[Congressional Record Volume 153, Number 120 (Wednesday, July 25, 2007)]
[Senate]
[Pages S9918-S9920]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Lautenberg, Mr. Levin, Mr. 
        Kerry, Mr. Lieberman, Mrs. Boxer, Mr. Menendez, Mr. Sanders, 
        Mr. Cardin, Mr. Durbin, Mr. Reed, Mr. Dodd, Mr. Kohl, Mr. 
        Whitehouse, Ms. Stabenow, Mr. Carper, Mr. Wyden, Mr. Leahy, Mr. 
        Brown, and Mr. Schumer):
  S. 1870. 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, in light of recent U.S. Supreme Court 
decisions, today I am introducing legislation to affirm Federal 
jurisdiction over the waters of the U.S. as Congress intended when it 
passed the Clean Water Act in 1972. I want to thank Senators 
Lautenberg, Levin, Kerry, Lieberman, Boxer, Menendez, Sanders, Cardin, 
Durbin, Reed, Dodd, Kohl, Whitehouse, Stabenow, Carper, Wyden, Leahy, 
Brown, and Schumer for joining me in introducing this important 
legislation.
  For 35 years, the American people have relied upon the Clean Water 
Act to protect and restore the health of the Nation's waters. The 
primary goal of the act, to make rivers, streams, wetlands, lakes, and 
coastal waters safe for fishing, swimming and other recreation, 
suitable for our drinking water supply, and available for wildlife and 
fish habitat, has broad public support not only as a worthy endeavor 
but also as a fundamental expectation of government providing for its 
citizens. It is our responsibility to ensure that our freshwater 
resources are able to enhance human health, contribute to the economy, 
and help the environment.
  We have made considerable progress towards ensuring the Nation's 
waters are drinkable, fishable, and swimmable. However, today, the 
Clean Water Act, one of our Nation's bedrock environmental laws, faces 
new and unprecedented challenges.
  Two controversial, closely divided U.S. Supreme Court rulings have 
reduced the jurisdictional scope of the Clean Water Act, undermining 
decades of clean water protections and disregarding Congress' intent 
when it originally passed the Clean Water Act.
  At the heart of the issue is the statutory definition of ``waters of 
the United States.'' Though recent court decisions have focused on 
dredge and fill permits under section 404, this definition is integral 
to the Federal Government's jurisdiction under the Clean Water Act as a 
whole. This definition is the linchpin for state water quality 
standards under section 302 and section 303, national performance 
standards under section 306, toxic and pretreatment standards under 
section 307, oil and hazardous substance liability under section 311, 
aquaculture standards under section 318, State water quality 
certifications under section 401, and national pollution discharge 
permitting requirements under section 402.
  In the 2001 case Solid Waste Agency of Northern Cook County v. Army 
Corps of Engineers, SWANCC, in a 5 to 4 decision, the U.S. Supreme 
Court limited the authority of Federal agencies to extend Clean Water 
Act protections to commercially nonnavigable, intrastate, ``isolated'' 
waters based solely on their use by migratory birds. While the Court's 
decision was narrow, the effect of the decision has been much broader: 
for example, according to the Environmental Protection Agency, 20 
percent of the Nation's wetlands outside Alaska are now at risk of 
losing Federal protections.
  Last June, the U.S. Supreme Court announced a sharply divided 
decision in the consolidated cases of Rapanos v. United States and 
Carabell v. Army Corps of Engineers that jeopardizes many more of our 
Nation's waters. Four justices joined an opinion that said only 
permanent or ``continuously flowing'' rivers and streams and by 
implication, the wetlands next to them are protected by the Clean Water 
Act, ignoring the act's text and purpose. This line of reasoning would 
leave more than half of our Nation's waters without Federal 
protections. To put these bodies of water into perspective, according 
to the Environmental Protection Agency, 110 million Americans get their 
drinking water from sources that include the very intermittent and 
ephemeral bodies of water that the four justices said were not 
protected by the Clean Water Act.
  Fortunately, five Justices rejected this radical rewrite of the act. 
However, Justice Kennedy, who provided the fifth vote to send the cases 
back to the lower courts, offered an entirely different test; one 
requiring EPA and the corps to show a ``significant nexus'' between a 
stream, river, or wetland and a navigable water in order for the 
stream, river, or wetland to be protected. At best, this test is 
confusing, will be resource-intensive to implement, and is likely to 
result in many waters Congress always included under the Clean Water 
Act being left unprotected from pollution.
  Fortunately, an unprecedented array of local, State, regional, and 
national officials, professional organizations, and public interest 
groups from across the country and the political spectrum have joined 
in the defense of the Clean Water Act. The unparalleled collection of 
interested parties includes the attorneys general of 33 States plus the 
District of Columbia; four former Administrators of the Environmental 
Protection Agency, Russell Train, Douglas Costle, William Reilly, and 
Carol Browner; 9 current and former members of the U.S. Senate and U.S. 
House of Representatives who were directly involved in the passage of 
the 1972 act and its reaffirmation in 1977; the Association of State 
Wetlands Managers, the Association of State Floodplain Managers, the 
Association of State and Interstate Water Pollution Control 
Administrators, and the Association of Fish and Wildlife Agencies; 
numerous hunting, fishing, wildlife and outdoor recreation 
organizations and businesses, including Ducks Unlimited, the

