[House Report 113-604]
[From the U.S. Government Publishing Office]
113th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 113-604
======================================================================
COAL JOBS PROTECTION ACT OF 2014
_______
September 18, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 5077]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 5077) to amend the Federal Water
Pollution Control Act to provide guidance and clarification
regarding issuing new and renewal permits, 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....................................... 8
Background and Need for the Legislation.......................... 8
Hearings......................................................... 14
Legislative History and Consideration............................ 14
Committee Votes.................................................. 14
Committee Oversight Findings..................................... 19
New Budget Authority and Tax Expenditures........................ 19
Congressional Budget Office Cost Estimate........................ 19
Performance Goals and Objectives................................. 21
Advisory of Earmarks............................................. 21
Duplication of Federal Programs.................................. 21
Disclosure of Directed Rulemakings............................... 21
Federal Mandates Statement....................................... 22
Preemption Clarification......................................... 22
Advisory Committee Statement..................................... 22
Applicability to the Legislative Branch.......................... 22
Section-by-Section Analysis of the Legislation................... 22
Changes in Existing Law Made by the Bill, as Reported............ 27
Dissenting Views................................................. 40
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Coal Jobs Protection Act of 2014''.
SEC. 2. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM.
(a) Applicability of Guidance.--Section 402 of the Federal Water
Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end
the following:
``(s) Applicability of Guidance.--
``(1) Definitions.--In this subsection:
``(A) Guidance.--
``(i) In general.--The term `guidance' means
draft, interim, or final guidance issued by the
Administrator.
``(ii) Inclusions.--The term `guidance'
includes--
``(I) the interim guidance memorandum
issued by the Administrator on April 1,
2010, entitled `Detailed Guidance:
Improving EPA Review of Appalachian
Surface Coal Mining Operations under
the Clean Water Act, National
Environmental Policy Act, and the
Environmental Justice Executive Order';
``(II) 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' (76
Fed. Reg. 24479 (May 2, 2011));
``(III) the final guidance memorandum
issued by the Administrator on July 21,
2011, entitled `Improving EPA Review of
Appalachian Surface Coal Mining
Operations Under the Clean Water Act,
National Environmental Policy Act, and
the Environmental Justice Executive
Order';
``(IV) the proposed guidance
submitted to the Office of Information
and Regulatory Affairs of the Office of
Management and Budget for regulatory
review under Executive Order 12866
entitled `Guidance on Identifying
Waters Protected By the Clean Water
Act' and dated February 17, 2012
(referred to as `Clean Water Protection
Guidance', Regulatory Identifier Number
(RIN) 2040-ZA11, received February 21,
2012);
``(V) any successor document to, or
any substantially similar guidance
based in whole or in part on, any of
the foregoing guidance documents; and
``(VI) any other document or paper
proposed or issued by the Administrator
through any process other than the
notice and comment rulemaking process.
``(B) New permit.--The term `new permit' means a
permit covering discharges from a point source--
``(i) that is issued under this section by a
permitting authority; and
``(ii) for which an application is--
``(I) pending as of the date of
enactment of this subsection; or
``(II) filed on or after the date of
enactment of this subsection.
``(C) Permitting authority.--The term `permitting
authority' means--
``(i) the Administrator; or
``(ii) a State, acting pursuant to a permit
program under subsection (b).
``(2) Permits.--
``(A) In general.--Notwithstanding any other
provision of law, in making a determination whether to
approve a new permit or a renewed permit, the
permitting authority--
``(i) shall base the determination only on
compliance with regulations issued by the
Administrator or the permitting authority; and
``(ii) shall not base the determination on
the extent of adherence of the applicant for
the new permit or renewed permit to guidance.
``(B) New permits.--If the permitting authority does
not approve or deny an application for a new permit by
the date that is 270 days after the date of receipt of
a substantially complete application for the new
permit, the applicant may discharge as if the
application were approved in accordance with Federal
law for the period of time for which a similar permit
would be approved.
``(C) Substantial completeness.--In determining
whether an application for a new permit or a renewed
permit received under this paragraph is substantially
complete, the permitting authority shall use standards
for determining substantial completeness of similar
permits for similar facilities submitted in fiscal year
2007.''.
(b) State Permit Programs.--
(1) In general.--Section 402 of the Federal Water Pollution
Control Act (33 U.S.C. 1342) is amended by striking subsection
(b) and inserting the following:
``(b) State Permit Programs.--
``(1) In general.--At any time after the promulgation of the
guidelines required by section 304(i)(2), the Governor of each
State desiring to administer a permit program for discharges
into navigable waters within the jurisdiction of the State may
submit to the Administrator--
``(A) a full and complete description of the program
the State proposes to establish and administer under
State law or under an interstate compact; and
``(B) a statement from the attorney general (or the
attorney for those State water pollution control
agencies that have independent legal counsel), or from
the chief legal officer in the case of an interstate
agency, that the laws of the State, or the interstate
compact, as applicable, provide adequate authority to
carry out the described program.
``(2) Approval.--The Administrator shall approve each program
for which a description is submitted under paragraph (1) unless
the Administrator determines that adequate authority does not
exist--
``(A) to issue permits that--
``(i) apply, and ensure compliance with, any
applicable requirements of sections 301, 302,
306, 307, and 403;
``(ii) are for fixed terms not exceeding 5
years;
``(iii) can be terminated or modified for
cause, including--
``(I) a violation of any condition of
the permit;
``(II) obtaining a permit by
misrepresentation or failure to
disclose fully all relevant facts; and
``(III) a change in any condition
that requires either a temporary or
permanent reduction or elimination of
the permitted discharge; and
``(iv) control the disposal of pollutants
into wells;
``(B)(i) to issue permits that apply, and ensure
compliance with, all applicable requirements of section
308; or
``(ii) to inspect, monitor, enter, and require
reports to at least the same extent as required in
section 308;
``(C) to ensure that the public, and any other State
the waters of which may be affected, receives notice of
each application for a permit and an opportunity for a
public hearing before a ruling on each application;
``(D) to ensure that the Administrator receives
notice and a copy of each application for a permit;
``(E) to ensure that any State (other than the
permitting State), the waters of which may be affected
by the issuance of a permit may submit written
recommendations to the permitting State and the
Administrator with respect to any permit application
and, if any part of the written recommendations are not
accepted by the permitting State, that the permitting
State will notify the affected State and the
Administrator in writing of the failure of the
permitting State to accept the recommendations,
including the reasons for not accepting the
recommendations;
``(F) to ensure that no permit will be issued if, in
the judgment of the Secretary of the Army acting
through the Chief of Engineers, after consultation with
the Secretary of the department in which the Coast
Guard is operating, anchorage and navigation of any of
the navigable waters would be substantially impaired by
the issuance of the permit;
``(G) to abate violations of the permit or the permit
program, including civil and criminal penalties and
other means of enforcement;
``(H) to ensure that any permit for a discharge from
a publicly owned treatment works includes conditions to
require the identification in terms of character and
volume of pollutants of any significant source
introducing pollutants subject to pretreatment
standards under section 307(b) into the treatment works
and a program to ensure compliance with those
pretreatment standards by each source, in addition to
adequate notice, which shall include information on the
quality and quantity of effluent to be introduced into
the treatment works and any anticipated impact of the
change in the quantity or quality of effluent to be
discharged from the publicly owned treatment works, to
the permitting agency of--
``(i) new introductions into the treatment
works of pollutants from any source that would
be a new source as defined in section 306 if
the source were discharging pollutants;
``(ii) new introductions of pollutants into
the treatment works from a source that would be
subject to section 301 if the source were
discharging those pollutants; or
``(iii) a substantial change in volume or
character of pollutants being introduced into
the treatment works by a source introducing
pollutants into the treatment works at the time
of issuance of the permit; and
``(I) to ensure that any industrial user of any
publicly owned treatment works will comply with
sections 204(b), 307, and 308.
``(3) Administration.--Notwithstanding paragraph (2), the
Administrator may not disapprove or withdraw approval of a
program under this subsection, or limit Federal financial
assistance for such program, on the basis of the following:
``(A) The failure of the program to incorporate or
comply with guidance (as defined in subsection (s)(1)).
``(B) The implementation of a water quality standard
that has been adopted by the State and approved by the
Administrator under section 303(c).''.
(2) Conforming amendments.--
(A) Federal enforcement.--Section 309 of the Federal
Water Pollution Control Act (33 U.S.C. 1319) is
amended--
(i) in subsection (c)--
(I) in paragraph (1)(A), by striking
``402(b)(8)'' and inserting
``402(b)(2)(H)''; and
(II) in paragraph (2)(A), by striking
``402(b)(8)'' and inserting
``402(b)(2)(H)''; and
(ii) in subsection (d), in the first
sentence, by striking ``402(b)(8)'' and
inserting ``402(b)(2)(H)''.
(B) Additional pretreatment.--Section 402(m) of the
Federal Water Pollution Control Act (33 U.S.C. 1342(m))
is amended in the first sentence by striking
``subsection (b)(8) of this section'' and inserting
``subsection (b)(2)(H)''.
(c) Suspension of Federal Program.--Section 402(c) of the Federal
Water Pollution Control Act (33 U.S.C. 1342(c)) is amended--
(1) by redesignating paragraph (4) as paragraph (5); and
(2) by inserting after paragraph (3) the following:
``(4) Limitation on disapproval.--Notwithstanding paragraphs
(1) through (3), the Administrator may not disapprove or
withdraw approval of a State program under subsection (b), or
limit Federal financial assistance for the State program, on
the basis of the following:
``(A) The failure of the program to incorporate or
comply with guidance (as defined in subsection (s)(1)).
``(B) The implementation of a water quality standard
that has been adopted by the State and approved by the
Administrator under section 303(c).''.
(d) Notification of Administrator.--Section 402(d)(2) of the Federal
Water Pollution Control Act (33 U.S.C. 1342(d)(2)) is amended as
follows:
(1) By striking ``(2) No'' and all that follows through the
end of the first sentence and inserting the following:
``(2) Objection by administrator.--
``(A) In general.--Subject to subparagraph (C), no
permit shall issue if--
``(i) not later than 90 days after the date
on which the Administrator receives
notification under subsection (b)(2)(E), the
Administrator objects in writing to the
issuance of the permit; or
``(ii) not later than 90 days after the date
on which the proposed permit of the State is
transmitted to the Administrator, the
Administrator objects in writing to the
issuance of the permit as being outside the
requirements of this Act.''.
(2) In the second sentence, by striking ``Whenever the
Administrator'' and inserting the following:
``(B) Requirements.--If the Administrator''.
(3) By adding at the end the following:
``(C) Exception.--The Administrator may not object to
or deny the issuance of a permit by a State under
subsection (b) or (s) based on the following:
``(i) Guidance, as that term is defined in
subsection (s)(1).
``(ii) The Administrator's interpretation of
a water quality standard that has been adopted
by the State and approved by the Administrator
under section 303(c).''.
SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL.
(a) In General.--Section 404(a) of the Federal Water Pollution
Control Act (33 U.S.C. 1344(a)) is amended--
(1) by striking ``(a) The Secretary may issue'' and inserting
the following:
``(a) Permits.--
``(1) In general.--The Secretary may issue''; and
(2) by adding at the end the following:
``(2) Deadline for approval.--
``(A) Permit applications.--
``(i) In general.--Except as provided in
clause (ii), if an environmental assessment or
environmental impact statement, as appropriate,
is required under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.),
the Secretary shall--
``(I) ensure that the environmental
review process begins not later than 90
days after the date on which the
Secretary receives a permit
application; and
``(II) approve or deny an application
for a permit under this subsection not
later than--
``(aa) if an agency carries
out an environmental assessment
that leads to a finding of no
significant impact, the date on
which the finding of no
significant impact is issued;
or
``(bb) if an agency carries
out an environmental assessment
that leads to a record of
decision, 15 days after the
date on which the record of
decision on the environmental
impact statement is issued.
