[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4843 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4843

    To amend the Federal Water Pollution Control Act to clarify the 
jurisdiction of the United States over waters of the United States, and 
                          for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 15, 2004

Mr. Baker (for himself, Mr. Duncan, Mr. Berry, Mr. Young of Alaska, Mr. 
 Cannon, Mr. Tauzin, Mr. Bishop of Utah, Mr. Otter, Mr. Doolittle, Mr. 
Forbes, and Mr. Ose) introduced the following bill; which was referred 
         to the Committee on Transportation and Infrastructure

_______________________________________________________________________

                                 A BILL


 
    To amend the Federal Water Pollution Control Act to clarify the 
jurisdiction of the United States over waters of the United States, and 
                          for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Wetlands Jurisdiction Act of 
2004''.

SEC. 2. STATEMENT OF PURPOSES.

    The purposes of this Act are to--
            (1) clarify the jurisdiction of the Federal Government over 
        waters of the United States in light of the decision of the 
        Supreme Court in Solid Waste Agency of Northern Cook County v. 
        U.S. Army Corps of Engineers, 531 U.S. 159 (2001);
            (2) provide consistency throughout the Nation in 
        determining the jurisdiction of the Federal Government over 
        waters of the United States; and
            (3) consolidate in one Federal agency the authority of the 
        Federal Government to implement the permitting program 
        established under section 404 of the Federal Water Pollution 
        Act (33 U.S.C. 1344).

SEC. 3. FEDERAL JURISDICTION.

     Section 404(a) of the Federal Water Pollution Control Act (33 
U.S.C. 1344(a)) is amended--
            (1) by striking ``(a) The Secretary'' and inserting the 
        following:
    ``(a) Issuance of Permits.--
            ``(1) In general.--The Secretary''; and
            (2) by adding at the end the following:
            ``(2) Jurisdiction.--Waters of the United States, including 
        the territorial seas, shall be subject to the jurisdiction of 
        the permitting program established by this section if the 
        waters are--
                    ``(A) navigable;
                    ``(B) hydrologically connected to navigable waters 
                through a continuous, naturally occurring surface 
                connection; or
                    ``(C) wetlands adjacent to waters described in 
                subparagraph (A) or (B).
            ``(3) Surface connection.--
                    ``(A) Included waters.--For purposes of paragraph 
                (2)(B), waters shall be considered to be hydrologically 
                connected to navigable waters by a continuous, 
                naturally occurring surface connection if the waters 
                are connected by perennial or intermittent streams that 
                contribute flow to navigable waters, including 
                perennial or intermittent streams that have been 
                restored, relocated, or channelized on the surface or 
                that flow through culverts.
                    ``(B) Excluded waters.--For purposes of paragraph 
                (2)(B), waters shall not be considered to be 
                hydrologically connected to navigable waters by a 
                continuous, naturally occurring surface connection if 
                the waters are connected by--
                            ``(i) sheet flow (normal runoff of 
                        precipitation);
                            ``(ii) ephemeral waters, ground water, 
                        manmade ditches, or pipelines; or
                            ``(iii) a municipal separate storm sewer 
                        system or any other point source regulated 
                        under section 402, including a State program 
                        approved under section 402(b).
                Such connecting waters also shall not be subject to the 
                jurisdiction of the permitting program established by 
                this section.
            ``(4) Fastlands.--Fastlands shall not be subject to the 
        jurisdiction of the permitting program established by this 
        section.
            ``(5) Determination of jurisdiction.--
                    ``(A) Request for determination.--A person who 
                holds an ownership interest in property, or who has 
                written authorization from such person, may submit a 
                request to the Secretary identifying the property and 
                requesting the Secretary to determine the presence or 
                absence of waters of the United States subject to the 
                jurisdiction of the permitting program established by 
                this section. The person making the request may limit 
                the request to a determination of the presence or 
                absence of any of the waters described in paragraph 
                (2)(A), (2)(B), or (2)(C).
                    ``(B) Requests for additional information.--Not 
                later than 30 days after the date of receipt of a 
                request under subparagraph (A), the Secretary may make 
                one request for such additional information as may be 
                necessary to make the jurisdictional determination.
                    ``(C) Determination and notification by the 
                secretary.--Not later than 90 days after the date of 
                receipt of a request under subparagraph (A), or not 
                later than 60 days after the date of receipt of 
                additional information provided under subparagraph (B), 
                whichever is later, the Secretary shall--
                            ``(i) make a jurisdictional determination 
                        for the waters described in the request; and
                            ``(ii) provide written notification of the 
                        jurisdictional determination to the person 
                        submitting the request, together with written 
                        documentation of the determination and a 
                        written basis for the determination.
                    ``(D) Authority to seek immediate judicial 
                review.--
                            ``(i) In general.--Any person authorized 
                        under this paragraph to request a 
                        jurisdictional determination for property may--
                                    ``(I) seek judicial review of any 
                                such jurisdictional determination, or 
                                injunctive relief in the case of a 
                                failure to make a determination, in the 
                                United States District Court for the 
                                district in which the property is 
                                located; or
                                    ``(II) may proceed under the 
                                administrative appeals process 
                                established under this section.
                            ``(ii) Waters subject to review.--Judicial 
                        review, injunctive relief, or administrative 
                        appeal under clause (i) may be sought for any 
                        of the waters described in paragraph (2)(A), 
                        (2)(B), or (2)(C), as specified in the request 
                        made under this paragraph.
                            ``(iii) Judicial review following 
                        administrative appeals.--Any person who elects 
                        to proceed under the administrative appeals 
                        process shall retain the right to seek in the 
                        United States District Court for the district 
                        in which the property is located judicial 
                        review of the final decision of the Secretary 
                        under the administrative appeals process.''.

