[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 787 Reported in Senate (RS)]

                                                       Calendar No. 685
111th CONGRESS
  2d Session
                                 S. 787

                          [Report No. 111-361]

    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, Mr. Wyden, and Mr. Kaufman) 
introduced the following bill; which was read twice and referred to the 
               Committee on Environment and Public Works

                           December 10, 2010

               Reported by Mrs. Boxer, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Clean Water Restoration 
Act''.</DELETED>

<DELETED>SEC. 2. PURPOSES.</DELETED>

<DELETED>    The purposes of this Act are--</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (3) to provide protection to the waters of the 
        United States to the maximum extent of the legislative 
        authority of Congress under the Constitution.</DELETED>

<DELETED>SEC. 3. FINDINGS.</DELETED>

<DELETED>    Congress finds that--</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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);</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) all waters which are subject to the 
                ebb and flow of the tide;</DELETED>
                <DELETED>    (B) all interstate waters, including 
                interstate wetlands;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (D) all impoundments of waters of the 
                United States;</DELETED>
                <DELETED>    (E) tributaries of the aforementioned 
                waters;</DELETED>
                <DELETED>    (F) the territorial seas; and</DELETED>
                <DELETED>    (G) wetlands adjacent to the 
                aforementioned waters;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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);</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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);</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (C) this Act does not modify or otherwise affect 
        any of the provisions described in subparagraphs (A) and 
        (B);</DELETED>
        <DELETED>    (14)(A) through agency rulemaking, the term 
        ``waters of the United States'' did not include--</DELETED>
                <DELETED>    (i) prior converted cropland used for 
                agriculture; or</DELETED>
                <DELETED>    (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</DELETED>
        <DELETED>    (B) this Act does not modify or otherwise affect 
        either of the provisions described in subparagraph 
        (A);</DELETED>
        <DELETED>    (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.'';</DELETED>
        <DELETED>    (16) protection of intrastate waters is necessary 
        to restore and maintain the chemical, physical, and biological 
        integrity of all waters in the United States;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (18) small and intermittent streams, including 
        ephemeral and seasonal streams, which have been jeopardized by 
        the decisions referred to in paragraph (10)--</DELETED>
                <DELETED>    (A) comprise the majority of all stream 
                miles in the United States;</DELETED>
                <DELETED>    (B) serve critical biological and 
                hydrological functions that affect entire 
                watersheds;</DELETED>
                <DELETED>    (C) reduce the introduction of pollutants 
                to large streams and rivers;</DELETED>
                <DELETED>    (D) provide and purify drinking water 
                supplies;</DELETED>
                <DELETED>    (E) are especially important to the life 
                cycles of aquatic organisms; and</DELETED>
                <DELETED>    (F) aid in flood prevention, including 
                reducing the flow of higher-order streams;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (21)(A) waters, including streams and wetlands, 
        provide protection from flooding; and</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (29) approximately half of North American 
        migratory birds depend upon or are associated with wetlands and 
        intermittent or ephemeral streams;</DELETED>
        <DELETED>    (30) approximately half of all threatened and 
        endangered species in the United States depend on 
        wetlands;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 4. DEFINITION OF WATERS OF THE UNITED STATES.</DELETED>

<DELETED>    Section 502 of the Federal Water Pollution Control Act (33 
U.S.C. 1362) is amended--</DELETED>
        <DELETED>    (1) by striking paragraph (7);</DELETED>
        <DELETED>    (2) by redesignating paragraphs (8) through (25) 
        as paragraphs (7) through (24), respectively; and</DELETED>
        <DELETED>    (3) by adding at the end the following:</DELETED>
        <DELETED>    ``(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.''.</DELETED>

<DELETED>SEC. 5. CONFORMING AMENDMENTS.</DELETED>

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

<DELETED>SEC. 6. SAVINGS CLAUSE.</DELETED>

<DELETED>    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:</DELETED>
        <DELETED>    (1) Section 402(l)(1) (33 U.S.C. 1342(l)(1)), 
        relating to discharges composed entirely of return flows from 
        irrigated agriculture.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>

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; and
            (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.) as those features that were treated as 
        such pursuant to the final rule (including the preamble to that 
        final rule) published at 53 Fed. Reg. 20764 (June 6, 1988) and 
        51 Fed. Reg. 41206 (November 13, 1986), and other applicable 
        rules and interpretations as in effect on January 8, 2001.

SEC. 3. FINDINGS.

