[Senate Report 111-361]
[From the U.S. Government Publishing Office]
Calendar No. 685
111th Congress Report
SENATE
2d Session 111-361
======================================================================
CLEAN WATER RESTORATION ACT
_______
December 10, 2010.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 787]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (S. 787) to amend the Federal Water Pollution
Control Act to clarify the jurisdiction of the United States
over waters of the United States, having considered the same,
reports favorably thereon with amendment and recommends that
the bill, as amended, do pass.
Introduction
Nearly four decades ago, pollution and destruction of our
Nation's waters had reached crisis levels.\1\ Major lakes, such
as Lake Erie, were choked with pollution, killing off fish and
aquatic vegetation. Rivers and streams across the country were
little more than open sewers. The Cuyahoga River had caught
fire. Wetlands were being destroyed at an increasing rate,
depriving coastal areas and river valleys of critically
important flood control protection and ecological benefits.\2\
---------------------------------------------------------------------------
\1\See generally A Legislative History of the Water Pollution
Control Act Amendments of 1972, Ser. No. 93-1, 93rd Cong. (1973) (1972
Act Legisl. Hist.), at 1253-55.
\2\Frayer, Status and Trends of Wetlands and Deepwater Habitats in
the Conterminous United States, 1950s to 1970s, U.S. Fish and Wildlife
Service, National Wetlands Inventory (April 1983).
---------------------------------------------------------------------------
To address the water quality crisis, Congress passed the
Federal Water Pollution Control Act Amendments of 1972,
commonly known as the Clean Water Act. Congress replaced the
prior system--a patchwork of ineffective state laws, and the
Federal Water Pollution Control Act that dated to 1948, which
had failed to adequately control the discharge of pollution
into the Nation's waterways--with a comprehensive federal-state
partnership to restore and maintain the biological, chemical
and physical integrity of the Nation's waters. Support for the
Clean Water Act has been bipartisan and far reaching. Large
majorities of both parties in the Senate and House of
Representatives voted for the major enactments in 1972 and
1977. President Richard Nixon vetoed the 1972 bill, but the
reaction to the veto was swift and decisive. Congress overrode
the veto just one day after it was issued, with overwhelming
bipartisan margins in both houses of Congress.\3\
---------------------------------------------------------------------------
\3\See 118 Cong. Rec. 36,879 (Senate vote of 52 to 12); id. 37060-
61 (House vote of 247 to 23).
---------------------------------------------------------------------------
In its first three decades, from 1972 through 2001, the
Clean Water Act achieved major progress, with more than 60% of
lakes and more than 55% of rivers meeting water quality
standards.\4\ The regulated community successfully operated
under the Clean Water Act framework for decades. However, two
decisions of the U.S. Supreme Court, in Solid Waste Agency of
Northern Cook County v. United States Army Corps of Engineers,
531 U.S. 159 (2001) (SWANCC) and Rapanos v. United States, 547
U.S. 715 (2006) (Rapanos), have caused substantial confusion
and threaten to undermine key goals of the Act.
---------------------------------------------------------------------------
\4\U.S. EPA, National Water Quality Inventory: 2002 Report,
September 2002.
---------------------------------------------------------------------------
According to the U.S. Environmental Protection Agency
(EPA), under the rulings in SWANCC and Rapanos, thousands of
miles of streams and millions of acres of wetlands previously
protected under the Act may be subject to uncontrolled
industrial pollution and destruction, including discharges of
chemicals, acids, toxics and other pollutants; discharges of
raw human sewage and large volumes of animal wastes;
uncontrolled oil spills; and dumping of other types of harmful
liquid and solid wastes in our waters.
The heads of five federal agencies have stated that there
is an urgent need for Congress to pass legislation to reverse
the Supreme Court's decisions, restore the protections of the
Clean Water Act, and return to the scope of jurisdiction
established in over a quarter century of implementation prior
to 2001.\5\
---------------------------------------------------------------------------
\5\Letter dated May 21, 2009 to Chairman Boxer, Senate Environment
and Public Works Committee from Nancy Sutley, Chair of the White House
Council on Environmental Quality; Lisa Jackson, Administrator of the
Environmental Protection Agency; Tom Vilsack, Secretary of the
Department of Agriculture; Ken Salazar, Secretary of the Department of
the Interior; and Terrence Salt, Acting Assistant Secretary of the Army
for Civil Works.
---------------------------------------------------------------------------
S. 787 as reported by the Committee achieves the objective
of restoring the scope of the Clean Water Act to that which
existed prior to SWANCC.
