S.Amdt. 2348

1. Adds TITLE LXII--FEDERAL WATER QUALITY PROTECTION ACT at the end of division F

   Adds a title

   Inserted: TITLE LXII--FEDERAL WATER QUALITY PROTECTION ACT

   Inserted: SEC. 62001. SHORT TITLE.

   Inserted: This title may be cited as the "Federal Water Quality Protection Act".

   Inserted: SEC. 62002. DEFINITIONS.

   Inserted: In this title:

   Inserted: (1) Administrator.--The term "Administrator" means the Administrator of the Environmental Protection Agency.

   Inserted: (2) Body of water.--The term "body of water" means a traditional navigable water, territorial sea, river, stream, lake, pond, or wetlands.

   Inserted: (3) Interstate waters.--The term "interstate waters" means the water described in section 328.3(a)(2) of title 33, Code of Federal Regulations (as in effect on the day before the date of enactment of this Act).

   Inserted: (4) Isolated.--The term "isolated", with respect to a body of water, means the absence of a surface hydrologic connection to a traditional navigable water.

   Inserted: (5) Lawfully constructed and operated water management system.--

   Inserted: (A) In general.--The term "lawfully constructed and operated water management system" means a system that was built or operated outside of water that meets the definition of the term "waters of the United States" or, if constructed and operated in such water, the system--

   Inserted: (i) is authorized by a permit issued under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344);

   Show 109 more inserted paragraphsShow less

   Inserted: (ii) was constructed or operated before the effective date of initial regulations implementing section 404 of that Act (33 U.S.C. 1344);

   Inserted: (iii) was constructed or operated under an exemption from permitting described in subparagraph (A) or (C) of section 404(f)(1) of that Act (33 U.S.C. 1344(f)(1));

   Inserted: (iv) is a system that manages only irrigation return flow that is exempt from permitting under section 402(l)(1) of that Act (33 U.S.C. 1342(l)(1)); or

   Inserted: (v) is a system that manages only agricultural stormwater or return flows from irrigated agriculture exempt from permitting under section 502(14) of that Act (33 U.S.C. 1362(14)).

   Inserted: (B) Inclusions.--The term "lawfully constructed and operated" includes a system described in subparagraph (A) that is--

   Inserted: (i) a ditch that collects water from roads, runways, parking lots, agricultural fields, forests, and other land or infrastructure;

   Inserted: (ii) an irrigation water ditch or canal;

   Inserted: (iii) a stormwater system;

   Inserted: (iv) a flood water system;

   Inserted: (v) a wastewater system;

   Inserted: (vi) a water supply system;

   Inserted: (vii) a spreading basin for aquifer storage and recovery or aquifer recharge;

   Inserted: (viii) an irrigated field;

   Inserted: (ix) a cranberry growing field; or

   Inserted: (x) a rice production field.

   Inserted: (6) Normal year.--The term "normal year" means--

   Inserted: (A) the 30-year hydrologic normal, as that term is used by the Natural Resources Conservation Service of the Department of Agriculture, based on data from a specific geographic area; or

   Inserted: (B) if less than 30 years of data described in subparagraph (A) are available, the average of the observed monthly data from a specific geographic area over the period of record.

   Inserted: (7) Public notice and an opportunity for comment.--

   Inserted: (A) In general.--The term "public notice and an opportunity for comment" means notice and opportunity for comment that meets the requirements of subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the "Administrative Procedure Act").

   Inserted: (B) Inclusion.--The term "public notice and an opportunity for comment" includes the opportunity for public hearings in different geographic regions with different hydrology, including separate meetings in the arid West.

   Inserted: (8) Secretary.--The term "Secretary" means the Secretary of the Army.

   Inserted: (9) Stream.--The term "stream" means a natural channel formed by the flow of water that has a bed, bank, and ordinary high water mark (as defined in section 328.3(e) of title 33, Code of Federal Regulations (as in effect on the date of enactment of this Act)).

