[House Report 112-681]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-681

======================================================================

 
TO PRESERVE EXISTING RIGHTS AND RESPONSIBILITIES WITH RESPECT TO WATERS 
              OF THE UNITED STATES, AND FOR OTHER PURPOSES

                                _______
                                

 September 20, 2012.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Mica, from the Committee on Transportation and Infrastructure, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4965]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 4965) to preserve existing rights 
and responsibilities with respect to waters of the United 
States, and for other purposes, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose of the Legislation.......................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     9
Legislative History and Consideration............................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    12
New Budget Authority and Tax Expenditures........................    12
Congressional Budget Office Cost Estimate........................    12
Performance Goals and Objectives.................................    13
Advisory of Earmarks.............................................    13
Federal Mandate Statement........................................    13
Preemption Clarification.........................................    13
Advisory Committee Statement.....................................    13
Applicability to the Legislative Branch..........................    13
Section-by-Section Analysis of the Legislation...................    13
Changes in Existing Law Made by the Bill, as Reported............    17

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. IDENTIFICATION OF WATERS PROTECTED BY THE CLEAN WATER ACT.

  (a) In General.--The Secretary of the Army and the Administrator of 
the Environmental Protection Agency are prohibited from--
          (1) finalizing, adopting, implementing, administering, or 
        enforcing the proposed guidance described in the notice of 
        availability and request for comments entitled ``EPA and Army 
        Corps of Engineers Guidance Regarding Identification of Waters 
        Protected by the Clean Water Act'' (EPA-HQ-OW-2011-0409) (76 
        Fed. Reg. 24479 (May 2, 2011)); and
          (2) using the guidance described in paragraph (1), any 
        successor document, or any substantially similar guidance made 
        publicly available on or after December 3, 2008, as the basis 
        for any decision regarding the scope of the Federal Water 
        Pollution Control Act (33 U.S.C. 1251 et seq.) or any 
        rulemaking.
  (b) Rules.--The use of the guidance described in subsection (a)(1), 
or any successor document or substantially similar guidance made 
publicly available on or after December 3, 2008, as the basis for any 
rule shall be grounds for vacating the rule.

                       PURPOSE OF THE LEGISLATION

    The purpose of H.R. 4965 is to preserve existing rights and 
responsibilities under the Federal Water Pollution Control Act 
with respect to Waters of the United States by prohibiting the 
U.S. Environmental Protection Agency and the Army Corps of 
Engineers from finalizing, adopting, implementing, 
administering, or enforcing proposed guidance the Agencies have 
developed regarding the scope of the Federal Water Pollution 
Control Act.

                BACKGROUND AND NEED FOR THE LEGISLATION

Background

    Congress enacted the Federal Water Pollution Control Act 
Amendments of 1972 (commonly known as the Clean Water Act or 
the CWA) to ``restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters.'' The 1972 
Amendments significantly changed the approach of the Federal 
Water Pollution Control Act, which can trace its roots back to 
the Rivers and Harbors Act of 1899, and more immediately to the 
Water Quality Act of 1948.
    Before 1972, the predecessor statutes to the CWA had 
addressed water pollution largely by funding State and 
municipal wastewater treatment systems and by requiring the 
establishment of State water quality standards. This approach 
had not been sufficiently effective in controlling individual 
discharges of pollution. The 1972 Amendments aimed to address 
this problem by instituting a system requiring individual 
permits for discharges of pollutants to navigable waters.
    The Clean Water Act claims Federal jurisdiction over the 
Nation's ``navigable waters,'' which are defined in the Act as 
``the waters of the United States, including the territorial 
seas.'' (CWA 502(7); 33 U.S.C. Sec. 1362.) As inferred by the 
definition of ``navigable waters'' in the CWA, a somewhat wider 
variety of waters than just traditional ``navigable in fact'' 
waters (which had long been the traditional basis for Federal 
jurisdiction under previous law) are included under the 
jurisdiction of the CWA.
    The U.S. Environmental Protection Agency (EPA) has the 
basic responsibility for administering and enforcing most of 
the CWA, and is responsible for implementing the National 
Pollutant Discharge Elimination System (NPDES) permitting 
program under section 402 of the CWA. Under the NPDES program, 
it is unlawful for a facility to discharge pollutants into 
``navigable waters,'' unless the discharge is authorized by and 
in compliance with an NPDES permit issued by EPA (or by a State 
under a comparable approved State program).
    EPA shares responsibility with the U.S. Army Corps of 
Engineers (Corps) for implementing the dredge and fill 
(wetlands) permitting program under section 404 of the CWA. 
Under the wetlands permitting program, it is unlawful for a 
facility to discharge dredge or fill materials into ``navigable 
waters,'' unless the discharge is authorized by and in 
compliance with a dredge or fill (404) permit issued by the 
Corps.
    The CWA does not contemplate a single, Federally-led water 
quality program. Rather, Congress intended the States and EPA 
to implement the CWA as a Federal-State partnership where the 
States and EPA act as co-regulators. The CWA established a 
system where States can receive EPA approval to implement water 
quality programs under State law, in lieu of Federal 
implementation. These States are called ``authorized States.'' 
Under the CWA, 47 States and territories currently have 
authorized programs.

Federal jurisdiction under the CWA

    Since enactment of the CWA in 1972, EPA and the Corps 
(hereinafter, the Agencies) have individually or jointly 
promulgated several sets of regulations interpreting the 
Agencies' jurisdiction over ``navigable waters.'' The first of 
these regulations was promulgated by the Corps in 1972, shortly 
after enactment, and generally limited CWA Section 404 
jurisdiction to only traditional navigable waters. The EPA's 
initial interpretation linked jurisdiction under the CWA to 
waters in or on which activity might affect interstate 
commerce.
    The Agencies later promulgated further sets of regulations, 
including in 1974, 1975, 1977, 1986, and 1993, which gradually 
broadened the scope of their asserted Federal jurisdiction over 
``navigable waters.'' In the 1986 publication of regulations, 
the Agencies for the first time explicitly asserted 
jurisdiction over non-navigable, isolated, intrastate waters 
that are or may be used as habitat for migratory birds 
(sometimes referred to as the ``Migratory Bird Rule''). (51 
Fed. Reg. 41,206, 41,217 (Nov. 13, 1986).)
    Today, the Agencies' regulations assert jurisdiction over a 
wide range of waters in their regulatory definition of ``waters 
of the United States.'' Such waters include: waters which have 
been, are currently, or may be susceptible to being used in 
interstate or foreign commerce, including waters which are 
subject to the ebb and flow of the tide; interstate waters 
including interstate wetlands and all other waters such as 
intrastate lakes, rivers, streams (including intermittent 
streams), mudflats, sandflats, wetlands, sloughs, prairie 
potholes, wet meadows, playa lakes and natural ponds; the 
territorial sea; and certain impoundments, tributaries, and 
wetlands adjacent to such waters. (See, e.g., 33 C.F.R. 
Sec. 328.3, 40 C.F.R. Sec. 230.3(s) for the complete definition 
in the Agencies' regulations.)
    Federal jurisdiction under the CWA over ``traditional'' 
navigable (sometimes referred to as ``navigable-in-fact'') 
waters has not been in question. However, controversies quickly 
arose shortly after enactment of the Act in 1972 over whether 
there is Federal jurisdiction of the CWA over upstream 
headwaters, isolated waterbodies, intermittent and ephemeral 
streams, manmade ditches, swales, and ponds, and other non-
navigable waters, and more generally over where the outer 
limits of Federal jurisdiction lie under the CWA.
    Some interests have sought to preserve a balance of power 
and long-term cooperative relationship between the Federal 
government and the States with regard to water management and 
water quality, and have argued for a limited scope of Federal 
jurisdiction over waterbodies. This would allow States to 
assert jurisdiction over State waters where the Federal 
interest in those waters is limited or nonexistent.
    On the other hand, other interests have argued for an 
expansive (and some, an unlimited) scope of Federal 
jurisdiction over waterbodies, to include most any wet areas, 
because of their perceived need for a strong Federal, top-down 
role in regulating activities affecting them. A strong Federal, 
top-down approach undermines the Federal-State partnership that 
Congress originally envisioned for implementing the CWA.