[[Page S9919]]

National Wildlife Federation, Trout Unlimited, the American 
Sportsfishing Association, Bass Pro Shops, the Orvis Company, and the 
Wildlife Management Institute, among others; and a number of local, 
regional, and national environmental groups. All of these interests 
filed briefs in the most recent Supreme Court case, expressing strong 
support of the Clean Water Act's core safeguard: the requirement to 
obtain a permit before discharging pollutants into waters of the U.S.

  With such strong support for the Clean Water Act, which is grounded 
in the language, history, and purpose of the law itself, I hope that my 
colleagues will join me in reaffirming Federal protections for streams, 
headwaters, tributaries, and wetlands that have long been covered by 
the act.
  The issue before us is simple: Does Congress support restoring 
historic clean water protections as they existed for nearly 30 years 
prior to the Supreme Court cases? If so, Congress must act. In 1972, 
Congress established protections for all ``waters of the United 
States'' and I am pleased to lead the charge in the Senate to reaffirm 
those protections.
  The Clean Water Restoration Act would reestablish protection for all 
waters historically covered by the Clean Water Act, prior to the SWANCC 
and Rapanos decisions. The bill could not be more straight-forward. It 
makes it clear that the Clean Water Act has always covered a myriad of 
interstate and intrastate waters, by codifying the regulatory 
definition of ``waters of the United States'' that has been in use 
since the 1970s. In fact, 30 years ago this month, the Environmental 
Protection Agency finalized the act's regulations, properly 
establishing the scope of waters needing to be protected by the Clean 
Water Act in order to meet the national objective. The Clean Water 
Restoration Act would codify the regulations the federal agencies have 
used to enforce the Clean Water Act for over 30 years. This is 
necessary to prevent the judicial branch from re-defining ``navigable 
waters'' as something other than the ``waters of the United States.''
  The bill's ``findings'' make it clear that Congress' primary concern 
in 1972 was to protect the Nation's waters from pollution rather than 
just sustain the navigability of waterways, and it reinforces that 
original intent. It also asserts Congress' constitutional authority, 
which extends beyond the Commerce Clause to the Property Clause, Treaty 
Clause, and Necessary and Proper Clause, to protect the Nation's 
waters.
  While the Clean Water Restoration Act is critical to preventing the 
courts from rewriting the law and thus further reducing the protections 
afforded to our Nation's waters under the Clean Water Act, the bill is 
remarkably simple and does not do many things.
  The bill does not prohibit development or other activities that 
discharge pollutants into waters. Complying with the Clean Water Act 
requires following a process that seeks to evaluate proposed activities 
and minimize impacts by ensuring certain pollution standards or 
environmental criteria are met. The vast majority of permit requests 
are granted, and most are granted through expedited ``general'' permits 
rather than individual permits that require site-specific 
determinations.
  The bill does not change the existing permitting process. Rather, the 
bill will provide much-needed clarity. The Supreme Court decisions have 
caused a lot of confusion, and the Corps of Engineers nationally has 
around 20,000 jurisdictional determinations pending. The regulated 
community, as well as state and federal agencies, will once again have 
a clear understanding that Clean Water Act protections extend to the 
same waters covered by the act for over thirty years.
  The bill does not change the EPA and Corps' existing regulations or 
any aspect of the regulatory programs, in fact, as stated above, the 
bill defines waters of the U.S. based on the regulations that have been 
in place since the early 1970s.
  The bill does not change the activities that are regulated. This 
means it does not change or overrule current exemptions related to 
farming, forestry, ranching, and infrastructure maintenance that have 
been in place since 1977. Activities such as plowing, seeding, 
cultivating, and harvesting; and constructing and maintaining farm or 
stock ponds, irrigation ditches, and farm or forest roads have been 
exempted from permitting requirements and will remain so under this 
bill.
  The bill does not create duplicative State and Federal permitting 
processes. The Clean Water Act created an important Federal-State 
partnership, and States can choose to assume from the Corps the dredge 
and fill permitting program, Section 404, or the EPA's NPDES permitting 
program for point sources, Section 402.
  The bill does not preempt state and local authority under the Clean 
Water Act. However, without the bill many State programs are in 
jeopardy because many States developed their own clean water laws so 
that they hinge entirely on the Federal Clean Water Act, and do not 
have separate state programs to fully address any voids left by the 
removal of Federal clean water protections. Also, some states prohibit 
their state laws from being any more protective than the Federal law. 
This means that if the Federal Clean Water Act's protections are 
curtailed, then the State's protections are also reduced.
  Statements that this bill would ``expand the scope of the Clean Water 
Act'' are disingenuous at best. For over 30 years, all ``waters of the 
United States'' have been regulated and Congress should not stand by 
while the courts and certain special interests roll back the critical 
protections afforded by the Clean Water Act.
  Congress must provide the needed leadership to clarify the intent of 
the Clean Water Act. Such action must ensure that all waters of the 
U.S., waters that are valuable for drinking, fishing, swimming, and a 
host of other economically vital uses, not just navigability, remain 
protected. After decades of progress, now is not the time to turn back 
the clock. I hope my colleagues will join me in reaffirming an 
important clean water pledge to the America people.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1870