``(ii) Processes.--Notwithstanding clause
(i), regardless of whether the Secretary has
commenced an environmental assessment or
environmental impact statement by the date
described in clause (i)(I), the following
deadlines shall apply:
``(I) An environmental assessment
carried out under the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) shall be completed
not later than 1 year after the
deadline for commencing the
environmental review process under
clause (i)(I).
``(II) An environmental impact
statement carried out under the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) shall be
completed not later than 2 years after
the deadline for commencing the
environmental review process under
clause (i)(I).
``(B) Failure to act.--If the Secretary fails to act
by the deadline specified in clause (i) or (ii) of
subparagraph (A)--
``(i) the application, and the permit
requested in the application, shall be
considered to be approved;
``(ii) the Secretary shall issue a permit to
the applicant; and
``(iii) the permit shall not be subject to
judicial review.''.
(b) State Permitting Programs.--Section 404(c) of the Federal Water
Pollution Control Act (33 U.S.C. 1344(c)) is amended--
(1) by striking ``(c)'' and inserting ``(c)(1)''; and
(2) by adding at the end the following:
``(2) Paragraph (1) shall not apply to any permit if the State in
which the discharge originates or will originate does not concur with
the Administrator's determination that the discharge will result in an
unacceptable adverse effect as described in paragraph (1).''.
(c) State Programs.--The first sentence of section 404(g)(1) of such
Act (33 U.S.C. 1344(g)(1)) is amended by striking ``for the discharge''
and inserting ``for some or all of the discharges''.
(d) Deadline for Agency Comments.--Section 404 of such Act (33 U.S.C.
1344) is amended--
(1) in subsection (m) by striking ``ninetieth day'' and
inserting ``30th day (or the 60th day if additional time is
requested)''; and
(2) in subsection (q)--
(A) by striking ``(q)'' and inserting ``(q)(1)''; and
(B) by adding at the end the following:
``(2) The Administrator and the head of a department or agency
referred to in paragraph (1) shall each submit any comments with
respect to an application for a permit under subsection (a) or (e) not
later than the 30th day (or the 60th day if additional time is
requested) after the date of receipt of an application for a permit
under that subsection.''.
SEC. 4. IMPACTS OF EPA REGULATORY ACTIVITY ON EMPLOYMENT AND ECONOMIC
ACTIVITY.
(a) Analysis of Impacts of Actions on Employment and Economic
Activity.--
(1) Analysis.--Before taking a covered action, the
Administrator shall analyze the impact, disaggregated by State,
of the covered action on employment levels and economic
activity, including estimated job losses and decreased economic
activity.
(2) Economic models.--
(A) In general.--In carrying out paragraph (1), the
Administrator shall utilize the best available economic
models.
(B) Annual gao report.--Not later than December 31 of
each year, the Comptroller General of the United States
shall submit to Congress a report on the economic
models used by the Administrator to carry out this
subsection.
(3) Availability of information.--With respect to any covered
action, the Administrator shall--
(A) post the analysis under paragraph (1) as a link
on the main page of the public Internet Web site of the
Environmental Protection Agency; and
(B) request that the Governor of any State
experiencing more than a de minimis negative impact
post such analysis in the Capitol of such State.
(b) Public Hearings.--
(1) In general.--If the Administrator concludes under
subsection (a)(1) that a covered action will have more than a
de minimis negative impact on employment levels or economic
activity in a State, the Administrator shall hold a public
hearing in the State at least 30 days prior to the effective
date of the covered action.
(2) Time, location, and selection.--A public hearing required
under paragraph (1) shall be held at a convenient time and
location for impacted residents. In selecting a location for
such a public hearing, the Administrator shall give priority to
locations in the State that will experience the greatest number
of job losses.
(c) Notification.--If the Administrator concludes under subsection
(a)(1) that a covered action will have more than a de minimis negative
impact on employment levels or economic activity in a State, the
Administrator shall give notice of such impact to the State's
congressional delegation, Governor, and legislature at least 45 days
before the effective date of the covered action.
(d) Definitions.--In this section, the following definitions apply:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Environmental Protection Agency.
(2) Covered action.--The term ``covered action'' means any of
the following actions taken by the Administrator under the
Federal Water Pollution Control Act (33 U.S.C. 1201 et seq.):
(A) Issuing a regulation, policy statement, guidance,
response to a petition, or other requirement.
(B) Implementing a new or substantially altered
program.
(3) More than a de minimis negative impact.--The term ``more
than a de minimis negative impact'' means either of the
following:
(A) With respect to employment levels, a loss of more
than 100 jobs. Any offsetting job gains that result
from the hypothetical creation of new jobs through new
technologies or government employment may not be used
in the job loss calculation.
(B) With respect to economic activity, a decrease in
economic activity of more than $1,000,000 over any
calendar year. Any offsetting economic activity that
results from the hypothetical creation of new economic
activity through new technologies or government
employment may not be used in the economic activity
calculation.
SEC. 5. LIMITATIONS ON AUTHORITY TO MODIFY STATE WATER QUALITY
STANDARDS.
(a) State Water Quality Standards.--Section 303(c)(4) of the Federal
Water Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended--
(1) by redesignating subparagraphs (A) and (B) as clauses (i)
and (ii), respectively;
(2) by striking ``(4)'' and inserting ``(4)(A)'';
(3) by striking ``The Administrator shall promulgate'' and
inserting the following:
``(B) The Administrator shall promulgate''; and
(4) by adding at the end the following:
``(C) Notwithstanding subparagraph (A)(ii), the Administrator may not
promulgate a revised or new standard for a pollutant in any case in
which the State has submitted to the Administrator and the
Administrator has approved a water quality standard for that pollutant,
unless the State concurs with the Administrator's determination that
the revised or new standard is necessary to meet the requirements of
this Act.''.
(b) Federal Licenses and Permits.--Section 401(a) of such Act (33
U.S.C. 1341(a)) is amended by adding at the end the following:
``(7) With respect to any discharge, if a State or interstate agency
having jurisdiction over the navigable waters at the point where the
discharge originates or will originate determines under paragraph (1)
that the discharge will comply with the applicable provisions of
sections 301, 302, 303, 306, and 307, the Administrator may not take
any action to supersede the determination.''.
SEC. 6. STATE AUTHORITY TO IDENTIFY WATERS WITHIN ITS BOUNDARIES.
Section 303 of the Federal Water Pollution Control Act (33 U.S.C.
1313) is amended by striking subsection (d)(2) and inserting the
following:
``(2)(A) Each State shall submit to the Administrator from time to
time, with the first such submission not later than 180 days after the
date of publication of the first identification of pollutants under
section 304(a)(2)(D), the waters identified and the loads established
under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection.
The Administrator shall approve the State identification and load or
announce his disagreement with the State identification and load not
later than 30 days after the date of submission, and if--
``(i) the Administrator approves the identification and load
submitted by the State in accordance with this subsection, such
State shall incorporate them into its current plan under
subsection (e); and
``(ii) the Administrator announces his disagreement with the
identification and load submitted by the State in accordance
with this subsection, the Administrator shall submit, not later
than 30 days after the date on which such announcement is made,
to the State his written recommendation of those additional
waters that he identifies and such loads for such waters as he
believes are necessary to implement the water quality standards
applicable to such waters.
``(B) Upon receipt of the Administrator's recommendation the State
shall within 30 days either--
``(i) disregard the Administrator's recommendation in full
and incorporate its own identification and load into its
current plan under subsection (e);
``(ii) accept the Administrator's recommendation in full and
incorporate its identification and load as amended by the
Administrator's recommendation into its current plan under
subsection (e); or
``(iii) accept the Administrator's recommendation in part,
identifying certain additional waters and certain additional
loads proposed by the Administrator to be added to such State's
identification and load and incorporate such State's
identification and load as amended into its current plan under
subsection (e).
``(C)(i) If the Administrator fails to either approve the State
identification and load or announce his disagreement with the State
identification and load within the time specified in this subsection,
then such State's identification and load is deemed approved and such
State shall incorporate the identification and load that it submitted
into its current plan under subsection (e).
``(ii) If the Administrator announces his disagreement with the State
identification and load but fails to submit his written recommendation
to the State within 30 days as required by subparagraph (A)(ii) then
such State's identification and load is deemed approved and such State
shall incorporate the identification and load that it submitted into
its current plan under subsection (e).
``(D) This paragraph shall apply to any decision made by the
Administrator under this subsection issued on or after March 1,
2013.''.
SEC. 7. DEFINITION OF FILL MATERIAL.
Section 502 of the Federal Water Pollution Control Act (33 U.S.C.
1362) is amended by adding at the end the following:
``(27) Fill material.--
``(A) In general.--The term `fill material' means any
material placed in waters of the United States where
the material has the effect of--
``(i) replacing any portion of a water of the
United States with dry land; or
``(ii) changing the bottom elevation of any
portion of a water of the United States.
``(B) Inclusions.--The term `fill material'
includes--
``(i) rock;
``(ii) sand;
``(iii) soil;
``(iv) clay;
``(v) plastics;
``(vi) construction debris;
``(vii) wood chips;
``(viii) overburden from mining or other
excavation activities; and
``(ix) materials used to create any structure
or infrastructure in the waters of the United
States.
``(C) Exclusions.--The term `fill material' does not
apply to trash or garbage.''.
SEC. 8. APPLICABILITY OF AMENDMENTS.
Except as otherwise specifically provided, the amendments made by
this Act shall apply to actions taken on or after the date of enactment
of this Act, including actions taken with respect to permit
applications pending, or revised or new standards in the process of
being promulgated, on such date of enactment.
Purpose of the Legislation
The ``Coal Jobs Protection Act of 2014,'' H.R. 5077, amends
the Federal Water Pollution Control Act to restore the long-
standing relationship between states and the U.S. Environmental
Protection Agency as co-regulators under the Act and preserve
the authority of each state to make determinations relating to
the state's water quality standards and permitting.
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 ``CWA'') with the objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.'' (See CWA Sec. 101(a); 33 U.S.C. Sec. 1251.) In
enacting the CWA, it was the ``policy of the Congress to
recognize, preserve, and protect the primary responsibilities
and rights of states to prevent, reduce, and eliminate
pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources, and to consult with the [EPA] Administrator in the
exercise of his authority under this Act.'' (See id. at
Sec. 101(b).)
The CWA prohibits the discharge of any pollutant by any
person, unless in compliance with one of the enumerated
permitting provisions in the Act. The two permitting
authorities in the CWA are section 402 (the National Pollutant
Discharge Elimination System, or ``NPDES''), for discharges of
pollutants from point sources to jurisdictional waterbodies,
and section 404, for discharges of dredged or fill material to
jurisdictional waterbodies.
The U.S. Environmental Protection Agency (``EPA'') has the
basic responsibility for implementing the CWA, and is
responsible for implementing the NPDES program under section
402. Under the NPDES program, it is unlawful for a point source
to discharge pollutants into jurisdictional waterbodies, 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 section 404 of the CWA.
Under this permitting program, it is unlawful to discharge
dredged or fill materials into jurisdictional waterbodies,
unless the discharge is authorized by and in compliance with a
dredge or fill (section 404) permit issued by the Corps (or by
a state, under a comparable approved state program).
