H.R. 5077 — what changed

“(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—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

changed “(I) to ensure that any industrial user of any publicly owned treatment works will comply with sections 204(b), 307, and 308.”308.

added “(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:

added “(A) The failure of the program to incorporate or comply with guidance (as defined in subsection (s)(1)).

added “(B) The implementation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c).”

added “(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:

added “(A) The failure of the program to incorporate or comply with guidance (as defined in subsection (s)(1)).

added “(B) The implementation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c).”

added “(2) Objection by administrator

added “(A) In general—Subject to subparagraph (C), no permit shall issue if—

added “(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

added “(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.”

added “(B) Requirements—If the Administrator”

added “(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:

added “(i) Guidance, as that term is defined in subsection (s)(1).

added “(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).”

added “(B) The Administrator shall promulgate”

added “(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.”

added “(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.”

removed 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:

removed “(2)

removed “(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—

removed “(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

removed “(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.

removed “(B) Upon receipt of the Administrator’s recommendation the State shall within 30 days either—

removed “(i) disregard the Administrator’s recommendation in full and incorporate its own identification and load into its current plan under subsection (e);

removed “(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

removed “(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).

removed “(C)

removed “(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).

removed “(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).

removed “(D) This paragraph shall apply to any decision made by the Administrator under this subsection issued on or after March 1, 2013.”

changed Section 502 303 of the Federal Water Pollution Control Act (33 U.S.C. 1362) 1313) is amended by adding at the end striking subsection (d)(2) and inserting the following:

changed “(27) Fill material“(2)

changed “(A) In general—The term fill material means any material placed in 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 United States where State identification and load or announce his disagreement with the material has State identification and load not later than 30 days after the effect of—date of submission, and if—

changed “(i) replacing any portion of a water of the United States Administrator approves the identification and load submitted by the State in accordance with dry land; orthis subsection, such State shall incorporate them into its current plan under subsection (e); and

changed “(ii) changing the bottom elevation of any portion of a water 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 United States.water quality standards applicable to such waters.

changed “(B) Inclusions—The term fill material includes—Upon receipt of the Administrator’s recommendation the State shall within 30 days either—

changed “(i) rock;disregard the Administrator’s recommendation in full and incorporate its own identification and load into its current plan under subsection (e);

changed “(ii) sand;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

changed “(iii) soil;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).

changed “(iv) clay;“(C)

changed “(v) plastics;“(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).

changed “(vi) construction debris;“(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).

changed “(vii) wood chips;“(D) This paragraph shall apply to any decision made by the Administrator under this subsection issued on or after March 1, 2013.”

removed “(viii) overburden from mining or other excavation activities; and

removed “(ix) materials used to create any structure or infrastructure in the waters of the United States.

removed “(C) Exclusions—The term fill material does not apply to trash or garbage.”

changed Except as otherwise specifically provided, Section 502 of the amendments made by this Federal Water Pollution Control Act shall apply to actions taken on or after (33 U.S.C. 1362) is amended by adding at the date of enactment of this Act, including actions taken with respect to permit applications pending, or revised or new standards in end the process of being promulgated, on such date of enactment.following:

added “(27) Fill material

added “(A) In general—The term fill material means any material placed in waters of the United States where the material has the effect of—

added “(i) replacing any portion of a water of the United States with dry land; or

added “(ii) changing the bottom elevation of any portion of a water of the United States.

added “(B) Inclusions—The term fill material includes—

added “(i) rock;

added “(ii) sand;

added “(iii) soil;

added “(iv) clay;

added “(v) plastics;

added “(vi) construction debris;

added “(vii) wood chips;

added “(viii) overburden from mining or other excavation activities; and

added “(ix) materials used to create any structure or infrastructure in the waters of the United States.

added “(C) Exclusions—The term fill material does not apply to trash or garbage.”