Supreme Court cases on CWA jurisdiction

    There has been a substantial amount of litigation in the 
Federal courts on the scope of CWA jurisdiction over the past 
nearly 40 years, including three U.S. Supreme Court cases:
     United States v. Riverside Bayview Homes, Inc., 
474 U.S. 121 (Dec. 4, 1985) (``Riverside Bayview'').
     Solid Waste Association of Northern Cook County v. 
United States Corps of Engineers, 531 U.S. 159 (Jan. 9, 2001) 
(also known as ``SWANCC'').
     The combined cases of Rapanos v. United States and 
Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (June 
19, 2006) (collectively referred to as ``Rapanos'').
    The Supreme Court, in the Riverside Bayview case, found 
that the Corps had acted reasonably in interpreting the Act to 
require permits for the discharge of material into wetlands 
adjacent to other jurisdictional waters of the United States.
    However, both the SWANCC and Rapanos case decisions were 
notable because the Supreme Court began to articulate limits to 
Federal jurisdiction under the CWA regarding the scope of what 
are considered ``waters of the United States.'' Some view these 
cases as signaling a narrowing of the interpreted scope of CWA 
jurisdiction over ``waters of the United States'' because the 
Supreme Court no longer would allow the Agencies to assert 
essentially boundless jurisdiction over virtually all waters 
and wet areas around the Nation.
    In the SWANCC case, the Supreme Court rejected the 
Agencies' claims that use of an isolated waterbody (here, an 
abandoned sand and gravel pit with excavation trenches that had 
evolved into seasonal and permanent ponds) by migratory birds 
was sufficient to make it a ``water of the United States.'' The 
Court held that the Corps' interpretation of its jurisdictional 
regulations was not consistent with the CWA and raised serious 
constitutional questions regarding the scope of CWA 
jurisdiction under the Commerce Clause.
    In response to the SWANCC case, on January 15, 2003, the 
Agencies published an Advance Notice of Proposed Rulemaking on 
Federal regulatory jurisdiction over isolated waters and an 
Interim Guidance Memorandum for field staff pending completion 
of the proposed rulemaking or the issuance of further interim 
guidance. (68 Fed. Reg. 1991 (Jan. 15, 2003).) The Interim 
Guidance Memorandum noted that the intent of the guidance was 
to summarize the existing state of the law after the SWANCC 
case as to what waterbodies are subject to Federal jurisdiction 
under the CWA.
    After soliciting public comment to determine if further 
regulatory clarification was needed, on December 16, 2003, the 
Agencies announced they would not issue a new rule on Federal 
regulatory jurisdiction over isolated wetlands. (Press Release, 
U.S. Army Corps of Eng'rs & U.S. Envtl. Prot. Agency, EPA and 
Corps of Engineers Issue Wetlands Decision (Dec. 16, 2003).) 
The Interim Guidance Memorandum remains issued and in effect.
    In the Rapanos case, the Supreme Court overturned the 
expansive definition of Federal jurisdiction over wetlands 
claimed by the Agencies, although the Court was unable to agree 
on the proper test for determining the extent to which Federal 
jurisdiction applies to wetlands, resulting in a split 
decision. This split decision left the Agencies with nonuniform 
guidelines from the Court as to how to interpret the CWA's 
jurisdictional scope in the future. While the Rapanos Court was 
divided, the Court recognized that there are limits to Federal 
jurisdiction, and the Agencies' previous view of essentially 
unbounded jurisdiction under the CWA was unfounded. After 
Rapanos, the Agencies have had to demonstrate whether a water 
is subject to Federal jurisdiction under the CWA, supported by 
a careful scientific analysis.
    Subsequent to the Supreme Court decision in Rapanos, the 
Agencies developed interpretative guidance on how to implement 
the Rapanos decision. In June 2007, the Agencies issued a 
preliminary guidance memorandum aimed at answering questions 
regarding CWA regulatory authority over wetlands and streams 
raised by the Supreme Court in Rapanos. (See Joint Legal 
Memorandum, Clean Water Act Jurisdiction Following the U.S. 
Supreme Court's Decision in Rapanos v. United States & Carabell 
v. United States (June 5, 2007) (available at http://
water.epa.gov/lawsregs/guidance/wetlands /upload/
2007_6_5_wetlands_RapanosGuidance6507. pdf).)
    On December 2, 2008, the Agencies issued an updated 
guidance memorandum on the terms and procedures to be used to 
determine the extent of Federal jurisdiction over waters, 
building upon the previous guidance issued in June 2007. (See 
Updated Joint Legal Memorandum, Clean Water Act Jurisdiction 
Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States (Dec. 2, 2008) 
(available at http://water.epa.gov/ lawsregs/guidance/wetlands/
upload/2008_12_3_wetlands_CWA_ 
Jurisdiction_Following_Rapanos120208.pdf).) The guidance was 
not intended to increase or decrease CWA jurisdiction from that 
as articulated by the Supreme Court in Rapanos, and it did not 
supersede or nullify the January 2003 guidance, which addressed 
jurisdiction over isolated waters in light of SWANCC.

The Agencies' proposed revised CWA guidance

    In 2010, the Agencies decided to weigh in again on defining 
the scope of Federal jurisdiction under the CWA. In late 2010, 
the Agencies drafted new joint guidance to describe their 
latest views of Federal regulatory jurisdiction over waters of 
the United States under the CWA and to replace the Agencies' 
2003 and 2008 guidance.
    The draft guidance underwent several months of interagency 
review before being released in May 2011, when the Agencies 
published, in the Federal Register, a joint notice announcing 
the availability of the guidance. (76 Fed. Reg. 24,479 (May 2, 
2011) (notice entitled EPA and Army Corps of Engineers Guidance 
Regarding Identification of Waters Protected by the Clean Water 
Act; hereinafter, ``Proposed Guidance'').) The Agencies' 
Proposed Guidance purported to describe how the Agencies will 
identify waters subject to jurisdiction under the CWA and 
implement the Supreme Court's decisions in SWANCC and Rapanos 
concerning the extent of waters covered by the CWA.
    The Proposed Guidance immediately generated substantial 
negative reaction, both among stakeholders and within Congress. 
Criticisms focused on two primary issues: (i) the Proposed 
Guidance would broaden the number and kinds of waters subject 
to regulation, beyond what the CWA and the Supreme Court's 
rulings allow; and (ii) the Agencies are implementing policy 
changes through supposedly non-binding guidance that generally 
is not reviewable by courts, instead of through a formal 
rulemaking.
    The Agencies acknowledged in the Proposed Guidance that 
``the extent of waters over which the agencies assert 
jurisdiction under the CWA will increase compared to the extent 
of waters over which jurisdiction has been asserted under 
existing guidance.'' (Proposed Guidance, at p.3 (available at 
http://water.epa.gov/lawsregs/guidance /wetlands/upload/
wous_guidance_4-2011.pdf).) The Agencies also said they intend 
to expand the applicability of the Proposed Guidance beyond 
section 404, to all other Clean Water Act provisions that use 
the term ``waters of the United States,'' including sections 
402, 401, 311, and 303. (Id.) Further, the Agencies expressly 
noted that the Proposed Guidance ``will supersede'' prior 
interpretations on the scope of ``waters of the United 
States.'' (Id. at p.1.)
    Because the Proposed Guidance would go beyond merely 
clarifying the scope of U.S. waters subject to CWA programs, 
and is aimed, as even the Agencies have acknowledged, at 
increasing the scope of the CWA's jurisdiction over more waters 
and more provisions of the Act as compared to practices under 
the currently applicable 2003 and 2008 guidance, the Proposed 
Guidance would make substantive changes in CWA policy that 
would expand the regulatory powers of the Agencies in 
implementing the CWA, and would expand the regulated 
community's regulatory obligations under the CWA.
    As a result, many Members of Congress, stakeholders, and 
even States have become extremely concerned that the Proposed 
Guidance amounts to being a de facto rule instead of mere 
advisory guidelines, and believe that the Agencies are 
attempting to short-circuit the process for changing agency 
policy and the scope of CWA jurisdiction without either 
Congressional action or approval, or following the proper, 
transparent rulemaking process that is dictated by the 
Administrative Procedure Act (5 U.S.C. 500 et seq.).
    Three separate Congressional letters were sent to the 
Agencies over the past year expressing concern that the 
Proposed Guidance misconstrues and manipulates the legal 
standards announced in the SWANCC and Rapanos Supreme Court 
decisions in order to expand the scope of Federal jurisdiction 
under the CWA, and abuses proper administrative process by 
seeking to change the CWA through guidance instead of by a 
formal rulemaking.
    On April 14, 2011, 170 Members of the U.S. House of 
Representatives sent a letter to the Agencies stating concerns 
that the development of a new guidance document that would 
increase significantly the scope of the CWA's jurisdiction 
would amount to a de facto rule instead of mere advisory 
guidelines, and urged the Agencies to not pursue the guidance 
but instead to conduct a formal rulemaking. (See Letter to Lisa 
P. Jackson, Administrator, U.S. Environmental Protection 
Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army for 
Civil Works (Apr. 14, 2011) (letter discussed a draft of the 
Proposed Guidance) (available at http://republicans. 
transportation.house.gov/Media/file/112th/Water/2011-04-14-EPA_ 
Guidance_Letter.pdf).)
    On June 30, 2011, 41 Members of the U.S. Senate sent a 
letter to the Agencies outlining specific concerns with the 
Proposed Guidance and expressing their concerns that the 
guidance contained clear legal and regulatory consequences that 
go beyond being simply advisory guidelines, and that changing 
the legal rights and responsibilities of individuals must be 
done through a formal rulemaking. The letter went on to request 
that the Agencies abandon any further action on this guidance 
document. (See Letter to Lisa P. Jackson, Administrator, U.S. 
Environmental Protection Agency, and Jo-Ellen Darcy, Assistant 
Secretary of the Army for Civil Works (June 30, 2012) 
(available at http://epw.senate.gov/public/ 
index.cfm?FuseAction=Files.View&FileStore_id=ec609d07-a036-49e 
8-a8a0-c46652b479bd).)
    On November 8, 2011, a bicameral letter from the House 
Committee on Transportation and Infrastructure and the Senate 
Environment and Public Works Committee, the committees of 
jurisdiction over the CWA, was sent to the Agencies, again 
insisting that the Agencies not finalize the guidance and 
further requesting that they solicit input, through an advance 
notice of proposed rulemaking, from the general public, 
scientific communities, and Federal and State resource 
agencies, to determine the appropriate scope of CWA 
jurisdiction and the range of issues to be covered by proposed 
regulations. (See Letter to Lisa P. Jackson, Administrator, 
U.S. Environmental Protection Agency, and Jo-Ellen Darcy, 
Assistant Secretary of the Army for Civil Works (Nov. 8, 2012) 
(available at http://republicans.transportation.house.gov/
Media/file/112th/ Water/110811_Jackson_Darcy_Guidance.pdf).)
    In addition, representatives of State environmental 
protection agencies have expressed concern over the Agencies 
using interim or final guidance as a substitute for regulation 
or to change or expand the effects of regulation. State 
environmental protection agency representatives have urged the 
Agencies to proceed to formal rulemaking and not to issue or 
apply the Proposed Guidance in the interim. (See, e.g., Letter, 
Comments of the Association of State and Interstate Water 
Pollution Control Administrators (ASIWPCA), to Nancy K. Stoner, 
Acting Assistant Administrator for Water and Jo Ellen Darcy, 
Assistant Secretary of the Army (Civil Works), Re: EPA and Army 
Corps of Engineers Draft Guidance on Identifying Waters 
Protected by the Clean Water Act, Docket ID No. EPA-HQ-OW-2011-
0409 (July 29, 2011) (available at http://www.regulations .gov/
#!documentDetail;D=EPA-HQ-OW-2011-0409-3521).)
    Representatives of State environmental protection agencies 
also have urged the Agencies to limit the use of guidance to 
``interpretation'' of their regulations, and not as a 
substitute for regulation, or to change or expand the effects 
of a regulation, such as adding or deleting entities covered by 
current regulation. (See, e.g., Environmental Council of the 
States (ECOS), Policy Resolution Number 11-1, Objection to U.S. 
Environmental Protection Agency's Imposition of Interim 
Guidance, Interim Rules, Draft Policy and Reinterpretation 
Policy (approved Mar. 30, 2011); ECOS, Policy Resolution Number 
11-8, On the Use of Guidance (approved Sept. 26, 2011).)
    State environmental protection agency representatives 
believe that the Agencies should adhere to the requirements of 
the Federal environmental statutes, the Administrative 
Procedure Act, and their own guidance governing rulemaking to 
provide for adequate public notice and comment on proposed and 
final actions. (See, e.g., ECOS, Policy Resolution Number 11-
1.)
    Moreover, many stakeholders have submitted comments to the 
Agencies, expressing concern, among other things, that the 
Proposed Guidance misconstrues the Supreme Court's cases, is 
inconsistent with the Agencies' regulations, and expands 
Federal jurisdiction under the CWA; that the Proposed Guidance 
amounts to being a de facto rule because it effectively amends 
existing regulations that were at issue in the Rapanos and 
SWANCC cases by describing new conditions under which the 
Agencies may assert jurisdiction; and the Administrative 
Procedure Act mandates that, when the Agencies revise 
preexisting regulations or make specific, binding regulatory 
pronouncements, those pronouncements and rules must be 
promulgated pursuant to formal notice-and-comment rulemaking. 
(See generally, Comments Submitted to the Agencies, contained 
in EPA Docket Folder, Draft Guidance on Identifying Waters 
Protected by the Clean Water Act, Docket ID No. EPA-HQ-OW-2011-
0409 (available at http://www.regulations.gov/#!docket 
Detail;dct=FR%252BPR%252BN%252BO%252BSR%252BPS;rpp= 
25;po=0;D=EPA-HQ-OW-2011-0409).)
    Despite the many substantive and administrative process 
concerns voiced by Members of Congress, State environmental 
protection agency representatives, and stakeholders regarding 
the Proposed Guidance, the Agencies decided to move forward 
towards finalizing and implementing the Proposed Guidance, 
largely unchanged from the proposed version, and not to conduct 
a formal rulemaking pursuant to the Administrative Procedure 
Act.
    On February 21, 2012, the Agencies sent to the Office of 
Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget, for regulatory review pursuant to 
Executive Order 12866, a final guidance document entitled 
Guidance on Identifying Waters Protected by the Clean Water Act 
(RIN: 2040-ZA11), relating to the identification of waters 
subject to jurisdiction under the CWA (hereinafter, ``Final 
Guidance''; available at http://op.bna.com/env.nsf/id/jsun-
8s629h/$File/CWA%20guide.pdf). The OIRA notice of pending 
regulatory review of the Final Guidance is available at http://
www.reginfo.gov/public/do/eoDetails?rrid=121645.
    The Agencies made some subtle revisions to the guidance, 
but the core of the Final Guidance for determining CWA 
jurisdiction remained largely unchanged from the Proposed 
Guidance, and would continue to assert expanded Federal 
jurisdiction under the CWA as compared to the Agencies' 2003 
and 2008 guidance.
    Because of the continued substantive changes in CWA 
regulatory policy that the Agencies would make with the Final 
Guidance and the Agencies' continued failure to conduct a 
formal rulemaking, on March 28, 2012, House Committee on 
Transportation and Infrastructure Chairman John L. Mica, Senate 
Environment and Public Works Committee Ranking Member James M. 
Inhofe, House Committee on Agriculture Chairman Frank D. Lucas, 
Senate Committee on Agriculture, Nutrition and Forestry Ranking 
Member Pat Roberts, House Subcommittee on Water Resources and 
Environment Chairman Bob Gibbs, and Senate Subcommittee on 
Water and Wildlife Ranking Member Jeff Sessions sent a letter 
to the Administrator of OIRA, Cass R. Sunstein, requesting that 
the wetlands jurisdictional guidance not be finalized.
    The letter to the OIRA Administrator stated, among other 
things, that ``If the Administration seeks statutory changes to 
the Clean Water Act a proposal must be submitted to Congress 
for legislative action. If the Administration seeks to make 
regulatory changes, a notice and comment rulemaking is 
required, following the proper, transparent rulemaking process 
that is dictated by the Administrative Procedure Act.'' (See 
Letter to Cass R. Sunstein, Administrator of OIRA (Mar. 28, 
2012) (available at http://republicans. 
transportation.house.gov/Media/file/112th/Water/ 2012-03-
28%20_%20Joint%20Letter%20to%20OMB%20re%20CWA%20 Guidance.pdf), 
at p.1.)
    After receiving no response from either the OIRA 
Administrator or the Agencies, and no other indication that the 
Agencies would abandon their efforts to finalize their 
guidance, Chairmen Mica, Gibbs, and Lucas, along with House 
Committee on Transportation and Infrastructure Ranking Member 
Nick J. Rahall II and House Committee on Agriculture Ranking 
Member Collin C. Peterson, and Representative Kristi Noem, 
introduced H.R. 4965 on April 27, 2012.
    The sponsors of H.R. 4965 introduced this legislation to 
prohibit the Agencies from finalizing, adopting, implementing, 
administering, or enforcing the Proposed or Final Guidance, or 
using the Proposed or Final Guidance, or any substantially 
similar guidance, as the basis for any decision regarding the 
scope of the CWA or for any rulemaking. Without this 
legislation, Congress, the States, and other stakeholders will 
not have any assurance that the Agencies will not continue in 
their efforts to implement, through guidance, policies to 
expand the scope of CWA jurisdiction.