The CWA calls on states to establish water quality
standards for the waterbodies in their states. (See CWA
Sec. 303.) Water quality standards are to serve as a mechanism
to establish goals for the quality of the nation's waters and
as a regulatory basis when standardized technology-based
controls for point source discharges are determined to be
inadequate to meet the water quality standards for a waterbody
and water quality-based controls are to be developed. States
periodically (at least once each three years) review their
water quality standards and, as appropriate, modify and adopt
new standards. (See CWA Sec. 303(c).) Water quality standards
define the goals for a waterbody by designating its uses,
setting water quality criteria to protect those uses, and
establishing general policy provisions to protect water
quality.
States also identify waters where technology-based controls
are not stringent enough to implement any water quality
standards applicable to such waters, and develop lists of these
``impaired'' waters. (See CWA Sec. 303(d).) The CWA requires
that states establish priority rankings for waters on the lists
and develop total maximum daily loads (TMDLs) for these waters.
(See id.) A TMDL is a calculation of the maximum amount of a
pollutant that a waterbody can receive and still meet water
quality standards.
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, 46 states have been authorized to implement
NPDES permits and enforce permits.
Even when a state has the lead authority to implement the
CWA's programs, EPA retains residual authority under the CWA to
review certain actions by the state in implementing the CWA.
For example, when a state proposes issuing an NPDES permit, EPA
may review and object to it, and when a state adopts a new or
revised water quality standard, the state is to submit such
standards to EPA for review and approval/disapproval. In
addition, EPA may review and approve/disapprove lists of
impaired waters and TMDLs developed by states. EPA also retains
authority to oversee and object to the Corps' issuance of
section 404 permits for the discharge of dredged or fill
material. Once EPA has approved a state standard or permit, or
a Corps section 404 permit, the implementation and
interpretation of that standard or permit is left to the state
or the Corps, respectively.
Concerns of Regulatory Overreach
Recently, stakeholders have become concerned that EPA has
abandoned its proper role of approving state programs and
ensuring that the standards which states adopt meet the minimum
requirements of the CWA. Instead, there is concern that EPA has
gotten involved in the implementation of state standards, and
in second-guessing states with respect to how standards are to
be implemented and even second-guessing EPA's own prior
determinations that a state standard meets the minimum
requirements of the CWA. There is also concern that EPA has
inserted itself into the states' and the Corps' NPDES and
section 404 permit issuance decisions and is second-guessing
state and Corps permitting decisions.
For example, in November 2010, EPA decided to federally
promulgate water quality standards for nutrients in Florida,
even though the state was well underway in developing its own,
scientifically defensible nutrient standards for the state, and
even though EPA had earlier approved Florida's nutrient
criteria development plans. In addition, EPA has begun pressing
states in other ways to adopt nutrient standards and implement
other CWA limitations in NPDES discharge permits. EPA has
reminded states of its position that states with authorized CWA
permitting authority cannot issue permits in the face of an
agency objection, and has threatened to hold up permits from
issuance or withhold federal financial assistance from states.
In addition, in 2013, EPA partially rejected West
Virginia's list of impaired waters in the state and imposed a
new list adding approximately 200 additional streams. (See
Letter, from Shawn W. Garvin, Regional Administrator, EPA
Region III, to The Honorable Randy C. Huffman, Secretary, West
Virginia Department of Environmental Protection (Sept. 30,
2013) (transmitting final list of waterbodies that EPA is
adding to West Virginia's list of water quality limited
segments pursuant to CWA section 303(d)).) EPA, in creating its
impaired waters list for West Virginia, decided to apply West
Virginia's stream condition evaluation index differently than
how it had been applied in the past or how the West Virginia
Legislature determined the index should be applied, in effect
turning the index into a new water quality standard without a
rulemaking and setting the standard at a different level than
what it had been in previous years when EPA approved West
Virginia's impaired waters lists in the past.
Further, even though agency guidance or statements of
policy are only supposed to provide an indication of an
agency's thoughts on a topic, and are not supposed to be
legally binding on courts or persons outside the agency, EPA
has developed and utilized certain guidance and policies that
could, in effect, become binding on states, local governments,
or regulated parties.
In one instance, EPA and the Corps drafted new joint
guidance to describe their latest views of federal regulatory
jurisdiction over U.S. waters under the CWA. The agencies
proposed CWA jurisdiction guidance in May 2011, which purported
to describe how the agencies would 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. (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).)
The agencies noted, among other things, 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.)
Members of Congress, stakeholders, and states submitted
comments on the proposed guidance to the agencies, expressing
concern, among other things, that the proposed guidance
misconstrues applicable rulings of the U.S. Supreme Court's
cases regarding the scope of CWA jurisdiction, 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 applicable Supreme Court
cases by describing new conditions under which the agencies may
assert jurisdiction; and the Administrative Procedure Act (5
U.S.C. 500 et seq.) 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;
that the agencies are using interim or final guidance as a
substitute for regulation or to change or expand the effects of
regulation, and the agencies should, instead, proceed to formal
rulemaking and not issue or apply the proposed guidance in the
interim. (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); see also 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);
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).)
In February 2012, the agencies prepared and sent to the
Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB/OIRA) for regulatory review under
Executive Order 12866 revised proposed CWA jurisdiction
guidance. (Guidance on Identifying Waters Protected By the
Clean Water Act (dated Feb. 17, 2012) (referred to as ``Clean
Water Protection Guidance,'' Regulatory Identifier Number (RIN)
2040-ZA11, received Feb. 21, 2012).) The revised guidance was
largely unchanged from the proposed version, despite the many
concerns expressed in the public comments submitted to the
agencies. In September, 2013, the Corps and EPA announced their
withdrawal, from OMB/OIRA, of the proposed guidance before the
guidance was finalized. At the same time, the agencies sent to
OMB/OIRA, for regulatory review, a draft rule entitled
Definition of `Waters of the United States' Under the Clean
Water Act (RIN: 2040-AF30). The draft rule purported to
``clarify'' which waterbodies are subject to federal
jurisdiction under the CWA.
In another instance, EPA formalized in 2009, with the Corps
and the Department of Interior as part of a memorandum of
understanding of policies and procedures between the agencies,
an extraregulatory review process, referred to as an ``enhanced
coordination process,'' of CWA section 404 dredged or fill
permits for Appalachian region surface coal mining projects.
(See ``Memorandum of Understanding Among the U.S. Department of
the Army, U.S. Department of the Interior, and U.S.
Environmental Protection Agency on Implementing the Interagency
Action Plan on Appalachian Surface Coal Mining'' (June 11,
2009) (hereinafter, ``MOU'').) In conjunction with the release
of the MOU, EPA issued formal details on the enhanced
coordination process, which were immediately effective and
imposed substantive changes to the section 404 permitting
process by creating a new level of review by EPA and an
alternate permitting pathway not contemplated by the current
regulatory structure.
This new process added a minimum of 60 days, and
potentially many months, of review to the existing review
process entirely outside of, and in addition to, the existing
CWA section 404 permitting procedures and timelines. At the end
of this new process, only if issues identified by EPA are
resolved in individual permit applications could those permits
move forward to the Corps for processing and incorporation of
new permit terms or conditions dictated by EPA during the
process. If EPA's concerns remain unresolved at the close of
the process period, EPA then could initiate ``veto'' procedures
to prohibit the issuance of a permit. In practice, EPA has
utilized the process to identify almost 250 coal-related
section 404 permits currently pending with the Corps, and
numerous permit applications remain indefinitely stalled.
Neither EPA nor the Corps proposed to revise the existing
codified review procedures and EPA did not propose to amend its
existing section 404 guidelines when formalizing the enhanced
coordination process.
EPA also released interim guidance in April 2010 for the
review of all coal mining operations. (See EPA Memorandum,
``Detailed Guidance: Improving EPA Review of Appalachian
Surface Coal Mining Operations Under the Clean Water Act,
National Environmental Policy Act, and the Environmental
Justice Executive Order'' (April 1, 2010).) While EPA solicited
public comment on the interim guidance, it nevertheless made
the guidance effective immediately. In the guidance, EPA made
pronouncements regarding the need for water quality-based
limits in NPDES permits, as well as the adequacy of mitigation
measures associated with section 404 permits. Among other
things, the guidance effectively established a region-wide
water quality standard by directing that section 402 and 404
permits should contain conditions that ensure that conductivity
levels in waters do not exceed specified concentrations. EPA
finalized the guidance more than a year later. (See EPA
Memorandum, ``Improving EPA Review of Appalachian Surface Coal
Mining Operations Under the Clean Water Act, National
Environmental Policy Act, and the Environmental Justice
Executive Order'' (July 21, 2011).)
In July 2010, the National Mining Association (NMA) filed a
lawsuit, in the United States District Court for the District
of Columbia, against EPA over the guidance and the enhanced
coordination process. The states of West Virginia and Kentucky
filed similar cases in United States District Courts in
Kentucky and West Virginia, which were transferred to the
United States District Court for the District of Columbia and
consolidated with the NMA case. (National Mining Association,
et al. v. Jackson, et al., Nos. 10-1220, 11-295, 11-0446, 11-
0447(RBW) (U.S. D.Ct, D.C.).) In decisions issued on October 6,
2011 and July 31, 2012, the District Court invalidated the
enhanced coordination process and the guidance.
In July 2014, the U.S. Court of Appeals for the District of
Columbia Circuit reversed the District Court and upheld EPA's
enhanced coordination process, but limited the policy's
application, saying state permit writers are ``free to ignore''
the agency's advice when crafting discharge permits and EPA may
not use the policies to justify enforcement actions. The D.C.
Circuit also concluded the final guidance ``is not a final
agency action reviewable by the courts at this time,'' and ``If
and when an applicant is denied a permit, the applicant at that
time may challenge the denial of the permit as unlawful.'' (See
National Mining Association, et al. v. McCarthy, et al., No.
12-5310 (D.C. Cir. 2014).)
In light of the circuit court's decision, stakeholders
remain concerned that EPA will continue to use the enhanced
coordination process and guidance to cause delays and impose
new and unattainable conditions in the section 402 and 404
permit processes for coal mining operations. NPDES permitting
statistics from the West Virginia Department of Environmental
Protection illustrate reasons for stakeholders' concerns. In
2008, before the enhanced coordination process and guidance
were implemented, 339 NPDES permits were issued for coal mining
activities in West Virginia, and 306 applications were left
pending at the end of the year. By 2011, under enhanced
coordination, only approximately half as many (177) NPDES
permits were issued for mining activities, while the number of
pending applications more than doubled to 722. In 2013,
following the District Court's decisions in National Mining
Association, et al. v. Jackson, et al. invalidating the
enhanced coordination process and the guidance, the number of
permits issued in West Virginia increased to 626, as the
backlog was reduced and only 294 applications were left
pending. Permitting statistics from the Corps show the issuance
of section 404 permits also decreased when the enhanced
coordination process and guidance were implemented.
Stakeholders anticipate the circuit court's July 2014 opinion
restoring enhanced coordination will again result in increased
permitting delays, like what happened by 2011.
Legislation to Restore the Federal-State Partnership Under the CWA
By second-guessing and inserting itself into the states'
and the Corps' standards and permitting decisions, EPA has
upset the long-standing balance between federal and state
partners in regulating the nation's waters, and undermined the
system of cooperative federalism established under the CWA in
which the primary responsibilities for water pollution control
are allocated to the states. EPA's actions have created an
atmosphere of regulatory uncertainty for the regulated
community, and have had a chilling effect on the nation's
economy and job creation.