Background and Need for Legislation
The 1972 Clean Water Act
In 1972, Congress revised the legal framework of water
pollution control, through the Federal Water Pollution Control
Act Amendments (P.L. 92-500) (1972 Act), commonly referred to
as the Clean Water Act. Congress concluded that the existing
patchwork of state and federal laws and efforts was ineffective
at addressing the serious threats facing the Nation's waters
from uncontrolled industrial pollution, which resulted in
rivers, such as the Cuyahoga in Ohio, catching fire, algae
blooms forty miles long in the Great Lakes, and oil spills off
the California coast.\6\ As floor manager Senator Edmund Muskie
told the Senate when introducing the bill:
---------------------------------------------------------------------------
\6\See 1972 Act Legisl. Hist. at 1253-55.
The Committee on Public Works, after 2 years of study
of the Federal water pollution control program,
concludes that the [existing] national effort to abate
and control water pollution is inadequate in every
vital aspect.\7\
---------------------------------------------------------------------------
\7\117 Cong. Rec. 17397 (daily ed. Nov. 2, 1971).
The first sentence of the 1972 Act stated: ``The objective
of this chapter is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.''\8\
This Committee recognized, in reporting the bill that would
become the 1972 Act, that: ``[w]ater moves in hydrologic cycles
and it is essential that discharges of pollutants be controlled
at the source.''\9\ Accordingly, the Act redefined the term
``navigable waters''--which was held over from prior versions
of the Federal water laws dating back to 1899--to mean all
``waters of the United States.''\10\ When considering
amendments to the Act in 1977, Congress maintained the
comprehensive nature of the Act and rejected a number of
proposals to significantly narrow its scope.
---------------------------------------------------------------------------
\8\33 U.S.C. 1251.
\9\S. Rep No. 92-414 at 717, 92nd Cong. 77 (1971), 1972 Act Legisl.
Hist. at 1415.
\10\See House consideration of the Report of the Conference
Committee, Oct. 4, 1972, 1972 Act Legisl. Hist. at 250-251.
---------------------------------------------------------------------------
In its first three decades, action under the Clean Water
Act restored thousands of lakes, rivers, streams and wetlands,
protecting the water supply for American families and
businesses and providing essential habitat for fish, birds and
other wildlife. The quality of the Nation's waters improved
dramatically. More than 60% of lakes and 55% of rivers were
brought up to meet the Act's water quality standards for
fishing and swimming by 2003.\11\
---------------------------------------------------------------------------
\11\U.S. EPA, National Water Quality Inventory: 2002 Report,
September 2002.
---------------------------------------------------------------------------
The Act achieved these successes while respecting the needs
of farmers, ranchers, other businesses and communities to make
productive use of water resources. Through amendments to the
Act in 1977 and additional agency regulations and
interpretations, numerous categories of waters and activities
were classified as exempt from permit requirements under the
Act.\12\
---------------------------------------------------------------------------
\12\See U.S. EPA, Clean Water Section 404 Program Definition and
Permit Exemptions, Final Rule, 53 Fed. Reg. 20764 (June 6, 1988) and
U.S. Army Corps of Engineers, Final Rule for Clean Water Act Regulatory
Program, 51 Fed. Reg. 41206 (November 13, 1986) (EPA and Corps permit
regulations describing categories of waters generally not within the
scope of ``waters of the United States'').
---------------------------------------------------------------------------
The 1972 Act and the 1977 amendments also recognized and
fostered the role of the states. It created a new federal-state
partnership comprised of a uniform federal standard with a
majority of the states ultimately taking the lead in
implementing and enforcing clean water requirements.
The Supreme Court's Opinions in SWANCC and Rapanos
The ability to meet the national objective of the Clean
Water Act and provide certainty and predictability has been
undermined by the Supreme Court's decisions in SWANCC and
Rapanos. In SWANCC, the Clean Water Act's jurisdiction over
certain ``isolated'' waters was questioned. Rapanos involved a
further challenge to Clean Water Act protection of wetlands
located near tributaries of navigable waters.
Rather than providing clarity regarding the scope of the
Act's jurisdiction, in Rapanos the Court's plurality decision
created even further confusion, failing to provide any single
opinion with a majority of the justices joining. Four of the
justices in Rapanos, in an opinion by Justice Scalia, said that
the Act should only protect ``relatively permanent waters''
connected to traditionally navigable water bodies, as well as
wetlands with a ``continuous surface connection'' to other
protected waters. Justice Scalia's opinion relied on an
interpretation of a 1954 dictionary definition of the word
``waters.'' That interpretation was a departure from the clear
intent of Congress and the long-standing views of the
implementing agencies.
