Short title

This Act may be cited as the

Federal Wetlands Jurisdiction Act of 2004

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).

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.

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..

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.