineering,
and economic feasibility of reasonably
available retrofit technologies or techniques
for minimizing any such adverse environmental
impacts.
(B) Other mitigation measures for offsetting
the anticipated adverse environmental impacts
resulting from the withdrawal of cooling water.
(C) Relative environmental, social, and
economic costs and benefits of possible
retrofit technologies, techniques, and
mitigation measures.
(D) The projected remaining useful life of
the existing point source.
(4) Definitions.--In this subsection, the following
definitions apply:
(A) New point source.--The term ``new point
source'' means any point source the
construction of which will commence after the
publication of proposed regulations prescribing
a standard for intake structures that will be
applicable to such source if such standard is
promulgated in accordance with paragraph (2).
(B) Existing point source.--The term
``existing point source'' means any point
source that is not a new point source.
* * * * * * *
SEC. 319. NONPOINT SOURCE MANAGEMENT PROGRAMS.
(a) State Assessment Reports.--
(1) Contents.--The Governor of each State shall,
after notice and opportunity for public comment,
prepare and submit to the Administrator for approval, a
report which--
(A) * * *
* * * * * * *
(C) describes the process, including
intergovernmental coordination and public
participation, for identifying [best management
practices and] measures to control each
category and subcategory of nonpoint sources
and, where appropriate, particular nonpoint
sources identified under subparagraph (B) and
to reduce, to the maximum extent practicable,
the level of pollution resulting from such
category, subcategory, or source; [and]
(D) identifies and describes State and local
programs for controlling pollution added from
nonpoint sources to, and improving the quality
of, each such portion of the navigable waters,
including but not limited to those programs
which are receiving Federal assistance under
subsections (h) and (i)[.] (including State
management programs approved under section 306
of the Coastal Zone Management Act of 1972);
and
(E) identifies critical areas, giving
consideration to the variety of natural,
commercial, recreational, ecological,
industrial, and aesthetic resources of
immediate and potential value to the present
and future of the Nation's waters in the
Coastal Zone.
(2) Information used in preparation.--In developing,
reviewing, and revising the report required by this
[section] subsection, the State (A) may rely upon
information developed pursuant to sections 208, 303(e),
304(f), 305(b), and 314, any management program of the
State approved under section 306 of the Coastal Zone
Management Act of 1972, and other information as
appropriate, and (B) may utilize appropriate elements
of the waste treatment management plans developed
pursuant to sections 208(b) and 303, to the extent such
elements are consistent with and fulfill the
requirements of this section.
(3) Review and revision.--Not later than 18 months
after the date of the enactment of the Clean Water
Amendments of 1995, and every 5 years thereafter, the
State shall review, revise, and submit to the
Administrator the report required by this subsection.
(b) State Management Programs.--
(1) In general.--The Governor of each State, for that
State or in combination with adjacent States, shall,
after notice and opportunity for public comment,
prepare and submit to the Administrator for approval a
management program which such State proposes to
implement in the first [four] 5 fiscal years beginning
after the date of submission of such management program
for controlling pollution added from nonpoint sources
to the navigable waters within the State and improving
the quality of such waters.
(2) Specific contents.--Each management program
proposed for implementation under this subsection shall
include each of the following:
(A) An identification of the [best]
management practices and measures which will be
undertaken to reduce pollutant loadings
resulting from each category, subcategory, or
particular nonpoint source designated under
[paragraph (1)(B)] subsection (a)(1)(B), taking
into account the impact of the practice and
measure on ground water quality.
(B) An identification of programs (including,
as appropriate, [nonregulatory or regulatory
programs for enforcement,] one or more of the
following: voluntary programs, incentive-based
programs, regulatory programs, enforceable
policies and mechanisms, State management
programs approved under section 306 of the
Coastal Zone Management Act of 1972, technical
assistance, financial assistance, education,
training, technology transfer, and
demonstration projects) to [achieve
implementation of the best management practices
by the categories, subcategories, and
particular nonpoint sources designated under
subparagraph (A)] manage categories,
subcategories, or particular nonpoint sources
to the degree necessary to provide for
reasonable further progress toward the goal of
attaining water quality standards within 15
years of approval of the State program for
those waters identified under subsection
(a)(1)(A).
[(C) A schedule containing annual milestones
for (i) utilization of the program
implementation methods identified in
subparagraph (B), and (ii) implementation of
the best management practices identified in
subparagraph (A) by the categories,
subcategories, or particular nonpoint sources
designated under paragraph (1)(B). Such
schedule shall provide for utilization of the
best management practices at the earliest
practicable date.]
(C) A schedule containing interim goals and
milestones for making reasonable progress
toward the attainment of standards, which may
be demonstrated by one or any combination of
the following: improvements in water quality
(including biological indicators), documented
implementation of voluntary nonpoint source
control practices and measures, and adoption of
enforceable policies and mechanisms.
(D) [A certification of] After the date of
the enactment of the Clean Water Amendments of
1995, a certification by the attorney general
of the State or States (or the chief attorney
of any State water pollution control agency
which has independent legal counsel) that the
laws of the State or States, as the case may
be, provide adequate authority to implement
such management program or, if there is not
such adequate authority, a list of such
additional authorities as will be necessary to
implement such management program. A schedule
and commitment by the State or States to seek
such additional authorities as expeditiously as
practicable.
* * * * * * *
(G) A description of the monitoring or other
assessment which will be carried out under the
program for the purposes of monitoring and
assessing the effectiveness of the program,
including the attainment of interim goals and
milestones.
(H) An identification of activities on
Federal lands in the State that are
inconsistent with the State management program.
(I) An identification of goals and milestones
for progress in attaining water quality
standards, including a projected date for
attaining such standards as expeditiously as
practicable but not later than 15 years after
the date of approval of the State program for
each of the waters listed pursuant to
subsection (a).
(J) For coastal areas, the identification of,
and continuing process for identifying, land
uses which individually or cumulatively may
cause or contribute significantly to
degradation of--
(i) those coastal waters where there
is a failure to attain or maintain
applicable water quality standards or
protected designated uses, as
determined by the State pursuant to the
State's water quality planning
processes or watershed planning
efforts; and
(ii) those coastal waters that are
threatened by reasonably foreseeable
increases in pollution loadings.
(3) Utilization of local and private experts.--In
developing and implementing a management program under
this subsection, a State shall, to the maximum extent
practicable, involve local public and private agencies
and organizations which have expertise in control of
nonpoint sources of pollution, including academic
institutions, private industry experts, and other
individual experts in water resource conservation and
planning.
* * * * * * *
(5) Recognition of new technologies.--In developing
and implementing a management program under this
subsection, a State may recognize and utilize new
practices, technologies, processes, products, and other
alternatives.
(6) Efficient and effective use of resources.--In
developing and implementing a management program under
this subsection, a State may recognize and provide for
a methodology which takes into account situations in
which management measures used to control one pollutant
have an adverse impact with respect to another
pollutant. The methodology should encourage the
balanced combination of measures which best address the
various impairments on the watershed or site.
(7) Recognition of agricultural programs.--Any
agricultural producer who has voluntarily developed and
is implementing an approved whole farm or ranch natural
resources management plan shall be considered to be in
compliance with the requirements of a State program
developed under this section--
(A) if such plan has been developed under a
program subject to a memorandum of agreement
between the Chief of the Natural Resources
Conservation Service and the Governor, or their
respective designees; and
(B) if such memorandum of agreement
specifies--
(i) the scope and content of the
Natural Resources Conservation Service
program (not an individual farm or
ranch plan) in the State or regions of
the State;
(ii) the terms of approval,
implementation, and duration of a
voluntary farm or ranch plan for
agricultural producers;
(iii) the responsibilities for
assessing implementation of voluntary
whole farm and ranch natural resource
management plans; and
(iv) the duration of such memorandum
of agreement.
At a minimum, such memorandum of agreement shall be
reviewed and may be revised every 5 years, as part of
the State review of its management program under this
section.
(c) Administrative Provisions.--
(1) Cooperation requirement.--Any report required by
subsection (a) and any management program and report
required by subsection (b) shall be developed in
cooperation with local, substate regional, and
interstate entities which are actively planning for the
implementation of nonpoint source pollution controls
and have either been certified by the Administrator in
accordance with section 208, have worked jointly with
the State on water quality management planning under
section 205(j), or have been designated by the State
legislative body or Governor as water quality
management planning agencies or coastal zone management
agencies for their geographic areas.
[(2) Time period for submission of reports and
management programs.--Each report and management
program shall be submitted to the Administrator during
the 18-month period beginning on the date of the
enactment of this section.]
(2) Time period for submission of management
programs.--Each management program shall be submitted
to the Administrator within 30 months of the issuance
by the Administrator of the final guidance under
subsection (o) and every 5 years thereafter. Each
program submission after the initial submission
following the date of the enactment of the Clean Water
Amendments of 1995 shall include a demonstration of
reasonable further progress toward the goal of
attaining water quality standards within 15 years of
approval of the State program, including documentation
of the degree to which the State has achieved the
interim goals and milestones contained in the previous
program submission. Such demonstration shall take into
account the adequacy of Federal funding under this
section.
(d) Approval or Disapproval of Reports and Management
Programs.--
(1) Deadline.--Subject to paragraph (2), not later
than 180 days after the date of submission to the
Administrator of any report or revised report or
management program under this section (other than
subsections (h), (i), and (k)), the Administrator shall
either approve or disapprove such report or management
program, as the case may be. The Administrator may
approve a portion of a management program under this
subsection. If the Administrator does not disapprove a
report, management program, or portion of a management
program in such 180-day period, such report, management
program, or portion shall be deemed approved for
purposes of this section.
(2) Procedure for disapproval.--If, after notice and
opportunity for public comment and consultation with
appropriate Federal and State agencies and other
interested persons, the Administrator determines that--
(A) * * *
(B) adequate authority does not exist, or
adequate resources are not available, to
implement such program or portion; except that
such program or portion shall not be
disapproved solely because the program or
portion does not include enforceable policies
or mechanisms;
(C) the schedule for implementing such
program or portion is not sufficiently
expeditious; or
(D) the practices and measures proposed in
such program or portion [are not adequate to
reduce the level of pollution in navigable
waters in the State resulting from nonpoint
sources and to improve the quality of navigable
waters in the State] will not result in
reasonable further progress toward the
attainment of applicable water quality
standards under section 303 as expeditiously as
possible but not later than 15 years after
approval of the State program;
the Administrator shall within 6 months of the receipt
of the proposed program notify the State of any
revisions or modifications necessary to obtain
approval. The State shall thereupon have an additional
[3 months] 6 months to submit its revised management
program and the Administrator shall approve or
disapprove such revised program or portion thereof
within three months of receipt.
(3) Failure of state to submit report.--If a Governor
of a State does not submit [the report] a report or
revised report required by subsection (a) within the
period specified by subsection (c)(2), the
Administrator shall, within [30 months] 18 months after
the date [of the enactment of this section] on which
such report is required to be submitted under
subsection (a), prepare a report for such State which
makes the identifications required by paragraphs (1)(A)
and (1)(B) of subsection (a). Upon completion of the
requirement of the preceding sentence and after notice
and opportunity for comment, the Administrator shall
report to Congress on his actions pursuant to this
section.
(4) Failure of state to submit program.--
(A) Program management by the
administrator.--If a State fails to submit a
management program or revised management
program under subsection (b) or the
Administrator disapproves such management
program, the Administrator shall prepare and
implement a management program for controlling
pollution added from nonpoint sources to the
navigable waters within the State and improving
the quality of such waters in accordance with
subsection (b).
(B) Notice and hearing.--If the Administrator
intends to disapprove a program submitted by a
State, the Administrator shall first notify the
Governor of the State in writing of the
modifications necessary to meet the
requirements of this section. The Administrator
shall provide adequate public notice and an
opportunity for a public hearing for all
interested parties.
(C) State revision of its program.--If, after
taking into account the level of funding
actually provided as compared with the level
authorized under subsection (j), the
Administrator determines that a State has
failed to demonstrate reasonable further
progress toward the attainment of water quality
standards as required, the State shall revise
its program within 12 months of that
determination in a manner sufficient to achieve
attainment of applicable water quality
standards by the deadline established by this
Act. If a State fails to make such a program
revision or the Administrator disapproves such
a revision, the Administrator shall prepare and
implement a nonpoint source management program
for the State.
* * * * * * *
(f) Technical Assistance for State.--Upon request of a
State, the Administrator may provide technical assistance to
such State in developing and implementing a management program
approved under subsection (b) for those portions of the
navigable waters requested by such State.
* * * * * * *
(h) Grant Program.--
(1) [Grants for implementation of management
programs.--] Grants for preparation and implementation
of reports and management programs.--Upon application
of a State [for which a report submitted under
subsection (a) and a management program submitted under
subsection (b) is approved under this section], [the
Administrator shall make grants] the Administrator may
make grants under this subsection, subject to such
terms and conditions as the Administrator considers
appropriate, [under this subsection to such State] to
such State for the purpose of assisting the State in
[implementing such management program] preparing a
report under subsection (a) and in preparing and
implementing a management program under subsection (b).
Grants for implementation of such management program
may be made only after such report and management
program are approved under this section. Funds reserved
pursuant to section 205(j)(5) of this Act may be used
to develop and implement such management program. The
Administrator is authorized to provide funds to a State
if necessary to implement an approved portion of a
State program or, with the approval of the Governor of
the State, to implement a component of a federally
established program. The Administrator may continue to
make grants to any State with an program approved on
the day before the date of the enactment of the Clean
Water Amendments of 1995 until the Administrator
withdraws the approval of such program or the State
fails to submit a revision of such program in
accordance with subsection (c)(2).
* * * * * * *
(3) Federal share.--The Federal share of the cost of
each [management program implemented] report prepared
and management program prepared and implemented with
Federal assistance under this subsection in any fiscal
year shall not exceed [60] 75 percent of the cost
incurred by the State in [implementing such management
program] preparing such report and preparing and
implementing such management program and shall be made
on condition that the non-Federal share of program
implementation is provided from non-Federal sources.
(4) Limitation on grant amounts.--The Administrator
shall establish, after consulting with the States,
maximum and minimum grants for any fiscal year to
promote equity between States and effective nonpoint
source management. Notwithstanding any other provision
of this subsection, not more than 15 percent of the
amount appropriated to carry out this subsection may be
used to make grants to any one State, including any
grants to any local public agency or organization with
authority to control pollution from nonpoint sources in
any area of such State. The minimum percentage of funds
allocated to each State shall be 0.5 percent of the
amount appropriated.
[(5) Priority for effective mechanisms.--For each
fiscal year beginning after September 30, 1987, the
Administrator may give priority in making grants under
this subsection, and shall give consideration in
determining the Federal share of any such grant, to
States which have implemented or are proposing to
implement management programs which will--
[(A) control particularly difficult or
serious nonpoint source pollution problems,
including, but not limited to, problems
resulting from mining activities;
[(B) implement innovative methods or
practices for controlling nonpoint sources of
pollution, including regulatory programs where
the Administrator deems appropriate;
[(C) control interstate nonpoint source
pollution problems; or
[(D) carry out ground water quality
protection activities which the Administrator
determines are part of a comprehensive nonpoint
source pollution control program, including
research, planning, ground water assessments,
demonstration programs, enforcement, technical
assistance, education, and training to protect
ground water quality from nonpoint sources of
pollution.]
(5) Allocation of grant funds.--Grants under this
section shall be allocated to States with approved
programs in a fair and equitable manner and be based
upon rules and regulations promulgated by the
Administrator which shall take into account the extent
and nature of the nonpoint sources of pollution in each
State and other relevant factors.
* * * * * * *
[(7) Limitation on use of funds.--States may use
funds from grants made pursuant to this section for
financial assistance to persons only to the extent that
such assistance is related to the costs of
demonstration projects.
[(8) Satisfactory progress.--No grant may be made
under this subsection in any fiscal year to a State
which in the preceding fiscal year received a grant
under this subsection unless the Administrator
determines that such State made satisfactory progress
in such preceding fiscal year in meeting the schedule
specified by such State under subsection (b)(2).]
(7) Use of funds.--A State may use grants made
available to the State pursuant to this section for
activities relating to nonpoint source water pollution
control, including--
(A) providing financial assistance with
respect to those activities whose principal
purpose is protecting and improving water
quality;
(B) assistance related to the cost of
preparing or implementing the State management
program;
(C) providing incentive grants to individuals
to implement a site-specific water quality plan
in amounts not to exceed 75 percent of the cost
of the project from all Federal sources;
(D) land acquisition or conservation
easements consistent with a site-specific water
quality plan; and
(E) restoring and maintaining the chemical,
physical, and biological integrity of urban and
rural waters and watersheds (including
restoration and maintenance of water quality, a
balanced indigenous population of shellfish,
fish, and wildlife, aquatic and riparian
vegetation, and recreational activities in and
on the water) and protecting designated uses,
including fishing, swimming, and drinking water
supply.
(8) Compliance with state management program.--In any
fiscal year for which the Administrator determines that
a State has not made satisfactory progress in the
preceding fiscal year in meeting the schedule specified
for such State under subsection (b)(2)(C), the
Administrator is authorized to withhold grants pursuant
to this section in whole or in part to the State after
adequate written notice is provided to the Governor of
the State.
* * * * * * *
(13) Allotment study.--
(A) Study.--The Administrator, in
consultation with the States, shall conduct a
study of whether the allocation of funds under
paragraph (5) appropriately reflects the needs
and costs of nonpoint source control measures
for different nonpoint source categories and
subcategories and of options for better
reflecting such needs and costs in the
allotment of funds.
(B) Report.--Not later than 5 years after the
date of the enactment of the Clean Water
Amendments of 1995, the Administrator shall
transmit to Congress a report on the results of
the study conducted under this subsection,
together with recommendations.
(i) Grants for Protecting Groundwater Quality.--
(1) * * *
* * * * * * *
(3) Federal share; maximum amount.--The Federal share
of the cost of assisting a State in carrying out
groundwater protection activities in any fiscal year
under this subsection shall be 50 percent of the costs
incurred by the State in carrying out such activities,
except that the maximum amount of Federal assistance
which any State may receive under this subsection in
any fiscal year shall not exceed [$150,000] $500,000.
* * * * * * *
(j) Authorization of Appropriations.--There is authorized
to be appropriated to carry out subsections (h) and (i) not to
exceed $70,000,000 for fiscal year 1988, $100,000,000 per
fiscal year for each of fiscal years 1989 and 1990, [and]
$130,000,000 for fiscal year 1991, such sums as may be
necessary for fiscal years 1992 through 1995, $100,000,000 for
fiscal year 1996, $150,000,000 for fiscal year 1997,
$200,000,000 for fiscal year 1998, $250,000,000 for fiscal year
1999, and $300,000,000 for fiscal year 2000; except that for
each of such fiscal years not to exceed [$7,500,000]
$25,000,000 may be made available to carry out subsection (i).
Sums appropriated pursuant to this subsection shall remain
available until expended.
(k) Consistency of Other Programs and Projects With
Management Programs.--The Administrator shall transmit to the
Office of Management and Budget and the appropriate Federal
departments and agencies a list of those assistance programs
and development projects identified by each State under
subsection (b)(2)(F) for which individual assistance
applications and projects will be reviewed pursuant to the
procedures set forth in Executive Order 12372 as in effect on
September 17, 1983. Beginning not later than sixty days after
receiving notification by the Administrator, each Federal
department and agency shall modify existing regulations to
[allow States to review] require coordination with States in
individual development projects and assistance applications
under the identified Federal assistance programs and shall
accommodate, according to the requirements and definitions of
Executive Order 12372, as in effect on September 17, 1983, the
concerns of the State regarding the consistency of such
applications or projects with the State nonpoint source
pollution management program and the State watershed management
program. Federal agencies that own or manage land, or issue
licenses for activities that cause nonpoint source pollution
from such land, shall coordinate their nonpoint source control
measures with the State nonpoint source management program and
the State watershed management program. A Federal agency and
the Governor of an affected State shall enter into a memorandum
of understanding to carry out the purposes of this paragraph.
Such a memorandum of understanding shall not relieve the
Federal agency of the agency's obligation to comply with its
own mandates.
* * * * * * *
(m) Reports of Administrator.--
(1) [Annual] Biennial reports.--Not later than
January 1, [1988, and each January 1] 1995, and
biennially thereafter, the Administrator shall transmit
to the Committee on Public Works and Transportation of
the House of Representatives and the Committee on
Environment and Public Works of the Senate, a report
for the preceding fiscal year on the activities and
programs implemented under this section and the
progress made in reducing pollution in the navigable
waters resulting from nonpoint sources and improving
the quality of such waters.
(2) [Final report.--Not later than January 1, 1990,
the Administrator shall transmit to Congress a final
report on the activities carried out under this
section. Such report,] Contents.--Each report submitted
under paragraph (1), at a minimum, shall--
(A) describe the management programs being
implemented by the States by types and amount
of affected navigable waters, categories and
subcategories of nonpoint sources, and types of
[best management practices] measures being
implemented;
(B) describe the experiences of the States in
adhering to schedule and implementing [best
management practices] the measures provided by
States under subsection (b);
* * * * * * *
(n) Set Aside for Administrative Personnel.--Not [less]
more than 5 percent of the funds appropriated pursuant to
subsection (j) for any fiscal year shall be available to the
Administrator to maintain personnel levels at the Environmental
Protection Agency at levels which are adequate to carry out
this section in such year.
(o) Guidance on Model Management Practices and Measures.--
(1) In general.--The Administrator shall publish
guidance to identify model management practices and
measures which may be undertaken, at the discretion of
the State or appropriate entity, under a management
program established pursuant to this section.
(2) Consultation; public notice and comment.--The
Administrator shall develop the model management
practices and measures under paragraph (1) in
consultation with the National Oceanic and Atmospheric
Administration, other appropriate Federal and State
departments and agencies, and academic institutions,
private industry experts, and other individual experts
in water conservation and planning, and after providing
notice and opportunity for public comment.
(3) Publication.--The Administrator shall publish
proposed guidance under this subsection not later than
6 months after the date of the enactment of this
subsection and shall publish final guidance under this
subsection not later than 18 months after such date of
enactment. The Administrator shall periodically review
and revise the final guidance at least once every 3
years after its publication.
(4) Model management practices and measures
defined.--For the purposes of this subsection, the term
``model management practices and measures'' means
economically achievable measures for the control of the
addition of pollutants from nonpoint sources of
pollution which reflect the greatest degree of
pollutant reduction achievable through the application
of the best available nonpoint pollution control
practices, technologies, processes, siting criteria,
operating methods, or other alternatives. The
Administrator may distinguish among classes, types, and
sizes within any category of nonpoint sources.
(p) Inadequate Funding.--For each fiscal year beginning after
the date of the enactment of this subsection for which the
total of amounts appropriated to carry out this section are
less than the total of amounts authorized to be appropriated
pursuant to subsection (j), the deadline for compliance with
any requirement of this section, including any deadline
relating to assessment reports or State program implementation
or monitoring efforts, shall be postponed by 1 year, unless the
Administrator and the State jointly certify that the amounts
appropriated are sufficient to meet the requirements of this
section.
(q) Agricultural Inputs.--For the purposes of this Act, any
land application of livestock manure shall not be considered a
point source and shall be subject to enforcement only under
this section.
(r) Purpose.--The purpose of this section is to assist States
in addressing nonpoint sources of pollution where necessary to
achieve the goals and requirements of this Act. It is
recognized that State nonpoint source programs need to be built
upon a foundation that voluntary initiatives represent the
approach most likely to succeed in achieving the objectives of
this Act.
SEC. 320. NATIONAL ESTUARY PROGRAM.
(a) Management Conference.--
(1) * * *
(2) Convening of conference.--
(A) * * *
[(B) Priority consideration.--The
Administrator shall give priority consideration
under this section to Long Island Sound, New
York and Connecticut; Narragansett Bay, Rhode
Island; Buzzards Bay, Massachusetts;
Massachusetts Bay, Massachusetts (including
Cape Cod Bay and Boston Harbor); Puget Sound,
Washington; New York-New Jersey Harbor, New
York and New Jersey; Delaware Bay, Delaware and
New Jersey; Delaware Inland Bays, Delaware;
Albermarle Sound, North Carolina; Sarasota Bay,
Florida; San Francisco Bay, California; Santa
Monica Bay, California; Galveston Bay, Texas;
Barataria-Terrebonne Bay estuary complex,
Louisiana; Indian River Lagoon, Florida; and
Peconic Bay, New York.]
(B) Priority consideration.--The
Administrator shall give priority consideration
under this section to Long Island Sound, New
York and Connecticut; Narragansett Bay, Rhode
Island; Buzzards Bay, Massachusetts;
Massachusetts Bay, Massachusetts (including
Cape Cod Bay and Boston Harbor); Puget Sound,
Washington; New York-New Jersey Harbor, New
York and New Jersey; Delaware Bay, Delaware and
New Jersey; Delaware Inland Bays, Delaware;
Albemarle Sound, North Carolina; Sarasota Bay,
Florida; San Francisco Bay, California; Santa
Monica Bay, California; Galveston Bay, Texas;
Barataria-Terrebonne Bay estuary complex,
Louisiana; Indian River Lagoon, Florida;
Charlotte Harbor, Florida; Barnegat Bay, New
Jersey; and Peconic Bay, New York.
* * * * * * *
(g) Grants.--
(1) * * *
(2) Purposes.--Grants under this subsection shall be
made to pay for assisting research, surveys, studies,
and modeling and other technical work necessary for the
development and implementation monitoring of a
conservation and management plan under this section.
* * * * * * *
(i) Authorization of Appropriations.--There are authorized
to be appropriated to the Administrator not to exceed
$12,000,000 per fiscal year for each of fiscal years [1987,
1988, 1989, 1990, and 1991] 1987 through 1991, such sums as may
be necessary for fiscal years 1992 through 1995, and
$19,000,000 per fiscal year for each of fiscal years 1996
through 2000 for--
(1) * * *
* * * * * * *
SEC. 321. STATE WATERSHED MANAGEMENT PROGRAMS.
(a) State Watershed Management Program.--
(1) Submission of program to administrator.--A State,
at any time, may submit a watershed management program
to the Administrator for approval.
(2) Approval.--If the Administrator does not
disapprove a State watershed management program within
180 days of its submittal or 240 days of a request for
a public hearing pursuant to paragraph (3) with respect
to the program, whichever is later, such program shall
be deemed approved for the purposes of this section.
The Administrator shall approve the program if the
program includes, at a minimum, the following elements:
(A) The identification of the State agency
with primary responsibility for overseeing and
approving watershed management plans in
general.
(B) The description of any responsible
entities (including any appropriate State
agency or substate agency) to be utilized in
implementing the program and a description of
their responsibilities.
(C) A description of the scope of the
program. In establishing the scope of the
program, the State may address one or more
watersheds, or pollutants, concurrently or
sequentially. The scope of the State program
may expand over time with respect to the
watersheds, pollutants, and factors to be
addressed under the program. In developing the
State program, the State shall take into
account all regional and local government
watershed management programs that are
consistent with the proposed State program and
shall consult with the regional and local
governments that developed such programs. The
State shall consider recommendations from units
of general purpose government, special purpose
districts, local water suppliers, and
appropriate water management agencies in the
development and scope of the program.
(D) Provisions for carrying out an analysis,
consistent with the established scope of the
program, of the problems within each watershed
covered under the program.
(E) An identification of watershed management
units for which management plans will be
developed, taking into consideration those
waters where water quality is threatened or
impaired or otherwise in need of special
protection. A watershed management unit
identified under the program may include waters
and associated land areas in more than 1 State
if the Governors of the States affected jointly
designate the watershed management unit and may
include waters and associated lands managed or
owned by the Federal Government.
(F) A description of the activities required
of responsible entities (as specified under
subsection (e)(1)) and a description of the
watershed plan approval process of the State.
(G) Documentation of the public participation
in development of the program and description
of the procedures that will be used for public
participation in the development and
implementation of watershed plans.
(H) The identification of goals that will be
pursued in each watershed, including attainment
of State water quality standards (including
site-specific water quality standards) and the
goals and objectives of this Act.
(I) An exclusion from the program of
federally approved activities with respect to
linear utility facilities, such as natural gas
pipelines if such facilities extend to multiple
watersheds and result in temporary or de
minimis impacts.
(J) A description of the process for
consideration of and achieving consistency with
the purposes of sections 319 and 322.
(3) Disapproval process.--If the Administrator
intends to disapprove a program of a State submitted
under this subsection, the Administrator shall by a
written notification advise the State of the intent to
disapprove and the reasons for disapproval. If, within
30 days of receipt of such notice, a State so requests,
the Administrator shall conduct a public hearing in the
State on the intent to disapprove and the reasons for
such disapproval. A State may resubmit a revised
program that addresses the reasons contained in the
notification. If a State requests a public hearing, the
Administrator shall conduct the hearing in that State
and issue a final determination within 240 days of
receipt of the State watershed management program
submittal.
(4) Modification of program.--Each State with a
watershed management program that has been approved by
the Administrator under this section may, at any time,
modify the watershed management program. Any such
modification shall be submitted to the Administrator
and shall remain in effect unless and until the
Administrator determines that the modified program no
longer meets the requirements of this section. In such
event, the provisions of paragraph (3) shall apply.
(5) Status reports.--Each State with a watershed
management program that has been approved by the
Administrator pursuant to this subsection shall, not
later than 1 year after the date of approval, and
annually thereafter, submit to the Administrator an
annual watershed program summary status report that
includes descriptions of any modifications to the
program. The status report shall include a listing of
requests made for watershed plan development and a
listing of plans prepared and submitted by local or
regional entities and the actions taken by the State on
such plans including the reasons for those actions. In
consultation and coordination with the Administrator, a
State may use the report to satisfy, in full or in
part, any reporting requirements under sections 106,
303(d), 305(b), 314, 319, 320, 322, and 604(b).
(b) Watershed Area in 2 or More States.--If a watershed
management unit is designated to include land areas in more
than 1 State, the Governors of States having jurisdiction over
any lands within the watershed management unit shall jointly
determine the responsible entity or entities.
(c) Eligible Watershed Management and Planning Activities.--
(1) In general.--In addition to activities eligible
to receive assistance under other sections of this Act
as of the date of the enactment of this subsection, the
following watershed management activities conducted by
or on behalf of the States pursuant to a watershed
management program that is approved by the
Administrator under this section shall be considered to
be eligible to receive assistance under sections 106,
205(j), 319(h), 320, and 604(b):
(A) Characterizing the waters and land uses.
(B) Identifying and evaluating problems
within the watershed.
(C) Selecting short-term and long-term goals
for watershed management.
(D) Developing and implementing water quality
standards, including site-specific water
quality standards.
(E) Developing and implementing measures and
practices to meet identified goals.
(F) Identifying and coordinating projects and
activities necessary to restore or maintain
water quality or other related environmental
objectives within the watershed.
(G) Identifying the appropriate institutional
arrangements to carry out a watershed
management plan that has been approved or
adopted by the State under this section.
(H) Updating the plan.
(I) Conducting training and public
participation activities.
(J) Research to study benefits of existing
watershed program plans and particular aspects
of the plans.
(K) Implementing any other activity
considered appropriate by the Administrator or
the Governor of a State with an approved
program.
(2) Factors to be considered.--In selecting watershed
management activities to receive assistance pursuant to
paragraph (1), the following factors shall be
considered:
(A) Whether or not the applicant has
demonstrated success in addressing water
quality problems with broadbased regional
support, including public and private sources.
(B) Whether the activity will promote
watershed problem prioritization.
(C) Whether or not the applicant can
demonstrate an ability to use Federal resources
to leverage non-Federal public and private
monetary and in-kind support from voluntary
contributions, including matching and cost
sharing incentives.
(D) Whether or not the applicant proposes to
use existing public and private programs to
facilitate water quality improvement with the
assistance to be provided pursuant to paragraph
(1).
(E) Whether or not such assistance will be
used to promote voluntary activities, including
private wetlands restoration, mitigation
banking, and pollution prevention to achieve
water quality standards.
(F) Whether or not such assistance will be
used to market mechanisms to enhance existing
programs.
(d) Public Participation.--Each State shall establish
procedures to encourage the public to participate in its
program and in developing and implementing comprehensive
watershed management plans under this section. A State
watershed management program shall include a process for public
involvement in watershed management, to the maximum extent
practicable, including the formation and participation of
public advisory groups during State watershed program
development. States must provide adequate public notice and an
opportunity to comment on the State watershed program prior to
submittal of the program to the Administrator for approval.
(e) Approved or State-Adopted Plans.--
(1) Requirements.--A State with a watershed
management program that has been approved by the
Administrator under this section may approve or adopt a
watershed management plan if the plan satisfies the
following conditions:
(A) If the watershed includes waters that are
not meeting water quality standards at the time
of submission, the plan--
(i) identifies the objectives of the
plan, including, at a minimum, State
water quality standards (including
site-specific water quality standards)
and goals and objectives under this
Act;
(ii) identifies pollutants, sources,
activities, and any other factors
causing the impairment of the waters;
(iii) identifies cost effective
actions that are necessary to achieve
the objectives of the plan, including
reduction of pollutants to achieve any
allocated load reductions consistent
with the requirements of section
303(d), and the priority for
implementing the actions;
(iv) contains an implementation
schedule with milestones and the
identification of persons responsible
for implementing the actions;
(v) demonstrates that water quality
standards and other goals and
objectives of this Act will be attained
as expeditiously as practicable but not
later than any applicable deadline
under this Act;
(vi) contains documentation of the
public participation in the development
of the plan and a description of the
public participation process that will
be used during the plan implementation;
(vii) specifies a process to monitor
and evaluate progress toward meeting of
the goals of the plan; and
(viii) specifies a process to revise
the plan as necessary.
(B) For waters in the watershed attaining
water quality standards at the time of
submission (including threatened waters), the
plan identifies the projects and activities
necessary to maintain water quality standards
and attain or maintain other goals after the
date of approval or adoption of the plan.
(2) Terms of approved or adopted plan.--Each plan
that is approved or adopted by a State under this
subsection shall be effective for a period of not more
than 10 years and include a planning and implementation
schedule with milestones within that period. A revised
and updated plan may be approved or adopted by the
State prior to the expiration of the period specified
in the plan pursuant to the same conditions and
requirements that apply to an initial plan for a
watershed approved under this subsection.
(f) Guidance.--Not later than 1 year after the date of the
enactment of this section, the Administrator, after
consultation with the States and other interested parties,
shall issue guidance on provisions that States may consider for
inclusion in watershed management programs and State-approved
or State-adopted watershed management plans under this section.
(g) Pollutant Transfer Opportunities.--
(1) Pollutant transfer pilot projects.--Under an
approved watershed management program, any discharger
or source may apply to a State for approval to offset
the impact of its discharge or release of a pollutant
by entering into arrangements, including the payment of
funds, for the implementation of controls or measures
by another discharger or source through a pollution
reduction credits trading program established as part
of the watershed management plan. The State may approve
such a request if appropriate safeguards are included
to ensure compliance with technology based controls and
to protect the quality of receiving waters.
(2) Incentive grants.--The Administrator shall
allocate sums made available by appropriations to carry
out pollution reduction credits trading programs in
selected watersheds throughout the country.
(3) Report.--Not later than 36 months after the date
of the enactment of this Act, the Administrator shall
transmit to Congress a report on the results of the
program conducted under this subsection.
SEC. 322. STORMWATER MANAGEMENT PROGRAMS.
(a) Purpose.--The purpose of this section is to assist States
in the development and implementation of stormwater control
programs in an expeditious and cost effective manner so as to
enable the goals and requirements of this Act to be met in each
State no later than 15 years after the date of approval of the
stormwater management program of the State. It is recognized
that State stormwater management programs need to be built on a
foundation that voluntary pollution prevention initiatives
represent an approach most likely to succeed in achieving the
objectives of this Act.
(b) State Assessment Reports.--
(1) Contents.--After notice and opportunity for
public comment, the Governor of each State, consistent
with or as part of the assessment required by section
319, shall prepare and submit to the Administrator for
approval, a report which--
(A) identifies those navigable waters within
the State which, without additional action to
control pollution from stormwater discharges,
cannot reasonably be expected to attain or
maintain applicable water quality standards or
the goals and requirements of this Act;
(B) identifies those categories and
subcategories of stormwater discharges that add
significant pollution to each portion of the
navigable waters identified under subparagraph
(A) in amounts which contribute to such portion
not meeting such water quality standards or
such goals and requirements;
(C) describes the process, including
intergovernmental coordination and public
participation, for identifying measures to
control pollution from each category and
subcategory of stormwater discharges identified
in subparagraph (B) and to reduce, to the
maximum extent practicable, the level of
pollution resulting from such discharges; and
(D) identifies and describes State, local,
and as may be appropriate, industrial programs
for controlling pollution added from stormwater
discharges to, and improving the quality of,
each such portion of the navigable waters.
(2) Information used in preparation.--In developing,
reviewing, and revising the report required by this
subsection, the State--
(A) may rely upon information developed
pursuant to sections 208, 303(e), 304(f),
305(b), 314, 319, 320, and 321 and subsection
(h) of this section, information developed from
the group stormwater permit application process
in effect under section 402(p) of this Act on
the day before the date of the enactment of
this Act, and such other information as the
State determines is appropriate; and
(B) may utilize appropriate elements of the
waste treatment management plans developed
pursuant to sections 208(b) and 303, to the
extent such elements are consistent with and
fulfill the requirements of this section.
(3) Review and revision.--Not later than 18 months
after the date of the enactment of the Clean Water
Amendments of 1995, and every 5 years thereafter, the
State shall review, revise, and submit to the
Administrator the report required by this subsection.
(c) State Management Programs.--
(1) In general.--In substantial consultation with
local governments and after notice and opportunity for
public comment, the Governor of each State for the
State or in combination with the Governors of adjacent
States shall prepare and submit to the Administrator
for approval a stormwater management program based on
available information which the State proposes to
implement in the first 5 fiscal years beginning after
the date of submission of such management program for
controlling pollution added from stormwater discharges
to the navigable waters within the boundaries of the
State and improving the quality of such waters.
(2) Specific contents.--Each management program
proposed for implementation under this subsection shall
include the following:
(A) Identification of model management
practices and measures.--Identification of the
model management practices and measures which
will be undertaken to reduce pollutant loadings
resulting from each category or subcategory of
stormwater discharges designated under
subsection (b)(1)(B), taking into account the
impact of the practice and measure on ground
water quality.
(B) Identification of programs and
resources.--Identification of programs and
resources necessary (including, as appropriate,
nonregulatory programs or regulatory programs,
enforceable policies and mechanisms, technical
assistance, financial assistance, education,
training, technology transfer, and
demonstration projects) to manage categories or
subcategories of stormwater discharges to the
degree necessary to provide for reasonable
further progress toward the goal of attainment
of water quality standards which contain the
stormwater criteria established under
subsection (i) for designated uses of receiving
waters identified under subsection (b)(1)(A)
taking into consideration specific watershed
conditions, by not later than the last day of
the 15-year period beginning on the date of
approval of the State program.
(C) Program for industrial, commercial, oil,
gas, and mining discharges.--A program for
categories or subcategories of industrial,
commercial, oil, gas, and mining stormwater
discharges identified under subsection
(b)(1)(B) for the implementation of management
practices, measures, and programs identified
under subparagraphs (A) and (B). The program
shall include each of the following:
(i) Voluntary activities.--Voluntary
stormwater pollution prevention
activities for categories and
subcategories of such stormwater
discharges that are not contaminated by
contact with material handling
equipment or activities, heavy
industrial machinery, raw materials,
intermediate products, finished
products, byproducts, or waste products
at the site of the industrial,
commercial, oil, gas, or mining
activity. Such discharges may have
incidental contact with buildings or
motor vehicles.
(ii) Enforceable plans.--Enforceable
stormwater pollution prevention plans
meeting the requirements of subsection
(d) for those categories and
subcategories of such stormwater
discharges that are not described in
clause (i).
(iii) General permits.--General
permits for categories and
subcategories of such stormwater
discharges if the State finds, based on
available information and after
providing notice and an opportunity for
comment, that reasonable further
progress toward achieving water quality
standards in receiving waters
identified by the State by the date
referred to in subparagraph (B) cannot
be made despite implementation of
voluntary activities under clause (i)
or prevention plans under clause (ii)
due to the presence of a pollutant or
pollutants identified by the State. A
facility in a category or subcategory
identified by the State shall not be
subject to a general permit under this
clause if the facility demonstrates
that stormwater discharges from the
facility are not contributing to a
violation of a water quality standard
established for designated uses of the
receiving waters and are not
significantly contributing the
pollutant or pollutants identified by
the State with respect to the receiving
waters under this clause.
(iv) Site-specific permits.--Site-
specific permits for categories or
subcategories of such stormwater
discharges or individual facilities in
such categories or subcategories if the
State finds, based on available
information and after providing notice
and an opportunity for comment, that
reasonable further progress toward
achieving water quality standards in
receiving waters identified by the
State by the date referred to in
subparagraph (B) cannot be made despite
implementation of voluntary activities
under clause (i) or prevention plans
under clause (ii) and general permits
under clause (iii) due to the presence
of a pollutant or pollutants identified
by the State. A facility in a category
or subcategory identified by the State
shall not be subject to a site-specific
permit under this clause if the
facility demonstrates that stormwater
discharges from the facility are not
contributing to a violation of a water
quality standard established for
designated uses of the receiving waters
and are not significantly contributing
the pollutant or pollutants identified
by the State with respect to the
receiving waters under this clause.
(v) Exemption of small businesses.--
An exemption for small businesses
identified under subsection (b)(1)(B)
from clause (iii), relating to general
permits, and clause (iv), relating to
site-specific permits, unless the State
finds that, without the imposition of
such permits, such discharges will have
a significant adverse effect on water
quality.
(D) Program for municipal discharges.--A
program for municipal stormwater discharges
identified under subsection (b)(1)(B) to reduce
pollutant loadings from categories and
subcategories of municipal stormwater
discharges.
(E) Program for construction activities.--A
program for categories and subcategories of
stormwater discharges from construction
activities identified under subsection
(b)(1)(B) for implementation of management
practices, measures, and programs identified
under subparagraphs (A) and (B). In developing
the program, the State shall consider current
State and local requirements, focus on
pollution prevention through the use of model
management practices and measures, and take
into account the land area disturbed by the
construction activities. The State may require
effluent limits or other numerical standards to
control pollutants in stormwater discharges
from construction activities only if the State
finds, after providing notice and an
opportunity for comment, that such standards
are necessary to achieve water quality
standards by the date referred to in
subparagraph (B).
(F) Bad actor provisions.--Provisions for
taking any actions deemed necessary by the
State to meet the goals and requirements of
this section with respect to dischargers which
the State identifies, after notice and
opportunity for hearing--
(i) as having a history of stormwater
noncompliance under this Act, State
law, or the regulations issued
thereunder or the terms and conditions
of permits, orders, or administrative
actions issued pursuant thereto; or
(ii) as posing an imminent threat to
human health and the environment.
(G) Schedule.--A schedule containing interim
goals and milestones for making reasonable
progress toward the attainment of standards as
set forth in subparagraph (B) established for
the designated uses of receiving waters, taking
into account specific watershed conditions,
which may be demonstrated by one or any
combination of improvements in water quality
(including biological indicators), documented
implementation of voluntary stormwater
discharge control measures, or adoption of
enforceable stormwater discharge control
measures.
(H) Certification of adequate authority.--
(i) In general.--A certification by
the Attorney General of the State or
States (or the chief attorney of any
State water pollution control agency
that has authority under State law to
make such certification) that the laws
of the State or States, as the case may
be, provide adequate authority to
implement such management program or,
if there is not such adequate
authority, a list of such additional
authorities as will be necessary to
implement such management program.
(ii) Commitment.--A schedule for
seeking, and a commitment by the State
or States to seek, such additional
authorities as expeditiously as
practicable.
(I) Identification of federal financial
assistance programs.--An identification of
Federal financial assistance programs and
Federal development projects for which the
State will review individual assistance
applications or development projects for their
effect on water quality pursuant to the
procedures set forth in Executive Order 12372
as in effect on September 17, 1983, to
determine whether such assistance applications
or development projects would be consistent
with the program prepared under this
subsection; for the purposes of this
subparagraph, identification shall not be
limited to the assistance programs or
development projects subject to Executive Order
12372 but may include any programs listed in
the most recent Catalog of Federal Domestic
Assistance which may have an effect on the
purposes and objectives of the State's
stormwater management program.
(J) Monitoring.--A description of the
monitoring of navigable waters or other
assessment which will be carried out under the
program for the purposes of monitoring and
assessing the effectiveness of the program,
including the attainment of interim goals and
milestones.
(K) Identification of certain inconsistent
federal activities.--An identification of
activities on Federal lands in the State that
are inconsistent with the State management
program.
(L) Identification of goals and milestones.--
An identification of goals and milestones for
progress in attaining water quality standards,
including a projected date for attaining such
standards as expeditiously as practicable but
not later than 15 years after the date of
approval of the State program for each of the
waters listed pursuant to subsection (b).
(3) Utilization of local and private experts.--In
developing and implementing a management program under
this subsection, a State shall, to the maximum extent
practicable, involve local public and private agencies
and organizations which have expertise in stormwater
management.
(4) Development on watershed basis.--A State shall,
to the maximum extent practicable, develop and
implement a stormwater management program under this
subsection on a watershed-by-watershed basis within
such State.
(5) Regulations defining small businesses.--The
Administrator shall propose, not later than 6 months
after the date of the enactment of this section, and
issue, not later than 1 year after the date of such
enactment, regulations to define small businesses for
purposes of this section.
(d) Stormwater Pollution Prevention Plans.--
(1) Implementation deadline.--Each stormwater
pollution prevention plan required under subsection
(c)(2)(C)(ii) shall be implemented not later than 180
days after the date of its development and shall be
annually updated.
(2) Plan contents.--Each stormwater pollution
prevention plan required under subsection (c)(2)(C)(ii)
shall include the following components:
(A) Establishment and appointment of a
stormwater pollution prevention team.
(B) Description of potential pollutant
sources.
(C) An annual site inspection evaluation.
(D) An annual visual stormwater discharge
inspection.
(E) Measures and controls for reducing
stormwater pollution, including, at a minimum,
model management practices and measures that
are flexible, technologically feasible, and
economically practicable. For purposes of this
paragraph, the term ``model management
practices and measures'' means preventive
maintenance, good housekeeping, spill
prevention and response, employee training, and
sediment and erosion control.
(F) Prevention of illegal discharges of
nonstormwater through stormwater outfalls.
(3) Certification.--Each facility subject to
subsection (c)(2)(C)(ii) shall certify to the State
that it has implemented a stormwater pollution
prevention plan or a State or local equivalent and that
the plan is intended to reduce possible pollutants in
the facility's stormwater discharges. The certification
must be signed by a responsible officer of the facility
and must be affixed to the plan subject to review by
the appropriate State program authority. If a facility
makes such a certification, such facility shall not be
subject to permit or permit application requirements,
mandatory model management practices and measures,
analytical monitoring, effluent limitations or other
numerical standards or guidelines under subsection
(c)(2)(C)(ii).
(4) Plan adequacy.--The State stormwater management
program shall set forth the basis upon which the
adequacy of a plan prepared by a facility subject to
subsection (c)(2)(C)(ii) will be determined. In making
such determination, the State shall consider benefits
to the environment, physical requirements,
technological feasibility and economic costs, human
health or safety, and nature of the activity at the
facility or site.
(e) Administrative Provisions.--
(1) Cooperation requirement.--Any report required by
subsection (b) and any management program and report
required by subsection (c) shall be developed in
cooperation with local, substate, regional, and
interstate entities which are responsible for
implementing stormwater management programs.
(2) Time period for submission of management
programs.--Each management program shall be submitted
to the Administrator within 30 months of the issuance
by the Administrator of the final guidance under
subsection (l) and every 5 years thereafter. Each
program submission after the initial submission
following the date of the enactment of the Clean Water
Amendments of 1995 shall include a demonstration of
reasonable further progress toward the goal of
attaining water quality standards as set forth in
subsection (c)(2) established for designated uses of
receiving waters taking into account specific watershed
conditions by not later than the date referred to in
subsection (b)(2)(B), including a documentation of the
degree to which the State has achieved the interim
goals and milestones contained in the previous program
submission. Such demonstration shall take into account
the adequacy of Federal funding under this section.
(3) Transition.--
(A) In general.--Permits, including group and
general permits, issued pursuant to section
402(p), as in effect on the day before the date
of the enactment of this section, shall remain
in effect until the effective date of a State
stormwater management program under this
section. Stormwater dischargers shall continue
to implement any stormwater management
practices and measures required under such
permits until such practices and measures are
modified pursuant to this subparagraph or
pursuant to a State stormwater management
program. Prior to the effective date of a State
stormwater management program, stormwater
dischargers may submit for approval proposed
revised stormwater management practices and
measures to the State, in the case of a State
with an approved program under section 402, or
the Administrator. Upon notice of approval by
the State or the Administrator, the stormwater
discharger shall implement the revised
stormwater management practices and measures
which, for discharges subject to subsection
(c)(2)(C)(i), (c)(2)(D), (c)(2)(E), or
(c)(2)(F), may be voluntary pollution
prevention activities. A stormwater discharger
operating under a permit continued in effect
under this subparagraph shall not be subject to
citizens suits under section 505.
