[Congressional Record Volume 151, Number 53 (Wednesday, April 27, 2005)]
[Senate]
[Pages S4399-S4401]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Lautenberg, Mr. Leahy, Mr. 
        Kerry, Mr. Jeffords, Mrs. Boxer, Mr. Dayton, Mr. Schumer, and 
        Mr. Durbin):
  S. 912. A bill to amend the Federal Water Pollution Control Act to 
clarify the jurisdiction of the United States over waters of the United 
States; to the Committee on Environment and Public Works.
  Mr. FEINGOLD. Mr. President, today I am introducing important 
legislation to affirm Federal jurisdiction over the waters of the 
United States. I am pleased to have three members of the Environment 
and Public Works Committee--the Senator from Vermont, Mr. Jeffords, the 
Senator from New Jersey, Mr. Lautenberg, the Senator from California, 
Mrs. Boxer--as original cosponsors of this bill. I also thank Senators 
Dayton, Kerry, Schumer, and Durbin for joining me in introducing this 
important legislation.
  In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency 
of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 
majority limited the authority of Federal agencies to use the so-called 
migratory bird rule as the basis for asserting Clean Water Act 
jurisdiction over non-

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navigable, intrastate, isolated wetlands, streams, ponds, and other 
bodies of water.
  This decision, known as the SWANCC decision, means that the 
Environmental Protection Agency and Army Corps of Engineers can no 
longer enforce Federal Clean Water Act protection mechanisms to protect 
a waterway solely on the basis that it is used as habitat for migratory 
birds.
  In its discussion of the case, the Court went beyond the issue of the 
migratory bird rule and questioned whether Congress intended the Clean 
Water Act to provide protection for isolated ponds, streams, wetlands 
and other waters, as it had been interpreted to provide for most of the 
last 30 years. While not the legal holding of the case, the Court's 
discussion has resulted in a wide variety of interpretations by EPA and 
Corps officials that jeopardize protection for wetlands, and other 
waters. The wetlands at risk include prairie potholes and bogs, 
familiar to many in Wisconsin, and many other types of wetlands.
  In effect, the Court's decision removed much of the Clean Water Act 
protection for between 30 percent to 60 percent of the Nation's 
wetlands. An estimated 60 percent of the wetlands in my home State of 
Wisconsin lost Federal protection. Wisconsin is not alone. The National 
Association of State Wetland Managers has been collecting data from 
States across the country. For example, Nebraska estimates that it will 
lose protection for more than 40 percent of its wetlands. Indiana 
estimates it will lose 31 percent of total wetland acreage and 74 
percent of the total number of wetlands. Delaware estimates the loss of 
protection for 33 percent or more of its freshwater wetlands.
  These wetlands absorb floodwaters, prevent pollution from reaching 
our rivers and streams, and provide crucial habitat for most of the 
Nation's ducks and other waterfowl, as well as hundreds of other bird, 
fish, shellfish and amphibian species. Loss of these waters would have 
a devastating effect on our environment.
  In addition, by narrowing the water and wetland areas subject to 
federal regulation, the decision also shifts more of the economic 
burden for regulating wetlands to state and local governments. My home 
State of Wisconsin has passed legislation to assume the regulation of 
isolated waters, but many other States have not. This patchwork of 
regulation means that the standards for protection of wetlands 
nationwide are unclear and confusing, jeopardizing the migratory birds 
and other wildlife that depend on these wetlands.
  Since 2001, the confusion over the interpretation of the SWANCC 
decision has grown. On January 15, 2003, the EPA and Army Corps of 
Engineers published in the Federal Register an Advanced Notice of 
Proposed Rulemaking raising questions about the jurisdiction of the 
Clean Water Act. Simultaneously, they released a guidance memo to their 
field staff regarding Clean Water Act jurisdiction.
  The agencies claim these actions are necessary because of the SWANCC 
case. But both the guidance memo and the proposed rulemaking go far 
beyond the holding in SWANCC. The guidance took effect right away and 
has had an immediate impact. It tells the Corps and EPA staff to stop 
asserting jurisdiction over isolated waters without first obtaining 
permission from headquarters. Based on this guidance, waters that the 
EPA and Corps judge to be outside the Clean Water Act can be filled, 
dredged, and polluted without a permit or any other long-standing Clean 
Water Act safeguard.
  The rulemaking announced the Administration's intention to consider 
even broader changes to Clean Water Act coverage for our waters. 
Specifically, the agencies are questioning whether there is any basis 
for asserting Clean Water Act jurisdiction over additional waters, like 
intermittent streams. The possibility for a redefinition of our waters 
is troubling because there is only one definition of the term ``water'' 
in the Clean Water Act. The wetlands program, the point source program 
which stops the dumping of pollution, and the non-point program 
governing polluted runoff all depend on this definition. Even though 
the Administration rescinded this proposed rulemaking in December 2003, 
the policy guidance remains in effect.
  If we don't protect a category of waters from being filled under the 
wetlands program, we also fail to protect them from having trash or raw 
sewage dumped in them, or having other activities that violate the 
Clean Water Act conducted in them as well.
  Congress needs to re-establish the common understanding of the Clean 
Water Act's jurisdiction to protect all waters of the U.S.--the 
understanding that Congress held when the Act was adopted in 1972--as 
reflected in the law, legislative history, and longstanding 
regulations, practice, and judicial interpretations prior to the SWANCC 
decision.
  The proposed legislation is very simple. It does three things. First, 
it adopts a statutory definition of ``waters of the United States'' 
based on a longstanding definition of waters in the EPA and Corps of 
Engineers' regulations. Second, it deletes the term ``navigable'' from 
the Act to clarify that Congress's primary concern in 1972 was to 
protect the nation's waters from pollution, rather than just sustain 
the navigability of waterways, and to reinforce that original intent. 
Finally, it includes a set of findings that explain the factual basis 
for Congress to assert its constitutional authority over waters and 
wetlands on all relevant constitutional grounds, including the Commerce 
Clause, the Property Clause, the Treaty Clause, and Necessary and 
Proper Clause.
  In conclusion, I am very pleased to have the support of so many 
environmental and conservation groups, as well as organizations that 
represent those who regulate and manage our country's wetlands, such 
as: the Natural Resources Defense Council, Earthjustice, the National 
Wildlife Federation, Sierra Club, American Rivers, the National Audubon 
Society, U.S. Public Interest Research Group, Defenders of Wildlife, 
the Ocean Conservancy, Trout Unlimited, the Izaac Walton League, and 
the Association of State Floodplain Managers. They know, as I do, that 
we need to re-affirm the Federal Government's role in protecting our 
water. This legislation is a first step in doing just that.
  I ask unanimous consent that the text of the legislation be printed 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 912

       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 Authority 
     Restoration Act of 2005''.

     SEC. 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.

     SEC. 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

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     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.

     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 (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.''.

     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''.
                                 ______