EPA and the Army Corps’ Proposed
“Waters of the United States” Rule:
Congressional Response and Options

Claudia Copeland
Specialist in Resources and Environmental Policy
May 26, 2015
Congressional Research Service
7-5700
www.crs.gov
R43943


Proposed “Waters of the United States” Rule: Congressional Response and Options

Summary
In April 2014, the Army Corps of Engineers (the Corps) and the Environmental Protection
Agency (EPA) jointly proposed to amend the existing rules that define the scope of waters
protected under the Clean Water Act (CWA). Discharges to waters under CWA jurisdiction, such
as the addition of pollutants from factories or sewage treatment plants and the dredging and
filling of spoil material through mining or excavation, require a CWA permit. The rule was
proposed in light of Supreme Court rulings in 2001 and 2006 that created uncertainty about the
geographic limits of waters that are and are not protected by the CWA. The rule would replace
EPA-Corps guidance that has governed permitting decisions since the Court’s rulings.
According to EPA and the Corps, their intent was to clarify CWA jurisdiction, not expand it.
Nevertheless, the proposal has been extremely controversial, especially with groups representing
property owners, land developers, and agriculture, who contend that it represents a massive
federal overreach beyond the agencies’ statutory authority. Most state and local officials are
supportive of clarifying the extent of CWA-regulated waters, but some are concerned that the rule
could impose costs on states and localities as their own actions become subject to new
requirements. Most environmental advocacy groups welcomed the proposal, which would more
clearly define U.S. waters that are subject to CWA protections, but beyond that general support,
some in these groups favor an even stronger rule.
Some in Congress favor halting EPA and the Corps’ current approach to defining “waters of the
United States.” To do so legislatively, there are at least four options available to change the
agencies’ course.
The Congressional Review Act. If Congress passes a joint resolution
disapproving a covered rule under procedures provided by the act, and the
resolution becomes law, the rule cannot take effect or continue in effect. The
agency may not reissue either that rule or any substantially similar one, except
under authority of a subsequently enacted law.
Appropriations bill limitations. A provision in an appropriations bill can be a
mechanism to block or redirect an agency’s course of action by limiting or
preventing agency funds from being used for the rule.
Targeted legislation. Other legislation can take several forms, such as a bill
similar to limits in an appropriations bill to prohibit EPA and the Corps from
finalizing, implementing, or enforcing the proposed rule. Another approach could
be legislation to address substantive aspects of the proposed rule that have been
criticized.
Broad amendments to the Clean Water Act. Legislation to affirm or clarify
Congress’s intention regarding CWA jurisdiction would have broad implications
for the CWA, since questions of jurisdiction are fundamental to all of the act’s
regulatory requirements.
These options and related legislative activity are discussed in this report. Each option faces a
steep path to enactment, because President Obama likely would oppose legislation to halt or
weaken a major regulatory initiative of the Administration such as the proposed “waters of the
United States” rule. To become law, the President must sign a bill or allow it to become law
without his signature, or two-thirds of the House and Senate must vote to override his veto.
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Proposed “Waters of the United States” Rule: Congressional Response and Options

Contents
Introduction ...................................................................................................................................... 1
Background ...................................................................................................................................... 1
Congressional Options ..................................................................................................................... 4
Congressional Review Act ........................................................................................................ 5
Appropriations Bills .................................................................................................................. 7
Targeted Legislation .................................................................................................................. 8
Other Clean Water Act Amendments ....................................................................................... 10
Conclusion ..................................................................................................................................... 11

Contacts
Author Contact Information........................................................................................................... 11

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Proposed “Waters of the United States” Rule: Congressional Response and Options