                                HEARINGS

    On March 2, 2011 and March 28, 2012, the Subcommittee on 
Water Resources and Environment held hearings to receive 
testimony from the EPA on the Agency's budget and program 
priorities, and their impacts on jobs, liberty, and the 
economy. Among the program priorities the Subcommittee explored 
in these hearings was the Agencies' efforts and rationale for 
developing new CWA jurisdictional guidance. On March 8, 2011, 
the Subcommittee on Water Resources and Environment held a 
hearing to receive testimony from the Army Corps of Engineers 
on the Corps' budget and program priorities. Among the program 
priorities the Subcommittee explored in this hearing was the 
Corps' role in developing new CWA jurisdictional guidance. On 
May 5 and 11, 2011, the Subcommittee held hearings to receive 
testimony from State regulators, regulated businesses, 
economists, and the EPA on EPA's surface mining policies and 
other related extra-regulatory activities. The Subcommittee 
explored, among other things, the EPA's use of interim or final 
guidance as a substitute for regulations or to change or expand 
the effects of regulation, and the need for the EPA to conduct 
a formal rulemaking instead of issuing guidance in these 
circumstances.

                 LEGISLATIVE HISTORY AND CONSIDERATION

    On April 27, 2012, Committee on Transportation and 
Infrastructure Chairman John Mica introduced H.R. 4965, ``A 
Bill to Preserve Existing Rights and Responsibilities with 
Respect to Waters of the United States, and for other 
purposes.'' On June 7, 2012, the Committee on Transportation 
and Infrastructure met in open session to consider H.R. 4965, 
and ordered the bill reported favorably to the House by 
recorded vote with a quorum present. The vote was 33 yeas to 18 
nays.
    An amendment was offered in Committee by Chairman Bob 
Gibbs, which was adopted by voice vote. The amendment aimed to 
clarify that the current effective status of the Agencies' 2003 
and 2008 CWA guidance was to be preserved. The amendment 
provided that the bill's prohibition of using the guidance as 
the basis for any decision regarding the scope of the Clean 
Water Act or any rulemaking included the use of any successor 
document, or any substantially similar guidance made publically 
available on or after December 3, 2008.
    Delegate Eleanor Holmes Norton also offered an amendment 
that would have exempted the bill from applying to any waters 
used as or affecting public drinking water supplies. Ranking 
Member Rahall objected to the amendment by raising a point of 
order on the grounds that issues relating to drinking water 
fall under the Safe Drinking Water Act and, thus, under the 
jurisdiction of the House Committee on Energy and Commerce. 
Chairman Mica upheld the objection that the amendment was not 
germane.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII of the House of Representatives 
requires each committee report to include the total number of 
votes cast for and against on each recorded 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. During 
consideration of H.R. 4965, a total of one recorded vote was 
taken, ordering the bill reported as amended. The bill, as 
amended, was ordered favorably reported to the House by a vote 
of 33 Ayes and 18 Nays.



                      COMMITTEE OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee on Transportation and 
Infrastructure's oversight findings and recommendations are 
reflected in this report.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974, included below.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for H.R. 4965 from the 
Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 20, 2012.
Hon. John L. Mica,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4965, a bill to 
preserve existing rights and responsibilities with respect to 
waters of the United States, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 4965--A bill to preserve existing rights and responsibilities with 
        respect to waters of the United States, and for other purposes

    H.R. 4965 would prohibit the Environmental Protection 
Agency (EPA) and the Army Corp of Engineers (Corps) from 
finalizing or implementing guidance provided in the document 
entitled ``EPA and Army Corps of Engineers Guidance Regarding 
Identification of Water Protected by the Clean Water Act.'' 
That document was sent to the Office of Management and Budget 
for regulatory review earlier this year. Enacting this 
legislation also would prohibit those federal agencies from 
using similar guidance as the basis for any decision regarding 
the scope of the Clean Water Act's jurisdiction or in any 
rulemaking activities.
    Based on information from EPA and the Corps, CBO expects 
that implementing this legislation would have no significant 
impact on the budget because the bill would not prohibit the 
agencies from using existing guidelines (predating the proposed 
guidance or any similar guidance) to determine whether waters 
and wetlands are protected under the Clean Water Act. Pay-as-
you-go procedures do not apply to H.R. 4965 because enacting 
the bill would not affect direct spending or revenues.
    H.R. 4965 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

                    PERFORMANCE GOALS AND OBJECTIVES

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goals and objectives of this legislation are to 
reduce regulatory burdens that would be caused by the Agencies 
finalizing, adopting, implementing, administering, or enforcing 
guidance that would expand the scope of Federal regulatory 
jurisdiction under the Clean Water Act.

                          ADVISORY OF EARMARKS

    In compliance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 4965 does not contain any 
Congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                       FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act (Public Law 104-4).

                        PREEMPTION CLARIFICATION

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any Committee on a bill or joint 
resolution to include a statement on the extent to which the 
bill or joint resolution is intended to preempt State, local, 
or tribal law. The Committee states that H.R. 4965 does not 
preempt any State, local, or tribal law.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                APPLICABILITY TO THE LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Public Law 
104-1).

