S. 1140 – Federal Water Quality Protection Act

Overview of the Issue

The Clean Water Act protects “navigable waters,” a term defined in the act to mean “waters of the United States.” The act gave the Environmental Protection Agency and the Army Corps of Engineers authority to define the term “waters of the U.S.” through regulation. The EPA and the Corps have done so several times, most recently in 1986 (Corps) and 1993 (EPA).

In 2001 and 2006, the Supreme Court issued rulings interpreting the scope of Clean Water Act jurisdiction more narrowly. These rulings created uncertainty about the appropriate scope of waters that are protected by the act. In 2003 and 2008, the EPA and the Corps issued non-binding guidance that sought to identify categories of waters that remain jurisdictional, categories that are not jurisdictional, and categories that require a case-specific analysis to determine whether jurisdiction applies. In 2011, the Obama administration proposed revised guidance that was never finalized. This proposed revised guidance did not resolve all interpretative questions and expanded federal jurisdiction under the Clean Water Act. Many stakeholders requested a formal rulemaking. On May 14, 2013, 52 Senators, including 8 Democrats, voted to block the guidance.  

On June 29, the Environmental Protection Agency and the Army Corps of Engineers jointly published a final rule defining the scope of waters protected under the Clean Water Act. The final rule faced criticism for failing to provide needed clarity and for including expansive definitions that make virtually any water in the country jurisdictional.

Nearly 90 plaintiffs have filed lawsuits regarding the legality of the rule, including 31 state governments, farm organizations, energy producers, and manufacturing groups. In August, the U.S. District Court for North Dakota issued a preliminary injunction against the rule in 13 states. In October, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the rule pending further judicial proceedings.

Considerations on the Bill

The final “waters of the U.S.” rule extends federal jurisdiction under the Clean Water Act to irrigation ditches, isolated ponds, prairie potholes, and other non-navigable waters. If implemented, it would force farmers, ranchers, families, home builders, manufacturers, state and local governments, small businesses, and other property owners to seek permission from the federal government before beginning any activity remotely related to water.

Critics argue that the rulemaking process was flawed because the administration failed to conduct outreach to state and local governments; failed to adequately examine effects on small governmental entities and on small businesses; pre-coordinated a flood of public comments favorable to the rule; and even failed to properly consider technical, scientific, and legal objections by the Corps itself. Critics also argue that the final rule expands federal Clean Water Act jurisdiction even beyond what was provided in the proposed rule and has more to do with controlling land-use decisions than ensuring access to clean water.

The Federal Water Quality Protection Act directs the EPA and the Corps to issue a revised rule that protects traditional navigable water and wetlands from water pollution, while also protecting Americans’ right to enjoy and use their own property. It establishes specific guidelines that the revised rule must follow, and requires specific analyses that the EPA and the Corps must conduct.

The bill does not just block the final rule, it requires promulgation of a new rule. This provides Americans with a pathway to resolving ongoing uncertainty over the definition of “waters of the U.S.” and the jurisdiction of the Clean Water Act. The bill sets statutory parameters for the revised rule. This gives Americans, through their representatives in Congress, a more powerful voice in the rulemaking process that cannot be ignored by EPA and the Corps.

The bill simultaneously rejects the final rule’s expansion of federal jurisdiction under the Clean Water Act and limits it in the revised rule. This would help achieve a policy outcome that a strong, bipartisan group of 59 Senators voted for on March 25 with a non-binding budget amendment.    

Notable Bill Provisions

Section 4 – Revised definition; principles and process

Establishes that a revision to or guidance on a regulatory definition of the term “navigable waters” or “waters of the United States” promulgated or issued pursuant to the Clean Water Act after February 4, 2015, shall have no force or effect unless the revision adheres to specified principles and until the EPA and the Army Corps of Engineers carry out specified actions.

Requires that the revised regulatory definition adhere to the following principles:

• The Clean Water Act is an act to protect traditional navigable waters from water pollution;
• The term “waters of the U.S.” should identify bodies of water subject to federal jurisdiction, including: traditional navigable waters and interstate waterways; certain streams that are potential sources of drinking water; certain streams capable of carrying pollutants to navigable waters; certain wetlands that protect water quality by preventing transmission of pollutants to navigable waters.
• The term “waters of the U.S.” should not include: water located below the surface of land, including soil water and groundwater; water not located within a body of water (like a river, stream, lake, pond, or wetland, including channels with no bed, bank, or ordinary high water mark or surface hydrologic connection to traditional navigable waters); isolated ponds; storm water and floodwater management systems; wastewater management systems; municipal and industrial water supply management systems; agricultural and silvicultural water management systems; streams incapable of carrying pollutants to navigable waters; prior converted cropland; water that is no longer a water of the U.S. pursuant to a permit issued under the Rivers and Harbors Appropriation Act of 1899 or section 404 of the Clean Water Act.
• In promulgating a revised definition of “waters of the U.S.,” EPA and the Corps should take into consideration that the following do not provide a basis for establishing federal jurisdiction under the Clean Water Act: the use of a body of water by an organism, including a migratory bird; the supply of water to a groundwater aquifer and the storage of water in an isolated body of water; parts of the water cycle, including evaporation, transpiration, condensation, precipitation, the overland flow of water, and the movement of water in an aquifer.
• EPA and the Corps should identify waters that are waters of the U.S. on maps to promote certainty and transparency in jurisdictional determinations.

Requires that the EPA and the Corps carry out the following actions when promulgating the revised regulatory definition:

• Ensure compliance with federalism policymaking criteria and consultation in accordance with Executive Order 13132, regardless of whether EPA and the Corps determine that the regulation would have any substantial and direct effect on states; the relationship between the federal government and the states; or the distribution of power and responsibilities among the various levels of government.
• Conduct economic analyses under the Regulatory Flexibility Act and small business and small governmental entity review under the Small Business Regulatory Enforcement Fairness Act, regardless of whether EPA and the Corps determine that the regulation would have a significant impact on a substantial number of small entities.
• Evaluate the intergovernmental and private sector impacts of the regulation, in accordance with title II of the Unfunded Mandates Reform Act of 1995.
• Ensure compliance with Executive Orders 12866 and 13563 on improving regulation, regardless of whether EPA and the Corps consider the regulation to be a significant regulatory action or significantly affect state, local, and tribal governments.
• Consider Executive Order 13604 on improving federal permitting and review of infrastructure projects with the goal of reducing the time to make decisions in the permitting and review of infrastructure projects by the federal government.

Requires a report to Congress describing the means by which the proposed regulation, if finalized, would achieve compliance with the required actions.

Section 6 – Report to Congress

Requires a report to Congress at least once every three years by the comptroller general, after consultation with state, local, and tribal governments and other affected entities. The report must: review the jurisdictional determinations made during the applicable period by the EPA and the Corps; describe the interpretations of the regulation by the Corps districts and EPA regional offices; describe whether those interpretations are consistent; describe measures carried out by the EPA and the Corps to reduce or explain inconsistencies; and describe the impacts of those interpretations on federal permitting and review of infrastructure projects.  

Administration Position

The administration has not issued a Statement of Administration Policy at this time.

Cost

CBO estimates that S. 1140 would cost $5 million over the 2016 through 2020 period, subject to the availability of appropriations, to develop a new proposed rule.

Amendments

The amendment situation is unclear at this time.