Introduction
In April 2014, the Army Corps of Engineers (the Corps) and the Environmental Protection
Agency (EPA) jointly proposed to amend the existing rules that define the scope of waters
protected under the Clean Water Act (CWA).1 Discharges to waters under CWA jurisdiction, such
as the addition of pollutants from factories or sewage treatment plants and the dredging and
filling of spoil material through mining or excavation, require a CWA permit. The rule was
proposed in light of Supreme Court rulings that created uncertainty about the geographic limits of
waters that are and are not protected by the CWA.
More than 1 million public comments on the proposed rule were received during the comment
period, which closed November 14, 2014. The agencies have completed revisions to the proposal
and submitted a final rule to the Office of Management and Budget (OMB) on April 3. The OMB
review is usually the last step before a federal agency releases a rule. EPA and Corps officials
have said that they expect to publish a final rule in the spring of 2015.
According to EPA and the Corps, the agencies’ intent was to clarify CWA jurisdiction, not expand
it. Nevertheless, the proposal has been extremely controversial, especially with groups
representing property owners, land developers, and the agriculture sector, who contend that it
represents a massive federal overreach beyond the agencies’ statutory authority. Most state and
local officials are supportive of clarifying the extent of CWA-regulated waters, but some are
concerned that the rule could impose costs on states and localities as their own actions (e.g.,
transportation or public infrastructure projects) become subject to new requirements. Most
environmental advocacy groups welcomed the proposal, which would more clearly define U.S.
waters that are subject to CWA protections, but beyond that general support, some in these groups
favor even a stronger rule.
Many critics in Congress and elsewhere have urged that the proposed rule be withdrawn, but EPA
and Corps officials have not indicated that they will do so. Some in Congress favor halting the
agencies’ current approach to defining “waters of the United States.” This report discusses several
options that Congress could consider.
Background2
The CWA protects “navigable waters,” a term defined in the act to mean “the waters of the United
States, including the territorial seas.”3 Waters need not be truly navigable to be subject to CWA
jurisdiction. The act’s single definition of “navigable waters” applies to the entire law, including
the federal prohibition on pollutant discharges except in compliance with the act (§301), permit
requirements (§§402 and 404), water quality standards and measures to attain them (§303), oil

1 Department of Defense, Department of the Army, Corps of Engineers, and Environmental Protection Agency,
“Definition of ‘Waters of the United States Under the Clean Water Act, Proposed Rule,” 79 Federal Register 22188-
22274, April 21, 2014.
2 The CWA and the proposed rule are more fully discussed in CRS Report R43455, EPA and the Army Corps’
Proposed Rule to Define “Waters of the United States
, by Claudia Copeland. It includes a table that compares the
current regulatory language that defines “waters of the United States” with language in the proposed rule.
3 CWA §502(7); 33 U.S.C. §1362(7).
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Proposed “Waters of the United States” Rule: Congressional Response and Options

spill liability and oil spill prevention and control measures (§311), and enforcement (§309). The
CWA gave the agencies the authority to define the term “waters of the United States” in
regulations, which EPA and the Corps have done several times, most recently in 1986. While EPA
is primarily responsible for implementing the CWA, EPA and the Corps share implementation of
the dredge and fill permitting program in Section 404.
The courts, including the Supreme Court, generally upheld the agencies’ implementation until
Supreme Court rulings in 2001 and 2006 (Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers
, (SWANCC) 531 U.S. 159 (2001), and Rapanos v. United States, 547
U.S. 716 (2006), respectively). Those rulings interpreted the regulatory scope of the CWA more
narrowly than the agencies and lower courts were then doing, and created uncertainty about the
precise effect of the decisions.4
In 2003 and 2008, the agencies issued guidance intended to lessen confusion over the Court’s
rulings. The non-binding guidance sought to identify, in light of those rulings, categories of
waters that remain jurisdictional, categories not jurisdictional, and categories that require a case-
specific analysis to determine if CWA jurisdiction applies. The Obama Administration proposed
revised guidance in 2011; it was not finalized, but it was the substantive basis for the 2014
proposed rule. In proposing now to amend the regulatory definition of “waters of the United
States” rather than issue another guidance document, EPA and the Corps were not only acting to
reduce the confusion created by SWANCC and Rapanos. They also appear to be picking up on the
suggestion of several of the justices in Rapanos that an amended rule would be helpful.
The proposed rule retains much of the structure of the agencies’ existing definition of “waters of
the United States.”5 It focuses particularly on clarifying the regulatory status of waters located in
isolated places in a landscape and streams that flow only part of the year, along with nearby
wetlands—the types of waters with ambiguous jurisdictional status following the Supreme
Court’s rulings. Like the 2003 and 2008 guidance documents, it proposes categories of waters that
are and are not jurisdictional, as well as categories of waters and wetlands that require a case-
specific evaluation.
• Under the proposed rule, all tributaries to the nation’s traditional navigable
waters, interstate waters, the territorial seas, or impoundments of these waters
would be jurisdictional per se. All of these waters are jurisdictional under
existing rules, but the term “tributary” is newly defined in the proposal.
• Waters, including wetlands, that are adjacent to traditional navigable waters,
interstate waters, the territorial seas, jurisdictional tributaries, or impoundments
of these waters would be jurisdictional by rule. By including all adjacent
waters
—not simply adjacent wetlands, as in existing rules—the proposal is more
inclusive than current rules in finding bordering or neighboring waters to be
categorically jurisdictional (i.e., no case-specific evaluation would be required).

