[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 787 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 787
To amend the Federal Water Pollution Control Act to clarify the
jurisdiction of the United States over waters of the United States.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 2, 2009
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. Wyden) 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.
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 ``Clean Water Restoration Act''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(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;
(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.
SEC. 3. FINDINGS.
Congress finds that--
(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;
(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;
(9) ``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;
(10) the ability to meet the national objective described
in paragraph (3) 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;
and
(B) this Act does not modify or otherwise affect either of
the provisions described in subparagraph (A);
(15) 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.'';
(16) protection of intrastate waters is necessary to
restore and maintain the chemical, physical, and biological
integrity of all waters in the United States;
(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;
(18) small and intermittent streams, including ephemeral
and seasonal streams, which have been jeopardized by the
decisions referred to in paragraph (10)--
(A) comprise the majority of all stream miles in
the United States;
(B) serve critical biological and hydrological
functions that affect entire watersheds;
(C) reduce the introduction of pollutants to large
streams and rivers;
(D) provide and purify drinking water supplies;
(E) are especially important to the life cycles of
aquatic organisms; and
(F) aid in flood prevention, including reducing the
flow of higher-order streams;
(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;
(20) protection of intrastate waters is necessary to
prevent significant harm to interstate commerce and sustain a
robust system of interstate commerce in the future;
(21)(A) waters, including streams and wetlands, provide
protection from flooding; and
(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;
(22) 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;
(23) 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;
(24)(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;
(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;
(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;
(25) 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;
(26) a substantial number of the sources regulated under
the Federal Water Pollution Control Act discharge into
headwater streams that may be intermittent or seasonal;
(27) 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;
(28) 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;
(29) approximately half of North American migratory birds
depend upon or are associated with wetlands and intermittent or
ephemeral streams;
(30) approximately half of all threatened and endangered
species in the United States depend on wetlands;
(31) 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;
(32) 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; and
(33) 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.
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--
(1) by striking paragraph (7);
(2) by redesignating paragraphs (8) through (25) as
paragraphs (7) through (24), respectively; and
(3) by adding at the end the following:
``(25) 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.''.
SEC. 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''.
SEC. 6. SAVINGS CLAUSE.
Nothing in this Act affects the authority of the Administrator of
the Environmental Protection Agency or the Secretary of the Army under
the following provisions of the Federal Water Pollution Control Act:
(1) Section 402(l)(1) (33 U.S.C. 1342(l)(1)), relating to
discharges composed entirely of return flows from irrigated
agriculture.
(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.
(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.
(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.
(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.
(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.
(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.
(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 section 208(b)(4) of that Act (33 U.S.C.
1288(b)(4)) meeting the requirements of subparagraphs (B) and
(C) of that section.
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