S 787 IS

To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.CommentsClose CommentsPermalink

April 2, 2009CommentsClose CommentsPermalink

Mr. FEINGOLD (for himself, Mrs. BOXER, Mr. CARDIN, Mr. BROWN, Ms. CANTWELL, Mr. CARPER, Mr. DODD, Mr. DURBIN, Mrs. GILLIBRAND, Mr. KERRY, Mr. KOHL, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Mr. LIEBERMAN, Mr. MENENDEZ, Mr. MERKLEY, Mr. REED, Mr. SANDERS, Mr. SCHUMER, Mrs. SHAHEEN, Ms. STABENOW, Mr. WHITEHOUSE, and Mr. WYDEMr. WYDEN, and Mr. KAUFMAN) introduced the following bill; which was read twice and referred to the Committee on Environment and Public WorksCommentsClose CommentsPermalink

To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Clean Water Restoration Act’. CommentsClose CommentsPermalink

SEC. 2. PURPOSES.

The purposes of this Act are-- CommentsClose CommentsPermalink





(1) to reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (Public Law 92-500; 86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States; and CommentsClose CommentsPermalink





(2) to clearly define the waters of the United States that are subject to the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); and(3) to provide protection to the waters of the United States to the maximum extent of the legislative authority of Congress under the Constitution as those features that were treated as such pursuant to the final rule (including the preamble to that final rule) published at 53 Fed. Reg. 20764 (June 6, 1988) and 51 Fed. Reg. 41206 (November 13, 1986), and other applicable rules and interpretations as in effect on January 8, 2001. CommentsClose CommentsPermalink

SEC. 3. FINDINGS.

Congress finds that-- CommentsClose CommentsPermalink





(1) water is a unique and precious resource used not only to sustain human, animal, and plant life, but is also economically important for agriculture, transportation, flood control, energy production, recreation, fishing and shellfishing, and municipal and commercial uses;(2) water is transported through interconnected hydrological cycles, and the pollution, impairment, or destruction of any part of an aquatic system may affect the chemical, physical, and biological integrity of other parts of the aquatic system; CommentsClose CommentsPermalink





(3) in 1972, Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (Public Law 92-500; 86 Stat. 816), which amended the Federal Water Pollution Act (33 U.S.C. 1251 et seq.) in its entirety, in order to meet the national objective of restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters;

(4) prior to the date of enactment of that Act in 1972, State approaches and previous Federal legislation proved ineffective in protecting the Nation’s waters;

(5) the enactment of that Act in 1972 established uniform, minimum national water quality and other clean water protection programs to restore and maintain aquatic ecosystems of the United States that serve as critical drinking water sources, water supplies for municipal, industrial, and agricultural uses, flood reduction, recreation, habitat for fish and wildlife, and many other uses;

(6) in establishing broad, uniform, and minimum Federal standards and programs under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) in 1972, Congress recognized, preserved, and protected the responsibility and right of the States and Indian tribes to prevent, reduce, and eliminate pollution of waters by preserving for States and Indian tribes the ability to manage grant, research, and permitting programs by assuming implementation of portions of the Act to prevent, reduce, and eliminate pollution, and to establish standards and programs that are more protective than Federal standards and programs, for waters of the United States within the borders of each State or on land under the jurisdiction of the Indian tribe;

(7) since the 1970s, the definitions of ‘waters of the United States’ in regulations of the Environmental Protection Agency and the Corps of Engineers have properly established the scope of waters that require protection by the Federal Water Pollution Control Act in order to meet the national objective described in paragraph (3);

(8) this Act will treat, as ‘waters of the United States’, those features that were treated as such pursuant to the regulations of the Environmental Protection Agency and the Corps of Engineers in existence before the dates of the decisions referred to in paragraph (10), including--

(A) all waters which are subject to the ebb and flow of the tide;

(B) all interstate waters, including interstate wetlands;

(C) all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds;

(D) all impoundments of waters of the United States;

(E) tributaries of the aforementioned waters;

(F) the territorial seas; and

(G) wetlands adjacent to the aforementioned waters;

