II 109th CONGRESS 1st Session S. 912 IN THE SENATE OF THE UNITED STATES April 27, 2005 Mr. Feingold (for himself, Mr. Lautenberg, Mr. Leahy, Mr. Kerry, Mr. Jeffords, Mrs. Boxer, Mr. Dayton, Mr. Schumer, and Mr. Durbin) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.

1.

Short title

This Act may be cited as the Clean Water Authority Restoration Act of 2005.

2.

Purposes

The purposes of this Act are as follows: (1)To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States. (2)To clearly define the waters of the United States that are subject to the Federal Water Pollution Control Act. (3)To provide protection to the waters of the United States to the fullest extent of the legislative authority of Congress under the Constitution.

3.

Findings

Congress finds the following: (1)Water is a unique and precious resource that is necessary to sustain human life and the life of animals and plants. (2)Water is used not only for human, animal, and plant consumption, but is also important for agriculture, transportation, flood control, energy production, recreation, fishing and shellfishing, and municipal and commercial uses. (3)In enacting amendments to the Federal Water Pollution Control Act in 1972 and through subsequent amendment, including the Clean Water Act of 1977 (91 Stat. 1566) and the Water Quality Act of 1987 (101 Stat. 7), Congress established the national objective of restoring and maintaining the chemical, physical, and biological integrity of the waters of the United States and recognized that achieving this objective requires uniform, minimum national water quality and aquatic ecosystem protection standards to restore and maintain the natural structures and functions of the aquatic ecosystems of the United States. (4)Water is transported through interconnected hydrologic 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. (5)Protection of intrastate waters, along with other waters of the United States, is necessary to restore and maintain the chemical, physical, and biological integrity of all waters in the United States. (6)The regulation of discharges of pollutants into interstate and intrastate waters is an integral part of the comprehensive clean water regulatory program of the United States. (7)Small and periodically-flowing streams comprise the majority of all stream channels in the United States and serve critical biological and hydrological functions that affect entire watersheds, including reducing the introduction of pollutants to large streams and rivers, and especially affecting the life cycles of aquatic organisms and the flow of higher order streams during floods. (8)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. (9)Protection of the waters of the United States, including intrastate waters, is necessary to prevent significant harm to interstate commerce and sustain a robust system of interstate commerce in the future. (10)Waters, including wetlands, provide protection from flooding, and draining or filling wetlands and channelizing or filling streams, including intrastate wetlands and streams, can cause or exacerbate flooding, placing a significant burden on interstate commerce. (11)Millions of people in the United States depend on 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. (12)Millions of people in the United States enjoy recreational activities that depend on intrastate waters, such as waterfowl hunting, bird watching, fishing, and photography and other graphic arts, and those activities and associated travel generate billions of dollars of income each year for the travel, tourism, recreation, and sporting sectors of the economy of the United States. (13)Activities that result in the discharge of pollutants into waters of the United States are commercial or economic in nature. (14)States have the responsibility and right to prevent, reduce, and eliminate pollution of waters, and the Federal Water Pollution Control Act respects the rights and responsibilities of States by preserving for States the ability to manage permitting, grant, and research programs to prevent, reduce, and eliminate pollution, and to establish standards and programs more protective of a State’s waters than is provided under Federal standards and programs. (15)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 wildlife. (16)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. (17)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.

4.

Definition of waters of the United States

Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended— (1)by striking paragraph (7); (2)by redesignating paragraphs (8) through (23) as paragraphs (7) through (22), respectively; and (3)by adding at the end the following: (23)

Waters of the United States

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, natural ponds, 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. .

5.

Conforming amendments

The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) is amended— (1)by striking navigable waters of the United States each place it appears and inserting waters of the United States; (2)in section 304(l)(1) by striking navigable waters in the heading and inserting waters of the united states; and (3)by striking navigable waters each place it appears and inserting waters of the United States.