4 For discussion of the legal background, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act
(CWA): Rapanos and Beyond
, by Robert Meltz and Claudia Copeland.
5 The definition of “waters of the United States” is found at 33 C.F.R. §328.3 (Corps) and 40 C.F.R. §122.2 (EPA). The
term is similarly defined in other EPA regulations, as is the term “navigable waters.”
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Proposed “Waters of the United States” Rule: Congressional Response and Options

• Some waters—but fewer than under current practice—would remain subject to a
case-specific evaluation of whether or not they meet the legal standards for
federal jurisdiction established by the Supreme Court.
• The proposal identifies a number of types of waters to be excluded from CWA
jurisdiction. Some are restatements of exclusions under current rules (e.g., prior
converted cropland); some have been excluded by practice and would be
expressly excluded by rule for the first time (e.g., groundwater, some ditches).
The proposal makes no change and does not affect existing statutory exclusions:
permit exemptions for normal farming, ranching, and silviculture practice and for
maintenance of drainage ditches (CWA §404(f)(1)), as well as for agricultural
stormwater discharges and irrigation return flows (CWA §402(l)).
The agencies’ intention was to clarify questions of CWA jurisdiction, in view of the Supreme
Court’s rulings and consistent with the agencies’ scientific and technical expertise. Much of the
controversy since the Court’s rulings has centered on the many instances that have required
applicants for CWA permits to seek a time-consuming case-specific evaluation to determine if
CWA jurisdiction applies to their activity, due to uncertainty over the geographic scope of the act.
In the proposed rule, the Corps and EPA intended to clarify jurisdictional questions by clearly
articulating categories of waters that are and are not protected by the CWA and thus limiting the
types of waters that still require case-specific analysis. However, critical response to the proposal,
coming from industry, agriculture, many states, and some local governments, is that the rule is
vague and ambiguous and could be interpreted to enlarge the regulatory jurisdiction of the CWA
beyond what the statute and the courts allow.
Industries that are the primary applicants for CWA permits and agriculture groups have raised
numerous objections over how broadly they fear that the proposed rule would be interpreted.
Many have urged that it be withdrawn. The proposal would add new definitions of key terms,
such as “tributary” and “significant nexus.” Because definitions often are key to interpreting
statutory law and regulations, critics contend that the proposed new definitions are ambiguous
and would lead to broader assertion of CWA jurisdiction than is consistent with law and science.
Agriculture has been concerned that the proposal would modify existing CWA exemptions for
agricultural practices. The agencies have said that the rule does not affect these exclusions, but
the farm community is skeptical.
Some local governments also have criticized the proposal. They point out that localities own and
maintain public infrastructure including roadside ditches, flood control channels, and stormwater
management structures. Because the proposed rule would define some ditches as “waters of the
United States” if they meet certain conditions, while excluding other ditches, these local
governments contend that the proposal potentially increases the number of locally owned ditches
under federal jurisdiction. Permit requirements are not an issue, they say, but obtaining permits
can be time-consuming and expensive. EPA and Corps officials believe that the proposed
exclusion of most ditches actually decreases federal jurisdiction, but the issue remains
controversial.
Many states and state environmental agencies have expressed support for a rule to clarify the
scope of CWA jurisdiction, but there is no state consensus on the Corps-EPA proposal or on
whether it should be withdrawn. Some are generally supportive, but others believe that the
agencies did insufficient consultation with the states prior to proposing the rule. States, they point
out, are co-regulators of the CWA with EPA, making determinations of federal jurisdiction
equally important to states as to industry.
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Environmental groups defend the agencies’ efforts to protect U.S. waters and reduce frustration
resulting from unclear jurisdiction of the CWA. Still, beyond this general support for the rule,
some of them argue that it should be strengthened, for example, by designating additional
categories of waters and wetlands such as prairie potholes and vernal pools as categorically
jurisdictional, rather than requiring site-specific analysis.
Officials of the Corps and EPA have vigorously defended the proposed rule. They believe that it
is consistent with scientific understanding of connections between small streams and downstream
waters, but does not exceed the CWA’s coverage and would not enlarge jurisdiction beyond what
is consistent with the Supreme Court’s current reading of jurisdiction. But they acknowledge that
the proposal raised questions that will have to be clarified in the final rule. Agency officials have
conducted extensive outreach to discuss the rule, but they seemingly have had limited success in
abating criticism. In an April 2015 blog post, the EPA Administrator and the Assistant Secretary
for the Army said that the agencies have responded to criticisms of the proposal with changes that
are reflected in the final rule, which was submitted to OMB on April 3. The blog post says that
the final rule makes changes such as: defining tributaries more clearly; better defining how
protected waters are significant; limiting protection of ditches to those that function like
tributaries and can carry pollution downstream; and preserving CWA exclusions and exemptions
for agriculture.6
Many critics in Congress and elsewhere have urged that the proposed rule be withdrawn. EPA and
Corps officials point out that doing so would leave in place the status quo—with determinations
of CWA jurisdiction being made pursuant to existing regulations, coupled with non-binding
agency guidance, and many of these determinations involving time-consuming case-specific
evaluation. The agencies’ intention has been to clarify the rules and make jurisdictional
determinations more predictable, less ambiguous, and more timely. Some industry and agriculture
groups that criticized the status quo in the past now seemingly prefer it to the proposed rule,
which they believe is ambiguous and overly broad.
Congressional interest in the proposed rule has been strong since it was announced in 2014. On
February 4, 2015, the Senate Environment and Public Works Committee and the House
Transportation and Infrastructure Committee held a joint hearing on impacts of the proposed rule
on state and local governments, hearing from public and EPA and Corps witnesses. Other
hearings have been held by Senate and House committees in the 114th Congress. The proposal
also was discussed at House committee hearings during the 113th Congress. As described below, a
number of bills have been introduced, most of them intended to prohibit the agencies from
finalizing the 2014 proposed rule.
Congressional Options
As noted earlier, some in Congress favor halting EPA and the Corps’ current approach to defining
“waters of the United States.” To do so legislatively, there are at least four options available to
change the agencies’ course: a resolution of disapproval under the Congressional Review Act,
appropriations bill provisions, targeted legislation, and broad amendments to the Clean Water Act.