    Congress finds that--
            (1) 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;
            (2) ``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;
            (3) the ability to meet the national objective of the 
        Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) 
        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;
            (4) this Act reaffirms Federal jurisdiction over all waters 
        of the United States, as the Federal Water Pollution Control 
        Act was applied and interpreted in the regulations, guidance, 
        and interpretations of the Environmental Protection Agency and 
        the Corps of Engineers prior to the rulings 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) and overturns the decisions of the Supreme 
        Court in those cases;
            (5) 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.'';
            (6) protection of intrastate waters, including 
        geographically isolated waters, is necessary to restore and 
        maintain the chemical, physical, and biological integrity of 
        all waters in the United States;
            (7) the regulation of discharges of pollutants into 
        intrastate waters is an integral part of the comprehensive 
        clean water regulatory program of the United States;
            (8) small and intermittent streams, including ephemeral 
        streams, which have been jeopardized by the decisions referred 
        to in paragraph (3)--
                    (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;
            (9) 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;
            (10) protection of intrastate waters is necessary to 
        prevent substantial harm to interstate commerce and sustain a 
        robust system of interstate commerce in the future;
            (11)(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;
            (12) 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;
            (13) 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;
            (14)(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; 
        and
            (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;
            (15) 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;
            (16) a substantial number of the sources regulated under 
        the Federal Water Pollution Control Act discharge into 
        headwater streams that may be intermittent or seasonal;
            (17) 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;
            (18) 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;
            (19) approximately half of North American migratory birds 
        depend upon or are associated with wetlands and small and 
        intermittent streams, including ephemeral streams;
            (20) approximately half of all threatened and endangered 
        species in the United States depend on wetlands;
            (21) 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;
            (22) 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;
            (23) 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; and
            (24) nothing in this Act or any amendment made by this Act 
        establishes any new right of access to private property for 
        recreational purposes.

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.--
                    ``(A) In general.--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, including lakes, rivers, streams 
                (including intermittent streams), mudflats, sandflats, 
                wetlands, sloughs, prairie potholes, wet meadows, playa 
                lakes, and natural ponds, all tributaries of any of the 
                above waters, and all impoundments of the foregoing.
                    ``(B) Exclusions.--
                            ``(i) Prior converted cropland.--Waters of 
                        the United States do not include prior 
                        converted cropland. Notwithstanding the 
                        determination of an area's status as prior 
                        converted cropland by any other Federal agency, 
                        for the purposes of this Act, the final 
                        authority regarding jurisdiction under this Act 
                        remains with the Environmental Protection 
                        Agency.
                            ``(ii) Waste treatment systems.--Waste 
                        treatment systems, including treatment ponds or 
                        lagoons designed to meet the requirements of 
                        this Act (other than cooling ponds which also 
                        meet the criteria of this definition) are not 
                        waters of the United States. This exclusion 
                        applies only to manmade bodies of water which 
                        neither were originally created in waters of 
                        the United States (such as disposal areas in 
                        wetlands) nor resulted from the impoundment of 
                        waters of the United States.''.

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 (or an amendment made by this Act) affects the 
applicability of the following provisions of the Federal Water 
Pollution Control Act:
            (1) Section 402(l)(1) (33 U.S.C. 1342(l)(1)).
            (2) Section 402(l)(2) (33 U.S.C. 1342(l)(2)).
            (3) Section 404(f)(1)(A) (33 U.S.C. 1344(f)(1)(A)).
            (4) Section 404(f)(1)(B) (33 U.S.C. 1344(f)(1)(B)).
            (5) Section 404(f)(1)(C) (33 U.S.C. 1344(f)(1)(C)).
            (6) Section 404(f)(1)(D) (33 U.S.C. 1344(f)(1)(D)).
            (7) Section 404(f)(1)(E) (33 U.S.C. 1344(f)(1)(E)).
            (8) Section 404(f)(1)(F) (33 U.S.C. 1344(f)(1)(F)).

SEC. 7. REGULATIONS.

    (a) Promulgation.--Not later than 18 months after the date of 
enactment of this Act, the Administrator of the Environmental 
Protection Agency and the Secretary of the Army shall promulgate such 
regulations as are necessary to implement this Act and the amendments 
made by this Act.
    (b) Rules of Construction.--Subject to the exclusions in paragraph 
(25)(B) of section 502 of the Federal Water Pollution Control Act (33 
U.S.C. 1362) (as amended by section 4), the term ``waters of the United 
States'' shall be construed consistently with--
            (1) the scope of Federal jurisdiction under that Act, as 
        interpreted and applied by the Environmental Protection Agency 
        and the Corps of Engineers prior to January 9, 2001 (including 
        pursuant to the final rules and preambles published at 53 Fed. 
        Reg. 20764 (June 6, 1988) and 51 Fed. Reg. 41206 (November 13, 
        1986)); and
            (2) the legislative authority of Congress under the 
        Constitution.
                                                       Calendar No. 685

111th CONGRESS

  2d Session

                                 S. 787

                          [Report No. 111-361]

_______________________________________________________________________

                                 A BILL

    To amend the Federal Water Pollution Control Act to clarify the 
  jurisdiction of the United States over waters of the United States.

_______________________________________________________________________

                           December 10, 2010

                       Reported with an amendment