(92) ‘ground waters’ are treated separately from ‘waters of the United States’ for purposes of the Federal Water Pollution Control Act and are not considered ‘waters of the United States’ under this Act; CommentsClose CommentsPermalink




(103) the ability to meet the national objective described in paragraph (3of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) has been undermined by the decisions of the United States Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (January 9, 2001) and Rapanos v. United States, 547 U.S. 715 (June 19, 2006), which have resulted in confusion, permitting delays, increased costs, litigation, and reduced protections for waters of the United States described in paragraph (8);

(11) to restore original protections, Congress is the only entity that can reaffirm the geographical scope of waters that are protected under the Federal Water Pollution Control Act;

(12) the intent of Congress with the enactment of this Act is to restore geographical jurisdiction of the Federal Water Pollution Control Act to that which was in existence before the dates of the decisions referred to in paragraph (10);

(13)(A) as set forth in section 6, nothing in this Act modifies or otherwise affects the amendments made by the Clean Water Act of 1977 (Public Law 95-217; 91 Stat. 1566) to the Federal Water Pollution Control Act that exempted certain activities, such as farming, silviculture, and ranching activities, as well as agricultural stormwater discharges and return flows from oil, gas, and mining operations and irrigated agriculture, from particular permitting requirements;

(B) furthermore, the definition of the term ‘point source’ under section 502 of that Act (33 U.S.C. 1362) excludes agricultural stormwater discharges and return flows from irrigated agriculture; and

(C) this Act does not modify or otherwise affect any of the provisions described in subparagraphs (A) and (B);

(14)(A) through agency rulemaking, the term ‘waters of the United States’ did not include--

(i) prior converted cropland used for agriculture; or

(ii) manmade waste treatment systems neither created in waters of the United States nor resulting from the impoundment of waters of the United States; CommentsClose CommentsPermalink




and

(B) this Act does not modify or otherwise affect either of the provisions described in subparagraph (A);

(1 (4) this Act reaffirms Federal jurisdiction over all waters of the United States, as the Federal Water Pollution Control Act was applied and interpreted in the regulations, guidance, and interpretations of the Environmental Protection Agency and the Corps of Engineers prior to the rulings of the United States Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (January 9, 2001), and Rapanos v. United States, 547 U.S. 715 (June 19, 2006) and overturns the decisions of the Supreme Court in those cases; CommentsClose CommentsPermalink




(5) Congress supports the policy in effect under section 101(g) of the Federal Water Pollution Control Act (33 U.S.C. 1251(g)), which states that ‘the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.’; CommentsClose CommentsPermalink





(16) protection of intrastate waters, including geographically isolated waters, is necessary to restore and maintain the chemical, physical, and biological integrity of all waters in the United States; CommentsClose CommentsPermalink





(17) the regulation of discharges of pollutants into intrastate waters is an integral part of the comprehensive clean water regulatory program of the United States; CommentsClose CommentsPermalink





(18) small and intermittent streams, including ephemeral and seasonal streams, which have been jeopardized by the decisions referred to in paragraph (103)-- CommentsClose CommentsPermalink





(A) comprise the majority of all stream miles in the United States; CommentsClose CommentsPermalink





(B) serve critical biological and hydrological functions that affect entire watersheds; CommentsClose CommentsPermalink





(C) reduce the introduction of pollutants to large streams and rivers; CommentsClose CommentsPermalink





(D) provide and purify drinking water supplies; CommentsClose CommentsPermalink





(E) are especially important to the life cycles of aquatic organisms; and CommentsClose CommentsPermalink





(F) aid in flood prevention, including reducing the flow of higher-order streams; CommentsClose CommentsPermalink





(19) the pollution or other degradation of waters of the United States, individually and in the aggregate, has a substantial relation to and effect on interstate commerce; CommentsClose CommentsPermalink





(210) protection of intrastate waters is necessary to prevent significantubstantial harm to interstate commerce and sustain a robust system of interstate commerce in the future; CommentsClose CommentsPermalink