6 Gina McCarthy and Jo-Ellen Darcy, “Your Input is Shaping the Clean Water Rule,” EPA Connect, The Official Blog
of EPA’s Leadership
, April 6, 2015, http://blog.epa.gov/epaconnect/2015/04/your-input-is-shaping-the-clean-water-
rule/#more-3470.
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Congressional Review Act7
The Congressional Review Act (CRA), enacted in 1996, establishes special congressional
procedures for disapproving a broad range of regulatory rules issued by federal agencies.8 Before
any rule covered by the act can take effect, the federal agency that promulgates it must submit it
to both houses of Congress and the Government Accountability Office (GAO). If Congress passes
a joint resolution disapproving the rule under procedures provided by the act, and the resolution
becomes law,9 the rule cannot take effect or continue in effect. Also, the agency may not reissue
either that rule or any substantially similar one, except under authority of a subsequently enacted
law.10
The CRA applies to major rules, non-major rules, final rules, and interim final rules. The
definition of “rule” is sufficiently broad that it may define as “rules” agency actions that are not
subject to traditional notice and comment rulemaking under the Administrative Procedure Act,
such as guidance documents and policy memoranda. A joint resolution of disapproval must be
introduced within a specific time frame: during a 60-days-of-continuous-session period beginning
on the day the rule is received by Congress.11
The path to enactment of a CRA joint resolution is a steep one. In the nearly two decades since
the CRA was enacted, only one resolution has ever been enacted.12 The path is particularly steep
if the President opposes the resolution’s enactment, which would almost certainly be the case
with a resolution disapproving an EPA-Corps rule to define “waters of the United States.” The
Obama Administration has fully supported the agencies’ regulatory proposal. Thus, many have
concluded that legislation restricting their authority to act, if passed by Congress, would
encounter a presidential veto. Overriding a veto requires a two-thirds majority in both the House
and Senate.13
The potential advantage of the CRA lies primarily in the procedures under which a resolution of
disapproval can be considered in the Senate. Pursuant to the act, an expedited procedure for
Senate consideration of a joint resolution of disapproval may be used at any time within 60 days
of Senate session after the rule in question has been submitted to Congress and published in the

