Rounds, Colleagues Introduce Bipartisan Bill to Protect Navigable Waters in the United States

WASHINGTON, DC – Today, U.S. Senator Mike Rounds (R-S.D.) joined his colleagues in introducing the bipartisan Federal Water Quality Protection Act (S.1140).

The bipartisan legislation would protect traditional navigable waters of the United States. It also protects farmers, ranchers and private landowners by directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to issue a revised “Waters of the United States” (WOTUS) rule that does not include things such as isolated ponds, ditches, agriculture water, storm water, groundwater, floodwater, municipal water supply systems, wastewater management systems, and streams without enough flow to carry pollutants to navigable waters.

"The administration’s proposed Waters of the U.S. rule is unnecessary and yet another example of unelected bureaucrats overstepping their boundaries when it comes to rulemaking,” said Rounds. “I agree with South Dakota farmers and ranchers, who continue to tell me this rule would bog down productivity by imposing massive new regulatory hurdles. In South Dakota, our producers are already good stewards of their land – they have to be because their livelihoods depend on it. I am pleased to be an original cosponsor of the Federal Water Quality Protection Act to protect South Dakota producers and put a stop to this unnecessary, burdensome and intrusive regulation.”

In addition to Rounds, the Federal Water Quality Protection Act is co-sponsored by Senate Majority Leader Mitch McConnell (R-K.Y.), The Committee on Environment and Public Works Chairman Jim Inhofe (R-O.K.), Senators Roy Blunt (R-M.O.), John Barrasso (R-W.Y.), Pat Roberts (R-K.S.), Shelley Moore Capito (R-W.V.), Deb Fischer (R-N.E.), Dan Sullivan (R-A.K.), Joe Donnelly (D-I.N.), Heidi Heitkamp (D-N.D.) and Joe Manchin (D-W.V.).                                                                                                                                                                                

Background

EPA and the Corps of Engineers have proposed to expand the scope of federal authority over land and water to encompass all water in a flood plain, manmade water management systems, and water that infiltrates into the ground or moves overland, and any other water that they decide has a “significant nexus” to downstream water based on use by animals, insects and birds and water storage considerations, shifting the focus of the Clean Water Act from water quality protection and navigable waters to habitat and water supply.

To address these concerns and to ensure protection of water for communities across the country, the Federal Water Quality Protection Act directs the agencies to issue a revised proposal that adheres to the following principles- 

• The Federal Water Pollution Control Act is an Act to protect traditional navigable waters from water pollution.
• Waters of the U.S. under that Act should include

o   Traditional navigable waters and interstate waters.

o   Streams identified on maps at the scale used by EPA to identify potential sources of drinking water.

o   Streams with enough flow to carry pollutants to a navigable water, based on a quantifiable and statistically valid measure of flow for that geographic area, and

o   Wetlands situated next to a water of the United States that protect water quality by preventing the movement of pollutants to navigable water.

o  Areas unlawfully filled without a required permit.

• Waters of the U.S. should not include

o   Water that is located below the surface of the land, including soil water and groundwater.

o   Water that is not located within a body of water (e.g., river, stream, lake, pond, wetland), including channels that have no bed, bank or ordinary high water mark or surface hydrologic connection to traditional navigable waters.

o   Isolated ponds.

o   Stormwater and floodwater management systems.

o   Wastewater management systems.

o   Municipal and industrial water supply management systems.

o   Agricultural water management systems.

o   Streams that do not have enough flow to carry pollutants to navigable waters.

o   Prior converted cropland.

o   Areas lawfully filled pursuant to a permit or areas exempt from permitting.

In identifying waters of the U.S., the agencies are directed that the following do not provide a basis for asserting federal control- 

• The use of a body of water by an organism, including a migratory bird.
• The supply of water to a groundwater aquifer and the storage of water in an isolated waterbody.
• The water cycle, including the supply of water through evaporation, transpiration, condensation, precipitation, overland flow, and movement of water in an aquifer.

To ensure that Corps and EPA carry out the important analyses and consultations that are designed to improve regulation, a new regulatory proposal must be developed employing the following-

• Federalism consultation under Executive Order 13132.
• Economic analyses under the Regulatory Flexibility Act.
• Small business and small governmental entity review under the Small Business Regulatory Enforcement Fairness Act.
• Review of the unfunded mandates under the Unfunded Mandates Reform Act.
• Compliance with Executive Orders 12866 and 13563, on improving regulation.