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Identification of waters protected by the Clean Water Act

            Subsection (a)
    The Committee is opposed to changes to the scope and 
meaning of the Clean Water Act, which the Agencies seek to 
implement through the administrative means of issuing what the 
Agencies label as ``guidance.'' The intent of the Committee 
with H.R. 4965 is to prohibit the Agencies from finalizing or 
implementing the Agencies' proposed guidance in order to 
significantly broaden the scope of Federal jurisdiction under 
the Clean Water Act.
    In this regard, Section 1(a) of H.R. 4965 (``In General'') 
prohibits the Secretary of the Army and the Administrator of 
the Environmental Protection Agency (hereinafter, the 
``Agencies'') from taking any actions with respect to the 
Agencies' proposed guidance to identify waters protected by the 
Clean Water Act. The actions prohibited are further specified 
in paragraphs (1) and (2) of subsection (a).
    Paragraph (1) of Section 1(a) prohibits the Agencies from 
finalizing, adopting, implementing, administering, or enforcing 
the proposed guidance described in the Agencies' notice of 
availability and request for comments entitled EPA and Army 
Corps of Engineers Guidance Regarding Identification of Waters 
Protected by the Clean Water Act. The notice was published on 
May 2, 2011, in Volume 76 of the Federal Register at page 
24,479 (No. 84). The docket identification number for the 
proposed guidance discussed in the notice is: EPA-HQ-OW-2011-
0409. The proposed guidance referred to in the notice is 
entitled ``Draft Guidance on Identifying Waters Protected by 
the Clean Water Act'' (hereinafter, ``Proposed Guidance'').
    This paragraph is intended to prevent the Agencies from 
skirting the law and abusing proper administrative process by 
prohibiting the Agencies from finalizing the Proposed Guidance, 
or in any way using the Proposed Guidance, including adopting, 
implementing, administering, or enforcing the Proposed 
Guidance, for any purpose whatsoever. The bill prohibits the 
Agencies from finalizing or implementing the Proposed Guidance 
because of the concerns that the Proposed Guidance would 
broaden the number and kinds of waters subject to regulation, 
beyond what the CWA and the Supreme Court's rulings allow, and 
that the Agencies are implementing substantive policy changes 
through supposedly non-binding guidance that generally is not 
reviewable by courts, instead of through a formal rulemaking.
    Paragraph (2) of Section 1(a) expands on the prohibition in 
paragraph (1) by prohibiting the Agencies from using the 
Proposed Guidance described in paragraph (1) of subsection 
1(a), or any successor document, or any substantially similar 
guidance made publicly available on or after December 3, 2008, 
as the basis for any decision regarding the scope of the 
Federal Water Pollution Control Act or as the basis for any 
rulemaking.
    This paragraph is intended to prevent the Agencies from 
attempting to use, either directly or indirectly, the Proposed 
Guidance as the basis for any regulatory or other decision 
regarding the scope or applicability of the Clean Water Act. 
This includes any decision regarding whether any permitting or 
other regulatory requirement under any section of the Clean 
Water Act (including sections 404, 402, 401, 311, 303, and 301) 
applies to a particular activity, circumstance, discharge, or 
water.
    This paragraph is also intended to prevent the Agencies 
from attempting to use, either directly or indirectly, the 
Proposed Guidance or any of the guidelines, interpretations, 
clarifications, considerations, or understandings contained in 
the guidance, as the basis for any rulemaking that either of 
the Agencies has initiated or may initiate.
    Further, this paragraph is intended to prevent the Agencies 
from attempting to use any successor document, or any 
substantially similar guidance as the basis for any decision 
regarding the scope of the Clean Water Act or any rulemaking, 
as discussed in the preceding paragraphs. Any successor 
document or any substantially similar guidance includes any 
earlier drafts of the Proposed Guidance developed prior to May 
2, 2011, or any potential future versions of the Proposed 
Guidance, or of related or similar guidance, that the Agencies 
might develop in the future. This includes any previous or 
subsequent documents that may have been or will be developed 
that contain any or all of the guidelines, interpretations, 
clarifications, considerations, or understandings contained in 
the Proposed Guidance.
    The Committee adopted a clarifying change to the language 
in paragraph (2) in a Committee meeting held on June 7, 2012, 
to make it clear that the Committee intends to maintain a 
regulatory status quo under the Clean Water Act by preserving 
the current effective status of the Agencies' 2003 and 2008 
Clean Water Act guidance regarding the scope of jurisdiction 
under the Act. The change clarified that the bill's prohibition 
on the use of ``any substantially similar guidance'' regarding 
the scope of the Federal Water Pollution Control Act or as the 
basis for any rulemaking means the use of ``any successor 
document, or any substantially similar guidance made publicly 
available on or after December 3, 2008.'' The Agencies' Interim 
Guidance Memorandum issued after the SWANCC decision was dated 
December 16, 2003 and the Agencies' updated interpretative 
guidance on how to implement the Rapanos decision was dated 
December 2, 2008. Hence, the Agencies' 2003 and 2008 Clean 
Water Act guidance would be preserved and remain in effect 
under the bill.
            Subsection (b)
    Section 1(b) of the bill (``Rules'') states that use of the 
Proposed Guidance, or any successor document, or any 
substantially similar guidance made publicly available on or 
after December 3, 2008, as the basis for any rule shall be 
grounds for vacating the rule. This subsection reinforces the 
prohibition in Section 1(a)(2) against the use of the Proposed 
Guidance, or of any successor document or any substantially 
similar guidance, as the basis for any rulemaking.
    This subsection is intended to provide grounds for a party 
challenging the validity of a rule or a provision in a rule to 
vacate the rule if the Proposed Guidance, or any successor 
document or any substantially similar guidance (including any 
of the guidelines, interpretations, clarifications, 
considerations, or understandings contained in the Proposed 
Guidance, successor document, or substantially similar 
guidance), was used as the basis for the rule or a provision in 
the rule.
    The Committee adopted a clarifying change to the language 
of subsection (b) in a Committee meeting held on June 7, 2012, 
to make it clear that the Committee intends to preserve the 
current effective status of the Agencies' 2003 and 2008 Clean 
Water Act guidance and to allow for the development of rules 
based on the 2003 and 2008 guidance. The change clarified that 
grounds for vacating a rule as a result of the use of ``any 
substantially similar guidance'' as the basis for the rule 
means the use of ``any successor document, or any substantially 
similar guidance made publicly available on or after December 
3, 2008.'' (As noted earlier, the Agencies' Interim Guidance 
Memorandum issued after the SWANCC decision was dated December 
16, 2003 and the Agencies' updated interpretative guidance on 
how to implement the Rapanos decision was dated December 2, 
2008. Hence, the Agencies' 2003 and 2008 Clean Water Act 
guidance would be preserved and remain in effect under the 
bill.)

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Clause 3(e) of rule XIII of the Rules of the House of 
Representatives (the Ramseyer Rule) requires that changes in 
existing law made by a bill, as reported, be shown. If enacted, 
H.R. 4965 would not repeal or amend any statute or part 
thereof.