H.R. 5077 was introduced to halt these sorts of actions
where EPA has gone beyond its appropriate role as the approver
of programs and standards and instead has attempted to directly
implement water quality programs, including standards and
permits, in approved states, and second-guess the judgment of
the water quality professionals in those states.
The ``Coal Jobs Protection Act of 2014,'' H.R. 5077, amends
the Clean Water Act (CWA) to restore the long-standing
relationship between states and EPA as co-regulators under the
Act and preserve the authority of each state to make
determinations relating to the state's water quality standards
and permitting. The bill aims to preserve the authority of each
state to make determinations relating to the state's water
quality standards, and to restrict EPA's ability to second-
guess or delay a state's permitting and water quality
certification decisions under the CWA.
H.R. 5077 aims to provide common sense protections for
states' EPA-approved water quality standards and permitting
authorities under the CWA. Without these protections, state
regulation, as approved by EPA, can still be usurped by EPA,
creating a climate for regulatory uncertainty and delays.
Hearings
No hearings were held on H.R. 5077.
In the 112th Congress, on May 5 and 11, 2011, the
Subcommittee on Water Resources and Environment held hearings
to receive testimony from state regulators, the mining
industry, impacted businesses, economists, and the EPA on EPA's
surface mining policies and other related extra-regulatory
activities. Also in the 112th Congress, on June 24, 2011, the
Subcommittee on Water Resources and Environment held a hearing
to receive testimony from state water quality regulators, a
state department of agriculture and consumer services, and a
municipal wastewater reclamation utility on EPA's nutrients
policies under the CWA.
Legislative History and Consideration
On July 11, 2014, Representative Shelley Moore Capito
introduced H.R. 5077, the ``Coal Jobs Protection Act of 2014.''
On July 16, 2012, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 5077, and
ordered the bill reported favorably to the House by roll call
vote with a quorum present. The vote was 28 yeas to 24 nays.
An amendment was offered in Committee by Ranking Member
Rahall, which was adopted by voice vote with a quorum present.
The amendment added additional provisions to enhance the
purposes of the bill by covering other areas where EPA has
overreached with states, including with the implementation of
water quality standards, certifications, and permitting
decisions.
Representative Tim Bishop offered an amendment that would
have excluded, from applicability, provisions in the bill that
EPA determines would likely increase the interstate movement of
pollutants through surface waters, increase the costs to be
incurred by another state to maintain or achieve approved water
quality standards for the state; or cause or contribute to the
impairment of surface or coastal waters of another state. The
amendment was defeated in a roll call vote with a quorum
present. The vote was 29 nays to 23 yeas.
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 record 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. 5077, two record votes were taken.
The first record vote was taken on an amendment offered in
Committee by Representative Tim Bishop. The Committee disposed
of this amendment by record vote as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The other record vote was taken on reporting the bill, as
amended, to the House with a favorable recommendation. The
bill, as amended, was reported to the House with a favorable
recommendation after a record vote which was disposed of as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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. 5077 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 18, 2014.
Hon. Bill Shuster,
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. 5077, the Coal
Jobs Protection Act of 2014.
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. 5077--Coal Jobs Protection Act of 2014
Summary: H.R. 5077 would amend EPA's regulatory authority
under the National Pollutant Discharge Elimination System
(NPDES) permitting program, part of the Clean Water Act (CWA).
CBO estimates that implementing this legislation would cost
$97 million over the 2015-2019 period, subject to appropriation
of the necessary amounts. Enacting H.R. 5077 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
H.R. 5077 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA),
and any costs incurred by state, local, or tribal governments
would result from participation in a voluntary federal program.
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 5077 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2015 2016 2017 2018 2019 2015-2019
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 20 20 20 20 20 100
Estimated Outlays....................................... 17 20 20 20 20 97
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that H.R.
5077 will be enacted near the end of 2014 and that the
necessary amounts to implement the legislation will be
appropriated each year.
The NPDES permitting program controls water pollution by
regulating point sources that discharge pollutants into waters
of the United States. (Point sources are discrete conveyances
such as pipes or man-made ditches). Proposed development
activities that could result in such discharges are regulated
through a review and permit process. The U.S. Army Corps of
Engineers (Corps) is responsible for making such permitting
decisions and the Environmental Protection Agency (EPA), under
section 404(c) of the CWA, has the authority to restrict,
prohibit, deny, or withdraw areas specified in permits before
or after the permits are issued by the Corps. In most cases,
EPA has delegated that authority to individual states, although
EPA retains the authority to review certain actions taken by
the states that are implementing the program.
Provisions of this legislation would:
Prohibit EPA (or a state administering the NPDES
program) from basing decisions to approve or deny an NPDES
permit on EPA guidance;
Prohibit EPA from modifying or revoking any permit
for any discharge that originates in a state if the state does
not agree with EPA's determination that the discharge would
have an unacceptable adverse effect;
Prohibit EPA from issuing a new or revised water
quality standard for a pollutant if a water quality standard
for that pollutant has already been approved by a state and
EPA;
Modify EPA's process for approving or denying a
state plan to establish a total maximum daily load, which is
the maximum amount of a pollutant a watershed can receive and
still meet applicable water quality standards;
Set deadlines for EPA and other federal agencies
for commenting on and reviewing a NPDES permit application; and
Require EPA to perform an analysis of the impact
of its regulations or guidance documents on employment and
economic activity before issuing them.
According to EPA and industry experts, most of the
provisions included in this bill are aimed at limiting EPA's
authorities under the NPDES program by precluding certain
actions or shortening timeframes for its review of permit
applications. While such restrictions could reduce spending by
EPA, CEO does not expect that enacting this legislation would
result in any significant cost savings because the bill mostly
addresses actions that EPA rarely undertakes. For proposed
development projects posing the most concern to EPA, it is
likely that EPA would incur costs to review permits whether or
not H.R. 5077 is enacted.
In contrast, the provision in H.R. 5077 requiring
additional analyses related to employment and economic activity
prior to issuing guidance and regulations would increase EPA's
costs. Based on information from EPA, CBO estimates that such
analysis and related public hearings would cost $2 million, on
average, to complete. Based on EPA's CWA regulatory plan from
prior years, CBO estimates that EPA would undertake about 10
actions requiring a study of employment and economic impacts
each year. Thus, we estimate that enacting this legislation
would cost about $20 million annually, subject to the
availability of appropriated funds.
Pay-As-You-Go considerations: None.
Intergovernmental and private-sector impact: H.R. 5077
contains no intergovernmental or private-sector mandates as
defined in UMRA, and any costs incurred by state, local, or
tribal governments would result from participation in a
voluntary federal program.
Estimate prepared by: Federal costs: Susanne S. Mehlman;
Impact on State, Local, and Tribal Governments: Jon Sperl;
Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy 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 caused by EPA's second-guessing and
inserting itself into the states' standards and permitting
decisions, by restoring the long-standing system of cooperative
federalism established under the CWA in which the primary
responsibilities for water pollution control are allocated to
the states.
Advisory of Earmarks
In compliance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5077, as amended, 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.
Duplication of Federal Programs
Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013),
the Committee finds that no provision of H.R. 5077, as amended,
establishes or reauthorizes a program of the federal government
known to be duplicative of another federal program, a program
that was included in any report from the Government
Accountability Office to Congress pursuant to section 21 of
Public Law 111-139, or a program related to a program
identified in the most recent Catalog of Federal Domestic
Assistance.
Disclosure of Directed Rulemakings
Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013),
the Committee estimates that enacting H.R. 5077, as amended,
does not specifically direct the completion of any specific
rulemakings within the meaning of section 551 of title 5,
United States Code.
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. 5077, as amended,
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 is created by this
legislation, as amended.
Applicability to the Legislative Branch
The Committee finds that the legislation, as amended, 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. Short title
Section 1 of the bill designates the title of the bill as
the ``Coal Jobs Protection Act of 2014.''
Section 2. National Pollutant Discharge Elimination System
Section 2 of the bill amends section 402 of the CWA.
Section 2(a) adds a new subsection (s) at the end of section
402. Section 2(a) prohibits EPA, or a state with authority to
administer the NPDES program under the CWA, from relying on the
use of guidance to make a determination, on an application for
a new permit or a renewed permit under section 402 of the CWA,
of whether to approve the new or renewed permit. Such
determinations are to be based only on compliance with
regulations issued by EPA or the permitting authority.
In addition, section 2(a) requires that applications for
all new NPDES permits be acted upon within 270 days. If the
permitting authority does not approve or deny an application
for a new permit by the date that is 270 days after the date of
receipt of a substantially complete application for the new
permit, the applicant may discharge as if the application were
approved in accordance with federal law for the period of time
for which a similar permit would be approved.
The term ``guidance'' means draft, interim, or final
guidance issued by EPA, and includes:
(1) the interim guidance memorandum issued by EPA on April
1, 2010, entitled ``Detailed Guidance: Improving EPA Review of
Appalachian Surface Coal Mining Operations under the Clean
Water Act, National Environmental Policy Act, and the
Environmental Justice Executive Order'';
(2) 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'' (76 Fed. Reg. 24479 (May 2,
2011));
(3) the final guidance memorandum issued by EPA on July 21,
2011, entitled ``Improving EPA Review of Appalachian Surface
Coal Mining Operations Under the Clean Water Act, National
Environmental Policy Act, and the Environmental Justice
Executive Order'';
(4) the proposed guidance submitted to the Office of
Information and Regulatory Affairs of the Office of Management
and Budget for regulatory review under Executive Order 12866
entitled ``Guidance on Identifying Waters Protected By the
Clean Water Act'' and dated February 17, 2012 (referred to as
``Clean Water Protection Guidance,'' Regulatory Identifier
Number (RIN) 2040-ZA11, received February 21, 2012);
(5) any successor document to, or any substantially similar
guidance based in whole or in part on, any of the foregoing
guidance documents; and
(6) any other document or paper proposed or issued by EPA
through any process other than the notice and comment
rulemaking process.
Section 2(b) of the bill prohibits EPA from disapproving or
withdrawing approval of a state 402 permitting program, or
limiting federal financial assistance for such program, on the
basis of (1) the failure of the program to incorporate or
comply with guidance, or (2) the implementation of a water
quality standard that has been adopted by the state and
approved by EPA.
Section 2(c) amends section 402(c) of the CWA by
prohibiting EPA from withdrawing approval of a state water
quality permitting program under CWA section 402 (NPDES
Permits), or from limiting federal financial assistance for the
state water quality permitting program, on the basis that EPA
disagrees with the state regarding (1) a water quality standard
that a state has adopted and EPA has approved under section
303(c), or (2) the implementation of any guidance that directs
a re-interpretation of the state's approved water quality
standards.
Section 2(d) of the bill amends section 402(d) of the CWA
by prohibiting EPA from objecting to a state's issuance of an
NPDES permit on the basis of (1) EPA's differing interpretation
of an approved state water quality standard, or (2) the
implementation of any guidance that directs a re-interpretation
of the state's approved water quality standards.
Under section 402 of the CWA, once EPA approves a state
water quality program, then that program is the permitting
authority under the CWA and states have the authority to issue
permits that they determine will meet state water quality
standards that have been approved by EPA. In certain cases, EPA
has the ability to independently enforce a state-issued permit.
However, EPA has not previously claimed the authority to invent
its own interpretation of what state water quality standards
mean and how they should be implemented. EPA is now threatening
these actions.