SEC. 4. SINGLE AGENCY IMPLEMENTATION.

    (a) In General.--Beginning on the date of enactment of this Act, 
all authorities of the Administrator of the Environmental Protection 
Agency under section 404 of the Federal Water Pollution Control Act (33 
U.S.C. 1344) are transferred to the Secretary of the Army, acting 
through the Chief of Engineers.
    (b) Authorities Retained by EPA.--Notwithstanding subsection (a), 
the Administrator shall retain the authority to comment on permits 
issued under section 404(a) of the Federal Water Pollution Control Act 
(33 U.S.C. 1344(a)) and general permits issued under section 404(e) of 
such Act (33 U.S.C. 1344(e)).
    (c) Transfer of Funds.--All funds appropriated to the Administrator 
for carrying out the authorities transferred under this section shall 
be transferred to the Secretary.
    (d) Conforming Amendments.--Section 404 of the Federal Water 
Pollution Control Act (33 U.S.C. 1344) is amended--
            (1) in subsection (b) by striking ``the Administrator, in 
        conjunction with'';
            (2) by striking subsection (c); and
            (3) in subsection (q) by adding at the end the following: 
        ``No agreement entered into under this subsection shall 
        authorize any of the signatory agencies to request a decision 
        concerning a permit issued under this section to be elevated to 
        any level above the District Engineer.''.

SEC. 5. DEFINITIONS.

    Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) is amended by adding at the end the following:
    ``(u) Definitions.--In this section, the following definitions 
apply:
            ``(1) Navigable.--The term `navigable' means a water that 
        is presently used, or is susceptible to use, in its natural 
        condition or by reasonable improvement as a means to transport 
        interstate or foreign commerce shoreward to its ordinary 
        highwater mark, including all waters that are subject to the 
        ebb and flow of the tide shoreward to their mean highwater 
        mark.
            ``(2) Wetlands.--The term `wetlands' means those lands that 
        have a predominance of hydric soils and that are inundated or 
        saturated by surface water or ground water at a frequency and 
        duration to support, and that under normal circumstances do 
        support, a prevalence of vegetation typically adapted for life 
        in saturated soil conditions. Wetlands generally include 
        swamps, marshes, bogs, and similar areas.
            ``(3) Adjacent wetlands.--The term `adjacent wetlands' 
        means wetlands that are physically touching (abutting or 
        contiguous to) a water described in subsection (a)(2)(A) or 
        (a)(2)(B). Wetlands separated by a riverbank from which river 
        water overflows into the wetlands annually or biannually are 
        adjacent wetlands for purposes of this section.
            ``(4) Culvert.--The term `culvert' means a pipe or 
        structure that conveys perennial or intermittent streams from 
        one side of a linear structure, such as a roadway, to the other 
        side.
            ``(5) Fastlands.--The term `fastlands' means areas located 
        behind legally constituted manmade structures, such as levees, 
        constructed and maintained to permit the utilization of the 
        areas for commercial, industrial, or residential purposes 
        consistent with local land use planning requirements.''.
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