(B) New facilities.--A new nonmunicipal
source of stormwater discharge subject to a
group or general permit continued in effect
under subparagraph (A) shall notify the State
or the Administrator, as appropriate, of the
source's intent to be covered by and shall
continue to comply with such permit. Until the
effective date of a State stormwater management
program under this section, the State may
impose enforceable stormwater management
measures and practices on a new nonmunicipal
source of stormwater discharge not subject to
such a permit if the State finds that the
stormwater discharge is likely to pose an
imminent threat to human health and the
environment or to pose significant impairment
of water quality standards.
(C) Special rule.--Industrial facilities
included in a Part 1 group stormwater permit
application approved by the Administrator
pursuant to section 122.26(c)(2) of title 40,
Code of Federal Regulations, as in effect on
the date of the enactment of this section, may,
in lieu of continued operation under existing
permits, certify to the State or the
Administrator, as appropriate, that such
facilities are implementing a stormwater
pollution prevention plan consistent with
subsection (d). Upon such certification, the
facility will no longer be subject to such
permit.
(D) Pre-1987 permits.--Notwithstanding the
repeal of section 402(p) by the Clean Water
Amendments Act of 1995 or any other amendment
made to section 402 on or before the date of
the enactment of such Act, a discharge with
respect to which a permit has been issued under
section 402 before February 4, 1987, shall not
be subject to the provisions of this section.
(E) Antibacksliding.--Section 402(o) shall
not apply to any activity carried out in
accordance with this paragraph.
(f) Approval or Disapproval of Reports or Management
Programs.--
(1) Deadline.--Subject to paragraph (2), not later
than 180 days after the date of submission to the
Administrator of any report or revised report or
management program under this section, the
Administrator shall either approve or disapprove such
report or management program, as the case may be. The
Administrator may approve a portion of a management
program under this subsection. If the Administrator
does not disapprove a report, management program, or
portion of a management program in such 180-day period,
such report, management program, or portion shall be
deemed approved for purposes of this section.
(2) Procedure for disapproval.--If, after notice and
opportunity for public comment and consultation with
appropriate Federal and State agencies and other
interested persons, the Administrator determines that--
(A) the proposed management program or any
portion thereof does not meet the requirements
of subsection (b) of this section or is not
likely to satisfy, in whole or in part, the
goals and requirements of this Act;
(B) adequate authority does not exist, or
adequate resources are not available, to
implement such program or portion; or
(C) the practices and measures proposed in
such program or portion will not result in
reasonable progress toward the goal of
attainment of applicable water quality
standards as set forth in subsection (c)(2)
established for designated uses of receiving
waters taking into consideration specific
watershed conditions as expeditiously as
possible but not later than 15 years after
approval of a State stormwater management
program under this section;
the Administrator shall within 6 months of the receipt
of the proposed program notify the State of any
revisions or modifications necessary to obtain
approval. The State shall have an additional 6 months
to submit its revised management program, and the
Administrator shall approve or disapprove such revised
program within 3 months of receipt.
(3) Failure of state to submit report.--If a Governor
of a State does not submit a report or revised report
required by subsection (b) within the period specified
by subsection (e)(2), the Administrator shall, within
18 months after the date on which such report is
required to be submitted under subsection (b), prepare
a report for such State which makes the identifications
required by paragraphs (1)(A) and (1)(B) of subsection
(b). Upon completion of the requirement of the
preceding sentence and after notice and opportunity for
a comment, the Administrator shall report to Congress
of the actions of the Administrator under this section.
(4) Failure of state to submit management program.--
(A) Program management by administrator.--
Subject to paragraph (5), if a State fails to
submit a management program or revised
management program under subsection (c) or the
Administrator does not approve such management
program, the Administrator shall prepare and
implement a management program for controlling
pollution added from stormwater discharges to
the navigable waters within the State and
improving the quality of such waters in
accordance with subsection (c).
(B) Notice and hearing.--If the Administrator
intends to disapprove a program submitted by a
State the Administrator shall first notify the
Governor of the State, in writing, of the
modifications necessary to meet the
requirements of this section. The Administrator
shall provide adequate public notice and an
opportunity for a public hearing for all
interested parties.
(C) State revision of its program.--If, after
taking into account the level of funding
actually provided as compared with the level
authorized, the Administrator determines that a
State has failed to demonstrate reasonable
further progress toward the attainment of water
quality standards as required, the State shall
revise its program within 12 months of that
determination in a manner sufficient to achieve
attainment of applicable water quality
standards by the deadline established by this
section. If a State fails to make such a
program revision or the Administrator does not
approve such a revision, the Administrator
shall prepare and implement a stormwater
management program for the State.
(5) Local Management Programs; Technical
Assistance.--If a State fails to submit a management
program under subsection (c) or the Administrator does
not approve such a management program, a local public
agency or organization which has expertise in, and
authority to, control water pollution resulting from
nonpoint sources in any area of such State which the
Administrator determines is of sufficient geographic
size may, with approval of such State, request the
Administrator to provide, and the Administrator shall
provide, technical assistance to such agency or
organization in developing for such area a management
program which is described in subsection (c) and can be
approved pursuant to this subsection. After development
of such management program, such agency or organization
shall submit such management program to the
Administrator for approval.
(g) Interstate Management Conference.--
(1) Convening of conference; notification; purpose.--
(A) Convening of conference.--If any portion
of the navigable waters in any State which is
implementing a management program approved
under this section is not meeting applicable
water quality standards or the goals and
requirements of this Act as a result, in whole
or in part, of pollution from stormwater in
another State, such State may petition the
Administrator to convene, and the Administrator
shall convene, a management conference of all
States which contribute significant pollution
resulting from stormwater to such portion.
(B) Notification.--If, on the basis of
information available, the Administrator
determines that a State is not meeting
applicable water quality standards or the goals
and requirements of this Act as a result, in
whole or in part, of significant pollution from
stormwater in another State, the Administrator
shall notify such States.
(C) Time limit.--The Administrator may
convene a management conference under this
paragraph not later than 180 days after giving
such notification under subparagraph (B),
whether or not the State which is not meeting
such standards requests such conference.
(D) Purpose.--The purpose of the conference
shall be to develop an agreement among the
States to reduce the level of pollution
resulting from stormwater in the portion of the
navigable waters and to improve the water
quality of such portion.
(E) Protection of water rights.--Nothing in
the agreement shall supersede or abrogate
rights to quantities of water which have been
established by interstate water compacts,
Supreme Court decrees, or State water laws.
(F) Limitations.--This subsection shall not
apply to any pollution which is subject to the
Colorado River Basin Salinity Control Act. The
requirement that the Administrator convene a
management conference shall not be subject to
the provisions of section 505 of this Act.
(2) State management program requirement.--To the
extent that the States reach agreement through such
conference, the management programs of the States which
are parties to such agreements and which contribute
significant pollution to the navigable waters or
portions thereof not meeting applicable water quality
standards or goals and requirements of this Act will be
revised to reflect such agreement. Such management
programs shall be consistent with Federal and State
law.
(h) Grants for Stormwater Research.--
(1) In general.--To determine the most cost-effective
and technologically feasible means of improving the
quality of the navigable waters and to develop the
criteria required pursuant to subsection (i) of this
Act, the Administrator shall establish an initiative
through which the Administrator shall fund State and
local demonstration programs and research to--
(A) identify adverse impacts of stormwater
discharges on receiving waters;
(B) identify the pollutants in stormwater
which cause impact; and
(C) test innovative approaches to address the
impacts of source controls and model management
practices and measures for runoff from
municipal storm sewers.
Persons conducting demonstration programs and research
funded under this subsection shall also take into
account the physical nature of episodic stormwater
flows, the varying pollutants in stormwater, the actual
risk the flows pose to the designated beneficial uses,
and the ability of natural ecosystems to accept
temporary stormwater events.
(2) Award of funds.--The Administrator shall award
the demonstration and research program funds taking
into account regional and population variations.
(3) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection $20,000,000 per fiscal year for fiscal years
1996 through 2000. Such sums shall remain available
until expended.
(4) Inadequate funding.--For each fiscal year
beginning after the date of the enactment of this
subsection for which the total amounts appropriated to
carry out this subsection are less than the total
amounts authorized to be appropriated pursuant to this
subsection, any deadlines established under subsection
(c)(2)(L) for compliance with water quality standards
shall be postponed by 1 year.
(i) Development of Stormwater Criteria.--
(1) In general.--To reflect the episodic character of
stormwater which results in significant variances in
the volume, hydraulics, hydrology, and pollutant load
associated with stormwater discharges, the
Administrator shall establish, as an element of the
water quality standards established for the designated
uses of the navigable waters, stormwater criteria which
protect the navigable waters from impairment of the
designated beneficial uses caused by stormwater
discharges. The criteria shall be technologically and
financially feasible and may include performance
standards, guidelines, guidance, and model management
practices and measures and treatment requirements, as
appropriate, and as identified in subsection (h)(1).
(2) Information to be used in development.--The
stormwater discharge criteria to be established under
this subsection--
(A) shall be developed from--
(i) the findings and conclusions of
the demonstration programs and research
conducted under subsection (h);
(ii) the findings and conclusions of
the research and monitoring activities
of stormwater dischargers performed in
compliance with permit requirements of
this Act; and
(iii) other relevant information,
including information submitted to the
Administrator under the industrial
group permit application process in
effect under section 402 of this Act on
the day before the date of the
enactment of this section;
(B) shall be developed in consultation with
persons with expertise in the management of
stormwater (including officials of State and
local government, industrial and commercial
stormwater dischargers, and public interest
groups); and
(C) shall be established as an element of the
water quality standards that are developed and
implemented under this Act by not later than
December 31, 2008.
(j) Collection of Information.--The Administrator shall
collect and make available, through publications and other
appropriate means, information pertaining to model management
practices and measures and implementation methods, including,
but not limited to--
(1) information concerning the costs and relative
efficiencies of model management practices and measures
for reducing pollution from stormwater discharges; and
(2) available data concerning the relationship
between water quality and implementation of various
management practices to control pollution from
stormwater discharges.
(k) Reports of Administrator.--
(1) Biennial reports.--Not later than January 1,
1996, and biennially thereafter, the Administrator
shall transmit to the Committee on Transportation and
Infrastructure of the House of Representatives and the
Committee on Environment and Public Works of the
Senate, a report for the preceding fiscal year on the
activities and programs implemented under this section
and the progress made in reducing pollution in the
navigable waters resulting from stormwater discharges
and improving the quality of such waters.
(2) Contents.--Each report submitted under paragraph
(1), at a minimum shall--
(A) describe the management programs being
implemented by the States by types of affected
navigable waters, categories and subcategories
of stormwater discharges, and types of measures
being implemented;
(B) describe the experiences of the States in
adhering to schedules and implementing the
measures under subsection (c);
(C) describe the amount and purpose of grants
awarded pursuant to subsection (h);
(D) identify, to the extent that information
is available, the progress made in reducing
pollutant loads and improving water quality in
the navigable waters;
(E) indicate what further actions need to be
taken to attain and maintain in those navigable
waters (i) applicable water quality standards,
and (ii) the goals and requirements of this
Act;
(F) include recommendations of the
Administrator concerning future programs
(including enforcement programs) for
controlling pollution from stormwater; and
(G) identify the activities and programs of
departments, agencies, and instrumentalities of
the United States that are inconsistent with
the stormwater management programs implemented
by the States under this section and
recommended modifications so that such
activities and programs are consistent with and
assist the States in implementation of such
management programs.
(l) Guidance on Model Stormwater Management Practices and
Measures.--
(1) In general.--The Administrator, in consultation
with appropriate Federal, State, and local departments
and agencies, and after providing notice and
opportunity for public comment, shall publish guidance
to identify model management practices and measures
which may be undertaken, at the discretion of the State
or appropriate entity, under a management program
established pursuant to this section. In preparing such
guidance, the Administrator shall consider integration
of a stormwater management program of a State with, and
the relationship of such program to, the nonpoint
source management program of the State under section
319.
(2) Publication.--The Administrator shall publish
proposed guidance under this subsection not later than
6 months after the date of the enactment of this
subsection and shall publish final guidance under this
subsection not later than 18 months after such date of
enactment. The Administrator shall periodically review
and revise the final guidance upon adequate notice and
opportunity for public comment at least once every 3
years after its publication.
(3) Model management practices and measures
defined.--For the purposes of this subsection, the term
``model management practices and measures'' means
economically achievable measures for the control of
pollutants from stormwater discharges which reflect the
most cost-effective degree of pollutant reduction
achievable through the application of the best
available practices, technologies, processes, siting
criteria, operating methods, or other alternatives.
(m) Enforcement With Respect to Stormwater Dischargers
Violating State Management Programs.--Stormwater dischargers
that do not comply with State management program requirements
under subsection (c) are subject to applicable enforcement
actions under sections 309 and 505 of this Act.
(n) Entry and Inspection.--In order to carry out the
objectives of this section, an authorized representative of a
State, upon presentation of his or her credentials, shall have
a right of entry to, upon, or through any property at which a
stormwater discharge or records required to be maintained under
the State stormwater management program are located.
(o) Limitation on Discharges Regulated Under Watershed
Management Program.--Stormwater discharges regulated under
section 321 in a manner consistent with this section shall not
be subject to this section.
(p) Mineral Exploration and Mining Sites.--
(1) Exploration sites.--For purposes of subsection
(c)(2)(F), stormwater discharges from construction
activities shall include stormwater discharges from
mineral exploration activities; except that, for
exploration at abandoned mined lands, the stormwater
program under subsection (c)(2)(F) shall be limited to
the control of pollutants added to stormwater by
contact with areas disturbed by the exploration
activity.
(2) Mining sites.--Stormwater discharges at ore
mining and dressing sites shall be subject to this
section. If any such discharge is commingled with mine
drainage or process wastewater from mining operations,
such discharge shall be treated as a discharge from a
point source for purposes of this Act.
(3) Abandoned mined lands.--Stormwater discharges
from abandoned mined lands shall be subject to section
319; except that if the State, after notice and an
opportunity for comment, finds that regulation of such
stormwater discharges under this section is necessary
to make reasonable further progress toward achieving
water quality standards by the date referred to in
subsection (c)(2)(B), such discharges shall be subject
to this section.
(4) Surface mining control and reclamation act
sites.--Notwithstanding paragraph (3), stormwater
discharges from abandoned mined lands site which are
subject to the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1201-1328) shall be subject to
section 319.
(5) Definitions.--For purposes of this subsection,
the following definitions apply:
(A) Abandoned mined lands.--The term
``abandoned mined lands'' means lands which
were used for mineral activities and abandoned
or left in an inadequate reclamation status and
for which there is no continuing reclamation
responsibility under State or Federal laws.
(B) Process waste water.--The term ``process
waste water'' means any water other than
stormwater which comes into contact with any
raw material, intermediate product, finished
product, byproduct, or waste product as part of
any mineral beneficiation processes employed at
the site.
(C) Mine drainage.--The term ``mine
drainage'' means any water drained, pumped, or
siphoned from underground mine workings or mine
pits, but such term shall not include
stormwater runoff from tailings dams, dikes,
overburden, waste rock piles, haul roads,
access roads, and ancillary facility areas.
SEC. 323. RISK ASSESSMENT AND DISCLOSURE REQUIREMENTS.
(a) General Rule.--The Administrator or the Secretary of the
Army (hereinafter in this section referred to as the
``Secretary''), as appropriate, shall develop and publish a
risk assessment before issuing--
(1) any standard, effluent limitation, water quality
criterion, water quality based requirement, or other
regulatory requirement under this Act (other than a
permit or a purely procedural requirement); or
(2) any guidance under this Act which, if issued as a
regulatory requirement, would result in an annual
increase in cost of $25,000,000 or more.
(b) Contents of Risk Assessments.--A risk assessment
developed under subsection (a), at a minimum, shall--
(1) identify and use all relevant and readily
obtainable data and information of sufficient quality,
including data and information submitted to the Agency
in a timely fashion;
(2) identify and discuss significant assumptions,
inferences, or models used in the risk assessment;
(3) measure the sensitivity of the results to the
significant assumptions, inferences, or models that the
risk assessment relies upon;
(4) with respect to significant assumptions,
inferences, or models that the results are sensitive
to, identify and discuss--
(A) credible alternatives and the basis for
the rejection of such alternatives;
(B) the scientific or policy basis for the
selection of such assumptions, inferences, or
models; and
(C) the extent to which any such assumptions,
inferences, or models have been validated or
conflict with empirical data;
(5) to the maximum extent practical, provide a
description of the risk, including, at minimum, best
estimates or other unbiased representation of the most
plausible level of risk and a description of the
specific populations or natural resources subject to
the assessment;
(6) to the maximum extent practical, provide a
quantitative estimate of the uncertainty inherent in
the risk assessment; and
(7) compare the nature and extent of the risk
identified in the risk assessment to other risks to
human health and the environment.
(c) Risk Assessment Guidance.--Not later than 180 days after
the date of the enactment of this section, and after providing
notice and opportunity for public comment, the Administrator,
in consultation with the Secretary, shall issue, and thereafter
revise, as appropriate, guidance for conducting risk
assessments under subsection (a).
(d) Margin of Safety.--When establishing a margin of safety
for use in developing a regulatory requirement described in
subsection (a)(1) or guidance described in subsection (a)(2),
the Administrator or the Secretary, as appropriate, shall
provide, as part of the risk assessment under subsection (a),
an explicit and, to the extent practical, quantitative
description of the margin of safety relative to an unbiased
estimate of the risk being addressed.
(e) Discretionary Exemptions.--The Administrator or the
Secretary, as appropriate, may exempt from the requirements of
this section any risk assessment prepared in support of a
regulatory requirement described in subsection (a)(1) which is
likely to result in annual increase in cost of less than
$25,000,000. Such exemptions may be made for specific risk
assessments or classes of risk assessments.
(f) General Rule on Applicability.--The requirements of this
section shall apply to any regulatory requirement described in
subsection (a)(1) or guidance described in subsection (a)(2)
that is issued after the last day of the 1-year period
beginning on the date of the enactment of this section.
(g) Significant Regulatory Actions and Guidance.--
(1) Applicability of requirements.--In addition to
the regulatory requirements and guidance referred to in
subsection (f), the requirements of this section shall
apply to--
(A) any standard, effluent limitation, water
quality criterion, water quality based
requirement, or other regulatory requirement
issued under this Act during the period
described in paragraph (2) which is likely to
result in an annual increase in cost of
$100,000,000 or more; and
(B) any guidance issued under this Act during
the period described in paragraph (2) which, if
issued as a regulatory requirement, would be
likely to result in annual increase in cost of
$100,000,000 or more.
(2) Covered period.--The period described in this
paragraph is the period beginning on February 15, 1995,
and ending on the last day of the 1-year period
beginning on the date of the enactment of this Act.
(3) Review.--Any regulatory requirement described in
paragraph (1)(A) or guidance described in paragraph
(1)(B) which was issued before the date of the
enactment of this section shall be reviewed and, with
respect to each such requirement or guidance, the
Administrator or the Secretary, as appropriate, shall
based on such review--
(A) certify that the requirement or guidance
meets the requirements of this section without
revision; or
(B) reissue the requirement or guidance,
after providing notice and opportunity for
public comment, with such revisions as may be
necessary for compliance with the requirements
of this section.
(4) Deadline.--Any regulatory requirement described
in paragraph (1)(A) or guidance described in paragraph
(1)(B) for which the Administrator or the Secretary, as
appropriate, does not issue a certification or
revisions under paragraph (3) on or before the last day
of the 18-month period beginning on the date of the
enactment of this section shall cease to be effective
after such last day until the date on which such
certification or revisions are issued.
SEC. 324. BENEFIT AND COST CRITERION.
(a) Decision Criterion.--
(1) Certification.--The Administrator or the
Secretary of the Army (hereinafter in this section
referred to as the ``Secretary''), as appropriate,
shall not issue--
(A) any standard, effluent limitation, or
other regulatory requirement under this Act; or
(B) any guidance under this Act which, if
issued as a regulatory requirement, would
result in an annual increase in cost of
$25,000,000 or more,
unless the Administrator or the Secretary certifies
that the requirement or guidance maximizes net benefits
to society. Such certification shall be based on an
analysis meeting the requirements of subsection (b).
(2) Effect of criterion.--Notwithstanding any other
provision of this Act, the decision criterion of
paragraph (1) shall supplement and, to the extent there
is a conflict, supersede the decision criteria
otherwise applicable under this Act; except that the
resulting regulatory requirement or guidance shall be
economically achievable.
(3) Substantial evidence.--Notwithstanding any other
provision of this Act, no regulation or guidance
subject to this subsection shall be issued by the
Administrator or the Secretary unless the requirement
of paragraph (1) is met and the certification is
supported by substantial evidence.
(b) Benefit and Cost Analysis Guidance.--
(1) In general.--Not later than 180 days after the
date of the enactment of this section, and after
providing notice and opportunity for public comment,
the Administrator, in concurrence with the
Administrator of the Office of Information and
Regulatory Affairs, shall issue, and thereafter revise,
as appropriate, guidance for conducting benefit and
cost analyses in support of making certifications
required by subsection (a).
(2) Contents.--Guidance issued under paragraph (1),
at a minimum, shall--
(A) require the identification of available
policy alternatives, including the alternative
of not regulating and any alternatives proposed
during periods for public comment;
(B) provide methods for estimating the
incremental benefits and costs associated with
plausible alternatives, including the use of
quantitative and qualitative measures;
(C) require an estimate of the nature and
extent of the incremental risk avoided by the
standard, effluent limitation, or other
regulatory requirement, including a statement
that places in context the nature and magnitude
of the estimated risk reduction; and
(D) require an estimate of the total social,
environmental, and economic costs of
implementing the standard, effluent limitation,
or other regulatory requirement.
(c) Exemptions.--The following shall not be subject to the
requirements of this section:
(1) The issuance of a permit.
(2) The implementation of any purely procedural
requirement.
(3) Water quality criteria established under section
304.
(4) Water quality based standards established under
section 303.
(d) Discretionary Exemptions.--The Administrator or the
Secretary, as appropriate, may exempt from this section any
regulatory requirement that is likely to result in an annual
increase in costs of less than $25,000,000. Such exemptions may
be made for specific regulatory requirements or classes of
regulatory requirements.
(e) General Rule on Applicability.--The requirements of this
section shall apply to any regulatory requirement described in
subsection (a)(1)(A) or guidance described in subsection
(a)(1)(B) that is issued after the last day of the 1-year
period beginning on the date of the enactment of this section.
(f) Significant Regulatory Actions and Guidance.--
(1) Applicability of requirements.--In addition to
the regulatory requirements and guidance referred to in
subsection (e), this section shall apply to--
(A) any standard, effluent limitation, or
other regulatory requirement issued under this
Act during the period described in paragraph
(2) which is likely to result in an annual
increase in cost of $100,000,000 or more; and
(B) any guidance issued under this Act during
the period described in paragraph (2) which, if
issued as a regulatory requirement, would be
likely to result in annual increase in cost of
$100,000,000 or more.
(2) Covered period.--The period described in this
paragraph is the period beginning on February 15, 1995,
and ending on the last day of the 1-year period
beginning on the date of the enactment of this Act.
(3) Review.--Any regulatory requirement described in
paragraph (1)(A) or guidance described in paragraph
(1)(B) which was issued before the date of the
enactment of this section shall be reviewed and, with
respect to each such requirement or guidance, the
Administrator or the Secretary, as appropriate, shall
based on such review--
(A) certify that the requirement or guidance
meets the requirements of this section without
revision; or
(B) reissue the requirement or guidance,
after providing notice and opportunity for
public comment, with such revisions as may be
necessary for compliance with the requirements
of this section.
(4) Deadline.--Any regulatory requirement described
in paragraph (1)(A) or guidance described in paragraph
(1)(B) for which the Administrator or the Secretary, as
appropriate, does not issue a certification or
revisions under paragraph (3) on or before the last day
of the 18-month period beginning on the date of the
enactment of this section shall cease to be effective
after such last day until the date on which such
certification or revisions are issued.
(g) Study.--Not later than 5 years after the date of the
enactment of this section, the Administrator, in consultation
with the Administrator of the Office of Information and
Regulatory Affairs, shall publish an analysis regarding the
precision and accuracy of benefit and cost estimates prepared
under this section. Such study, at a minimum, shall--
(1) compare estimates of the benefits and costs
prepared under this section to actual costs and
benefits achieved after implementation of regulations
or other requirements;
(2) examine and assess alternative analytic methods
for conducting benefit and cost analysis, including
health-health analysis; and
(3) make recommendations for the improvement of
benefit and cost analyses conducted under this section.
TITLE IV--PERMITS AND LICENSES
* * * * * * *
national pollutant discharge elimination system
Sec. 402. (a)(1) * * *
* * * * * * *
(6) Concentrated animal feeding operations.--For
purposes of this section, waste treatment systems,
including retention ponds or lagoons, used to meet the
requirements of this Act for concentrated animal
feeding operations, are not waters of the United
States. An existing concentrated animal feeding
operation that uses a natural topographic impoundment
or structure on the effective date of this Act, which
is not hydrologically connected to any other waters of
the United States, as a waste treatment system or
wastewater retention facility may continue to use that
natural topographic feature for waste storage
regardless of its size, capacity, or previous use.
(b) At any time after the promulgation of the guidelines
required by subsection (h)(2) of section 304 of this Act, the
Governor of each State desiring to administer its own permit
program for discharges into navigable waters within its
jurisdiction may submit to the Administrator a full and
complete discription of the program it proposes to establish
and administer under State law or under an interstate compact.
In addition, such State shall submit a statement from the
attorney general (or the attorney for those State water
pollution control agencies which have independent legal
counsel), or from the chief legal officer in the case of an
interstate agency, that the laws of such State, or the
interstate compact, as the case may be, provide adequate
authority to carry out the described program. The Administrator
shall approve each such submitted program unless he determines
that adequate authority does not exist:
(1) To issue permits which--
(A) apply, and insure compliance with, any applicable
requirements of sections 301, 302, 306, 307, and 403;
except that in no event shall a discharge limit in a
permit under this section be set at a level below the
lowest level that the pollutant can be reliably
quantified on an interlaboratory basis for a particular
test method, as determined by the Administrator using
approved analytical methods under section 304(h);
(B) are for fixed terms not exceeding [five] 10
years; [and]
* * * * * * *
(D) control the disposal of pollutants into wells;
and
(E) can be modified as necessary to address a
significant threat to human health and the environment;
* * * * * * *
(c)(1) Upon approval of a State program under this section,
the Administrator shall review administration of the program by
the State once every 3 years. Not later than ninety days after
the date on which a State has submitted a program (or revision
thereof) pursuant to subsection (b) of this section, the
Administrator shall suspend the issuance of permits under
subsection (a) of this section as to those discharges subject
to such program unless he determines that the State permit
program does not meet the requirements of subsection (b) of
this section or does not conform to the guidelines issued under
section 304(i)(2) of this Act. If the Administrator so
determines, he shall notify the State or any revisons or
modifications necessary to conform to such requirements or
guidelines.
* * * * * * *
(d)(1) * * *
(2) No permit shall issue (A) if the Administrator within
ninety days of the date of his notification under subsection
(b)(5) of this section objects in writing to the issuance of
such permit, or (B) if the Administrator within ninety days of
the date of transmittal of the proposed permit by the State
objects in writing to the issuance of such permit [as being
outside the guidelines and requirements of this Act] as
presenting a substantial risk to human health and the
environment. Whenever the Administrator objects to the issuance
of a permit under this paragraph such written objection shall
contain a statement of the reasons for such objection [and the
effluent limitations and conditions which such permit would
include if it were issued by the Administrator].
* * * * * * *
(h) In the event any condition of a permit for discharges
from a treatment works (as defined in section 212 of this Act)
which is publicly owned is violated, a State with a program
approved under subsection (b) of this section or the
Administrator, where no State program is approved or where the
discharge involves a significant source of pollutants to the
waters of the United States and the Administrator determines
pursuant to section 309(a) of this Act that a State with an
approved program has not commenced appropriate enforcement
action with respect to such permit, may proceed in a court of
competent jurisdiction to restrict or prohibit the introduction
of any pollutant into such treatment works by a source not
utilizing such treatment works prior to the finding that such
condition was violated.
* * * * * * *
(k) Compliance with a permit issued pursuant to this
section shall be deemed compliance, for purposes of sections
309 and 505, with sections 301, 302, 306, 307, and 403, except
any standard imposed under section 307 for a toxic pollutant
injurious to human health. In any enforcement action or citizen
suit under section 309 or 505 of this Act or applicable State
law alleging noncompliance with a technology-based effluent
limitation established pursuant to section 301, a permittee
shall be deemed in compliance with the technology-based
effluent limitation if the permittee demonstrates through
reference to information contained in the applicable rulemaking
record that the number of excursions from the technology-based
effluent limitation are no greater, on an annual basis, than
the number of excursions expected from the technology on which
the limit is based and that the discharges do not violate an
applicable water-quality based limitation or standard. Until
December 31, 1974, in any case where a permit for discharge has
been applied for pursuant to this section, but final
administrative disposition of such application has not been
made, such discharge shall not be a violation of (1) section
301, 306, or 402 of this Act, or (2) section 13 of the Act of
March 3, 1899, unless the Administrator or other plaintiff
proves that final administrative disposition of such
application has not been made because of the failure of the
applicant to furnish information reasonably required or
requested in order to process the application. For the 180-day
period beginning on the date of enactment of the Federal Water
Pollution Control Act Amendments of 1972, in the case of any
point source discharging any pollutant or combination of
pollutants immediately prior to such date of enactment which
source is not subject to section 13 of the Act of March 3,
1899, the discharge by such source shall not be a violation of
this Act if such a source applies for a permit for discharge
pursuant to this section within such 180-day period.
[(l) Limitation on Permit Requirement.--
[(1) Agricultural return flows.--The Administrator
shall not require a permit under this section for
discharges composed entirely of return flows from
irrigated agriculture, nor shall the Administrator
directly or indirectly, require any State to require
such a permit.
[(2) Stormwater runoff from oil, gas, and mining
operations.--The Administrator shall not require a
permit under this section, nor shall the Administrator
directly or indirectly require any State to require a
permit, for discharges of stormwater runoff from mining
operations or oil and gas exploration, production,
processing, or treatment operations or transmission
facilities, composed entirely of flows which are from
conveyances or systems of conveyances (including but
not limited to pipes, conduits, ditches, and channels)
used for collecting and conveying precipitation runoff
and which are not contaminated by contact with, or do
not come into contact with, any overburden, raw
material, intermediate products, finished product,
byproduct, or waste products located on the site of
such operations.]
(l) Intake Credits.--
(1) In general.--Notwithstanding any provision of
this Act, in any effluent limitation or other
limitation imposed under the permit program established
by the Administrator under this section, any State
permit program approved under this section (including
any program for implementation under section
118(c)(2)), any standards established under section
307(a), or any program for industrial users established
under section 307(b), the Administrator, as applicable,
shall or the State, as applicable, may provide credits
for pollutants present in or caused by intake water
such that an owner or operator of a point source is not
required to remove, reduce, or treat the amount of any
pollutant in an effluent below the amount of such
pollutant that is present in or caused by the intake
water for such facility--
(A)(i) if the source of the intake water and
the receiving waters into which the effluent is
ultimately discharged are the same;
(ii) if the source of the intake water meets
the maximum contaminant levels or treatment
techniques for drinking water contaminants
established pursuant to the Safe Drinking Water
Act for the pollutant of concern; or
(iii) if, at the time the limitation or
standard is established, the level of the
pollutant in the intake water is the same as or
lower than the amount of the pollutant in the
receiving waters, taking into account
analytical variability; and
(B) if, for conventional pollutants, the
constituents of the conventional pollutants in
the intake water are the same as the
constituents of the conventional pollutants in
the effluent.
(2) Allowance for incidental amounts.--In determining
whether the condition set forth in paragraph (1)(A)(i)
is being met, the Administrator shall or the State may,
as appropriate, make allowance for incidental amounts
of intake water from sources other than the receiving
waters.
(3) Credit for nonqualifying pollutants.--The
Administrator shall or a State may provide point
sources an appropriate credit for pollutants found in
intake water that does not meet the requirement of
paragraph (1).
(4) Monitoring.--Nothing in this section precludes
the Administrator or a State from requiring monitoring
of intake water, effluent, or receiving waters to
assist in the implementation of this section.
* * * * * * *
(o) Anti-Backsliding.--
(1) * * *
(2) Exceptions.--A permit with respect to which
paragraph (1) applies may be renewed, reissued, or
modified to contain a less stringent effluent
limitation applicable to a pollutant if--
(A) * * *
* * * * * * *
(D) the permittee has received a permit
modification under section 301(c), 301(g),
301(h), 301(i), 301(k), 301(n), 301(q), 301(r),
or 316(a); [or]
(E) the permittee has installed the treatment
facilities required to meet the effluent
limitations in the previous permit and has
properly operated and maintained the facilities
but has nevertheless been unable to achieve the
previous effluent limitations, in which case
the limitations in the reviewed, reissued, or
modified permit may reflect the level of
pollutant control actually achieved (but shall
not be less stringent than required by effluent
guidelines in effect at the time of permit
renewal, reissuance, or modification)[.]; or
(F) the permittee is taking pollution
prevention or water conservation measures that
produce a net environmental benefit, including,
but not limited to, measures that result in the
substitution of one pollutant for another
pollutant; increase the concentration of a
pollutant while decreasing the discharge flow;
or increase the discharge of a pollutant or
pollutants from one or more outfalls at a
permittee's facility, when accompanied by
offsetting decreases in the discharge of a
pollutant or pollutants from other outfalls at
the permittee's facility.
Subparagraph (B) shall not apply to any revised waste
load allocations or any alternative grounds for
translating water quality standards into effluent
limitations, except where the cumulative effect of such
revised allocations results in a decrease in the amount
of pollutants discharged into the concerned waters, and
such revised allocations are not the result of a
discharger eliminating or substantially reducing its
discharge of pollutants due to complying with the
requirements of this Act or for reasons otherwise
unrelated to water quality.
(4) Nonapplicability to publicly owned treatment
works.--The requirements of this subsection shall not
apply to permitted discharges from a publicly owned
treatment works if the treatment works demonstrates to
the satisfaction of the Administrator that--
(A) the increase in pollutants is a result of
conditions beyond the control of the treatment
works (such as fluctuations in normal source
water availabilities due to sustained drought
conditions); and
(B) effluent quality does not result in
impairment of water quality standards
established for the receiving waters.
[(p) Municipal and Industrial Stormwater Discharges.--
[(1) General rule.--Prior to October 1, 1994, the
Administrator or the State (in the case of a permit
program approved under section 402 of this Act) shall
not require a permit under this section for discharges
composed entirely of stormwater.
[(2) Exceptions.--Paragraph (1) shall not apply with
respect to the following stormwater discharges:
[(A) A discharge with respect to which a
permit has been issued under this section
before the date of the enactment of this
subsection.
[(B) A discharge associated with industrial
activity.
[(C) A discharge from a municipal separate
storm sewer system serving a population of
250,000 or more.
[(D) A discharge from a municipal separate
storm sewer system serving a population of
100,000 or more but less than 250,000.
[(E) A discharge for which the Administrator
or the State, as the case may be, determines
that the stormwater discharge contributes to a
violation of a water quality standard or is a
significant contributor of pollutants to waters
of the United States.
[(3) Permit requirements.--
[(A) Industrial discharges.--Permits for
discharges associated with industrial activity
shall meet all applicable provisions of this
section and section 301.
[(B) Municipal discharge.--Permits for
discharges from municipal storm sewers--
[(i) may be issued on a system- or
jurisdiction-wide basis;
[(ii) shall include a requirement to
effectively prohibit non-stormwater
discharges into the storm sewers; and
[(iii) shall require controls to
reduce the discharge of pollutants to
the maximum extent practicable,
including management practices, control
techniques and system, design and
engineering methods, and such other
provisions as the Administrator or the
State determines appropriate for the
control of such pollutants.
[(4) Permit application requirements.--
[(A) Industrial and large municipal
discharges.--Not later than 2 years after the
date of the enactment of this subsection, the
Administrator shall establish regulations
setting forth the permit application
requirements for stormwater discharges
described in paragraphs (2)(B) and (2)(C).
Applications for permits for such discharges
shall be filed no later than 3 years after such
date of enactment. Not later than 4 years after
such date of enactment the Administrator or the
State, as the case may be, shall issue or deny
each such permit. Any such permit shall provide
for compliance as expeditiously as practicable,
but in no event later than 3 years after the
date of issuance of such permit.
[(B) Other municipal discharges.--Not later
than 4 years after the date of the enactment of
this subsection, the Administrator shall
establish regulations setting forth the permit
application requirements for stormwater
discharges described in paragraph (2)(D).
Applications for permits for such discharges
shall be filed no later than 5 years after such
date of enactment. Not later than 6 years after
such date of enactment, the Administrator or
the State, as the case may be, shall issue or
deny each such permit. Any such permit shall
provide for compliance as expeditiously as
practicable, but in no event later than 3 years
after the date of issuance of such permit.
[(5) Studies.--The Administrator, in consultation
with the States, shall conduct a study for the purposes
of--
[(A) identifying those stormwater discharges
or classes of stormwater discharges for which
permits are not required pursuant to paragraphs
(1) and (2) of this subsection;
[(B) determining, to the maximum extent
practicable, the nature and extent of
pollutants in such discharges; and
[(C) establishing procedures and methods to
control stormwater discharges to the extent
necessary to mitigate impacts on water quality.
Not later than October 1, 1988, the Administrator shall
submit to Congress a report on the results of the study
described in subparagraphs (A) and (B). Not later than
October 1, 1989, the Administrator shall submit to
Congress a report on the results of the study described
in subparagraph (C).
[(6) Regulations.--Not later than October 1, 1993,
the Administrator, in consultation with State and local
officials, shall issue regulations (based on the
results of the studies conducted under paragraph (5))
which designate stormwater discharges, other than those
discharges described in paragraph (2), to be regulated
to protect water quality and shall establish a
comprehensive program to regulate such designated
sources. The program shall, at a minimum, (A) establish
priorities, (B) establish requirements for State
stormwater management programs, and (C) establish
expeditious deadlines. The program may include
performance standards, guidelines, guidance, and
management practices and treatment requirements, as
appropriate.]
(p) Permits for Remediating Party on Abandoned or Inactive
Mined Lands.--
(1) Applicability.--Subject to this subsection,
including the requirements of paragraph (3), the
Administrator, with the concurrence of the concerned
State or Indian tribe, may issue a permit to a
remediating party under this section for discharges
associated with remediation activity at abandoned or
inactive mined lands which modifies any otherwise
applicable requirement of sections 301(b), 302, and
403, or any subsection of this section (other than this
subsection).
(2) Application for a permit.--A remediating party
who desires to conduct remediation activities on
abandoned or inactive mined lands from which there is
or may be a discharge of pollutants to waters of the
United States or from which there could be a
significant addition of pollutants from nonpoint
sources may submit an application to the Administrator.
The application shall consist of a remediation plan and
any other information requested by the Administrator to
clarify the plan and activities.
(3) Remediation Plan.--The remediation plan shall
include (as appropriate and applicable) the following:
(A) Identification of the remediating party,
including any persons cooperating with the
concerned State or Indian tribe with respect to
the plan, and a certification that the
applicant is a remediating party under this
section.
(B) Identification of the abandoned or
inactive mined lands addressed by the plan.
(C) Identification of the waters of the
United States impacted by the abandoned or
inactive mined lands.
(D) A description of the physical conditions
at the abandoned or inactive mined lands that
are causing adverse water quality impacts.
(E) A description of practices, including
system design and construction plans and
operation and maintenance plans, proposed to
reduce, control, mitigate, or eliminate the
adverse water quality impacts and a schedule
for implementing such practices and, if it is
an existing remediation project, a description
of practices proposed to improve the project,
if any.
(F) An analysis demonstrating that the
identified practices are expected to result in
a water quality improvement for the identified
waters.
(G) A description of monitoring or other
assessment to be undertaken to evaluate the
success of the practices during and after
implementation, including an assessment of
baseline conditions.
(H) A schedule for periodic reporting on
progress in implementation of major elements of
the plan.
(I) A budget and identified funding to
support the activities described in the plan.
(J) Remediation goals and objectives.
(K) Contingency plans.
(L) A description of the applicant's legal
right to enter and conduct activities.
(M) The signature of the applicant.
(N) Identification of the pollutant or
pollutants to be addressed by the plan.
(4) Permits.--
(A) Contents.--Permits issued by the
Administrator pursuant to this subsection
shall--
(i) provide for compliance with and
implementation of a remediation plan
which, following issuance of the
permit, may be modified by the
applicant after providing notification
to and opportunity for review by the
Administrator;
(ii) require that any modification of
the plan be reflected in a modified
permit;
(iii) require that if, at any time
after notice to the remediating party
and opportunity for comment by the
remediating party, the Administrator
determines that the remediating party
is not implementing the approved
remediation plan in substantial
compliance with its terms, the
Administrator shall notify the
remediating party of the determination
together with a list specifying the
concerns of the Administrator;
(iv) provide that, if the identified
concerns are not resolved or a
compliance plan approved within 180
days of the date of the notification,
the Administrator may take action under
section 309 of this Act;
(v) provide that clauses (iii) and
(iv) not apply in the case of any
action under section 309 to address
violations involving gross negligence
(including reckless, willful, or wanton
misconduct) or intentional misconduct
by the remediating party or any other
person;
(vi) not require compliance with any
limitation issued under sections
301(b), 302, and 403 or any requirement
established by the Administrator under
any subsection of this section (other
than this subsection); and
(vii) provide for termination of
coverage under the permit without the
remediating party being subject to
enforcement under sections 309 and 505
of this Act for any remaining
discharges--
(I) after implementation of
the remediation plan;
(II) if a party obtains a
permit to mine the site; or
(III) upon a demonstration by
the remediating party that the
surface water quality
conditions due to remediation
activities at the site, taken
as a whole, are equal to or
superior to the surface water
qualities that existed prior to
initiation of remediation.
(B) Limitations.--The Administrator shall
only issue a permit under this section,
consistent with the provisions of this
subsection, to a remediating party for
discharges associated with remediation action
at abandoned or inactive mined lands if the
remediation plan demonstrates with reasonable
certainty that the actions will result in an
improvement in water quality.
(C) Public participation.--The Administrator
may only issue a permit or modify a permit
under this section after complying with
subsection (b)(3).
(D) Effect of failure to comply with
permit.--Failure to comply with terms of a
permit issued pursuant to this subsection shall
not be deemed to be a violation of an effluent
standard or limitation issued under this Act.
(E) Limitations on statutory construction.--
This subsection shall not be construed--
(i) to limit or otherwise affect the
Administrator's powers under section
504; or
(ii) to preclude actions pursuant to
section 309 or 505 for any violations
of sections 301(a), 302, 402, and 403
that may have existed for the abandoned
or inactive mined land prior to
initiation of remediation covered by a
permit issued under this subsection,
unless such permit covers remediation
activities implemented by the permit
holder prior to issuance of the permit.
(5) Definitions.--In this subsection the following
definitions apply:
(A) Remediating party.--The term
``remediating party'' means--
(i) the United States (on non-Federal
lands), a State or its political
subdivisions, or an Indian tribe or
officers, employees, or contractors
thereof; and
(ii) any person acting in cooperation
with a person described in clause (i),
including a government agency that owns
abandoned or inactive mined lands for
the purpose of conducting remediation
of the mined lands or that is engaging
in remediation activities incidental to
the ownership of the lands.
Such term does not include any person who,
before or following issuance of a permit under
this section, directly benefited from or
participated in any mining operation (including
exploration) associated with the abandoned or
inactive mined lands.
(B) Abandoned or inactive mined lands.--The
term ``abandoned or inactive mined lands''
means lands that were formerly mined and are
not actively mined or in temporary shutdown at
the time of submission of the remediation plan
and issuance of a permit under this section.
(C) Mined lands.--The term ``mined lands''
means the surface or subsurface of an area
where mining operations, including exploration,
extraction, processing, and beneficiation, have
been conducted. Such term includes private ways
and roads appurtenant to such area, land
excavations, underground mine portals, adits,
and surface expressions associated with
underground workings, such as glory holes and
subsidence features, mining waste, smelting
sites associated with other mined lands, and
areas where structures, facilities, equipment,
machines, tools, or other material or property
which result from or have been used in the
mining operation are located.
(6) Regulations.--The Administrator may issue
regulations establishing more specific requirements
that the Administrator determines would facilitate
implementation of this subsection. Before issuance of
such regulations, the Administrator may establish, on a
case-by-case basis after notice and opportunity for
public comment as provided by subsection (b)(3), more
specific requirements that the Administrator determines
would facilitate implementation of this subsection in
an individual permit issued to the remediating party.
(q) Biological Monitoring Procedures.--
(1) Responding to exceedances.--If a permit issued
under this section contains terms, conditions, or
limitations requiring biological monitoring or whole
effluent toxicity testing designed to meet criteria for
whole effluent toxicity based on laboratory biological
monitoring or assessment methods described in section
303(c)(2)(B), the permit shall establish procedures for
responding to an exceedance of such criteria that
includes analysis, identification, reduction, or, where
feasible, elimination of any effluent toxicity. The
failure of a biological monitoring test or whole
effluent toxicity test shall not result in a finding of
a violation under this Act, unless it is demonstrated
that the permittee has failed to comply with such
procedures.
(2) Discontinuance of use.--The permit shall allow
the permittee to discontinue such procedures--
(A) if the permittee is an entity, other than
a publicly owned treatment works, if the
permittee demonstrates through a field bio-
assessment study that a balanced and healthy
population of aquatic species indigenous, or
representative of indigenous, and relevant to
the type of waters exists in the waters that
are affected by the discharge, and if the
applicable water quality standards are met for
such waters; or
(B) if the permittee is a publicly owned
treatment works, the source or cause of such
toxicity cannot, after thorough investigation,
be identified.
(r) Watershed Management.--
(1) In general.--Notwithstanding any other provision
of this Act, a permit may be issued under this section
with a limitation that does not meet applicable water
quality standards if--
(A) the receiving water is in a watershed
with a watershed management plan that has been
approved pursuant to section 321;
(B) the plan includes assurances that water
quality standards will be met within the
watershed by a specified date; and
(C) the point source does not have a history
of significant noncompliance with its effluent
limitations under a permit issued under this
section, as determined by the Administrator or
a State with authority to issue permits under
this section.
(2) Synchronized permit terms.--Notwithstanding
subsection (b)(1)(B), the term of a permit issued under
this section may be extended for an additional period
if the discharge is located in a watershed management
unit for which a watershed management plan will be
developed pursuant to section 321. Permits extended
under this paragraph shall be synchronized with the
approval of the watershed management plan of a State
adopted pursuant to section 321.
(s) Combined Sewer Overflows.--
(1) Requirement for permits.--Each permit issued
pursuant to this section for a discharge from a
combined storm and sanitary sewer shall conform with
the combined sewer overflow control policy signed by
the Administrator on April 11, 1994.
(2) Term of permit.--
(A) Compliance deadline.--Notwithstanding any
compliance schedule under section 301(b), or
any permit limitation under section
402(b)(1)(B), the Administrator (or a State
with a program approved under subsection (b))
may issue a permit pursuant to this section for
a discharge from a combined storm and sanitary
sewer, that includes a schedule for compliance
with a long-term control plan under the control
policy referred to in paragraph (1), for a term
not to exceed 15 years.
(B) Extension.--Notwithstanding the
compliance deadline specified in subparagraph
(A), the Administrator or a State with a
program approved under subsection (b) shall
extend, on request of an owner or operator of a
combined storm and sanitary sewer and subject
to subparagraph (C), the period of compliance
beyond the last day of the 15-year period--
(i) if the Administrator or the State
determines that compliance by such last
day is not within the economic
capability of the owner or operator;
and
(ii) if the owner or operator
demonstrates to the satisfaction of the
Administrator or the State reasonable
further progress towards compliance
with a long-term control plan under the
control policy referred to in paragraph
(1).
(C) Limitations on extensions.--
(i) Extension not appropriate.--
Notwithstanding subparagraph (B), the
Administrator or the State need not
grant an extension of the compliance
deadline specified in subparagraph (A)
if the Administrator or the State
determines that such an extension is
not appropriate.
(ii) New York-New Jersey.--Prior to
granting an extension under
subparagraph (B) with respect to a
combined sewer overflow discharge
originating in the State of New York or
New Jersey and affecting the other of
such States, the Administrator or the
State from which the discharge
originates, as the case may be, shall
provide written notice of the proposed
extension to the other State and shall
not grant the extension unless the
other State approves the extension or
does not disapprove the extension
within 90 days of receiving such
written notice.
(3) Savings clause.--Any consent decree or court
order entered by a United States district court, or
administrative order issued by the Administrator,
before the date of the enactment of this subsection
establishing any deadlines, schedules, or timetables,
including any interim deadlines, schedules, or
timetables, for the evaluation, design, or construction
of treatment works for control or elimination of any
discharge from a municipal combined storm and sanitary
sewer system shall be modified upon motion or request
by any party to such consent decree or court order, to
extend to December 31, 2009, at a minimum, any such
deadlines, schedules, or timetables, including any
interim deadlines, schedules, or timetables as is
necessary to conform to the policy referred to in
paragraph (1) or otherwise achieve the objectives of
this subsection. Notwithstanding the preceding
sentence, the period of compliance with respect to a
discharge referred to in paragraph (2)(C)(ii) may only
be extended in accordance with paragraph (2)(C)(ii).