7 This section, discussing the effect of the Congressional Review Act, the procedures under which a disapproval
resolution can be taken up in the Senate, floor consideration in the Senate, and final congressional action, is adapted
from CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act,
by Richard S. Beth; and CRS In Focus IF10023, The Congressional Review Act (CRA), by Alissa M. Dolan, Maeve P.
Carey, and Christopher M. Davis.
8 5 U.S.C. §§801-808. The CRA applies to a “rule,” as defined in 5 U.S.C. §804(3).
9 For the resolution to become law, the President must sign it or allow it to become law without his signature, or
Congress must override a presidential veto.
10 The CRA has been much discussed as a tool for overturning EPA’s regulatory actions on greenhouse gas emissions.
See CRS Report R41212, EPA Regulation of Greenhouse Gases: Congressional Responses and Options, by James E.
McCarthy.
11 Days-of-continuous-session periods count every calendar day, including weekends and holidays, and only exclude
days that either chamber (or both) is gone for more than three days, that is, pursuant to an adjournment resolution.
12 See P.L. 107-5 (2001) (disapproving an Occupational Safety and Health Administration rule regarding ergonomics
published at 65 Federal Register 68261).
13 In addition to the one disapproval resolution that has been enacted since 1996, the Senate has considered such a
resolution fewer than 15 times. A few of these passed the Senate, but none was enacted. In the other instances, the
Senate debated the question of calling up the resolution or the resolution itself, and rejected the question.
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Federal Register. The expedited procedure provides that, if the committee to which a disapproval
resolution has been referred has not reported it by 20 calendar days after the rule has been
received by Congress and published in the Federal Register, the committee may be discharged if
30 Senators submit a petition for that purpose. The resolution is then placed on the Senate
Calendar.
Under the expedited procedure, once a disapproval resolution is on the Senate Calendar, a motion
to proceed to consider it is in order. Several provisions of the expedited procedure protect against
various potential obstacles to the Senate’s ability to take up a disapproval resolution. The Senate
has treated a motion to consider a disapproval resolution under the CRA as not debatable, so that
this motion cannot be filibustered through extended debate. After the Senate takes up the
disapproval resolution itself, the expedited procedure of the CRA limits debate to 10 hours and
prohibits amendments.14
The act sets no deadline for final congressional action on a disapproval resolution, so a resolution
could theoretically be brought to the Senate floor even after the expiration of the deadline for the
use of the CRA’s expedited procedures. To obtain floor consideration, the bill’s supporters would
then have to follow the Senate’s normal procedures, however.
There are no expedited procedures for initial House consideration of a joint resolution of
disapproval. A resolution could reach the House floor through its ordinary procedures, that is,
generally by being reported by the committee of jurisdiction (in the case of CWA rules, the
Transportation and Infrastructure Committee). If the committee of jurisdiction does not report a
disapproval resolution submitted in the House, a resolution could still reach the floor pursuant to
a special rule reported by the Committee on Rules (and adopted by the House), by a motion to
suspend the rules and pass it (requiring a two-thirds vote), or by discharge of the committee
(requiring a majority of the House [218 Members] to sign a petition).
The CRA establishes no expedited procedure for further congressional action if the President
vetoes a disapproval resolution. In such a case, Congress would need to attempt an override of a
veto using its normal procedures for doing so.
As noted above, if a joint resolution of disapproval becomes law, the rule at issue cannot take
effect or continue in effect, and neither that rule nor a substantially similar one may be
promulgated, except under authority of a subsequently enacted law. While that outcome would
please most critics of the proposed “waters of the United States” rule, it also would leave the
regulated community in the situation that many of them have faulted—subject to 1986 rules that
are being interpreted pursuant to non-binding agency guidance that frequently requires case-
specific evaluation to determine if CWA jurisdiction applies.