To prevent this from happening, H.R. 5077 limits EPA's
authority to object to state-issued permits. The bill also
limits EPA's authority to withdraw approval of a state NPDES
permitting program, or from limiting federal financial
assistance for the state water quality permitting program in
the specified circumstances. These limitations apply only in
situations where EPA is attempting to contradict a state
agency's interpretation of its own water quality standards.
EPA's recent attempts to rewrite state water quality standards
are unprecedented. By limiting such over-reaching by EPA, H.R.
5077 in no way affects EPA's proper role in reviewing state
permits.
Section 3. Permits for dredged or fill material
Section 3 of the bill amends section 404 of the CWA
regarding the section 404 permitting process. Section 3(a)
requires that, if an environmental assessment or environmental
impact statement, as appropriate, is required under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.; (NEPA)), the NEPA environmental review process is to
begin within 90 days of a complete section 404 permit
application. If there is a finding of no significant
environmental impact, the permit must be approved or denied on
the date of that finding. If there is an environmental
assessment conducted that leads to a record of decision, the
permit must be approved or denied within 15 days of the
issuance of that decision.
If an environmental assessment is carried out, it must be
completed within one year after the deadline for commencing the
environmental review process. If an environmental impact
statement is carried out, it must be completed within two years
after the deadline for commencing the environmental review
process. If any of these deadlines are missed, the application
and the requested permit are to be considered approved, the
permitting authority is required to issue the permit, and the
permit shall not be subject to judicial review.
Section 3(b) of the bill amends section 404(c) of the CWA
by restricting EPA's ability to veto a Corps section 404
permitting decision under CWA section 404(c) unless the state
concurs with EPA's determination that the discharge of dredged
or fill material will result in an unacceptable adverse effect
on a state's waters, as described in CWA section 404(c)(1) (as
amended). Under section 404(c) of the CWA, EPA has the
authority to veto a Corps permit for the discharge of dredged
or fill material to prevent unacceptable adverse effects on
state waters. Recently, EPA has alleged unacceptable adverse
impacts where a state agency (or the Corps) believes that none
exist. H.R. 5077 would limit EPA's ability to override a state
(or Corps) determination regarding whether there would be
unacceptable adverse impacts on the state's waters.
Section 3(c) of the bill amends section 404(g)(1) of the
CWA by allowing a state to assume and administer only parts of
the section 404 permit program. CWA section 404(g) authorizes
states to assume responsibility for implementing the CWA
section 404 permit program, but they are generally only allowed
to assume the entire program. Currently, only two states (New
Jersey and Michigan) have assumed responsibility for section
404 permitting in their states. Other states support a
simplified and more flexible process for state assumption of
the section 404 permit program, including partial assumption of
program responsibilities, in order to improve effectiveness and
provide more efficient and effective permitting for applicants.
H.R. 5077 would make it easier for states to assume and
administer only parts of the section 404 permit program.
Paragraph (1) of section 3(d) of the bill amends section
404(m) of the CWA by shortening the deadline for the Fish and
Wildlife Service to submit comments to the Corps on a proposed
section 404 permit from 90 days to 30 days (or 60 days if
additional time is requested).
Paragraph (2) of section 3(d) of the bill amends section
404(q) of the CWA by clarifying that the deadline for EPA and
other agencies to submit comments to the Corps on a proposed
section 404 permit is 30 days (or 60 days if additional time is
requested) after the date of receipt of the application for the
section 404 permit.
Under section 404(q) of the Clean Water Act, agencies are
required to enter into memoranda of understanding (MOUs) to
limit delays in the issuance of permits by the Corps. In 1992,
EPA entered into an MOU with the Corps agreeing to limit its
review time to 30 days, which could be extended to a maximum of
60 days. H.R. 5077 holds EPA and other agencies to their
obligation to prevent permitting delays.
Section 4. Impacts of EPA Regulatory Activity on Employment and
Economic Activity
Section 4 of the bill requires EPA, before taking a
``covered action'' under the CWA, to perform an analysis of the
impact of the action on employment levels and economic
activity, including estimated job losses and decreased economic
activity. The analysis must include the impact on jobs and
economic activity in each impacted state. This analysis must be
posted on the front page of EPA's Website and be provided to
the Governor of each impacted state. Whenever a covered action
will have more than a de minimis negative impact on employment
levels or economic activity in a state, the Administrator shall
hold a public hearing in the state at least 30 days prior to
the effective date of the covered action. A ``covered action''
includes issuing a regulation, policy statement, guidance,
response to a petition, or other requirement, or implementing a
new or substantially altered program under the CWA.
Section 5. Limitations on authority to modify state water quality
standards
Section 5(a) of the bill amends section 303(c)(4) of the
CWA by restricting EPA's ability to issue a revised or new
water quality standard for a pollutant whenever a state has
adopted and EPA already has approved a water quality standard
for that pollutant, unless the state concurs with the
Administrator's determination that the revised or new standard
is necessary to meet the requirements of the CWA. Section 303
of the CWA authorizes EPA to approve state standards and to
establish federal standards if needed to meet the requirements
of the Act. By restricting EPA's ability to override an
existing state standard if it already has been approved by EPA,
EPA as a co-regulator under the CWA would be forced to work
together more closely, in a more cooperative fashion, with the
state. H.R. 5077 would prevent unilateral actions by EPA that
second-guess the decisions of the state regulatory agency. H.R.
5077 maintains EPA's proper and appropriate authority to
approve state programs and to approve state water quality
standards.
Section 5(b) amends section 401(a) of the CWA by
prohibiting EPA from superseding a water quality certification
granted by a state under CWA section 401, that a discharge will
comply with the applicable water quality requirements of
sections 301, 302, 303, 306, and 307 of the CWA. Section 401 of
the CWA vests in states alone the authority to decide whether
or not a proposed federal project or federal action will
adversely affect state water quality standards. Recently, EPA
has suggested that they can override state determinations. This
suggestion is unprecedented. H.R. 5077 restricts EPA's ability
to carry out its threat to override state water quality
certifications.
Section 6. State authority to identify waters within its boundaries
Section 6 of the bill amends CWA section 303(d)(2) to give
state governments greater authority to determine the list of
impaired waters in their states and the total maximum daily
loads (TMDLs) for those impaired waters within their borders.
Under current law, EPA has the authority under section
303(d)(2) of the CWA to approve a state's submission of lists
and TMDLs, or reject the submission and impose the agency's own
lists and TMDLs.
Section 6 provides that a state will submit its lists and
TMDLs to EPA, just as it does under current law. If EPA accepts
the state's submission, then the process works just as it does
under current law. If EPA announces its disagreement with the
state's submission, instead of imposing its own list and TMDLs
on the state, EPA is to submit to the state, not later than 30
days after the date on which such announcement is made, the
agency's written recommendation of those additional waters that
EPA identifies and such TMDLs for such waters as EPA believes
are necessary to implement the water quality standards
applicable to such waters.
Upon receipt of the Administrator's recommendation, the
state is to, within 30 days, either (1) accept EPA's
recommendation in full, (2) accept EPA's recommendation in
part, identifying certain additional waters and certain
additional TMDLs proposed by EPA, or (3) implement the state's
original submission. If EPA fails to meet its deadline to
either approve or disagree with a state's submission, or meet
its deadline to present its own proposal to the state, then the
state will implement its own submission.
Section 7. Definition of fill material
Section 7 codifies into the CWA the current regulatory
definition of the term ``fill material'' (in 40 C.F.R.
Sec. 232.2). The current definition is consistent with EPA and
the Corps' longstanding practice and ensures that necessary
placement of excess rock and soil generated by construction and
development projects in jurisdictional waters are regulated by
the Corps under section 404 of the CWA. EPA and the Corps
promulgated the current definition of fill material in 2002,
after a lengthy rulemaking process that began in 2000. (See 67
Fed. Reg. 31129 (May 9, 2002) (Revisions to the Regulatory
Definition of ``Fill Material'').) The current definition of
fill material provides a fair standard for protecting our water
while allowing for economic activity. Keeping it in place
protects our environment and provides certainty to both
regulators and regulated entities.
Section 8. Applicability of amendments
Section 8 states that amendments that H.R. 5077 would make
to the CWA shall apply to actions taken on or after the date of
enactment of H.R. 5077, including actions that are pending or
revised or new standards that are being promulgated as of such
date of enactment. Section 8 makes it clear that H.R. 5077
would apply to both pending and future permitting and standards
actions, except as otherwise specifically provided.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE III--STANDARDS AND ENFORCEMENT
* * * * * * *
water quality standards and implementation plans
Sec. 303. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(4)(A) The Administrator shall promptly prepare and publish
proposed regulations setting forth a revised or new water
quality standard for the navigable waters involved--
[(A)] (i) if a revised or new water quality standard
submitted by such State under paragraph (3) of this
subsection for such waters is determined by the
Administrator not to be consistent with the applicable
requirements of this Act, or
[(B)] (ii) in any case where the Administrator
determines that a revised or new standard is necessary
to meet the requirements of this Act.
[The Administrator shall promulgate]
(B) The Administrator shall promulgate any revised or new
standard under this paragraph not later than ninety days after
he publishes such proposed standards, unless prior to such
promulgation, such State has adopted a revised or new water
quality standard which the Administrator determines to be in
accordance with this Act.
(C) Notwithstanding subparagraph (A)(ii), the Administrator
may not promulgate a revised or new standard for a pollutant in
any case in which the State has submitted to the Administrator
and the Administrator has approved a water quality standard for
that pollutant, unless the State concurs with the
Administrator's determination that the revised or new standard
is necessary to meet the requirements of this Act.
(d)(1) * * *
[(2) Each State shall submit to the Administrator from time
to time, with the first such submission not later than one
hundred and eighty days after the date of publication of the
first identification of pollutants under section 304(a)(2)(D),
for his approval the waters identified and the loads
established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D)
of this subsection. The Administrator shall either approve or
disapprove such identification and load not later than thirty
days after the date of submission. If the Administrator
approves such identification and load, such State shall
incorporate them into its current plan under subsection (e) of
this section. If the Administrator disapproves such
identification and load, he shall not later than thirty days
after the date of such disapproval identify such waters in such
State and establish such loads for such waters as he determines
necessary to implement the water quality standards applicable
to such waters and upon such identification and establishment
the State shall incorporate them into its current plan under
subsection (e) of this section.]
(2)(A) Each State shall submit to the Administrator from time
to time, with the first such submission not later than 180 days
after the date of publication of the first identification of
pollutants under section 304(a)(2)(D), the waters identified
and the loads established under paragraphs (1)(A), (1)(B),
(1)(C), and (1)(D) of this subsection. The Administrator shall
approve the State identification and load or announce his
disagreement with the State identification and load not later
than 30 days after the date of submission, and if--
(i) the Administrator approves the identification and
load submitted by the State in accordance with this
subsection, such State shall incorporate them into its
current plan under subsection (e); and
(ii) the Administrator announces his disagreement
with the identification and load submitted by the State
in accordance with this subsection, the Administrator
shall submit, not later than 30 days after the date on
which such announcement is made, to the State his
written recommendation of those additional waters that
he identifies and such loads for such waters as he
believes are necessary to implement the water quality
standards applicable to such waters.
(B) Upon receipt of the Administrator's recommendation the
State shall within 30 days either--
(i) disregard the Administrator's recommendation in
full and incorporate its own identification and load
into its current plan under subsection (e);
(ii) accept the Administrator's recommendation in
full and incorporate its identification and load as
amended by the Administrator's recommendation into its
current plan under subsection (e); or
(iii) accept the Administrator's recommendation in
part, identifying certain additional waters and certain
additional loads proposed by the Administrator to be
added to such State's identification and load and
incorporate such State's identification and load as
amended into its current plan under subsection (e).