(t) Sanitary Sewer Overflows.--
(1) Development of policy.--Not later than 2 years
after the date of the enactment of this subsection, the
Administrator, in consultation with State and local
governments and water authorities, shall develop and
publish a national control policy for municipal
separate sanitary sewer overflows. The national policy
shall recognize and address regional and economic
factors.
(2) Issuance of permits.--Each permit issued pursuant
to this section for a discharge from a municipal
separate sanitary sewer shall conform with the policy
developed under paragraph (1).
(3) Compliance deadline.--Notwithstanding any
compliance schedule under section 301(b), or any permit
limitation under subsection (b)(1)(B), the
Administrator or a State with a program approved under
subsection (b) may issue a permit pursuant to this
section for a discharge from a municipal separate
sanitary sewer due to stormwater inflows or
infiltration. The permit shall include at a minimum a
schedule for compliance with a long-term control plan
under the policy developed under paragraph (1), for a
term not to exceed 15 years.
(4) Extension.--Notwithstanding the compliance
deadline specified in paragraph (3), the Administrator
or a State with a program approved under subsection (b)
shall extend, on request of an owner or operator of a
municipal separate sanitary sewer, the period of
compliance beyond the last day of such 15-year period
if the Administrator or the State determines that
compliance by such last day is not within the economic
capability of the owner or operator, unless the
Administrator or the State determines that the
extension is not appropriate.
(5) Effect on other actions.--Before the date of
publication of the policy under paragraph (1), the
Administrator or Attorney General shall not initiate
any administrative or judicial civil penalty action in
response to a municipal separate sanitary sewer
overflow due to stormwater inflows or infiltration.
(6) Savings clause.--Any consent decree or court
order entered by a United States district court, or
administrative order issued by the Administrator,
before the date of the enactment of this subsection
establishing any deadlines, schedules, or timetables,
including any interim deadlines, schedules, or
timetables, for the evaluation, design, or construction
of treatment works for control or elimination of any
discharge from a municipal separate sanitary sewer
shall be modified upon motion or request by any party
to such consent decree or court order, to extend to
December 31, 2009, at a minimum, any such deadlines,
schedules, or timetables, including any interim
deadlines, schedules, or timetables as is necessary to
conform to the policy developed under paragraph (1) or
otherwise achieve the objectives of this subsection.
[Permits for dredged or fill material
[Sec. 404. (a) The Secretary may issue permits, after
notice and opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at specified
disposal sites. Not later than the fifteenth day after the date
an applicant submits all the information required to complete
an application for a permit under this subsection, the
Secretary shall publish the notice required by this subsection.
[(b) Subject to subsection (c) of this section, each such
disposal site shall be specified for each such permit by the
Secretary (1) through the application of guidelines developed
by the Administrator, in conjunction with the Secretary which
guidelines shall be based upon criteria comparable to the
criteria applicable to the territorial seas, the contiguous
zone, and the ocean under section 403(c), and (2) in any case
where such guidelines under clause (1) alone would prohibit the
specification of a site, through the application additionally
of the economic impact of the site on navigation and anchorage.
[(c) 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.
[(d) The term ``Secretary'' as used in this section means
the Secretary of the Army, acting through the Chief of
Engineers.
[(e)(1) In carrying out his functions relating to the
discharge of dredged or fill material under this section, the
Secretary may, after notice and opportunity for public hearing,
issue general permits on a State, regional, or nationwide basis
for any category of activities involving discharges of dredged
or fill material if the Secretary determines that the
activities in such category are similar in nature, will cause
only minimal adverse environmental effects when performed
separately, and will have only minimal cumulative adverse
effect on the environment. Any general permit issued under this
subsection shall (A) be based on the guidelines described in
subsection (b)(1) of this section, and (B) set forth the
requirements and standards which shall apply to any activity
authorized by such general permit.
[(2) No general permit issued under this subsection shall
be for a period of more than five years after the date of its
issuance and such general permit may be revoked or modified by
the Secretary if, after opportunity for public hearing, the
Secretary determines that the activities authorized by such
general permit have an adverse impact on the environment or
such activities are more appropriately authorized by individual
permits.
[(f)(1) Except as provided in paragraph (2) of this
subsection, the discharge of dredge or fill material--
[(A) from normal farming, silviculture, and ranching
activities such as plowing, seeding, cultivating, minor
drainage, harvesting for the production of food, fiber,
and forest products, or upland soil and water
conservation practices;
[(B) for the purpose of maintenance, including
emergency reconstruction of recently damaged parts, of
currently serviceable structures such as dikes, dams,
levees, groins, riprap, breakwaters, causeways, and
bridge abutments or approaches, and transportation
structures;
[(C) for the purpose of construction or maintenance
of farm or stock ponds or irrigation ditches, or the
maintenance of drainage ditches;
[(D) for the purpose of construction of temporary
sedimentation basins on a construction site which does
not include placement of fill material into the
navigable waters;
[(E) for the purpose of construction or maintenance
of farm roads or forest roads, or temporary roads for
moving mining equipment, where such roads are
constructed and maintained, in accordance with best
management practices, to assure that flow and
circulation patterns and chemical and biological
characteristics of the navigable waters are not
impaired, that the reach of the navigable waters is not
reduced, and that any adverse effect on the aquatic
environment will be otherwise minimized;
[(F) resulting from any activity with respect to
which a State has an approved program under section
208(b)(4) which meets the requirements of subparagraphs
(B) and (C) of such section,
is not prohibited by or otherwise subject to regulation under
this section or section 301(a) or 402 of this Act (except for
effluent standards or prohibitions under section 307).
[(2) Any discharge of dredged or fill material into the
navigable waters incidental to any activity having as its
purpose bringing an area of the navigable waters into a use to
which it was not previously subject, where the flow or
circulation of navigable waters may be impaired or the reach of
such waters be reduced, shall be required to have a permit
under this section.
[(g)(1) The Governor of any State desiring to administer
its own individual and general permit program for the discharge
of dredged or fill material into the navigable waters (other
than those waters which are presently used, or are susceptible
to use in their natural condition or by reasonable improvement
as a means to transport interstate or foreign commerce
shoreward to their ordinary high water mark, including all
waters which are subject to the ebb and flow of the tide
shoreward to their mean high water mark, or mean higher high
water mark on the west coast, including wetlands adjacent
thereto), within its jurisdiction may submit to the
Administrator a full and complete description of the program it
proposes to establish and administer under State law or under
an interstate compact. In addition, such State shall submit a
statement from the attorney general (or the attorney for those
State agencies which have independent legal counsel), or from
the chief legal officer in the case of an interstate agency,
that the laws of such State, or the interstate compact, as the
case may be, provide adequate authority to carry out the
described program.
[(2) Not later than the tenth day after the date of the
receipt of the program, and statement submitted by any State
under paragraph (1) of this subsection, the Administrator shall
provide copies of such program and statement to the Secretary
and the Secretary of the Interior, acting through the Director
of the United States Fish and Wildlife Service.
[(3) Not later than the ninetieth day after the date of the
receipt by the Administrator of the program and statement
submitted by any State, under paragraph (1) of this subsection,
the Secretary and the Secretary of the Interior, acting through
the Director of the United States Fish and Wildlife Service,
shall submit any comments with respect to such program and
statement to the Administrator in writing.
[(h)(1) Not later than the one-hundred-twentieth day after
the date of the receipt by the Administrator of a program and
statement submitted by any State under paragraph (1) of this
subsection, the Administrator shall determine, taking into
account any comments submitted by the Secretary and the
Secretary of the Interior, acting through the Director of the
United States Fish and Wildlife Service, pursuant to subsection
(g) of this section, whether such State has the following
authority with respect to the issuance of permits pursuant to
such program:
[(A) To issue permits which--
[(i) apply, and assure compliance with, any
applicable requirements of this section,
including, but not limited to, the guidelines
established under subsection (b)(1) of this
section, and sections 307 and 403 of this Act;
[(ii) are for fixed terms not exceeding five
years; and
[(iii) can be terminated or modified for
cause including, but not limited to, the
following:
[(I) violation of any condition of
the permit;
[(II) obtaining a permit by
misrepresentation, or failure to
disclose fully all relevant facts;
[(III) change in any condition that
requires either a temporary or
permanent reduction or elimination of
the permitted discharge.
[(B) To issue permits which apply, and assure
compliance with, all applicable requirements of section
308 of this Act, or to inspect, monitor, enter, and
requrie reports to at least the same extent as required
in section 308 of this Act.
[(C) To assure that the public, and any other State
the waters of which may be affected, receive notice of
each application for a permit and to provide an
opportunity for public hearing before a ruling on each
such application.
[(D) To assure that the Administrator receives notice
of each application (including a copy thereof) for a
permit.
[(E) To assure that any State (other than the
permitting State), whose waters may be affected by the
issuance of a permit may submit written recommendation
to the permitting State (and the Administrator) with
respect to any permit application and, if any part of
such written recommendations are not accepted by the
permitting State, that the permitting State will notify
such affected State (and the Administrator) in writing
of its failure to so accept such recommendations
together with its reasons for so doing.
[(F) To assure that no permit will be issued if, in
the judgment of the Secretary, 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
thereby.
[(G) To abate violations of the permit or the permit
program, including civil and criminal penalties and
other ways and means of enforcement.
[(H) To assure continued coordination with Federal
and Federal-State water-related planning and review
processes.
[(2) If, with respect to a State program submitted under
subsection (g)(1) of this section, the Administrator determines
that such State--
[(A) has the authority set forth in paragraph (1) of
this subsection, the Administrator shall approve the
program and so notify (i) such State, and (ii) the
Secretary, who upon subsequent notification from such
State that it is administering such program, shall
suspend the issuance of permits under subsection (a)
and (e) of this section for activities with respect to
which a permit may be issued pursuant to such State
program; or
[(B) does not have the authority set forth in
paragraph (1) of this subsection, the Administrator
shall so notify such State, which notification shall
also describe the revisions or modifications necessary
so that such State may resubmit such program for a
determination by the Administrator under this
subsection.
[(3) If the Administrator fails to make a determination
with respect to any program submitted by a State under
subsection (g)(1) of this section within one-hundred-twenty
days after the date of the receipt of such program, such
program shall be deemed approved pursuant to paragraph (2)(A)
of this subsection and the Administrator shall so notify such
State and the Secretary who, upon subsequent notification from
such State that it is administering such program, shall suspend
the issuance of permits under subsection (a) and (e) of this
section for activities with respect to which a permit may be
issued by such State.
[(4) After the Secretary receives notification from the
Administrator under paragraph (2) or (3) of this subsection
that a State permit program has been approved, the Secretary
shall transfer any applications for permits pending before the
Secretary for activities with respect to which a permit may be
issued pursuant to such State program to such State for
appropriate action.
[(5) Upon notification from a State with a permit program
approved under this subsection that such State intends to
administer and enforce the terms and conditions of a general
permit issed by the Secretary under subsection (e) of this
section with respect to activities in such State to which such
general permit applies, the Secretary shall suspend the
administration and enforcement of such general permit with
respect to such activities.
[(i) Whenever the Administrator determines after public
hearing that a State is not administering a program approved
under section (h)(2)(A) of this section, in accordance with
this section, including, but not limited to, the guidelines
established under subsection (b)(1) of this section, the
Administrator shall so notify the State, and, if appropriate
corrective action is not taken within a reasonable time, not to
exceed ninety days after the date of the receipt of such
notification, the Administrator shall (1) withdraw approval of
such program until the Administrator determines such corrective
action has been taken, and (2) notify the Secretary that the
Secretary shall resume the program for the issuance of permits
under subsections (a) and (e) of this section for activities
with respect to which the State was issuing permits and that
such authority of the Secretary shall continue in effect until
such time as the Administrator makes the determination
described in clause (1) of this subsection and such State again
has an approved program.
[(j) Each State which is administering a permit program
pursuant to this section shall transmit to the Administrator
(1) a copy of each permit application received by such State
and provide notice to the Administrator of every action related
to the consideration of such permit application, including each
permit proposed to be issued by such State, and (2) a copy of
each proposed general permit which such State intends to issue.
Not later than the tenth day after the date of the receipt of
such permit application or such proposed general permit, the
Administrator shall provide copies of such permit application
or such proposed general permit to the Secretary and the
Secretary of the Interior, acting through the Director of the
United States Fish and Wildlife Service. If the Administrator
intends to provide written comments to such State with respect
to such permit application or such proposed general permit, he
shall so notify such State not later than the thirtieth day
after the date of the receipt of such application or such
proposed general permit and provide such written comments to
such State, after consideration of any comments made in writing
with respect to such application or such proposed general
permit by the Secretary and the Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, not later than the ninetieth day after the
date of such receipt. If such State is so notified by the
Administrator, it shall not issue the proposed permit until
after the receipt of such comments from the Administrator, or
after such ninetieth day, whichever first occurs. Such State
shall not issue such proposed permit after such ninetieth day
if it has received such written comments in which the
Administrator objects (A) to the issuance of such proposed
permit and such proposed permit is one that has been submitted
to the Administrator pursuant to subsection (h)(1)(E), or (B)
to the issuance of such proposed permit as being outside the
requirements of this section, including, but not limited to,
the guidelines developed under subsection (b)(1) of this
section unless it modifies such proposed permit in accordance
with such comments. Whenever the Administrator objects to the
issuance of a permit under the preceding sentence such written
objection shall contain a statement of the reasons for such
objection and the conditions which such permit would include if
it were issued by the Administrator. In any case where the
Administrator objects to the issuance of a permit, on request
of the State, a public hearing shall be held by the
Administrator on such objection. If the State does not resubmit
such permit revised to meet such objection within 30 days after
completion of the hearing or, if no hearing is requested within
90 days after the date of such objection, the Secretary may
issue the permit pursuant to subsection (a) or (e) of this
section, as the case may be, for such source in accordance with
the guidelines and requirements of this Act.
[(k) In accordance with guidelines promulgated pursuant to
subsection (i)(2) of section 304 of this Act, the Administrator
is authorized to waive the requirements of subsection (j) of
this section at the time of the approval of a program pursuant
to subsection (h)(2)(A) of this section for any category
(including any class, type, or size within such category) of
discharge within the State submitting such program.
[(l) The Administrator shall promulgate regulations
establishing categories of discharges which he determines shall
not be subject to the requirements of subsection (j) of this
section in any State with a program approved pursuant to
subsection (h)(2)(A) of this section. The Administrator may
distinguish among classes, types, and sizes within any category
of discharges.
[(m) Not later than the ninetieth day after the date on
which the Secretary notifies the Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service that (1) an application for a permit under
subsection (a) of this section has been received by the
Secretary, or (2) the Secretary proposes to issue a general
permit under subsection (e) of this section, the Secretary of
the Interior, acting through the Director of the United States
Fish and Wildlife Service, shall submit any comments with
respect to such application or such proposed general permit in
writing to the Secretary.
[(n) Nothing in this section shall be construed to limit
the authority of the Administrator to take action pursuant to
section 309 of this Act.
[(o) A copy of each permit application and each permit
issued under this section shall be available to the public.
Such permit application or portion thereof, shall further be
available on request for the purpose of reproduction.
[(p) Compliance with a permit issued pursuant to this
section, including any activity carried out pursuant to a
general permit issued under this section, shall be deemed
compliance, for purposes of sections 309 and 505, with sections
301, 307, and 403.
[(q) Not later than the one-hundred-eightieth day after the
date of enactment of this subsection, the Secretary shall enter
into agreements with the Administrator, the Secretaries of the
Departments of Agriculture, Commerce, Interior, and
Transportation, and the heads of other appropriate Federal
agencies to minimize, to the maximum extent practicable,
duplication, needless paperwork, and delays in the issuance of
permits under this section. Such agreements shall be developed
to assure that, to the maximum extent practicable, a decision
with respect to an application for a permit under subsection
(a) of this section will be made not later than the ninetieth
day after the date the notice of such application is published
under subsection (a) of this section.
[(r) The discharge of dredged or fill material as part of
the construction of a Federal project specifically authorized
by Congress, whether prior to or on or after the date of
enactment of this subsection, is not prohibited by or otherwise
subject to regulation under this section, or a State program
approved under this section, or section 301(a) or 402 of the
Act (except for effluent standards or prohibitions under
section 307), if information on the effects of such discharge,
including consideration of the guidelines developed under
subsection (b)(1) of this section, is included in an
environmental impact statement for such project pursuant to the
National Environmental Policy Act of 1969 and such
environmental impact statement has been submitted to Congress
before the actual discharge of dredged or fill material in
connection with the construction of such project and prior to
either authorization of such project or an appropriation of
funds for each construction.
[(s)(1) Whenever on the basis of any information available
to him the Secretary finds that any person is in violation of
any condition or limitation set forth in a permit issued by the
Secretary under this section, the Secretary shall issue an
order requiring such persons to comply with such condition or
limitation, or the Secretary shall bring a civil action in
accordance with paragraph (3) of this subsection.
[(2) A copy of any order issued under this subsection shall
be sent immediately by the Secretary to the State in which the
violation occurs and other affected States. Any order issued
under this subsection shall be by personal service and shall
state with reasonable specificity the nature of the violation,
specify a time for compliance, not to exceed thirty days, which
the Secretary determines is reasonable, taking into account the
seriousness of the violation and any good faith efforts to
comply with applicable requirements. In any case in which an
order under this subsection is issued to a corporation, a copy
of such order shall be served on any appropriate corporate
officers.
[(3) The Secretary is authorized to commence a civil action
for appropriate relief, including a permanent or temporary
injunction for any violation for which he is authorized to
issue a compliance order under paragraph (1) of this
subsection. Any action under this paragraph may be brought in
the district court of the United States for the district in
which the defendant is located or resides or is doing business,
and such court shall have jurisdiction to restrain such
violation and to require compliance. Notice of the commencement
of such action shall be given immediately to the appropriate
State.
[(4) Any person who violates any condition or limitation in
a permit issued by the Secretary under this section, and any
person who violates any order issued by the Secretary under
paragraph (1) of this subsection, shall be subject to a civil
penalty not to exceed $25,000 per day for each violation. In
determining the amount of a civil penalty the court shall
consider the seriousness of the violation or violations, the
economic benefit (if any) resulting from the violation, any
history of such violations, any good-faith efforts to comply
with the applicable requirements, the economic impact of the
penalty on the violator, and such other matters as justice may
require.
[(t) Nothing in the section shall preclude or deny the
right of any State or interstate agency to control the
discharge of dredged or fill material in any portion of the
navigable waters within the jurisdiction of such State,
including any activity of any Federal agency, and each such
agency shall comply with such State or interstate requirements
both substantive and procedural to control the discharge of
dredged or fill material to the same extent that any person is
subject to such requirements. This section shall not be
construed as affecting or impairing the authority of the
Secretary to maintain navigation.]
SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WATERS OF THE UNITED
STATES.
(a) Prohibited Activities.--No person shall undertake an
activity in wetlands or waters of the United States unless such
activity is undertaken pursuant to a permit issued by the
Secretary or is otherwise authorized under this section.
(b) Authorized Activities.--
(1) Permits.--The Secretary is authorized to issue
permits authorizing an activity in wetlands or waters
of the United States in accordance with the
requirements of this section.
(2) Nonpermit activities.--An activity in wetlands or
waters of the United States may be undertaken without a
permit from the Secretary if that activity is
authorized under subsection (e)(6) or (e)(8) or is
exempt from the requirements of this section under
subsection (f) or other provisions of this section.
(c) Wetlands Classification.--
(1) Regulations; applications.--
(A) Deadline for issuance of regulations.--
Not later than 1 year after the date of the
enactment of the Comprehensive Wetlands
Conservation and Management Act of 1995, the
Secretary shall issue regulations to classify
wetlands as type A, type B, or type C wetlands
depending on the relative ecological
significance of the wetlands.
(B) Application requirement.--Any person
seeking to undertake activities in wetlands or
waters of the United States for which a permit
is required under this section shall make
application to the Secretary identifying the
site of such activity and requesting that the
Secretary determine, in accordance with
paragraph (3) of this subsection, the
classification of the wetlands in which such
activity is proposed to occur. The applicant
may also provide such additional information
regarding such proposed activity as may be
necessary or appropriate for purposes of
determining the classification of such wetlands
or whether and under what conditions the
proposed activity may be permitted to occur.
(2) Deadlines for classifications.--
(A) General rule.--Except as provided in
subparagraph (B) of this paragraph, within 90
days following the receipt of an application
under paragraph (1), the Secretary shall
provide notice to the applicant of the
classification of the wetlands that are the
subject of such application and shall state in
writing the basis for such classification. The
classification of the wetlands that are the
subject of the application shall be determined
by the Secretary in accordance with the
requirements for classification of wetlands
under paragraph (3) and subsection (i).
(B) Rule for advance classifications.--In the
case of an application proposing activities
located in wetlands that are the subject of an
advance classification under subsection (h),
the Secretary shall provide notice to the
applicant of such classification within thirty
days following the receipt of such application,
and shall provide an opportunity for review of
such classification under paragraph (5) and
subsection (i).
(3) Classification system.--Upon application under
this subsection, the Secretary shall--
(A) classify as type A wetlands those
wetlands that are of critical significance to
the long-term conservation of the aquatic
environment of which such wetlands are a part
and which meet the following requirements:
(i) such wetlands serve critical
wetlands functions, including the
provision of critical habitat for a
concentration of avian, aquatic, or
wetland dependent wildlife;
(ii) such wetlands consist of or may
be a portion of ten or more contiguous
acres and have an inlet or outlet for
relief of water flow; except that this
requirement shall not operate to
preclude the classification as type A
wetlands lands containing prairie
pothole features, playa lakes, or
vernal pools if such lands otherwise
meet the requirements for type A
classification under this paragraph;
(iii) there exists a scarcity within
the watershed or aquatic environment of
identified functions served by such
wetlands such that the use of such
wetlands for an activity in wetlands or
waters of the United States would
seriously jeopardize the availability
of these identified wetlands functions;
and
(iv) there is unlikely to be an
overriding public interest in the use
of such wetlands for purposes other
than conservation;
(B) classify as type B wetlands those
wetlands that provide habitat for a significant
population of wetland dependent wildlife or
provide other significant wetlands functions,
including significant enhancement or protection
of water quality or significant natural flood
control; and
(C) classify as type C wetlands all wetlands
that--
(i) serve limited wetlands functions;
(ii) serve marginal wetlands
functions but which exist in such
abundance that regulation of activities
in such wetlands is not necessary for
conserving important wetlands
functions;
(iii) are prior converted cropland;
(iv) are fastlands; or
(v) are wetlands within industrial,
commercial, or residential complexes or
other intensely developed areas that do
not serve significant wetlands
functions as a result of such location.
(4) Request for determination of jurisdiction.--
(A) In general.--A person who holds an
ownership interest in property, or who has
written authorization from such a person, may
submit a request to the Secretary identifying
the property and requesting the Secretary to
make one or more of the following
determinations with respect to the property:
(i) Whether the property contains
waters of the United States.
(ii) If the determination under
clause (i) is made, whether any portion
of the waters meets the requirements
for delineation as wetland under
subsection (g).
(iii) If the determination under
clause (ii) is made, the classification
of each wetland on the property under
this subsection.
(B) Provision of information.--The person
shall provide such additional information as
may be necessary to make each determination
requested under subparagraph (A).
(C) Determination and notification by the
secretary.--Not later than 90 days after
receipt of a request under subparagraph (A),
the Secretary shall--
(i) notify the person submitting the
request of each determination made by
the Secretary pursuant to the request;
and
(ii) provide written documentation of
each determination and the basis for
each determination.
(D) Authority to seek immediate review.--Any
person authorized under this paragraph to
request a jurisdictional determination may seek
immediate judicial review of any such
jurisdictional determination or may proceed
under subsection (i).
(5) De novo determination after advance
classification.--Within 30 days of receipt of notice of
an advance classification by the Secretary under
paragraph (2)(B) of this subsection, an applicant may
request the Secretary to make a de novo determination
of the classification of wetlands that are the subject
of such notice.
(d) Right to Compensation.--
(1) In general.--The Federal Government shall
compensate an owner of property whose use of any
portion of that property has been limited by an agency
action under this section that diminishes the fair
market value of that portion by 20 percent or more. The
amount of the compensation shall equal the diminution
in value that resulted from the agency action. If the
diminution in value of a portion of that property is
greater than 50 percent, at the option of the owner,
the Federal Government shall buy that portion of the
property for its fair market value.
(2) Duration of limitation on use.--Property with
respect to which compensation has been paid under this
section shall not thereafter be used contrary to the
limitation imposed by the agency action, even if that
action is later rescinded or otherwise vitiated.
However, if that action is later rescinded or otherwise
vitiated, and the owner elects to refund the amount of
the compensation, adjusted for inflation, to the
Treasury of the United States, the property may be so
used.
(3) Effect of state law.--If a use is a nuisance as
defined by the law of a State or is already prohibited
under a local zoning ordinance, no compensation shall
be made under this section with respect to a limitation
on that use.
(4) Exceptions.--
(A) Prevention of hazard to health or safety
or damage to specific property.--No
compensation shall be made under this section
with respect to an agency action the primary
purpose of which is to prevent an
identifiable--
(i) hazard to public health or
safety; or
(ii) damage to specific property
other than the property whose use is
limited.
(B) Navigation servitude.--No compensation
shall be made under this section with respect
to an agency action pursuant to the Federal
navigation servitude, as defined by the courts
of the United States, except to the extent such
servitude is interpreted to apply to wetlands.
(5) Procedure.--
(A) Request of owner.--An owner seeking
compensation under this section shall make a
written request for compensation to the agency
whose agency action resulted in the limitation.
No such request may be made later than 180 days
after the owner receives actual notice of that
agency action.
(B) Negotiations.--The agency may bargain
with that owner to establish the amount of the
compensation. If the agency and the owner agree
to such an amount, the agency shall promptly
pay the owner the amount agreed upon.
(C) Choice of remedies.--If, not later than
180 days after the written request is made, the
parties do not come to an agreement as to the
right to and amount of compensation, the owner
may choose to take the matter to binding
arbitration or seek compensation in a civil
action.
(D) Arbitration.--The procedures that govern
the arbitration shall, as nearly as
practicable, be those established under title
9, United States Code, for arbitration
proceedings to which that title applies. An
award made in such arbitration shall include a
reasonable attorney's fee and other arbitration
costs (including appraisal fees). The agency
shall promptly pay any award made to the owner.
(E) Civil action.--An owner who does not
choose arbitration, or who does not receive
prompt payment when required by this section,
may obtain appropriate relief in a civil action
against the agency. An owner who prevails in a
civil action under this section shall be
entitled to, and the agency shall be liable
for, a reasonable attorney's fee and other
litigation costs (including appraisal fees).
The court shall award interest on the amount of
any compensation from the time of the
limitation.
(F) Source of payments.--Any payment made
under this section to an owner and any judgment
obtained by an owner in a civil action under
this section shall, notwithstanding any other
provision of law, be made from the annual
appropriation of the agency whose action
occasioned the payment or judgment. If the
agency action resulted from a requirement
imposed by another agency, then the agency
making the payment or satisfying the judgment
may seek partial or complete reimbursement from
the appropriated funds of the other agency. For
this purpose the head of the agency concerned
may transfer or reprogram any appropriated
funds available to the agency. If insufficient
funds exist for the payment or to satisfy the
judgment, it shall be the duty of the head of
the agency to seek the appropriation of such
funds for the next fiscal year.
(6) Limitation.--Notwithstanding any other provision
of law, any obligation of the United States to make any
payment under this section shall be subject to the
availability of appropriations.
(7) Duty of notice to owners.--Whenever an agency
takes an agency action limiting the use of private
property, the agency shall give appropriate notice to
the owners of that property directly affected
explaining their rights under this section and the
procedures for obtaining any compensation that may be
due to them under this section.
(8) Rules of construction.--
(A) Effect on constitutional right to
compensation.--Nothing in this section shall be
construed to limit any right to compensation
that exists under the Constitution, laws of the
United States, or laws of any State.
(B) Effect of payment.--Payment of
compensation under this section (other than
when the property is bought by the Federal
Government at the option of the owner) shall
not confer any rights on the Federal Government
other than the limitation on use resulting from
the agency action.
(9) Treatment of certain actions.--A diminution in
value under this subsection shall apply to surface
interests in lands only or water rights allocated under
State law; except that--
(A) if the Secretary determines that the
exploration for or development of oil and gas
or mineral interests is not compatible with
limitations on use related to the surface
interests in lands that have been classified as
type A or type B wetlands located above such
oil and gas or mineral interests (or located
adjacent to such oil and gas or mineral
interests where such adjacent lands are
necessary to provide reasonable access to such
interests), the Secretary shall notify the
owner of such interests that the owner may
elect to receive compensation for such
interests under paragraph (1); and
(B) the failure to provide reasonable access
to oil and gas or mineral interests located
beneath or adjacent to surface interests of
type A or type B wetlands shall be deemed a
diminution in value of such oil and gas or
mineral interests.
(10) Jurisdiction.--The arbitrator or court under
paragraph (5)(D) or (5)(E) of this subsection, as the
case may be, shall have jurisdiction, in the case of
oil and gas or mineral interests, to require the United
States to provide reasonable access in, across, or
through lands that may be the subject of a diminution
in value under this subsection solely for the purpose
of undertaking activity necessary to determine the
value of the interests diminished and to provide other
equitable remedies deemed appropriate.
(11) Limitations on statutory construction.--No
action under this subsection shall be construed--
(A) to impose any obligation on any State or
political subdivision thereof to compensate any
person, even in the event that the Secretary
has approved a land management plan under
subsection (f)(2) or an individual and general
permit program under subsection (l); or
(B) to alter or supersede requirements
governing use of water applicable under State
law.
(e) Requirements Applicable to Permitted Activity.--
(1) Issuance or denial of permits.--Following the
determination of wetlands classification pursuant to
subsection (c) if applicable, and after compliance with
the requirements of subsection (d) if applicable, the
Secretary may issue or deny permits for authorization
to undertake activities in wetlands or waters of the
United States in accordance with the requirements of
this subsection.
(2) Type a wetlands.--
(A) Sequential analysis.--The Secretary shall
determine whether to issue a permit for an
activity in waters of the United States
classified under subsection (c) as type A
wetlands based on a sequential analysis that
seeks, to the maximum extent practicable, to--
(i) avoid adverse impact on the
wetlands;
(ii) minimize such adverse impact on
wetlands functions that cannot be
avoided; and
(iii) compensate for any loss of
wetland functions that cannot be
avoided or minimized.
(B) Mitigation terms and conditions.--Any
permit issued authorizing activities in type A
wetlands may contain such terms and conditions
concerning mitigation (including those
applicable under paragraph (3) for type B
wetlands) that the Secretary deems appropriate
to prevent the unacceptable loss or degradation
of type A wetlands. The Secretary shall deem
the mitigation requirement of this section to
be met with respect to activities in type A
wetlands if such activities (i) are carried out
in accordance with a State-approved reclamation
plan or permit which requires recontouring and
revegetation following mining, and (ii) will
result in overall environmental benefits being
achieved.
(3) Type b wetlands.--
(A) General rule.--The Secretary may issue a
permit authorizing activities in type B
wetlands if the Secretary finds that issuance
of the permit is in the public interest,
balancing the reasonably foreseeable benefits
and detriments resulting from the issuance of
the permit. The permit shall be subject to such
terms and conditions as the Secretary finds are
necessary to carry out the purposes of the
Comprehensive Wetlands Conservation and
Management Act of 1995. In determining whether
or not to issue the permit and whether or not
specific terms and conditions are necessary to
avoid a significant loss of wetlands functions,
the Secretary shall consider the following
factors:
(i) The quality and quantity of
significant functions served by the
areas to be affected.
(ii) The opportunities to reduce
impacts through cost effective design
to minimize use of wetlands areas.
(iii) The costs of mitigation
requirements and the social,
recreational, and economic benefits
associated with the proposed activity,
including local, regional, or national
needs for improved or expanded
infrastructure, minerals, energy, food
production, or recreation.
(iv) The ability of the permittee to
mitigate wetlands loss or degradation
as measured by wetlands functions.
(v) The environmental benefit,
measured by wetlands functions, that
may occur through mitigation efforts,
including restoring, preserving,
enhancing, or creating wetlands values
and functions.
(vi) The marginal impact of the
proposed activity on the watershed of
which such wetlands are a part.
(vii) Whether the impact on the
wetlands is temporary or permanent.
(B) Determination of project purpose.--In
considering an application for activities on
type B wetlands, there shall be a rebuttable
presumption that the project purpose as defined
by the applicant shall be binding upon the
Secretary. The definition of project purpose
for projects sponsored by public agencies shall
be binding upon the Secretary, subject to the
authority of the Secretary to impose mitigation
requirements to minimize impacts on wetlands
values and functions, including cost effective
redesign of projects on the proposed project
site.
(C) Mitigation requirements.--Except as
otherwise provided in this section,
requirements for mitigation shall be imposed
when the Secretary finds that activities
undertaken under this section will result in
the loss or degradation of type B wetlands
functions where such loss or degradation is not
a temporary or incidental impact. When
determining mitigation requirements in any
specific case, the Secretary shall take into
consideration the type of wetlands affected,
the character of the impact on wetland
functions, whether any adverse effects on
wetlands are of a permanent or temporary
nature, and the cost effectiveness of such
mitigation and shall seek to minimize the costs
of such mitigation. Such mitigation requirement
shall be calculated based upon the specific
impact of a particular project. The Secretary
shall deem the mitigation requirement of this
section to be met with respect to activities in
type B wetlands if such activities (i) are
carried out in accordance with a State-approved
reclamation plan or permit which requires
recontouring and revegetation following mining,
and (ii) will result in overall environmental
benefits being achieved.
(D) Rules governing mitigation.--In
accordance with subsection (j), the Secretary
shall issue rules governing requirements for
mitigation for activities occurring in wetlands
that allow for--
(i) minimization of impacts through
project design in the proposed project
site consistent with the project's
purpose, provisions for compensatory
mitigation, if any, and other terms and
conditions necessary and appropriate in
the public interest;
(ii) preservation or donation of type
A wetlands or type B wetlands (where
title has not been acquired by the
United States and no compensation under
subsection (d) for such wetlands has
been provided) as mitigation for
activities that alter or degrade
wetlands;
(iii) enhancement or restoration of
degraded wetlands as compensation for
wetlands lost or degraded through
permitted activity;
(iv) creation of wetlands as
compensation for wetlands lost or
degraded through permitted activity if
conditions are imposed that have a
reasonable likelihood of being
successful;
(v) compensation through contribution
to a mitigation bank program
established pursuant to paragraph (4);
(vi) offsite compensatory mitigation
if such mitigation contributes to the
restoration, enhancement or creation of
significant wetlands functions on a
watershed basis and is balanced with
the effects that the proposed activity
will have on the specific site; except
that offsite compensatory mitigation,
if any, shall be required only within
the State within which the proposed
activity is to occur, and shall, to the
extent practicable, be within the
watershed within which the proposed
activity is to occur, unless otherwise
consistent with a State wetlands
management plan;
(vii) contribution of in-kind value
acceptable to the Secretary and
otherwise authorized by law;
(viii) in areas subject to wetlands
loss, the construction of coastal
protection and enhancement projects;
(ix) contribution of resources of
more than one permittee toward a single
mitigation project; and
(x) other mitigation measures,
including contributions of other than
in-kind value referred to in clause
(vii), determined by the Secretary to
be appropriate in the public interest
and consistent with the requirements
and purposes of this Act.
(E) Limitations on requiring mitigation.--
Notwithstanding the provisions of subparagraph
(C), the Secretary may determine not to impose
requirements for compensatory mitigation if the
Secretary finds that--
(i) the adverse impacts of a
permitted activity are limited;
(ii) the failure to impose
compensatory mitigation requirements is
compatible with maintaining wetlands
functions;
(iii) no practicable and reasonable
means of mitigation are available;
(iv) there is an abundance of similar
significant wetlands functions and
values in or near the area in which the
proposed activity is to occur that will
continue to serve the functions lost or
degraded as a result of such activity,
taking into account the impacts of such
proposed activity and the cumulative
impacts of similar activity in the
area;
(v) the temporary character of the
impacts and the use of minimization
techniques make compensatory mitigation
unnecessary to protect significant
wetlands values; or
(vi) a waiver from requirements for
compensatory mitigation is necessary to
prevent special hardship.
(4) Mitigation banks.--
(A) Establishment.--Not later than 6 months
after the date of the enactment of this
subparagraph, after providing notice and
opportunity for public review and comment, the
Secretary shall issue regulations for the
establishment, use, maintenance, and oversight
of mitigation banks. The regulations shall be
developed in consultation with the heads of
other appropriate Federal agencies.
(B) Provisions and requirements.--The
regulations issued pursuant to subparagraph (A)
shall ensure that each mitigation bank--
(i) provides for the chemical,
physical, and biological functions of
wetlands or waters of the United States
which are lost as a result of
authorized adverse impacts to wetlands
or other waters of the United States;
(ii) to the extent practicable and
environmentally desirable, provides in-
kind replacement of lost wetlands
functions and be located in, or in
proximity to, the same watershed or
designated geographic area as the
affected wetlands or waters of the
United States;
(iii) be operated by a public or
private entity which has the financial
capability to meet the requirements of
this paragraph, including the deposit
of a performance bond or other
appropriate demonstration of financial
responsibility to support the long-term
maintenance of the bank, fulfill
responsibilities for long-term
monitoring, maintenance, and
protection, and provide for the long-
term security of ownership interests of
wetlands and uplands on which projects
are conducted to protect the wetlands
functions associated with the
mitigation bank;
(iv) employ consistent and
scientifically sound methods to
determine debits by evaluating wetlands
functions, project impacts, and
duration of the impact at the sites of
proposed permits for authorized
activities pursuant to this section and
to determine credits based on wetlands
functions at the site of the mitigation
bank;
(v) provide for the transfer of
credits for mitigation that has been
performed and for mitigation that shall
be performed within a designated time
in the future, provided that financial
bonds shall be posted in sufficient
amount to ensure that the mitigation
will be performed in the case of
default; and
(vi) provide opportunity for public
notice of and comment on proposals for
the mitigation banks; except that any
process utilized by a mitigation bank
to obtain a permit authorizing
operations under this section before
the date of the enactment of the
Comprehensive Wetlands Conservation and
Management Act of 1995 satisfies the
requirement for such public notice and
comment.
(5) Procedures and deadlines for final action.--
(A) Opportunity for public comment.--Not
later than 15 days after receipt of a complete
application for a permit under this section,
together with information necessary to consider
such application, the Secretary shall publish
notice that the application has been received
and shall provide opportunity for public
comment and, to the extent appropriate,
opportunity for a public hearing on the
issuance of the permit.
(B) General procedures.--In the case of any
application for authorization to undertake
activities in wetlands or waters of the United
States that are not eligible for treatment on
an expedited basis pursuant to paragraph (8),
final action by the Secretary shall occur
within 90 days following the date such
application is filed, unless--
(i) the Secretary and the applicant
agree that such final action shall
occur within a longer period of time;
(ii) the Secretary determines that an
additional, specified period of time is
necessary to permit the Secretary to
comply with other applicable Federal
law; except that if the Secretary is
required under the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) to prepare an
environmental impact statement, with
respect to the application, the final
action shall occur not later than 45
days following the date such statement
is filed; or
(iii) the Secretary, within 15 days
from the date such application is
received, notifies the applicant that
such application does not contain all
information necessary to allow the
Secretary to consider such application
and identifies any necessary additional
information, in which case, the
provisions of subparagraph (C) shall
apply.
(C) Special rule when additional information
is required.--Upon the receipt of a request for
additional information under subparagraph
(B)(iii), the applicant shall supply such
additional information and shall advise the
Secretary that the application contains all
requested information and is therefore
complete. The Secretary may--
(i) within 30 days of the receipt of
notice of the applicant that the
application is complete, determine that
the application does not contain all
requested additional information and,
on that basis, deny the application
without prejudice to resubmission; or
(ii) within 90 days from the date
that the applicant provides
notification to the Secretary that the
application is complete, review the
application and take final action.
(D) Effect of not meeting deadline.--If the
Secretary fails to take final action on an
application under this paragraph within 90 days
from the date that the applicant provides
notification to the Secretary that such
application is complete, a permit shall be
presumed to be granted authorizing the
activities proposed in such application under
such terms and conditions as are stated in such
completed application.
(6) Type c wetlands.--Activities in wetlands that
have been classified as type C wetlands by the
Secretary may be undertaken without authorization
required under subsection (a) of this section.
(7) States with substantial conserved wetlands.--
(A) In general.--With respect to type A and
type B wetlands in States with substantial
conserved wetlands areas, at the option of the
permit applicant, the Secretary shall issue
permits authorizing activities in such wetlands
pursuant to this paragraph. Final action on
issuance of such permits shall be in accordance
with the procedures and deadlines of paragraph
(5). The Secretary may include conditions or
requirements for minimization of adverse
impacts to wetlands functions when minimization
is economically practicable. No permit to which
this paragraph applies shall include
conditions, requirements, or standards for
mitigation to compensate for adverse impacts to
wetlands or waters of the United States or
conditions, requirements, or standards for
avoidance of adverse impacts to wetlands or
waters of the United States.
(B) Economic base lands.--Upon application by
the owner of economic base lands in a State
with substantial conserved wetlands areas, the
Secretary shall issue individual and general
permits to owners of such lands for activities
in wetlands or waters of the United States. The
Secretary shall reduce the requirements of
subparagraph (A)--
(i) to allow economic base lands to
be beneficially used to create and
sustain economic activity; and
(ii) in the case of lands owned by
Alaska Native entities, to reflect the
social and economic needs of Alaska
Natives to utilize economic base lands.
The Secretary shall consult with and provide
assistance to the Alaska Natives (including
Alaska Native Corporations) in promulgation and
administration of policies and regulations
under this section.
(8) General permits.--
(A) General authority.--The Secretary may
issue, by rule in accordance with subsection
(j), general permits on a programmatic, State,
regional, or nationwide basis for any category
of activities involving an activity in wetlands
or waters of the United States if the Secretary
determines that such activities are similar in
nature and that such activities, when performed
separately and cumulatively, will not result in
the significant loss of ecologically
significant wetlands values and functions.
(B) Procedures.--Permits issued under this
paragraph shall include procedures for
expedited review of eligibility for such
permits (if such review is required) and may
include requirements for reporting and
mitigation. To the extent that a proposed
activity requires a determination by the
Secretary as to the eligibility to qualify for
a general permit under this subsection, such
determination shall be made within 30 days of
the date of submission of the application for
such qualification, or the application shall be
treated as being approved.
(C) Compensatory mitigation.--Requirements
for compensatory mitigation for general permits
may be imposed where necessary to offset the
significant loss or degradation of significant
wetlands functions where such loss or
degradation is not a temporary or incidental
impact. Such compensatory mitigation shall be
calculated based upon the specific impact of a
particular project.
(D) Grandfather of existing general
permits.--General permits in effect on day
before the date of the enactment of the
Comprehensive Wetlands Conservation and
Management Act of 1995 shall remain in effect
until otherwise modified by the Secretary.
(E) States with substantial conserved
lands.--Upon application by a State or local
authority in a State with substantial conserved
wetlands areas, the Secretary shall issue a
general permit applicable to such authority for
activities in wetlands or waters of the United
States. No permit issued pursuant to this
subparagraph shall include conditions,
requirements, or standards for mitigation to
compensate for adverse impacts to wetlands or
waters of the United States or shall include
conditions, requirements, or standards for
avoidance of adverse impacts of wetlands or
waters of the United States.
(9) Other waters of the united states.--The Secretary
may issue a permit authorizing activities in waters of
the United States (other than those classified as type
A, B, or C wetlands under this section) if the
Secretary finds that issuance of the permit is in the
public interest, balancing the reasonably foreseeable
benefits and detriments resulting from the issuance of
the permit. The permit shall be subject to such terms
and conditions as the Secretary finds are necessary to
carry out the purposes of the Comprehensive Wetlands
Conservation and Management Act of 1995. In determining
whether or not to issue the permit and whether or not
specific terms and conditions are necessary to carry
out such purposes, the Secretary shall consider the
factors set forth in paragraph (3)(A) as they apply to
nonwetlands areas and such other provisions of
paragraph (3) as the Secretary determines are
appropriate to apply to nonwetlands areas.
(f) Activities not Requiring Permit.--
(1) In general.--Activities undertaken in any
wetlands or waters of the United States are exempt from
the requirements of this section and are not prohibited
by or otherwise subject to regulation under this
section or section 301 or 402 of this Act (except
effluent standards or prohibitions under section 307 of
this Act) if such activities--
(A) result from normal farming, silviculture,
aquaculture, and ranching activities and
practices, including but not limited to
plowing, seeding, cultivating, haying, grazing,
normal maintenance activities, minor drainage,
burning of vegetation in connection with such
activities, harvesting for the production of
food, fiber, and forest products, or upland
soil and water conservation practices;
(B) are for the purpose of maintenance,
including emergency reconstruction of recently
damaged parts, of currently serviceable
structures such as dikes, dams, levees, flood
control channels or other engineered flood
control facilities, water control structures,
water supply reservoirs (where such maintenance
involves periodic water level drawdowns) which
provide water predominantly to public drinking
water systems, groins, riprap, breakwaters,
utility distribution and transmission lines,
causeways, and bridge abutments or approaches,
and transportation structures;
(C) are for the purpose of construction or
maintenance of farm, stock or aquaculture
ponds, wastewater retention facilities
(including dikes and berms) that are used by
concentrated animal feeding operations, or
irrigation canals and ditches or the
maintenance of drainage ditches;
(D) are for the purpose of construction of
temporary sedimentation basins on a
construction site, or the construction of any
upland dredged material disposal area, which
does not include placement of fill material
into the navigable waters;
(E) are for the purpose of construction or
maintenance of farm roads or forest roads,
railroad lines of up to 10 miles in length, or
temporary roads for moving mining equipment,
access roads for utility distribution and
transmission lines if such roads or railroad
lines are constructed and maintained, in
accordance with best management practices, to
assure that flow and circulation patterns and
chemical and biological characteristics of the
waters are not impaired, that the reach of the
waters is not reduced, and that any adverse
effect on the aquatic environment will be
otherwise minimized;
(F) are undertaken on farmed wetlands, except
that any change in use of such land for the
purpose of undertaking activities that are not
exempt from regulation under this subsection
shall be subject to the requirements of this
section to the extent that such farmed wetlands
are ``wetlands'' under this section;
(G) result from any activity with respect to
which a State has an approved program under
section 208(b)(4) of this Act which meets the
requirements of subparagraphs (B) and (C) of
such section;
(H) are consistent with a State or local land
management plan submitted to the Secretary and
approved pursuant to paragraph (2);
(I) are undertaken in connection with a marsh
management and conservation program in a
coastal parish in the State of Louisiana where
such program has been approved by the Governor
of such State or the designee of the Governor;
(J) are undertaken on lands or involve
activities within a State's coastal zone which
are excluded from regulation under a State
coastal zone management program approved under
the Coastal Zone Management Act of 1972 (16
U.S.C. 1451, et seq.);
(K) are undertaken in incidentally created
wetlands, unless such incidentally created
wetlands have exhibited wetlands functions and
values for more than 5 years in which case
activities undertaken in such wetlands shall be
subject to the requirements of this section;
(L) are for the purpose of preserving and
enhancing aviation safety or are undertaken in
order to prevent an airport hazard;
(M) result from aggregate or clay mining
activities in wetlands conducted pursuant to a
State or Federal permit that requires the
reclamation of such affected wetlands if such
reclamation will be completed within 5 years of
the commencement of activities at the site and,
upon completion of such reclamation, the
wetlands will support wetlands functions
equivalent to the functions supported by the
wetlands at the time of commencement of such
activities;
(N) are for the placement of a structural
member for a pile-supported structure, such as
a pier or dock, or for a linear project such as
a bridge, transmission or distribution line
footing, powerline structure, or elevated or
other walkway;
(O) are for the placement of a piling in
waters of the United States in a circumstance
that involves--
(i) a linear project described in
subparagraph (N); or
(ii) a structure such as a pier,
boathouse, wharf, marina, lighthouse,
or individual house built on stilts
solely to reduce the potential of
flooding;
(P) are for the clearing (including
mechanized clearing) of vegetation within a
right-of-way associated with the development
and maintenance of a transmission or
distribution line or other powerline structure
or for the maintenance of water supply
reservoirs which provide water predominantly to
public drinking water systems;
(Q) are undertaken in or affecting
waterfilled depressions created in uplands
incidental to construction activity, or are
undertaken in or affecting pits excavated in
uplands for the purpose of obtaining fill,
sand, gravel, aggregates, or minerals, unless
and until the construction or excavation
operation is abandoned; or
(R) are undertaken in a State with
substantial conserved wetlands areas and--
(i) are for purposes of providing
critical infrastructure, including
water and sewer systems, airports,
roads, communication sites, fuel
storage sites, landfills, housing,
hospitals, medical clinics, schools,
and other community infrastructure;
(ii) are for construction and
maintenance of log transfer facilities
associated with log transportation
activities;
(iii) are for construction of
tailings impoundments utilized for
treatment facilities (as determined by
the development document) for the
mining subcategory for which the
tailings impoundment is constructed; or
(iv) are for construction of ice pads
and ice roads and for purposes of snow
storage and removal.