   Inserted: (10) Surface hydrologic connection.--

   Inserted: (A) In general.--The term "surface hydrologic connection" means a continuous surface connection through which water moves within a body of water or from 1 body of water to another.

   Inserted: (B) Exclusion.--The term "surface hydrologic connection" does not include--

   Inserted: (i) overland flow of water outside a body of water (including sheetflow); or

   Inserted: (ii) the movement of water through soil, permafrost, subsurface tiles, or a groundwater aquifer.

   Inserted: (C) Determination of continuousness.--For purposes of this paragraph, a surface hydrologic connection shall be considered to be continuous if the connection is continuous, regardless of whether--

   Inserted: (i) water is not always present; and

   Inserted: (ii) there is a break in the ordinary high water mark of a stream that is unrelated to the flow regime of the stream, including a break caused by a culvert, pipe, dam, or by the flow of the stream underground for a short distance, such as through a cave.

   Inserted: (11) Traditional navigable water.--The term "traditional navigable water" means the water described in section 328.3(a)(1) of title 33, Code of Federal Regulations (as in effect on the date of enactment of this Act).

   Inserted: (12) Wetlands.--The term "wetlands" has the meaning given the term in section 328.3(b) of title 33, Code of Federal Regulations (as in effect on the date of enactment of this Act).

   Inserted: SEC. 62003. REVISED DEFINITION; PRINCIPLES AND PROCESS.

   Inserted: (a) Revised Definition.--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 Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) after February 4, 2015, shall have no force or effect--

   Inserted: (1) unless the revision adheres to the principles under subsection (b); and

   Inserted: (2) until after the Secretary and the Administrator carry out each action described in subsection (c).

   Inserted: (b) Principles.--In promulgating a revised regulatory definition pursuant to this subsection, the Secretary and the Administrator shall adhere to the following principles:

   Inserted: (1) The term "waters of the United States" under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) should identify bodies of water subject to Federal jurisdiction, and should include--

   Inserted: (A) traditional navigable waters and interstate waters;

   Inserted: (B) tributaries of navigable waters that are streams that contribute flow in a normal year through a surface hydrologic connection to a traditional navigable water of sufficient volume, duration, and frequency that pollutants in the reach of the tributary would degrade the water quality of the traditional navigable water, based on quantifiable and statistically valid measure of flow for the geographic area; and

   Inserted: (C) wetlands situated next to a water of the United States that, in a normal year, protect the water quality of a navigable water by preventing the movement of pollutants to a navigable water.

   Inserted: (2) The term "waters of the United States" under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) should not include--

   Inserted: (A) water that is located below the surface of the land, including soil water, permafrost, and groundwater;

   Inserted: (B) water that is not located within navigable water, interstate water, a territorial sea, a river, a stream, a lake, a pond, or a wetland;

   Inserted: (C) a stream that does not contribute flow to navigable water, as described in paragraph (1)(B);

   Inserted: (D) an isolated pond, whether natural or manmade, including a farm pond, fish pond, livestock watering pond, quarry, mine pit, ornamental pond, swimming pool, construction pit, fire control pond, sediment pond, manure lagoon, and any other isolated facility or system that holds water;

   Inserted: (E) a lawfully constructed and operated water management system, other than a system component that is a traditional navigable water;

   Inserted: (F) waste treatment systems; and

   Inserted: (G) prior-converted cropland (as defined in section 12.2(a) of title 7, Code of Federal Regulations (as in effect on the date of enactment of this Act)).