14 These provisions help to ensure that the Senate disapproval resolution will remain identical, at least in substantive
effect, to a House joint resolution disapproving the same rule, and that no filibuster is possible on the resolution itself.
In addition, once the motion to proceed is adopted, the resolution becomes “the unfinished business of the Senate until
disposed of,” and a non-debatable motion may be offered to limit the time for debate further. Finally, the act provides
that at the conclusion of debate, the Senate automatically proceeds to vote on the resolution.
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Appropriations Bills
Including a provision in an appropriations bill is a second option for halting or re-directing the
proposed “waters of the United States” rule by limiting or preventing agency funds from being
used for the rule. Congress has considered legislation to do so in the recent past, but no such
restrictions have been enacted.
In the 114th Congress, on May 1 the House approved the FY2016 Energy and Water
Appropriations bill (H.R. 2028) with a provision that would bar the Corps from developing,
adopting, implementing, or enforcing any change to rules or guidance pertaining to the CWA
definition of “waters of the United States.”
Similar legislation was considered in the 113th Congress. H.R. 4923, the FY2015 Energy and
Water Appropriations Act, passed the House on July 10, 2014. Like the language approved by a
House Appropriations subcommittee on April 15, 2015, H.R. 4923 included a provision to restrict
new rules to redefine “waters of the United States.” Also, the FY2015 Interior and Environment
Appropriations Act, providing funds for EPA and other agencies (H.R. 5171), contained a
provision to similarly block EPA action on the “waters” rule. The House Appropriations
Committee approved H.R. 5171 in July 2014. However, neither of these provisions was included
in legislation that provided full-year funding for EPA and the Corps, the Consolidated and
Omnibus Appropriations Act, 2015, enacted in December 2014 (P.L. 113-235).
Similarly, in 2012 and 2013, the House passed appropriations bills with restrictions to prohibit the
Corps from finalizing revised “waters of the United States” guidance that the Corps and EPA had
proposed in 2011, which also was controversial with many stakeholder groups (H.R. 5325,
providing FY2013 appropriations; and H.R. 2609, for FY2014 funds). In 2012, the House
Appropriations Committee reported H.R. 6091, FY2013 Interior and Environment
Appropriations, which included a provision to bar EPA from finalizing the same revised guidance.
None of these limitations was enacted.
In comparison to a CRA resolution of disapproval, addressing an issue through an amendment to
an appropriations bill may be considered easier, since the overall appropriations bill to which it
would be included would presumably contain other elements making it “must pass” legislation, or
more difficult for the President to veto. EPA and the Corps anticipate promulgating a final “waters
of the United States” rule in the spring, probably May or June 2015 (a final rule was submitted to
OMB on April 3), and likely before enactment of FY2016 appropriations bills. After that occurs, a
funding prohibition included in an FY2016 appropriations bill would not halt finalizing the rule,
but it still could attempt to block funds for implementation. Depending on how such a restriction
might be worded, questions could still arise. For example, if an appropriations bill were to
prohibit the Corps from making jurisdictional determinations pursuant to the final rule, how
would the Corps be able to process and issue permit requests from applicants?
In recent years, controversies over a variety of environmental issues have led to inclusion of
provisions in bills reported by the House Appropriations Committee or passed by the House to
restrict funds for particular EPA programs, among other agencies. Few of these environmental
provisions have been enacted, however, in part due to opposition in the Senate.15 Some observers
foresee a somewhat easier path for congressional consideration of such restrictions in the 114th

15 See CRS Report R43709, Environmental Protection Agency (EPA): FY2015 Appropriations, by Robert Esworthy.
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Congress, with Republican majorities in both the House and Senate. However, a bill would still
need the President’s signature, or the votes of two-thirds majorities in both chambers to override
his veto.
Targeted Legislation
A third option is targeted legislation to re-direct development of a “waters of the United States”
rule, either by amending the CWA or in a free-standing bill. Such a bill could be similar to a
limitation in an appropriations bill with provisions to bar or prohibit EPA and/or the Corps from
finalizing, adopting, implementing, or enforcing the proposed “waters of the United States” rule,
the 2011 proposed revised guidance, or any similar rule. One such bill has been introduced in the
114th Congress (H.R. 594).16 It also would direct the Corps and EPA to consult with state and
local officials on CWA jurisdiction issues and develop a report on results of such consultation. In
the 113th Congress, similar legislation was introduced in the Senate (S. 2496).17
In the 114th Congress, H.R. 1732, the Regulatory Integrity Protection Act, was approved by the
House on May 12, 261-155.18 It would require EPA and the Corps to develop a new rule, taking
into consideration public comments on the 2014 proposal and supporting documents, and, in
doing so, to provide for consultation with state and local officials and other stakeholders. Under
the bill, when proposing a new rule, the agencies would have to describe the consultations in
detail and explain how the new proposal responds to public comments and consultations. During
markup of the bill, supporters said that they believe wide criticism of the current proposed rule
means it is essential for the agencies to restart the rulemaking process. Opponents of the bill said
that doing so now would foreclose the opportunity for Congress and the public to see how the
final rule, which the agencies sent to OMB on April 3, responds to those criticisms. Opponents
also pointed out that Congress will have the opportunity to nullify the final rule through
procedures under the CRA (see “Congressional Review Act”). During debate on the measure, the
House adopted an amendment that would give states two years to come into compliance with a
new rule without losing authority over their state permitting programs. The Obama
Administration opposes H.R. 1732 and has said that the President would veto the bill.
In the Senate, the Federal Water Quality Protection Act (S. 1140) was introduced April 30. Like
H.R. 1732, this bill would require the agencies to develop a new rule. EPA and the Corps would
be required to take into consideration public comments on the 2014 proposal and to ensure that
procedures established under executive orders and laws such as the Regulatory Flexibility Act,
Unfunded Mandates Reform Act, and others are followed during the rulemaking. Unlike the
House bill, S. 1140 identifies certain principles that must be adhered to in developing a new rule,
especially identifying waters that should be included in defining “waters of the United States”
(e.g., reaches of streams with surface hydrological connection to traditional navigable waters with
flow in a normal year of sufficient volume, duration, and frequency that pollutants in the stream
would degrade water quality of the traditional navigable water) and waters that should not be so
included (e.g., groundwater, isolated ponds, and prior converted cropland). The principles in the