(2) State or local management plan.--Any State or
political subdivision thereof acting pursuant to State
authorization may develop a land management plan with
respect to lands that include identified wetlands. The
State or local government agency may submit any such
plan to the Secretary for review and approval. The
Secretary shall, within 60 days, notify in writing the
designated State or local official of approval or
disapproval of any such plan. The Secretary shall
approve any plan that is consistent with the purposes
of this section. No person shall be entitled to
judicial review of the decision of the Secretary to
approve or disapprove a land management plan under this
paragraph. Nothing in this paragraph shall be construed
to alter, limit, or supersede the authority of a State
or political subdivision thereof to establish land
management plans for purposes other than the provisions
of this subsection.
(g) Rules for Delineating Wetlands.--
(1) Standards.--
(A) Issuance of rule.--The Secretary is
authorized and directed to establish standards,
by rule in accordance with subsection (j), that
shall govern the delineation of lands as
``wetlands'' for purposes of this section. Such
rules shall be established after consultation
with the heads of other appropriate Federal
agencies and shall be binding on all Federal
agencies in connection with the administration
or implementation of any provision of this
section. The standards for delineation of
wetlands and any decision of the Secretary, the
Secretary of Agriculture (in the case of
agricultural lands and associated
nonagricultural lands), or any other Federal
officer or agency made in connection with the
administration of this section shall comply
with the requirements for delineation of
wetlands set forth in subparagraphs (B) and
(C).
(B) Exceptions.--The standards established by
rule or applied in any case for purposes of
this section shall ensure that lands are
delineated as wetlands only if such lands are
found to be ``wetlands'' under section 502 of
this Act; except that such standards may not--
(i) result in the delineation of
lands as wetlands unless clear evidence
of wetlands hydrology, hydrophytic
vegetation, and hydric soil are found
to be present during the period in
which such delineation is made, which
delineation shall be conducted during
the growing season unless otherwise
requested by the applicant;
(ii) result in the classification of
vegetation as hydrophytic if such
vegetation is equally adapted to dry or
wet soil conditions or is more
typically adapted to dry soil
conditions than to wet soil conditions;
(iii) result in the classification of
lands as wetlands unless some obligate
wetlands vegetation is found to be
present during the period of
delineation; except that if such
vegetation has been removed for the
purpose of evading jurisdiction under
this section, this clause shall not
apply;
(iv) result in the conclusion that
wetlands hydrology is present unless
water is found to be present at the
surface of such lands for 21
consecutive days in the growing seasons
in a majority of the years for which
records are available; and
(v) result in the classification of
lands as wetlands that are temporarily
or incidentally created as a result of
adjacent development activity.
(C) Normal circumstances.--In addition to the
requirements of subparagraph (B), any standards
established by rule or applied to delineate
wetlands for purposes of this section shall
provide that ``normal circumstances'' shall be
determined on the basis of the factual
circumstances in existence at the time a
classification is made under subsection (h) or
at the time of application under subsection
(e), whichever is applicable, if such
circumstances have not been altered by an
activity prohibited under this section.
(2) Land area cap for type a wetlands.--No more than
20 percent of any county, parish, or borough shall be
classified as type A wetlands. Type A wetlands in
Federal or State ownership (including type A wetlands
in units of the National Wildlife Refuge System, the
National Park System, and lands held in conservation
easements) shall be included in calculating the percent
of type A wetlands in a county, parish, or borough.
(3) Agricultural lands.--
(A) Delineation by secretary of
agriculture.--For purposes of this section,
wetlands located on agricultural lands and
associated nonagricultural lands shall be
delineated solely by the Secretary of
Agriculture in accordance with section 1222(j)
of the Food Security Act of 1985 (16 U.S.C.
3822(j)).
(B) Exemption of lands exempted under food
security act.--Any area of agricultural land or
any activities related to the land determined
to be exempt from the requirements of subtitle
C of title XII of the Food Security Act of 1985
(16 U.S.C. 3821 et seq.) shall also be exempt
from the requirements of this section for such
period of time as those lands are used as
agricultural lands.
(C) Effect of appeal determination pursuant
to food security act.--Any area of agricultural
land or any activities related to the land
determined to be exempt pursuant to an appeal
taken pursuant to subtitle C of title XII of
the Food Security Act of 1985 (16 U.S.C. 3821
et seq.) shall be exempt under this section for
such period of time as those lands are used as
agricultural lands.
(h) Mapping and Public Notice Requirements.--
(1) Provision of public notice.--Not later than 90
days after the date of the enactment of the
Comprehensive Wetlands Conservation and Management Act
of 1995, the Secretary shall provide the court of each
county, parish, or borough in which the wetland subject
to classification under subsection (c) is located, a
notice for posting near the property records of the
county, parish, or borough. The notice shall--
(A) state that wetlands regulated under this
section may be located in the county, parish,
or borough;
(B) provide an explanation understandable to
the general public of how wetlands are
delineated and classified;
(C) describe the requirements and
restrictions of the regulatory program under
this section; and
(D) provide instructions on how to obtain a
delineation and classification of wetlands
under this section.
(2) Provision of delineation determinations.--On
completion under this section of a delineation and
classification of property that contains wetlands or a
delineation of property that contains waters of the
United States that are not wetlands, the Secretary of
Agriculture, in the case of wetlands located on
agricultural lands and associated nonagricultural
lands, and the Secretary, in the case of other lands,
shall--
(A) file a copy of the delineation, including
the classification of any wetland located on
the property, with the records of the property
in the local courthouse; and
(B) serve a copy of the delineation
determination on every owner of the property on
record and any person with a recorded mortgage
or lien on the property.
(3) Notice of enforcement actions.--The Secretary
shall file notice of each enforcement action under this
section taken with respect to private property with the
records of the property in the local courthouse.
(4) Wetlands identification and classification
project.--
(A) In general.--The Secretary and the
Secretary of Agriculture shall undertake a
project to identify and classify wetlands in
the United States that are regulated under this
section. The Secretaries shall complete such
project not later than 10 years after the date
of the enactment of the Comprehensive Wetlands
Conservation and Management Act of 1995.
(B) Applicability of delineation standards.--
In conducting the project under this section,
the Secretaries shall identify and classify
wetlands in accordance with standards for
delineation of wetlands established by the
Secretaries under subsection (g).
(C) Public hearings.--In conducting the
project under this section, the Secretaries
shall provide notice and an opportunity for a
public hearing in each county, parish or
borough of a State before completion of
identification and classification of wetlands
in such county, parish, or borough.
(D) Publication.--Promptly after completion
of identification and classification of
wetlands in a county, parish, or borough under
this section, the Secretaries shall have
published information on such identification
and classification in the Federal Register and
in publications of wide circulation and take
other steps reasonably necessary to ensure that
such information is available to the public.
(E) Reports.--The Secretaries shall report to
Congress on implementation of the project to be
conducted under this section not later than 2
years after the date of the enactment of the
Comprehensive Wetlands Conservation and
Management Act of 1995 and annually thereafter.
(F) Recordation.--Any classification of lands
as wetlands under this section shall, to the
maximum extent practicable, be recorded on the
property records in the county, parish, or
borough in which such wetlands are located.
(i) Administrative Appeals.--
(1) Regulations establishing procedures.--Not later
than 1 year after the date of the enactment of the
Comprehensive Wetlands Conservation and Management Act
of 1995, the Secretary shall, after providing notice
and opportunity for public comment, issue regulations
establishing procedures pursuant to which--
(A) a landowner may appeal a determination of
regulatory jurisdiction under this section with
respect to a parcel of the landowner's
property;
(B) a landowner may appeal a wetlands
classification under this section with respect
to a parcel of the landowner's property;
(C) any person may appeal a determination
that the proposed activity on the landowner's
property is not exempt under subsection (f);
(D) a landowner may appeal a determination
that an activity on the landowner's property
does not qualify under a general permit issued
under this section;
(E) an applicant for a permit under this
section may appeal a determination made
pursuant to this section to deny issuance of
the permit or to impose a requirement under the
permit; and
(F) a landowner or any other person required
to restore or otherwise alter a parcel of
property pursuant to an order issued under this
section may appeal such order.
(2) Deadline for filing appeal.--An appeal brought
pursuant to this subsection shall be filed not later
than 30 days after the date on which the decision or
action on which the appeal is based occurs.
(3) Deadline for decision.--An appeal brought
pursuant to this subsection shall be decided not later
than 90 days after the date on which the appeal is
filed.
(4) Participation in appeals process.--Any person who
participated in the public comment process concerning a
decision or action that is the subject of an appeal
brought pursuant to this subsection may participate in
such appeal with respect to those issues raised in the
person's written public comments.
(5) Decisionmaker.--An appeal brought pursuant to
this subsection shall be heard and decided by an
appropriate and impartial official of the Federal
Government, other than the official who made the
determination or carried out the action that is the
subject of the appeal.
(6) Stay of penalties and mitigation.--A landowner or
any other person who has filed an appeal under this
subsection shall not be required to pay a penalty or
perform mitigation or restoration assessed under this
section or section 309 until after the appeal has been
decided.
(j) Administrative Provisions.--
(1) Final regulations for issuance of permits.--Not
later than 1 year after the date of the enactment of
the Comprehensive Wetlands Conservation and Management
Act of 1995, the Secretary shall, after notice and
opportunity for comment, issue (in accordance with
section 553 of title 5 of the United States Code and
this section) final regulations for implementation of
this section. Such regulations shall, in accordance
with this section, provide--
(A) standards and procedures for the
classification and delineation of wetlands and
procedures for administrative review of any
such classification or delineation;
(B) standards and procedures for the review
of State or local land management plans and
State programs for the regulation of wetlands;
(C) for the issuance of general permits,
including programmatic, State, regional, and
nationwide permits;
(D) standards and procedures for the
individual permit applications under this
section;
(E) for enforcement of this section;
(F) guidelines for the specification of sites
for the disposal of dredged or fill material
for navigational dredging; and
(G) any other rules and regulations that the
Secretary deems necessary or appropriate to
implement the requirements of this section.
(2) Navigational dredging guidelines.--Guidelines
developed under paragraph (1)(F) shall--
(A) be based upon criteria comparable to the
criteria applicable to the territorial seas,
the contiguous zone, and the oceans under
section 403(c); and
(B) ensure that with respect to the issuance
of permits under this section--
(i) the least costly, environmentally
acceptable disposal alternative will be
selected, taking into consideration
cost, existing technology, short term
and long term dredging requirements,
and logistics;
(ii) a disposal site will be
specified after comparing reasonably
available upland, confined aquatic,
beneficial use, and open water disposal
alternatives on the basis of relative
risk, environmental acceptability,
economics, practicability, and current
technological feasibility;
(iii) a disposal site will be
specified after comparing the
reasonably anticipated environmental
and economic benefits of undertaking
the underlying project to the status
quo; and
(iv) in comparing alternatives and
selection of a disposal site,
management measures may be considered
and utilized to limit, to the extent
practicable, adverse environmental
effects by employing suitable chemical,
biological, or physical techniques to
prevent unacceptable adverse impacts on
the environment.
(3) Judicial review of final regulations.--Any
judicial review of final regulations issued pursuant to
this section and the Secretary's denial of any petition
for the issuance, amendment, or repeal of any
regulation under this section shall be in accordance
with sections 701 through 706 of title 5 of the United
States Code; except that a petition for review of
action of the Secretary in issuing any regulation or
requirement under this section or denying any petition
for the issuance, amendment, or repeal of any
regulation under this section may be filed only in the
United States Court of Appeals for the District of
Columbia, and such petition shall be filed within 90
days from the date of such issuance or denial or after
such date if such petition for review is based solely
on grounds arising after such ninetieth day. Action of
the Secretary with respect to which review could have
been obtained under this subsection shall not be
subject to judicial review in civil or criminal
proceedings for enforcement.
(4) Interim regulations.--The Secretary shall, within
90 days after the date of the enactment of the
Comprehensive Wetlands Conservation and Management Act
of 1995, issue interim regulations consistent with this
section to take effect immediately. Notice of the
interim regulations shall be published in the Federal
Register, and such regulations shall be binding until
the issuance of final regulations pursuant to paragraph
(1); except that the Secretary shall provide adequate
procedures for waiver of any provisions of such interim
regulations to avoid special hardship, inequity, or
unfair distribution of burdens or to advance the
purposes of this section.
(5) Administration by secretary.--Except where
otherwise expressly provided in this section, the
Secretary shall administer this section. The Secretary
or any other Federal officer or agency in which any
function under this section is vested or delegated is
authorized to perform any and all acts (including
appropriate enforcement activity), and to prescribe,
issue, amend, or rescind such rules or orders as such
officer or agency may find necessary or appropriate
with this subsection, subject to the requirements of
this subsection.
(k) Enforcement.--
(1) Compliance order.--Whenever, on the basis of
reliable and substantial information and after
reasonable inquiry, the Secretary finds that any person
is or may be in violation of this section or of any
condition or limitation set forth in a permit issued by
the Secretary under this section, the Secretary shall
issue an order requiring such persons to comply with
this section or with such condition or limitation.
(2) Notice and other procedural requirements relating
to orders.--A copy of any order issued under this
subsection shall be sent immediately by the Secretary
to the Governor of the State in which the violation
occurs and the Governors of other affected States. The
person committing the asserted violation that results
in issuance of the order shall be notified of the
issuance of the order by personal service made to the
appropriate person or corporate officer. The notice
shall state with reasonable specificity the nature of
the asserted violation and specify a time for
compliance, not to exceed 30 days, which the Secretary
determines is reasonable taking into account the
seriousness of the asserted violation and any good
faith efforts to comply with applicable requirements.
If the person receiving the notice disputes the
Secretary's determination, the person may file an
appeal as provided in subsection (i). Within 60 days of
a decision which denies an appeal, or within 150 days
from the date of notification of violation by the
Secretary if no appeal is filed, the Secretary shall
prosecute a civil action in accordance with paragraph
(3) or rescind such order and be estopped from any
further enforcement proceedings for the same asserted
violation.
(3) Civil action enforcement.--The Secretary is
authorized to commence a civil action for appropriate
relief, including a permanent or temporary injunction,
for any violation for which the Secretary is authorized
to issue a compliance order under paragraph (1). Any
action under this paragraph may be brought in the
district court of the United States for the district in
which the defendant is located or resides or is doing
business, and such court shall have jurisdiction to
restrain such violation and to require compliance.
Notice of the commencement of such action shall be
given immediately to the appropriate State.
(4) Civil penalties.--Any person who violates any
condition or limitation in a permit issued by the
Secretary under this section and any person who
violates any order issued by the Secretary under
paragraph (1) shall be subject to a civil penalty not
to exceed $25,000 per day for each violation commencing
on expiration of the compliance period if no appeal is
filed or on the 30th day following the date of the
denial of an appeal of such violation. The amount of
the penalty imposed per day shall be in proportion to
the scale or scope of the project. In determining the
amount of a civil penalty, the court shall consider the
seriousness of the violation or violations, the
economic benefit (if any) resulting from the violation,
any history of such violations, any good-faith efforts
to comply with the applicable requirements, the
economic impact of the penalty on the violator, and
such other matters as justice may require.
(5) Criminal penalties.--If any person knowingly and
willfully violates any condition or limitation in a
permit issued by the Secretary under this section or
knowingly and willfully violates an order issued by the
Secretary under paragraph (1) and has been notified of
the issuance of such order under paragraph (2) and if
such violation has resulted in actual degradation of
the environment, such person shall be punished by a
fine of not less than $5,000 nor more than $50,000 per
day of violation, or by imprisonment for not more than
3 years, or by both. If a conviction of a person is for
a violation committed after a first conviction of such
person under this paragraph, punishment shall be by a
fine of not more than $100,000 per day of violation, or
imprisonment of not more than 6 years, or by both. An
action for imposition of a criminal penalty under this
paragraph may only be brought by the Attorney General.
(l) State Regulation.--
(1) Submission of proposed state program.--The
Governor of any State desiring to administer its own
individual or general permit program for some or all of
the activities covered by this section within any
geographical region within its jurisdiction may submit
to the Secretary a description of the program it
proposes to establish and administer under State law or
under an interstate compact. In addition, such State
shall submit a statement from the chief legal officer
in the case of the State or interstate agency, that the
laws of such State, or the interstate compact, as the
case may be, provide adequate authority to carry out
the described program.
(2) State authorities required for approval.--Not
later than 1 year after the date of the receipt by the
Secretary of a program and statement submitted by any
State under paragraph (1), the Secretary shall
determine whether such State has the following
authority with respect to the issuance of permits
pursuant to such program:
(A) to issue permits which--
(i) apply, and assure compliance
with, any applicable requirements of
this section; and
(ii) can be terminated or modified
for cause, including--
(I) violation of any
condition of the permit;
(II) obtaining a permit by
misrepresentation, or failure
to disclose fully all relevant
facts; or
(III) change in any condition
that requires either a
temporary or permanent
reduction or elimination of the
permitted activity;
(B) to issue permits which apply, and ensure
compliance with, all applicable requirements of
section 308 of this Act or to inspect, monitor,
enter, and require reports to at least the same
extent as required in section 308 of this Act;
(C) to ensure that the public, and any other
State the waters of which may be affected,
receive notice of each application for a permit
and to provide an opportunity for public
hearing before a ruling on each such
application;
(D) to ensure that the Secretary receives
notice of each application for a permit and
that, prior to any action by the State, both
the applicant for the permit and the State have
received from the Secretary information with
respect to any advance classification
applicable to wetlands that are the subject of
such application;
(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
recommendation to the permitting State with
respect to any permit application and, if any
part of such written recommendations are not
accepted by the permitting State, that the
permitting State will notify such affected
State (and the Secretary) in writing of its
failure to so accept such recommendations
together with its reasons for doing so; and
(F) to abate violations of the permit or the
permit program, including civil and criminal
penalties and other ways and means of
enforcement.
(3) Approval; resubmission.--If, with respect to a
State program submitted under paragraph (1) of this
section, the Secretary determines that the State--
(A) has the authority set forth in paragraph
(2), the Secretary shall approve the program
and so notify such State and suspend the
issuance of permits under subsection (b) for
activities with respect to which a permit may
be issued pursuant to the State program; or
(B) does not have the authority set forth in
paragraph (2) of this subsection, the Secretary
shall so notify such State and provide a
description of the revisions or modifications
necessary so that the State may resubmit the
program for a determination by the Secretary
under this subsection.
(4) Effect of failure of secretary to make timely
decision.--If the Secretary fails to make a
determination with respect to any program submitted by
a State under this subsection within 1 year after the
date of receipt of the program, the program shall be
treated as being approved pursuant to paragraph (3)(A)
and the Secretary shall so notify the State and suspend
the issuance of permits under subsection (b) for
activities with respect to which a permit may be issued
by the State.
(5) Transfer of pending applications for permits.--If
the Secretary approves a State permit program under
paragraph (3)(A) or (4), the Secretary shall transfer
any applications for permits pending before the
Secretary for activities with respect to which a permit
may be issued pursuant to the State program to the
State for appropriate action.
(6) General permits.--Upon notification from a State
with a permit program approved under this subsection
that such State intends to administer and enforce the
terms and conditions of a general permit issued by the
Secretary under subsection (e) with respect to
activities in the State to which such general permit
applies, the Secretary shall suspend the administration
and enforcement of such general permit with respect to
such activities.
(7) Review by secretary.--Every 5 years after
approval of a State administered program under
paragraph (3)(A), the Secretary shall review the
program to determine whether it is being administered
in accordance with this section. If, on the basis of
such review, the Secretary finds that a State is not
administering its program in accordance with this
section or if the Secretary determines based on clear
and convincing evidence after a public hearing that a
State is not administering its program in accordance
with this section and that substantial adverse impacts
to wetlands or waters of the United States are
imminent, the Secretary shall notify the State and, if
appropriate corrective action is not taken within a
reasonable time, not to exceed 90 days after the date
of the receipt of such notification, the Secretary
shall--
(A) withdraw approval of the program until
the Secretary determines such corrective action
has been taken; and
(B) resume the program for the issuance of
permits under subsections (b) and (e) for all
activities with respect to which the State was
issuing permits until such time as the
Secretary makes the determination described in
paragraph (2) and the State again has an
approved program.
(m) Miscellaneous Provisions.--
(1) State authority to control discharges.--Nothing
in this section shall preclude or deny the right of any
State or interstate agency to control activities in
waters within the jurisdiction of such State, including
any activity of any Federal agency, and each such
agency shall comply with such State or interstate
requirements both substantive and procedural to control
such activities to the same extent that any person is
subject to such requirements. This section shall not be
construed as affecting or impairing the authority of
the Secretary to maintain navigation.
(2) Availability to public.--A copy of each permit
application and each permit issued under this section
shall be available to the public. Such permit
application or portion thereof shall further be
available on request for the purpose of reproduction.
(3) Publication in federal register.--The Secretary
shall have published in the Federal Register all
memoranda of agreement, regulatory guidance letters,
and other guidance documents of general applicability
to implementation of this section at the time they are
distributed to agency regional or field offices. In
addition, the Secretary shall prepare, update on a
biennial basis and make available to the public for
purchase at cost--
(A) an indexed publication containing all
Federal regulations, general permits, memoranda
of agreement, regulatory guidance letters, and
other guidance documents relevant to the
permitting of activities pursuant to this
section; and
(B) information to enable the general public
to understand the delineation of wetlands, the
permitting requirements referred to in
subsection (e), wetlands restoration and
enhancement, wetlands functions, available
nonregulatory programs to conserve and restore
wetlands, and other matters that the Secretary
considers relevant.
(4) Compliance.--
(A) Compliance with permit.--Compliance with
a permit issued pursuant to this section,
including any activity carried out pursuant to
a general permit issued under this section,
shall be deemed in compliance, for purposes of
sections 309 and 505, with sections 301, 307,
and 403.
(B) Cranberry production.--Activities
associated with expansion, improvement, or
modification of existing cranberry production
operations shall be deemed in compliance, for
purposes of sections 309 and 505, with section
301, if--
(i) the activity does not result in
the modification of more than 10 acres
of wetlands per operator per year and
the modified wetlands (other than where
dikes and other necessary facilities
are placed) remain as wetlands or other
waters of the United States; or
(ii) the activity is required by any
State or Federal water quality program.
(5) Limitation on fees.--Any fee charged in
connection with the delineation or classification of
wetlands, the submission or processing of an
application for a permit authorizing an activity in
wetlands or waters of the United States, or any other
action taken in compliance with the requirements of
this section (other than fines for violations under
subsection (k)) shall not exceed the amount in effect
for such fee on February 15, 1995.
(6) Balanced implementation.--
(A) In general.--In implementing his or her
responsibilities under the regulatory program
under this section, the Secretary shall balance
the objective of conserving functioning
wetlands with the objective of ensuring
continued economic growth, providing essential
infrastructure, maintaining strong State and
local tax bases, and protecting against the
diminishment of the use and value of privately
owned property.
(B) Minimization of adverse effects on
private property.--In carrying out this
section, the Secretary and the heads of all
other Federal agencies shall seek in all
actions to minimize the adverse effects of the
regulatory program under this section on the
use and value of privately owned property.
(7) Procedures for emergencies.--The Secretary shall
develop procedures for facilitating actions under this
section that are necessary to respond to emergency
conditions (including flood events and other emergency
situations) which may involve loss of life and property
damage. Such procedures shall address circumstances
requiring expedited approvals as well as circumstances
requiring no formal approval under this section.
(8) Use of property.--For purposes of this section, a
use of property is limited by an agency action if a
particular legal right to use that property no longer
exists because of the action.
(9) Limitation on classification of certain waters.--
For purposes of this section, no water of the United
States or wetland shall be subject to this section
based solely on the fact that migratory birds use or
could use such water or wetland.
(10) Transition rules.--
(A) Permit required.--After the effective
date of this section under section 806 of the
Comprehensive Wetlands Conservation and
Management Act of 1995, no permit for any
activity in wetlands or waters of the United
States may be issued except in accordance with
this section. Any application for a permit for
such an activity pending under this section on
such effective date shall be deemed to be an
application for a permit under this section.
(B) Prior permits.--Any permit for an
activity in wetlands or waters of the United
States issued under this section prior to the
effective date referred to in subparagraph (A)
shall be deemed to be a permit under this
section and shall continue in force and effect
for the term of the permit unless revoked,
modified, suspended, or canceled in accordance
with this section.
(C) Reevaluation.--
(i) Petition.--Any person holding a
permit for an activity in wetlands or
water of the United States on the
effective date referred to in
subparagraph (A) may petition, after
such effective date, the Secretary for
reevaluation of any decision made
before such effective date concerning
(I) a determination of regulatory
jurisdiction under this section, or
(II) any condition imposed under the
permit. Upon receipt of a petition for
reevaluation, the Secretary shall
conduct the reevaluation in accordance
with the provisions of this section.
(ii) Modification of permit.--If the
Secretary finds that the provisions of
this section apply with respect to
activities and lands which are subject
to the permit, the Secretary shall
modify, revoke, suspend, cancel, or
continue the permit as appropriate in
accordance with the provisions of this
section; except that no compensation
shall be awarded under this section to
any person as a result of reevaluation
pursuant to this subparagraph and, if
the permit covers activities in type A
wetlands, the permit shall continue in
effect without modification.
(iii) Procedure.--The reevaluation
shall be carried out in accordance with
time limits set forth in subsection
(e)(5) and shall be subject to
administrative appeal under subsection
(i).
(D) Previously denied permits.--No permit
shall be issued under this section, no
exemption shall be available under subsection
(f), and no exception shall be available under
subsection (g)(1)(B), for any activity for
which a permit has previously been denied by
the Secretary on more than one occasion unless
such activity--
(i) has been approved by the affected
State, county, and local government
within the boundaries of which the
activity is proposed;
(ii) in the case of unincorporated
land, has been approved by all local
governments within 1 mile of the
proposed activity; and
(iii) would result in a net
improvement to water quality at the
site of such activity.
(11) Definitions.--In this section the following
definitions apply:
(A) Activity in wetlands or waters of the
united states.--The term ``activity in wetlands
or waters of the United States'' means--
(i) the discharge of dredged or fill
material into waters of the United
States, including wetlands at a
specific disposal site; or
(ii) the draining, channelization, or
excavation of wetlands.
(B) Agency.--The term ``agency'' has the
meaning given that term in section 551 of title
5, United States Code.
(C) Agency action.--The term ``agency
action'' has the meaning given that term in
section 551 of title 5, United States Code, but
also includes the making of a grant to a public
authority conditioned upon an action by the
recipient that would constitute a limitation if
done directly by the agency.
(D) Agricultural land.--The term
``agricultural land'' means cropland,
pastureland, native pasture, rangeland, an
orchard, a vineyard, nonindustrial forest land,
an area that supports a water dependent crop
(including cranberries, taro, watercress, or
rice), and any other land used to produce or
support the production of an annual or
perennial crop (including forage or hay),
aquaculture product, nursery product, or
wetland crop or the production of livestock.
(E) Conserved wetlands.--The term ``conserved
wetlands'' means wetlands that are located in
the National Park System, National Wildlife
Refuge System, National Wilderness System, the
Wild and Scenic River System, and other similar
Federal conservation systems, combined with
wetlands located in comparable types of
conservation systems established under State
and local authority within State and local land
use systems.
(F) Economic base lands.--The term ``economic
base lands'' means lands conveyed to, selected
by, or owned by Alaska Native entities pursuant
to the Alaska Native Claims Settlement Act,
Public Law 92-203 or the Alaska Native
Allotment Act of 1906 (34 Stat. 197), and lands
conveyed to, selected by, or owned by the State
of Alaska pursuant to the Alaska Statehood Act,
Public Law 85-508.
(G) Fair market value.--The term ``fair
market value'' means the most probable price at
which property would change hands, in a
competitive and open market under all
conditions requisite to a fair sale, between a
willing buyer and a willing seller, neither
being under any compulsion to buy or sell and
both having reasonable knowledge of relevant
facts, at the time the agency action occurs.
(H) Law of a state.--The term ``law of a
State'' includes the law of a political
subdivision of a State.
(I) Mitigation bank.--The term ``mitigation
bank'' means a wetlands restoration, creation,
enhancement, or preservation project undertaken
by one or more parties, including private and
public entities, expressly for the purpose of
providing mitigation compensation credits to
offset adverse impacts to wetlands or other
waters of the United States authorized by the
terms of permits allowing activities in such
wetlands or waters.
(J) Navigational dredging.--The term
``navigational dredging'' means the dredging of
ports, waterways, and inland harbors, including
berthing areas and local access channels
appurtenant to a Federal navigation channel.
(K) Property.--The term ``property'' means
land and includes the right to use or receive
water.
(L) Secretary.--The term ``Secretary'' means
the Secretary of the Army.
(M) State with substantial conserved wetlands
areas.--The term ``State with substantial
conserved wetlands areas'' means any State
which--
(i) contains at least 10 areas of
wetlands for each acre of wetlands
filled, drained, or otherwise converted
within such State (based upon wetlands
loss statistics reported in the 1990
United States Fish and Wildlife Service
Wetlands Trends report to Congress
entitled ``Wetlands Losses in the
United States 1780's to 1980's''); or
(ii) the Secretary of the Army
determines has sufficient conserved
wetlands areas to provided adequate
wetlands conservation in such State,
based on the policies set forth in this
Act.
(N) Wetlands.--The term ``wetlands'' means
those lands that meet the criteria for
delineation of lands as wetlands set forth in
subsection (g).
disposal of sewage sludge
Sec. 405. (a) Notwithstanding any other provision of this
Act or of any other law, in the case where the disposal of
sewage sludge (also referred to as ``biosolids'') resulting
from the operation of a treatment works as defined in section
212 of this Act (including the removal of in-place sewage
sludge from one location and its deposit at another location)
would result in any pollutant from such sewage sludge entering
the navigable waters, such disposal is prohibited except in
accordance with a permit issued by the Administrator under
section 402 of this Act.
* * * * * * *
(f) Implementation of Regulations.--
(1) * * *
* * * * * * *
(3) Approval of state programs.--Notwithstanding any
other provision of law, the Administrator shall approve
for purposes of this subsection State programs that
meet the standards for final use or disposal of sewage
sludge established by the Administrator pursuant to
subsection (d).
(g) Studies and Projects.--
(1) Grant program; information gathering.--The
Administrator is authorized to conduct or initiate
scientific studies, demonstration projects, and public
information and education projects which are designed
to promote the safe and beneficial management or use of
sewage sludge for such purposes as aiding the
restoration of abandoned mine sites, conditioning soil
for parks and recreation areas, agricultural and
horticultural uses, building materials, and other
beneficial purposes. For the purposes of carrying out
this subsection, the Administrator may make grants to
State water pollution control agencies, other public or
nonprofit agencies, institutions, organizations, and
individuals. In cooperation with other Federal
departments and agencies, other public and private
agencies, institutions, and organizations, the
Administrator is authorized to collect and disseminate
information pertaining to the safe and beneficial use
of sewage sludge. Not later than January 1, 1997, and
after providing notice and opportunity for public
comment, the Administrator shall issue guidance on the
beneficial use of sewage sludge.
(2) Authorization of appropriations.--For the
purposes of carrying out the scientific studies,
demonstration projects, and public information and
education projects authorized in this section, there is
authorized to be appropriated for fiscal years
beginning after [September 30, 1986,] September 30,
1995, not to exceed $5,000,000.
SEC. 406. WASTE TREATMENT SYSTEMS DEFINED.
(a) Issuance of Regulations.--Not later than 1 year of the
date of the enactment of this section, the Administrator, after
consultation with State officials, shall issue a regulation
defining ``waste treatment systems''.
(b) Inclusion of Areas.--
(1) Areas which may be included.--In defining the
term ``waste treatment systems'' under subsection (a),
the Administrator may include areas used for the
treatment of wastes if the Administrator determines
that such inclusion will not interfere with the goals
of this Act.
(2) Areas which shall be included.--In defining the
term ``waste treatment systems'' under subsection (a),
the Administrator shall include, at a minimum, areas
used for detention, retention, treatment, settling,
conveyance, or evaporation of wastewater, stormwater,
or cooling water unless--
(A) the area was created in or resulted from
the impoundment or other modification of
navigable waters and construction of the area
commenced after the date of the enactment of
this section;
(B) on or after February 15, 1995, the owner
or operator allows the area to be used by
interstate or foreign travelers for
recreational purposes; or
(C) on or after February 15, 1995, the owner
or operator allows the taking of fish or
shellfish from the area for sale in interstate
or foreign commerce.
(c) Interim Period.--Before the date of issuance of
regulations under subsection (a), the Administrator or the
State (in the case of a State with an approved permit program
under section 402) shall not require a new permit under section
402 or section 404 for any discharge into any area used for
detention, retention, treatment, settling, conveyance, or
evaporation of wastewater, stormwater, or cooling water unless
the area is an area described in subsection (b)(2)(A),
(b)(2)(B), or (b)(2)(C).
(d) Savings Clause.--Any area which the Administrator or the
State (in the case of a State with an approved permit program
under section 402) determined, before February 15, 1995, is a
water of the United States and for which, pursuant to such
determination, the Administrator or State issued, before
February 15, 1995, a permit under section 402 for discharges
into such area shall remain a water of the United States.
(e) Regulation of Other Areas.--With respect to areas
constructed for detention, retention, treatment, settling,
conveyance, or evaporation of wastewater, stormwater, or
cooling water that are not waste treatment systems as defined
by the Administrator pursuant to this section and that the
Administrator determines are navigable waters under this Act,
the Administrator or the States, in establishing standards
pursuant to section 303(c) of this Act or implementing other
requirements of this Act, shall give due consideration to the
uses for which such areas were designed and constructed, and
need not establish standards or other requirements that will
impede such uses.
* * * * * * *
TITLE V--GENERAL PROVISIONS
administration
Sec. 501. (a) * * *
* * * * * * *
(g) Consultation With States.--
(1) In general.--The Administrator shall consult with
and substantially involve State governments and their
representative organizations and, to the extent that
they participate in the administration of this Act,
tribal and local governments, in the Environmental
Protection Agency's decisionmaking, priority setting,
policy and guidance development, and implementation
under this Act.
(2) Inapplicability of federal advisory committee
act.--The Federal Advisory Committee Act (5 U.S.C.
App.) shall not apply to meetings held to carry out
paragraph (1)--
(A) if such meetings are held exclusively
between Federal officials and elected officers
of State, local, and tribal governments (or
their designated employees with authority to
act on their behalf) acting in their official
capacities; and
(B) if such meetings are solely for the
purposes of exchanging views, information, or
advice relating to the management or
implementation of this Act.
(3) Implementing guidelines.--No later than 6 months
after the date of the enactment of this paragraph, the
Administrator shall issue guidelines for appropriate
implementation of this subsection consistent with
applicable laws and regulations.
general definitions
Sec. 502. Except as otherwise specifically provided, when
used in this Act:
(1) * * *
* * * * * * *
(5) The term ``person'' means an individual, corporation,
partnership, association, State, municipality, commission, or
political subdivision of a State, or any interstate body and
includes any department, agency, or instrumentality of the
United States.
(6) The term ``pollutant'' means [dredged spoil,] solid
waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural waste
discharged into water. This term does not mean (A) ``sewage
from vessels'' within the meaning of section 312 of this Act;
[or] (B) water, gas, or other material which is injected into a
well to facilitate production of oil or gas, or water derived
in association with oil or gas production and disposed of in a
well, if the well used either to facilitate production or for
disposal purpose is approved by authority of the State in which
the well is located, and if such State determines that such
injection or disposal will not result in the degradation of
ground or surface water resources; and (C) dredged or fill
material.
(7) The term ``navigable waters'' means the waters of the
United States, including the territorial seas. Such term does
not include ``waste treatment systems'', as defined under
section 406.
* * * * * * *
(14) The term ``point source'' means any discernible,
confined and discrete conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding
operation (other than an intermittent nonproducing livestock
operation such as a stockyard or a holding and sorting
facility), or vessel or other floating craft, from which
pollutants are or may be discharged. This term does not include
agricultural stormwater discharges and return flows from
irrigated agriculture. The term does not include a stormwater
discharge. The term does include an intermittent nonproducing
livestock operation if the average number of animal units that
are fed or maintained in any 90-day period exceeds the number
of animal units determined by the Administrator or the State
(in the case of a State with an approved permit program under
section 402) to constitute a concentrated animal feeding
operation or if the operation is designated by the
Administrator or State as a significant contributor of
pollution.
* * * * * * *
(21) The term ``effluent-dependent stream'' means a stream or
a segment thereof--
(A) with respect to which the flow (based on the
annual average expected flow, determined by calculating
the average mode over a 10-year period) is primarily
attributable to the discharge of treated wastewater;
(B) that, in the absence of a discharge of treated
wastewater and other primary anthropogenic surface or
subsurface flows, would be an ephemeral stream; or
(C) that is an effluent-dependent stream under
applicable State water quality standards.
(22) The term ``ephemeral stream'' means a stream or segments
thereof that flows periodically in response to precipitation,
snowmelt, or runoff.
(23) The term ``constructed water conveyance'' means a
manmade water transport system constructed for the purpose of
transporting water in a waterway that is not and never was a
natural perennial waterway.
(24) The term ``radioactive materials'' includes source
materials, special nuclear materials, and byproduct materials
(as such terms are defined under the Atomic Energy Act of 1954)
which are used, produced, or managed at facilities not licensed
by the Nuclear Regulatory Commission; except that such term
does not include any material which is discharged from a vessel
covered by Executive Order 12344 (42 U.S.C. 7158 note; relating
to the Naval Nuclear Propulsion Program).
(25) The term ``stormwater'' means runoff from rain, snow
melt, or any other precipitation-generated surface runoff.
(26) The term ``stormwater discharge'' means a discharge from
any conveyance which is used for the collecting and conveying
of stormwater to navigable waters and which is associated with
a municipal storm sewer system or industrial, commercial, oil,
gas, or mining activities or construction activities.
(27) The term ``publicly owned treatment works'' means a
treatment works, as defined in section 212, located at other
than an industrial facility, which is designed and constructed
principally, as determined by the Administrator, to treat
domestic sewage or a mixture of domestic sewage and industrial
wastes of a liquid nature. In the case of such a facility that
is privately owned, such term includes only those facilities
that, with respect to such industrial wastes, are carrying out
a pretreatment program meeting all the requirements established
under section 307 and paragraphs (8) and (9) of section 402(b)
for pretreatment programs (whether or not the treatment works
would be required to implement a pretreatment program pursuant
to such sections).
(28) The term ``wetlands'' means lands which have a
predominance of hydric soils and which are inundated by surface
water at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs,
and similar areas.
(29) The term ``creation of wetlands'' means an activity that
brings a wetland into existence at a site where it did not
formerly occur for the purpose of compensatory mitigation.
(30) The term ``enhancement of wetlands'' means any activity
that increases the value of one or more functions in existing
wetlands.
(31) The term ``fastlands'' means lands located behind
legally constituted man-made structures or natural formations,
such as levees constructed and maintained to permit the
utilization of such lands for commercial, industrial, or
residential purposes consistent with local land use planning
requirements.
(32) The term ``wetlands functions'' means the roles wetlands
serve, including flood water storage, flood water conveyance,
ground water recharge, erosion control, wave attenuation, water
quality protection, scenic and aesthetic use, food chain
support, fisheries, wetlands plant habitat, aquatic habitat,
and habitat for wetland dependent wildlife.
(33) The term ``growing season'' means, for each plant
hardiness zone, the period between the average date of last
frost in spring and the average date of first frost in autumn.
(34) The term ``incidentally created wetlands'' means lands
that exhibit wetlands characteristics sufficient to meet the
criteria for delineation of wetlands, where one or more of such
characteristics is the unintended result of human induced
alterations of hydrology.
(35) The term ``maintenance'' when used in reference to
wetlands means activities undertaken to assure continuation of
a wetland or the accomplishment of project goals after a
restoration or creation project has been technically completed,
including water level manipulations and control of nonnative
plant species.
(36) The term ``mitigation banking'' means wetlands
restoration, enhancement, preservation or creation for the
purpose of providing compensation for wetland degradation or
loss.
(37) The term ``normal farming, silviculture, aquaculture and
ranching activities'' means normal practices identified as such
by the Secretary of Agriculture, in consultation with the
Cooperative Extension Service for each State and the land grant
university system and agricultural colleges of the State,
taking into account existing practices and such other practices
as may be identified in consultation with the affected industry
or community.
(38) The term ``prior converted cropland'' means any
agricultural land that was manipulated (by drainage or other
physical alteration to remove excess water from the land) or
used for the production of any annual or perennial agricultural
crop (including forage or hay), aquacultural product, nursery
product or wetlands crop, or the production of livestock before
December 23, 1985.
(39) The term ``restoration'' in reference to wetlands means
an activity undertaken to return a wetland from a disturbed or
altered condition with lesser acreage or fewer functions to a
previous condition with greater wetlands acreage or functions.
(40) The term ``temporary impact'' means the disturbance or
alteration of wetlands caused by activities under circumstances
in which, within 3 years following the commencement of such
activities, such wetlands--
(A) are returned to the conditions in existence prior
to the commencement of such activity; or
(B) display conditions sufficient to ensure, that
without further human action, such wetlands will return
to the conditions in existence prior to the
commencement of such activity.
(41) The term ``airport hazard'' has the meaning such term
has under section 47102 of title 49, United States Code.
* * * * * * *
citizen suits
Sec. 505. (a) * * *
* * * * * * *
(f) For purposes of this section, the term ``effluent
standard or limitation under this Act'' means (1) effective
July 1, 1973, an unlawful act under subsection (a) of section
301 of this Act; (2) an effluent limitation or other limitation
under section 301 or 302 of this Act; (3) standard or
performance under section 306 of this Act; (4) prohibition,
effluent standard or pretreatment standards under section 307
of this Act; (5) certification under section 401 of this Act;
(6) a permit or condition thereof issued under section 402 of
this Act, which is in effect under this Act (including a
requirement applicable by reason of section 313 of this Act);
or (7) a regulation under section 405(d) of this Act[,].
* * * * * * *
[state authority
[Sec. 510. Except]
SEC. 510. STATE AUTHORITY.
(a) In General.--Except as expressly provided in this Act,
nothing in this Act shall (1) preclude or deny the right of any
State or political subdivision thereof or interstate agency to
adopt or enforce (A) any standard or limitation respecting
discharges of pollutants, or (B) any requirement respecting
control or abatement of pollution; except that if an effluent
limitation, or other limitation, effluent standard,
prohibition, pretreatment standard, or standard of performance
is in effect under this Act, such State or political
subdivision or interstate agency may not adopt or enforce any
effluent limitation, or other limitation, effluent standard,
prohibition, pretreatment standard, or standard of performance
which is less stringent than the effluent limitation, or other
limitation, effluent standard prohibition, pretreatment
standard, or standard of performance under this Act; or (2) be
construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters
(including boundary waters) of such States.
(b) Water Rights.--Nothing in this Act shall be construed to
supersede, abrogate, or otherwise impair any right or authority
of a State to allocate quantities of water (including boundary
waters). Nothing in this Act shall be implemented, enforced, or
construed to allow any officer or agency of the United States
to utilize directly or indirectly the authorities established
under this Act to impose any requirement not imposed by the
State which would supersede, abrogate, or otherwise impair
rights to the use of water resources allocated under State law,
interstate water compact, or Supreme Court decree, or held by
the United States for use by a State, its political
subdivisions, or its citizens. No water rights arise in the
United States or any other person under the provisions of this
Act. This subsection shall not be construed as limiting any
State's authority under section 401 of this Act, as excusing
any person from obtaining a permit under section 402 or 404 of
this Act, or as excusing any obligation to comply with
requirements established by a State to implement section 319.
* * * * * * *
reports to congress
Sec. 516. (a) Within ninety days following the convening of
each session of Congress, the Administrator shall submit to the
Congress a report, in addition to any other report required by
this Act, on measures taken toward implementing the objective
of this Act, including, but not limited to, (1) the progress
and problems associated with developing comprehensive plans
under section 102 of this Act, areawide plans under section 208
of this Act, basin plans under section 209 of this Act, and
plans under section 303(e) of this Act; (2) a summary of
actions taken and results achieved in the field of water
pollution control research, experiments, studies, and related
matters by the Administrator and other Federal agencies and by
other persons and agencies under Federal grants or contracts;
(3) the progress and problems associated with the development
of effluent limitations and recommended control techniques; (4)
the status of State programs, including a detailed summary of
the progress obtained as compared to that planned under the
State program plans for development and enforcement of water
quality requirements; (5) the identification and status of
enforcement actions pending or completed under such Act during
the preceding year; (6) the status of State, interstate, and
local pollution control programs established pursuant to, and
assisted by, this Act; (7) a summary of the results of the
survey required to be taken under section 210 of this Act; (8)
his activities including recommendations under sections 109
through 111 of this Act; [and (9)] (9) the monitoring conducted
by States on the water quality of beaches and the issuance of
health advisories with respect to beaches, and (10) all reports
and recommendations made by the Water Pollution Control
Advisory Board.
(b)(1) The Administrator, in cooperation with the States,
including water pollution control agencies and other water
pollution control planning agencies, shall make (A) a detailed
estimate of the cost of carrying out the provisions of this
Act; (B) a detailed estimate, [biennially revised]
quadrennially revised, of the cost of construction of all
needed publicly owned treatment works in all of the States and
of the cost of construction of all needed publicly owned
treatment works in each of the States; (C) a comprehensive
study of the economic impact on affected units of government of
the cost of installation of treatment facilities; and (D) a
comprehensive analysis of the national requirements for and the
cost of treating municipal, industrial, and other effluent to
attain the water quality objectives as established by this Act
or applicable State law. The Administrator shall submit such
detailed estimate and such comprehensive study of such cost to
the Congress no later than [February 10 of each odd-numbered
year] December 31, 1997, and December 31 of every 4th calendar
year thereafter. Whenever the Administrator, pursuant to this
subsection, requests and receives an estimate of cost from a
State, he shall furnish copies of such estimate together with
such detailed estimate to Congress.
* * * * * * *
[(g)] (f) State Revolving Fund Report.--
(1) * * *
* * * * * * *
GENERAL AUTHORIZATION
Sec. 517. There are authorized to be appropriated to carry
out this Act, other than sections 104, 105, 106(a), 107, 108,
112, 113, 114, 115, 206, 207, 208 (f) and (h), 209, 304, 311
(c), (d), (i), (l), and (k), 314, 315, and 317, $250,000,000
for the fiscal year ending June 30, 1973, $300,000,000 for the
fiscal year ending June 30, 1974, $350,000,000 for the fiscal
year ending June 30, 1975, $100,000,000 for the fiscal year
ending September 30, 1977, $150,000,000 for the fiscal year
ending September 30, 1978, $150,000,000 for the fiscal year
ending September 30, 1979, $150,000,000 for the fiscal year
ending September 30, 1980, $150,000,000 for the fiscal year
ending September 30, 1981, $161,000,000 for the fiscal year
ending September 30, 1982, such sums as may be necessary for
fiscal years 1983 through 1985, [and] $135,000,000 per fiscal
year for each of the fiscal years 1986 through 1990, and such
sums as may be necessary for each of fiscal years 1991 through
2000.
SEC. 518. INDIAN TRIBES.
(a) * * *
* * * * * * *
(c) Reservation of Funds.--The Administrator shall reserve
each fiscal year [beginning after September 30, 1986,] before
allotments to the States under [section 205(e), one-half of]
section 604(a), one percent of the sums appropriated under
[section 207] sections 607 and 608. Sums reserved under this
subsection shall be available only for grants for the
develoment of waste treatment management plans and for the
construction of sewage treatment works to serve Indian tribes,
as defined in subsection (h) and former Indian reservations in
Oklahoma (as determined by the Secretary of the Interior) and
Alaska Native Villages as defined in Public Law 92-203.
(d) Cooperative Agreements.--In order to ensure the
consistent implementation of the requirements of this Act, an
Indian tribe and the State or States in which the lands of such
tribe are located may enter into a cooperative agreement,
subject to the review and approval of the Administrator, to
jointly plan and administer the requirements of this Act. In
exercising the review and approval provided in this paragraph,
the Administrator shall respect the terms of any cooperative
agreement that addresses the authority or responsibility of a
State or Indian tribe to administer the requirements of this
Act within the exterior boundaries of a Federal Indian
reservation, so long as that agreement otherwise provides for
the adequate administration of this Act.
* * * * * * *
(f) Grants for Nonpoint Source Programs.--The Administrator
shall make grants to an Indian tribe under section 319 of this
Act as though such tribe was a State. Not more than one-third
of one percent of the amount appropriated for any fiscal year
under section 319 may be used to make grants under this
subsection. In addition to the requirements of section 319, an
Indian tribe shall be required to meet the requirements of
paragraphs (1), (2), and (3) of subsection [(d)] (e) of this
section in order to receive such a grant.
