[House Report 104-433]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-433
_______________________________________________________________________


 
            CONSTRUCTED WATER CONVEYANCES REFORM ACT OF 1995

                                _______


 December 21, 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

                        [To accompany H.R. 2567]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 2567) to amend the Federal Water 
Pollution Control Act relating to standards for constructed 
water conveyances, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Constructed Water Conveyances Reform 
Act of 1995''.

SEC. 2. CONSTRUCTED WATER CONVEYANCES.

    Section 303(c)(2) of the Federal Water Pollution Control Act (33 
U.S.C. 1313(c)(2)) is amended by adding at the end the following:
                  ``(C) 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 shall consider any water quality 
                        impacts resulting from any return flow from a 
                        constructed water conveyance to navigable 
                        waters and the need to protect downstream uses 
                        and may consider the following:
                                  ``(I) The existing and planned uses 
                                of water transported in a conveyance 
                                system.
                                  ``(II) Management practices necessary 
                                to maintain the conveyance system.
                                  ``(III) Any State or regional water 
                                resources management and water 
                                conservation plans.
                                  ``(IV) The intended purposes 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 recreational, aquatic life, or fish 
                        consumption uses for such systems if the uses 
                        are not existing or reasonably foreseeable or 
                        the uses interfere with the intended purposes 
                        of the conveyance system.
                          ``(iii) Statutory construction.--Nothing in 
                        this subparagraph shall be construed to require 
                        a State to exercise jurisdiction over 
                        constructed water conveyances in establishing 
                        standards or to prohibit a State from 
                        considering any relevant factor in establishing 
                        standards or from establishing any relevant 
                        use.
                          ``(iv) Constructed water conveyances 
                        defined.--In this subparagraph, the term 
                        `constructed water conveyance' means a manmade 
                        water transport system constructed for the 
                        purpose of transporting water for agricultural 
                        purposes or municipal and industrial water 
                        supply purposes in a waterway that is not and 
                        never was a natural waterway.''.

                          Purpose and Summary

    The purpose of H.R. 2567, the ``Constructed Water 
Conveyances Reform Act of 1995,'' is to provide States 
increased flexibility to set Water quality standards for 
constructed water conveyances under the Federal Water Pollution 
Control Act (also known as the Clean Water Act or the Act) to 
better reflect the different characteristics and uses of such 
water conveyances compared to other waters regulated under the 
CWA (such as lakes and streams). The bill is essentially the 
same as provisions in H.R. 961, the ``Clean Water Amendments of 
1995,'' which passed the House on May 16, 1995.

                          Need for Legislation

    The Clean Water Act requires states to establish water 
quality standards for ``navigable waters,'' more specifically 
defined as ``waters of the United States, including the 
territorial seas,'' in section 502(7) of the existing Act. 
Consistent with congressional intent, courts and agencies have 
interpreted the term broadly; in some instances, this has 
included a wide array of natural and constructed waterbodies 
and waters. Once geographic jurisdiction under the Clean Water 
Act is established for a particular waterbody or waters, the 
State is required to establish water quality standards that, 
based upon various criteria, will protect and maintain the 
designated uses for the water body or waters. Designated uses 
may include, for example, fishing, swimming, and agricultural 
and municipal and industrial water supply.
    Over the years, various concerns have arisen regarding the 
regulation of certain constructed water conveyance systems 
typically found in arid, western states. Certain conveyance 
systems, constructed to transport water for agricultural 
purposes and municipal and industrial water supply purposes, 
have determined to be ``navigable waters'' under the Act and 
subject to water quality standards including, in some 
instances, standards that are based on designated uses for 
recreation, aquatic life, and fish consumption. This can result 
in costly and sometimes unnecessary requirements that do not 
adequately take into account the physical characteristics or 
uses of the conveyances.
    Based on testimony and other data gathered by the Water 
Resources and Environment Subcommittee, the Committee included 
language in H.R. 961, the ``Clean Water Amendments of 1995,'' 
to provide increased flexibility to States to set water quality 
standards for constructed water conveyance based on certain 
relevant factors and uses.
    This bill, like the comparable provisions in H.R. 961, has 
broad support, particularly from western, arid area States and 
Agricultural interests. Rice and other agricultural commodity 
groups strongly support the bill, because it gives States water 
officials added flexibility to address the unique features of 
agricultural water conveyances. Western municipal interests 
support the bill because it allows State water officials to 
recognize the special features and purposes of structures that 
transport public water supplies.