(C)(i) If the Administrator fails to either approve the State
identification and load or announce his disagreement with the
State identification and load within the time specified in this
subsection, then such State's identification and load is deemed
approved and such State shall incorporate the identification
and load that it submitted into its current plan under
subsection (e).
(ii) If the Administrator announces his disagreement with the
State identification and load but fails to submit his written
recommendation to the State within 30 days as required by
subparagraph (A)(ii) then such State's identification and load
is deemed approved and such State shall incorporate the
identification and load that it submitted into its current plan
under subsection (e).
(D) This paragraph shall apply to any decision made by the
Administrator under this subsection issued on or after March 1,
2013.
* * * * * * *
federal enforcement
Sec. 309. (a) * * *
* * * * * * *
(c) Criminal Penalties.--
(1) Negligent violations.--Any person who--
(A) negligently violates section 301, 302,
306, 307, 308, 311(b)(3), 318, or 405 of this
Act, or any permit condition or limitation
implementing any of such sections in a permit
issued under section 402 of this Act by the
Administrator or by a State, or any requirement
imposed in a pretreatment program approved
under section 402(a)(3) or [402(b)(8)]
402(b)(2)(H) of this Act or in a permit issued
under section 404 of this Act by the Secretary
of the Army or by a State; or
* * * * * * *
shall be punished by a fine of not less than $2,500 nor
more than $25,000 per day of violation, or by
imprisonment for not more than 1 year, or by both. If a
conviction of a person is for a violation committed
after a first conviction of such person under this
paragraph, punishment shall be by a fine of not more
than $50,000 per day of violation, or by imprisonment
of not more than 2 years, or by both.
(2) Knowing violations.--Any person who--
(A) knowingly violates section 301, 302, 306,
307, 308, 311(b)(3), 318, or 405 of this Act,
or any permit condition or limitation
implementing any of such sections in a permit
issued under section 402 of this Act by the
Administrator or by a State, or any requirement
imposed in a pretreatment program approved
under section 402(a)(3) or [402(b)(8)]
402(b)(2)(H) of this Act or in a permit issued
under section 404 of this Act by the Secretary
of the Army or by a State; or
* * * * * * *
shall be punished by a fine of not less that $5,000 nor
more than $50,000 per day of violation, or by
imprisonment for not more than 3 years, or by both. If
a conviction of a person is for a violation committed
after a first conviction of such person under this
paragraph, punishment shall be by a fine of not more
than $100,000 per day of violation, or imprisonment of
not more than 6 years, or by both.
* * * * * * *
(d) Any person who violates section 301, 302, 306, 307, 308,
318 or 405 of this Act, or any permit condition or limitation
implementing any of such sections in a permit issued under
section 402 of this Act by the Administrator, or by a State, or
in a permit issued under section 404 of this Act by a State,,
or any requirement imposed in a pretreatment program approved
under section 402(a)(3) or [402(b)(8)] 402(b)(2)(H) of this
Act, and any person who violates any order issued by the
Administrator under subsection (a) of this section, shall be
subject to a civil penalty not to exceed $25,000 per day for
each violation. In determining the amount of a civil penalty
the court shall consider the seriousness of the violation or
violations, the economic benefit (if any) resulting from the
violation, any history of such violations, any good-faith
efforts to comply with the applicable requirements, the
economic impact of the penalty on the violator, and such other
matters as justice may require. For purposes of this
subsection, a single operational upset which leads to
simultaneous violations of more than one pollutant parameter
shall be treated as a single violation.
* * * * * * *
TITLE IV--PERMITS AND LICENSES
certification
Sec. 401. (a)(1) * * *
* * * * * * *
(7) With respect to any discharge, if a State or interstate
agency having jurisdiction over the navigable waters at the
point where the discharge originates or will originate
determines under paragraph (1) that the discharge will comply
with the applicable provisions of sections 301, 302, 303, 306,
and 307, the Administrator may not take any action to supersede
the determination.
* * * * * * *
national pollutant discharge elimination system
Sec. 402. (a) * * *
[(b) At any time after the promulgation of the guidelines
required by subsection (i)(2) of section 304 of this Act, the
Governor of each State desiring to administer its own permit
program for discharges into navigable waters within its
jurisdiction may submit to the Administrator a full and
complete description of the program it proposes to establish
and administer under State law or under an interstate compact.
In addition, such State shall submit a statement from the
attorney general (or the attorney for those State water
pollution control agencies which have independent legal
counsel), or from the chief legal officer in the case of an
interstate agency, that the laws of such State, or the
interstate compact, as the case may be, provide adequate
authority to carry out the described program. The Administrator
shall approve each such submitted program unless he determines
that adequate authority does not exist:
[(1) To issue permits which--
[(A) apply, and insure compliance with, any
applicable requirements of sections 301, 302, 306, 307,
and 403;
[(B) are for fixed terms not exceeding five years;
and
[(C) can be terminated or modified for cause
including, but not limited to, the following:
[(i) violation of any condition of the
permit;
[(ii) obtaining a permit by
misrepresentation, or failure to disclose fully
all relevant facts;
[(iii) change in any condition that requires
either a temporary or permanent reduction or
elimination of the permitted discharge;
[(D) control the disposal of pollutants into wells;
[(2)(A) To issue permits which apply, and insure compliance
with, all applicable requirements of section 308 of this Act,
or
[(B) To inspect, monitor, enter, and require reports to at
least the same extent as required in section 308 of this Act;
[(3) To insure that the public, and any other State the
waters of which may be affected, receive notice of each
application for a permit and to provide an opportunity for
public hearing before a ruling on each such application;
[(4) To insure that the Administrator receives notice of each
application (including a copy thereof) for a permit;
[(5) To insure that any State (other than the permitting
State), whose waters may be affected by the issuance of a
permit may submit written recommendations to the permitting
State (and the Administrator) with respect to any permit
application and, if any part of such written recommendations
are not accepted by the permitting State, that the permitting
State will notify such affected State (and the Administrator)
in writing of its failure to so accept such recommendations
together with its reasons for so doing;
[(6) To insure that no permit will be issued if, in the
judgment of the Secretary of the Army acting through the Chief
of Engineers, after consultation with the Secretary of the
department in which the Coast Guard is operating, anchorage and
navigation of any of the navigable waters would be
substantially impaired thereby;
[(7) To abate violations of the permit or the permit program,
including civil and criminal penalties and other ways and means
of enforcement;
[(8) To insure that any permit for a discharge from a
publicly owned treatment works includes conditions to require
the identification in terms of character and volume of
pollutants of any significant source introducing pollutants
subject to pretreatment standards under section 307(b) of this
Act into such works and a program to assure compliance with
such pretreatment standards by each such source, in addition to
adequate notice to the permitting agency of (A) new
introductions into such works of pollutants from any source
which would be a new source as defined in section 306 if such
source were discharging pollutants, (B) new introductions of
pollutants into such works from a source which would be subject
to section 301 if it were discharging such pollutants, or (C) a
substantial change in volume or character of pollutants being
introduced into such works by a source introducing pollutants
into such works at the time of issuance of the permit. Such
notice shall include information on the quality and quantity of
effluent to be introduced into such treatment works and any
anticipated impact of such change in the quantity or quality of
effluent to be discharged from such publicly owned treatment
works; and
[(9) To insure that any industrial user of any publicly owned
treatment works will comply with sections 204(b), 307, and
308.]
(b) State Permit Programs.--
(1) In general.--At any time after the promulgation
of the guidelines required by section 304(i)(2), the
Governor of each State desiring to administer a permit
program for discharges into navigable waters within the
jurisdiction of the State may submit to the
Administrator--
(A) a full and complete description of the
program the State proposes to establish and
administer under State law or under an
interstate compact; and
(B) a statement from the attorney general (or
the attorney for those State water pollution
control agencies that have independent legal
counsel), or from the chief legal officer in
the case of an interstate agency, that the laws
of the State, or the interstate compact, as
applicable, provide adequate authority to carry
out the described program.
(2) Approval.--The Administrator shall approve each
program for which a description is submitted under
paragraph (1) unless the Administrator determines that
adequate authority does not exist--
(A) to issue permits that--
(i) apply, and ensure compliance
with, any applicable requirements of
sections 301, 302, 306, 307, and 403;
(ii) are for fixed terms not
exceeding 5 years;
(iii) can be terminated or modified
for cause, including--
(I) a violation of any
condition of the permit;
(II) obtaining a permit by
misrepresentation or failure to
disclose fully all relevant
facts; and
(III) a change in any
condition that requires either
a temporary or permanent
reduction or elimination of the
permitted discharge; and
(iv) control the disposal of
pollutants into wells;
(B)(i) to issue permits that apply, and
ensure compliance with, all applicable
requirements of section 308; or
(ii) to inspect, monitor, enter, and require
reports to at least the same extent as required
in section 308;
(C) to ensure that the public, and any other
State the waters of which may be affected,
receives notice of each application for a
permit and an opportunity for a public hearing
before a ruling on each application;
(D) to ensure that the Administrator receives
notice and a copy of each application for a
permit;
(E) to ensure that any State (other than the
permitting State), the waters of which may be
affected by the issuance of a permit may submit
written recommendations to the permitting State
and the Administrator with respect to any
permit application and, if any part of the
written recommendations are not accepted by the
permitting State, that the permitting State
will notify the affected State and the
Administrator in writing of the failure of the
permitting State to accept the recommendations,
including the reasons for not accepting the
recommendations;
(F) to ensure that no permit will be issued
if, in the judgment of the Secretary of the
Army acting through the Chief of Engineers,
after consultation with the Secretary of the
department in which the Coast Guard is
operating, anchorage and navigation of any of
the navigable waters would be substantially
impaired by the issuance of the permit;
(G) to abate violations of the permit or the
permit program, including civil and criminal
penalties and other means of enforcement;
(H) to ensure that any permit for a discharge
from a publicly owned treatment works includes
conditions to require the identification in
terms of character and volume of pollutants of
any significant source introducing pollutants
subject to pretreatment standards under section
307(b) into the treatment works and a program
to ensure compliance with those pretreatment
standards by each source, in addition to
adequate notice, which shall include
information on the quality and quantity of
effluent to be introduced into the treatment
works and any anticipated impact of the change
in the quantity or quality of effluent to be
discharged from the publicly owned treatment
works, to the permitting agency of--
(i) new introductions into the
treatment works of pollutants from any
source that would be a new source as
defined in section 306 if the source
were discharging pollutants;
(ii) new introductions of pollutants
into the treatment works from a source
that would be subject to section 301 if
the source were discharging those
pollutants; or
(iii) a substantial change in volume
or character of pollutants being
introduced into the treatment works by
a source introducing pollutants into
the treatment works at the time of
issuance of the permit; and
(I) to ensure that any industrial user of any
publicly owned treatment works will comply with
sections 204(b), 307, and 308.
(3) Administration.--Notwithstanding paragraph (2),
the Administrator may not disapprove or withdraw
approval of a program under this subsection, or limit
Federal financial assistance for such program, on the
basis of the following:
(A) The failure of the program to incorporate
or comply with guidance (as defined in
subsection (s)(1)).
(B) The implementation of a water quality
standard that has been adopted by the State and
approved by the Administrator under section
303(c).
(c)(1) * * *
* * * * * * *
(4) Limitation on disapproval.--Notwithstanding
paragraphs (1) through (3), the Administrator may not
disapprove or withdraw approval of a State program
under subsection (b), or limit Federal financial
assistance for the State program, on the basis of the
following:
(A) The failure of the program to incorporate
or comply with guidance (as defined in
subsection (s)(1)).
(B) The implementation of a water quality
standard that has been adopted by the State and
approved by the Administrator under section
303(c).
[(4)] (5) Limitations on partial permit program
returns and withdrawals.--A State may return to the
Administrator administration, and the Administrator may
withdraw under paragraph (3) of this subsection
approval, of--
(A) * * *
* * * * * * *
(d)(1) * * *
[(2) No permit shall issue (A) if the Administrator within
ninety days of the date of his notification under subsection
(b)(5) of this section objects in writing to the issuance of
such permit, or (B) if the Administrator within ninety days of
the date of transmittal of the proposed permit by the State
objects in writing to the issuance of such permit as being
outside the guidelines and requirements of this Act. Whenever
the Administrator]
(2) Objection by administrator.--
(A) In general.--Subject to subparagraph (C),
no permit shall issue if--
(i) not later than 90 days after the
date on which the Administrator
receives notification under subsection
(b)(2)(E), the Administrator objects in
writing to the issuance of the permit;
or
(ii) not later than 90 days after the
date on which the proposed permit of
the State is transmitted to the
Administrator, the Administrator
objects in writing to the issuance of
the permit as being outside the
requirements of this Act.
(B) Requirements.--If the Administrator
objects to the issuance of a permit under this
paragraph such written objection shall contain
a statement of the reasons for such objection
and the effluent limitations and conditions
which such permit would include if it were
issued by the Administrator.
(C) Exception.--The Administrator may not
object to or deny the issuance of a permit by a
State under subsection (b) or (s) based on the
following:
(i) Guidance, as that term is defined
in subsection (s)(1).
(ii) The Administrator's
interpretation of a water quality
standard that has been adopted by the
State and approved by the Administrator
under section 303(c).
* * * * * * *
(m) Additional Pretreatment of Conventional Pollutants Not
Required.--To the extent a treatment works (as defined in
section 212 of this Act) which is publicly owned is not meeting
the requirements of a permit issued under this section for such
treatment works as a result of inadequate design or operation
of such treatment works, the Administrator, in issuing a permit
under this section, shall not require pretreatment by a person
introducing conventional pollutants identified pursuant to a
section 304(a)(4) of this Act into such treatment works other
than pretreatment required to assure compliance with
pretreatment standards under [subsection (b)(8) of this
section] subsection (b)(2)(H) and section 307(b)(1) of this
Act. Nothing in this subsection shall affect the
Administrator's authority under sections 307 and 309 of this
Act, affect State and local authority under sections 307(b)(4)
and 510 of this Act, relieve such treatment works of its
obligations to meet requirements established under this Act, or
otherwise preclude such works from pursuing whatever feasible
options are available to meet its responsibility to comply with
its permit under this section.
* * * * * * *
(s) Applicability of Guidance.--
(1) Definitions.--In this subsection:
(A) Guidance.--
(i) In general.--The term
``guidance'' means draft, interim, or
final guidance issued by the
Administrator.
(ii) Inclusions.--The term
``guidance'' includes--
(I) the interim guidance
memorandum issued by the
Administrator on April 1, 2010,
entitled ``Detailed Guidance:
Improving EPA Review of
Appalachian Surface Coal Mining
Operations under the Clean
Water Act, National
Environmental Policy Act, and
the Environmental Justice
Executive Order'';
(II) 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'' (76 Fed. Reg. 24479 (May
2, 2011));
(III) the final guidance
memorandum issued by the
Administrator on July 21, 2011,
entitled ``Improving EPA Review
of Appalachian Surface Coal
Mining Operations Under the
Clean Water Act, National
Environmental Policy Act, and
the Environmental Justice
Executive Order'';
(IV) the proposed guidance
submitted to the Office of
Information and Regulatory
Affairs of the Office of
Management and Budget for
regulatory review under
Executive Order 12866 entitled
``Guidance on Identifying
Waters Protected By the Clean
Water Act'' and dated February
17, 2012 (referred to as
``Clean Water Protection
Guidance'', Regulatory
Identifier Number (RIN) 2040-
ZA11, received February 21,
2012);
(V) any successor document
to, or any substantially
similar guidance based in whole
or in part on, any of the
foregoing guidance documents;
and
(VI) any other document or
paper proposed or issued by the
Administrator through any
process other than the notice
and comment rulemaking process.
(B) New permit.--The term ``new permit''
means a permit covering discharges from a point
source--
(i) that is issued under this section
by a permitting authority; and
(ii) for which an application is--
(I) pending as of the date of
enactment of this subsection;
or
(II) filed on or after the
date of enactment of this
subsection.
(C) Permitting authority.--The term
``permitting authority'' means--
(i) the Administrator; or
(ii) a State, acting pursuant to a
permit program under subsection (b).
(2) Permits.--
(A) In general.--Notwithstanding any other
provision of law, in making a determination
whether to approve a new permit or a renewed
permit, the permitting authority--
(i) shall base the determination only
on compliance with regulations issued
by the Administrator or the permitting
authority; and
(ii) shall not base the determination
on the extent of adherence of the
applicant for the new permit or renewed
permit to guidance.
(B) New permits.--If the permitting authority
does not approve or deny an application for a
new permit by the date that is 270 days after
the date of receipt of a substantially complete
application for the new permit, the applicant
may discharge as if the application were
approved in accordance with Federal law for the
period of time for which a similar permit would
be approved.
(C) Substantial completeness.--In determining
whether an application for a new permit or a
renewed permit received under this paragraph is
substantially complete, the permitting
authority shall use standards for determining
substantial completeness of similar permits for
similar facilities submitted in fiscal year
2007.
* * * * * * *
permits for dredged or fill material
Sec. 404. [(a) The Secretary may issue] (a) Permits._
(1) In general._The Secretary may issue permits,
after notice and opportunity for public hearings for
the discharge of dredged or fill material into the
navigable waters at specified disposal sites. Not later
than the fifteenth day after the date an applicant
submits all the information required to complete an
application for a permit under this subsection, the
Secretary shall publish the notice required by this
subsection.
(2) Deadline for approval.--
(A) Permit applications.--
(i) In general.--Except as provided
in clause (ii), if an environmental
assessment or environmental impact
statement, as appropriate, is required
under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.),
the Secretary shall--
(I) ensure that the
environmental review process
begins not later than 90 days
after the date on which the
Secretary receives a permit
application; and
(II) approve or deny an
application for a permit under
this subsection not later
than--
(aa) if an agency
carries out an
environmental
assessment that leads
to a finding of no
significant impact, the
date on which the
finding of no
significant impact is
issued; or
(bb) if an agency
carries out an
environmental
assessment that leads
to a record of
decision, 15 days after
the date on which the
record of decision on
the environmental
impact statement is
issued.
(ii) Processes.--Notwithstanding
clause (i), regardless of whether the
Secretary has commenced an
environmental assessment or
environmental impact statement by the
date described in clause (i)(I), the
following deadlines shall apply:
(I) An environmental
assessment carried out under
the National Environmental
Policy Act of 1969 (42 U.S.C.
4321 et seq.) shall be
completed not later than 1 year
after the deadline for
commencing the environmental
review process under clause
(i)(I).
(II) An environmental impact
statement carried out under the
National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et
seq.) shall be completed not
later than 2 years after the
deadline for commencing the
environmental review process
under clause (i)(I).
(B) Failure to act.--If the Secretary fails
to act by the deadline specified in clause (i)
or (ii) of subparagraph (A)--
(i) the application, and the permit
requested in the application, shall be
considered to be approved;
(ii) the Secretary shall issue a
permit to the applicant; and
(iii) the permit shall not be subject
to judicial review.
* * * * * * *
(c)(1) The Administrator is authorized to prohibit the
specification (including the withdrawal of specification) of
any defined area as a disposal site, and he is authorized to
deny or restrict the use of any defined area for specification
(including the withdrawal of specification) as a disposal site,
whenever he determines, after notice and opportunity for public
hearings, that the discharge of such materials into such area
will have an unacceptable adverse effect on municipal water
supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas. Before
making such determination, the Administrator shall consult with
the Secretary. The Administrator shall set forth in writing and
make public his findings and his reasons for making any
determination under this subsection.
(2) Paragraph (1) shall not apply to any permit if the State
in which the discharge originates or will originate does not
concur with the Administrator's determination that the
discharge will result in an unacceptable adverse effect as
described in paragraph (1).
* * * * * * *
(g)(1) The Governor of any State desiring to administer its
own individual and general permit program [for the discharge]
for some or all of the discharges of dredged or fill material
into the navigable waters (other than those waters which are
presently used, or are susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce shoreward to their ordinary high
water mark, including all waters which are subject to the ebb
and flow of the tide shoreward to their mean high water mark,
or mean higher high water mark on the west coast, including
wetlands adjacent thereto) within its jurisdiction may submit
to the Administrator a full and complete description of the
program it proposes to establish and administer under State law
or under an interstate compact. In addition, such State shall
submit a statement from the attorney general (or the attorney
for those State agencies which have independent legal counsel),
or from the chief legal officer in the case of an interstate
agency, that the laws of such State, or the interstate compact,
as the case may be, provide adequate authority to carry out the
described program.
* * * * * * *
(m) Not later than the [ninetieth day] 30th day (or the 60th
day if additional time is requested) after the date on which
the Secretary notifies the Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife
Service that (1) an application for a permit under subsection
(a) of this section has been received by the Secretary, or (2)
the Secretary proposes to issue a general permit under
subsection (e) of this section, the Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, shall submit any comments with respect to
such application or such proposed general permit in writing to
the Secretary.
* * * * * * *
(q)(1) Not later than the one-hundred-eightieth day after the
date of enactment of this subsection, the Secretary shall enter
into agreements with the Administrator, the Secretaries of the
Departments of Agriculture, Commerce, Interior, and
Transportation, and the heads of other appropriate Federal
agencies to minimize, to the maximum extent practicable,
duplication, needless paperwork, and delays in the issuance of
permits under this section. Such agreements shall be developed
to assure that, to the maximum extent practicable, a decision
with respect to an application for a permit under subsection
(a) of this section will be made not later than the ninetieth
day after the date the notice of such application is published
under subsection (a) of this section.
(2) The Administrator and the head of a department or agency
referred to in paragraph (1) shall each submit any comments
with respect to an application for a permit under subsection
(a) or (e) not later than the 30th day (or the 60th day if
additional time is requested) after the date of receipt of an
application for a permit under that subsection.
* * * * * * *
TITLE V--GENERAL PROVISIONS
* * * * * * *
general definitions
Sec. 502. Except as otherwise specifically provided, when
used in this Act:
(1) * * *
* * * * * * *
(27) Fill material.--
(A) In general.--The term ``fill material''
means any material placed in waters of the
United States where the material has the effect
of--
(i) replacing any portion of a water
of the United States with dry land; or
(ii) changing the bottom elevation of
any portion of a water of the United
States.
(B) Inclusions.--The term ``fill material''
includes--
(i) rock;
(ii) sand;
(iii) soil;
(iv) clay;
(v) plastics;
(vi) construction debris;
(vii) wood chips;
(viii) overburden from mining or
other excavation activities; and
(ix) materials used to create any
structure or infrastructure in the
waters of the United States.
(C) Exclusions.--The term ``fill material''
does not apply to trash or garbage.