(211)(A) waters, including streams and wetlands, provide protection from flooding; and CommentsClose CommentsPermalink





(B) draining or filling intrastate wetlands and channelizing or filling intrastate streams can cause or exacerbate flooding that causes billions of dollars of damages annually, placing a significant burden on interstate commerce; CommentsClose CommentsPermalink





(212) millions of individuals in the United States depend on streams, wetlands, and other waters of the United States to filter water and recharge surface and subsurface drinking water supplies, protect human health, and create economic opportunity; CommentsClose CommentsPermalink





(213) source water protection areas containing small or intermittent streams provide water to public drinking water supplies serving more than 110,000,000 individuals in the United States; CommentsClose CommentsPermalink





(214)(A) millions of individuals in the United States enjoy recreational activities that depend on intrastate waters, such as waterfowl hunting, bird watching, fishing, and photography; and CommentsClose CommentsPermalink





(B) those activities and associated travel generate hundreds of billions of dollars of income each year for the travel, tourism, recreation, and sporting sectors of the economy of the United States; CommentsClose CommentsPermalink





(C) annually, 34,000,000 hunters and anglers spend more than $76,600,000,000 on hunting- and fishing-related products and activities, including approximately 2,000,000 waterfowl hunters who account for about $2,300,000,000 in annual economic growth;(215) activities that result in the discharge of pollutants into waters of the United States are commercial or economic in nature, and, in the aggregate, have a substantial effect on interstate commerce; CommentsClose CommentsPermalink





(216) a substantial number of the sources regulated under the Federal Water Pollution Control Act discharge into headwater streams that may be intermittent or seasonal; CommentsClose CommentsPermalink





(217) more than 40 percent of those sources, or 14,800 facilities with individual permits issued in accordance with the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), including industrial plants and municipal sewage treatment systems, discharge into small or intermittent streams; CommentsClose CommentsPermalink





(218) protecting the quality of and regulating activities affecting the waters of the United States is a necessary and proper means of implementing treaties to which the United States is a party, including treaties protecting species of fish, birds, and other wildlife; CommentsClose CommentsPermalink





(219) approximately half of North American migratory birds depend upon or are associated with wetlands and intermittent orsmall and intermittent streams, including ephemeral streams; CommentsClose CommentsPermalink





(320) approximately half of all threatened and endangered species in the United States depend on wetlands; CommentsClose CommentsPermalink





(321) for those reasons, the protection of wetlands and other waters providing breeding, feeding, and sheltering habitat for migratory birds and endangered species is essential to enable the United States to fulfill the obligations of the United States under international treaties for the conservation of those species; CommentsClose CommentsPermalink





(322) protecting the quality of and regulating activities affecting the waters of the United States is a necessary and proper means of protecting Federal land, including hundreds of millions of acres of parkland, refuge land, and other land under Federal ownership and the wide array of waters encompassed by that land; CommentsClose CommentsPermalink





and(3(23) protecting the quality of and regulating activities affecting the waters of the United States is necessary to protect Federal land and waters from discharges of pollutants and other forms of degradation; and CommentsClose CommentsPermalink





(24) nothing in this Act or any amendment made by this Act establishes any new right of access to private property for recreational purposes. CommentsClose CommentsPermalink

SEC. 4. DEFINITION OF WATERS OF THE UNITED STATES.

Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended-- CommentsClose CommentsPermalink





(1) by striking paragraph (7); CommentsClose CommentsPermalink





(2) by redesignating paragraphs (8) through (25) as paragraphs (7) through (24), respectively; and CommentsClose CommentsPermalink





(3) by adding at the end the following: CommentsClose CommentsPermalink





‘(25) WATERS OF THE UNITED STATES- CommentsClose CommentsPermalink





‘(A) IN GENERAL- The term ‘waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds, all tributaries of any of the above waters, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution. CommentsClose CommentsPermalink





‘(B) EXCLUSIONS- CommentsClose CommentsPermalink





‘(i) PRIOR CONVERTED CROPLAND- Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of this Act, the final authority regarding jurisdiction under this Act remains with the Environmental Protection Agency. CommentsClose CommentsPermalink





‘(ii) WASTE TREATMENT SYSTEMS- Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of this Act (other than cooling ponds which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal areas in wetlands) nor resulted from the impoundment of waters of the United States.’. CommentsClose CommentsPermalink

SEC. 5. CONFORMING AMENDMENTS.

