1.This Act may be cited as the
Clean Water Restoration
Act
.
2.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.
3.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.
4.Definition of
waters of the United StatesSection 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 StatesThe 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.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
.
6.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.
1.This Act may be cited as the
Clean Water Restoration
Act
.
2.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.
3.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.
4.Definition of waters of
the United StatesSection 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)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)
(i)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, 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.
.
5.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
.
6.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)).
7.
(a)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)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.
December 10, 2010
Reported with an amendment