16 Another 114th Congress proposal that includes a provision similar to H.R. 594 as part of a larger measure is S.
791/H.R. 1487.
17 Also in the 113th Congress, several non-appropriation bills would have restricted EPA and the Corps from finalizing
the guidance document that was proposed in 2011 but not issued (it was, however, the substantive basis for the 2014
proposed rule). Bills included H.R. 1829, H.R. 5077, S. 861, S. 1006, and S. 1514. There was no action on any of them.
18 The House passed a similar bill in the 113th Congress, H.R. 5078.
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bill reflect an overall narrow interpretation of the extent of CWA jurisdiction—for example,
setting the jurisdictional limits of a stream’s reach to waters that have a continuous surface
hydrologic connection sufficient to deliver pollutants that would degrade the water quality of a
traditional navigable water, as proposed in S. 1140, generally follows the test of jurisdiction
stated by Justice Scalia in the Rapanos case.19 Under the legislation, the agencies must make best
efforts to publish a final rule by December 31, 2016. A rule not adhering to principles in the bill
would have no force or effect. A Senate Environment and Public Works subcommittee held a
hearing on this bill on May 19.
Another approach is reflected in S. 1178. It would require EPA and the Army Corps to establish a
commission, with membership appointed by the agencies and the Senate and House, to develop
criteria for defining whether a waterbody or wetland has a significant nexus to a traditional
navigable water. It would bar the agencies from developing, finalizing, implementing, or
enforcing the 2014 proposed rule or a substantially similar rule prior to receiving a report from
the commission. This bill responds in part to criticism that the science underlying the proposed
rule was not thoroughly peer-reviewed and subject to public comment before the rule was
announced in April 2014. (For discussion, see CRS Report R43455, EPA and the Army Corps’
Proposed Rule to Define “Waters of the United States
.)
The obstacles for targeted bills are similar to those for an appropriations bill, but with the
additional complication of needing to be included in non-appropriations legislation that is “must
pass” or difficult for the President to veto, or that can receive two-thirds votes in both chambers
to override a veto.
Targeted legislation might seek to address substantive aspects of the proposed rule that have been
widely criticized. For example, many stakeholder groups contend that key definitions in the
proposal—such as “tributary,” “floodplain,” and “significant nexus”20—are ambiguous, and other
terms—such as “upland,” “gullies,” and “rills”—are entirely undefined. Ambiguities could lead to
agency interpretations that greatly expand the regulatory scope of CWA jurisdiction, critics say.
However, such criticisms of the proposed rule for the most part have been general in nature,
rather than specific as to precise language that would clarify terms and definitions. For Congress
to legislate solutions and codify remedies in the CWA likely would require technical expertise
that legislators generally delegate to agencies and departments, which implement laws.21