      Discussion of Committee Bill and Section-by-Section Analysis

    Section 1 designates the short title of the bill as the 
``Constructed Water Conveyances Reform Act of 1995.''
    Section 2 adds a new subparagraph (C), regarding water 
quality standards for constructed water conveyances, to 
paragraph 303(c)(2) of the Clean Water Act. New clause (i), 
entitled ``Relevant Factor,'' provides that if a State 
exercises jurisdiction over constructed water conveyances, then 
is establishing standards under this section of the Act the 
State must consider the water quality impacts from any return 
flows and the need to protect downstream uses and may consider 
four additional factors: (1) the existing and planned uses of 
the transported water; (2) management practices necessary to 
maintain the conveyances; (3) any State or regional water 
resources management and water conservation plans that may 
exist, and (4) the intended purposes for the constructed 
conveyance.
    New clause (ii), entitled ``Relevant Uses,'' provides that 
if a State adopts or reviews water quality standards for 
constructed water conveyances, the State is not required to 
establish recreational, aquatic life, or fish consumption uses 
for such systems if the uses are not existing or reasonably 
foreseeable or such uses interfere with the intended purposes 
of the conveyance system. The term ``interfere with'' means 
more than a de minimis interference. The Committee's amendment 
in the nature of a substitute replaced the term ``impede'' with 
the term ``interfere with'' because of a concern that the term 
in the introduced bill did not establish a clear or sufficient 
threshold. The Committee's intent is that there should be an 
appreciable interference that diminishes the ability to 
accomplish the intended purposes. A minor interference or 
impediment (such as incurring insignificant costs of 
inconveniences) would not exceed the threshold. Generally 
speaking interference caused by reasonable, affordable measures 
to accommodate multiple uses (e.g., water transport for 
agricultural or municipal and industrial purposes, and 
recreational, aquatic life or fish consumption) would not be 
expected to exceed the threshold.
    If a State does not establish recreational, aquatic life, 
or fish consumption uses for a constructed water conveyance, 
then the State should identify and, as appropriate, take 
reasonable measures to ensure that the conveyance is not used 
for those purposes. For example, a State should not designate 
areas at a constructed conveyance for fishing while refusing to 
designate the conveyance for fish consumption uses.
    New clause (iii), entitled ``Statutory Construction,'' 
provides that nothing in the bill shall be construed to require 
a State to exercise jurisdiction over constructed water 
conveyances in establishing standards, nor shall it be 
construed to prohibit a State from considering any relevant 
factor in establishing standards or from establishing any 
relevant use.
    New clause (iv), entitled ``Constructed Water Conveyance 
Defined,'' defines the term to means a manmade water transport 
system constructed for the purpose of transporting water for 
agricultural purposes or fro municipal and industrial water 
supply purposes in a waterway that is not and never was a 
natural waterway. The Committee intends this term to apply only 
to conveyances that have been maintained as constructed water 
conveyances for the purposes of transporting water for 
agricultural purposes or municipal and industrial water supply 
purposes. The Committee does not intend the term to include the 
alteration of a natural stream for purposes of changing its 
course or to include constructed wetlands.

               Hearings and Previous Legislative Activity

    During February and March of 1995, the Subcommittee on 
Water Resources and Environment held seven hearings on the 
subject of reauthorizing the Clean Water Act. The Subcommittee 
received testimony and other data regarding the desire to grant 
States greater flexibility to recognize the different 
characteristics and uses of constructed water conveyances. 
Section 305 of H.R. 961 contained a provision addressing this 
subject.
    Subsequent to passage of H.R. 961, Representatives Gary 
Condit and Robert Matsui introduced H.R. 2567. With the 
exception of two changes, the introduced version of H.R. 2567 
is identical to the relevant provisions in H.R. 961. One change 
regards the extent to which States can or should consider 
relevant factors; the other deletes from the definition of 
``constructed water conveyance'' a reference to perennial 
waterways.