In a lone concurring opinion, Justice Kennedy took another
approach, which would require that certain wetlands be found to
have a ``significant nexus'' to traditional navigable waters in
order to be protected. But he gave little guidance as to what
such a ``significant nexus'' would be.
Under both Justice Scalia's and Justice Kennedy's
approaches, a case-by-case test would be applied to each water
body in question to determine jurisdiction. This constitutes a
complicated and unclear new way of determining jurisdiction
under the Act and is a significant departure from the approach
that had been used for decades.
Impacts of the SWANCC and Rapanos Decisions
In considering legislation to restore the scope of Clean
Water Act protection, the Committee received briefings and data
from EPA and the Corps of Engineers, as well as extensive
testimony from hearing witnesses, regarding the adverse impacts
of the Court's decisions. These impacts include (1) threats to
water bodies; (2) impaired enforcement capabilities; and (3)
confusion, delays, increased costs, uncertainty and litigation.
Threats to Waters of the United States
The Committee has held multiple hearings and briefings on
the impacts of the SWANCC and Rapanos cases. On June 10, 2003,
the Committee held a hearing on the SWANCC case at which
multiple witnesses described the negative implications of the
case for protecting and restoring the Nation's wetlands. In
addition, the Committee held a hearing in the wake of the
Rapanos decision on August 1, 2006. Federal agencies, legal
experts, and stakeholders described the various impacts of this
case ranging from lost wetlands protection to the uncertainty
created by the Supreme Court's decision. In particular, the
Department of Justice noted the lack of clarity in the wake of
Rapanos and the case-by-case approach that the lower courts
were taking in determining Clean Water Act jurisdiction.
On June 1, 2009, EPA staff briefed the Committee regarding
the Clean Water Act after SWANCC and Rapanos. EPA's briefing
described in detail the reduced protection of waters of the
United States following the Court's decisions, as well as the
adverse impacts on the CWA enforcement program.
EPA reported its finding that, under the rulings in SWANCC
and Rapanos, at a minimum, approximately 59% of the Nation's
stream miles and 20% of its remaining wetlands are at risk of
losing protections.\13\ These lost protections are occurring in
states throughout the country. Thousands of miles of streams
and millions of acres of wetlands could be subject to
uncontrolled industrial pollution and damage.
---------------------------------------------------------------------------
\13\U.S. EPA Briefing for U.S. Senate Staff, June 1, 2009 (EPA
Senate Briefing).
---------------------------------------------------------------------------
EPA also reported that there are many instances of serious
water pollution, ranging from oil spills to industrial waste
discharges, that as a result of the Court's decisions are no
longer subject to effective control under the Act.\14\
---------------------------------------------------------------------------
\14\Id.
---------------------------------------------------------------------------
Waters at risk under the Court's decisions include streams
that supply public drinking water systems serving more than 111
million Americans, a total of 5,646 public water supply
systems.\15\ For example, under Rapanos, an industrial polluter
could build a factory on a stream from which local drinking
water supplies are withdrawn and discharge toxic pollutants
without restriction, if the portion of the stream itself is not
suitable for navigation and whatever contamination is released
cannot be definitely linked to an impairment in a navigable
segment of the same water body, farther downstream.\16\
---------------------------------------------------------------------------
\15\See Letter from Benjamin H. Grumbles, Assistant Administrator,
U.S. EPA, to Jeanne Christie, Association of State Wetland Managers, at
2 (Jan. 9, 2006).
\16\Id. at 2.
---------------------------------------------------------------------------
EPA has estimated that at a minimum, 16,730 individual
Clean Water Act permitted facilities, or approximately 40
percent of all existing permitted facilities, are located in
headwater, intermittent, or ephemeral streams that are at risk
under Rapanos.\17\ This number includes approximately 4,600
permits for publicly-owned treatment works, 1,500 permits for
other sewerage systems (not publicly owned), 64 permits for
petroleum facilities, and 55 industrial chemical facilities.
Many of these facilities, which historically met Clean Water
Act requirements to protect human health and water quality
standards, could assert that they no longer need to comply as a
result of Rapanos.
---------------------------------------------------------------------------
\17\See Letter from Linda Boornazian, U.S. EPA to Joan Mulhern,
Earthjustice, dated May 18, 2007 (FOIA No. HQ-RIN-00684-07).
---------------------------------------------------------------------------
Dredging or filling streams, and draining and filling
wetlands, can cause or exacerbate flooding downstream. These
activities have important adverse economic impacts. A single
acre of wetland can store approximately 1 million gallons of
flood water.\18\ EPA has reported that it would cost $1.5
million annually to replace the natural flood control functions
of a 5,000 acre tract of drained Minnesota wetlands.\19\ Under
SWANCC, however, major portions of the Nation's wetlands are at
risk, with serious implications for public health, flood
control and water supply. For example, large swaths of wetlands
stretching across Iowa, Minnesota, South Dakota, North Dakota
and Montana are among the estimated 20 million wetland acres
that are at risk of losing protection under SWANCC. These
waters are crucially important habitat for waterfowl and other
wildlife. They also feed directly into the Ogallala Aquifer.