* * * * * * *
(h) Dispute Resolution.--The Administrator shall promulgate,
in consultation with States and Indian tribes, regulations
which provide for the resolution of any unreasonable
consequences that may arise as a result of differing water
quality standards that may be set by States and Indian tribes
located on common bodies of water. Such mechanism shall
provide, in a manner consistent with the objectives of this
Act, that persons who are affected by differing tribal or State
water quality permit requirements have standing to utilize the
dispute resolution process, and for the explicit consideration
of relevant factors, including the effects of differing water
quality permit requirements on upstream and downstream
dischargers, economic impacts, and present and historical uses
and quality of the waters subject to such standards.
(i) District Courts; Petition for Review; Standard of
Review.--Notwithstanding the provisions of section 509, the
United States district courts shall have jurisdiction over
actions brought to review any determination of the
Administrator under section 518. Such an action may be brought
by a State or a Indian tribe and shall be filed with the court
within the 90-day period beginning on the date of the
determination of the Administrator is made. In any such action,
the district court shall review the Administrator's
determination de novo.
[(h)] (j) Definitions.--For purposes of this section, the
term--
(1) ``Federal Indian reservation'' means all
land within the limits of any Indian
reservation under the jurisdiction of the
United States Government, notwithstanding the
issuance of any patent, and including rights-
of-way running through the reservation, and, in
the State of Oklahoma, such term includes lands
held in trust by the United States for the
benefit of an Indian tribe or an individual
member of an Indian tribe, lands which are
subject to Federal restrictions against
alienation, and lands which are located within
a dependent Indian community, as defined in
section 1151 of title 18, United States Code;
and
(2) ``Indian tribe'' means any Indian tribe, band,
group, or community recognized by the Secretary of the
Interior and exercising governmental authority over a
Federal Indian reservation.
SEC. 519. FOOD PROCESSING AND FOOD SAFETY.
In developing any effluent guideline under section 304(b),
pretreatment standard under section 307(b), or new source
performance standard under section 306 that is applicable to
the food processing industry, the Administrator shall consult
with and consider the recommendations of the Food and Drug
Administration, Department of Health and Human Services,
Department of Agriculture, and Department of Commerce. The
recommendations of such departments and agencies and a
description of the Administrator's response to those
recommendations shall be made part of the rulemaking record for
the development of such guidelines and standards. The
Administrator's response shall include an explanation with
respect to food safety, including a discussion of relative
risks, of any departure from a recommendation by any such
department or agency.
SEC. 520. AUDIT DISPUTE RESOLUTION.
(a) Establishment of Board.--The Administrator shall
establish an independent Board of Audit Appeals (hereinafter in
this section referred to as the ``Board'') in accordance with
the requirements of this section.
(b) Duties.--The Board shall have the authority to review and
decide contested audit determinations related to grant and
contract awards under this Act. In carrying out such duties,
the Board shall consider only those regulations, guidance,
policies, facts, and circumstances in effect at the time of the
grant or contract award.
(c) Prior Eligibility Decisions.--The Board shall not reverse
project cost eligibility determinations that are supported by
an decision document of the Environmental Protection Agency,
including grant or contract approvals, plans and specifications
approval forms, grant or contract payments, change order
approval forms, or similar documents approving project cost
eligibility, except upon a showing that such decision was
arbitrary, capricious, or an abuse of law in effect at the time
of such decision.
(d) Membership.--
(1) Appointment.--The Board shall be composed of 7
members to be appointed by the Administrator not later
than 90 days after the date of the enactment of this
section.
(2) Terms.--Each member shall be appointed for a term
of 3 years.
(3) Qualifications.--The Administrator shall appoint
as members of the Board individuals who are specially
qualified to serve on the Board by virtue of their
expertise in grant and contracting procedures. The
Administrator shall make every effort to ensure that
individuals appointed as members of the Board are free
from conflicts of interest in carrying out the duties
of the Board.
(e) Basic Pay and Travel Expenses.--
(1) Rates of pay.--Except as provided in paragraph
(2), members shall each be paid at a rate of basic pay,
to be determined by the Administrator, for each day
(including travel time) during which they are engaged
in the actual performance of duties vested in the
Board.
(2) Prohibition of compensation of federal
employees.--Members of the Board who are full-time
officers or employees of the United States may not
receive additional pay, allowances, or benefits by
reason of their service on the Board.
(3) Travel expenses.--Each member shall receive
travel expenses, including per diem in lieu of
subsistence, in accordance with sections 5702 and 5703
of title 5, United States Code.
(f) Administrative Support Services.--Upon the request of the
Board, the Administrator shall provide to the Board the
administrative support services necessary for the Board to
carry out its responsibilities under this section.
(g) Disputes Eligible for Review.--The authority of the Board
under this section shall extend to any contested audit
determination that on the date of the enactment of this section
has yet to be formally concluded and accepted by either the
grantee or the Administrator.
short title
Sec. [519.] 521. This Act may be cited as the ``Federal
Water Pollution Control Act'' (commonly referred to as the
Clean Water Act).
TITLE VI--STATE WATER POLLUTION CONTROL REVOLVING FUNDS
SEC. 601. GRANTS TO STATES FOR ESTABLISHMENT OF REVOLVING FUNDS.
(a) General Authority.--Subject to the provisions of this
title, the Administrator shall make capitalization grants to
each State for the purpose of establishing a water pollution
control revolving fund for providing assistance [(1) for
construction of treatment works (as defined in section 212 of
this Act) which are publicly owned, (2) for implementing a
management program under section 319, and (3) for developing
and implementing a conservation and management plan under
section 320.] to accomplish the purposes of this Act.
* * * * * * *
SEC. 602. CAPITALIZATION GRANT AGREEMENTS.
(a) * * *
(b) Specific Requirements.--The Administrator shall enter
into an agreement under this section with a State only after
the State has established to the satisfaction of the
Administrator that--
(1) * * *
* * * * * * *
(6) treatment works eligible under section 603(c)(1) of
this Act which will be constructed in whole or in part
[before fiscal year 1995] with funds directly made
available by capitalization grants under this title and
section 205(m) of this Act will meet the requirements
of, or otherwise be treated (as determined by the
Governor of the State) under sections [201(b),
201(g)(1), 201(g)(2), 201(g)(3), 201(g)(5), 201(g)(6),
201(n)(1), 201(o), 204(a)(1), 204(a)(2), 204(b)(1),
204(d)(2), 211, 218] 211, 511(c)(1), and 513 of this
Act in the same manner as treatment works constructed
with assistance under title II of this Act;
* * * * * * *
(c) Other Federal Laws.--
(1) Compliance with other federal laws.--If a State
provides assistance from its water pollution control
revolving fund established in accordance with this
title and in accordance with a statute, rule, executive
order, or program of the State which addresses the
intent of any requirement or any Federal executive
order or law other than this Act, as determined by the
State, the State in providing such assistance shall be
treated as having met the Federal requirements.
(2) Limitation on applicability of other federal
laws.--If a State does not meet a requirement of a
Federal executive order or law other than this Act
under paragraph (1), such Federal law shall only apply
to Federal funds deposited in the water pollution
control revolving fund established by the State in
accordance with this title the first time such funds
are used to provide assistance from the revolving fund.
(d) Guidance for Small Systems.--
(1) Simplified procedures.--Not later than 1 year
after the date of the enactment of this subsection, the
Administrator shall assist the States in establishing
simplified procedures for small systems to obtain
assistance under this title.
(2) Publication of manual.--Not later than 1 year
after the date of the enactment of this subsection, and
after providing notice and opportunity for public
comment, the Administrator shall publish a manual to
assist small systems in obtaining assistance under this
title and publish in the Federal Register notice of the
availability of the manual.
(3) Small system defined.--For purposes of this
title, the term ``small system'' means a system for
which a municipality or intermunicipal, interstate, or
State agency seeks assistance under this title and
which serves a population of 20,000 or less.
SEC. 603. WATER POLLUTION CONTROL REVOLVING LOAN FUNDS.
(a) * * *
* * * * * * *
[(c) Projects Eligible for Assistance.--The amounts of
funds available to each State water pollution control revolving
fund shall be used only for providing financial assistance (1)
to any municipality, intermunicipal, interstate, or State
agency for construction of publicly owned treatment works (as
defined in section 212 of this Act), (2) for the implementation
of a management program established under section 319 of this
Act, and (3) for development and implementation of a
conservation and management plan under section 320 of this Act.
The fund shall be established, maintained, and credited with
repayments, and the fund balance shall be available in
perpetuity for providing such financial assistance.]
(c) Activities Eligible for Assistance.--
(1) In general.--The amounts of funds available to
each State water pollution control revolving fund shall
be used only for providing financial assistance to
activities which have as a principal benefit the
improvement or protection of water quality to a
municipality, intermunicipal agency, interstate agency,
State agency, or other person. Such activities may
include the following:
(A) Construction of a publicly owned
treatment works if the recipient of such
assistance is a municipality.
(B) Implementation of lake protection
programs and projects under section 314.
(C) Implementation of a management program
under section 319.
(D) Implementation of a conservation and
management plan under section 320.
(E) Implementation of a watershed management
plan under section 321.
(F) Implementation of a stormwater management
program under section 322.
(G) Acquisition of property rights for the
restoration or protection of publicly or
privately owned riparian areas.
(H) Implementation of measures to improve the
efficiency of public water use.
(I) Development and implementation of plans
by a public recipient to prevent water
pollution.
(J) Acquisition of lands necessary to meet
any mitigation requirements related to
construction of a publicly owned treatment
works.
(2) Fund amounts.--The water pollution control
revolving fund of a State shall be established,
maintained, and credited with repayments, and the fund
balance shall be available in perpetuity for providing
financial assistance described in paragraph (1). Fees
charged by a State to recipients of such assistance may
be deposited in the fund for the sole purpose of
financing the cost of administration of this title.
(d) Types of Assistance.--Except as otherwise limited by
State law, a water pollution control revolving fund of a State
under this section may be used only--
(1) to make loans, on the condition that--
(A) such loans are made at or below market
interest rates, including interest free loans,
at terms not to exceed 20 years or, in the case
of a disadvantaged community, the lesser of 40
years or the expected life of the project to be
financed with the proceeds of the loan;
(B) annual principal and interest payments
will commence not later than 1 year after
completion of any project and all loans will be
fully amortized [not later than 20 years after
project completion] upon the expiration of the
term of the loan;
* * * * * * *
[(5) to provide loan guarantees for similar revolving
funds established by municipalities or intermunicipal
agencies;]
(5) to provide loan guarantees for--
(A) similar revolving funds established by
municipalities or intermunicipal agencies; and
(B) developing and implementing innovative
technologies.
(6) to earn interest on fund accounts; [and]
(7) for the reasonable costs of administering the
fund and conducting activities under this title, except
that such amounts shall not exceed 4 percent of all
grant awards to such fund under this title[.] or
$400,000 per year, whichever is greater, plus the
amount of any fees collected by the State for such
purpose under subsection (c)(2); and
(8) to provide to small systems technical and
planning assistance and assistance in financial
management, user fee analysis, budgeting, capital
improvement planning, facility operation and
maintenance, repair schedules, and other activities to
improve wastewater treatment plant operations; except
that such amounts shall not exceed 2 percent of all
grant awards to such fund under this title.
* * * * * * *
(f) Consistency With Planning Requirements.--A State may
provide financial assistance from its water pollution control
revolving fund only with respect to a project which is
consistent with plans, if any, developed under sections 205(j),
208, 303(e), 319, [and 320] 320, 321, and 322 of this Act.
[(g) Priority List Requirement.--The State may provide
financial assistance from its water pollution control revolving
fund only with respect to a project for construction of a
treatment works described in subsection (c)(1) if such project
is on the State's priority list under section 216 of this Act.
Such assistance may be provided regardless of the rank of such
project on such list.]
(g) Limitations on Construction Assistance.--The State may
provide financial assistance from its water pollution control
revolving fund with respect to a project for construction of a
treatment works only if--
(1) such project is on the State's priority list
under section 216 of this Act; and
(2) the recipient of such assistance is a
municipality in any case in which the treatment works
is privately owned.
* * * * * * *
(i) Interest Rates.--In any case in which a State makes a
loan pursuant to subsection (d)(1) to a disadvantaged
community, the State may charge a negative interest rate of not
to exceed 2 percent to reduce the unpaid principal of the loan.
The aggregate amount of all such negative interest rate loans
the State makes in a fiscal year shall not exceed 20 percent of
the aggregate amount of all loans made by the State from its
revolving loan fund in such fiscal year.
(j) Disadvantaged Community Defined.--As used in this
section, the term ``disadvantaged community'' means the service
area of a publicly owned treatment works with respect to which
the average annual residential sewage treatment charges for a
user of the treatment works meet affordability criteria
established by the State in which the treatment works is
located (after providing for public review and comment) in
accordance with guidelines to be established by the
Administrator, in cooperation with the States.
(k) Sale of Treatment Works.--
(1) In general.--Notwithstanding any other provisions
of this Act, any State, municipality,
intermunicipality, or interstate agency may transfer by
sale to a qualified private sector entity all or part
of a treatment works that is owned by such agency and
for which it received Federal financial assistance
under this Act if the transfer price will be
distributed, as amounts are received, in the following
order:
(A) First reimbursement of the agency of the
unadjusted dollar amount of the costs of
construction of the treatment works or part
thereof plus any transaction and fix-up costs
incurred by the agency with respect to the
transfer less the amount of such Federal
financial assistance provided with respect to
such costs.
(B) If proceeds from the transfer remain
after such reimbursement, repayment of the
Federal Government of the amount of such
Federal financial assistance less the
applicable share of accumulated depreciation on
such treatment works (calculated using Internal
Revenue Service accelerated depreciation
schedule applicable to treatment works).
(C) If any proceeds of such transfer remain
after such reimbursement and repayment,
retention of the remaining proceeds by such
agency.
(2) Release of condition.--Any requirement imposed by
regulation or policy for a showing that the treatment
works are no longer needed to serve their original
purpose shall not apply.
(3) Selection of buyer.--A State, municipality,
intermunicipality, or interstate agency exercising the
authority granted by this subsection shall select a
qualified private sector entity on the basis of total
net cost and other appropriate criteria and shall
utilize such competitive bidding, direct negotiation,
or other criteria and procedures as may be required by
State law.
(l) Private Ownership of Treatment Works.--
(1) Regulatory review.--The Administrator shall
review the law and any regulations, policies, and
procedures of the Environmental Protection Agency
affecting the construction, improvement, replacement,
operation, maintenance, and transfer of ownership of
current and future treatment works owned by a State,
municipality, intermunicipality, or interstate agency.
If permitted by law, the Administrator shall modify
such regulations, policies, and procedures to eliminate
any obstacles to the construction, improvement,
replacement, operation, and maintenance of such
treatment works by qualified private sector entities.
(2) Report.--Not later than 180 days after the date
of enactment of this subsection, the Administrator
shall submit to Congress a report identifying any
provisions of law that must be changed in order to
eliminate any obstacles referred to in paragraph (1).
(3) Definition.--For purposes of this section, the
term ``qualified private sector entity'' means any
nongovernmental individual, group, association,
business, partnership, organization, or privately or
publicly held corporation that--
(A) has sufficient experience and expertise
to discharge successfully the responsibilities
associated with construction, operation, and
maintenance of a treatment works and to satisfy
any guarantees that are agreed to in connection
with a transfer of treatment works under
subsection (k);
(B) has the ability to assure protection
against insolvency and interruption of services
through contractual and financial guarantees;
and
(C) with respect to subsection (k), to the
extent consistent with the North American Free
Trade Agreement and the General Agreement on
Tariffs and Trade--
(i) is majority-owned and controlled
by citizens of the United States; and
(ii) does not receive subsidies from
a foreign government.
SEC. 604. ALLOTMENT OF FUNDS.
[(a) Formula.--Sums authorized to be appropriated to carry
out this section for each of fiscal years 1989 and 1990 shall
be allotted by the Administrator in accordance with section
205(c) of this Act.]
(a) Formula for Fiscal Years 1996-2000.--Sums authorized to
be appropriated pursuant to section 607 for each of fiscal
years 1996, 1997, 1998, 1999, and 2000 shall be allotted for
such year by the Administrator not later than the 10th day
which begins after the date of the enactment of the Clean Water
Amendments of 1995. Sums authorized for each such fiscal year
shall be allotted in accordance with the following table:
Percentage of sums
States: authorized:
Alabama................................................... 1.0110
Alaska.................................................... 0.5411
Arizona................................................... 0.7464
Arkansas.................................................. 0.5914
California................................................ 7.9031
Colorado.................................................. 0.7232
Connecticut............................................... 1.3537
Delaware.................................................. 0.4438
District of Columbia...................................... 0.4438
Florida................................................... 3.4462
Georgia................................................... 1.8683
Hawaii.................................................... 0.7002
Idaho..................................................... 0.4438
Illinois.................................................. 4.9976
Indiana................................................... 2.6631
Iowa...................................................... 1.2236
Kansas.................................................... 0.8690
Kentucky.................................................. 1.3570
Louisiana................................................. 1.0060
Maine..................................................... 0.6999
Maryland.................................................. 2.1867
Massachusetts............................................. 3.7518
Michigan.................................................. 3.8875
Minnesota................................................. 1.6618
Mississippi............................................... 0.8146
Missouri.................................................. 2.5063
Montana................................................... 0.4438
Nebraska.................................................. 0.4624
Nevada.................................................... 0.4438
New Hampshire............................................. 0.9035
New Jersey................................................ 4.5156
New Mexico................................................ 0.4438
New York.................................................. 12.1969
North Carolina............................................ 1.9943
North Dakota.............................................. 0.4438
Ohio...................................................... 5.0898
Oklahoma.................................................. 0.7304
Oregon.................................................... 1.2399
Pennsylvania.............................................. 4.2145
Rhode Island.............................................. 0.6071
South Carolina............................................ 0.9262
South Dakota.............................................. 0.4438
Tennessee................................................. 1.4668
Texas..................................................... 4.6458
Utah...................................................... 0.4764
Vermont................................................... 0.4438
Virginia.................................................. 2.2615
Washington................................................ 1.9217
West Virginia............................................. 1.4249
Wisconsin................................................. 2.4442
Wyoming................................................... 0.4438
Puerto Rico............................................... 1.1792
Northern Marianas......................................... 0.0377
American Samoa............................................ 0.0812
Guam...................................................... 0.0587
Pacific Islands Trust Territory........................... 0.1158
Virgin Islands............................................ 0.0576.
(b) Reservation of Funds for Planning.--Each State shall
reserve each fiscal year 1 percent of the sums allotted to such
State under this section for such fiscal year, or $100,000,
whichever amount is greater, to carry out planning under
sections 205(j) and 303(e) of this Act. In any fiscal year in
which a State is implementing a State watershed management
program approved under section 321, the State may reserve up to
an additional 2 percent of the sums allotted to the State for
such fiscal year for development of watershed management plans
under such program or $200,000, whichever is greater, if 50
percent of the amount reserved under this sentence will be made
available to local entities.
(c) Allotment Period.--
(1) * * *
(2) Reallotment of unobligated funds.--The amount of
any allotment not obligated by the State by the last
day of the 2-year period of availability established by
paragraph (1) shall be immediately reallotted by the
Administrator on the basis of the same ratio as is
applicable to sums allotted under [title II of this
Act] this title for the second fiscal year of such 2-
year period. None of the funds reallotted by the
Administrator shall be reallotted to any State which
has not obligated all sums allotted to such State in
the first fiscal year of such 2-year period.
* * * * * * *
SEC. 607. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to carry out the
purposes of this title (other than section 608) the following
sums:
(1) $1,200,000,000 per fiscal year for each of fiscal
year 1989 and 1990;
(2) $2,400,000,000 for fiscal year 1991;
(3) $1,800,000,000 for fiscal year 1992;
(4) $1,200,000,000 for fiscal year 1993; [and]
(5) $600,000,000 for fiscal year 1994[.];
(6) such sums as may be necessary for fiscal year
1995;
(7) $2,500,000,000 for fiscal year 1996;
(8) $2,500,000,000 for fiscal year 1997;
(9) $2,500,000,000 for fiscal year 1998;
(10) $2,500,000,000 for fiscal year 1999; and
(11) $2,500,000,000 for fiscal year 2000.
SEC. 608. STATE NONPOINT SOURCE WATER POLLUTION CONTROL REVOLVING
FUNDS.
(a) General Authority.--The Administrator shall make
capitalization grants to each State for the purpose of
establishing a nonpoint source water pollution control
revolving fund for providing assistance--
(1) to persons for carrying out management practices
and measures under the State management program
approved under section 319; and
(2) to agricultural producers for the development and
implementation of the water quality components of a
whole farm or ranch resource management plan and for
implementation of management practices and measures
under such a plan.
A State nonpoint source water pollution control revolving fund
shall be separate from any other State water pollution control
revolving fund; except that the chief executive officer of the
State may transfer funds from one fund to the other fund.
(b) Applicability of Other Requirements of This Title.--
Except to the extent the Administrator, in consultation with
the chief executive officers of the States, determines that a
provision of this title is not consistent with a provision of
this section, the provisions of sections 601 through 606 of
this title shall apply to grants made under this section in the
same manner and to the same extent as they apply to grants made
under section 601 of this title. Paragraph (5) of section
602(b) shall apply to all funds in a State revolving fund
established under this section as a result of capitalization
grants made under this section; except that such funds shall
first be used to assure reasonable progress toward attainment
of the goals of section 319, as determined by the Governor of
the State. Paragraph (7) of section 603(d) shall apply to a
State revolving fund established under this section, except
that the 4-percent limitation contained in such section shall
not apply to such revolving fund.
(c) Apportionment of Funds.--Funds made available to carry
out this section for any fiscal year shall be allotted among
the States by the Administrator in the same manner as funds are
allotted among the States under section 319 in such fiscal
year.
(d) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section $500,000,000 per
fiscal year for each of fiscal years 1996 through 2000.
----------
MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972
* * * * * * *
TITLE I--OCEAN DUMPING
* * * * * * *
[environmental protection agency] permits
Sec. 102. (a) Except in relation to dredged material, as
provided for in section 103 of this title, and in relation to
radiological, chemical, and biological warfare agents, high-
level radioactive waste, and medical waste, for which no permit
may be issued, the [Administrator] Secretary may issue permits,
after notice and opportunity for public hearings, for the
transportation from the United States or, in the case of an
agency or instrumentality of the United States, or in the case
of a vessel or aircraft registered in the United States or
flying the United States flag, for the transportation from a
location outside the United States, of material for the purpose
of dumping it into ocean waters, or for the dumping of material
into the waters described in section 101(b), where the
[Administrator] Secretary determines that such dumping will not
unreasonably degrade or endanger human health, welfare, or
amenities, or the marine environment, ecological systems, or
economic potentialities. The [Administrator] Secretary shall
establish and apply criteria for reviewing and evaluating such
permit applications, and, in establishing or revising such
criteria, shall consider, but not be limited in his
consideration to, the following:
[(A)] (1) The need for the proposed dumping.
[(B)] (2) The effect of such dumping on human health
and welfare, including economic, esthetic, and
recreational values.
[(C)] (3) The effect of such dumping on fisheries
resources, plankton, fish, shellfish, wildlife, shore
lines and beaches.
[(D)] (4) The effect of such dumping on marine
ecosystems, particularly with respect to--
[(i)] (A) the transfer, concentration, and
dispersion of such material and its byproducts
through biological, physical, and chemical
processes,
[(ii)] (B) potential changes in marine
ecosystem diversity, productivity, and
stability, and
[(iii)] (C) species and community population
dynamics.
[(E)] (5) The persistence and permanence of the
effects of the dumping.
[(F)] (6) The effect of dumping particular volumes
and concentrations of such materials.
[(G) Appropriate locations and methods of disposal or
recycling, including land-based alternatives and the
probable impact of requiring use of such alternate
locations or methods upon considerations affecting the
public interest.
[(H)] (7) The effect on alternate uses of oceans,
such as scientific study, fishing, and other living
resource exploitation, and nonliving resource
exploitation.
[(I)] (8) In designating recommended sites, the
Administrator shall utilize wherever feasible locations
beyond the edge of the Continental Shelf.
[In establishing or revising such criteria, the Administrator
shall consult with Federal, State, and local officials, and
interested members of the general public, as may appear
appropriate to the Administrator. With respect to such criteria
as may affect the civil works program of the Department of the
Army, the Administrator shall also consult with the Secretary.]
In reviewing applications for permits, the [Administrator]
Secretary shall make such provision for consultation with
interested Federal and State agencies as he deems useful or
necessary. No permit shall be issued for a dumping of material
which will violate applicable water quality standards. To the
extent that he may do so without relaxing the requirements of
this title, the [Administrator] Secretary, is establishing or
revising such criteria, shall apply the standards and criteria
binding upon the United States under the Convention, including
its Annexes.
(b) The [Administrator] Secretary may establish and issue
various categories of permits, including the general permits
described in section 104(c).
(c) Designation of Sites.--
(1) In general.--The [Administrator] Secretary shall,
in a manner consistent with the criteria established
pursuant to subsection (a), designate sites or time
periods for dumping. The [Administrator] Secretary
shall designate sites or time periods for dumping that
will mitigate adverse impact on the environment to the
greatest extent practicable.
(2) Prohibitions regarding site or time period.--In
any case where the [Administrator] Secretary determines
that, with respect to certain materials, it is
necessary to prohibit dumping at a site or during a
time period, the [Administrator] Secretary shall
prohibit the dumping of such materials in such site or
during such time period. This prohibition shall apply
to any dumping at the site or during such time period.
This prohibition shall apply to any dumping at the site
or during the time period, including any dumping under
section 103(e).
(3) Dredged material disposal sites.--In the case of
dredged material disposal sites, the [Administrator]
Secretary, in conjunction with the [Secretary]
Administrator, shall develop a site management plan for
each site designated pursuant to this section. In
developing such plans, the [Administrator] Secretary
and the [Secretary] Administrator shall provide
opportunity for public comment. Such plans shall
include, but not be limited to--
(A) a baseline assessment of conditions at
the site;
(B) a program for monitoring the site;
(C) special management conditions or
practices to be implemented at each site that
are necessary for protection of the
environment;
(D) consideration of the quantity of the
material to be disposed of at the site, and the
presence, nature, and bioavailability of the
contaminants in the material;
(E) consideration of the anticipated use of
the site over the long term, including the
anticipated closure date for the site, if
applicable, and any need for management of the
site after the closure of the site; and
(F) a schedule for review and revision of the
plan (which shall not be reviewed and revised
less frequently than 10 years after adoption of
the plan, and every 10 years thereafter).
(4) General site management plan requirement;
prohibitions.--After January 1, 1995, no site shall
receive a final designation unless a management plan
has been developed pursuant to this section. Beginning
on January 1, 1997, no permit for dumping pursuant to
this Act or authorization for dumping under section
103(e) of this Act shall be issued for a site unless
such site has received a final designation pursuant to
this subsection or an alternative site has been
selected pursuant to section 103(b).
(5) Management plans for previously designated
sites.--The [Administrator] Secretary shall develop a
site management plan for any site designated prior to
January 1, 1995, as expeditiously as practicable, but
not later than January 1, 1997, giving priority
consideration to management plans for designated sites
that are considered to have the greatest impact on the
environment.
(d) No permit is required under this title for the
transportation for dumping or the dumping of fish wastes,
except when deposited in harbors or other protected or enclosed
coastal waters, or where the [Administrator] Secretary finds
that such deposits could endanger health, the environment, or
ecological systems in a specific location. Where the
[Administrator] Secretary makes such a finding, such material
may be deposited only as authorized by a permit issued by the
[Administrator] Secretary under this section.
(e) In the case of transportation of material by an agency or
instrumentality of the United States or by a vessel or aircraft
registered in the United States or flying the United States
flag, from a location in a foreign State Party to the
Convention, a permit issued pursuant to the authority of that
foreign State Party, in accordance with Convention
requirements, and which otherwise could have been issued
pursuant to subsection (a) hereof, shall be accepted, for the
purposes of this title, as if it were issued by the
[Administrator] Secretary under the authority of this section:
Provided, That in the case or an agency or instrumentality of
the United States, no application shall be made for a permit to
be issued pursuant to the authority of a foreign State Party to
the Convention unless the [Administrator] Secretary concurs in
the filing of such application.
[corps of engineers] dredged material permits
Sec. 103. (a) * * *
(b) In making the determination required by subsection (a),
the Secretary shall apply those criteria, established pursuant
to section 102(a), relating to the effects of the dumping.
Based upon an evaluation of the potential effect of a permit
denial on navigation, economic and industrial development, and
foreign and domestic commerce of the United States, the
Secretary shall make an independent determination as to the
need for the dumping. The Secretary shall also make an
independent determination as to other possible methods of
disposal and as to appropriate locations for the dumping. In
considering appropriate locations, he shall, to the maximum
extent feasible, utilize the recommended sites designated [by
the Administrator] pursuant to section 102(c). In any case in
which the use of a designated site is not feasible, the
Secretary may[, with the concurrence of the Administrator,]
select an alternative site. The criteria and factors
established in section 102(a) relating to site selection shall
be used in selecting the alternative site in a manner
consistent with the application of such factors and criteria
pursuant to section 102(c). Disposal at or in the vicinity of
an alternative site shall be limited to a period of not greater
than 5 years unless the site is subsequently designated
pursuant to section 102(c); except that an alternative site may
continue to be used for an additional period of time that shall
not exceed 5 years if--
(1) no feasible disposal site has been designated [by
the Administrator];
(2) the continued use of the alternative site is
necessary to maintain navigation and facilitate
interstate or international commerce; and
(3) the [Administrator] Secretary determines that the
continued use of the site does not pose an unacceptable
risk to human health, aquatic resources, or the
environment.
[(c) Concurrence by the Administrator.--
[(1) Notification.--Prior to issuing a permit to any
person under this section, the Secretary shall first
notify the Administrator of the Secretary's intention
to do so and provide necessary and appropriate
information concerning the permit to the Administrator.
Within 30 days of receiving such information, the
Administrator shall review the information and request
any additional information the Administrator deems
necessary to evaluate the proposed permit.
[(2) Concurrence by administrator.--Within 45 days
after receiving from the Secretary all information the
Administrator considers to be necessary to evaluate the
proposed permit, the Administrator shall, in writing,
concur with (either entirely or with conditions) or
decline to concur with the determination of the
Secretary as to compliance with the criteria,
conditions, and restrictions established pursuant to
sections 102(a) and 102(c) relating to the
environmental impact of the permit. The Administrator
may request one 45-day extension in writing and the
Secretary shall grant such request on receipt of the
request.
[(3) Effect of concurrence.--In any case where the
Administrator makes a determination to concur (with or
without conditions) or to decline to concur within the
time period specified in paragraph (2) the
determination shall prevail. If the Administrator
declines to concur in the determination of the
Secretary no permit shall be issued. If the
Administrator concurs with conditions the permit shall
include such conditions. The Administrator shall state
in writing the reasons for declining to concur or for
the conditions of the concurrence.
[(4) Failure to act.--If no written documentation is
made by the Administrator within the time period
provided for in paragraph (2), the Secretary may issue
the permit.
[(5) Compliance with criteria and restrictions.--
Unless the Administrator grants a waiver pursuant to
subsection (d), any permit issued by the Secretary
shall require compliance with such criteria and
restrictions.]
(c) Consultation With the Administrator.--Prior to issuing a
permit to any person under this section, the Secretary shall
first consult with the Administrator.
(d) If, in any case, the Secretary finds that, in the
disposition of dredged material, there is no economically
feasible method or site available other than a dumping site the
utilization of which would result in non-compliance with the
criteria established pursuant to section 102(a) relating to the
effects of dumping or with the restrictions established
pursuant to section 102(c) relating to critical areas, he shall
so certify and [request a waiver from the Administrator of the
specific requirements involved. Within thirty days of the
receipt of the waiver request, unless the Administrator finds
that the dumping of the material will result in an unacceptably
adverse impact on municipal water supplies, shell-fish beds,
wildlife, fisheries (including spawning and breeding areas), or
recreational areas, he shall grant the waiver.] grant a waiver.
* * * * * * *
permit conditions
Sec. 104. (a) Permits issued under this title shall
designate and include (1) the type of material authorized to be
transported for dumping or to be dumped; (2) the amount of
material authorized to be transported for dumping or to be
dumped; (3) the location where such transport for dumping will
be terminated or where such dumping will occur; (4) such
requirements, limitations, or conditions as are necessary to
assure consistency with any site management plan approved
pursuant to section 102(c); (5) any special provisions deemed
necessary by the [Administrator or the Secretary, as the case
may be,] Secretary, after consultation with the Secretary of
the Department in which the Coast Guard is operating, for the
monitoring and surveillance of the transportation or dumping;
and (6) such other matters as the [Administrator or the
Secretary, as the case may be,] Secretary deems appropriate.
Permits issued under this title shall be issued for a period of
not to exceed 7 years.
(b) The [Administrator or the Secretary, as the case may be,]
Secretary may prescribe such processing fees for permits and
such reporting requirements for actions taken pursuant to
permits issued by him under this title as he deems appropriate.
(c) Consistent with the requirements of sections 102 and 103,
but in lieu of a requirement for specific permits in such case,
the [Administrator or the Secretary, as the case may be,]
Secretary may issue general permits for the transportation for
dumping, or dumping, or both, of specified materials or classes
of materials for which he may issue permits, which he
determines will have a minimal adverse environmental impact.
(d) Any permit issued under this title shall be reviewed
periodically and, if appropriate, revised. The [Administrator
or the Secretary, as the case may be,] Secretary may limit or
deny the issuance of permits, or he may alter or revoke
partially or entirely the terms of permits issued by him under
this title, for the transportation for dumping, or for the
dumping, or both, of specified materials or classes of
materials, where he finds, based upon monitoring data from the
dump site and surrounding area, that such materials cannot be
dumped consistently with the criteria and other factors
required to be applied in evaluating the permit application. No
action shall be taken under this subsection unless the affected
person or permittee shall have been given notice and
opportunity for a hearing on such action as proposed.
(e) The [Administrator or the Secretary, as the case may be,]
Secretary shall require an applicant for a permit under this
title to provide such information as he may consider necessary
to review and evaluate such application.
(f) Information received by the [Administrator or the
Secretary, as the case may be,] Secretary as a part of any
application or in connection with any permit granted under this
title shall be available to the public as a matter of public
record, at every stage of the proceeding. The final
determination of the [Administrator or the Secretary, as the
case may be,] Secretary shall be likewise available.
* * * * * * *
(h) Notwithstanding any provision of title I of the Marine
Protection, Research, and Sanctuaries Act of 1972 to the
contrary, during the two-year period beginning on the date of
enactment of this subsection, no permit may be issued under
such title I that authorizes the dumping of any low-level
radioactive waste unless the [Administrator of the
Environmental Protection Agency] Secretary determines--
(1) that the proposed dumping is necessary to conduct
research--
(A) * * *
* * * * * * *
Each permit issued pursuant to this subsection shall be subject
to such conditions and restrictions as the [Administrator
determines] Secretary determines to be necessary to minimize
possible adverse impacts of such dumping.
(i)(1) Two years after the date of enactment of this
subsection, the [Administrator] Secretary may not issue a
permit under this title for the disposal of radioactive waste
material until the applicant, in addition to complying with all
other requirements of this title, prepares, with respect to the
site at which the disposal is proposed, a Radioactive Material
Disposal Impact Assessment which shall include--
(A) a listing of all radioactive materials in each
container to be disposed, the number of containers to
be dumped, the structural diagrams of each container,
the number of curies of each material in each
container, and the exposure levels in rems at the
inside and outside of each container;
(B) an analysis of the environmental impact of the
proposed action, at the site at which the applicant
desires to dispose of the material, upon human health
and welfare and marine life;
(C) any adverse environmental effects at the site
which cannot be avoided should the proposal be
implemented;
(D) an analysis of the resulting environmental and
economic conditions if the containers fail to contain
the radioactive waste material when initially deposited
at the specific site;
(E) a plan for the removal or containment of the
disposed nuclear material if the container leaks or
decomposes;
(F) a determination by each affected State whether
the proposed action is consistent with its approved
Coastal Zone Management Program;
(G) an analysis of the economic impact upon other
users of marine resources;
(H) alternatives to the proposed action;
(I) comments and results of consultation with State
officials and public hearings held in the coastal
States that are nearest to the affected areas;
(J) a comprehensive monitoring plan to be carried out
by the applicant to determine the full effect of the
disposal on the marine environment, living resources,
or human health, which plan shall include, but not be
limited to, the monitoring of exterior container
radiation samples, the taking of water and sediment
samples, and fish and benthic animal samples, adjacent
to the containers, and the acquisition of such other
information as the [Administrator] Secretary may
require; and
(K) such other information which the [Administrator]
Secretary may require in order to determine the full
effects of such disposal.
(2) The [Administrator] Secretary, shall include, in any
permit to which paragraph (1) applies, such terms and
conditions as may be necessary to ensure that the monitoring
plan required under paragraph (1)(J) is fully implemented,
including the analysis by the [Administrator] Secretary of the
samples required to be taken under the plan.
(3) The [Administrator] Secretary shall submit a copy of the
assessment prepared under paragraph (1) with respect to any
permit to the Committee on [Merchant Marine and Fisheries]
Transportation and Infrastructure of the House of
Representatives and the Committee on Environment and Public
Works of the Senate.
(4)(A) Upon a determination by the [Administrator] Secretary
that a permit to which the subsection applies should be issued,
the [Administrator] Secretary shall transmit such a
recommendation to the House of Representatives and the Senate.
(B) No permit may be issued by the [Administrator] Secretary
under this Act for the disposal of radioactive materials in the
ocean unless the Congress, by approval of a resolution
described in paragraph (D) within 90 days of continuous session
of the Congress beginning on the date after the date of receipt
by the Senate and the House of Representatives of such
recommendation, authorizes the [Administrator] Secretary to
grant a permit to dispose of radioactive material under this
Act.
(C) For purposes of this subsection--
(1) continuity of session of the Congress is broken
only by an adjournment since die;
(2) the days on which either House is not in session
because of an adjournment of more than three days to a
day certain are excluded in the computation of the 90
day calendar period.
(D) For the purposes of this subsection, the term
``resolution'' means a joint resolution, the resolving clause
of which is as follows: That the House of Representatives and
the Senate approve and authorize the [Administrator of the
Environmental Protection Agency] Secretary to grant a permit to
________________ under the marine Protection, Research, and
Sanctuaries Act of 1972 to dispose of radioactive materials in
the ocean as recommended by the [Administrator] Secretary to
the Congress on ________________, 19______; the first blank
space therein to be filled with the appropriate applicant to
dispose of nuclear material and the second blank therein to be
filled with the date on which the [Administrator] Secretary
submits the recommendation to the House of Representatives and
the Senate.
special provisions regarding certain dumping sites
Sec. 104A. (a) New York Bight Apex.--(1) For purposes of this
subsection:
(A) The term ``Apex'' means the New York Bight Apex
consisting of the ocean waters of the Atlantic Ocean
westward of 73 degrees 30 minutes west longitude and
northward of 40 degrees 10 minutes north latitude.
(B) The term ``Apex site'' means that site within the
Apex at which the dumping of municipal sludge occurred
before October 1, 1983.
(C) The term ``eligible authority'' means any
sewerage authority or other unit of State or local
government that on November 2, 1983, was authorized
under court order to dump municipal sludge at the Apex
site.
(2) No person may apply for a permit under this title in
relation to the dumping of, or the transportation for purposes
of dumping, municipal sludge within the Apex unless that person
is an eligible authority.
(3) The [Administrator] Secretary may not issue, or renew,
any permit under this title that authorizes the dumping of, or
the transportation for purposes of dumping, municipal sludge
within the Apex after the earlier of--
(A) December 15, 1987; or
(B) the day determined by the [Administrator]
Secretary to be the first day on which municipal sludge
generated by eligible authorities can reasonably be
dumped at a site designated under section 102 other
than a site within the Apex.
(b) Restriction on Use of the 106-Mile Site.--The
[Administrator] Secretary may not issue or renew any permit
under this title which authorizes any person, other than a
person that is an eligible authority within the meaning of
subsection (a)(1)(C), to dump, or to transport for the purposes
of dumping, municipal sludge within the site designated under
section 102(c) by the [Administrator] Secretary and known as
the ``106-Mile Ocean Waste Dump Site'' (as described in 49 F.R.
19005).
* * * * * * *
TITLE IV--REGIONAL MARINE RESEARCH PROGRAMS
* * * * * * *
regional marine research boards
Sec. 403. (a) Establishment.--A Regional Marine Research
board shall be established for each of the following regions:
(1) the Gulf of Maine region, comprised of the marine
and coastal waters off the State of Maine, New
Hampshire, and Massachusetts (north of Cape Cod);
* * * * * * *
The [Great Lakes Research Office authorized under] Great Lakes
Research Council established by section 118(d) of the Federal
Water Pollution Control Act (33 U.S.C. 1268(d)) shall be
responsible for research in the Great Lakes region and shall be
considered the Great Lakes counterpart to the research program
established pursuant to this title.
* * * * * * *
----------
SECTION 6217 OF THE OMNIBUS BUDGET RECONCILIATION ACT OF 1990
[SEC. 6217. PROTECTING COASTAL WATERS.
[(a) In General.--
[(1) Program development.--Not later than 30 months
after the date of the publication of final guidance
under subsection (g), each State for which a management
program has been approved pursuant to section 306 of
the Coastal Zone Management Act of 1972 shall prepare
and submit to the Secretary and the Administrator a
Coastal Nonpoint Pollution Control Program for approval
pursuant to this section. The purpose of the program
shall be to develop and implement management measures
for nonpoint source pollution to restore and protect
coastal waters, working in close conjunction with other
State and local authorities.
[(2) Program coordination.--A State program under
this section shall be coordinated closely with State
and local water quality plans and programs developed
pursuant to sections 208, 303, 319, and 320 of the
Federal Water Pollution Control Act (33 U.S.C. 1288,
1313, 1329, and 1330) and with State plans developed
pursuant to the Coastal Zone Management Act of 1972, as
amended by this Act. The program shall serve as an
update and expansion of the State nonpoint source
management program developed under section 319 of the
Federal Water Pollution Control Act, as the program
under that section relates to land and water uses
affecting coastal waters.
[(b) Program Contents.--Each State program under this
section shall provide for the implementation, at a minimum, of
management measures in conformity with the guidance published
under subsection (g), to protect coastal waters generally, and
shall also contain the following:
[(1) Identifying land uses.--The identification of,
and a continuing process for identifying, land uses
which, individually or cumulatively, may cause or
contribute significantly to a degradation of--
[(A) those coastal waters where there is a
failure to attain or maintain applicable water
quality standards or protect designated uses,
as determined by the State pursuant to its
water quality planning processes; or
[(B) those coastal waters that are threatened
by reasonably foreseeable increases in
pollution loadings from new or expanding
sources.
[(2) Identifying critical coastal areas.--The
identification of, and a continuing process for
identifying, critical coastal areas adjacent to coastal
waters referred to in paragraph (1)(A) and (B), within
which any new land uses or substantial expansion of
existing land uses shall be subject to management
measures in addition to those provided for in
subsection (g).
[(3) Management measures.--The implementation and
continuing revision from time to time of additional
management measures applicable to the land uses and
areas identified pursuant to paragraphs (1) and (2)
that are necessary to achieve and maintain applicable
water quality standards under section 303 of the
Federal Water Pollution Control Act (33 U.S.C. 1313)
and protect designated uses.
[(4) Technical assistance.--The provision of
technical and other assistance to local governments and
the public for implementing the measures referred to in
paragraph (3), which may include assistance in
developing ordinances and regulations, technical
guidance, and modeling to predict and assess the
effectiveness of such measures, training, financial
incentives, demonstration projects, and other
innovations to protect coastal water quality and
designated uses.
[(5) Public participation.--Opportunities for public
participation in all aspects of the program, including
the use of public notices and opportunities for
comment, nomination procedures, public hearings,
technical and financial assistance, public education,
and other means.
[(6) Administrative coordination.--The establishment
of mechanisms to improve coordination among State
agencies and between State and local officials
responsible for land use programs and permitting, water
quality permitting and enforcement, habitat protection,
and public health and safety, through the use of joint
project review, memoranda of agreement, or other
mechanisms.
[(7) State coastal zone boundary modification.--A
proposal to modify the boundaries of the State coastal
zone as the coastal management agency of the State
determines is necessary to implement the
recommendations made pursuant to subsection (e). If the
coastal management agency does not have the authority
to modify such boundaries, the program shall include
recommendations for such modifications to the
appropriate State authority.
[(c) Program Submission, Approval, and Implemetation.--
[(1) Review and approval.--Within 6 months after the
date of submission by a State of a program pursuant to
this section, the Secretary and the Administrator shall
jointly review the program. The program shall be
approved if--
[(A) the Secretary determines that the
portions of the program under the authority of
the Secretary meet the requirements of this
section and the Administrator concurs with that
determination; and
[(B) the Administrator determines that the
portions of the program under the authority of
the Administrator meet the requirements of this
section and the Secretary concurs with that
determination.
[(2) Implementation of approved program.--If the
program of a State is approved in accordance with
paragraph (1), the State shall implement the program,
including the management measures included in the
program pursuant to subsection (b), through--
[(A) changes to the State plan for control of
nonpoint source pollution approved under
section 319 of the Federal Water Pollution
Control Act; and
[(B) changes to the State coastal zone
management program developed under section 306
of the Coastal Zone Management Act of 1972, as
amended by this Act.
[(3) Withholding coastal management assistance.--If
the Secretary finds that a coastal State has failed to
submit an approvable program as required by this
section, the Secretary shall withhold for each fiscal
year until such a program is submitted a portion of
grants otherwise available to the State for the fiscal
year under section 306 of the Coastal Zone Management
Act of 1972, as follows:
[(A) 10 percent for fiscal year 1996.
[(B) 15 percent for fiscal year 1997.
[(C) 20 percent for fiscal year 1998.
[(D) 30 percent for fiscal year 1999 and each
fiscal year thereafter.
[The Secretary shall make amounts withheld under this
paragraph available to coastal States having programs
approved under this section.
[(4) Withholding water pollution control
assistance.--If the Administrator finds that a coastal
State has failed to submit an approvable program as
required by this section, the Administrator shall
withhold from grants available to the State under
section 319 of the Federal Water Pollution Control Act,
for each fiscal year until such a program is submitted,
an amount equal to a percentage of the grants awarded
to the State for the preceding fiscal year under that
section, as follows:
[(A) For fiscal year 1996, 10 percent of the
amount awarded for fiscal year 1995.
[(B) For fiscal year 1997, 15 percent of the
amount awarded for fiscal year 1996.
[(C) For fiscal year 1998, 20 percent of the
amount awarded for fiscal year 1997.
[(D) For fiscal year 1999 and each fiscal
year thereafter, 30 percent of the amount
awarded for fiscal year 1998 or other preceding
fiscal year.
[The Administrator shall make amounts withheld under
this paragraph available to States having programs
approved pursuant to this subsection.
[(d) Technical Assistance.--The Secretary and the
Administrator shall provide technical assistance to coastal
States and local governments in developing and implementing
programs under this section. Such assistance shall include--
[(1) methods for assessing water quality impacts
associated with coastal land uses;
[(2) methods for assessing the cumulative water
quality effects of coastal development;
[(3) maintaining and from time to time revising an
inventory of model ordinances, and providing other
assistance to coastal States and local governments in
identifying, developing, and implementing pollution
control measures; and
[(4) methods to predict and assess the effects of
coastal land use management measures on coastal water
quality and designated uses.
[(e) Inland Coastal Zone Boundaries.--
[(1) Review.--The Secretary, in consultation with the
Administrator of the Environmental Protection Agency,
shall, within 18 months after the effective date of
this title, review the inland coastal zone boundary of
each coastal State program which has been approved or
is proposed for approval under section 306 of the
Coastal Zone Management Act of 1972, and evaluate
whether the State's coastal zone boundary extends
inland to the extent necessary to control the land and
water uses that have a significant impact on coastal
waters of the State.
[(2) Recommendation.--If the Secretary, in
consultation with the Administrator, finds that
modifications to the inland boundaries of a State's
coastal zone are necessary for that State to more
effectively manage land and water uses to protect
coastal waters, the Secretary, in consultation with the
Administrator, shall recommend appropriate
modifications in writing to the affected State.
[(f) Financial Assistance.--
[(1) In general.--Upon request of a State having a
program approved under section 306 of the Coastal Zone
Management Act of 1972, the Secretary, in consultation
with the Administrator, may provide grants to the State
for use for developing a State program under this
section.
[(2) Amount.--The total amount of grants to a State
under this subsection shall not exceed 50 percent of
the total cost to the State of developing a program
under this section.
[(3) State share.--The State share of the cost of an
activity carried out with a grant under this subsection
shall be paid from amounts from non-Federal sources.
[(4) Allocation.--Amounts available for grants under
this subsection shall be allocated among States in
accordance with regulations issued pursuant to section
306(c) of the Coastal Zone Management Act of 1972,
except that the Secretary may use not more than 25
percent of amounts available for such grants to assist
States which the Secretary, in consultation with the
Administrator, determines are making exemplary progress
in preparing a State program under this section or have
extreme needs with respect to coastal water quality.
