On Wednesday, July 13, 2011, the House is scheduled to consider H.R. 2018 under a rule.  The rule would provide one hour of general debate divided and controlled by the chair and ranking minority member of the Committee on Transportation & Infrastructure.  The rule would also provide 10 minutes of debate for each of the 10 amendments made in order and for one motion to recommit with or without instructions.

The bill was introduced by Rep. John Mica (R-FL) on May 26, 2011, and referred to the Committee on Transportation and Infrastructure.  The committee held a mark-up on June 22, 2011 and reported the bill, as amended, by a vote of 35-19. 

H.R. 2018 would amend the Clean Water Act (CWA) by restricting the Environmental Protection Agency’s (EPA) 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 EPA Administrator’s determination that the revised or new standard is necessary to meet the requirements of the CWA.  The bill would prevent unilateral actions by the EPA that second-guess the decisions of the state regulatory agency.

The bill would amend the CWA to prohibit the EPA from superseding a water quality certification granted by a state under the CWA, that a discharge will comply with the applicable water quality requirements of the CWA.  

H.R. 2018 would amend the CWA to prohibit the EPA from withdrawing approval of a state water quality permitting program under CWA (National Pollutant Discharge Elimination System (NPDES) Permits), or from limiting federal financial assistance for the state water quality permitting program, on the basis that the EPA disagrees with the state regarding (a) a water quality standard that a state has adopted and the EPA has approved under the CWA, or (b) the implementation of any federal guidance that directs a re-interpretation of the state’s approved water quality standards.

The bill would amend the CWA to prohibit the EPA from objecting to a state's issuance of an NPDES permit on the basis of (a) EPA's differing interpretation of an approved state water quality standard, or (b) the implementation of any federal guidance that directs a re-interpretation of the state's approved water quality standards.

H.R. 2018 would amend the CWA to allow a state to assume and administer only parts of the section 404 permit program.  Currently, only two states (New Jersey and Michigan) have assumed responsibility for section 404 permitting.  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. 2018 would make it easier for states to assume and administer only parts of the section 404 permit program.

The bill would amend the CWA to shorten the deadline for the Fish and Wildlife Service to submit comments to the Army Corps of Engineers (Corps) on a proposed section 404 permit from 90 days to 30 days (or 60 days if additional time is requested).  The bill would also clarify that the deadline for the 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.

Finally, H.R. 2018 would provide that amendments to the CWA will only apply to actions taken on or after the date of enactment of H.R. 2018, including actions that are pending, revised, or new standards that are being promulgated as of such date of enactment.  The bill would clarify that H.R. 2018 would apply to both pending and future permitting and standards actions.

According to the Committee on Transportation and Infrastructure Committee Report 112-139,

“The objective of the Federal Water Pollution Control Act (commonly known as the Clean Water Act or the CWA) is to restore and maintain the chemical, physical, and biological integrity of the nation's waters.  The primary mechanism for achieving this objective is the CWA's prohibition on the discharge into a waterbody of a pollutant without a National Pollutant Discharge Elimination System (NPDES) permit.  NPDES permits are a basic regulatory tool of the CWA.  The CWA also regulates, through a separate permit program, the discharge of dredged or fill material into waterbodies, including wetlands.  The U.S. Environmental Protection Agency (EPA) has the basic responsibility for administering and enforcing most of the CWA, and the U.S. Army Corps of Engineers (Corps) has lead responsibility for administering the dredged or fill (section 404) permit program.

“The CWA calls on states to establish water quality standards for the waterbodies in their states.  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 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 are required to periodically (at least once each three years) review their water quality standards and, as appropriate, modify and adopt new standards.  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.

“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, 47 states and territories 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.  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.

“Recently, however, the EPA has abandoned its proper role of approving state programs and ensuring that the standards that states adopt meet the minimum requirements of the CWA.  Instead, the EPA has decided to get 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 the EPA’s own prior determinations that a state standard meets the minimum requirements of the CWA.  The EPA also has inserted itself into the states’ and the Corps’ permit issuance decisions and is second-guessing state and Corps permitting decisions.

“For example, in November 2010, the 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 the EPA had earlier approved Florida’s nutrient criteria development plans.  In addition, the EPA has begun pressing states in other ways to adopt nutrient standards and implement other CWA limitations in NPDES discharge permits.  The 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.

“The EPA also formalized in 2009, with the Corps and the Department of Interior, an extra-regulatory review process, referred to as an ‘Enhanced Coordination Process,’ of CWA section 404 dredged or fill permits for Appalachian region surface coal mining projects.  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 section 404 permitting procedures and timelines.  At the end of this new process, only if issues identified by the EPA are resolved in individual permit applications may those permits move forward to the Corps for processing and incorporation of new permit terms or conditions dictated by the EPA during the process.  If the EPA’s concerns remain unresolved at the close of the process period, the EPA then may 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.

“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. The 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.”

The Congressional Budget Office (CBO) estimates that enacting this legislation would not have a significant impact on the EPA’s budget to implement the CWA.  Pay-as-you-go procedures do not apply to H.R. 2018 because enacting the bill would not affect direct spending or revenues.

Under the rule, the following 10 amendments are made in order.  Each amendment is debatable for ten minutes.

No. 1—Rep. Jackson Lee (D-TX):  The amendment would strike the entire bill.

No. 2—Rep. Jackson Lee (D-TX):  The amendment would allow the EPA to continue to have the authority to set standards for NPDES Permit programs by striking section 2 of the underlying bill.

No. 3—Rep. Capito (R-WV):  The amendment would require the EPA to analyze the impact of certain of its covered actions on employment levels and economic activity and require public notice and a hearing in those instances where a covered action has more than a de minimis impact on employment or economic activity in any given state.

No. 4—Rep. Hanabusa (D-HI):  The amendment would require the Administrator of the EPA submit a report to Congress on any increase in waterborne pathogenic microorganisms (including protozoa, viruses, bacteria, and parasites), toxic chemicals, or toxic metals (such as lead and mercury) in waters regulated by a State under the provisions of this Act.

No. 5—Rep. Polis (D-CO):  The amendment would exclude from this Act permit holders who are on the significant CWA non-compliance list.

No. 6—Rep. Connolly (D-VA):  The amendment would prohibit the Act from applying to waters where federal funding is provided for restoration projects, studies, pilot projects, or development of total maximum daily loads, as determined by the EPA Administrator. 

No. 7—Rep. Deutch (D-FL):  The amendment would exempt the Everglades in the State of Florida from the provisions in the bill.  The amendment would also prohibit the Act from applying to the rulemaking being conducted by the Administrator of the EPA as of the date of enactment of this Act to develop Federal water quality standards for the State of Florida’s estuarine, coastal, and southern inland flowing waters.

No. 8—Rep. Cohen (D-TN):  The amendment would clarify that nothing in the bill can limit the EPA Administrator’s authority to regulate a pipeline that crosses a streambed.

No. 9—Reps. Markey (D-MA), DeFazio (D-OR):  The amendment would prohibit the Act from applying to waters that, as determined by the Administrator of the EPA, provide flood protection for communities; are a valuable fish and wildlife habitat that provides benefits to the economy; or are coastal recreation waters. 

No. 10—Rep. Carnahan (D-MO):  The amendment would restrict the application of the bill if a major disaster had been declared in the area due to flooding within the last five years, or the waters in question had contributed to such a declaration.