[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2658 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 2658

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 26, 2005

 Mr. Baker (for himself, Mr. Berry, Mr. Brown of South Carolina, Mrs. 
  Northup, Mr. Cannon, and Mr. Duncan) 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 Federal Government 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 
2005''.

SEC. 2. STATEMENT OF PURPOSES.

    The purposes of this Act are--
            (1) to 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), so that, 
        consistent with the States' traditional and primary power over 
        land and water use, waters such as isolated wetlands that do 
        not have a significant nexus with traditional navigable waters 
        are not subject to Federal jurisdiction, but remain subject to 
        regulation by the States;
            (2) to provide consistency throughout the Nation in 
        determining the jurisdiction of the Federal Government over 
        waters of the United States;
            (3) to consolidate in one Federal agency the administrative 
        authority of the Federal Government to determine, in accordance 
        with this Act, the waters of the United States subject to the 
        jurisdiction of the permitting program established by section 
        404 of the Federal Water Pollution Control Act (33 U.S.C. 
        1344); and
            (4) to protect the right of States to regulate wetlands and 
        other waters within their jurisdiction.

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.--
                    ``(A) In general.--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--
                            ``(i) navigable;
                            ``(ii) connected to navigable waters 
                        through a continuous, naturally occurring 
                        surface water connection; or
                            ``(iii) wetlands adjacent to waters 
                        described in clause (i) or (ii).
                    ``(B) Included waters.--For purposes of 
                subparagraph (A)(ii) waters shall be considered to be 
                connected to navigable waters by a continuous, 
                naturally occurring surface water 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.
                    ``(C) Excluded waters.--
                            ``(i) In general.--For purposes of 
                        subparagraph (A)(ii), waters shall not be 
                        considered to be connected to navigable waters 
                        by a continuous, naturally occurring surface 
                        water connection if the waters are connected 
                        by--
                                    ``(I) sheet flow;
                                    ``(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).
                            ``(ii) Treatment of connecting waters.--The 
                        connecting waters described in clause (i) shall 
                        not be subject to the jurisdiction of the 
                        permitting program established by this section.
                            ``(iii) Fastlands.--Fastlands shall not be 
                        subject to the jurisdiction of the permitting 
                        program established by this section.''.

SEC. 4. STATUTORY CONSTRUCTION.

    Nothing in this Act, or the amendments made by this Act, shall be 
construed to preclude or deny the right of any State or interstate 
agency to control the discharge of dredged or fill material in any 
portion of the wetlands or other waters within the jurisdiction of such 
State, including any activity of any Federal agency.

SEC. 5. SINGLE AGENCY IMPLEMENTATION.

    Section 404(a) of the Federal Water Pollution Control Act (33 
U.S.C. 1344(a)) is further amended by adding the following:
            ``(3) Authority of secretary.--Beginning on the date of 
        enactment of this paragraph, the Secretary shall have sole 
        administrative authority to determine, in accordance with this 
        Act, the waters of the United States subject to the 
        jurisdiction of the permitting program established by this 
        section.''.

SEC. 6. DETERMINATION OF JURISDICTION.

    Section 404(a) of the Federal Water Pollution Control Act (33 
U.S.C. 1344(a)) is further amended by adding the following:
            ``(4) Request for determination.--A person who holds an 
        ownership interest in property, or who has written 
        authorization from such person, may submit to the Secretary a 
        request 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)(i), 
        (2)(A)(ii), or (2)(A)(iii).
            ``(5) Requests for additional information.--Not later than 
        30 days after the date of receipt of a request under paragraph 
        (4), the Secretary may make one request for such additional 
        information as may be necessary to make the jurisdiction 
        determination.
            ``(6) Determination and notification by the secretary.--Not 
        later that 90 days after the date of receipt of a request under 
        paragraph (4), or not later than 60 days after the date of 
        receipt of additional information provided under paragraph (5), 
        whichever is later, the Secretary shall--
                    ``(A) make a jurisdictional determination for the 
                waters described in the request; and
                    ``(B) 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.
            ``(7) Authority to seek immediate judicial review.--
                    ``(A) In general.--Any person authorized under 
                paragraph (4) 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) proceed under the administrative 
                        appeals process established under this section.
                    ``(B) Waters subject to review.--Judicial review, 
                injunctive relief, or administrative appeal under 
                subparagraph (A) may be sought for any of the waters 
                described in paragraph (2)(A)(i), (2)(A)(ii), or 
                (2)(A)(iii), as specified in the request made under 
                paragraph (4).
                    ``(C) 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. 7. DEFINITIONS.

    Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) is further amended by adding at the end the following:
    ``(v) Definitions.--In this section, the following definitions 
apply:
            ``(1) Adjacent wetlands.--The term `adjacent wetlands' 
        means wetlands that are physically touching (abutting or 
        contiguous to) a water described in subsection (a)(2)(A)(i) or 
        (a)(2)(A)(ii). Wetlands separated by a riverbank from which 
        river water overflows into the wetlands annually or biannually 
        are adjacent wetlands for purposes of this section.
            ``(2) 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.
            ``(3) Fastlands.--The term `fastlands' means areas located 
        within legally constituted manmade structures, such as levees 
        and dikes, constructed and maintained to permit the utilization 
        of the areas for commercial, industrial, or residential 
        purposes consistent with local land use planning requirements.
            ``(4) 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.
            ``(5) Sheet flow.--The term `sheet flow' means non-
        channelized water flowing over upland.
            ``(6) 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.''.
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