[(g) Guidance for Coastal Nonpoint Source Pollution
Control.--
[(1) In general.--The Administrator, in consultation
with the Secretary and the Director of the United
States Fish and Wildlife Service and other Federal
agencies, shall publish (and periodically revise
thereafter) guidance for specifying management measures
for sources of nonpoint pollution in coastal waters.
[(2) Content.--Guidance under this subsection shall
include, at a minimum--
[(A) a description of a range of methods,
measures, or practices, including structural
and nonstructural controls and operation and
maintenance procedures, that constitute each
measure;
[(B) a description of the categories and
subcategories of activities and locations for
which each measure may be suitable;
[(C) an identification of the individual
pollutants or categories or classes of
pollutants that may be controlled by the
measures and the water quality effects of the
measures;
[(D) quantitative estimates of the pollution
reduction effects and costs of the measures;
[(E) a description of the factors which
should be taken into account in adapting the
measures to specific sites or locations; and
[(F) any necessary monitoring techniques to
accompany the measures to assess over time the
success of the measures in reducing pollution
loads and improving water quality.
[(3) Publication.--The Administrator, in consultation
with the Secretary, shall publish--
[(A) proposed guidance pursuant to this
subsection not later than 6 months after the
date of the enactment of this Act; and
[(B) final guidance pursuant to this
subsection not later than 18 months after such
effective date.
[(4) Notice and comment.--The Administrator shall
provide to coastal States and other interested persons
an opportunity to provide written comments on proposed
guidance under this subsection.
[(5) Management measures.--For purposes of this
subsection, the term ``management measures'' means
economically achievable measures for the control of the
addition of pollutants from existing and new categories
and classes of nonpoint sources of pollution, which
reflect the greatest degree of pollutant reduction
achievable through the application of the best
available nonpoint pollution control practices,
technologies, processes, siting criteria, operating
methods, or other alternatives.
[(h) Authorizations of Appropriations.--
[(1) Administrator.--There is authorized to be
appropriated to the Administrator for use for carrying
out this section not more than $1,000,000 for each of
fiscal years 1992, 1993, and 1994.
[(2) Secretary.--(A) Of amounts appropriated to the
Secretary for a fiscal year under section 318(a)(4) of
the Coastal Zone Management Act of 1972, as amended by
this Act, not more than $1,000,000 shall be available
for use by the Secretary for carrying out this section
for that fiscal year, other than for providing in the
form of grants under subsection (f).
[(B) There is authorized to be appropriated to the
Secretary for use for providing in the form of grants
under subsection (f) not more than--
[(i) $6,000,000 for fiscal year 1992;
[(ii) $12,000,000 for fiscal year 1993;
[(iii) $12,000,000 for fiscal year 1994; and
[(iv) $12,000,000 for fiscal year 1995.
[(i) Definitions.--In this section--
[(1) the term ``Administrator'' means the
Administrator of the Environmental Protection Agency;
[(2) the term ``coastal State'' has the meaning given
the term ``coastal state'' under section 304 of the
Coastal Zone Management Act of 1972 (16 U.S.C. 1453);
[(3) each of the terms ``coastal waters'' and
``coastal zone'' has the meaning that term has in the
Coastal Zone Management Act of 1972;
[(4) the term ``coastal management agency'' means a
State agency designated pursuant to section 306(d)(6)
of the Coastal Zone Management Act of 1972;
[(5) the term ``land use'' includes a use of waters
adjacent to coastal waters; and
[(6) the term ``Secretary'' means the Secretary of
Commerce.]
ADDITIONAL VIEWS
We believe it is crucial for the Great Lakes region to have
water quality standards that are specific to the regions needs.
Since the Great Lakes contain 95% of the nation's fresh water
and 20% of the world's fresh water, it is important to protect
this resource.
The Great Lakes initiative is a six year long cooperative
effort to restore the Great Lakes ecosystem, based on the
newest and best scientific information available. Under the
Great Lakes Critical Programs Act, a bi-partisan effort signed
by President Bush in 1990, the Environmental Protection Agency,
states and tribes, were to develop a standard for water quality
that is specific to the needs of the region. Critics of this
program claimed that the EPA was too strict in it's
interpretation of the GLI and as a result, the GLI was
rewritten to provide more flexibility for compliance. The end
result, we believe, is a workable, uniform water quality
standard for the Great Lakes region.
The GLI establishes minimum water quality standards,
antidegradation policies, and implementation procedures for the
Great Lakes and the surrounding states: Michigan, Illinois,
Indiana, Minnesota, New York, Pennsylvania, and Ohio. The
purpose of this rule is to provide consistency within the
region to improve the water quality of the lakes and prevent
further pollution. This means all states must cooperate on the
GLI, and no state or its businesses will receive an unfair
competitive advantage because they have lesser water quality
standards. The EPA rewrote their original rule because of
concern about the potential impact on competitiveness of the
region and to provide needed flexibility for efficient
implementation.
A remaining controversy which came up during the committee
process is the supposed ambiguity of the EPA's final guidance
on a state's requirement to adopt controls which are ``as
protective so the corresponding provision in the Great Lakes
guidance''. We believe that Mr. Petri's amendment on the Great
Lakes Initiative helps to define this level of protection. This
language cites ``scientifically defensible,'' providing an
``overall level of protection comparable to,'' the Guidance,
``taking into account the specific circumstances of the State's
waters.'' We believe that this means that the States must and
will provide a level of protection essentially equivalent to
that provided by the Guidance.
It is important that the law be defined in this way or we
open the door to much litigation. Certainly, more litigation
was not the intent of our colleagues when crafting this bill.
Vernon J. Ehlers.
Steve C. LaTourette.
SUPPLEMENTAL VIEWS BY CONGRESSMAN SHERWOOD BOEHLERT AND CONGRESSMAN
WAYNE GILCHREST
The Clean Water Act is widely acknowledged as one of our
nation's most effective environmental statutes. In testimony
before the House Water Resources and Environmental Subcommittee
over the last three years, representatives of industry, states
and the environmental community have repeatedly highlighted the
enormous successes that have been achieved through the Clean
Water Act.
Unfortunately, H.R. 961 fails to build on many of the
successes of the Clean Water Act. In fact, H.R. 961 repeals or
undermines many of the provisions which serve as the foundation
for the success of Clean Water Act. H.R. 961 would remove over
60 percent of our nation's remaining wetlands from any level of
protection, completely repeal the stormwater provisions in the
Clean Water Act, undermine efforts to control nonpoint source
pollution, weaken standards governing industrial pollution
discharges, and repeal the entire Coastal Zone nonpoint source
pollution program.
In protecting our nation's most valuable natural resource,
clean water, we can either move forward, retain the status quo,
or retreat from the improvements that have been made. H.R. 961
is a retreat from existing law and we are committed to moving
forward with efforts to improve the quality of America's lakes,
rivers, and coastal waters.
wetlands protection
Section 404 of the Clean Water Act has been the source of
much public confusion and frustration, and we share the
committee's stated commitment to clarifying and improving
federal wetlands policy. We also believe that greater statutory
definition is necessary for a sound wetlands program.
Unfortunately, Title VIII of H.R. 961 represents a significant
reduction in wetlands protection. The bill as reported seeks to
implement an unworkable wetlands definition, an unscientific
classification system, and an enormously expensive compensation
program.
Wetlands serve many valuable purposes. They provide
critical habitat for many species of fish and wildfowl; they
provide a natural filtration system which absorbs nitrates,
toxics and other harmful substances before they reach water
bodies; they provide a natural source of flood control, and
they recharge aquifers. Wetlands loss is inevitably accompanied
by diminishing wildlife populations, deteriorating water
quality, and increased flooding in the case of riverine
wetlands.
Unfortunately, H.R. 961 would remove from federal
protection over half of the wetlands in the United States,
while reducing the level of protection for the remainder. We
believe the resulting wetlands loss would be significant.
The most objectionable provision of Title VIII is the new
definition of what constitutes a wetland. The requirements set
forth in the proposed Section 404(g) Subparagraph B(iv) would
declassify wetlands which do not display surface water for at
least 21 days during the growing season. Under this definition,
a parcel of land could be a swamp for all of the non-growing
season, the first 20 days of the growing season, and the last
20 days of the growing season and still not be afforded any
protection. Additionally, bogs and other areas which are
continually saturated just below the surface would not be
considered wetlands under H.R. 961. We believe there are a
great many parcels of land that do not display surface water
for 21 days in the growing season, yet serve wetland functions.
The wetlands definition in H.R. 961 essentially mirrors the
proposed 1991 revisions to the Manual for Identifying and
Delineating Wetlands. The 1991 revisions were abandoned as
unworkable as it was found that roughly half of all protected
wetlands would have been de-classified. The inter-agency field
testing report on the 1991 proposal concluded:
We believe the proposed manual is not technically
sound. We believe it will take considerable time to
revise it to an acceptable method. Due to the
considerable amount of resources that would be required
to resolve the issues, we recommend that strong
consideration be given to abandoning this effort * * *
Inasmuch as the 1991 definition was found to be unsound and
impractical, we must question the wisdom of writing a similar
definition into statute.
The compensation provisions in Title VIII, while cloaked in
the language of the Fifth Amendment, are in fact a major
departure from over 2000 years of constitutional jurisprudence
as to what constitutes a ``taking'' for the public good. In
fact, wetlands policy is designed to prevent people from using
their property in such a manner that they adversely affect
other private property or public property. The issue of
constitutional ``takings'' is an ongoing issue for the federal
court system.
H.R. 961 would provide compensation to any landowner whose
property values were diminished by 20 percent or more as a
result of wetlands regulation. In the few cases where federal
courts have found regulatory takings, the loss in value is far
greater than 20 percent. As Justice Antonin Scalia wrote in the
landmark Lucas decision, regulatory takings occur ``where
regulation denies all economically beneficial or productive use
of the land.'' Scalia later described a regulatory taking as
``total deprivation of beneficial use.''
Supporters of the compensation provisions claim they are
neither an expensive entitlement, nor an effort to eliminate
environmental protection. Obviously, these cannot both be true.
The federal government will be forced to either make
significant outlays as the cost of wetlands enforcement, or opt
for non-enforcement of wetlands laws. The cost of this
provision will be increased deficit spending or environmental
degradation, neither of which we can afford.
We can sympathize with the committee's desire to classify
wetlands according to their importance, but we remain skeptical
about the A-B-C system contained in H.R. 961. We do not believe
there is adequate science available to make such a
determination at this time, and that the proposal is
politically, rather than scientifically based. The most damning
evidence of the political nature of this is found in the
proposed Section 404(g) Subparagraph C requirement that no more
than 20 percent of the wetlands in any county, borough, or
parish may be considered Type A wetlands. This provision quite
obviously subverts the question of wetlands' environmental
significance to the political consideration of county borders.
Under such a provision, many of our nation's most important
wetlands, such as the Everglades, could be destroyed.
We believe that the House should reject Title VIII of the
bill and wait for the release of the NAS study. With that
information, the committee could develop a scientifically sound
wetlands policy that would preserve our wetlands inventory.
Unfortunately, the committee has chosen to proceed in haste.
In summary, the bill contains a demonstrably unworkable
definition of a wetland that will de-classify a significant
portion of our nation's wetlands. It creates a compensation
system that will result in an increase of dollars in new
federal spending, significant non-enforcement, or both. It
contains a classification system based on politics rather than
science. And, it ignores a congressionally-mandated study into
wetlands functions and values. We believe this to be a serious
mistake with dire consequences for our nation's water quality
and wildlife.
the repeal of stormwater provisions in the act
Stormwater management is a critical component to the
improvement of water quality in the United States. Today, over
25% of all water quality impairment in our nation is the result
of stormwater discharges into lakes, streams and estuaries.
Because stormwater pollution often encompasses large geographic
areas and enormous volumes of water it poses significant
challenges to those working to control its impact.
However, section 402(p) of the Clean Water Act has been
responsible for important steps toward reducing stormwater
pollution. Today, 342 large cities and 134,000 industrial
facilities already have stormwater permits to control this
important source of water pollution. Controlling stormwater
runoff in communities under 100,000 and at light industry
facilities poses more significant problems. Recognizing this
EPA has issued a six year moratorium on any additional
requirements on communities under 100,000.
H.R. 961, would turn back the clock on efforts to control
stormwater pollution by repealing section 402(p) of the Clean
Water Act. We cannot, and should not, turn our backs on this
major source of water pollution. Stormwater is responsible
water quality impairment in urban and coastal areas across this
nation. Swimming and fishing are not available to millions of
Americans because of stormwater pollution. To repeal the
provisions in the Clean Water Act that address stormwater
pollution is short sighted and irresponsible.
the weakening of pollution discharge standards
One of the cornerstones of the Clean Water Act's success
since 1972 is the way in which point source discharges have
been held to comparable standards across the nation. Prior to
the enactment of the Clean Water Act, states often lowered
water quality requirements to attract water polluting
industries. States were in bidding wars to have the least
protective water quality standards. Recognizing this problem,
Congress acted to curtail the problem of balkanization and low
water quality standards, and to establish a level playing field
for industry, by requiring industrial and sewage treatment
plants to have discharge permits under the Clean Water Act.
We believe that H.R. 961 would roll back the quality and
technology-based standards implemented under the Clean Water
Act to protect Americans from discharges of toxic pollution
into city sewer lines. For example, under the committee bill,
dischargers would be allowed to trade pollution between water,
air, and land--with so few restrictions that a paper recycling
program could be used as an excuse to increase discharges of
heavy metals into a delicate ecosystem. Additionally,
opportunities to update and strengthen controls on toxic and
other discharges would occur only once every decade, rather
than every five years, as under current law.
The process of establishing water quality standards based
on sound science will also be rolled back, supplanted by an
approach based on undefined ``economic and social
considerations.'' Specifically, the bill requires EPA to be
able to prove in court that the performance rules maximize
social benefits.
In conclusion, by relaxing federal standards and deadlines,
rather than creating flexibility in achieving them, the bill
will increase the pressure on states to degrade or waive water
quality standards.
nonpoint source pollution
Over half of the water pollution in America's lakes,
rivers, and estuaries is the result of nonpoint source
pollution. Since 1972, the federal government has provided
cities over $60 billion to control point source pollution, but,
less than $1 billion has been spent on nonpoint source
pollution. Controlling nonpoint source pollution is the largest
major hurdle to improving the quality of this nation's waters.
H.R. 961 simply does not provide the frame work for
effectively addressing nonpoint source pollution.
the repeal of czara
Over the past five years, over 10,000 beaches in the United
States have been closed because of coastal water pollution.
Over one-third of all shellfish beds in the United States are
closed or threatened by water pollution. The majority of
coastal water quality impairment is the result of nonpoint
sources of pollution. To focus greater resources and attention
on this problem, Congress enacted the Coastal Zone Act
Reauthorization Amendments (CZARA) in 1990. Since coastal areas
are more densely populated than the nation as whole, and serve
as critical ecosystems for many aquatic and other species as
well, these areas, which are downstream of all nonpoint source
pollution, need extra protection.
H.R. 961 repeals CZARA in its entirety. While we recognize
that aspects of CZARA need to be reviewed, the program, which
serves 29 states, is critical to the protection and
rejuvenation of coastal waters. The potential environmental and
economic impacts of the repeal of CZARA would be significant:
beach closing and advisories affecting the public that swims
and eats fish and shellfish; closed or harvest-limited
shellfish beds, and declining fisheries; and red tides and
other harmful plankton blooms would impact individuals owning
coastal property. Last but not least is the potential impact
the repeal of CZARA could have on the quality drinking water.
Wayne T. Gilchrest.
Sherwood Boehlert.
DISSENTING VIEWS
introduction
The Clean Water Act is one of the most highly regarded
environmental statutes on the books today. It has been
achieving steady progress in cleaning up our Nation's waters
since it was enacted in 1972, and it has achieved great
benefits for the health of our people, for the liveability of
our riverfront, lakefront, and coastal areas, and for the
availability of the clean water so necessary for economic
growth.
H.R. 961, the Clean Water Act Amendments of 1995, does not
build on that success; in fact it does quite the opposite.
There may be disagreement about how much farther we should go
beyond existing law in creating new requirements to clean up
our Nation's waters, but there is widespread agreement that we
should not do less than we are doing today and we should not
weaken existing standards for clean water.
Yet, that is exactly what this bill would do. Over and over
again this bill rolls back the requirements of existing law,
creates new loopholes for special interests, creates new
opportunities for legal challenges to any effort to limit
pollution of our waters, and makes enforcement of the few
standards which remain very difficult. There is very little
that the polluters and special interests asked for that they
did not get in this bill. This is their dream come true. This
is a polluter's bill of rights.
The average American would be far better off if this
Congress passed on Clean Water bill than if it passed this
bill. Without enactment of any bill in this Congress most of
the existing Clean Water law would continue in effect,
providing far greater protection to average Americans than the
tattered and gutted Clean Water Act which would remain after
enactment of this bill. This bill does not just amend the Clean
Water Act, it largely undoes the Clean Water Act. That is not
what Americans want and not what they voted for.
Of this bill the EPA Administrator says, ``It exempts
important sources of pollution, prohibits states from
controlling certain discharges, and undermines good science.
The bill creates loopholes aimed at lessening current
requirements, making it difficult to enforce against even
egregious polluters. The Clean Water Act is a highly workable
and effective statute and this bill would roll back
longstanding public health and environmental protections.''
The Department of Justice says, ``This bill would create
exemptions and loopholes for polluters, making enforcement much
more difficult.''
The National Conference of State Legislatures says the bill
`` could undermine the states' progress in protecting water
quality.'' The NCSL lists many provisions in the bill they
oppose. Just to give one example, it says, ``Many newly-added
provisions in Title III would undercut the states' ability to
control toxic pollution from point sources. For example, there
are new provisions that would slow down and weaken national
effluent guidelines; allow increased discharges of toxic
pollutants to sewage treatments plants; and allow permits for
industrial dischargers that violate water quality standards.
Other newly drafted sections in Title III would open the door
to widespread relaxation of water quality standards for rivers,
lakes, and coastal areas.''
While considerable progress has been made since 1972 in
cleaning up our Nation's waters, there is much that remains to
be done. In the most recent assessment by the states of our
Nation's waters they found that 40% of our Nation's waters
still do not meet the water quality standards for the uses
designated for each waterbody by the states. The existing Act
would continue to make steady progress in dealing with those
remaining water pollution problems. This bill would do the
opposite.
At the very least we should do no less to clean up water
pollution than we are doing today. This bill does not even pass
that minimal test.
What we should be doing is retaining most of the existing
Act, making a few modifications to strengthen the Act where
there is a clearly demonstrated need to do so, and correcting a
few specific problems which have arisen. The result would be a
continuation of steady progress on cleaning up pollution.
Instead, under this bill we would be weakening and rolling back
major portions of the Act.
The most surprising area of rollback is in point source
pollution. Point sources are the discharges by industries and
sewage treatment works directly into rivers, lakes, or oceans.
This is the area where the Act has been most successful and has
contributed most to the cleanup of our Nation's waters. Little
of H.R. 961 as introduced last February would have changed the
point source standards. However, beginning in Subcommittee
markup, the bill was drastically expanded and much of it now
contains loopholes, waivers, and exemptions which seriously
weaken the point source core of the Clean Water Act.
The bill expands from five to 70,000 the number of so-
called non-conventional pollutants dischargers can seek waivers
from having to treat to currently applicable standards.
If a discharger calls its treatment method ``innovative''
it can get a new waiver from existing standards, and even if it
fails to meet the new lower standards, it can be excused
entirely if it had ``good faith.''
If a discharger claims it is not polluting the air to the
allowable limit under the Clean Air Act, it can pollute the
water more than allowed today.
Industries which discharge into municipal sewage systems
would have to do less treatment of their industrial waste
before it was dumped into the municipal treatment works, where
industrial toxins would somehow become less offensive by being
diluted by enormous quantities of municipal sewage.
Would a discharger be part of a watershed plan? If so,
there's a new waiver to get its discharge permit relaxed.
Secondary treatment, the floor level of treatment for
municipalities, is waved for an unknown number of coastal
cities and for thousands of smaller communities in general,
without regard for what that might do in specific cases to
water quality.
Would it be inconvenient to the discharger to comply with
its discharge permit all year long? Would it be easier not to
comply during the busiest months? No problem, this bill opens
up for the first time the option of 12-month averaging, so you
can be out of compliance during the months that it matters
most, but average it out in the slack months.
Every one of the provisions just mentioned is a weakening
of the existing Act. And not one of these provisions was in the
introduced bill on which hearings were held. These provisions
and a great many more like them, undermine the very feature of
the Clean Water Act which has worked the best and which average
Americans rely on to limit the amount of pollution dumped into
our waters by major industries and by sewage treatment works.
The number of waivers, loopholes, and exemptions created by
this bill for point source dischargers is so great that most
dischargers should be able to find a provision they can use to
discharge more pollution. As a result, average Americans are
going to have to live with exposure to increased pollution, and
in some cases are going to have to pay more for the sewage
treatment in their own city because others are leaving the
receiving waters much more polluted.
There are specific areas of the Act where there are
problems of procedure or policy which need to be corrected in
order to achieve clean water goals in a more practical,
equitable, and efficient manner. Those problems can and should
be fixed in ways which do not detract from our clean water
goals. However this bill does not adopt that approach. Instead
of fixing problems, it uses problems as excuses to cripple or
eliminate existing cleanup programs.
For example, in the area of wetlands protection, there are
specific problems which need to be addressed: a time limit on
consideration of a permit needs to be set to deal with
unreasonable delays; an administrative appeals process needs to
be established so that those who cannot afford a full judicial
challenge have a practical right of appeal; small and manmade
wetlands, such as upland drainage ditches, small artificial
lakes and ponds, wetlands created incidental to construction
activity, and stormwater and sewage treatment ponds, need to be
exempted from the program because they really are not the
resource we are trying to protect; the role of states in the
administration of the program needs to be enhanced; and we
should clarify that in evaluating applications for development
in wetlands the relative value of each wetland should be
evaluated and taken into account.
Yet these reforms of the wetlands program were offered in
Committee and were specifically rejected in favor of provisions
which drastically reduce the protection afforded to wetlands
and which would impose dramatic new costs on taxpayers.
Rather than exclude truly marginal and insignificant
wetlands, this bill invents a new definition which by itself
would eliminate over half of this Nation's wetlands from
protection, including significant parts of the Everglades. (The
Association of State Wetlands Managers estimates that the
definitional changes alone would remove 60-80% of all wetlands
from protection.) Rather than requiring the relative value of
each wetland to be judged when and if someone wants to develop
it, the bill inexplicably would require the classification of
all wetlands, whether anyone wants to devleop them or not. This
provision alone is expected to cost over a billion dollars and
take many years and about 1,000 additional employees to
implement. Its sole purpose is to further reduce the amount of
wetlands accorded any significant protection under this bill.
And of greatest concern to taxpayers is a very extreme
takings provision, under which anyone who could claim that
wetlands protection results in the loss of 20% of the value of
any part of their property as compared to what it would be if
they could develop it without any restrictions, could demand to
be compensated by the taxpayers. Why the taxpayers should be
punished for the perceived problems of the wetlands program is
never explained, but the punishment would be severe: cost
estimates for this provision range into the tens of billions of
dollars.
There is no valid reason why reforming the wetlands program
should result in substantially increased costs to the
taxpayers. That is clearly not the solution to wetlands
problems which most Americans want.
Another example is the stormwater program. Under existing
law, cities over 100,000 have discharge permits which do not
require specific levels of treatment (called numeric limits),
but which simply require certain practices (called best
management practices or BMPs), such as street sweeping or
settlement ponds. However, interpretations of existing law have
recently begun requiring stormwater permits to go to the
numeric limits necessary to achieve water quality standards. No
such technology is available in many instances, so clearly an
adjustment should be made.
What should happen is that the stormwater program should be
modified so that cities can go on using BMP's under their
existing permits to move steadily closer to water quality
goals, but they should not be under a legal requirements to
treat stormwater to numeric limits.
Instead, this bill wipes our the existing permit program
for municipalities entirely, ending all monitoring and all
enforceable requirements. The bill claims to deal with these
issues under the nonpoint program, but that program has been
notoriously ineffective and unenforceable. Furthermore, the
bill eliminates the stormwater permit program not only with
respect to municipalities, but also with respect to industrial
sites. This would end enforceable standards for industries
which leave piles of chemical stocks out in the open, subject
to runoff into the nearest stream.
There is a valid reason why stormwater permits, should not
move to numeric limitations, but there is no reason why
municipalities and industries cannot continue doing what they
are doing today to control stormwater pollution. Once again
this bill has opted for rolling back cleanup which is happening
today.
The advocates of this bill say they do not want to harm the
environment, they just want to give state and local governments
more flexibility. And where it is to the advantage of the
polluter to give state and local governments more flexibility,
they do so. but where it is to the advantage of the polluters
to give less flexibility, that is what the bill does.
For example, in the new provisions creating more lax
standards for discharge by industry into municipal sewage
systems, states would have only limited say in the matter. If
the conditions in this bill for a pretreatment waiver were met,
the states could not stop the waiver from being granted. When
it is for the benefit of the polluter, Washington still knows
best.
Another example is in the area of nonpoint (runoff)
pollution, which is now the greatest cause of water pollution
in the United States. The bill grants broad and vague
exemptions to agriculture (the largest source of nonpoint
pollution), which a state could not override even if it felt it
needed to do so in order to deal with its water pollution
problems. Again, when it is in the polluter's interest.
Washington still knows best.
The bill repeals the nonpoint program of the Coastal Zone
Management Act (CZMA), even though the coastal states did not
want it repealed and specifically asked that it be retained.
But unlike the nonpoint programs elsewhere, the CZMA nonpoint
program actually holds promise of achieving improvements
(albeit modest) in reducing nonpoint pollution. Again, where it
is the interest of the polluters, against the idea of greater
state role and flexibility, the polluters won out.
The stormwater provisions are another example: the
provisions in the bill which weaken control of municipal
stormwater pollution, and virtually eliminate any meaningful
control of industrial stormwater pollution control, are
federally mandated and the states cannot choose otherwise.
State and local government are pushed aside on the question of
relaxing these stormwater controls; the rollback would be in
federal statute and no one else would have a say in the matter.
The advocates of this bill say they do not want to harm the
environment, they just want to assure that ``good science'' is
used before regulatory decisions are made. This is their
rationale, for example, in including risk assessment provisions
even more extreme and onerous that those contained in the
House-passed risk assessment bill. But when it would be to the
disadvantage of the polluter to require ``good science,'' then
science is tossed aside.
For example, at Congress' direction, the National Academy
of Sciences has been working for over two years on a study of
how wetlands should be defined. That study is expected this
month. Yet here we are using to the floor with a bill which
drastically redefines wetlands so as to exclude the majority of
all wetlands nationwide, immediately before having this ``good
science'' on the very question we are deciding Clearly here the
advocates of this bill do not thing ``good science'' is going
to agree with them.
Another example is the new provisions effectively allowing
water quality standards to be lowered even when ``good
science'' says they should not be. At present, it is up to the
states to select the designated use for each waterbody, such as
swimmable, or navigation, or whatever. Having selected that
designated use, science determines what water quality standards
are necessary to achieve that designated use, for example, how
clean water must be for it to be swimmable without being a
health hazards. That is a scientific question: either the
medical evidence is that a given body of water is safe to swim
in, or it is not. Under this bill, we would effectively adjust
the water quality standards downward to accommodate cost
concerns, so that we could still call a body of water swimmable
even though medical evidence established that it was no.
Existing law takes costs into account in other ways; we should
not be disregarding the science and calling something swimmable
which is not.
The advocates of this bill say they do not want to harm the
environment, they just want to make sure that costs and
benefits are properly balanced in making decisions setting
environmental standards. Again this is the rationale for the
extreme risk assessment provisions in the bill. Where it is to
the advantage of the polluter, this bill requires extensive and
difficult benefit-cost analysis and risk assessment.
But many of the most significant regulatory decisions to be
made under this bill are the granting of the countless new
kinds of waivers created by the bill. In the aggregate these
waiver decisions will be the most far-reaching impacts of this
bill. Certainly if we believe that we should thoroughly
understand the costs, benefits, and risks associated with major
regulatory decisions, these waiver decisions should be subject
to the same benefit-cost and risk analyses as other regulatory
decisions would be under this bill. But they are not. Under the
bill the kinds of regulatory decisions likely to control
pollution could not go ahead without these extensive and
burdensome analyses, but the kinds of regulatory decisions
which are likely to benefit polluters, such as waivers, and
degrade the environment are not required to have any of these
new analyses.
Furthermore, perhaps the most basic benefit-cost issue in
the Act is the fact that we are requiring higher and higher
cost efforts by point dischargers precisely because we are
unwilling to require those same pollutants to be removed at far
lower cost by nonpoint sources. Yet this bill, rather than
taking the most cost-effective option of requiring nonpoint
sources to do at least modestly more pollution reduction, takes
the opposite course of requiring nonpoint to do less than it
does today. The result is that the task of cleaning up our
Nation's waters will become less cost-effective under this
bill, rather than more cost-effective. But the advantage of
nonpoint polluters will have been served.
The advocates of this bill say they do not want to harm the
environment, they just want to defend private property rights.
And where it is to the advantage of polluters they include
extreme private property provisions. But this bill would
fundamentally harm the private property rights of those whose
property will be subject to increased flooding because others
have chosen to destroy wetlands, of those whose private
property derives its value from fish stocks or wildlife or
recreational opportunities made possible by wetlands, and of
those whose private property can be enjoyed or developed only
if clean water has not been polluted by those upstream. Where
it is to the advantage of the polluter, this bill is aggressive
in its defense of property rights, but where concern over the
property of the rest of us is concerned, our property rights
would take a back seat to the right this bill holds in highest
esteem, and that is the right pollute.
The rollbacks, waivers, exemptions, and repeals of existing
law make this bill absolutely unacceptable. The bill at every
turn advantages the major polluters and disadvantages the rest
of us. It is an extreme bill in a country which wants
reasonable and cost-effective efforts to clean up our Nation's
waters and to bequeath them to our children. It would take
major modifications for this bill to become acceptable. If that
can be accomplished, then we should move forward. But if it
cannot, then we would all be far better off passing no bill and
continuing to operate under the existing Clean Water Act.
the bill dramatically rolls back point source standards
Background
The widely acknowledged successes of the Clean Water Act
over the past 20 years are attributable to the Act's control of
pollutant discharges from so-called ``point sources.'' Point
sources are confined and discrete conveyances such as pipes,
ditches and channels used by industry and municipalities to
discharge their polluted wastewater into our Nation's lakes,
rivers, streams and the ocean. The backbone of the point source
control program is the National Pollutant Discharge Elimination
System (NPDES) program established under Section 402 of the
Act.
The Act (at section 301) prohibits any point source
discharges, unless authorized in an NPDES permit. These permits
contain effluent limitations that specify the types and amounts
of pollutants that may be discharged. The limitations are
derived from two types of standards: technology-based and water
quality-based. Technology-based standards are based on what can
be accomplished using technologies available and economically
achievable for a particular industry. While technology-based
standards for each industry group are nationally applicable
(unless one of the limited available waivers or variances is
granted), the discharger has the flexibility to select the
technology it will use to meet these standards.
Sometimes technology-based standards are not adequate to
achieve State water quality standards. In these instances,
water quality-based standards are adopted. Water quality-based
standards are based on the capacity of the receiving water to
accommodate pollutants, which in turn depends on the use of the
receiving water as determined by the State. Hence, a waterbody
that is used for swimming and drinking water supply will have
higher standards than will one with which humans do not have
direct contact.
One of the Clean Water Act's feature that has been credited
for the success of the point source pollution control program
is its establishment of uniform minimum standards for similarly
situated dischargers. Such national baselines serve several
important functions.
First, they provide a level playing field. They protect
against states and cities having to choose between protecting
water quality and losing business and jobs to competitors in
states which roll back water quality protection to attract
industry.
Second, national baselines protect residents who live
downstream, as does most of the population, from dumping of
toxics by their upstream neighbors who, because they do not
live with the impact of their own discharges, might be tempted
to pollute with impunity. It is well known that the adverse
impacts of polluted water known no political boundaries.
National baselines ensure that residents of one community do
not have to worry about contamination of their drinking water
supply, swimming beach and favorite fishing spot by upstream
discharges of sewage and industrial wastewater.
Third, national baselines provide a degree of
predictability and simplicity in implementation. They allow the
regulated community to know what is expected of them under the
law and to make planning decisions accordingly. They allow the
regulator, usually the State, to implement the Clean Water Act
without exhausting its resources on complex, resource-intensive
scientific judgements such as those required under many of the
waiver provisions in H.R. 961. The demanding and often
impossible judgements the agencies are called on in H.R. 961 to
make on a facility by facility basis will divert the agencies'
resources from moving forward with an effective statewide
program.
H.R. 961's waiver provisions generally
Through creation of dozens of waivers and exemptions. H.R.
961 would eliminate fundamental provisions of the Clean Water
Act that establish uniform baselines that have resulted in the
significant gains of the Clean Water Act over the past 20
years.
The bill would introduce vague, unworkable and inconsistent
new standards that create uncertainty and confusion; exhaust
local, State and federal governmental resources; lead to
spiraling litigation; and, most significantly, devastate our
Nation's waters and the people that depend on them for
employment, recreation and sustenance. As stated by the Acting
Assistant Attorney General for the United States Department of
Justice's Office of Legislative Affairs, ``the bill would
create exemptions and loopholes for polluters, making
enforcement much more difficult'' (letter dated March 29, 1995,
from Mr. Kent Markus to Chairman Shuster). The National
Conference of State Legislators reached a similar conclusion:
``Many newly-added provisions in Title III would undercut the
states' ability to control toxic pollution from point sources.
For example, there are new provisions that would slow down and
weaken national effluent guidelines; allow increased discharges
of toxic pollutants to sewage treatment plants and allow
permits for industrial dischargers that violate water quality
standards * * *'' (letter dated March 30, 1995, from Mr.
Patrick Dougherty, Chair, NCSL Environment Committee, to
Chairman Shuster).
The bill contains a myriad of industry-specific waivers
which both expand currently available waivers and create new
loopholes in the Act's point source standards. For example,
there are one or more specific waivers available to each of the
following industries: mining, pulp and paper, iron and steel,
photo processing, food processing, electric power, cattle, oil
and gas and others. In addition, a select group of
municipalities, including San Diego and Los Angeles, would
become eligible for new or expanded waivers of standards for
treating the wastewater from their sewage treatment plants.
The bill also would create generally applicable loopholes,
such as the provision that a discharger is deemed in compliance
if it complies with its technology based standard a certain
percentage of the time; the one that allows for permits that
will not meet water quality standards if a watershed plan has
been written; and the entitlement to intake credits in a wide
variety of circumstances.
Responses to suggested rationales for the multiple waivers
The nagging question is: WHY? Has enough already been done
to protect water quality? Do Americans want reductions in water
quality? The answer to both of these questions is a resounding:
NO.
Notwithstanding the frequent observation that ``the Clean
Water Act is the most successful Federal environmental law,'' a
lot remains to be done to maintain the progress that has
already been made, and to address remaining water quality
problems. Although the point source program has resulted in
enormous strides in cleaning up our Nation's waters, 40% of our
Nation's waters still do not meet State designated water
quality standards. That means that our waters are not yet clean
enough. Our successes do not warrant the waivers in this bill,
unless we are prepared to say, and hear said, that ``the Clean
Water Act was the most successful Federal environmental law--
until 1995, when it was dismantled by Congress.''
Unfortunately, H.R. 961 seems to be based on the premise that
we have gone too far in cleaning up our Nation's waters, that
the goals of the Clean Water Act's point source control program
have already been achieved. Not only would the bill prevent
further progress, it would return us to the days before the
gains we today enjoy--even take for granted--had been achieved.
It is equally clear that Americans do not want to roll back
environmental laws that are responsible for the water quality
and quality of life that we have come to expect. In a report
issued this month entitled ``Setting Priorities, Getting
Results: A New Direction for the Environmental Protection
Agency,'' the National Academy of Public Administration cited
as an ``enduring principle'' that ``the American people
overwhelmingly desire a healthier environment and increasingly
see it as critical to the nation's future'' (Summary Report at
p. 4). The Academy also noted that ``EPA has greatly enhanced
the quality of life in America * * * [such that] most Americans
now take a relatively clean environment for granted'' (Summary
Report at pp. 7 and 9).
Many of the waivers and variances created under the bill
have been promoted in the name of increasing flexibility and
reducing burdens. We fully agree that enhancing flexibility and
reducing regulatory and financial burdens, both for State and
local governments and for the regulated community, are laudable
goals. But, there are ways to increase flexibility and reduce
burdens that do not have the serious adverse consequences of
this bill which, in many instances, do not reduce but actually
increase burdens on State and local governments.
It has been argued that the waiver provisions will not
cause a setback in water quality because waivers are not
available unless authorized by a State or EPA. Unfortunately,
under the bill's provisions agency approval is often an
illusory safeguard.
First, in several instances, the waiver is automatic or a
State or EPA is required to grant the waiver if certain
conditions are met, and the conditions do not necessarily focus
upon water quality, but rather on taking certain actions. The
result is waivers based not upon good judgment founded in
science, but upon behavior. The bill thereby limits the States'
and EPA's authority to exercise discretion in determining
whether a waiver is appropriate in a particular situation.
Examples of the mandatory nature of certain waivers are:
coal remining operations (``Any operator of a coal mining
operation * * * shall be deemed to be in compliance with
sections 301, 302, 306, 307, and 402 of this Act if * * *'')
(Sec. 301(d) of the bill, amending Section 301(p) of the Act);
coastal discharges (``any municipal wastewater treatment
facility shall be deemed the equivalent of a secondary
treatment facility if * * *'') (Section 309(a) of the bill,
amending Section 304(d) of the Act); modification of secondary
treatment requirements (``The Administrator, with the
concurrence of the State, shall issue a 10-year permit under
Section 402 which modifies the requirements of subsection
(b)(1)(B) * * * if * * *'') (Section 309(b) of the bill,
amending Section 301(s) of the Act); waiver of industrial
categorical pretreatment standards (``the approved pretreatment
program shall be modified to allow the publicly owned treatment
works to apply local limits in lieu of categorical pretreatment
standards [if] * * *'') (Section 311 of the bill, amending
Section 307(f) of the Act).
Second, this rationale ignores the fact that the uniform
minimum standards that are the foundation of the current point
source program are the cornerstone of the Act's success. As the
National Academy of Public Administration concluded, ``EPA has
a role in setting and enforcing national standards or ensuring
that States and local governments enforce them, thus preventing
polluters from externalizing their pollution costs and creating
a renewed `race to the bottom' '' (Summary Report at pp. 14-
15).
Third, even where the granting of a waiver is discretionary
with a State or EPA, frequently the standards created by the
bill for granting a waiver are extremely resource intensive of
not impossible to implement.
The bill offers little or no guidance on how the dozens of
new, often vague and ambiguous, standards are to be
implemented. Nor does it direct EPA to develop any guidance
that would provide some degree of consistency in interpretation
and application. Adoption of complex tests, coupled with
significant limitations on discretion in how they might be
applied, creates an impossible situation for State and Federal
agencies attempting to follow them, and exponentially increases
delays, up from burdens and later litigation in permit appeals.
Each State that runs its own Clear Water Act permitting program
will be required to expend additional resources to develop, and
defend against challenges to, every permit. The increased
resources demanded of State and Federal agencies, coupled with
the limitations on their exercise of discretion, set them up
for a losing situation, which then adds fuel to Congress'
criticism of the agencies' performance.
As stated by Mr. Robert Perciasepe, EPA Assistant
Administrator for Water, ``Across the board, lengthy litigation
over newly crafted but fundamental provisions may put off basic
protections. The administrative burden of making tens of
thousands of new, cases by case determinations may overwhelm
available Federal and State resources, leading to backlogs,
frustration and delay or hasty and perhaps bad decisions''
(Letter to Chairman Shuster dated April 4, 1995).
In addition, without explanation and inconsistent with
other provisions of the Act, the bill repeatedly creates a dual
standard for granting waivers, depending on whether EPA or a
State is responsible for implementing the Clean Water Act in a
particular State. For example, under several provisions, where
a State that has not been authorized to implement the Clean
Water program, the Administrator may act on a waiver
application only with the concurrence of the State. However, an
authorized State is not required to seek the concurrence of, or
in many instances even to consult with, the Administrator
before granting a waiver. Similarly, some provisions provide
that under given circumstances EPA shall and a State may grant
a waiver (see, for example, Sec. 406 of the bill regarding
intake credits).
Some of the bill's waiver provisions are couched in terms
that may sound environmentally responsible, such as ``pollution
prevention,'' ``innovative technologies,'' ``pollution
reduction agreements'' and ``watershed management.'' But,
behind the section headings are some sweeping waivers that will
do anything but prevent pollution. Rather, these sections
contain perverse incentives for polluters to take advantage of
liberally available loopholes to maximize profit at the expense
of the quality of the Nation's water and the everyday life of
the people in this Country.
Many of the waiver provision also fail to take into
consideration the cumulative impact of waivers to multiple
sources, instead treating each discharger as if in a vacuum.
Risk assessments are not allowed, much less required,
before standards may be waived. This includes standards for
toxic and other bioaccumulative and persistent pollutants that
are known to threaten human health. While the bill calls for an
elaborate form of risk assessment, more onerous than that
recently passed by the House, it applies risk assessment only
to regulatory activities likely to impose requirements on
polluters. On regulatory decisions likely to be to the
advantage of polluters, however, such as the many new waivers
allowed by this bill, the bill does not apply risk assessment,
so that these decisions can be made with greater speed and less
analysis of their consequences. This is not an oversight. The
subcommittee and full committee rejected amendments that would
have subjected waivers to risk assessment.
In addition, the waivers have potentially significant
impacts on other industrial and municipal dischargers and on
nonpoint sources of pollution. Any increase in discharges by
one source will need to be offset by reducing the discharges by
another source, if water quality standards are to be met. Those
industries and municipalities that were effective in securing
specific waivers in the bill will have a competitive advantage
over other industries, municipalities and other dischargers, or
else our water quality will deteriorate. In the guise of
increased flexibility, the bill creates loopholes that create a
very unlevel playing field.
The vast majority of the point source waivers in the bill
were never addressed in testimony during any of the seven Clean
Water Act hearings during the 104th Congress before the Water
Resources and Environment Subcommittee, and were developed
behind closed doors. Thus, whatever conceivable justification
there may be for the waivers remains elusive to most of us.
Their short term and long term impacts have never been openly
examined. We do know, however, that whatever their impacts,
they will be compounded by the fact that the bill doubles the
term of most permits from 5 to 10 years. So, we would be living
with the impacts of this unravelling of the Clean Water Act
well into the next century.
Examples of point source waivers in H.R. 961
A more detailed discussion of some of the specific point
source waiver provisions follows:
1. Modifications of Effluent Limitations for
Nonconventional Pollutants: Section 301(b) of the bill, which
amends Section 301(g) of the Act, expands from five to more
than 70,000 the number of pollutants that would be eligible for
waivers of the applicable technology-based standard of best
available technology economically achievable (``BAT'').
Current law lists five nonconventional pollutants for which
a discharger may seek a modification of the BAT standard
(ammonia, chlorine, color, iron and total phenols). These five
pollutants were identified in the Act based on a determination
that there was sufficient information to warrant making them
eligible for consideration for waivers.
Under current law, for waivers to be granted for any
additional nonconventional pollutants, they must undergo a two-
step approval process. First, for a nonconventional pollutant
to be eligible, it has to be added to the list, based on a
demonstration to the Administrator that, among other things,
the pollutant is not a toxic pollutant. A nonconventional
pollutant that is approved for the list may be considered for a
waiver, based on the required showing by the applicant.
Petitions for listing must be filed within 270 days after
promulgation of an effluent guideline for a particular
nonconventional pollutant.
The bill would dramatically enlarge the number and type of
pollutants for which waivers may be sought. The bill eliminates
the prerequisite that an applicant demonstrate that the
pollutant for which the modification of the BAT standard is
sought is not a toxic pollutant. This is problematic because
many of the approximately 70,000 so-called ``nonconventional''
pollutants would meet the criterion for toxic pollutants under
Section 307(a) if EPA were to carry out the procedure for
formally listing additional toxic pollutants. The term
``nonconventional'' includes any pollutant other than the five
conventional pollutants and 126 toxic pollutants designated
under the Act. Since EPA has been slow to add to the list of
126 toxic pollutants under Section 307 of the Act, many toxic
pollutants are currently in the enormous catchall category of
``nonconventional'' pollutants. Nonconventional does not mean
non-toxic. This bill would expand the waiver of BAT standards,
which currently is available only for nonconventional
pollutants, to certain toxic pollutants, including pollutants
that may be highly persistent and bioaccumulative. The 70,000
pollutants that would become eligible include most of the
chemicals referred to as dioxins, and all of the chlorinated
dibenzo-furans.
The fact that State water quality standards would still
apply does not mitigate the potential adverse impacts of this
provision, since states have standards for only a small
fraction of the tens of thousands of pollutants that would be
eligible for waivers under H.R. 961.
In addition, the bill would eliminate the deadline for
applying for a waiver. Hence, dischargers of approximately
70,000 nonconventional pollutants, including some toxic
pollutants, could at any time drown EPA with applications for
modifications.
As with most of the waiver provisions in the bill, this
waiver was never raised in hearings before the Water Resources
and Environment Subcommittee. The creation of this potentially
sweeping modification of applicable baseline standards for
nonconventional pollutants was achieved without any disclosure
of any justification for the amendment.
2. Waivers Under the Guise of ``Pollution Prevention
Opportunities''.
a. Waivers for ``Innovative Production Processes'': We
strongly support the concept of improving provisions on
innovative technologies in order to provide greater incentives
for development of innovative production and pollution control
processes, and, in appropriate circumstances, protecting those
who take advantage of the incentives from liability if their
innovations fail. We also agree with the bill's increase from
two to three years of the extension for meeting applicable
standards under this provision.
However, Section 302 (a) and (f) of the bill, which amends
Sections 301(k) and 307 of the Clean Water Act, raises several
serious concerns.
First, the provision creates new standards that reduce the
likelihood that so-called ``innovative'' measures taken under
these provisions actually will succeed in developing innovative
approaches to meeting water quality requirements. The new
standards also increase the potential for abuse by those who
view this provision as an opportunity to extract a three-year
extension of deadlines for meeting applicable standards.
For example, under current law, proposals must have a
``substantial likelihood'' of achieving an effluent reduction
that is ``significantly greater'' than otherwise required, and
must have the potential for industry-wide application. Under
the bill, the innovative method must only have the
``potential'' to achieve an effluent reduction that is
``greater,'' by some unspecified amount, than otherwise
required, and there is no requirement that the technology have
any application beyond the facility that developed it. A barely
perceptible reduction in the effluent would meet the new
standard, and allow a three-year extension from meeting
applicable standards.
Second, the bill liberally excuses violations of more
lenient interim standards applicable pending expiration of the
extension. The bill requires a reduction in or elimination of
any penalty if the permittee has made good faith efforts to
implement the innovation and to comply with any interim
limitations. Although it is appropriate to provide some
protection against liability if an effort at innovation under
this provision fails, the bill goes too far in compromising the
requirement to comply with the weaker interim limits
established to reflect the permittee's capability pending
completion of the innovation. For penalties to be forgiven, the
permittee merely has to meet the subjective ``good faith''
test, regardless of how inadequate its practices are.
Forgiveness of even interim limits is especially
problematic in the context of indirect dischargers to publicly
owned treatment works (``POTWs''). There, the interim standards
are necessary to prevent interference with the operation of the
POTW, and discharges that will pass through the POTW. By
excusing the requirement to meet even these interim standards,
the bill would increase the burden on the POTW and municipal
ratepayer, in order to provide an inappropriately high degree
of protection for the industrial discharger.
b. Waivers for Pollution Prevention Programs: Section
302(b) of the bill, adding Section 301(q) to the Act, turns a
highly promising concept into a dangerously broad loophole. We
enthusiastically endorse inclusion of pollution prevention
planning in the Clean Water program, and commend the many
companies that already have developed and implemented
successful pollution prevention programs.
Unfortunately, through the creation of vague and unworkable
standards and the oversimplification of an enormously complex
endeavor, the bill creates another substantial loophole without
ensuring that the return will even approximate the potential
damage.
The provision allows waivers of virtually all standards
under the Act, including technology-based standards (best
conventional technology (``BCT''), best practicable technology
(``BPT''), BAT and secondary) and water quality-based
standards, including standards for toxic pollutants and for
pretreatment by industrial dischargers into POTWs. The
prerequisite for obtaining a waiver under this provision is
that so-called pollution prevention measures or practices will
``achieve an overall reduction in emissions to the environment
(including emissions to water and air and disposal of solid
wastes) from the facility * * * that is greater than would
otherwise be achievable * * * and will result in an overall net
benefit to the environment.''
The determinations required under this provision are, at
best, enormously complex. For example, how would a permit
writer determine whether an increase in discharges of PCBs to a
lake coupled with a reduction in discharges to the air of
sulfur dioxide at a facility will result in an overall
reduction in emissions and net benefit to the environment?