19 See CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond, by Robert
Meltz and Claudia Copeland.
20 The concept of significant nexus is critical because courts have ruled that, to establish CWA jurisdiction of waters,
there needs to be “some measure of the significance of the connection for downstream water quality,” as Justice
Kennedy stated in the 2006 Rapanos case.
21 Another legislative option that is sometimes raised in consideration of changing major policy is budget
reconciliation, which is a budget enforcement tool under the Congressional Budget Act of 1974. Its chief purpose is “to
enhance Congress’s ability to change current law in order to bring revenue and spending levels in conformity with the
policies of the budget resolution.” (See CRS Report RL30458, The Budget Reconciliation Process: Timing of
Legislative Action
, by Megan S. Lynch.) Generally reconciliation has been used to enact spending reductions in order
to reduce the deficit, but occasionally for revenue increases and to increase spending in particular areas. The
reconciliation process for the most part has applied to mandatory spending programs, not discretionary programs.
Reconciliation legislation has been used in the past as a vehicle for enacting significant policy legislation that has
budgetary implications. (See CRS Report R40480, Budget Reconciliation Measures Enacted Into Law: 1980-2010, by
Megan S. Lynch.) The challenge for using budget reconciliation in the context of the “waters of the United States”
issue is that the rule has limited budgetary implication, beyond agency resources to develop, implement, and enforce
regulations (e.g., the Corps’ regulatory budget in FY2015 is $200 million), making it difficult to identify the rule as a
(continued...)
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Other Clean Water Act Amendments
A fourth option could be legislation to amend the Clean Water Act more broadly. The statute has
not been comprehensively amended since 1987 (the Water Quality Act of 1987, P.L. 100-4). Since
the 2001 SWANCC and 2006 Rapanos rulings of the Supreme Court, many stakeholders have
argued that what is needed is legislative action to affirm Congress’s intention regarding CWA
jurisdiction, not guidance or new rules. This type of legislation would have broad implications for
the CWA, since questions of CWA jurisdiction are fundamental to all of the act’s regulatory
requirements.
Bills to address CWA jurisdictional issues, but taking different approaches, have been introduced
in several Congresses since 2001. Versions of one proposal (the Clean Water Authority
Restoration Act) were introduced in the 107th, 108th, 109th, 110th, and 111th Congresses. It would
have provided a broad statutory definition of “waters of the United States”; would have clarified
that the CWA is intended to protect U.S. waters from pollution, not just maintain their
navigability; and would have included a set of findings to assert constitutional authority over
waters and wetlands. In the 111th Congress, one of these bills was reported in the Senate (S. 787),
but no further action occurred.
Other legislation intended to restrict regulatory jurisdiction was introduced in the 108th and 109th
Congresses (the Federal Wetlands Jurisdiction Act, which was H.R. 2658 in the 109th Congress).
It would have narrowed the statutory definition of “navigable waters,” which is the key statutory
term for determining jurisdiction. It would have defined certain isolated wetlands that are not
adjacent to navigable waters, or non-navigable tributaries and other areas (such as waters
connected to jurisdictional waters by ephemeral waters, ditches or pipelines), as not being subject
to federal regulatory jurisdiction. There was no legislative action on these bills.
In the 114th Congress, legislation titled the Defense of Environment and Property Act has been
introduced (S. 980). This bill would clarify the term “navigable waters” in the CWA by defining
the term so as to be consistent with Justice Scalia’s plurality opinion in the 2006 Rapanos
decision, which was the narrowest of the three major opinions in the case.22 Similar bills were
introduced in the 112th and 113th Congresses; there also was no legislative action on them.
Enacting legislation to either broaden or restrict CWA jurisdiction would likely require EPA and
the Corps to issue new regulations, leading to another lengthy rulemaking process and potentially
to more legal challenges in the future.
So far, congressional consensus on legislation to redefine CWA jurisdiction has been elusive.
While the President might sign a bill such as the Clean Water Authority Restoration Act
introduced in the past, passage of such legislation by the Senate and House in the 114th Congress
is unlikely. On the other hand, if the House and Senate were to pass legislation to narrowly define

(...continued)
source for large budgetary savings. Moreover, spending for these activities is discretionary, not mandatory. For more
information on the content constraints of reconciliation legislation, see CRS Report R43885, Points of Order Limiting
the Contents of Reconciliation Legislation: In Brief
, by James V. Saturno.
22 Under this bill, CWA jurisdictional waters are waters that are navigable-in-fact or are permanent, standing,
continuously flowing waters that connect to navigable-in-fact waters. See CRS Report RL33263, The Wetlands
Coverage of the Clean Water Act (CWA): Rapanos and Beyond
, by Robert Meltz and Claudia Copeland, for discussion
of Justice Scalia’s opinion in Rapanos.
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Proposed “Waters of the United States” Rule: Congressional Response and Options

CWA jurisdiction, the President likely would veto it. As with the other options previously
discussed, a bill would need the President’s signature, or the votes of two-thirds majorities in both
chambers to override his veto.
Conclusion
This report has discussed four legislative options that Congress could consider to halt or redirect
EPA and the Corps’ proposed “waters of the United States” rule: the Congressional Review Act,
appropriations bill limitations, targeted legislation, and broad amendments to the Clean Water
Act. Each option faces a steep path to enactment.
Finally, it is noteworthy that some of the options—a CRA resolution and some current forms of
targeted legislation—would not only block EPA and the Corps from adopting, implementing or
enforcing the proposed rule, but also would prohibit the agencies from developing a similar rule.
As described previously, blocking both the proposed rule and future action (e.g., H.R. 594) or
requiring the agencies to restart the rulemaking process (e.g., H.R. 1732 and S. 1140) would leave
in place the status quo, with determinations of CWA jurisdiction being made pursuant to existing
regulations, non-binding agency guidance issued in 2003 and 2008, and jurisdictional
determinations done by 38 separate Corps district offices that in many cases require time-
consuming, case-specific evaluation by regulatory staff.
Stakeholder groups involved in the “waters of the United States” issue find agreement on few
aspects of the issue. Some support the proposed rule, some prefer the status quo rather than a rule
that they consider unclear, and some have concerns with the proposed rule but do support
clarifying the extent of CWA-regulated waters. Whether or how the views of these stakeholders
might change is unknown for now.

Author Contact Information

Claudia Copeland

Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227


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