H.R. 5078

Waters of the United States Regulatory Overreach Protection Act of 2014

Date
September 9, 2014 (113th Congress, 2nd Session)

Staff Contact
David Smentek

Floor Situation

On Tuesday, September 9, 2014, the House will consider H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act of 2014, under a rule.  H.R. 5078 was introduced on July 11, 2014 by Rep. Steve Southerland (R-FL) and referred to the Committee on Transportation and Infrastructure, which ordered the bill reported by voice vote.

Bill Summary

H.R. 5078 preserves existing rights and responsibilities under the Federal Water Pollution Control Act (also known as the Clean Water Act) with respect to Waters of the United States.  This legislation prohibits the Secretary of the Army and the Administrator of the Environmental Protection Agency (EPA) from developing, finalizing, adopting, implementing, applying, administering, or enforcing: 1) the proposed rule published in the Federal Register on April 21, 2014 that defines the scope of federal jurisdiction of waters protected under the Clean Water Act; 2) the proposed guidance submitted to the Office of Management and Budget on February 21, 2012 that defined how the EPA and the Army Corps of Engineers should  identify waters protected by the Clean Water Act; and 3) the interpretive rule published in the Federal Register on April 21, 2014, which identified 53 agricultural activities that are exempt from Clean Water Act Section 404 permitting requirements so long as they are conducted consistent with Natural Resources Conservation Service (NRCS) conservation practice standards. The Secretary and the Administrator are also prohibited from using the proposed rule, proposed guidance, or any successor document (or substantially similar rule or guidance) as the basis for any rulemaking or decision regarding enforcement of the Clean Water Act.  This legislation further directs the Secretary and Administrator to withdraw the interpretive rule.

This legislation also requires the Secretary and the Administrator to jointly consult with relevant State and local officials to develop recommendations for a regulatory proposal that, consistent with previous Supreme Court rulings, would identify the scope of waters covered and not covered under the Clean Water Act.  In developing these recommendations, the Secretary and Administrator are required to: 1) provide relevant State and local officials with notice and opportunity to participate in the consultation process; 2) seek to consult State and local officials that represent a broad range of perspectives; 3) emphasize the importance of collaboration with State and local officials; 4) allow for meaningful and timely input by State and local officials; 5) be respectful of maintaining the Federal-State partnership in implementing the Clean Water Act; 6) take into consideration the input of State and local officials regarding differences in geography, hydrology, climate, economies, and priorities; 7) promote transparency in the consultation process; and 8) explore with State and local officials whether Federal objectives under the Clean Water Act can be achieved through means other than a new regulatory proposal.  Finally, within 12 months of the enactment of this Act, the Secretary and Administration are required to publish a draft report in the Federal Register describing the recommendations developed in the collaborative process.  Within 24 months of enactment, the Secretary and Administrator are directed to jointly submit the final report to Congress.

Background

Congress enacted the Federal Water Pollution Control Act (known as the Clean Water Act) in 1972 in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[1]  The Clean Water Act (CWA) also established as a policy of Congress to maintain and protect the primary responsibilities and rights of states to eliminate pollution and plan the development and use of land and water resources.[2]

The CWA consists of two primary parts.  The first “authorizes federal financial assistance for municipal sewage treatment plant construction.”[3]  The second establishes regulatory requirements that apply to the discharge of materials by industry and municipalities.[4]  The CWA prohibits the discharge of pollutants unless they are in compliance with one of the enumerated permitting provisions of the Act.[5]  The two permitting authorities are Section 402, which applies to discharges of pollutants from point sources; and Section 404, which applies to discharges of dredged or fill material in the nation’s waters (including wetlands).[6]  EPA holds responsibility for implementing Section 402, and the Army Corps of Engineers shares responsibility with the EPA for Section 404.[7]  Under Section 404, it is “unlawful to discharge dredged or fill materials into ‘navigable waters,’ unless the discharge is authorized by and in compliance with a dredge or fill permit issued by the Corps.”[8]

In enacting the CWA, Congress intended the States and EPA to implement the Act as a federal-State partnership, where these parties act as co-regulators.  The CWA established a system where EPA and the Corps provide a federal regulatory floor, from which States can receive approval from EPA to administer State water quality programs pursuant to State law, at equivalent or potentially more stringent levels, in lieu of federal implementation.  Currently, 46 States have approved-NPDES programs under Section 402 of the Act, and two States have approved-dredge or fill programs under Section 404 of the Act.

In April 2014, the Army Corps of Engineers and EPA proposed a rule that redefined the scope of waters that would be subject to federal jurisdiction under the Clean Water Act.  The draft rule “misconstrues and manipulates two relevant Supreme Court holdings,” effectively turning those cases that placed limits on CWA jurisdiction into a justification for the agencies to broaden their authority over all waters.[9]  The proposed rule goes far beyond merely clarifying the scope of waters subject to CWA programs.[10]  Rather, it is aimed at increasing the scope of the CWA’s jurisdiction over more waters.[11]  This change could have serious consequences for the economy, can threaten jobs, and restrict the ability of landowners, states, and local governments to make decisions about land use and development.[12]  H.R. 5078 prevents this rule, and other burdensome proposed rules and guidance from taking effect.

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[1] See Committee Report 113-568 at 2.
[2] See Id. at 2.
[3] Claudia Copeland, “Clean Water Act: A Summary of the Law,” Congressional Research Service (Nov. 30, 2012), at 2
[4] See Id. at 2.
[5] See Committee Report 113-568 at 2.
[6] See Committee Report 113-568 at 2; Claudia Copeland, “Clean Water Act: A Summary of the Law,” Congressional Research Service (Nov. 30, 2012), at 2;
[7] See Committee Report 113-568 at 2.
[8] See Id. at 2.
[9] House Transportation and Infrastructure Committee “Waters of the United States Regulatory Overreach Protection Act,” at 3.
[10] See Id. at 3.
[11] See Id. at 3
[12] House Transportation and Infrastructure Committee “Waters of the United States Regulatory Overreach Protection Act,” at 4.

Cost

CBO estimates that enacting H.R. 5078 would have negligible effect on direct spending.  This legislation would also have no significant effect on revenues or discretionary spending.[13]

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[13] http://www.cbo.gov/sites/default/files/cbofiles/attachments/hr5078.pdf

Amendments

1)         Rep. DeFazio (D-OR) Amendment #3Amendment requires the Secretary of the Army and the Administrator of the EPA to withdraw both the proposed and interpretive rules published in April 2014, and to instead develop and issue for public comment a revised proposed rule to define Waters of the United States after consultation with States, local governments and stakeholders.

2)         Rep. Bishop (D-NY) Amendment #7Amendment provides policy provisions that the Secretary and Administrator are prohibited from including in a final rule.

3)         Rep. Bishop (D-NY) Amendment #5Amendment states that provisions of the bill do not apply if it is determined implementation is likely to have an adverse impact on water quality.

Additional Information

For questions or further information contact the GOP Conference at 5-5107.