Application of these standards, if possible at all, would
require sophisticated modeling and speculation.
Notwithstanding, conspicuously absent from the bill is any
provision directing EPA to issue guidance or regulations on how
state and federal permit writers are to make complex multimedia
tradeoff determinations required by this section. By omitting
any federal guidance, the bill sacrifices any possibility of
consistency and equity in implementation.
Notwithstanding the high stakes, since this provision would
allow discharges that violate all current standards in the Act
in exchange for some unspecified benefit to the air or other
environmental media, each State and federal employee will be
left on his or her own in interpreting the provision without
any guidance from Congress or EPA. Implementation of this
provision will strain the resources of the State and federal
environmental agencies and relax Clean Water standards.
Benefits, if any, will not necessarily be to water quality--
rather, they will be at the expense of water quality.
c. Waivers for Pollution Reduction Agreements: This is the
first of two provisions in the bill concerning pollutant
trading. The other, which establishes a pilot program under
principles that are not entirely consistent with this
provision, are in the section of the bill on watershed
management (Section 321(a), discussed below).
Section 302(c) of the bill, adding Section 301(r) to the
Act, authorizes the issuance by States and EPA of permits that
do not meet applicable standards if the owner or operator of a
facility (point source discharger or nonpoint source) enters
into a ``binding contractual agreement'' with another source
``in the same watershed'' to ``implement pollution reduction
controls or measures beyond those otherwise required by law * *
*,'' and the State or EPA determines that ``such pollution
reduction control or measures will result collectively in an
overall reduction in discharges to the watershed that is
greater than would otherwise be achievable if the parties to
the pollution reduction agreement each complied with applicable
requirements * * * resulting in a net benefit to the
watershed.''
This provision suffers from many of the same shortfalls as
the pollution prevention provision addressed above. It is
another example of a very promising concept that has not been
adequately developed into a workable program that will benefit,
or at a minimum not impair, water quality.
The only criterion for trading agreements is that they will
result ``collectively in an overall reduction in discharges to
the watershed that is greater than would otherwise be
achievable if the parties to the pollution reduction agreement
each complied with applicable requirements * * * resulting in a
net benefit to the environment.'' There is no definition of
what constitutes a ``net benefit to the environment.'' There
are no guidelines as to the elements of an acceptable trading
agreement, and no provision for EPA's issuance of regulations
or guidance on how a State or federal employee might make these
sophisticated determinations.
Trading is authorized for the purpose of implementing
``pollution reduction controls or measures beyond those
otherwise required by law * * *.'' But there is no requirement
that the added reduction be beyond a de minimis amount and,
again, no guidance on how this measurement might be made.
The bill gives a carte blanche for modifications under this
provision--modifications are available for any ``otherwise
applicable requirements.'' There is no backstop that, for
example, discharges meet, at a minimum, technology-based
limits.
Similarly, the provision does not limit in any way the type
of pollutants that may be traded. It leaves open the
possibility of trades between highly toxic pollutants and
conventional pollutants. In addition, the provision allows
trading between dischargers in the same watershed,
notwithstanding that some watersheds are thousands of square
miles and include hundreds of different waterbodies. Trades
could result in the creation of toxic hot spots at one outfall
if the discharges at the facility of the other party to the
agreement result in an overall reduction in discharges. And, as
with the other waivers, this one is immune from risk
assessment.
It is not clear that the trading agreements would be
enforceable in federal court, and in certain instances they
clearly will not be. The agreements are required to be embodied
in ``binding contractual agreements'' and in modifications to
NPDES permits. In the event that an NPDES permit's effluent
limitations are relaxed under an agreement by a nonpoint source
to reduce discharges, and the nonpoint source fails to hold up
its end of the bargain, it appears that absent enforceable
nonpoint source requirements, which are not required, the state
and federal government would have no recourse to ensure that
overall discharges are no greater than would have been allowed
absent the trading agreement.
These concerns regarding the provision are compounded by
the fact that the expanded ten year permit terms may be further
lengthened under the watershed planning provisions.
The bill imposes on EPA the obligation to report to
Congress within three years on the discharge reductions
achieved as a result of modifications made under pollution
reduction agreements. However, the bill has no provision for
parties to an agreement to conduct monitoring or provide EPA
analyses of the impacts of their agreements.
Mr. Robert Perciasepe, EPA's Assistant Administrator for
Water, summarized the Agency's reaction to this provision as
follows: ``Administrator Browner and I fully support preventing
pollution and exploring ways to increase pollution trading, but
I believe the provisions at Section 302(b) in H.R. 961 are not
good policy for a number of reasons. Progress to date on
methods for assessing and comparing pollution generated and
energy used during a product's life cycle shows that judgments
about pollutant trade-offs can be very complicated. H.R. 961
would allow discharges that exceed State water quality
standards and deviate from EPA's technology-based standards on
the basis of site-by-site decisions regarding transfers of
pollutants between air, water and landfills, energy use and
other factors, with no guidance or methodology to establish
even the slightest consistency among States.''
d. Waiver of Antibacksliding Requirements: Section 302(d)
of the bill, amending Section 402(o)(2) of the Act, creates
broad new exemptions from the antibacksliding requirements of
the Act. Under current law, new permits generally must be as
strict as existing permits. This requirement helps ensure that
water quality will not become worse.
The bill makes clear that backsliding from a permit's
effluent limitations is allowed through waivers under new
Sections 301(q) (relating to pollution prevention) and 301(r)
(relating to so-called ``pollution reduction agreements'').
Hence, new permits issued for ten year terms can be weaker than
current permits if, for example, there are unquantified
reductions in air pollution in the same watershed.
In addition, the bill creates a new vague catchall
authorization for backsliding, where a discharger is ``taking
pollution prevention or water conservation measures that
produce a net environmental benefit.'' As in other places in
the bill, there is no guidance on how a permit writer might
calculate the circumstances where the ``net environmental
benefit'' standard will be met.
Backsliding is allowed by the bill in a variety of
circumstances, including where a discharger is taking measures
that ``increase the concentration of a pollutant while
decreasing the discharge flow; or increase the discharge of a
pollutant * * * from one or more outfalls at a permittee's
facility, when accompanied by offsetting decreases in the
discharge of a pollutant or pollutants from other outfalls at
the permittee's facility.'' Both of these scenarios potentially
impair water quality. Increases in concentration of certain
toxic pollutants can cause acute impacts even if the overall
mass of the pollutant is reduced. In addition, recognition of
offsets between different outfalls at a facility often is not
appropriate. For example, some facilities are miles long with
multiple outfalls. An increase in discharges from one outfall
can be devastating to water quality in the vicinity of that
outfall, devastation that will not be offset by reductions in
discharges a mile or more away.
e. Waiver of Antidegradation Review Requirements:
Regulations under the Clean Water Act currently require states
to adopt policies and methods to prevent degradation of high
quality waters. Section 302(e) of the bill, amending Section
303(d) of the Act, prevents EPA from requiring a State to
conduct antidegradation review in various circumstances,
including where increases in a discharge are authorized under
various waivers addressed above (such as Section 301(g) (waiver
of standards for nonconventional pollutants), 301(k)
(innovative technologies), 301(q) (pollution prevention) and
301(r) (pollutant trading agreements)). The provision also
precludes a federal requirement for antidegradation review
where the concentration of any pollutant in a discharge is
increased, if the increase in concentration is caused by a
reduction in flow, and where an increase in discharge from one
outfall at a facility of any size is offset by a decrease in
the discharge of a pollutant from another outfall at the
facility.
This provision raises concerns similar to those addressed
in the discussion of the antibacksliding provision. In
addition, this provision discourages any evaluation of the
impacts of the bill's rollbacks in water quality protection.
3. Waivers of Categorical Pretreatment Standards: Section
311 of the bill, which amends Section 307 of the Act, allows
for waivers of national categorical pretreatment standards by
industries that discharge their wastewater to municipal sewage
treatment plants instead of directly to waterbodies.
The bill identifies as the purpose for awarding waivers the
avoidance of ``redundant or unnecessary treatment'' that has
``little or no environmental benefit,'' and the reduction of
certain alleged administrative burdens. These criteria are
unclear and promise to be resource intensive for the municipal,
state and federal agencies responsible for applying them. For
example, the meaning of the concept ``unnecessary treatment''
which has ``little environmental benefit'' is unclear, since
the necessity of treatment depends on the goal that one is
striving to attain. The replacement of categorical standards
with some unspecified local standards for which the bill has no
minimum standard virtually eliminates any meaningful goal,
making circular the differmination of whether treatment is
``necessary'' and will have more than a ``little environmental
benefit.''
We support the avoidance of redundant or unnecessary
treatment and any corresponding waste of resources. Our concern
is that the provision, as currently drafted, has implications
far beyond any reduction of redundancy or of any administrative
or other burden. specifically, the waiver provision threatens
to adversely impact the operation of municipal sewage treatment
plants, increase to municipal ratepayers, and increase
discharge of industrial pollutants to the environment.
The provision requires EPA or the State to grant a POTW's
request to modify its pretreatment program to allow the POTW to
apply local limits in lieu of categorical pretreatment
standards, if four specified conditions are met, relating to
the POTW maintaining compliance with its NPDES permit. State
requirements, and requirements relating to air emissions and
biosolids. The bill requires that the POTW demonstrate that it
is ``likely'' to remain in compliance with its permit and other
specified requirements. It is unclear how this demonstration
may be made.
Moreover, even if the POTW does continue to meet its
standards, there is no assurance that the POTW is not
discharging untreated industrial toxic pollutants. POTWs are
not designed to treat, and generally do not have limits for and
are not required to monitor for, the sometimes numerous
different nonconventional and toxic pollutants introduced by
industrial users. The bill fails to guard against the discharge
of industrial pollutants that are not susceptible to
conventional treatment for domestic waste and therefore pass
through the POTW. The provision seems to suggest that if you
simply dilute toxic and industrial waste with enough domestic
sewage, it is no longer harmful.
The impact of waiving categorical pretreatment standards
will be felt most severely in communities with combined sewer
overflows (``CSO'') and sanitary sewer overflows (``SSO'').
Adoption of local pretreatment standards in lieu of more
stringent categorical pretreatment standards guarantees that
each time there is a CSO or SSO, there will be less
pretreatment at the factory than currently required, resulting
in increased amounts and concentrations of industrial waste
being discharged with absolutely no treatment by the POTW. In
the best case scenario, this toxic and other industrial waste
will be discharged directly to a waterbody. Under other
conceivable and, in some localities, likely scenarios, the
toxics and other industrial waste will end up in the basements
of residents' homes, in playgrounds, and along the streets. EPA
has expressed concern about such a scenario. In his April 4,
1995 letter to Chairman Shuster, EPA's Assistant Administrator
for Water cautioned that ``[w]ithout national pretreatment
standards, EPA's widely praised, flexible policy on addressing
combined sewer overflows may need to be revised to incorporate
new provisions for toxic pollutant discharges.''
Also of concern is that this provision invites competition
between municipalities for industry. Whichever municipality can
offer the best deal as far as the cost of wastewater
pretreatment required of an industrial discharger, the more
likely it is to attract business and jobs. This provision would
eliminate the baseline federal standards that are intended to
provide protections for all people regardless of which
community they live in, and regardless of whether they live
downstream from a municipality that elects to adopt loose
standards in order to attract industry.
Furthermore, even if an annual review reveals that the POTW
cannot meet its requirements while applying local pretreatment
limits, then the industrial discharger is entitled to ``a
reasonable period of time'' (not to exceed two years) to come
into compliance with the categorical pretreatment limits. The
outside limit of two years and the ``reasonable period of
time'' standard are unduly lax, in view of the fact that the
categorical standards that would be imposed are ones that the
industrial discharger was required to have been meeting prior
to receiving the waiver under this provision. If an industrial
user's discharges pursuant to local limits are causing
violations by the POTW, impairment to water quality or to the
ability of the POTW to effectively operate, or increases in
costs to ratepayers, there is no justification for allowing it
to drag its feet--in simply turning back on treatment systems
that have already been installed--to meet the nationally
applicable standards.
Interactions between this provision and others in the bill
also must be considered. For example, the bill fails to include
safeguards against abuse of this provision by privately owned
for-profit treatment works that treat primarily industrial
waste. Under the bill's definition of a publicly owned
treatment works in Section 504 of the bill (amending Section
502(27) of the Act), a private owner of a for-profit treatment
works may take advantage of the waiver of categorical
pretreatment standards. If the privately owned treatment works
is designed and constructed ``principally'' to treat a
``mixture'' of some unspecified combination of ``domestic
sewage and industrial wastes,'' it may take advantage of the
waiver of categorical pretreatment standards. Without
safeguards, this lends itself to abuse by privately owned
treatment plants seeking to increase their profit margins.
Finally, this provision threatens to shift from industry to
residential ratepayer the costs of treating industrial waste,
and to increase burdens on municipalities with responsibility
for implementing the provision.
4. Waivers for Watershed Management Plans.
a. Waivers Under Pollutant Transfer Pilot Projects: Section
321(a) of the bill adds a new Section 321(g) to the Act, which
establishes a program for pollutant transfer pilot projects.
Under the provision, a point source discharger, or a source of
nonpoint pollution, may seek approval to increase its
discharges of a pollutant ``by entering into arrangements,
including the payments of funds,'' for another discharger or
source to take measures or implement controls on its own
pollution through a pollution reduction credits trading
program.
This provision drastically oversimplifies a highly complex
concept which holds promise, but is just at its inception.
Moreover, the provision is void of guidelines or meaningful
limitations and does not direct EPA or the States to develop
criteria for approval of projects. The absence of meaningful
criteria or control minimizes the likelihood of a successful
pilot project or of the ability to generalize any results or
lessons learned to other sources.
The only criterion for approval is that a request include
``appropriate safeguards * * * to ensure compliance with
technology based controls and to protect the quality of
receiving waters.''
This vague criterion falls short of requiring the transfer
of responsibility for reducing pollution contribute to the
attainment of water quality standards. The bill does not
elaborate on what may be ``appropriate'' safeguards or on what
constitutes ``protection'' of water quality. There is no
requirement that the reduction in pollution by the discharger
who agrees to take measures or implement controls with respect
to its own pollution is at least sufficient to offset the
discharge by the other source, or beyond what would otherwise
be required. Nor is there any requirement that the pollutants
discharged by the two parties to the agreement be similar in
toxicity or impacts on the environment, or that the discharges
be in the same vicinity.
b. Waivers of Water Quality Standards as an Incentive for
Watershed Management: Section 321(b) of the bill, which adds
Section 402(r) to the Act, authorizes the issuance of permits
that do not meet water quality standards. The conditions for
issuing such a permit are inadequate to ensure that water
quality is not impaired through implementation of this
provision.
A noncomplying permit may be issued if: the receiving water
is in a watershed with an approved watershed management plan,
the plan includes so-called ``assurances'' that water quality
standards will be met by some ``specified date,'' and the point
source does not have a history of ``significant noncompliance''
with its permit. Water quality stands to lose far more than it
stands to gain under this provision.
First, since a watershed plan is not required to include an
entire watershed, this provision could be available in a
portion of a watershed that is not even covered by a watershed
plan, so long as the receiving water is in a watershed for
which a portion of the watershed is covered by a watershed
plan.
Second, the requirement that the plan include assurances
that water quality standards will be met by a specified date is
so vague as to be meaningless. This criterion could be met by
the statement ``I promise to meet water quality standards by
the year 3000.'' There is no requirement for any demonstration
that the ``assurances'' be anything other than empty promises
that are not backed up by a reasonable certainty of meeting
water quality standards. And, there is no requirement that the
``specified date'' be anytime within the lifetime of anyone
living today.
5. Exemptions for So-Called ``Waste Treatment Systems''.
The bill includes several exemptions for so-called waste
treatment systems. Sections 401, 411 and 502 of the bill exempt
specified waste treatment systems from the definition of waters
of the United States. Since the jurisdiction of the Clean Water
Act extends only to navigable waters, excepting a waterbody
from the definition of navigable waters exempts it entirely
from the Clean Water Act. The first of the provisions below
relates to waste treatment systems generally. The second one
addresses a subset of the first, concentrated animal feeding
operations. The interaction between the two provisions, and the
reasons for having multiple provisions on this issue, are not
clear.
a. Exemption In New Definition of ``Waste Treatment
Systems'': Section 411 and 502 of the bill, adding a new
Section 406 and amending Section 502(7) of the Act, remove
significant waterbodies from protection under the Act by
defining them not to be ``navigable waters.''
Section 411 of the bill directs EPA to issue regulations
that define ``waste treatment systems.'' Section 502 in turn
provides that waste treatment are not navigable waters. The
bill mandates that certain areas be included in the definition
of waste treatment systems, and therefore are not waters
subject to the Act. The bill thereby limits the Agency's
authority to apply its expertise and exercise discretion to
appropriately limit the exclusions from the Act in developing
these regulations.
Unless covered by an exception, the following areas are
required to be exempted from regulation under the Act: ``areas
used for detention, retention, treatment, settling, conveyance,
or evaporation of wastewater, stormwater, or cooling water. * *
*'' The bill creates three exceptions to the exemption: (1) if
``the area was created in or resulted from the impoundment or
other modification of navigable waters and construction of the
area commenced after the date of [enactment]''; (2) on or after
February 15, 1995, the owner or operator allows the area to be
used by interstate or foreign travelers for recreational
purposes; or (3) on or after February 15, 1995, the owner or
operator allows the taking of fish or shellfish from the area
for sale in interstate or foreign commerce.
The bill precludes EPA and the States from requiring a new
permit under Sections 402 or 404 of the Act before issuing the
regulations, for any discharge into any area used for
detention, retention, treatment, settling, conveyance, or
evaporation of wastewater, stormwater, or cooling water, unless
the area is within one of the three exceptions noted above.
Like most of the other waiver provisions, this concept was
not addressed at any of the seven hearings held during this
Congress before the Water Resources and Environment
Subcommittee, so its impact has not been explored by the
Committee.
Since waterbodies that qualify as waste treatment systems
under this provision would no longer be protected under the
Clean Water Act, the waterbodies would be available for
unrestricted discharges of industrial waste. Industries that
generate large quantities of wastewater and have undeveloped
land adjacent to waterbodies could take advantage of and abuse
this provision. For example, mining, electric power and the
pulp and paper industry are known to use large areas for
detention, retention, treatment, settling or conveyance of
wastewater.
The impacts of this provision are illogical and
significant. The following illustrate some of its potential
consequences:
The owner of a mine who, before enactment of this
provision, commenced construction of an impoundment in a
navigable water, would be able to discharge wastewater
containing mine tailings into the water above the impoundment,
no matter how toxic the discharge. Such a discharge would not
be covered under the Clean Water Act if the discharger had not
obtained a permit under Section 402 of the Act prior to
February 15, 1995.
An electric power plant that impounds a stream and uses the
pool created above the impoundment as a cooling pond would be
exempt from NPDES permit requirements under the Clean Water Act
even if the owner allows the area to be used for recreational
purposes by residents of the State in which the plant is
located, or allows the taking of fish or shellfish for sale
within the State, if the plant had not obtained an NPDES permit
prior to February 15, 1995.
However, a permit would be required if the owner allows the
area to be used for recreation by interstate or foreign
travelers, or allows taking of fish or shellfish from the area
for sale in interstate or foreign commerce.
If, on February 1, 1995, a State learned that a factory was
discharging its wastewater into a pool formed by an impoundment
it constructed in a stream, and determined that the discharger
is required to have a permit since these are discharges into a
water of the United States, the discharger will not be required
to obtain a permit if the State had not issued a permit before
February 15, 1995.
These examples demonstrate some of the perverse incentives
and illogical effects of this provision. It encourages so-
called waste treatment systems to be located directly in waters
of the United States, rather than at locations where they are
less likely to adversely impact water quality. It rewards
violators who did not obtain NPDES permits prior to February
15, 1995, regardless of whether they were required by law to do
so. It provides greater protection to interstate and foreign
travelers who fish or swim in an electric utility plant cooling
pond than it does to residents of the state, even though the
later are far more likely to frequent the pond. It threatens to
eliminate protections of the Clean Water Act from certain
streams and other waters of the United States and turn them
into dump sites.
b. Exemption for Confined Animal Feeding Operations:
Section 401 of the bill, which amends Section 402(a) of the
Act, excludes from the definition of waters of the United
States ``waste treatment systems, including retention ponds or
lagoons, used to meet the requirements of this Act for
concentrated animal feeding operations [``CAFOs''].'' This
sweeping provision exempts from regulation under the Act all
waters of the United States that are used as ``waste treatment
systems'' (eg. for settling, retention, etc.) for animal wastes
at CAFOs.
This provision gives a license for factory farms, no matter
how large, to dump animal wastes into lagoons, retention ponds,
wetlands and other waters of the United States without a
permit, destroying wetlands and degrading water quality. It is
a total exemption for an entire industry, ultimate special
interest loophole.
6. Waivers for Select Municipalities.
Section 309 of the bill contains four different waivers of
secondary treatment requirements for discharges by POTWs.
Collectively, these provisions make more than 10,000
communities eligible for waivers from the technology-based
minimum level of treatment that all municipalities were
required to have met by July 1, 1988. Three of the provisions
apply to ocean discharges by POTWs. The fourth applies to
discharges from POTWs that serve small communities.
a. Waivers for Municipal Ocean Discharges: Section 301(h)
of the Clean Water Act allowed coastal communities to apply for
waivers for secondary treatment, if the applicant could
demonstrate that a lesser level of treatment would not harm the
marine environment. Section 301(h) sets forth detailed criteria
that must be met to demonstrate that a waiver will be
sufficiently protective. The authority to apply for a waiver
expired in 1982.
Three of the four waiver provisions in Section 309 of H.R.
961 apply to coastal discharges by POTWs, and are intended for
the benefit of San Diego and Los Angeles, California, and
Mayaguez, Puerto Rico, respectively. Hundreds of other
municipalities are in the process of upgrading or have upgraded
their sewage treatment plants to meet the law's longstanding
secondary treatment requirements. The communities singled out
for waivers in H.R. 961 were not selected because their
situations are unique. They are not.
The waivers are established in three separate and notably
inconsistent provisions in the bill.
Section 309(a) of the bill (amending Section 304(d) of the
Act) is intended to benefit (but does not mention) San Diego.
It provides that treatment by a POTW will be ``deemed the
equivalent'' of secondary treatment if the facility employs
chemically enhanced primary treatment, discharges into the
ocean at least 4 miles offshore into a depth greater than 300
feet, the discharge is in compliance with local and State water
quality standards, and the discharge will be subject to an
approved ocean monitoring program.
Section 309(b) of the bill (adding Section 301(s) to the
Act), which is intended to benefit (but does not mention and in
fact is not limited to) Los Angeles, contains different terms.
It requires issuance of a ten year permit that modifies
secondary treatment requirements if the POTW discharges at
least 1 mile offshore to a depth of at least 150 feet and meets
other specified requirements, including that the effluent
receives at least chemically enhanced primary treatment and
achieves a monthly average of 75% removal of suspended solids.
Section 309(d) of the bill (adding Section 301(t) to the
Act), expressly addresses Puerto Rico. This provision
authorizes a study regarding the feasibility of constructing a
deep water ocean outfall at Mayaguez, Puerto Rico, and reopens
the deadline for applying to EPA for a waiver pursuant to
Section 301(h) of the Act.
There is no policy rationale to justify the substantial
inconsistencies between these provisions. For example, of the
three waiver provisions, only the one for Puerto Rico requires
the applicant to demonstrate that the waiver will not harm the
coastal environment, as required under Section 301(h) of
current law. That demonstration, which was required of each of
the 40 municipalities that timely sought and obtained waivers,
is waived for San Diego, Los Angeles, and all of the other
municipalities that qualify to apply for waivers under the
bill's provisions. This Congressional waiver of any scientific
standard is at direct odds with the themes of sound science and
risk analysis that have been embraced in the ``Contract With
America.''
By way of further example, two of the three provisions (Los
Angeles and Puerto Rico) require that any waiver be reevaluated
at the time of permit reissuance. This is consistent with
current law, under which all permits, including all waivers
issued under Section 301(h), are reviewed every five years
(under H.R. 961, this would be extended to every ten years).
The purpose of the review is to evaluate limits in view of new
information and new standards. Under the bill, San Diego's
waiver is permanent--it is outside the permitting system and
may never be revisited.
Also highly problematic is the fact that, notwithstanding
any intentions to the contrary, the waivers are not limited to
the three locations mentioned. EPA estimates that at least
nineteen communities meet the criteria for waivers under
Section 309(b) of the bill, including several in California and
Washington state. Six large dischargers in South Florida could
become eligible by extending their outfalls by one-third of a
mile. EPA estimates that more may be eligible.
The single most noteworthy aspect of the San Diego waiver
provision is that it is totally and completely unnecessary. San
Diego applied for a waiver of secondary standards in April of
1995, and EPA has publicly announced its expectation that the
waiver will be granted and is committed to act on the
application expeditiously.
H.R. 961 is not the first time San Diego has been singled
out by Congress for preferential treatment. San Diego was able
to apply for a waiver last month only because of a bill passed
in the closing days of the 103rd Congress and signed into law
by President Clinton in October 1994. Of the hundreds of
communities required to achieve secondary treatment, only San
Diego was authorized to apply for a waiver last year, 14 years
after the deadline.
Last year, San Diego agreed to reduce effluent through a
major reclamation project, meet treatment standards only
slightly less strict than secondary for two pollutants, and
make the demonstration for a waiver in current law regarding
impacts upon human health and the environment, and argued that
it should therefore be given a waiver of secondary treatment
requirements for two pollutants. Notwithstanding that earlier
San Diego had voluntarily withdrawn its waiver application, and
had agreed to meet secondary treatment standards, Congress
accepted last year's promises and passed a bill which allowed
San Diego to apply for its waiver.
EPA has spent considerable resources in assisting San Diego
in the development of its waiver application. There is every
indication that EPA will approve the waiver in the near future.
There is no conceivable justification for Congress to again
modify the standard for a waiver, much less grant a permanent
waiver.
Section 309(a) of the bill allows San Diego to back out of
what it said it was able to do and agreed to do. It eliminates
minimum standards for Total Suspended Solids and Biological
Oxygen Demand that were included in the law passed last year,
provides for a broad waiver that is no longer limited to these
two pollutants, requires ``compliance with all local and state
water quality standards for the receiving waters''
notwithstanding that state and local standards do not apply at
the outfall's location four miles out, and eliminates any
reclamation requirements.
It is sometimes said that the Scripps Institute and the
National Academy of Sciences support these provisions. Neither
statement is accurate. Scripps has taken no position on the
bill's waiver provision, although individual employees of
Scripps have expressed their personal views. And, the National
Academy of Sciences made it quite clear when it testified
before the Subcommittee on Water Resources and Environment that
it did not take a position on the question of whether a
secondary waiver would be justified or harmful in the case of
San Diego.
The three waiver provisions under Section 309 mark a
dramatic step backward from minimum standards for POTWs.
Neither the number of coastal cities that will be eligible for
waivers under Section 309(b) of the bill, nor the impact of
returning to an approach more akin to primary treatment (which
simply skims and settles solids out of sewage), has been
examined. Unfortunately, in time, their impacts will become
known, to recreational beach users, the fishing industry, and
others, and all will pay the price.
b. Waivers for Small Treatment Systems: Section 309(c) of
the bill, which adds a new Section 301(t) to the Act, creates a
procedure for communities that serve 20,000 or fewer people to
obtain a waiver from secondary treatment requirements. Waivers
are available where the effluent is ``primary'' from domestic
users, the POTW operates a system that is ``equivalent'' to
secondary treatment or will provide an ``adequate'' level of
protection to human health and the environment and contribute
to the attainment of water quality standards.
While we could support certain targeted relief, in the form
of extensions and financial assistance, to certain small and
hardship communities, and agree that development of innovative
and alternative treatment techniques should be encouraged in
appropriate circumstances, the sweeping waiver in this
provision is unnecessary, creates a heavy burden on states and
EPA, and promises to degrade water quality.
According to EPA, more than 10,000 communities will be
eligible to apply for this new waiver. A substantial number of
them currently are meeting secondary or more stringent water
quality-based limits. This provision would encourage these
dischargers to turn off existing treatment to save operational
costs, with no savings in capital costs. Moreover, since many
of these municipalities received considerable federal funding
to achieve secondary treatment, federal taxpayer dollars will
have been wasted.
In addition, the surge of applications requiring case by
case determinations will be another drain on the resources of
the State and EPA water programs, who will have to interpret
yet another vague standard in deciding whether a POTW provides
an ``adequate'' level of protection. The inadequacy of this
standard is heightened by the fact that this waiver is
available to POTWs that receive industrial waste, so long as
the wastewater meets the vague standard of being ``primarily''
domestic.
7. Countless Additional Waivers: The examples discussed
above provide only a taste of the bill's devastation of a
generally very effective point source control program. The list
cited is by no means exhaustive. Other equally troublesome
waivers include: a handful of loopholes for the mining
industry, relating to stormwater discharges from mineral
exploration and mining sites (Section 322(p)), and waivers of
water quality standards for coal remaining operations (Section
301(d) of the bill, amending Section 301(p) of the Act);
extending an exemption from applicable effluent limits for
certain iron and steel manufacturing plants that are ``central
treatment facilities'' (Section 307(g) of the bill, amending
Section 304(n) of the Act); a postponement by up to five years
for photo processing labs and others who discharge silver to
POTW's to meet pretreatment requirements for silver, including
pretreatment requirements imposed by the POTW (Section 312 of
the bill, amending Section 307 of the Act); and a reduction in
the standard for cooling water intake structures (Section 318
of the bill, amending Section 316(b) of the Act). And there are
more, many more . . . .
Designated Uses and Water Quality Standards
The attainment or nonattainment of desired water quality
under the Clean Water Act is accomplished by measuring actual
water quality against water quality standards.
Unlike other environmental laws where the Federal program
sets absolute standards for pollutants in the environment, the
Clean Water Act allows for a partnership with the states where
the states have a lead role in defining water quality
standards. Water quality standards are a combination of water
quality criteria and designated uses.
Designated uses are set by the states. They reflect the use
of the waterbody which the state determines is appropriate.
Examples of designated uses are aquatic life support, fish
consumption, shellfish harvesting, drinking water supply,
primary contact recreation, secondary contact recreation, and
agriculture. Each of these uses requires a different level of
water quality--differing levels of control of concentrations
and amounts of pollutants.
Water quality criteria are usually developed by EPA. EPA
does the study and analysis necessary to determine what amount
and concentration of pollutants are allowable in a waterbody
which will allow for the state-selected designated use to be
met. After a state has determined a designated use, the
corresponding water quality criterion is chosen for that use,
and the result is the water quality standard which is
applicable to that waterbody. The process is repeated for each
waterbody, and for those pollutants for which EPA has developed
criteria.
Section 303 of the bill would amend section 303 of the Act
to provide a mechanism for states to downgrade existing uses.
Currently there are methods to remove a designated use which is
not being met, but the downgrading of existing designated uses
which are being met represents a major step backwards in
maintaining and achieving water quality.
Currently, a state may change a designated use if attaining
the use is not feasible because the more stringent controls
would result in substantial and widespread economic and social
impact. The bill would expand the ability to downgrade water
quality standards if a state determines that the costs of
achieving the designated use are not justified by the benefits.
This again raises the continuing problem with the bill in
that cost is given a status greater than the concern for the
environmental and human health impacts. Cost is and always
should be of concern in the Clean Water Act. However, cost
should be used when determining the method of achieving water
quality goals--it should not operate as a limit upon those
goals.
Even more troubling than the new standard for downgrading
uses where the use has not yet been attained is the new
authority to downgrade uses where the use is being attained. To
allow states to downgrade uses which are being attained is a
total abandonment of the commitment to make our Nation's waters
fishable and swimmable as envisioned by the 1972 Act.
The bill would allow states to downgrade uses ``if the
state determines that continued maintenance of the water
quality necessary to support the designated use will result in
significant social or economic dislocations substantially out
of proportion to the benefits to be achieved from maintenance
of the designated use.'' This provision will set up the
opportunity for the worst type of competition among the
states--trading environmental protection for jobs. That is
precisely what a uniform clean water program was designed to
avoid.
By definition, the dischargers to a waterbody that is
currently meeting water quality standards are currently
controlling pollution sufficient for the waterbody to achieve
its state designated use. Therefore, if continuing to meet the
standard would result in ``significant social or economic
dislocations,'' then a situation where a discharger threatens
to relocate out of the area would be a prime target for the
provision. Business and industry would now be in a situation
where they could hold states hostage, threatening to leave the
state, unless the state agreed to downgrade the designated use
of the waterbody, and therefore allow for increased discharge
of pollution.
This new authority will promote pollution shopping and may
force states to abandon long-term environmental goals for
short-term economic gains.
The provision is also deficient in that the protection of
public comment in the process appears to be lacking. Currently,
designated uses are reflected through the adoption of state
water quality standards. The revision of state water quality
standards is done after public hearings. Since changing a
designated use will have the effect of changing the water
quality standard, such changes should be subject to public
comment.
Additionally, the bill provides that water quality based
permits are to be modified to conform to any modified
designated use. Again the bill has removed the protection
associated with the public comment requirements associated with
the issuance of permits under the Clean Water Act. Since the
language states that modifications will be made
``notwithstanding any other provision of this Act,'' the public
participation features appear to have been overturned.
This provision allowing the abandonment of currently
achieved water quality, in combination with the reduction of
the protection of the anti-backsliding provision and the
reduction of the anti-degradation protection, will reduce the
water quality of the Nation and unacceptably postpone the date
by which water quality will meet the original goals of the
Clean Water Act.
the bill will drain municipal, state and federal resources
H.R. 961 represents a frontal attack on the already
inadequate resources of local and State governments and the
federal government. The new burdens created by the bill are too
plentiful to fully address here, but a sample of some of the
most onerous aspects of the bill follows.
The multiple waivers and exemptions created by the bill and
discussed above will require investment by States and EPA of
considerable resources in making case by case waiver
determinations on numerous waiver applications. The difficulty
of making these determinations will be exacerbated by the
nature of the new standards in the bill, many of which are
vague and unclear and, in some instances, patently impossible
to implement. The sheer number and lack of clarity of the new
waivers is compounded by the absence of any provision for
federal guidance to ensure some degree of consistency in
application for the waivers. Federal guidance could avoid the
need for each permit writer to wrestle in isolation with
difficult scientific and policy determinations. The potential
availability of numerous waivers inevitably will prolong the
time for permit issuance, by increasing the complexity of
developing new or revised permits in the first instance, and
the likelihood of litigation borne of permit appeals.
In addition to the newly available waivers, the bill's
provisions regarding water quality criteria and State water
quality standards will require numerous additional
modifications to discharge permits. Since responsibility for
administering the Clean Water program has been assumed by 40
states, the states will be forced to bear the greatest weight
of the new and greatly increased burdens associated with permit
issuance.
The bill will further drain resources by dramatically
increasing the amount and complexity of litigation under the
Clean Water Act. For example, the so-called ``statistical
noncompliance'' defense established under Section 404 of the
bill will turn what are currently routine and relatively
straightforward enforcement actions into prolonged and complex
document intensive proceedings. This new defense allows any
person who has admittedly exceeded any technology-based
effluent limitation in its permit to claim that it has not
violated its permit or the Act. It provides that a discharge in
excess of a permit's technology-based effluent limitation is
deemed in compliance with the permit limit if the number of
exceedances ``are no greater, on an annual basis, than the
number of excursions expected from the technology on which the
limit is based. * * * '' A similar defense is established under
Section 307(d) of the Act for industrial dischargers to POTWs.
This defense invites violators to effectively relitigate in
every enforcement action the rulemaking process which resulted
in the effluent guideline. It is based upon an erroneous
assumption that EPA sets technology-based effluent limits with
the expectation that they will be exceeded a certain percentage
of the time. Further, because the provision would allow a
discharger to calculate noncompliance on an annual basis, a
discharger would be allowed to violate its permit with impunity
during the season of greatest activity, and on an annual basis
claim compliance. Moreover, since the defense is based solely
on the number of excursions and not on their magnitude, it
could excuse a one-time violation with devastating
environmental impacts if, when that violation is averaged with
a large number of relatively minor violations, the discharger
had a high compliance rate. This provision is certain to
dramatically complicate enforcement actions and thereby drain
resources of State and federal agencies responsible for
enforcing the Clean Water Act.
Other provisions will deplete resources available to
municipalities to meet requirements of the Clean Water Act. For
example, Section 603(a) of the bill, amending Section 603(c) of
the Act, enlarges eligible uses of the State Revolving Fund to
include activities such as the acquisition by any person,
including a private entity, of property rights for the
restoration or protection of privately owned riparian areas.
Such activities divert funding from actual treatment and can
quickly deplete the funding intended to assist municipalities
in meeting Clean Water Act requirements.
Other provisions that reduce standards for treatment by
industrial indirect dischargers are likely to heighten the
burdens on municipalities. For example, Section 406 of the Act
requires that under specified circumstances EPA must grant
intake credits for industrial dischargers under Section 307(b)
of the Act. The provision would relieve industrial dischargers
of responsibility for removing or treating the amount of a
pollutant in its discharge below the amount in its intake. This
credit is required without regard to the impact that the intake
pollutants may have on the POTW, its receiving water, sludge
quality, or other applicable requirements, and corresponding
increases in treatment costs that will be borne by municipal
ratepayers. In addition, as discussed above, the reduction in
pretreatment requirements under Section 311 of the bill
threatens to impede the effective operation of POTWs, which
would increase burdens on municipalities.
The above are only a few examples of the bill's many
provisions that increase burdens on State and local governments
and EPA.
wetlands
Perhaps no issue has so defined controversy and the Clean
Water Act as has the issue of wetlands protection. While there
are many programs which can operate to protect and advance the
protection of wetlands, only section 404 of the Clean Water Act
actually serves to regulate activities which could degrade
wetlands.
There have been two ideologies concerning the wetlands
program. Do you wish to protect wetlands, yet make the
regulatory program less cumbersome, more efficient, and more
responsive to the needs of landowners, or do you wish to
deregulate most of the wetlands in this country and accelerate
wetlands losses? This bill is designed to accomplish the
latter.
Historic wetlands losses have been staggering. States such
as California and Iowa have lost over 90% of their historic
wetlands. Other states such as Alaska have preserved much of
their wetlands, although development pressures continue to
diminish wetlands even in those states. Fortunately, on a
national basis, the trend in wetlands losses has slowed.
Current estimates of loss are at 250 to 300 thousand acres per
year, down from a high of 400-500 thousand acres in the 1960's.
While this is encouraging, the fact remains that under the
existing program very substantial wetlands losses continue.
Wetlands were once thought of as areas which served as
breeding grounds for disease and as eyesores, to be filled and
eliminated when possible. We now know that wetlands serve
valuable functions of water quality, flood control, groundwater
recharge, and wildlife and fishery habitat. We also know that
wetlands provide enormous economic benefits to the Nation as
well.
The economic value of wetlands for flood control alone is
enormous. For example, the Corps of Engineers has estimated
that the loss of floodplain in the Charles River basin in
Massachusetts would increase flood damages by $17 million per
year. Nationally, estimates of flood damages prevented by
wetlands are placed at nearly $31 billion annually.
Wetlands are also vital to other aspects of the economy
such as fish and shellfish harvesting and recreation. Contrary
to the belief that protecting wetlands retards economic
development and costs jobs, wetlands in fact contribute to the
economy of the Nation. The $55 billion commercial and
recreational fishing industry in Florida, for example, employs
110,000 people, with a dockside value of $162 million, and
annual sportfishing industry expenditures of over $3 billion.
Unfortunately, Title VIII, the misnamed Comprehensive
Wetlands Conservation and Management Act of 1995, will add
nothing to the protection of wetlands in this country, but will
allow for the loss trend to be increased.
The bill would not contribute to the conservation of
wetlands. Instead, it chooses to adopt an arbitrary and
unscientific definition of wetlands so deficient that areas of
wetlands in the Everglades no longer would be considered to be
wetlands. And, as if to add insult to injury, the bill would
reduce the level of protection afforded even those wetlands
which remain.
When the sponsors of this legislation described the bill
originally, they said that the wetlands title was based upon
H.R. 1330 from prior Congresses. The proponents of that bill
always maintained that they were expanding the types of
activities regulated under the section 404 program, but that in
return, there would be a right of compensation for the loss of
property rights which accompanied the inability to use one's
property as one saw fit. The original legislation also
contained a presumption that permits would not be issued to
undertake activities in type A wetlands, and it would have
assured the protection of the most valuable wetlands by
requiring the federal government to purchase those wetlands and
protect them in public ownership.
While H.R. 1330 in past years was not a bill which was
worthy of being enacted, it at least included a few provisions
which would have sought to protect a few wetlands. None of the
wetlands protecting features of H.R. 1330 have been retained,
all that is left of that proposal is the deregulation of
wetlands and accelerated destruction of wetlands resources.
First, the definition of what is a wetland. Current
scientific knowledge states that a wetland must have three
characteristics--hydric soils, hydrophytic vegetation, and
hydrology sufficient to cause the first two. Even the bill
acknowledges that this is the case. Where the bill fails is
that the bill then completely ignores science and says that as
a matter of policy and law, wetlands which do not have water at
the surface for at least 21 days during the growing season will
not be wetlands, regardless of whether they are in fact
wetlands, and regardless of their value and functions.
Soil scientists will tell you that it is not necessary for
water to be at the surface for 21 days for hydric soils to
form. Likewise, botanists will tell you that one need not have
21 days of water at the surface for hydrophytic vegetation to
occur. All that is necessary is for anaerobic conditions to be
formed, and for plants which cannot live in such conditions to
no longer be present.
Surprisingly, while the halls of Congress have been filled
with the calls of making sure that environmental programs are
based upon ``sound science,'' when it comes to wetlands, all
pretense of making decisions based upon science is abandoned.
There is a rightful place for policy in determining what the
Nation's wetlands laws will look like. But, that place is not
in deciding what is or is not a wetland.
As policymakers, we should be focusing our efforts upon
what we want to do about regulating activities in wetlands, not
what is a wetland. Once science tells us what is a wetland, it
is then our responsibility as lawmakers to determine what the
wetlands program should be. If we do not want to regulate
activities in all wetlands, then we should debate that issue
and make a determination honestly: we should say we will not
protect wetlands, not that what we choose not to protect is
therefore not a wetland.
For example, we could decide that there is no federal
interest in regulating activities in wetlands which are less
than one acre in size, or 10 acres for that matter. But, we
would be making a determination based upon the types of policy
judgments which the Congress is supposed to make--determining
the federal interest, not turning science upon its head.
However, as this bill is currently written, the arbitrary
definition of a wetland ignores science and eliminates the
policy option of protecting even valuable wetlands. It is
appropriate to set aside from protection very small wetlands,
artificial wetlands, and the like. That was proposed and
rejected in Committee in lieu of this much more far-reaching
standard, which exempts not only small and marginal wetlands
but also vast portions of some of the most important wetlands
in our country.
Second, the classification of wetlands will result in
diminished protection of even valuable wetlands. What the bill
creates is a new system of wetlands classification which will
reduce the level of protection for the majority of wetlands
which remain regulated, and will eliminate any protection for
other wetlands.
Under the bill, type A wetlands are considered to be the
most valuable and will allegedly be afforded the greatest
protection. To qualify as a type A wetland, it must be of
critical significance to the long-term conservation of the
aquatic environment of which such wetland is a part, and meet 4
other requirements.
A type A wetland must serve a critical function, including
the provision of critical habitat for a concentration of avian,
aquatic, or wetland dependent wildlife. This requirement is
deficient in several respects. First, the use of the term
``critical'' implies that the function and habitat must be
indispensable or vital to the relevant species. This is too
strict a test to determine whether a wetland is to be afforded
protection. Additionally, the requirement of a concentration of
wildlife creates a hurdle which might often not be able to be
met. For example, what would constitute a concentration of bald
eagles? Such birds feed in wetland areas, but because they are
birds of prey, they rarely exist in any concentrated
population. Therefore, a wetland serving as habitat for bald
eagles would not appear to be able to qualify as a type A
wetland under this language.
A type A wetland must represent a scarcity within the
watershed of the functions identified, such that the use of the
wetland would seriously jeopardize the availability of the
identified functions. This language would allow for the
destruction of even valuable wetlands which would otherwise be
type A, except for the fact that the wetlands happen to be in
abundance in the area. Since such an abundant wetland would not
qualify for type A protection, these valuable wetlands could be
filled until they became scarce. This will accelerate the
decline of valuable wetlands in this country.
A type A wetland must also be one where there is unlikely
to be an over-riding public interest in the use of such
wetlands for purposes other than conservation. This is one of
the most troubling and unworkable parts of the wetlands
classification scheme of the bill. First, this might be the
type of inquiry which is appropriate in determining whether a
particular activity should be authorized in a permit, but it is
entirely inappropriate in determining the type of wetland which
is present. Second, when a classification occurs, the
classifying official will be expected to make predictions based
upon future expectations of activity which are unknown at the
time of the classification. If a wetland is of ``critical
significance,'' it is of critical significance. It is not of
less significance because there may someday be a public
interest in destroying the wetland. This is yet another example
where the bill unacceptably intertwines policy decisions with
what should be a scientific inquiry.
Even after a wetland passes the scrutiny to become
classified as type A, it is not entitled to a high level of
protection under the bill. Permits are specifically authorized
using a sequential analysis of avoidance, minimization and
compensation. Although these are familiar words to the existing
permitting process, the emphasis needs to be on whether the
proposed activity can avoid impacting wetlands, and therefore
obviate the need for a permit rather than assume that a permit
will be granted.
Too great an emphasis is placed upon ineffective
requirements for mitigation. There is no general rule that
losses of type A wetlands will be compensated. Under the bill,
mitigation is such as is ``appropriate to prevent the
unacceptable loss or degradation of type A wetlands.'' This
implies that mitigation will be used only when losses or
degradation are unacceptable. Other losses will be
uncompensated. Apparently, there are acceptable losses of type
A wetlands for which no compensation will be required. If type
A is to reflect the Nation's most valuable wetlands, then
avoidance rather than mitigation for losses should be the
preference, and not the other way around as provided in the
bill.
Additionally, the bill says that state approved mining
reclamation will fully compensate for wetlands losses,
regardless of whether any wetlands protection or restoration
efforts are associated with the reclamation. This is another
industry specific exception to the general rule which fails to
adequately consider the environmental impact upon the resource
being degraded.
Once the bill creates tests for type A wetlands which are a
mix of science and policy, and allows for the loss and
degradation of these wetlands with inadequate requirements for
mitigation, the bill includes yet another way to limit the
protection afforded to the most valuable wetlands. It places an
artificial cap upon the area in any county, borough or parish
which may be considered to be type A wetlands. Under the bill,
by operation by law, no more than 20% of any jurisdiction could
be classified as type A--regardless of how valuable the wetland
might be, how scarce it might be, or what the impact of the
loss of wetlands functions might be on human welfare or the
environment.
This arbitrary limitation on type A wetlands is yet another
glaring example of the true motivation behind title VIII. It is
not about making the wetlands regulatory process more fair and
reasonable. It is not about making wetlands regulation more
understandable to the small landowner. It is not about creating
the flexibility to recognize that certain wetlands are worthy
of greater protection than others. No, this bill is about
assuring that wetlands regulation is greatly reduced in this
country whether or not the wetlands serve critical functions
benefitting people or wildlife.
The second category of wetlands are those called type B.
Type B wetlands are defined as those which provide significant
wetlands functions, or provide habitat for a significant
population of wetland dependent wildlife. These wetlands would
have even less review for protection afforded them than would
type A wetlands. In addition, these wetlands are subject to
less extensive mitigation requirements. For example, the costs
of mitigation and the social, recreational and economic
benefits associated with the proposed activity are to be
balanced one against the other.
Additionally, the types of mitigation activities which are
deemed acceptable include activities which will not contribute
to the Nation's wetlands base, and will result in losses of
wetlands functions and values. For example, preservation of
existing wetlands is specifically made eligible as a mitigation
method for type A and B wetlands. Preservation should not be
considered in and of itself to be compensation for wetland
losses. Such a provision assures the continued decline of
wetland resources. The bill also allows for coastal protection
projects to qualify as mitigation. Coastal protection often
consists of placing rip rap on eroding shores. It can hardly be
argued that replacing a wetland with rip rap will enhance the
habitat features of a wetland.
The final type of wetland classification is for type C
wetlands, which will be everything else which meets the new,
unscientific definition of a wetland. The bill also specifies
that certain wetlands will as a matter of law be type C.
Classification as type C is particularly important because such
a designation means that a person does not need any permit to
undertake any activity in these wetlands. These include
wetlands serving marginal wetlands functions, but which exist
in abundance, are prior converted croplands, are fastlands, or
are within intensely developed areas. A review of these
classifications demonstrates the further erosion of any wetland
protection under the bill.
For example, the term prior converted cropland is defined
in the bill in a much broader fashion than it is defined for
purposes of existing agricultural programs. Under the
definition in the bill, any agricultural land where either
wetland hydrology has been removed, or the land was used for
agricultural production prior to December 23, 1985, would be
prior converted cropland, and no permit would be required for
any activity since the are would be type C.