* * * * * * *
DISSENTING VIEWS
In my view, consideration of H.R. 5077 is ill timed given
the legislation's far-reaching implications for public health
and water quality. As a nation, we are witnessing a noticeable
and disturbing stagnation in our progress to restore and
protect our Nation's waters and wetlands.
As I have commented at several hearings this Congress,
there is a growing body of evidence that, in the last decade or
so, this nation has stopped making progress in improving the
overall quality of its waters.
For example, if you review the last three State assessments
of water quality (Clean Water Act 305(b) lists)--covering the
years from 2008 through 2012--the results should be alarming.
For rivers and streams, State assessments show a steady
decline in water quality--from 50 percent of assessed rivers
and streams not meeting their state water quality standards in
2008 to 52 percent of these waters not meeting state water
quality standards, today.
Similarly for lakes and reservoirs, in 2008, State
assessments showed that 64 percent of these waters failed to
meet state water quality standards. Today, 68 percent of
assessed lakes and reservoirs fail to meet these standards.
Finally, in 2008, State data shows that 45 percent of
assessed coastal shoreline miles failed to meet state water
quality standards; today, a shocking 86 percent of assessed
coastal shoreline miles fail to meet state standards.
These trends are also reflected in the Environmental
Protection Agency's (EPA) recent wadeable streams assessments.
For example, in 2006, EPA noted that, nationally, 41.9 percent
of nation's wadeable streams were given a ``poor'' rating for
biological condition, while only 28.2 percent were given a
``good'' assessment. In 2013, EPA's follow-up report noted that
55.3 percent of the nation's wadeable streams have a ``poor''
rating, but only 20.7 percent have a ``good'' rating.
This information suggests that we are starting to move in
the wrong direction in improving the quality of our nation's
water resources. Yet, the reality is that any significant
additional improvements in water quality will be more
complicated, more expensive, and more politically challenging.
I have also repeatedly commented on a second trend in this
nation's overall efforts to protect our waters--and one that
focuses back on the Congress. Over the past few years, under
the leadership of the Republican Congress, this body as has
stopped making significant Federal investments in improving our
nation's water quality.
For example, only 4 years ago, Congress appropriated over
$6 billion to the Clean Water State Revolving Fund (SRF) to
finance the cost of necessary wastewater infrastructure--$2.1
billion through the regular appropriations process, and an
additional $4 billion through the Recovery Act. Since that
time, annual appropriations for the Clean Water SRF have been
declining--from an appropriation of $1.5 billion in fiscal year
2011 to a recommendation of $1 billion in the Chairman's Mark
of the Interior and Environment appropriations bill for fiscal
year 2015.
Not surprising, as Federal investments in water quality
improvements decrease, we hear more-and-more concern about the
rise in ``unfunded Federal mandates'' or ``Federal regulatory
overreach''.
To be clear, I do not share the view that the recent
actions of EPA or the U.S. Army Corps of Engineers (Corps) are
the result of ``overzealous'' Federal agencies. In my view,
these Federal agencies are simply doing the job we--the
Congress--told them to do over 40 years ago--``to restore and
maintain the chemical, physical and biological integrity of the
Nation's waters.''
EPA and the State regulatory agencies see the same trend
lines in declining water quality that I mentioned earlier, and
are trying to do something about them.
However, in carrying out the job we gave them, they are
exposing how, again, continued improvement in restoring and
protecting water quality will be more complicated, more
expensive, and more politically challenging.
Yet, rather than take on these hard questions of why
progress in improving water quality has seemingly stopped, we
are asked to vote on legislation that will, at best, continue
this trend, or, at worst, will actually worsen this situation.
In my view, it is unfortunate that the Members of the
Transportation and Infrastructure Committee were asked to vote
on this legislation before the implications of H.R. 5077 have
been thoroughly explored, vetted, and debated. While it is true
that the Committee and the Subcommittee on Water Resources and
Environment have held oversight hearings related to the surface
mining policies and nutrient reduction activities of the past
few years, the Committee has failed to even remotely examine
the possible implications of H.R. 5077 with the EPA, the Corps,
the State-regulatory agencies, or stakeholders at large.
Instead, we have been compelled to vote on a package of
fundamental changes to the Clean Water Act without a common
understanding of what these changes would accomplish, whether
these changes would address the stakeholder concerns raised
before this Committee, or whether these changes are even
supported by the State agencies they are suggested to benefit.
Prior to consideration of this bill, I asked EPA for a
technical review of the legislation, which I am enclosing as
part of these dissenting views. Yet, to sum up this review,
enactment of H.R. 5077 would represent a giant step backward in
our 40-plus-year efforts to protect water quality. As noted in
its review of similar legislation (H.R. 2018) from the 112th
Congress, the potential adverse effects of this legislation
would ``overturn almost 40 years of Federal legislation by
preventing EPA from protecting public health and water
quality.''
During consideration of H.R. 5077, I offered an amendment
which highlighted one of the fundamental flaws I see in this
legislation--which is the fact that H.R. 5077 would place
downstream states at the mercy of their upstream neighbors in
protecting the quality of their own waters.
As our nation's history in protecting water quality has
shown, relying solely on the States to protect the nation's
water quality simply does not work. From the enactment of the
first Federal Water Pollution Control Act in 1948 through the
late 1960s, States were given the primacy in establishing the
level of appropriate level of protection for their own waters.
At that time, there was no minimum Federal standard for
protecting water quality, and the Federal government could only
participate in protecting water quality when requested by the
States.
Unfortunately, that Federal-State relationship failed to
ensure uniform levels of water quality protection among the
States, and contributed to the cataclysmic water pollution
events of the time, including the burning of the Cuyahoga
River. Enactment of the 1972 Clean Water Act reversed this
trend by establishing Federal minimum standards for protecting
water quality, but allowing states to enact more stringent
protections to protect local water quality.
Unfortunately, H.R. 5077, as amended, would restore many of
the failed water pollution control policies that existed prior
to the Clean Water Act, and would significantly curtail the
ability of EPA to protect the nation's waters from pollution.
Yet, if pollution is allowed to increase due to the competing
interests of states, this pollution needs to go somewhere and--
since pollution does not respect state boundaries--when it
travels downstream, it will have an adverse impact on the
quality of life and the quality of the environment of those
downstream states.
While my amendment failed by vote of 23-29, it highlighted
that the end result of enactment of H.R. 5077 will be that
downstream states will become responsible for treating the
pollution of their upstream neighbors--which, at a minimum,
will increase the compliance costs of downstream states, and at
a maximum, may destroy the ecological or economic health of
these states.
My district in New York is separated from Connecticut by
the Long Island Sound. Over time, the number of polluters in
the area as increased exponentially, killing fish, lobsters,
and imperiling the $5 billion of economic output that the
region depends upon. Fortunately, the states decided that the
Sound was impaired, and proposed a more restrictive water
quality standard for nitrogen--a $5 billion bullet dodged.
Had Connecticut, for example, decided against the revised
standard, despite all scientific evidence for doing so, under
the current Clean Water Act, EPA could step in and require the
stricter standard. Under H.R. 5077, EPA would be stripped of
that authority and polluters in Connecticut could continue to
discharge excessive amounts of nitrogen into the Sound, leaving
my constituents in the State of New York without any recourse
under the Clean Water Act to stop them.
If this bill were to be enacted, individual states would
decide that collective efforts to address the water quality
impairments of the Chesapeake Bay, the Puget Sound, the Great
Lakes, or the Gulf of Mexico were unnecessarily restrictive or
burdensome, and refuse to participate in a meaningful way
towards restoration of these regional waterbodies. This go-it-
alone approach flies in the face of science, of common sense,
and decades of experience in implementing the Clean Water Act.
Let me close by saying that I am sympathetic to all that
states and local communities are compelled to accomplish with
limited funding. However, I am not convinced that our nation
has thrown up the white flag on making further improvements in
water quality. We should not be satisfied that, as some have
suggested, our waters are as clean as they can ever be. We must
continue to make progress in achieving the goals we established
over four decades ago, and we, the Congress, must be willing to
put resources on the table for states and localities to
accomplish this task.
Earlier this summer, the President signed into law the
Water Resources Reform and Development Act (P.L. 113-121) which
includes the first reauthorization of the Clean Water SRF ever.
This new law will provide additional financial flexibilities to
States and to communities to make the cost of building water
infrastructure more affordable.
Enactment of WRRDA was a tremendous first step, and one
that we should take pride in discussing; however, it is only
the first step. Now, we must follow-through on providing the
Federal resources necessary to partner with our States and our
communities to get this job done.
If we remain committed to the goals of fishable and
swimmable waters, then we must be willing to commit to
providing a portion of the funds to do so.
Investing in our water infrastructure network, like many of
the things we do in this Committee, is an investment in our
nation's future. Let us not short-change the public,
environmental, and economic health of generations to come by
failing meet this commitment, or by enacting legislation that
will only set-back the progress this nation has thus far made,
such as H.R. 5077.
In my view, H.R. 5077 will have far-reaching and
significant adverse impacts on our nation's clean water. For
this reason, I oppose this bill.
Tim Bishop.
This technical assistance should not be construed in any
way as representing the policy positions of the Agency or the
Administration on this bill.
KEY ISSUES REGARDING THE ``COAL JOBS PROTECTION ACT'' (H.R. ----) (REP.
CAPITO)
Section 2: National Pollutant Discharge Elimination System (NPDES)
Reduces clarity, predictability, and consistency
for industry, state and local governments, NGOs, and the public
regarding implementation of state NPDES programs.
Removes certain local community pollution
protections for human and ecosystem health, including fishing,
swimming, and drinking water systems.
Weakens existing protections that assure water
quality and even basic stream uses are maintained such as
fishing, swimming, and recreation.
Eliminates existing provisions of law intended to
protect waters that flow from one state into another.
Downstream states lose their current ability to prevent waste
from being dumped upstream that may violate downstream water
quality standards.
Section 3: Permits for Dredged or Fill Material
Establishes new unrealistic deadlines for meeting
the requirements of the CWA and NEPA and creating automatic
permit approvals, even when the law is not met.
Weakens existing environmental requirements that
assure water quality and public health are protected.
Reduces opportunities for public and interagency
participation in the Section 404 permitting process.
Creates incentives for Corps to deny permits
because deadlines eliminate opportunities to find solutions.
Weakens critical federal authorities under CWA
Section 404(c) to ensure proposed projects do not harm public
water supplies, fishery and wildlife areas, and recreational
waters.
Increases ambiguity and uncertainty in the rules
states must meet to take over the section 404 permit program.
Section 4: Impacts of EPA Regulatory Authority on Employment and
Economic Activity
Would require a constrained and burdensome
economic analysis of virtually all EPA actions.
Analysis could not consider benefits to public
health and the environment; could only consider costs.
Section 5: State Authority to Identify Waters Within Its Boundaries
Undermines current efforts to provide national
consistency in restoring and protecting the nation's waters,
particularly with interstate waters.
Creates opportunities for wastes to be dumped at
state borders by eliminating downstream state and federal
authorities to protect shared waters.
Section 6: Definition of Fill Material
Would codify the agencies' existing definition of
``fill material,''
Likely Amendment: Limitations on Authority to Modify State Water
Quality Standards (WQSs)
Contributes to huge variations nationwide in the
level of protections provided to America's waters. Water
quality would reflect the weakest link of environmental
protections.
Establishes unrealistic deadlines for approving
state impaired waters lists undercutting the role of science
and opportunities for states and federal agencies to work
together to find solutions.
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