                            DISSENTING VIEWS

    We recognize that the reach and application of Federal 
Clean Water Act protections have long been subject to rigorous 
debate. Since the Act's enactment over the veto of President 
Nixon in 1972, the three branches of the Federal government 
have wrestled with how and where to apply the general premise 
of the Act--to prohibit the discharge of pollutants into the 
``waters of the United States'' unless such discharges are 
covered by a point source permit (under section 402) or a 
dredge and fill permit (under section 404)--in furtherance of 
its goal to ``restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters.''
    Yet, we also recognize that a clear understanding of the 
Act's reach and application is essential both to the regulated 
community and the American public. Clarity is essential to the 
regulated community so they can understand and meet their legal 
obligations under the Clean Water Act. Likewise, clarity is 
critical to the general public so they may be assured that 
water quality is uniformly protected, regardless of what state 
or region of the country the water may be located. The American 
people have a right to expect that wherever they travel in the 
country, the waters where they drink, swim, fish, hunt, or 
otherwise enjoy nature are clean, and that wherever they live, 
their property is reasonably protected from the risk of 
flooding.
    Today, confusion and uncertainty on the reach and 
application of Clean Water Act protections abound. Much of this 
confusion was created by two decisions of the U.S. Supreme 
Court\1\ which called into question the scope of Federal 
protections under the Clean Water Act. Yet, while all parties 
would benefit from (and many are demanding) greater clarity, 
the Committee on Transportation and Infrastructure now reports 
this bill (H.R. 4965) that can only perpetuate the confusion 
and uncertainly, the associated increases in project costs and 
delays, as well as diminished protection of the nation's 
rivers, streams, and lakes, and the public health and economic 
benefits that derive from these waterbodies.
---------------------------------------------------------------------------
    \1\See Solid Waste Agency of Northern Cook County v. U.S. Army 
Corps of Engineers (SWANCC), 531 U.S. 159 (2001) and Rapanos v. United 
States, 547 U.S. 715 (2006).
---------------------------------------------------------------------------
    Unfortunately, over the past few years, the debate on the 
reach and application of the Clean Water Act has been driven 
more by the rhetoric than the reality. Nowhere is this more 
evident than with the administration's efforts to interpret the 
2001 and 2006 decisions of the Supreme Court through Federal 
agency actions.
    Historically, the U.S. Environmental Protection Agency 
(EPA) and the Department of the Army, Corps of Engineers 
(Corps), under both Republican\2\ and Democratic\3\ 
administrations, have utilized the Federal regulatory process, 
including the use of interpretative administrative guidance 
documents and formal agency rulemaking, to clarify how Federal 
agencies will implement the Act. Indeed, many Federal agencies, 
including EPA and the Corps, have for decades used 
administrative guidance to facilitate the interpretation and 
implementation of Federal laws. In fact, today, Federal agency 
decisions on the application and reach of the Act continue to 
be guided by a 2008 guidance document issued under the Bush 
administration.
---------------------------------------------------------------------------
    \2\See Advance Notice of Proposed Rulemaking on the Clean Water Act 
Regulatory Definition of ``Waters of the United States'', Joint 
Memorandum, 68 Fed. Reg. 1991, 1995 (January 15, 2003); EPA and Army 
Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction 
after Rapanos, 72 Fed. Reg. 31824 (June 8, 2007); and Clean Water Act 
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States, located at .
    \3\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling 
Concerning CWA Jurisdiction over Isolated Waters,'' dated January 19, 
2001, located at .
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    However, the regulated community, conservation and 
environmental organizations, and several States, as well as 
several justices of the Supreme Court, have commented that 
current interpretations on the reach and application of the Act 
remain confusing, inconsistent, and costly, are unfair to the 
regulated public, and provide little environmental benefit. 
According to the Corps, in recent years, the majority of permit 
applicants under section 404 would rather concede Clean Water 
Act jurisdiction\4\ than maneuver through the formal process 
for determining whether a waterbody may (or may not) be covered 
by the Act.
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    \4\The Committee received testimony that, following the Rapanos 
decision, the EPA and the Corps regulatory process was in ``turmoil'' 
and that the ``typical 60 to 120 day permit process . . . slowed to a 
crawl.'' See Testimony of Marcus J. Hall, County Engineer, Committee on 
Transportation and Infrastructure, Hearing on the ``Status of the 
Nation's Waters, including Wetlands, Under the Jurisdiction of the 
Federal Water Pollution Control Act'', July 19, 2007. In response to 
requests from the regulated community, the Corps published Regulatory 
Guidance Letter (RGL) 08-02, which allows permit applicants to concede 
jurisdiction under the Clean Water Act for the waterbody in question, 
and receive expedited review of the subsequent permit application.
---------------------------------------------------------------------------
    For example, according to the public comments submitted by 
the American Farm Bureau Federation, the National Association 
of Home Builders, and other regulated entities, ``The [2007 
Bush administration] Guidance is causing confusion and added 
delays in an already burdened and strained permit decision-
making process, which ultimately will result (and is resulting) 
in increased delays and costs to the public at large.''\5\
---------------------------------------------------------------------------
    \5\See Comments of American Farm Bureau Federation, the National 
Association of Home Builders, et al., submitted January 22, 2008, 
(Docket No. EPA-HQ-OW-2007-0282).
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    We agree. Yet, at this time, it is unlikely that Congress 
can reach consensus on how to legislatively respond to the 
Supreme Court decisions in a way that continues progress 
towards improving the Nation's water quality. Therefore, 
Federal agencies must be allowed to utilize every opportunity 
in the administrative process to clarify the Clean Water Act, 
in accordance with the precedent of the Supreme Court.
    Yet, H.R. 4965 inexplicitly moves in the opposite 
direction, as this legislation would be in direct contravention 
to the Committee leadership's recent efforts to streamline 
project delivery in the Surface Transportation reauthorization 
bill. Instead of streamlining project delivery, this 
legislation would perpetuate the regulatory confusion and 
uncertainly (and related increases in compliance costs) in 
place today.
    H.R. 4965 would lock-in-place today's confusing, 
inconsistent, costly, and controversial program guidance--not 
only for the current administration, but potentially for future 
administrations, as well. As reported, H.R. 4965 would create 
significant legal hurdles that would render future Federal 
rulemaking efforts difficult and costly, as well as open up 
additional opportunities for litigation and regulatory 
confusion in an area that is already prone to such challenges.
    Should H.R. 4965 be enacted, this legislation will:
           Perpetuate the increased permitting costs to 
        the regulated community, including construction project 
        sponsors, municipalities, industrial dischargers, and 
        landowners;
           Add unnecessary delay (and increased costs) 
        to project sponsors as they struggle to figure out what 
        the rules may be across the nation;
           Increase the costs of compliance and 
        oversight for States;
           Increase the potential for litigation on the 
        applicability and reach of the Clean Water Act; and
           Abandon Clean Water Act protections over 
        rivers, lakes, and streams, and adversely impact the 
        millions of Americans who rely on these waters for 
        drinking water, recreation, hunting and fishing, and 
        other economic benefits.
    If the intent of H.R. 4965 is to make Federal Clean Water 
Act protections so confusing, costly, and haphazard as to 
render them meaningless--then this legislation may succeed as 
intended.
    We cannot support this legislation. In our view, neither 
the regulated community nor the general public can logically 
benefit from passage of H.R. 4965. A more prudent approach 
would be to allow the regulatory process to work, as intended, 
rather than tying the hands of the Executive Branch to pursue 
clarifying changes.
    Instead, H.R. 4965 perpetuates the increased costs and 
delay experienced by the regulated community, as well as the 
confusion and uncertainly felt by the general public whether 
large categories of waterbodies are at increased risk of 
pollution or degradation. This is the wrong approach.
Background
    The Clean Water Act was enacted in 1972, with a goal of to 
restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.
    Generally speaking, the Clean Water Act prohibits the 
discharge of any pollutants into the ``waters of the United 
States'' unless the discharges are covered by a point source 
permit (under section 402 of the Act) or a dredge and fill 
permit (under section 404 of the Act).
    The term ``waters of the United States'' applies equally to 
both sections 402 and 404 of the Act, as well as the other 
regulatory provisions of the Clean Water Act (e.g., 
establishment of water quality standards and total maximum 
daily load (TMDLs) allocations), and is statutorily defined as 
meaning ``the waters of the United States, including the 
territorial seas.'' Both the EPA and the Corps have further 
defined the term ``waters of the United States'' by 
regulation.\6\
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    \6\The regulatory definition of the term ``waters of the United 
States'' is defined in regulations of the Corps (33 CFR 328.8) and EPA 
(40 CFR 122.2), as:
    ``(a) The term waters of the United States means
    (1) All waters which are currently used, or were used in the past, 
or may be susceptible to use in interstate or foreign commerce, 
including all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, wetlands, 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, 
the use, degradation or destruction of which could affect interstate or 
foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes; or
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purpose by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as waters of the 
United States under the definition;
    (5) Tributaries of waters identified in paragraphs (a) (1) through 
(4) of this section;
    (6) The territorial seas;
    (7) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) (1) through (6) of 
this section.''
---------------------------------------------------------------------------
    In 2001 and 2006, the Supreme Court issued two decisions 
that have impacted the jurisdictional scope of the Act. These 
decisions called into question whether the Act continues to 
apply to isolated, intrastate, non-navigable waters (the Solid 
Waste Agency of Northern Cook County v. Corps of Engineers, or 
SWANCC decision) or to the waters and tributaries in the upper 
reaches of a watershed (the Rapanos decision). Generally 
speaking, these decisions challenged what had been a decades-
old understanding that Federal protections were to be broadly 
applied, consistent with the comprehensive nature of the Act to 
restore and protect water quality, and the economic, 
environmental, and public health benefits associated with clean 
water.\7\
---------------------------------------------------------------------------
    \7\During the Floor debate on the Conference Report to S. 2770 
(which would later be enacted as the 1972 Clean Water Act), 
Representative John D. Dingell noted that ``the conference report 
defines the term `navigable waters' broadly for water quality purposes. 
It means all `the waters of the United States' in a geographical sense. 
It does not mean `navigable waters of the United States' in the 
technical sense as we sometimes see in some laws. . . . [This] new 
definition encompasses all water bodies, including main streams and 
their tributaries, for water quality purposes. No longer are the old, 
narrow definitions of navigability, as determined by the Corps of 
Engineers, going to govern matters covered by this bill.'' See 
Congressional Record, October 4, 1972 at 33756-57.
---------------------------------------------------------------------------
    As a result, the last three Presidential administrations 
have utilized the regulatory process, using both administrative 
guidance and rulemaking, to interpret how court decisions have 
impacted Clean Water Act protections. While attempts by the 
Bush administration to undertake a rulemaking\8\ did not result 
in changes to Clean Water Act regulations, it issued three 
interpretative guidance documents. The most recent of these, 
finalized in 2003 and 2008, remain in use by EPA and the Corps 
for asserting Clean Water Act jurisdiction. These guidance 
documents authorize EPA and the Corps to assert Clean Water Act 
protections using either of the two tests outlined by Justices 
Scalia and Kennedy in the Rapanos decision, as well as for 
asserting jurisdiction over isolated, non-navigable, intrastate 
waters under the SWANCC decision.
---------------------------------------------------------------------------
    \8\See Advanced Notice of Proposed Rulema1cing on the Clean Water 
Act Regulatory Definition of ``Waters of the United States'', 68 Fed. 
Reg. 1991 (January 15, 2003).
---------------------------------------------------------------------------
    Yet, in years that have passed since these court decisions, 
stakeholders from both the regulated community and the 
conservation and environmental community have stated their 
belief that the status quo Clean Water Act regulatory system is 
broken, and in desperate need of clarity and certainty.
     ``With no clear regulatory definitions to guide 
their determinations, what has emerged is a hodgepodge of ad 
hoc and inconsistent jurisdictional theories.''\9\
---------------------------------------------------------------------------
    \9\Comments of the American Farm Bureau Federation, the National 
Association of Realtors, and the Foundation for Environmental and 
Economic Progress, et al., submitted April 16, 2003, (Docket No. EPA-
HQ-OW-2002-0050).
---------------------------------------------------------------------------
     ``The [2007 Bush administration] Guidance is 
causing confusion and added delays in an already burdened and 
strained permit decision-making process, which ultimately will 
result (and is resulting) increased delays and costs to the 
public at large.''\10\
---------------------------------------------------------------------------
    \10\Comments of the American Farm Bureau Federation, the National 
Association of Homebuilders, et al., submitted January 22, 2008, 
(Docket No. EPA-HQ-OW-2007-0282).
---------------------------------------------------------------------------
     ``The 2003 SWANCC Guidance and the 2008 Rapanos 
guidance have placed millions of wetland acres and tens of 
thousands of stream miles at risk of pollution and destruction. 
Given the interrelationship between waters, the existing 
Guidance has put all of the Nation's waters at risk by 
retreating from the comprehensive protection needed to achieve 
the Act's goals.''\11\
---------------------------------------------------------------------------
    \11\Comments of the National Wildlife Federation, the Izaak Walton 
League of America, Theodore Roosevelt Conservation Partnership, Trout 
Unlimited, and The Wildlife Society, submitted July 31, 2011, (Docket 