   Inserted: (3) In promulgating a revised definition of waters of the United States, the Secretary and the Administrator shall take into consideration that--

   Inserted: (A) the use of a body of water by an organism, including a migratory bird, does not provide a basis for establishing Federal jurisdiction under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);

   Inserted: (B) the dispersal of plant seeds and insect eggs through ingestion and excretion by birds and mammals does not provide a basis for establishing Federal jurisdiction under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);

   Inserted: (C) the supply of water to a groundwater aquifer and the storage of water in an isolated body of water are issues that--

   Inserted: (i) pertain to the use of water resources that shall not be superseded, abrogated, or otherwise impaired by the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) pursuant to sections 101(g) and 510(2) of that Act (33 U.S.C. 1251(g), 1370(2)); and

   Inserted: (ii) do not provide a basis for establishing Federal jurisdiction under that Act (33 U.S.C. 1251 et seq.); and

   Inserted: (D) evaporation, transpiration, condensation, precipitation, the overland flow of water, and the movement of water in an aquifer are all part of the water cycle and may connect all water over sufficiently long periods of time and distances, but do not provide a basis for establishing Federal jurisdiction under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

   Inserted: (4) Waters that are waters of the United States should be identified on maps provided by the Secretary and the Administrator to promote certainty and transparency in jurisdictional determinations.

   Inserted: (c) Consideration, Consultation, and Report.--

   Inserted: (1) Federalism.--

   Inserted: (A) In general.--In proposing and promulgating a regulation pursuant to subsection (a), the Secretary and the Administrator shall ensure compliance with the federalism policymaking criteria and consultation in accordance with Executive Order 13132 (64 Fed. Reg. 43255 (August 4, 1999)), regardless of whether the Secretary and the Administrator determine that the regulation would have any substantial and direct effect on--

   Inserted: (i) States;

   Inserted: (ii) the relationship between the Federal Government and the States; or

   Inserted: (iii) the distribution of power and responsibilities among the various levels of government.

   Inserted: (B) Consultation.--

   Inserted: (i) In general.--To be considered meaningful consultation described in section 101(b) of the Federal Water Pollution Control Act (33 U.S.C. 1251(b)), before publication of a proposed rule under this section, consultation shall include a discussion of alternative approaches with and a request for input and advice on the approaches from States and political subdivisions of States, including--

   Inserted: (I) Governors;

   Inserted: (II) State departments with authority over water supply and water quality;

   Inserted: (III) State departments of agriculture; and

   Inserted: (IV) local governments, including elected officials, local governmental entities with authority over water supply, stormwater, waste water, floodplain management, and flood control, irrigation districts, and conservation districts.

   Inserted: (ii) Topics.--The topics to be addressed in the consultation under this paragraph should include--

   Inserted: (I) categories of waters, in addition to those discussed in paragraphs (2) and (3) of subsection (b), that should be subject to Federal jurisdiction or should be subject solely to State or local regulation;

   Inserted: (II) what is the role of States in the identification of waters subject to Federal jurisdiction; and

   Inserted: (III) whether channels in which water is present only during or for a short time after a precipitation event are correctly categorized as geomorphological features rather than hydrologic features.

   Inserted: (2) Regulatory flexibility.--In proposing and promulgating a regulation pursuant to subsection (a), and regardless of whether the Secretary and the Administrator determine that the regulation would have a significant impact on a substantial number of small entities, the Secretary and the Administrator shall--

   Inserted: (A) carry out the actions described in sections 603, 604, and 609 of title 5, United States Code; and

   Inserted: (B) in carrying out those actions, take into consideration the costs of all programs under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), regardless of whether the Secretary and the Administrator consider the costs of the proposed regulation to be direct or indirect.

   Inserted: (3) Unfunded mandates.--In proposing and promulgating a regulation pursuant to subsection (a), the Secretary and the Administrator shall evaluate the intergovernmental and private sector impacts of the regulation, in accordance with title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.), regardless of whether the Secretary and the Administrator--

   Inserted: (A) consider the impacts of the proposed regulation to be direct or indirect; or

   Inserted: (B) determine that expenditures resulting from the proposed regulation would meet the monetary thresholds established in that Act (2 U.S.C. 1501 et seq.).