                        Committee Consideration

    In order to expedite consideration of H.R. 2567, the 
Subcommittee on Water Resources and Environment was discharged 
from consideration of the bill. Chairman Shuster offered and 
the Committee approved, by voice vote, an amendment in the 
nature of a substitute. The amendment made several changes, 
minor modifications, and clarifications to the introduced bill. 
The Committee approved the amendment and ordered the bill 
reported by voice vote. The Committee, in compliance with rule 
XI, clause 2(l) of the Rules of the House of Representatives, 
reports favorably the bill, H.R. 2567, as amended.

                      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 findings and 
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 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 XII 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 Estimate

    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 December 20, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 2567, the Constructed Water Conveyances Reform 
Act of 1995, as ordered reported by the House Committee on 
Transportation and Infrastructure on December 14, 1995. CBO 
estimates that enactment of this bill would not result in any 
significant cost to the federal government. H.R. 267 would not 
affect direct spending or receipts; therefore, pay-as-you-go 
procedures would not apply.

                             Federal Costs

    The bill would amend the Clean Water Act to provide 
relevant factors for consideration by states that choose to set 
water quality standards for man-made water transport systems 
under the act. Specifically, the bill would allow states to 
consider unique features and special purposes of agricultural 
and public water supply systems that distinguish them from 
natural water systems when setting water quality standards. 
Those changes would not a have a significant impact on the 
workload of the Environmental Protection Agency; hence, we 
estimate that the bill would have little or no impact on the 
federal budget.

                         State and local costs

    H.R. 2567 would give states greater flexibility when 
establishing water quality standards for constructed water 
conveyances such as canals and irrigation ditches. The use of 
this flexibility would likely result in future savings for 
arid, Western states (primarily Arizona and California) and for 
some irrigation districts and municipal water systems within 
their borders. Because this bill would affect regulations that 
are still being promulgated, CBO cannot to estimate the 
magnitude of these future savings.
    The Clean Water Act requires states to establish water 
quality standards for individuals bodies of water that include 
a set of designated uses (such as recreation, water supply, or 
fishing). The designated uses influence the maximum pollution 
levels set for each body of water. The bill would allow states 
to refrain, in some circumstances, from considering 
recreational, aquatic life, on fish consumption uses when 
establishing standards for constructed conveyances. Current law 
provides less flexibility to states. Use of this flexibility 
would result in less stringent standards and thus lower 
compliance costs for local government that own conveyances. It 
would also result in lower administrative costs for states.
    Currently, no local governments with constructed 
conveyances are subject to standards that incorporate these 
uses. However, several states are in the process of 
establishing standards that would begin to take effect as early 
as October 1996.
    If you wish further details-on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Kim Cawley 
and for state and local costs, Pepper Santalucia.
            Sincerely,
                                         June E. O'Neill, Director.

                     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. 2567 
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):

         SECTION 303 OF THE FEDERAL WATER POLLUTION CONTROL ACT

            water quality standards and implementation plans

    Sec. 303. (a) * * *
          * * * * * * *
    (c)(1) * * *
    (2)(A) * * *
          * * * * * * *
          (C) 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 shall consider any water quality 
                impacts resulting from any return flow from a 
                constructed water conveyance to navigable 
                waters and the need to protect downstream uses 
                and may consider the following:
                          (I) The existing and planned uses of 
                        water transported in a conveyance 
                        system.
                          (II) Management practices necessary 
                        to maintain the conveyance system.
                          (III) Any State or regional water 
                        resources management and water 
                        conservation plans.
                          (IV) The intended purposes 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 recreational, aquatic life, or fish 
                consumption uses for such systems if the uses 
                are not existing or reasonably foreseeable or 
                the uses interfere with the intended purposes 
                of the conveyance system.
                  (iii) Statutory construction.--Nothing in 
                this subparagraph shall be construed to require 
                a State to exercise jurisdiction over 
                constructed water conveyances in establishing 
                standards or to prohibit a State from 
                considering any relevant factor in establishing 
                standards or from establishing any relevant 
                use.
                  (iv) Constructed water conveyances defined.--
                In this subparagraph, the term ``constructed 
                water conveyance'' means a manmade water 
                transport system constructed for the purpose of 
                transporting water for agricultural purposes or 
                municipal and industrial water supply purposes 
                in a waterway that is not and never was a 
                natural waterway.
          * * * * * * *

                                
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