As a second example, the classification for fastlands. This
term is also defined. It includes all lands behind levees which
permit the use of such lands. In some areas of the country,
this could include thousands of acres of potential wetlands,
and extend for miles perpendicular to the levees. By law, these
areas would be permanently exempt from any permitting or
mitigation requirements as wetlands.
The bill also includes the ill-advised provisions
concerning takings which were included in the ``Contract with
America.'' Government, at all levels, has the right to affect
actions which individuals take upon their private property as
necessary to protect other property owners and the public
health and safety. This has been well established and well
documented. If regulation on the use of property becomes so
invasive as to diminish the right to use of property so as to
deprive the owner of the economic use of the property, then the
government has engaged in a taking, and the property owner is
entitled to compensation. What is included in this bill is a
gross and unwarranted expansion of the rights of a small group
of property owners at the potentially great expense of
taxpayers generally.
The 20% threshold for compensation is simply too low.
Variances in market conditions and appraisals can cause a 20%
variance in property values from time to time. More
importantly, the diminution in value is to be calculated upon
the effect on any portion of the property. In practice that
will mean loss of far less than 20% will result in the
taxpayers having to pay for a ``taking.''
For example, let's assume a property owner possesses a 200
acre parcel which the owner seeks to develop into homes on one-
half acre lots. If the property contains even a one-half acre
wetland, the equivalent of one lot out of 400, that owner will
be able to seek and receive compensation from the federal
government if the use of that one-half acre parcel is limited
by the wetlands regulatory program. The analysis would have
completely ignored the fact that the owner was able to develop
the other 199.5 acres of the parcel, and that even if the loss
of value of that half acre lot was 100%, the loss of value of
the total parcel would have been only one-quarter of one
percent. Clearly, any calculation of the diminution in value
should consider the entire parcel and the economic effects of
regulation on it.
Also of concern is the requirement that any compensation
due to property owners be paid out of the operating budget of
the agency whose action caused the reduction in property value.
While clearly the intent of the provision is to discourage
agencies from taking any actions which would diminish property
values, this provision could have a devastating effect upon the
programs of the Corps of Engineers and of the Department of
Defense, of which the Corps is a part.
Although the bill is very unclear, it appears as though
there is an obligation on the part of the agency to pay
compensation in a timely fashion. Because the threshold is so
low for obligating federal payments, this could result in great
strains upon the budget of the Corps of Engineers. The result
would be an inability to carry out is civil works functions,
and an adverse effect upon flood control and navigation.
Carried to its extreme, the bill could even require the
Department of Defense to divert funds from its basic defense
mission to the payment of what are arguably unfounded claims of
takings.
The compensation issue also appears to create an unworkable
situation to the disadvantage of both the government and the
property owner. The bill provides that a permit issuance or
denial is subject to compliance with the compensation
provisions. Therefore, the issuance of a permit which includes
conditions which might cause a 20% reduction in value to a
portion of property, and the denial of a permit which might
cause a 20% reduction to a portion of a parcel of property
cannot occur until the compensation is paid. Apparently, the
property owner would then be in legal limbo awaiting payment
from an agency--a payment which the agency may or may not have
the funds to make in the current, or even the subsequent fiscal
year.
The bill also includes a very expensive and unnecessary
requirement for the Secretaries of the Army and Agriculture to
undertake a 10-year program to classify all of the wetlands in
the United States. Testimony at the hearings indicated that
such an effort could cost billions of dollars and require
thousands of new federal employees. This is a tremendous waste
of resources at a time when all discretionary programs are
being evaluated for reductions, and the Corps in particular has
been targeted with nearly $1 billion in cuts (25% of its civil
works budget) over the next 5 years.
Such a classification is unnecessary because there is no
reason to suspect that most of these wetlands acres are
scheduled for development in the foreseeable future.
Determining the exact location of wetlands is a resource
intensive project, requiring metes and bounds descriptions and
actual on-site inspection on the property. It is information
which will be nearly useless in the greatest number of cases,
because there are no plans to develop the property. At present
the relative importance of a wetland is evaluated and taken
into account at the time someone seeks to develop it. It would
be an enormous waste of taxpayer dollars to require that
determination to be made of millions of acres of wetlands which
no one had plans to develop in the foreseeable future.
The bill then requires that the presence of wetlands upon a
parcel of property be placed upon the land records in the
appropriate county or parish. This will also cost millions of
dollars in employee costs and in recording fees since local
governments collect charges for recordations upon the land
records.
Finally, the wetlands title, having reduced the number of
acres which even qualify as wetlands, and having reduced the
protection which is afforded the remaining wetlands, creates
numerous additional exemptions to the wetlands permitting
program. While some of these exemptions are necessary, such as
anthropogenic wetlands and certain created wetlands in upland
areas, other exemptions reflect little more than the desires of
certain areas of the country or certain special interests to no
longer be subject to any federal regulation.
These unwarranted exceptions include numerous activities in
Alaska, 10-acre per year expansions of cranberry producing
areas, utility distribution and transmission lines,
concentrated animal feeding operations, railroad lines, actions
pursuant to state and local land management plans (because of
nonexistent safeguards), actions pursuant to a marsh management
and conservation program in Louisiana (because of nonexistent
safeguards), aggregate or clay mining, oil and gas structures,
and construction of log transfer facilities and mine tailing
impoundments, among others.
When added together, the bill's major accomplishment would
be to greatly accelerate the loss of wetlands in this country.
There are no goals of preserving wetlands, only methods to
assure their development. This bill would result in the loss of
a resource which we cannot afford to lose, which cannot be
replaced, and which will prove costly to live without.
nonpoint source pollution
Water pollution is often associated with large pipes
spewing obnoxious chemicals from industrial and manufacturing
plants. These are referred to and regulated as point sources.
While this was the major source of water pollution 25 years
ago, these point sources have been largely controlled through
the current Clean Water Act permit program. Today, the major
remaining source of water pollution comes from diffuse sources,
known as nonpoint sources. These include land use activities
such as construction, agriculture, logging, and mining, as well
as atmospheric deposition and contaminated sediments.
The states conduct a biennial survey of the quality of
their waters. According to the most recent survey, agriculture
is now the leading source of water quality impairment in rivers
and lakes. For estuaries, agriculture was third. Clearly, the
emphasis for a renewed Clean Water Act needs to be upon
nonpoint source pollution, and agriculture must do its share.
Unfortunately, H.R. 961 does not include a program which
will result in the type of reductions in nonpoint source
pollution which water quality needs require. It fails to
include real deadlines for attaining water quality standards
around which an effective program could be developed and
implemented. It also fails in that too much of the ``new''
nonpoint source program addresses exceptions from the program
rather than achieving results. And it repeals the one feature
of nonpoint pollution control already in the books, the
nonpoint program for coastal zones.
Current law requires that best management practices to
control nonpoint sources are to be utilized at the earliest
practicable date. The amendment strikes references to ``best''
and also deletes the requirement that steps be implemented at
the earliest practicable date. Instead, there is a new standard
developed to provide for reasonable further progress toward the
goal of attaining water quality standards within 15 years of
approval of the state program (which is 4 years after enactment
for a total of 19 years.)
Unfortunately for the program, it is very unclear what the
standard of performance actually is. If the intent is to attain
water quality standards within 19 years, then the bill should
say so. Instead, the perplexing language seems designed to be
loose enough to allow states and individuals to not achieve
water quality standards even after 19 years. Later, however,
the bill speaks in terms of attaining water quality standards
as expeditiously as practicable, but not later than 15 years
after program approval.
If the bill stands for a firm target of achieving water
quality standards through reductions in nonpoint source
pollution in no greater than 19 years, then such a target
should be clearly stated. Although an additional 19 years to
achieve water quality is longer than our citizens should have
to wait for clean water, a firm target for developing and
implementing nonpoint source controls is clearly needed to make
the program viable. This point should be clarified and
corrected.
The history of the Clean Water Act is to take steps to
improve water quality, reevaluate the results, and then take
whatever additional steps are determined to be necessary to
meet the goals of the Act. That is why the Act has been
revisited for amendment approximately each 5 years.
Unfortunately for the interests of achieving water quality
through reducing nonpoint source pollution, the bill would not
build upon the efforts of the past 5 years in addressing
nonpoint source pollution in coastal areas, but instead would
repeal the coastal water quality protection program of the
Coastal Zone Amendments and Reauthorization Act (CZARA). This
is a retreat from a commitment to improving water quality, and
a retreat from H.R. 961 as introduced, which did not contain
such a repeal.
The bill's sponsors have argued that they do not support
reduced protection of coastal waters but rather have taken the
CZARA program and folded it into the Clean Water program. What
they have done is repealed a program which shows promise of
being effective, and made it a part of a program which has been
marked by its ineffectiveness. And, contrary to the stated goal
of working to address the wishes of the states, the bill
ignores the desires of the Coastal States Organization, the
organization of state agencies which would implement the CZARA
program, which has specifically requested that the CZARA
nonpoint program not be repealed.
The bill proponents again have given in to the interests of
those contributing to coastal pollution rather than demonstrate
a commitment to improved coastal water quality. Rather than
fold an effective coastal program into an ineffective national
program, the bill should be exploring ways to upgrade an
ineffective national program to more closely resemble the
stronger coastal program.
This repeal of CZARA is yet another example of the trend in
the bill which adheres to the desires of the states when it is
in the interest of the polluter, but ignores the desires of the
states if the states' interests are contrary to the desires of
the polluter. If the authors of the bill truly support
achieving water quality standards, the CZARA program is the
model--the states and EPA know it, and water quality needs
require it.
The repeal of the CZARA nonpoint program and the lack of a
clearly stated date by which programs are to result in the
attainment of water quality standards are not the only
shortcomings of the nonpoint provisions. Additionally, the
terms of the program are designed around inaction and
exception, with too many opportunities for water quality goals
not to be met.
From the outset, Clean Water Act programs have been
focusing on point source pollution. That was the sensible and
appropriate approach to water quality improvement in the past,
because the most serious water pollution problems were caused
by industrial and municipal discharges. Over the years, our
efforts have produced significant beneficial results, as most
of the major point source problems were being addressed.
Now the Clean Water Act programs are at strategic
crossroads. One option is to continue the current approach of
relying on point source reduction for water pollution cleanup.
Supporters of this approach would point to previous successes
as the reason for maintaining the same approach.
There is little dispute that efforts in the past two
decades have led to much improved water quality and a cleaner
aquatic environment. But the substantial improvement from our
persistent long-term efforts also means that the law of
increasing cost may be setting in. Henceforth, even modest
additional improvement in water quality from further reducing
point source pollution may come only with a big price tag.
Those same improvements could be achieved at far lower cost by
taking moderate steps to reduce nonpoint pollution.
In addition to the efficiency consideration is the question
of equity. Is it fair to ask industrial and municipal
dischargers to continue to foot the lion's share of the bill,
when the majority of the water pollution problem today is no
longer point source in nature? The answer is clearly ``no.''
So if we are attempting to get the ``biggest bang for the
buck,'' this strategy of continually relying on reducing point
source discharges to improve water quality is destined to
produce inefficient and inequitable results.
We should recognize that the majority of our water
pollution problems is now arising from nonpoint sources, with
agriculture being the biggest contributor. Greater water
quality improvement would be achieved if point source and
nonpoint source dischargers would pay their fair share of the
total cost of water pollution control. This alternative would
ask nonpoint source dischargers to play a larger role in water
quality improvement than they have heretofore been required to
do. But the result would be greater equity among all
dischargers, lower total cost, and greater efficiency in
improving water quality.
Thus, for equity and efficiency reasons, shifting the
burden toward a better balance between point source and
nonpoint source dischargers is the preferred approach. It makes
economic, equity, and environmental sense.
Water pollution control is a zero sum game. For every
individual who does not contribute to the reduction in
pollutant loadings, some other individual will have to increase
the reduction which that individual might otherwise have been
expected to carry out.
For example, the principal sources of nutrients (the number
2 cause of water quality impairment in rivers and lakes, and
the number 1 cause in estuaries) are municipal sewage treatment
plants and agricultural runoff. Municipal plants are point
sources and agriculture is generally a nonpoint source. If
effective reduction in nutrients is to occur, then reductions
must come from one or both of these major sources.
Municipalities have participated in reducing nutrients for
over 20 years. Over $60 billion in federal investment and an
equal amount of nonfederal investment have greatly reduced
nutrient loading from municipalities, and additional steps are
increasingly expensive to accomplish. For municipal discharges,
we have invested heavily at all levels of government, and the
easy pollutants have been mostly addressed.
In the meantime, agriculture has been asked to contribute
very little to reducing nutrient loadings from its activities.
Meanwhile, the states indicate that agriculture is a source of
impairment for 72% of impaired river miles. But municipal point
sources account for impairment of only 15% of river miles.
Clearly there is a message that meaningful reductions in
nutrient loadings will have to come in part from agriculture,
and not just from municipalities.
Such a shift in burden-sharing is consistent with the
current discussions about the need to make decisions based upon
sound economics (benefit-cost analysis, sound science, and risk
assessment). The failure to effectively address nonpoint
pollution from agriculture certainly will result in additional
expenditures by municipalities which are unjustified and a
misallocation of resources. That is why the bill's enormous
exemptions for agricultural activities, exemptions which a
state could not override even if it is chose to, are so
objectionable.
Again, it appears as though the bill is more interested in
assuring that polluters not be brought to the table than it is
in being responsive to water quality needs, or in even being
consistent in its application of sound scientific and economic
principles. Where the polluter would benefit from benefit-cost
analysis, the bill includes it. Where benefit cost analysis
would be to the detriment of a class of polluters, the bill
ignores benefit-cost. The application of cost-benefit
principles would dictate a more effective nonpoint program, and
would not require expensive additional requirements upon
municipalities.
The bill creates an entire class of exemptions from state
nonpoint source programs for any producers who is implementing
a whole farm or ranch natural resources management plan. These
plans are underfined in the Clean Water Act context, and
largely undefined even within the agriculture programs. There
is no mention in the provision about the ability of a state to
want to require more than what might be in such a plan--
participation is compliance. There are not requirements than
improvements in water quality be a consideration in the plan,
there are no standards by which these plans will be evaluated.
Under the bill, the participation in a whole farm plan, a
plan which has no requirements to include water quality
components, will effectively exempt agricultural producers from
taking any additional steps to achieve water quality--
regardless of how necessary such steps may be. By requiring
states to allow whole farm plans to serve as compliance with a
state's nonpoint source control program, a state will not have
sufficient flexibility to achieve water quality standards by
2014, if that is the intent of the section. State programs are
to be evaluated by EPA to determine whether the program is
resulting in reasonable further progress toward the goal of
attaining water quality standards by 2014.
Under the concessions to agricultural producers in allowing
whole farm plans to serve as compliance, a state would not have
the ability to require more from these producers, even if the
state program was not making progress. This will unnecessarily
hamper the efforts of states in achieving environmental
results, and all because the bill is overly concerned with
excepting agriculture from Clean Water Act requirements rather
than developing an effective partnership with these interests.
A viable alternative to this approach would be to allow
participation in established agriculture programs such as
Swampbuster, Sodbuster, or the like to operate as compliance to
the extent that water quality is addressed within that program.
This would result in meaningful standards to be used in
evaluating programs, and for there to be assurances that the
programs have water quality protection as a component. Even
whole farm planning could be used as a tool for the states, but
there would have to be water quality components built into the
programs, and states would have to have the ability to require
more of an individual producer should water quality needs
dictate it.
Such features are lacking in the bill's provisions, and
make the section unacceptable.
Finally, the bill establishes as a new test of determining
compliance with environmental protection, the amount of federal
assistance which is provided. The bill states that the amount
of federal financial assistance will be taken into account in
determining whether a state's program is demonstrating
reasonable further progress toward the attainment of water
quality standards. Additionally, the requirements on states for
assessments, program implementation and monitoring are all to
be delayed one year for each year that the federal
appropriation for nonpoint programs falls even $1 short of the
amount authorized.
These concepts of linking Clean Water Act goals with
federal funding are troubling for three reasons. First, the
Clean Water Act has never been a fully federally funded
program. The federal government has chosen to participate in
the funding of clean water activities, but the responsibility
to not pollute exists independent of whether the federal
government chooses to assist in that effort. People expect that
their neighbors will not pollute them, and should not be
expected to pay to have those expectations fulfilled.
Second, Clean Water programs are a federal-state-local and
private-public partnership. States, municipalities, and private
industries expect a reasonable return on their pollution
control investments, which can be realized only if there is
certainty about the progress of the programs. Unilateral
alteration of the programs, such as postponement of compliance
deadlines by the states due to less-than-full federal funding
for nonpoint pollution programs, undermines that certainty and
may deprive the non-federal partners of the legitimate returns
on investment they expect.
Third, those who would advocate that there must be federal
funding or there will be no nonpoint source control program act
as though the only people who are interested in clean water in
this country are ``pointy-headed bureaucrats'' in Washington.
Nothing could be further from the truth.
Our constituents demand and expect clean, healthy waters.
Will polluters incur some costs in controlling pollution? Of
course they will. But, to argue that the only reason to do so
is because somebody requires it misses the whole point. Tourism
and recreation are multi-billion dollar industries. Likewise
the commercial fishing industry depends upon clean water to
assure a safe and abundant supply for markets. Job growth in
many firms similarly requires a reliable supply of clean water.
The reason we need effective programs in this country to
control water pollution is not because some faceless bureaucrat
determined that it should be so. It is because the people of
this country demand and expect it. The nonpoint source
provisions of the bill will perpetuate our not achieving the
water quality goals of our constituents. It is therefore
unacceptable.
stormwater
Urban runoff from storm sewers is the second leading cause
of water quality impairment in lakes and estuaries, and the
third leading cause in rivers. Despite this evidence, H.R. 961
as approved by the Committee will reduce the controls currently
in place to reduce pollutant loadings from stormwater, and will
make it more difficult to ever achieve water quality goals.
The current stormwater program is clearly in need of
repairs. Municipalities need to have the law clarified so that
municipal stormwater discharges are not required to meet
numeric limitations in their stormwater. There should also be
no current requirement that permits for stormwater discharges
be water quality based. Instead, municipalities should be
expected to put in place a system of management practices and
measures which will reduce stormwater related pollutant
loadings. Such efforts, coupled with effective monitoring and
analysis of water quality, will allow individual municipalities
to tailor their programs over time to meet the water quality
needs of the receiving waters.
The new stormwater program of the bill is on the right
track in that most of the responses to municipal stormwater
will be related to the same types of measures which might be
used to control nonpoint source pollution. Where the bill is
seriously flawed is that it eliminates the valuable aspects
associated with a permit process, thereby eliminating
information which is necessary to make valid judgements about
future actions; and, it virtually eliminates controls on
stormwater associated with industrial activity, which unlike
municipalities, has control over the area and pollutants likely
to be included in stormwater. The bill also does not include a
clearly stated date by which stormwater management programs are
to contribute to the attainment of water quality standards.
Finally, the bill requires states to conduct new assessments
and create new stormwater management programs, even in those
states where EPA is the current permitting agency.
This new program is one of the true contradictions
contained in the bill. Although the bill is touted as
increasing state flexibility in addressing water pollution, the
new pollution program not only mandates that all states create
new programs for stormwater, it is rigid and inflexible in the
way that it restricts the ability of states to address
stormwater. Once again, the emphasis of this bill is that when
it is in the interest of the polluter to be flexible, the bill
does so; where it is in the interest of the polluter to be
inflexible, the bill does so. Flexibility is not the consistent
theme of this bill; the interest of the polluter is.
The framework of a permitting program for stormwater should
be retained, and states should have the flexibility to more
effectively address stormwater discharges should they choose to
do so.
The proponents of the bill argue that it costs an average
of over $600,000 to prepare an application for a stormwater
permit under the current law, and that therefore the permit
program should be scrapped. This position is incorrect on two
counts. First, the costs cited are inflated with costs not
directly related to the permit application. Second, many of
these costs are one-time costs which will not be repeated in
subsequent permit applications and have already been paid.
The bill changes the definition of a point source so that
it does not include stormwater discharges. This is regardless
of the size of the discharge (many stormwater discharges are
millions of gallons) and regardless of the pollutants present
in the discharge. Under this new program, point source
discharges which are highly toxic and susceptible of treatment,
and which are currently being treated, may no longer have to
undergo treatment which has already been demonstrated to be
economical and achievable.
This redefinition and relaxation of stormwater pollution
controls is clearly a reduction in water quality protection. It
clearly contemplates reduced levels of control. That is evident
from the terms of the provision itself in that it has to
specifically state that actions taken to convert from the
current stormwater system to the new program are not to be
subject to the anti-backsliding provisions of the Act. If back-
sliding were not intended for currently permitted activities,
there would be no need for such protection.
By eliminating the monitoring features associated with a
permit program, the bill eliminates the availability of
valuable information for making future decisions. A permitting
program allows for monitoring of the discharge to determine
what constituents are present in the discharge. Contrary to the
apparent belief that monitoring will lead to increased
controls, it is also likely that monitoring can reveal that no
additional controls are necessary, thereby avoiding the
implementation of measures when measures are not necessary.
Municipalities need to have the permitting program fixed,
they do not need to have the program eliminated.
As disturbing as the bill's provisions are on municipal
stormwater discharges, what the bill would do concerning
industrial, mining, and oil and gas activities is an
abandonment of any effective measures to reduce the impacts of
stormwater from nonmunicipal sources. Under the bill,
industrial sources of stormwater may have purely voluntary
programs in several instances. The bill's proponents argue that
the remainder will have enforceable stormwater pollution
prevention plans, but the missing piece of the puzzle is the
details of the plans.
These plans include such ineffective requirements as the
creation of a pollution prevention team, annual inspections and
annual visual stormwater discharge inspections. There is no
monitoring of what is in the stormwater. there are also no
limits on what may be present in the stormwater. The types of
steps which must be taken include ``good housekeeping'' and
employee training. While these steps can be the basis for the
implementation of a successful plan for plant management, they
cannot form the sole basis for effectively controlling
stormwater pollution from in industrial sites.
Municipalities have argued that they cannot control
everything which might be discharged through their stormwater
system. Therefore, municipalities argue that they should not be
expected to be able to achieve numeric limits or water quality
based permitting. On this there is agreement. However,
industrial concerns can control what is present on their site.
They can control the finite amount of area which a private
concern entails. And, they can control what their employees
allow to be discharged through stormwater. Because of the
complex nature of the pollutants which might be present at an
industrial site, it is appropriate to require monitoring of the
discharge, to require permitting and, if necessary, to require
that the pollutants present in the discharge be treated to meet
the requirements of the Act the same as any other point source
discharge.
This bill will allow currently treated stormwater to be
discharged without treatment, which is a significant rollback
of existing law, and will exacerbate the water quality
impairment associated with stormwater. It is intellectually
dishonest to treat stormwater discharges from industrial
facilities as anything other than what they are--point source
discharges. Should EPA or the states determine that it is
possible to control pollutant loadings from industrial
stormwater through management practices rather than treatment,
that is perfectly acceptable. But, it should be done within the
permit program.
A permitting program also aids in holding dischargers
accountable for their actions. The bill only includes a self-
certification method for compliance. Such self-certification
operates to excuse an industrial facility from any permit
requirements, any analytical monitoring, any effluent
limitation or other numeric standards--apparently even if there
are adverse water quality impacts.
The bill also adds as a component of whether a state is
making progress in achieving water quality goals a requirement
that the adequacy of federal funding be taken into account. In
one instance, the standard is whether the federal funding has
matched the authorized amount. If it has not, then compliance
with water quality standards is delayed by one year--even if
the appropriation is only $1 short.
In another instance, the demonstration of reasonable
further progress by which a state program is to be judged is to
take into account the adequacy of federal funding under the
section. Since the only federal funding under the section is
$20 million annually for 5 years for demonstration projects, it
appears that federal funding will always be inadequate to meet
the needs under the section. Therefore, the bill appears to
allow for virtually any progress to be sufficient to meet the
tests under the new section. This will result in indefinite
delay in addressing stormwater pollution, and indefinite delay
in meeting water quality standards where stormwater is a major
factor in not achieving such standards.
The weakness of the stormwater provision underscores the
bill's abandonment of the commitment to move steadily forward
in achieving acceptable water quality. Until we are prepared to
take necessary steps to address precipitation-induced
pollution, we cannot claim to be working effectively toward the
water quality needs which our constituents expect.
risk assessment and benefit-cost analysis
H.R. 961 requires elaborate risk assessment and benefit-
cost analysis to be performed before regulations to protect
clean water can be issued. Supporters of the bill argue that
the House has already adopted H.R. 1022, the risk assessment
bill, and that provisions in H.R. 961 are consistent with those
in H.R. 1022. But H.R. 961 in fact goes well beyond the House-
passed risk assessment bill in three specific areas to include
provisions that are more extreme and onerous.
First, the bill requires EPA and the Corps of Engineers to
conduct comparative risk analysis. Instead of providing
relevant information that could help improve regulatory
decisionmaking or enhance understanding by the public, it would
lead to confusion and mistakes.
We face many different risks every day. But there are
fundamental differences in their nature, even among risks
affecting human health or the environment. Some risks we assume
voluntarily, and we are willing to accept higher thresholds.
Other risks we are asked to assume involuntarily, and our
tolerance of those risks is correspondingly low. Comparing
dissimilar kinds of risk, therefore, would be comparing apples
and oranges.
Furthermore, each federal agency tailors its risk
assessment methodology according to the risks it regulates. In
the process, it acquires knowledge of those risks and develops
expertise about how to control them. Comparing risk assessment
results produced by different methodologies is a recipe for
drawing misleading conclusions that would simply create
confusion, and not greater clarity that would help rational
decisionmaking.
Finally, requiring EPA and the Corps of Engineers to
compare risks that they know something about, such as the
health effects of toxics in water of flooding due to filling of
wetlands, with those about which they know nothing, such as
auto accidents on highways or airplane accidents, would
inevitably cause EPA and the Corps to make mistakes which, in
turn, could lead to an explosion of legal challenges to the
validity of comparative risk analyses that the agencies are
mandated to conduct.
H.R. 1022 takes these important complications into account
and, accordingly, limits risk comparisons to those involving
similar risks that are regulated by the same federal agency.
The same limitations, however, are not included in H.R. 961.
Second, H.R. 961 contains an unfair look-back provision
that requires a retroactive review of regulations issued prior
to the bill's enactment. The goal of this provisions is very
similar to that of the Barton amendment to H.R. 1022 offered on
the House floor. The amendment would permit an individual
aggrieved by a regulation to petition the agency to conduct a
review, which would be undertaken only if the petition is
supported by substantial evidence. The issue was debated at
length. But even with the safeguards, the amendment was
rejected by the House because it would overwhelm the regulatory
process in general and to new risk assessment procedures in
particular.
The look-back provision in H.R. 961 is far more damaging
then the rejected Barton amendment because it lacks those
safeguards. Without a doubt, it would be damaging to water
quality protection and to the regulatory process which protects
water quality. An existing regulation has already once gone
through public notice and comments, as well as vigorous
internal analysis (including risk assessment and benefit-cost
analysis for major regulations), review, and deliberation. The
regulation is now final, yet is still subject to judicial
review under the ``arbitrary and capricious'' standards of the
Administrative Procedures Act. Retroactively reviewing
regulations that have been finalized, therefore, is patently
unfair. It amounts to changing the rule after the game is over
and having the game played over again under new rues in hope of
a different outcome. Any new risk assessment and benefit-cost
analysis requirements should apply prospectively, affecting
only future regulations, and not retroactively that would
undermine delicately balanced regulations that have already
been issued.
The Great Lakes Water Quality Initiative is a good case in
point. The final program plan was issued on March 13, 1995. As
such, it would be subject to the retroactive review
requirements of the bill. It is the culmination of a 6-year
collaborative effort involving state environmental agencies,
industry, environmental and other public citizen groups,
municipalities, academia, and EPA. EPA alone has devoted 90
staff-years and $1.5 million in contract funds to the effort.
EPA's partners have spent millions more. The plan has already
under gone rigorous risk assessment and benefit-cost analysis.
Yet this bill would require that the entire effort be repeated
one more time, thus wasting taxpayer's and industry's money,
creating uncertainty about the program, and postponing
environmental cleanup What real benefit can society expect from
such a redundant exercise?
Third, H.R. 961 sets up an unworkable system to evaluate
environmental regulations because the underlying economic
analysis is useless, the attendant concepts meaningless, and
the needed information inaccurate, unreliable or unavailable.
The bill establishes as a national policy goal that water
quality protection programs ``maximize net benefits to
society.'' To ensure that a given regulation would indeed
achieve maximum net benefits, the bill mandates that it undergo
a benefit-cost analysis. The bill further stipulates that, as
part of the analysis, ``incremental benefits and costs
associate with plausible alternatives'' be estimated.
This is the standard approach to economic analysis, in
which the marginal (incremental) benefit and cost are measured.
Maximum total profit is obtained at the production level where
marginal benefit equals marginal cost. The marginal analysis is
designed to evaluate private manufacturing decisions. It is
ill-suited to evaluating environmental regulations, however.
Private manufacturing decisions are usually made where the
product is unique and only the output quantity is changed to
determine the manufacturing level that maximizes profit.
Moreover, benefits, such as revenue and profit, and costs are
easily quantified and monetized (measured in monetary terms).
The marginal analysis works well in this neat situation.
Public environmental standard-setting and rulemaking
operate in a vastly different situation, and are characterized
by two complications; first, alternatives are often distinct
from one another in terms of basic approach and, therefore,
fundamental nature; second, benefits--and often costs, too--are
very difficult to quantify or monetize.
Marginal analysis is virtually useless in this situation,
because the choice is not about expanding or contracting the
scope of a particular pollution control measure (to do more or
less of the same thing) in order to maximize net benefits. If
obtaining maximum net benefits is the goal, then the analysis
would have to entail determining the net benefit of each of the
identified pollution control measures and choosing the one with
the largest net benefit. ``Incremental benefits and costs
associated with plausible alternatives,'' even if it is
possible to calculate them, are meaningless when the analysis
involves jumping from one alternative to another the
fundamental nature of which is entirely different.
The bill does require the estimation of ``total social,
environmental, and economic costs'' of options. But it leaves
out the estimation of corresponding total benefits. With only
half of the needed information available, determining the net
benefit of each alternative is impossible.
But adding a requirement of estimating the total benefits
to the bill still will no solve the problem because we lack the
ability to quantify and monetize benefits (in particular) and
costs accurately and reliably. H.R. 1022 adopts a more flexible
standard, requiring that benefits would likely ``justify, and
be reasonably related to,'' costs. H.R. 961, in contrast,
adopts an inflexible and for more stringent standard in two
respects. First, it requires that benefits not merely justify
costs, but that they exceed the costs, and second, only the
option with the greatest net benefits may be selected for the
final regulation. This maximum net benefits standard
presupposes a level of measurement precision that presently
does not exist.
Benefit-cost analysis is simply incapable of providing
answers to a host of waxing questions necessary to ascertain
the net benefits of various environmental regulatory options.
How many lives would be saved or injuries avoided by each of
the regulatory alternatives? What is the tradeoff between
developmental disabilities and mortality (or say, how many IQ
points among children equal one adult cancer death)? What is
the tradeoff between human health benefits and environmental
benefits (for example, between birth defects and flood
mitigation)? At the base is the question of how much each of
these benefits or costs is worth.
It is simply wrong to suggest that benefit-cost analysis,
though a very useful economic evaluation tool, is able to come
up with all the answers at a level precise enough to pick the
winning option all the time. But the decision criterion of
``maximum net benefits to society'' provided in the bill is
predicated on the mistaken premise that benefit-cost analysis
is precise enough to do the job.
Beyond the analytical difficulties are jurisdictional
obstacles, which will make it impossible for EPA or the Corps
to satisfy the certification requirement that a regulation
indeed maximizes the net benefits to society. This issue has
implications which cut across pollution media and agency
domains. For example, it is difficult enough for EPA to
ascertain if a particular water quality problem should be
tackled directly through clean water programs or indirectly
through clean air programs. The maximum net benefits standard
requires an evaluation of all plausible alternatives, many of
which are administered by other federal or state agencies. EPA
will have little knowledge of, and certainly no control over,
these other programs. EPA, therefore, cannot possibly meet the
certification requirement under this provision of the bill.
Additionally, the system established in this bill to
evaluate regulatory requirements creates the so-called
supermandate that not only allows economics to juxtapose on
science in environmental regulation, it demands that economics
overrule science. If there is a conflict, the bill stipulates
that the economic decision criterion supersedes other decision
criteria that are based on health or water quality
requirements. Unfortunately, as indicated above, benefit-cost
analysis is not up to the task. However strong is the urge, it
is ill-advised to expect the impossible from benefit-cost
analysis, and fantasy to pursue the unrealistic standard of
maximum net benefits.
Finally, the regulatory evaluation system in the bill
changes the ``arbitrary and capricious'' standard by which a
court reviews an agency's final action to the higher
``substantial evidence'' standard. So instead of reviewing the
agency's record as a whole to determine if the agency's action
is arbitrary and capricious, the bill would have the court
delve into whether the chosen option maximizes net benefits to
society. The inquiry would mire the courts in complex technical
debates, a role that judges themselves have said is
inappropriate.
In sum, the above requirements under the risk assessment
and benefit-cost analysis provisions of the bill, some of which
go beyond those found in H.R. 1022, guarantee that regulatory
waste and inefficiency will increase, that litigation and delay
will multiply, and that gridlock and paralysis will become much
more pervasive.
Tradeoff Between Economy and Ecology
Supporters of the bill argue that we have gone too far in
protecting water quality, and that overly restrictive
environmental laws are harming our economic wellbeing. Their
argument can be summarized as follows: environmental protection
would raise the cost for our producers, which would make our
products uncompetitive on the international market and
ultimately would lead to reduced employment, especially high-
paying manufacturing jobs. Their conclusion is that we should
not do any more to improve water quality or our environment.
Quite the opposite, we should roll back environmental standards
to help spur the economy.
Implicit in this argument is an alleged tradeoff between
the environment and the economy. Such a tradeoff is much talked
about, but it is simply not true.
The suggestion that environmental cleanup costs jobs has
repeatedly been refuted by academic analyses. Empirical
findings have consistently shown that a cleaner environment is
actually good for the economy--strong environmental standards
go hand in hand with a vibrant economy and strong environmental
regulation is associated with job growth.
For example, Stephen Meyer of MIT tested the
``environmental impact hypothesis''--the assertion that
rigorous environmental management hurts economic growth and
development--and found it to be wrong. In two separate reports,
one in 1992 and another in 1993, Professor Meyer concluded that
``the U.S. record of the past two decades clearly and
unambiguously refutes the environmental impact hypothesis at
the state level.'' ``States with stronger environmental
standards tended to have higher growth in their gross state
products, total employment, construction employment, and labor
productivity than states that ranked lower environmentally.''
And not even in bad economic times did environmental
requirements prove to be a drag on economic recovery. He
cautioned ``those who * * * are now contemplating rolling back
environmental standards as a quick fix to jump-start their
economies out of recession should reconsider. Based on the
evidence there is no reason to expect that loosening
environmental standards will have any effect on the pace of
state economic growth.''
Similar results at the national level were found by Eban
Goodstein of Skidmore College. He stated in a 1994 report that
``environmental regulation is not responsible for the long-term
decline of manufacturing employment in the U.S. * * * Firms are
relocating, but the overwhelming reason is lower labor costs.
As for the net effect of environmental regulation on the rate
of growth of productivity, its impact has been quite small and,
indeed, may have been positive.'' Updating a 1978 study, he
estimated that ``we might expect gains on the order of 5,000 to
10,000 net jobs per billion dollars of expenditure on
environmental protection measures.''
Most recently, the National Commission for Employment
Policy issued two reports in April 1995 that show ``the
environmental policy versus jobs tradeoff is not the obvious
conflict that some would assume.'' The analysis found an
average gain of 17,000 to 20,000 gross jobs per billion dollars
of environmental investment. Recognizing that environmental
policies are driving technological advance through investments
in efficiency and productivity, the authors identified three
clear winners from environmental initiatives. ``The first is
the people and families who benefit from the new employment
opportunities. The second is the economy in general since
productivity investments would drive up per capita income. The
third is the environment as reduced volumes of waste and higher
energy efficiencies mean fewer pollutants.''
Notwithstanding the scientific evidence which has been
accumulating for almost two decades, and which has consistently
pointed to the contrary, supporters of this bill have continued
to use the faulty tradeoff rhetoric to buttress their claim
that rollbacks, waivers, loopholes, and exemptions are needed
to save our industries, our communities, and our economy. But
these studies, which are just a few examples of a large body of
scientific analysis, should lay to rest the baseless claim that
environmental protection is bad for jobs, bad for business, and
bad for the economy. Repeating a falsehood often and loudly is
simply not sufficient to turn it into the truth.
Conclusion
The Clean Water Act is a success story in environmental
law. Unfortunately, H.R. 961 as reported by the Committee will
not build upon that legacy. Instead, the bill rolls back
requirements and creates new ways to introduce additional
pollutants into the Nation's waters. This is not what the
American people want or expect--it is only what the polluters
want.
The preceding pages do not discuss all of the flaws of the
bill, but they are an indication of the breadth and seriousness
of the potential problems of the bill. This bill should be
reconsidered by the Committee and the Congress before the House
takes action upon it. In the absence of such review, this bill
should not go forward, and the House should reject it.
James L. Oberstar.
Robert A. Borski.
Jerrold Nadler.
James E. Clyburn.
Barbara-Rose Collins.
Eleanor H. Norton.
Peter A. DeFazio.
Norman Y. Mineta.
Nick Rahall.
Bob Wise,
William O. Lipinski.
Robert Menendez.
Corrine Brown.
APPENDIX
------
EXCHANGE OF LETTERS
----------
U.S. House of Representatives,
Committee on Agriculture,
Washington, DC, May 2, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, Rayburn House
Office Building, Washington, DC.
Dear Mr. Chairman: Thank you for the information that the
Committee on Transportation and Infrastructure had reported
H.R. 961, a bill to amend the Federal Water Pollution Control
Act. I believe we can agree that the Committee on Agriculture
could be successful in asserting a right to a sequential
referral of such bill.
The Committee on Agriculture recognizes the general
importance of this legislation. Also, as you know as one of the
Committees with jurisdiction over wetlands and other programs
related to the activities of the Department of Agriculture,
this Committee is interested in the provisions of H.R. 961.
The Committee on Agriculture, in subtitles A and C of the
Food Security Act of 1985, and in amendments to those subtitles
in the Food, Agriculture, Conservation, and Trade Act of 1990,
addressed the issues of wetlands as regards farmers and
producers of agricultural commodities. Furthermore, the
Committee expects to hold hearings and amend title XII of the
Food Security Act of 1985 in the consideration of the 1995 Farm
Bill later in this Session.
However, in the interest expediting the consideration of
H.R. 961, I do not intend to request a sequential referral of
the bill to the Committee. However, I would appreciate
receiving assurances that certain of the agreements worked-out
between our respective staffs will be effected to our
satisfaction without the need for a Floor amendment by this
Committee. Meanwhile, my action here is not intended to waive
the Committee's jurisdiction over this matter, and should this
legislation go to a House-Senate Conference, the Committee on
Agriculture reserves the right to request to be included as
conferees on any provisions within this Committee's
jurisdiction.
Thank you for your cooperation in this matter.
Sincerely,
Pat Roberts, Chairman.
------
U.S. House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, May 2, 1995.
Hon. Pat Roberts,
Chairman, Committee on Agriculture, House of Representatives, Longworth
Building, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of May 2,
1995, regarding a bill reported by the Committee on
Transportation and Infrastructure, H.R. 961, to amend the
Federal Water Pollution Control Act.
I appreciate the interest that the Committee on Agriculture
has in this important legislation. As your letter indicates,
the Committee could be successful in asserting a right to a
sequential referral of H.R. 961. Therefore, I am most
appreciative of your decision not to request such a referral in
the interest of expediting consideration of the bill.
You have my assurance that agreements worked out by our
respective staffs will be included in a manager's amendment as
we take the bill to the House floor.
Thank you for your cooperation in this matter and for your
support of this legislation.
With kind regards, I am
Sincerely,
Bud Shuster, Chairman.
------
U.S. House of Representatives,
Committee on Commerce,
Washington, DC, May 2, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, Rayburn House
Office Building, Washington, DC.
Dear Chairman Shuster: I am writing to thank you for your
cooperation in addressing several issues of interest to the
Commerce Committee in H.R. 961, the Clean Water Amendments of
1995, which the Committee on Transportation and Infrastructure
marked up and ordered reported to the House on April 6, 1995.
With respect to section 409 of H.R. 961, it is the position
of the Commerce Committee that, pursuant to Rule X of the Rules
of the House, section 409 directly affects provisions of
statutes within the Committee's jurisdiction. In particular,
section 409 would create a new waste remediation program which
may be inconsistent with authorities under the Resource
Conservation and Recovery Act (RCRA) and the Comprehensive
Environmental Response, Compensation and Liability Act
(CERCLA).
In view of your desire to move H.R. 961 to the Floor in an
expeditious fashion, I do not intend to seek a sequential
referral of H.R. 961. However, I would appreciate your
acknowledgement of the Commerce Committee's jurisdiction over
section 409 and an acknowledgement of the Commerce Committee's
right to seek conferees in the event that this legislation is
considered in a House-Senate conference. The Commerce Committee
will refrain from seeking a sequential referral of H.R. 961
with the understanding that this action will not in any way
compromise the Committee's jurisdiction with respect to any
amendments offered to the bill during consideration by the
House and with respect to any Senate amendments thereto. I
would further request that our exchange of letters on this
matter be included in the Committee's report on H.R. 961.
Thank you for your cooperation in this matter. I look
forward to working with you in the future, both on this bill
and other legislation of mutual interest to our two Committees.
With every good wish,
Sincerely,
Thomas J. Bliley, Jr., Chairman.
------
U.S. House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, May 2, 1995.
Hon. Thomas J. Bliley, Jr.,
Chairman, Committee on Commerce, House of Representatives, Rayburn
Building, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of May 2,
1995, regarding H.R. 961, the Clean Water Amendments of 1995,
reported by the Committee on Transportation and Infrastructure.
I appreciate the interest that the Committee on Commerce
has in this important legislation. As your letter indicates,
the Committee could be successful in asserting a right to a
sequential referral of section 409, relating to abandoned
mines. Therefore, I am most appreciative of your decision not
to request such a referral in the interest of expediting
consideration of the bill.
You have my assurance that agreements worked out by our
respective staffs will be included in a manager's amendment as
we take the bill to the House floor. I also recognize your
Committee's right to seek conferees on section 409, as
currently written in H.R. 961.
Thank you for your cooperation in this matter and for your
support of this legislation.
Sincerely,
Bud Schuster, Chairman.
------
House of Representatives,
Committee on Resources,
Washington, DC, May 3, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, Rayburn House
Office Building, Washington, DC.
Dear Mr. Chairman: I appreciate the opportunity to review
H.R. 961 on behalf of the Resources Committee before the filing
of the report by the Committee on Transportation and
Infrastructure. Having participated in the three days of markup
in the Transportation and Infrastructure Committee on H.R. 961,
I understand the need to move this legislation forward quickly
to achieve the many reforms made by the bill. Furthermore, I am
sure that you share my concern that without reauthorization,
appropriations for vital Clean Water Act programs are in
jeopardy.
The Resources Committee has a valid claim to jurisdiction
of a number of provisions in H.R. 961. While I do not intend to
request a sequential referral, this in no way should be viewed
as diminishing the jurisdiction of the Resources Committee. I
seek your agreement on four specific jurisdictional items.
First, the Resources Committee recognizes that the
Transportation and Infrastructure Committee has primary
jurisdiction over the coastal nonpoint pollution program
established in section 6217 of the Omnibus Budget
Reconciliation Act of 1990. The Resources Committee is entitled
to a sequential referral of section 319(n)(1), which repeals
section 6217, because it affects programs and activities in its
jurisdiction. This does not, however, expand, diminish, or
otherwise affect jurisdiction over other nonpoint source water
pollution programs.
Second, the Transportation and Infrastructure Committee has
primary jurisdiction over the Federal Water Pollution Control
Act and, in particular, section 404 relating to wetlands. The
Resources Committee has primary jurisdiction over various
programs and activities of the U.S. Department of Interior
relating to wetlands protection and conservation. The Resources
Committee has the right to a sequential referral over
provisions of the bill relating to wetlands based on its
jurisdiction over fisheries and wildlife.
Third, section 320 of the Clean Water Act establishes the
National Estuary program. While the management conferences
authorized under that program are principally concerned with
water quality matters within the jurisdiction of the Committee
on Transportation and Infrastructure, one of the purposes of a
management conference is to develop a comprehensive
conservation and management plan for the estuary. Because this
impacts the Resource Committee's jurisdiction over coastal zone
management, the Resources Committee would have an interest in
the amendments in section 320 of the bill.
Finally, section 104 establishes a grant program and
section 409 establishes a permitting program for remediation of
abandoned or inactive mine sites from which there is a
discharge of pollutants into the navigable waters. The Surface
Mining Control and Reclamation Act of 1977 (SMCRA) establishes
a fund and a program for reclamation and restoration of land
and water resources adversely affected by past coal mining. The
Resources Committee is entitled to a sequential referral of
sections 104 and 409 to the extent that they are inconsistent
with SMCRA.
It has been an honor to work with you on this legislation
and I look forward to continuing to work together as we move
the bill through the House.
Sincerely,
Don Young, Chairman.
------
House of Representatives,
Committee on Transportation and Infrastructure.
Washington, DC, May 3, 1995.
Hon. Don Young,
Chairman, Committee on Resources, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of May 2
regarding H.R. 961, the Clean Water Amendments of 1995. I
appreciate your cooperation in not insisting on a sequential
referral, so that we can proceed expeditiously to take the bill
up on the House floor next week.
I agree that the Resources Committee has a valid claim to
jurisdiction of a number of provisions in H.R. 961.
Specifically, I concur with your statements relating to coastal
nonpoint pollution, wetlands, the national estuaries program,
and abandoned or inactive mine sites.
Again, thank you for your cooperation and assistance, and I
look forward to continuing to work with you as we proceed.
With warm regards, I remain
Sincerely,
Bud Shuster, Chairman.
------
House of Representatives,
Committee on Science,
Washington, DC, May 3, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, Washington,
DC.
Dear Mr. Chairman: Thank you for your letter of May 3,
1995. I understand you concerns about moving expeditiously to
reauthorize important Federal water resource programs.
Based on your letter, and your stated willingness to work
together to address any differences the Science Committee may
have with the provision of the bill outlined in your letter, I
have informed the Speaker of the House of Representatives that
the Science Committee is no longer requesting a sequential
referral on H.R. 961, the Clean Water Amendment of 1995.
As I informed the Speaker, the Science Committee has a
valid jurisdictional claim to a number of the provisions in
H.R. 961. The Committee continues to maintain these
jurisdictional claims and its willingness to forgo a sequential
referral on the bill should in no way be construed as a waiver
of its jurisdiction.
Thank you again for your letter. I look forward to working
with you to address any difference our two Committee's may have
concerning provision in H.R. 961 over which we share
jurisdiction.
Cordially,
Robert S. Walker, Chairman.
------
House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, May 3, 1995.
Hon. Robert Walker,
Chairman, Committee on Science, Washington, DC.
Dear Mr. Chairman: Thank you for your expeditious
consideration of H.R. 961, the Clean Water Amendments of 1995.
This bill makes important reforms in the Clean Water Act and
has strong bipartisan support as well as the support of a broad
coalition of state and local officials and business and
agriculture groups. It is important that we not have sequential
referrals on this bill so that we can proceed to the House
Floor next week.
The Science Committee has a valid jurisdictional claim to a
number of the provisions in H.R. 961. I understand that you
will withdraw the referral request for the Science Committee on
this bill. I agree that this in no way should be viewed as a
waiver of the Science Committee's jurisdictional claims to the
bill. We will support your request for conferees on matters
within your jurisdiction.
Under Rule X, 1(n) of Rules of the House of
Representatives, the Science Committee has jurisdiction over
``all bills, resolutions, and other matters relating to . . .
``(4) Environmental research and development.''
``(5) Marine research.''
Specifically, the Committee on Science has jurisdiction
over the following provisions of H.R. 961:
Section 102, Research, Investigations, Training, and
Information, amends Section 104 of the Federal Water
Pollution Control Act. Section 104 includes water
quality research and historically has been within the
Science Committee's jurisdiction.
Section 107 (a) establishes the Great Lakes Research
Council. Section 107 (d)(1) authorizes appropriations
which are available for research, among other things.
Section 320, National Estuary Program, to the extent
that the funding authorized by this section is
available for Section 320 (j), Research.
Section 323, Risk Assessment and Disclosure
Requirements, to the extent that it prescribes the
contents of risk assessments.
Section 702, John A. Blatnik National Fresh Water
Research Laboratory, renames a water research
laboratory established under Section 104 (e) of the
Federal Water Pollution Control Act (33 U.S.C. 1254
(e)). The laboratory is in an environmental research
facility and falls within the jurisdiction of the
Science Committee.
Again, I appreciate your cooperation and expeditious
consideration of this matter and I look forward to continuing
to work with you on this bill.
With warm regards, I remain
Sincerely,
Bud Shuster, Chairman.