   Inserted: (4) Improving regulation and regulatory review.--In proposing and promulgating a regulation pursuant to subsection (a), regardless of whether the Secretary and the Administrator consider the regulation to be a significant regulatory action or significantly affect State, local, and tribal governments, the Secretary and the Administrator shall ensure that the regulation meets the requirements of--

   Inserted: (A) Executive Order 12866 (5 U.S.C. 601 note; relating to regulatory planning and review); and

   Inserted: (B) Executive Order 13563 (76 Fed. Reg. 3821 (January 18, 2011)).

   Inserted: (5) Improving performance of federal permitting and review of infrastructure projects.--In proposing and promulgating a regulation pursuant to subsection (a), the Secretary and the Administrator shall consider--

   Inserted: (A) Executive Order 13604 (5 U.S.C. 601 note; relating to improving performance of Federal permitting and review of infrastructure projects); and

   Inserted: (B) the goal of reducing the time to make decisions in the permitting and review of infrastructure projects by the Federal Government.

   Inserted: (6) Report.--Not later than the date that is 30 days before the date of issuance of a proposed regulation pursuant to subsection (a), the Secretary and the Administrator shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that describes the means by which the proposed regulation, if finalized, would achieve compliance with the laws and Executive orders described in paragraphs (1) through (5).

   Inserted: (7) Timing.--In carrying out this section, the Secretary and the Administrator shall use best efforts--

   Inserted: (A) to provide not less than 180 days for the consultation described in paragraph (2);

   Inserted: (B) to provide a comment period on the revised proposed rule of not less than 120 days; and

   Inserted: (C) to publish a final rule not later than December 31, 2016.

   Inserted: SEC. 62004. MEASURE OF FLOW.

   Inserted: After providing public notice and an opportunity for comment, the Secretary shall establish quantifiable and statistically valid measures of the volume, duration, and frequency of flow in streams in different geographic areas that would, in a normal year, allow pollutants in reaches of streams in those geographic areas to flow to and degrade the water quality of a traditional navigable water.

   Inserted: SEC. 62005. REPORT TO CONGRESS.

   Inserted: Not later than the date that is 3 years after the date of promulgation of a regulation pursuant to section 620003, and not less frequently than once every 3 years thereafter, the Comptroller General of the United States, after consultation with State, local, and tribal governments and other affected entities, shall--

   Inserted: (1) review the jurisdictional determinations made during the applicable period by the Secretary and the Administrator; and

   Inserted: (2) submit to Congress a report that describes--

   Inserted: (A) the interpretations of the regulation by--

   Inserted: (i) districts of the Corps of Engineers; and

   Inserted: (ii) regional offices of the Environmental Protection Agency;

   Inserted: (B) whether those interpretations are consistent;

   Inserted: (C) if any inconsistency exists, the measures carried out by the Secretary and the Administrator to reduce the inconsistency or an explanation of the geographic differences that make the inconsistency appropriate; and

   Inserted: (D) the impacts of those interpretations on Federal permitting and review of infrastructure projects, and the goal stated in section 1 of Executive Order 13604 (5 U.S.C. 601 note; relating to improving performance of Federal permitting and review of infrastructure projects) that the time to make decisions in the permitting and review of infrastructure projects by the Federal Government be reduced.

   Inserted: SEC. 62006. EFFECT OF TITLE.

   Inserted: (a) Permitting Authority.--Nothing in this title limits the authority of the Secretary or the Administrator--

   Inserted: (1) to require a permit for any discharge of pollutants to a navigable water under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); or

   Inserted: (2) to take any enforcement action with respect to an unpermitted discharge under that Act.

   Inserted: (b) Water Transfers.--Nothing in this title affects a determination regarding whether the transfer of water from 1 body of water to another requires a permit under section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342).

   Inserted: (c) Retention of State Authority.--Nothing in this title places any limitation on the scope of water subject to State jurisdiction under State law.

   Original wording

   At the end of division F, add the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed