[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.

                                  [all]
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