No. EPAHQ-OW-2011-409).
---------------------------------------------------------------------------
     ``[Clean Water Act] processes and administration 
under the interim guidance released immediately subsequent to 
the SWANCC and Rapanos cases, and under the 2003 and 2008 
guidance, seem to have been universally frustrating. Permit 
applicants, farmers, conservationists, landowners, communities, 
state and local agencies and other affected entities have all 
lons expressed a strong desire for greater certainty and 
clearer processes since SWANCC . . .''\12\
---------------------------------------------------------------------------
    \12\Comments of Ducks Unlimited, submitted July 20, 2011, (Docket 
No. EPA-HQ-OW-2011-0409).
---------------------------------------------------------------------------
     ``Until a comprehensive set of rules regarding 
which water bodies the Agencies will regulate as waters of the 
United States is promulgated, the public and Agency field staff 
will be beleaguered by partial answers, confusing standards, 
and ad hoc, overbroad, and arbitrary decisions pertaining to 
the scope of federal [Clean Water Act] justification.''\13\
---------------------------------------------------------------------------
    \13\Comments of the Waters Advocacy Coalition, submitted July 29, 
2011, (Docket No. EPA-HQ-OW-2011-0409).
---------------------------------------------------------------------------
    On May 2, 2011, EPA and the Corps attempted to provide 
greater certainty on the reach and application of the Clean 
Water Act. On that date, both agencies published in the Federal 
Register, proposed revisions to 2008 guidance, and provided a 
60-day period for public comment on the proposed changes.\14\ 
(In contrast, when the Bush administration published its 
initial 2007 guidance, it made the guidance ``effective 
immediately,'' and provided a concurrent comment period to 
``solicit input on early experience with implementing the 
guidance.'')\15\
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    \14\See 76 Fed. Reg. 24479 (May 2, 2011). The text of the draft 
guidance is electronically available at  (hereinafter 
Proposed 2011 Guidance).
    \15\See 72 Fed. Reg. 31824 (June 8, 2007).
---------------------------------------------------------------------------
    On July 5, 2011, EPA and the Corps extended the public 
comment period on the proposed 2011 guidance for an additional 
30 days.\16\
---------------------------------------------------------------------------
    \16\See 76 Fed. Reg. 39101 (July 5, 2011).
---------------------------------------------------------------------------
    In the same Federal Register notice, EPA and the Corps 
announced their intention to undertake a subsequent notice-and-
comment rulemaking ``to further clarify which waters are 
subject to [Clean Water Act] jurisdiction, consistent with the 
Supreme Court decisions.''
Comparison between current 2008 guidance and 2011 proposed guidance
    In order to understand the legal context in which H.R. 4965 
is being considered, it is also important to compare the 
existing guidance documents with the 2011 proposed guidance.
    While the rhetoric surrounding the 2011 proposed guidance 
may suggest otherwise, generally speaking, the 2008 guidance 
and the 2011 proposed guidance are remarkably similar in scope. 
Where these documents most strikingly differ is in providing 
the regulated community with greater detail on the legal and 
scientific analysis that will trigger Clean Water Act 
protections over waterbodies, as well as providing the 
opportunity to utilize previous Clean Water Act determinations 
as a basis to assert or deny Clean Water jurisdiction.
    It is this lack of detail and required analysis from the 
2008 guidance which has caused much of the confusion and 
uncertainty in the regulated community (and the associated 
delays and increased permitting costs), as well as the loss of 
Clean Water Act protections over certain types and categories 
of waterbodies.
            Similarities between 2008 guidance and 2011 proposed 
                    guidance
    Both guidance documents are intended to provide the public 
with information on how EPA and the Corps will identify waters 
protected by the Clean Water Act, and how the agencies will 
implement the 2001\17\ and 2006 decisions of the Supreme Court 
on this issue. Both guidance documents state that they are 
intended to address the ``uncertainty'' and permitting 
delays\18\ that have resulted from the Supreme Court decisions, 
and to improve ``predictability and clarity regarding the scope 
of `waters of the United States'''.\19\
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    \17\The 2008 guidance includes a reference to an earlier 2003 
guidance document issued by the Bush administration that addressed 
questions regarding implementation of the 2001 Supreme Court decision 
(the SWANCC decision), which was unaffected by the 2008 guidance. This 
2003 guidance document, published in the Federal Register on January 
15, 2003, superseded an earlier 2001 guidance document on this issue 
produced by the Clinton administration (dated January 19, 2001).
    \18\See 72 Fed. Reg. 31824, 31825 (June 8, 2007).
    \19\See 76 Fed. Reg. 24479 (May 2, 2011).
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    Both documents also describe the process of applying Clean 
Water Act protections using either the legal rationale of the 
Rapanos plurality (authored by Justice Scalia) (``relatively 
permanent waters'' and ``continuous surface connection'' test) 
or the opinion of Justice Kennedy (``significant nexus'' test).
    The 2008 and proposed 2011 guidance documents also provide 
a strikingly similar list of waterbodies where Clean Water Act 
protections are applied. For example, under both the 2008 and 
proposed 2011 guidance documents, the agencies:
     Will assert Clean Water Act jurisdiction over the 
following waters:
           Traditionally navigable waters;
           Wetlands adjacent to traditionally 
        navigable waters;
           Non-navigable tributaries to 
        traditionally navigable waters that are relatively 
        permanent; and
           Wetlands that directly abut relatively 
        permanent waters.
     Will decide jurisdiction if a fact-specific 
analysis determines they have a ``significant nexus'' to a 
traditionally navigable water:
           Tributaries (including tributaries that 
        are non-navigable and not relatively permanent); and
           Adjacent wetlands (including adjacent 
        wetlands to non-navigable tributaries that are not 
        relatively permanent, and wetland adjacent to by that 
        do not directly abut a relatively permanent non-
        navigable tributary).
     Will consider the following areas as generally not 
jurisdictional waters (and therefore, not protected by the 
Clean Water Act):
           Erosional features (gullies and rills), 
        swales, and ditches.
            Differences between 2008 guidance and 2011 proposed 
                    guidance
    The clarifying changes to the 2008 guidance included in the 
2011 proposed guidance are intended to improve the 
predictability and clarity of Clean Water Act implementation. 
Yet, like the 2008 guidance document, EPA and the Corps have 
stated that these differences are ``consistent with the 
principles established by the Supreme Court cases and . . . 
supported by the agencies' scientific understanding of how 
waterbodies and watersheds function.''\20\
---------------------------------------------------------------------------
    \20\See 76 Fed. Reg. 24479 (May 2, 2011).
---------------------------------------------------------------------------
``Similarly Situated in the Region'' analysis
    One critical clarification contained in the 2011 proposed 
guidance addresses the agencies' interpretation of Justice 
Kennedy's significant nexus analysis, and the ability to assess 
the relationship of a waterbody to its surrounding watershed in 
determining the reach and application of Clean Water Act 
protections.
    In determining whether a waterbody has a significant nexus 
to other jurisdictional waters, Justice Kennedy stated that the 
appropriate analysis included reviewing whether the waterbody 
``either alone or in combination with similarly situated lands 
in the region, significantly affect the chemical, physical, and 
biological integrity of other covered waters more readily 
understood as `navigable'''.\21\ While Justice Kennedy did not 
define what he meant by the terms ``similarly situated'' or 
``in the region,'' public commentators have argued that it is a 
reasonable inference for Federal agencies to take into 
consideration the connections between waters (including 
wetlands) and the ecological and hydrological values (including 
nutrient reduction and food control) provided by these 
waters.\22\
---------------------------------------------------------------------------
    \21\See Rapanos v. United States, 547 U.S. 715, 780 (2006).
    \22\See Comments of the National Wildlife Federation, the Izaak 
Walton League of America, Theodore Roosevelt Conservation Partnership, 
Trout Unlimited, and The Wildlife Society, submitted July 31, 2011, 
(Docket No. EPAHQ-OW-2011-409).
---------------------------------------------------------------------------
    According to Justice Kennedy: ``Where an adequate nexus is 
established for a particular wetland, it may be permissible, as 
a matter of administrative convenience or necessity, to presume 
covered status for other covered wetlands in the region.''\23\
---------------------------------------------------------------------------
    \23\See Rapanos v. United States, 547 U.S. 715, 782 (2006). This 
legal reasoning was echoed in public comments on the 2011 guidance, 
which stated, ``There is no indication that if Justice Kennedy meant to 
apply the significant nexus test on a case-by-case basis to 
tributaries. . .he would find collective impacts to be irrelevant to 
such consideration. Indeed, given his stress on ecological factors and 
aggregation of impacts, all inferences are to the contrary. Justice 
Kennedy's opinion clearly implies aggregation should take place on a 
broader regional scale, such as the watershed of traditionally 
navigable water, using solid ecology.'' See Comments of the National 
Wildlife Federation, the Izaak Walton League of America, Theodore 
Roosevelt Conservation Partnership, Trout Unlimited, and The Wildlife 
Society, submitted July 31, 2011, (Docket No. EPA-HQ-OW-2011-409).
---------------------------------------------------------------------------
    Yet, the 2008 guidance adopted a narrow view in defining 
the use of the term ``similarly situated'' by: (1) limiting the 
significant nexus analysis to only those wetlands that are 
directly adjacent to the tributary where Clean Water Act 
coverage is being determined (for purposes of determining 
collective impacts of adjacent wetlands); and (2) by limiting 
the scope of significant nexus review to the potential impacts 
caused by a singular reach of the stream of the same order to 
the downstream traditionally navigable water. In addition, the 
2008 guidance did not interpret the ``in the region'' concept 
advanced by Justice Kennedy, but instead requires Federal 
agencies (and the regulated community) to conduct independent 
(and costly) analyses for each potential reach of targeted 
waterbodies.
    As a result, under the 2008 guidance, agency determinations 
of Clean Water Act protections have been limited to a review of 
the significant nexus of the smallest possible reach of a 
waterbody to a downstream ``traditionally-navigable water'', 
and that each reach must be evaluated independently for its own 
significant nexus evaluation. Ironically, this approach has 
resulted in more burdensome, expensive, and impractical 
information gathering exercises by the regulated community (and 
the Federal and State agencies) in order to demonstrate a 
significant nexus.\24\ This Committee has received numerous 
reports and Congressional testimony on the associated costs and 
project delays from this process.
---------------------------------------------------------------------------
    \24\See Congressionally Requested Report on Comments Related to 
Effects of Jurisdictional Uncertainty on Clean Water Act 
Implementation, prepared by the EPA Office of Inspector General (Report 
No. 09-N-0149), available at .
---------------------------------------------------------------------------
    In contrast, the proposed 2011 guidance generally 
authorizes agency field staff to assess whether a waterbody has 
a significant nexus, where the waterbody ``either alone or in 
combination with similarly situated waters in the region, 
significantly affects the chemical, physical, or biological 
integrity of traditionally navigable waters or interstate 
waters.''\25\
---------------------------------------------------------------------------
    \25\See Proposed 2011 Guidance at 7-8. For waters to be ``similarly 
situated,'' they must be of the same resource type, specifically (a) 
tributaries; (b) adjacent wetlands; or other waters that are in close 
physical proximity to traditionally navigable waters, interstate 
waters, or their jurisdictional tributaries (`proximate other 
waters')''. For waters to be ``in the region,'' they must fall within 
the same watershed. For waters to have a significant nexus, they 
``alone or in combination with other similarly situated waters in the 
same watershed have an effect on the chemical, physical, or biological 
integrity of traditionally navigable waters or interstate waters that 
is more than `speculative or insubstantial.''' (emphasis added).
---------------------------------------------------------------------------
    This change recognizes that, over time, there may be 
multiple determinations of Clean Water Act authority within the 
same watershed, and allows agency field staff to utilize 
previous jurisdictional assessments in analyzing future 
waterbodies. However, the 2011 proposed guidance provides that 
agency field staff must independently document whether the 
waterbody is, in fact, jurisdictional ``without cross-reference 
to other files, including an explanation of which waters were 
considered together as similarly situated and in the same 
region.''\26\
---------------------------------------------------------------------------
    \26\See Proposed 2011 Guidance at 9.
---------------------------------------------------------------------------
    This proposed change will greatly benefit the regulated 
community, because it will ``reduce some permitting costs and 
speed the permit review process in the long-term by clarifying 
jurisdictional matters that have been time-consuming and 
confusing for field staff and the regulated community.\27\ At 
the same time, this change contains sufficient safeguards to 
ensure that waterbodies cannot be deemed jurisdictional simply 
for the fact that they lie within the same watershed as another 
jurisdictional water.
---------------------------------------------------------------------------
    \27\See U.S. EPA, ``Potential Indirect Economic Impacts and 
Benefits Associated with Guidance Clarifying the Scope of Clean Water 
Act Jurisdiction'' (April 27, 2011) (located at ).
---------------------------------------------------------------------------
Clean Water Act protections of isolated, non-navigable, intrastate 
        waterbodies
    Another significant clarification proposed in the 2011 
guidance is what analysis EPA or the Corps must utilize to 
apply Clean Water Act protections over isolated, intrastate 
waterbodies.
    In 2001, the Supreme Court raised questions whether non-
navigable, isolated, intrastate waterbodies, such as vernal 
pools, playa lakes, and prairie potholes, were subject to Clean 
Water Act protections. The Court concluded that neither EPA nor 
the Corps could apply the Clean Water Act to such waters where 
the sole basis for asserting Clean Water Act coverage is the 
actual or potential use of such waters as habitat for migratory 
birds.\28\
---------------------------------------------------------------------------
    \28\See 531 U.S. 159, 174 (2001).
---------------------------------------------------------------------------
    However, neither Republican nor Democratic administrations 
have interpreted the 2001 Supreme Court decision as precluding 
Clean Water Act protections over isolated, intrastate waters, 
in any situation.
    For example, in 2001, the Clinton administration issued 
guidance which suggested that the 2001 Supreme Court decision 
was limited in scope, and that ``field staff should no longer 
rely on the use of waters or wetlands as habitat by migratory 
birds as the sole basis for the assertion of regulatory 
jurisdiction under the CWA. . . . The Court's decision did not 
specifically address what other connections with interstate 
commerce might support the assertion of CWA jurisdiction over 
`non-navigable, isolated, intrastate waters' under subsection 
(a)(3).''\29\
---------------------------------------------------------------------------
    \29\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling 
Concerning CWA Jurisdiction over Isolated Waters'', dated January 19, 
2001, located at  Wet areas that are not tributaries or open 
        waters and do not meet the agencies' regulatory 
        definition of ``wetlands'';
           Waters excluded from coverage under the 
        Clean Water Act by existing regulations;
           Waters that lack a significant nexus where 
        one is required for a water to be protected by the 
        Clean Water Act;
           Artificially irrigated areas that would 
        revert to upland should irrigation cease;
           Artificial lakes or ponds created by 
        excavating and/or diking dry land and used exclusively 
        for such purposes as stock watering, irrigation, 
        settling basins, or rice growing;
           Artificial reflecting pools or swimming 
        pools created by excavating and/or diking dry land;
           Small ornamental waters created by 
        excavating and/or diking dry land for primarily 
        aesthetic reasons;
           Water-filled depressions created incidental 
        to construction activity;
           Groundwater drained through subsurface 
        drainage systems; and
           Erosional features (gullies and rills), and 
        swales and ditches that are not tributaries or 
        wetlands.
    This list of waters and aquatic areas that are, generally, 
not considered protected by the Clean Water Act provides 
greater clarity to the regulated community and the general 
public as to which waters may be subject to the Clean Water Act 
permitting requirements.
    H.R. 4965, as Reported, Will Perpetuate the Regulatory 
Uncertainty and Confusion on the Scope of Clean Water Act 
Protections:
    As stated earlier, the debate surrounding the scope of the 
Clean Water Act has been driven more by the rhetoric than the 
reality.
    At the same time, the potential impacts of H.R. 4965 are 
largely unknown, as the Committee chose to move this bill 
directly to markup with no hearings on its potential impacts to 
the regulated community or public health and the environment.
    For example, while the stated intent of this legislation is 
to block the administration from issuing its proposed guidance 
on the scope of Clean Water Act protections, enactment of this 
legislation will lock in place the existing 2008 guidance that, 
as noted earlier, has been criticized both by regulated 
entities as well as the conservation and environmental 
communities.
    As reported, H.R. 4965 would also create significant legal 
hurdles that would, at a minimal, render future Federal 
rulemaking efforts difficult and costly and open up additional 
opportunities for litigation and regulatory confusion in an 
area that is already prone to such challenges.
    From their public statements, it is understandable that 
neither the regulated community nor the conservation and 
environmental community believe the 2008 guidance adequately 
addresses the uncertainty raised by the Supreme Court. These 
groups, and others, recognize how the regulatory uncertainty 
created by the 2008 guidance is having adverse impacts both on 
the economy (through confusion, delay, and increased compliance 
costs) as well as the environment, and have called for 
additional administrative clarity. Both groups have publicly 
called on the administration to conduct a formal rulemaking in 
order to clarify the scope of Clean Water Act protections 
following the Supreme Court decisions. In their view, having 
the agencies conduct a rulemaking will provide the general 
public with clear, consistent regulatory standards, based on 
underlying science, that should significantly improve the 
implementation of the Clean Water Act.
    Unfortunately, H.R. 4965 was not drafted to promote 
regulatory clarity, but only perpetuates regulatory 
uncertainty, in contravention to recent efforts by the 
Committee to streamline the project delivery process.
    It seeks to lock in place the existing guidance documents 
that have been roundly criticized as causing confusion, adding 
delays, and increasing costs to the American public. It also 
seeks to lock in place standards that leave millions of 
waterbodies vulnerable to pollution, jeopardizing countless 
recreational, hunting, fishing opportunities that are 
associated with these waterbodies, as well as the associated 
economic benefits. It also places the public health of over 117 
million Americans at risk of having their drinking water 
sources contaminated.
    Finally, H.R. 4965 needlessly complicates the rulemaking 
process for future administrations, contrary to the wishes of 
both the regulated and conservation and environmental 
communities, among others, and opens the door to increased 
litigation in an already overly litigious area.
    In short, H.R. 4965 creates more problems than it solves, 
and should be opposed.
    Codifying Regulatory Confusion and Delay and Increased 
Compliance Costs: Amendment adopted during Committee markup:
    As introduced, H.R. 4965 have would prohibited the EPA 
Administrator or the Secretary of the Army (acting through the 
Corps) from ``finalizing, adopting, implementing, or 
enforcing'' the draft 2011 guidance, or from using such 
guidance ``or any substantially similar guidance'' as the basis 
for any decision regarding the scope of the Act or any 
rulemaking. An amendment was adopted at markup to replace the 
phrase ``or any substantially similar guidance'' and with the 
phrase ``any successor document, or any substantially similar 
guidance made publicly available on or after December 3, 
2008.''
    This amendment would lock in place the use of the 2008 
administration guidance as the final say on how to interpret 
the 2001 and 2006 rulings of the Supreme Court. Under the 
amendment, the current and future Federal agencies would be 
prohibited from advancing any future guidance or other 
administrative interpretative documents to provide the general 
public with additional clarity on how the agencies will 
interpret the reach and application of the Clean Water Act--
either to improve the implementation of the guidance or to 
narrow its interpretation.
    More troubling, the amendment calls into question the 
ability of the current or future Presidential administrations 
from proceeding with a future notice-and-comment rulemaking to 
define the reach and application of the Clean Water Act--a 
process that has been publically requested by the regulated 
community, the conservation and environmental organizations, 
and several justices of the U.S. Supreme Court.
    The amendment creates significant uncertainty how Federal 
agencies would have to proceed with a rulemaking to avoid 
having such rulemaking be vacated under subsection (b) of H.R. 
4965, as ``substantially similar'' to the proposed 2011 
guidance. For example, if any future administration proposes a 
rulemaking that adopts the legal reasoning of Justice Kennedy 
to examine the interrelationship of ``similarly situated 
[waters] in the region,'' could such a rulemaking be struck 
down under H.R. 4965 simply because the concepts proposed in 
the future rulemaking also appeared in the proposed 2011 
guidance?
    During the Committee markup of H.R. 4965, proponents of 
H.R. 4965 suggested that the administration should engage in a 
``transparent rulemaking process under the Administrative 
Procedures Act.'' Contrary to statements otherwise, EPA and the 
Corps have already announced\42\ their expectation to propose 
such a rulemaking in the future. Yet, inexplicability, H.R. 
4965, as amended, would make any future agency rulemaking 
efforts more complicated, more costly, and more susceptible to 
litigation and challenges.
---------------------------------------------------------------------------
    \42\See 76 Fed. Reg. 24479 (May 2, 2011).
---------------------------------------------------------------------------
    Protecting the Drinking Water for 117 Million Americans: 
Amendment offered by Delegate Eleanor Holmes Norton:
    During Committee consideration of H.R. 4965, a second 
amendment was offered by the Delegate from the District of 
Columbia, Ms. Norton, which would have ensured that Americans 
can continue to depend on surface waters for clean, safe, and 
reliable drinking water.
    In 2009, EPA conducted a survey\43\ to determine where many 
Americans obtain their drinking water, and whether the 2001 and 
2006 decisions of the Supreme Court placed any of these sources 
at risk of pollution or degradation.
---------------------------------------------------------------------------
    \43\See .
---------------------------------------------------------------------------
    The results were shocking--in the continental U.S., 
approximately 117 million people, over one third of the total 
U.S. pollution, get some or all of their drinking water from 
public drinking water systems that rely at least in part on 
intermittent, ephemeral, or headwater streams--the very same 
waters where Clean Water protections have been called into 
question as a result of the Supreme Court decisions and the 
2008 guidance.
    As a result, approximately 94 percent of the U.S. 
population who are served by public drinking water systems now 
face the possibility that the rivers and streams that they rely 
on for their drinking water can be polluted without any Federal 
Clean Water Act protections, as a result of the 2001 and 2006 
decisions of the Supreme Court, and the narrow reading of these 
cases advanced by the Bush administration guidance.
    For example, in the state of New York, 97 percent of New 
Yorkers (or 11.4 million individuals) served by public water 
systems rely on the very same waters where protection has been 
called into question by the actions of the Supreme Court and 
the Bush administration.
    A state-by-state breakdown of the number and percentage of 
surface drinking water provided by intermittent, ephemeral, and 
headwater streams is included at the end of these dissenting 
views.
    H.R. 4965, as amended, perpetuates the likelihood that the 
drinking water supplies of millions of Americans could be 
contaminated by unscrupulous polluters, without any Federal 
protections, whatsoever.
    A common response to the threats to drinking water sources 
created by H.R. 4965 is that individual States could step in 
and choose to protect their own waters if they find these 
waters worthy of protection. Yet, in light of the current 
fiscal situation being faced by the States, this seems like an 
unlikely outcome.\44\ However, even if some States were to try 
and fill in the gap, nothing in H.R. 4965 would prevent states 
that place a higher value on promoting industry development 
from allowing increased pollution to emanate from their borders 
and contaminate their downstream neighbors. That is exactly the 
situation that existed prior to the enactment of the 1972 Clean 
Water Act, and one that could easily return should this 
legislation be enacted.
---------------------------------------------------------------------------
    \44\According to a comprehensive study conducted by the 
Environmental Law Institute, individual states have not uniformly 
responded to the decisions of the Supreme Court to assert State 
protections over waters that were once protected by the Federal Clean 
Water Act. As a result, the report identifies several categories /types 
of waterbodies where neither Federal nor State protections may 
currently be in place. This report is available at .
---------------------------------------------------------------------------
    The Norton amendment would have recognized the unique 
Federal interest in ensuring that the drinking water sources of 
over 117 million Americans warrant enhanced protection. It 
would have allowed the Federal agencies to take additional 
steps to protect those waterbodies where Clean Water Act 
protections have been lost or called into question as a result 
of the two Supreme Court decisions (as well as the 
interpretations of these cases by the 2008 guidance). Finally, 
it would have reiterated that Congress has a responsibility for 
ensuring that our constituents have clean, safe, and reliable 
drinking water supplies.
    Unfortunately, the Chairman of the Committee ruled the 
Norton amendment as not germane to H.R. 4965, and the amendment 
was not made in order.
Conclusion
    We recognize that there is a tremendous amount of confusion 
and uncertainty surrounding the reach and application of the 
Clean Water Act, today. Unfortunately, this confusion and 
uncertainty comes with a real cost to the general public.
    First, the confusion and uncertainty has resulted in 
increased compliance costs and delays in implementing projects 
and activities covered by the Act's permitting provisions. In 
addition, the confusion and uncertainty has resulted in the 
loss of Clean Water Act protections for countless waterbodies 
that were covered prior to 2001. This loss of protection has 
left waterbodies that were once protected under Federal law 
vulnerable to potential polluters. The confusion and 
uncertainty has also placed at risk the drinking water sources 
of approximately 177 million Americans that rely on surface 
waters for all or a portion of their drinking water supply.
    Not surprisingly, stakeholders from the regulated 
community, the conservation and the environmental communities, 
as well as members of the Supreme Court, have called on Federal 
agencies to clarify the reach and application of the Clean 
Water Act.
    Clarity is essential to the regulated public so they can 
understand and meet their legal obligations under the Clean 
Water Act, and avoid unnecessary project delays and the 
associated increased compliance costs. Likewise, clarity is 
essential to the American public so they are assured that water 
quality is uniformly protected, regardless of what state or 
region of the country the water is located.
    Yet, H.R. 4965 ignores these demands for clarity, and 
instead proposes to freeze in time an existing 2008 guidance 
document that the regulated community has characterized as 
``causing confusion and added delays in an already burdened and 
strained permit decision-making process which ultimately will 
result (and is resulting) in increased delays and costs to the 
public at large.''
    This legislation also makes future agency rulemaking 
efforts more complicated, more costly, and more susceptible to 
additional litigation and challenges, which is contrary to 
calls from both the regulated community and conservation and 
environmental organizations for a public rulemaking.
    Prudence demands that the Federal agencies utilize every 
means of the regulatory process available to clarify the 
application and reach of the Clean Water Act in accordance with 
the precedent of the Supreme Court.
    In our view, H.R. 4965 makes no effort to improve the 
current regulatory process, and, in fact, may make the 
regulatory process more cumbersome and confusing. This 
legislation perpetuates the increased costs and delay 
experienced by the regulated community, as well as the 
confusion and uncertainty felt by the general public whether 
large categories of waterbodies are at increased risk of 
pollution or degradation.
    In our view, this is the wrong approach--both for 
addressing the confusion caused by the Supreme Court decisions 
as well as for achieving the goals of fishable and swimmable 
waters called for in the Clean Water Act.
    For these reasons, we oppose H.R. 4965.

                                   Tim Bishop.
                                   Mazie K. Hirono.
                                   Donna F. Edwards.
                                   Eleanor Holmes Norton.
    State-by-State Breakdown of Surface Drinking Waters Provided by 
       Intermittent, Ephemeral, and Headwater Streams (IEH):\45\

---------------------------------------------------------------------------
    \45\See ``Analysis of the Surface Drinking Water Provided by 
Intermittent, Ephemeral, and Headwater Streams in the U.S.'', found at 
.
---------------------------------------------------------------------------

National Totals:

     Total Population Served by Public Drinking Water 
Systems (PDWS) using Surface Water: 124,364,960
     National Population Dependant on PDWS Relying on 
IEH Streams: 117,447,743
     Percentage of National Population Dependant on 
PDWS Relying on IEH Streams: 94 percent

Alabama:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 2,705,859
     State Population Dependant on PDWS Relying on IEH 
Streams: 2,681,327
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99 percent

Arizona:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 3,254,601
     State Population Dependant on PDWS Relying on IEH 
Streams: 3,254,601
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Arkansas:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 948,185
     State Population Dependant on PDWS Relying on IEH 
Streams: 941,225
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99 percent

California:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 7,320,360
     State Population Dependant on PDWS Relying on IEH 
Streams: 7,314,715
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.92 percent

Colorado:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 3,866,332
     State Population Dependant on PDWS Relying on IEH 
Streams: 3,772,743
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 98 percent

Connecticut:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 2,241,030
     State Population Dependant on PDWS Relying on IEH 
Streams: 2,241,030
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Delaware:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 281,400
     State Population Dependant on PDWS Relying on IEH 
Streams: 281,400
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Florida:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,808,955
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,808,955
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Georgia:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 4,918,344
     State Population Dependant on PDWS Relying on IEH 
Streams: 4,912,944
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.89 percent

Idaho:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 252,026
     State Population Dependant on PDWS Relying on IEH 
Streams: 252,001
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Illinois:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 4,872,325
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,680,948
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 34 percent

Indiana:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,951,112
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,703,230
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 87 percent

Iowa:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 667,428
     State Population Dependant on PD WS Relying on IEH 
Streams: 667,428
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Kansas:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,504,285
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,503,521
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.95 percent

Kentucky:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 3,282,980
     State Population Dependant on PDWS Relying on IEH 
Streams: 3,282,980
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Louisiana:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,901,559
     State Population Dependant on PDWS Relying on LEH 
Streams: 1,886,783
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99 percent

Maine:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 456,041
     State Population Dependant on PDWS Relying on IEH 
Streams: 454,360
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.63 percent

Maryland:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 3,990,271
     State Population Dependant on PDWS Relying on IEH 
Streams: 3,990,016
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.99 percent

Massachusetts:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 5,009,161
     State Population Dependant on PDWS Relying on IEH 
Streams: 4,915,909
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 98 percent

Michigan:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,977,536
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,400,633
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 71 percent

Minnesota:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,068,598
     State Population Dependant on PDWS Relying on IEH 
Streams: 978,928
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 92 percent

Mississippi:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 110,041
     State Population Dependant on PDWS Relying on IEH 
Streams: 110,041
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Missouri:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 2,498,142
     State Population Dependant on PDWS Relying on IEH 
Streams: 2,498,142
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Montana:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 351,401
     State Population Dependant on PDWS Relying on IEH 
Streams: 234,219
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 67 percent

Nebraska:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 515,566
     State Population Dependant on PDWS Relying on IEH 
Streams: 525,566
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Nevada:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 23,792
     State Population Dependant on PDWS Relying on IEH 
Streams: 23,792
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

New Hampshire:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 503,657
     State Population Dependant on PDWS Relying on IEH 
Streams: 503,196
     Percentage of State Population Dependant on PDWS 
Relying on 1EH Streams: 99.91 percent

New Jersey:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 4,258,089
     State Population Dependant on PDWS Relying on IEH 
Streams: 4,258,089
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

New Mexico:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 281,206
     State Population Dependant on PDWS Relying on IEH 
Streams: 280,906
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.89 percent

New York:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 11,471,432
     State Population Dependant on PDWS Relying on IEH 
Streams: 11,146,815
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 97 percent

North Carolina:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 4,722,950
     State Population Dependant on PDWS Relying on IEH 
Streams: 4,719,825
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.93 percent ttb

North Dakota:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 292,414
     State Population Dependant on PDWS Relying on IEH 
Streams: 292,414
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Ohio:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 5,894,716
     State Population Dependant on PDWS Relying on IEH 
Streams: 5,285,318
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 90 percent

Oklahoma:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 2,326,616
     State Population Dependant on PDWS Relying on IEH 
Streams: 2,326,616
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Oregon:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,782,414
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,770,246
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99 percent

Pennsylvania:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 8,215,216
     State Population Dependant on PDWS Relying on IEH 
Streams: 8,035,216
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 98 percent

Rhode Island:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 580,332
     State Population Dependant on PDWS Relying on IEH 
Streams: 564,893
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 97 percent

South Carolina:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,933,219
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,933,219
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

South Dakota:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 309,421
     State Population Dependant on PDWS Relying on IEH 
Streams: 309,421
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Tennessee:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 3,573,078
     State Population Dependant on PDWS Relying on IEH 
Streams: 3,572,494
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.98 percent

Texas:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 11,674,641
     State Population Dependant on PDWS Relying on IEH 
Streams: 11,557,744
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99 percent

Utah:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,490,700
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,428,450
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 96 percent

Vermont:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 181,226
     State Population Dependant on PDWS Relying on IEH 
Streams: 181,226
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 100 percent

Virginia:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 2,369,620
     State Population Dependant on PDWS Relying on IEH 
Streams: 2,364,709
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.79 percent

Washington:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 2,110,490
     State Population Dependant on PDWS Relying on IEH 
Streams: 2,002,833
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 95 percent

West Virginia:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,007,781
     State Population Dependant on PDWS Relying on IEH 
Streams: 1,002,731
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 99.50 percent

Wisconsin:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 1,392,700
     State Population Dependant on PDWS Relying on IEH 
Streams: 391,531
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 28 percent

Wyoming:

     Total State Population Served by Public Drinking 
Water Systems (PDWS) using Surface Water: 205,712
     State Population Dependant on PDWS Relying on IEH 
Streams: 202,414
     Percentage of State Population Dependant on PDWS 
Relying on IEH Streams: 98 percent

                                  
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