The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) is amended-- CommentsClose CommentsPermalink





(1) by striking ‘navigable waters of the United States’ each place it appears and inserting ‘waters of the United States’; CommentsClose CommentsPermalink





(2) in section 304(l)(1) by striking ‘NAVIGABLE WATERS’ in the heading and inserting ‘WATERS OF THE UNITED STATES’; and CommentsClose CommentsPermalink





(3) by striking ‘navigable waters’ each place it appears and inserting ‘waters of the United States’. CommentsClose CommentsPermalink

SEC. 6. SAVINGS CLAUSE.

Nothing in this Act (or an amendment made by this Act) affects the authority of the Administrator of the Environmental Protection Agency or the Secretary of the Army underpplicability of the following provisions of the Federal Water Pollution Control Act: CommentsClose CommentsPermalink





(1) Section 402(l)(1) (33 U.S.C. 1342(l)(1)), relating to discharges composed entirely of return flows from irrigated agriculture. CommentsClose CommentsPermalink





(2) Section 402(l)(2) (33 U.S.C. 1342(l)(2)), relating to discharges of stormwater runoff from certain oil, gas, and mining operations composed entirely of flows from precipitation runoff conveyances, which are not contaminated by or in contact with specified materials. CommentsClose CommentsPermalink





(3) Section 404(f)(1)(A) (33 U.S.C. 1344(f)(1)(A)), relating to discharges of dredged or fill materials from normal farming, silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. CommentsClose CommentsPermalink





(4) Section 404(f)(1)(B) (33 U.S.C. 1344(f)(1)(B)), relating to discharges of dredged or fill materials for the purpose of maintenance of currently serviceable structures. CommentsClose CommentsPermalink





(5) Section 404(f)(1)(C) (33 U.S.C. 1344(f)(1)(C)), relating to discharges of dredged or fill materials for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches and maintenance of drainage ditches. CommentsClose CommentsPermalink





(6) Section 404(f)(1)(D) (33 U.S.C. 1344(f)(1)(D)), relating to discharges of dredged or fill materials for the purpose of construction of temporary sedimentation basins on construction sites, which do not include placement of fill material into the waters of the United States. CommentsClose CommentsPermalink





(7) Section 404(f)(1)(E) (33 U.S.C. 1344(f)(1)(E)), relating to discharges of dredged or fill materials for the purpose of construction or maintenance of farm roads or forest roads or temporary roads for moving mining equipment in accordance with best management practices. CommentsClose CommentsPermalink





(8) Section 404(f)(1)(F) (33 U.S.C. 1344(f)(1)(F)), relating to discharges of dredged or fill materials resulting from activities with respect to which a State has an approved program under. CommentsClose CommentsPermalink

(a) Promulgation- Not later than 18 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency and the Secretary of the Army shall promulgate such regulations as are necessary to implement this Act and the amendments made by this Act. CommentsClose CommentsPermalink





(b) Rules of Construction- Subject to the exclusions in paragraph (25)(B) of section 208(b)(4) of that502 of the Federal Water Pollution Control Act (33 U.S.C. 1288(b)(4)) meeting the requirements of subparagraphs (B) and (C) of that section.362) (as amended by section 4), the term ‘waters of the United States’ shall be construed consistently with-- CommentsClose CommentsPermalink





(1) the scope of Federal jurisdiction under that Act, as interpreted and applied by the Environmental Protection Agency and the Corps of Engineers prior to January 9, 2001 (including pursuant to the final rules and preambles published at 53 Fed. Reg. 20764 (June 6, 1988) and 51 Fed. Reg. 41206 (November 13, 1986)); and CommentsClose CommentsPermalink





(2) the legislative authority of Congress under the Constitution. CommentsClose CommentsPermalink