       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 
     of 2007''.

     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 
     (commonly known as the ``Clean Water 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) Through prior enactments, 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. Since the 1970s, the definitions of 
     ``waters of the United States'' in the U.S. Environmental 
     Protection Agency's and the U.S. Army Corps of Engineers' 
     regulations have properly established the scope of waters 
     needed to be protected by the Federal Water Pollution Control 
     Act (33 U.S.C. 1251 et seq.) in order to meet the national 
     objective.
       (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 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 
     intrastate waters is an integral part of the comprehensive 
     clean water regulatory program of the United States.

[[Page S9920]]

       (7) Small and intermittent streams, including ephemeral and 
     seasonal streams, comprise the majority of all stream miles 
     in the United States and serve critical biological and 
     hydrological functions that affect entire watersheds. These 
     waters reduce the introduction of pollutants to large streams 
     and rivers, provide and purify drinking water supplies, and 
     are especially important to 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 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 streams and wetlands, provide 
     protection from flooding. 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.
       (11) Millions of people 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. Source water protection areas containing small 
     or intermittent streams provide water to public drinking 
     water supplies serving more than 110 million Americans.
       (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 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.
       (13) Activities that result in the discharge of pollutants 
     into waters of the United States are commercial or economic 
     in nature. More than 14,000 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.
       (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 (24) as 
     paragraphs (7) through (23), respectively; and
       (3) by adding at the end the following:
       ``(24) 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 shall be construed as affecting 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 (33 U.S.C. 1251 et seq.):
       (1) Section 402(l)(1), relating to discharges composed 
     entirely of return flows from irrigated agriculture.
       (2) Section 402(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), relating to discharges of dredged 
     or fill materials from normal farming, silviculture, and 
     ranching activities.
       (4) Section 404(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), 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), 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), 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), 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 such Act meeting the requirements of subparagraphs (B) and 
     (C) of that section.
                                 ______