Irrigation from this aquifer forms the base of the economy in
the region, with farming accounting for 94 percent of the
groundwater use, supporting nearly one-fifth of the wheat,
corn, cotton, and cattle produced in the United States\20\ EPA
estimates that prairie potholes and playa lakes, two of the
major categories of waters at risk under SWANCC, contribute
between 80 and 95% of the total water recharged to the Ogallala
Aquifer.\21\
---------------------------------------------------------------------------
\18\U.S. EPA Wetlands: Protecting Life and Property from Flooding.
EPA843-F-06-001 at 1 (May 2006).
\19\U.S EPA Wetlands Fact Sheet, EPA842-F-95-001 (Feb. 1995).
\20\http://www.waterencyclopedia.com/Oc-Po/Ogallala-Aquifer.html
\21\EPA Senate Briefing June 2009.
---------------------------------------------------------------------------
Reduced and Impaired Agency Enforcement Capabilities
Prior to SWANCC, applicability and enforcement of the Clean
Water Act were well developed and understood by the regulated
community. As a result of the splintered and vague tests
announced by the Court, following SWANCC and Rapanos, EPA and
the Corps have been forced to spend hundreds or even thousands
of hours attempting to protect waters that formerly were
clearly protected under the Act. Consequently, enforcement of
the Act has been substantially curtailed. EPA has been unable
to pursue polluters in many cases involving direct dumping into
streams and other valuable waters, resulting in direct threats
to human health.\22\
---------------------------------------------------------------------------
\22\Id.
---------------------------------------------------------------------------
A March 2008 analysis by EPA's Office of Enforcement and
Compliance Assurance (OECA) stated: ``a significant portion of
the CWA enforcement docket has been adversely affected.''\23\
According to the head of OECA, the Rapanos decision is having a
``significant impact on enforcement'' and has ``created
uncertainty about EPA's ability to maintain an effective
enforcement program with respect to other [Clean Water Act]
obligations.''\24\ In fact, the Rapanos decision ``negatively
affected approximately 500 enforcement cases'' in just nine
months, about half of all the enforcement cases under the Clean
Water Act in one year.\25\
---------------------------------------------------------------------------
\23\U.S. EPA, Memorandum from Granta Y. Nakayama, EPA's Assistant
Administrator for Enforcement and Compliance Assurance, to Benjamin
Grumbles, EPA's Assistant Administrator for Water (Mar. 4, 2008).
\24\Id.
\25\Id.
---------------------------------------------------------------------------
Confusion, Delay, Uncertainty and Litigation
Before SWANCC it was clear what categories of waters were
protected. In rulemakings in the 1970s and 1980s, the Corps and
EPA had set forth in detail those categories of waters that
generally were deemed to be within the scope of ``waters of the
United States,'' and those categories of waters that generally
would not be viewed as within the scope of jurisdiction under
the Act.\26\
---------------------------------------------------------------------------
\26\See U.S. EPA, Clean Water Section 404 Program Definition and
Permit Exemptions, Final Rule, 53 Fed. Reg. 20764 (June 6, 1988) and
U.S. Army Corps of Engineers, Final Rule for Clean Water Act Regulatory
Program, 51 Fed. Reg. 41206 (November 13, 1986).
---------------------------------------------------------------------------
Prior to SWANCC, the courts held that the term ``waters of
the United States'' was to be interpreted broadly, consistent
with the Corps and EPA regulations. For example, in United
States v. Riverside Bayview, 474 U.S. 121 (1985) the Supreme
Court held that the jurisdiction of the Act under the
definition of ``waters of the United States'' was not limited
to navigable waters, but extended to non-navigable waters
adjacent to navigable waters.
The Supreme Court's opinions in SWANCC and Rapanos have
left the scope of the law unclear. The Court's rulings
invalidated major aspects of historical regulatory
interpretation, but did not provide any clear direction going
forward on the scope of ``waters of the United States.''
Consequently, the lower courts applying Rapanos have applied
different tests and combinations of tests from the decision.
The 8th, 1st and 6th Circuit Courts of Appeal have held that
either the approach announced by Justice Scalia or the approach
announced by Justice Kennedy may be used to establish
jurisdiction. The 11th Circuit has ruled that only the Kennedy
approach may be used. In the 7th and 9th Circuits, the courts
have held that waters qualifying for protection under the
``significant nexus'' test are covered, but it is unsettled
whether the other test may be used. The 5th Circuit and 2nd
Circuit have yet to rule on the issue. The Supreme Court itself
has declined to take up a number of cases since Rapanos in
which parties have requested clarification of the Court's
rulings. The one overarching impact has been extensive delays
and uncertainty, both for the agencies and regulated entities
alike.
The Role of the States
The majority of State authorities support the comprehensive
scope of the Clean Water Act that was intended by Congress in
the 1972 Act. In the Rapanos case, for example, a coalition of
34 States and the District of Columbia\27\ filed a brief
supporting the position of the Bush Administration, which
defended the broad scope of ``waters of the United States.''
The States noted the following major points:
---------------------------------------------------------------------------
\27\The coalition included New York, Michigan, Arizona, Arkansas,
California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota,
Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico,
North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina,
Tennessee, Vermont, Washington, and Wisconsin, along with District of
Columbia, the Pennsylvania Department of Environmental Protection, and
the International Association of Fish and Wildlife Agencies.
---------------------------------------------------------------------------
``[W]ater flows downhill, and each of the lower 48
States has water bodies that are downstream of one or more
other States.''
``[O]ver the past three decades, the States have
come to rely on the Clean Water Act's core provisions and have
structured their own water pollution programs accordingly.''
``Comprehensive coverage under the Clean Water Act
is necessary to maintain the balance between federal and State
authority established by the Act. The Act preempts certain
common-law remedies traditionally used to address interstate
water pollution, leaving the federal statutory provisions as
the primary mechanism for protecting downstream States from the
effects of upstream pollution. Curtailing the Act's coverage
would also unfairly require States to impose disproportionate
limits on in-state sources to offset unregulated upstream
discharges.''
``Many States rely on the Act as the sole source
of legal protection for adjacent wetlands. Other States rely in
part on the federal law and resources, augmenting them with
state laws and resources, including in some instances state
water-pollution-control laws.''
For the same reasons, numerous associations representing
the interests of States have called for restoring the historic
scope of the Clean Water Act. The following State associations
have expressly endorsed the amended version of S. 787 as
reported by the Committee: Association of Fish & Wildlife
Agencies, Association of State and Interstate Water Pollution
Control Administrators, Association of State Floodplain
Managers, Association of State Wetland Managers, the Coastal
States Organization, and the Environmental Council of the
States.\28\
---------------------------------------------------------------------------
\28\See Letter from Steven Brown, Executive Director, Environmental
Council of the States, et al., to EPW Committee Chairman Senator
Barbara Boxer, June 10, 2009.
---------------------------------------------------------------------------
Historic Bipartisan Support for Comprehensive Clean Water Act
Protection
Comprehensive protection of our Nation's waters has enjoyed
long-standing bipartisan support. When the Clean Water Act was
first enacted in 1972, this Committee favorably reported the
bill by a vote of 16-0.\29\ The vote on adoption of the
conference report (S. 2770) was overwhelming in the House (366-
11)\30\ and without opposition in the Senate (74-0).\31\
---------------------------------------------------------------------------
\29\1972 Act Legisl. Hist. at 1509.
\30\118 Cong. Rec. 33,767 (1972).
\31\Id. at 33,718.
---------------------------------------------------------------------------
The Clean Water Act of 1977 (S. 1952), which, as discussed
below, affirmed protection of all of the waters of the United
States without regard to navigability,\32\ was reported by this
Committee by a unanimous vote of 15-0.\33\ The bill initially
passed the House by a vote of 361-43. The amended version
passed the Senate on a vote of 96-0 and the adoption of the
conference report was approved in the full Senate by a voice
vote.\34\
---------------------------------------------------------------------------
\32\See Section-by-section analysis below at 23-26.
\33\Sen. Rep. 95-370 at 83, 4 Legislative History of the Clean
Water Act of 1977, Ser. No. 95-14 (95th Cong. 1978) (``1977 Amendments
Legisl. Hist.'') at 716. Committee members Senators Randolph (D-WV),
Muskie (D-ME), Gravel (D-AK), Bentsen (D-TX), Burdick (D-ND), Culver
(D-IA), Hart (D-CO), Anderson (D-MN), Moynihan (D-NY), Stafford (R-VT),
McClure (R-ID), Domenici (R-NM), Wallop (R-WY), and Chaffee (R-RI)
voted to report the bill favorably. While the Committee Report attached
Additional Views, including those of Senator McClure (R-ID) in the
minority, the Additional Views did not take any issue with the Report's
statement that the scope of jurisdiction over the ``Nation's waters''
under the Act would remain comprehensive, ``to the fullest
constitutional extent'' of Congress's authority. Id. at 708.
\34\Id. at 947.
---------------------------------------------------------------------------
Under President George H.W. Bush, in 1990 the Corps and EPA
entered into a Memorandum of Agreement to implement President
Bush's policy of no-net-loss of the Nation's wetlands.\35\ This
policy relied on the comprehensive scope and regulatory
mechanisms of the Clean Water Act to protect waters of the
United States, including wetlands and intermittent streams.
---------------------------------------------------------------------------
\35\U.S. EPA and U.S. Army Corps of Engineers Memorandum of
Agreement Concerning Mitigation of Wetland Losses, Feb. 6, 1990.
---------------------------------------------------------------------------
The goal of no-net-loss was embraced and expanded on by
President Bill Clinton. His Administration's Clean Water Action
Plan set a goal of attaining a net increase of 100,000 acres of
wetlands per year by 2005.\36\ The no-net-loss and increase in
wetlands goals also were adopted by the Administration of
George W. Bush.\37\ Moreover, in the 2006 Rapanos case before
the Supreme Court, the Bush Administration forcefully defended
the Federal agencies' historic interpretation of the scope of
the Clean Water Act.\38\
---------------------------------------------------------------------------
\36\64 Fed. Reg. 14109 (Mar. 24, 1998).
\37\White House Fact Sheet: President Announces Wetlands Initiative
on Earth Day, April 22, 2004 http://georgewbush-
whitehouse.archives.gov/ news/releases/2004/04/print/20040422-1.html
\38\See Brief for the United States, Rapanos v. United States, No.
04-1034, dated January 2006.
---------------------------------------------------------------------------
Maintaining the Historic Scope of the Clean Water Act
In considering this legislation, the Committee rejected
amendments that sought to undermine the Clean Water Act and
narrow the scope that has existed for decades.
An amendment offered by Senator Vitter to give the
President the authority to waive the requirements of the bill
in the event of an emergency or natural disaster was rejected
because there is already ample authority in law to address
emergency situations, making the amendment unnecessary.
An amendment offered by Senator Vitter that would
modify the definition of a ``pollutant'' under the Clean Water
Act to exclude the application of a pesticide was rejected.
Water quality impacts resulting from pesticides have been a
major concern under the Clean Water Act since 1972. Pesticide
discharges were addressed in the recent case of National Cotton
Council v. EPA,\39\ which ruled that pesticide residues can be
pollutants under the Act subject to permit requirements. EPA
obtained a stay of the ruling in National Cotton Council for a
period of two years, during which time EPA will develop its
regulatory approach to this issue in consultation with affected
stakeholders.
---------------------------------------------------------------------------
\39\National Cotton Council v. EPA, Slip Op. No. 06-4630 (6th Cir.
Jan. 7, 2009).
---------------------------------------------------------------------------
Multiple amendments were rejected that would have
removed Clean Water Act protections for specific water bodies,
such as streams, mudflats, and prairie potholes. These water
bodies have been protected under the Clean Water Act since the
mid-1970s and are critical to restoring and maintaining the
physical, biological and chemical integrity of our Nation's
waters. Therefore, these amendments were contrary to the
purposes and long-standing scope of the Clean Water Act and
were rejected.
Amendments offered by Senator Barrasso creating
new exemptions for certain agricultural activities were
rejected because they were unnecessary and contrary to the
long-standing scope of the Clean Water Act. As described in
detail later in this report, sections 402(l) and 404(f)(1) of
the Clean Water Act outline the numerous agricultural
activities that are subject to exemptions under the Act. By
restoring the status quo as it existed prior to SWANCC and
Rapanos, this legislation provides clarity that these
exemptions are maintained and assurance that federal
jurisdiction will not be expanded.
An amendment offered by Senator Barrasso that
would have exempted groundwater was rejected because the bill
already sets forth the finding that: ``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.
Therefore, this amendment was unnecessary.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides that the bill may be cited as the
``Clean Water Restoration Act.''
Section 2. Purposes
Summary
Section 2 describes the purposes of the bill.
Discussion
The purpose of S. 787, as amended and reported by the
Committee, is to reinstate the scope of Clean Water Act
protection as originally intended by Congress and as
implemented by EPA and the Corps over more than a quarter
century prior to SWANCC. The bill provides for the continued
primary role of the States, and also explicitly maintains long-
standing exemptions, including:
Section 402(l)(1), exempting discharges composed
entirely of return flows from irrigated agriculture.
Section 402(l)(2), exempting discharges of
stormwater runoff from mining operations or oil and gas
exploration, production, processing, or treatment operations or
transmission facilities, composed entirely of flows which are
conveyances (including but not limited to pipes, conduits,
ditches, and channels) used for collecting and conveying
precipitation runoff and which are not contaminated by contact
with or do not come into contact with, any overburden, raw
material, intermediate products, finished product, byproduct,
or waste products located on the site of such operations.
Section 404(f)(1)(A), exempting 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.
Section 404(f)(1)(B), exempting discharges of
dredged or fill materials for the purpose of maintenance,
including emergency reconstruction of recently damaged parts,
of currently serviceable structures such as dikes, dams,
levees, groins, riprap, breakwaters, causeways, and bridge
abutments or approaches, and transportation structures.
Section 404(f)(1)(C), exempting discharges of
dredged or fill materials for the purpose of construction or
maintenance of farm or stock ponds or irrigation ditches or the
maintenance of drainage ditches.
Section 404(f)(1)(D), exempting 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 navigable waters.
Section 404(f)(1)(E), exempting 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, where such roads are constructed
and maintained, in accordance with best management practices,
to assure that flow and circulation patterns and chemical and
biological characteristics of the navigable waters are not
impaired, that the reach of navigable waters is not reduced,
and that any adverse effect on the aquatic environment will be
otherwise minimized.
Section 404(f)(1)(F), exempting 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 the Act (33 U.S.C. 1288(b)(4)) meeting the
requirements of subparagraphs (B) and (C) of that section.
This bill does not expand the scope of federal
jurisdiction. In the 110th Congress, concerns were raised with
respect to whether the version of the Clean Water Restoration
Act as then introduced (S. 1870) could be interpreted to result
in an expansion in the scope of federal jurisdiction under the
Act. S.787, as reported, includes a number of provisions
assuring that there will be no such expansion. The reported
substitute amendment:
Includes findings stating clearly that the intent
of the legislation is to restore the jurisdiction of the Clean
Water Act to the extent that existed prior to the SWANCC
decision in January 2001.
Strikes language from the prior version of the
bill that would have established jurisdiction over all waters
``to the fullest extent that these waters, or activities
affecting these waters, are subject to the legislative power of
Congress under the Constitution,'' which some argued would have
expanded the Act beyond its original scope.
Codifies long-standing regulatory exemptions for
waste treatment systems and prior converted cropland.
Adds new legislative language requiring that the
definition of ``waters of the United States'' will be construed
consistently with the scope of the Act prior to SWANCC.
Requires the EPA and the Corps to promulgate
regulations within 18 months as needed to implement the
provisions of the bill.
Ensures that current statutory exemptions for
Section 402 and 404 permits remain in place.
These provisions ensure that the bill will restore the
scope of Clean Water Act protection that existed prior to the
SWANCC and Rapanos cases, without expanding federal
jurisdiction. They ensure that permit requirements post-
enactment of S. 787 will be the same as they were prior to
SWANCC in 2001. The bill returns the Clean Water Act to the
status quo, protecting our environment, strengthening long-
standing exemptions, and providing regulatory predictability
and efficiency.
Section 3. Findings
Summary
Section 3 describes the findings of the Committee regarding
the need to restore comprehensive Clean Water Act protections
and the basis for the assertion of Congress's authority to
protect waters of the United States under the Constitution. The
findings make explicit that the bill overturns the Supreme
Court's decisions in SWANCC and Rapanos, and describe certain
ways that the Act applied pre-SWANCC. The findings specifically
reaffirm the long standing authority of States to make
decisions relating to water allocation.
Discussion
The Supreme Court's decision in SWANCC emphasized the need
for Congress to provide a clear statement regarding the scope
of federal jurisdiction established by the Clean Water Act,
given that such authority must be grounded in a power granted
to Congress under the Constitution.\40\ A principal source of
Constitutional authority for federal laws protecting the
environment is the Commerce Clause.\41\ The Supreme Court has
made clear that Congress is empowered to regulate activities
that affect interstate commerce.\42\
---------------------------------------------------------------------------
\40\See SWANCC, 531 U.S. at 172-73; Rapanos, 547 U.S. at 738.
\41\U.S. Const. Art. I, section 8, clause 3.
\42\Hodel v. Virginia Surface Mining, 452 U.S. 264, 276-83 (1981).
---------------------------------------------------------------------------
Substantial evidence exists to establish the Constitutional
authority for federal jurisdiction under S. 787, as reported by
the Committee, which restores the scope of Clean Water Act
jurisdiction to that existing prior to SWANCC. In addition to
the findings set forth in the text of Section 2 of the bill,
the Committee evaluated substantial additional evidence of the
economic and interstate commerce impacts associated with
protection of waters of the United States.
The findings in Section 2 of the bill and additional
findings summarized below confirm that protection of ``waters
of the United States'' as defined in the bill has numerous
important interstate commerce impacts. While the loss of
functions associated with any particular water body, taken
alone, might not significantly affect commerce, the Supreme
Court has made clear that where in the aggregate such impacts
will affect interstate commerce, the Commerce Clause provides
Congress authority to regulate.\43\ This is particularly true
where the activities being regulated are fundamentally economic
in nature, as is the case under the Clean Water Act.\44\
Pollution or destruction of waters within any of the categories
of ``waters of the United States'' as defined in the bill
unquestionably has substantial effects on interstate
commerce.\45\
---------------------------------------------------------------------------
\43\See Gonzales v. Raich, 125 S. Ct. 2195, 2207-09 (2005); Perez
v. United States, 402 U.S. 146, 154 (1971); Wickard v. Filburn, 317
U.S. 111, 127-128 (1942).
\44\By contrast, the two more recent cases in which the Supreme
Court has found limits on Commerce Clause authority both involved
regulation of activities that were not commercial. See United States v.
Morrison, 529 U.S. 598 (2000) (law prohibiting violence against women);
United States v. Lopez, 514 U.S. 549 (1995) (law prohibiting gun
possession near schools).
\45\In addition, many species of migratory birds are protected
under international treaties to which the United States is a party.
Prior to SWANCC, EPA and the Corps had noted that use of waters as
habitat by migratory birds protected under such treaties was a basis
for establishing jurisdiction. See 51 Fed. Reg. 41,206, 41,216 (Nov.
13, 1986). That longstanding basis for Clean Water Act jurisdiction is
supported under the Treaty clause, U.S. Const. Art. II, Sec. 2, cl. 2.
---------------------------------------------------------------------------
Economic Value and Uses of Clean Water
Each of the categories of ``waters of the United States''
protected under the Act, as reaffirmed by S. 787, provides
economic, health, safety, welfare, and recreational services
that have important and substantial interstate commerce values
and impacts. Waters of the United States support and are used
for numerous activities that affect the Nation's economic well-
being.
Economic activities that rely on or use waters protected by
the Act include:
sites for transportation and infrastructure
development;
residential, commercial, and municipal
construction and site development;
discharge of pollutants for industrial
production;
agricultural production and irrigation;
silviculture;
municipal uses;
resource extraction;
energy production;
production of peat;\46\ and
---------------------------------------------------------------------------
\46\In 1993, the United States produced 612,000 metric tons of peat
with a value of $16.8 million. Peat is harvested directly from
wetlands, and is both exported and sold in interstate commerce. See
U.S. Department of the Interior, Bureau of Mines, Survey Methods and
Statistical Summary of Nonfuel Minerals, 1993.
---------------------------------------------------------------------------
fishing and shellfishing.
The economic value of the small freshwater streams put at
risk by Rapanos is substantial. One study calculated the
average value of fresh water bodies to be $146 per acre-foot
for the entire U.S.\47\ A small stream flowing as little as 1
cubic foot per second (cfs) carries a volume of almost two
acre-feet of water--648,000 gallons every 24 hours. Using these
values, the Chesapeake Bay, which is fed by approximately
100,000 streams, is receiving an annual economic benefit of
$9.5 billion in flows from those streams.
---------------------------------------------------------------------------
\47\Frederick, et al., Economic Values of Freshwater in the United
States, Resources for the Future No. 7-03 (1997).
---------------------------------------------------------------------------
Clean water supplies promote economic growth and human
health. A 2000 Money magazine survey found that clean water is
one of the most important factors Americans consider in
choosing a place to live.\48\ Studies show a correlation
between water quality and property values. For example,
improvements in total suspended solids and dissolved inorganic
compounds along the St. Mary's River in the Chesapeake Bay
watershed increased median values of residential property by
$1,086 and $17,642 respectively.\49\
---------------------------------------------------------------------------
\48\U.S. EPA, Liquid Assets 2000: America's Water Resources at a
Turning Point (``Liquid Assets'') at 2, 16.
\49\Restore America's Estuaries, The Economic and Market Value of
Coasts and Estuaries: What's At Stake? 127-28 (May 2008), (``Value of
Estuaries'') available at http://www.estuaries.org/ assets/documents/
FINAL%20ECON%20WITH%20COVER%20PDF%205-20-2008.pdf.
---------------------------------------------------------------------------
The economic value of a particular body of water is not
constrained to the State within which it is located. Rather,
other States, regions and the Nation as a whole have economic
and commercial interests in the categories of waters protected
under the Clean Water Act.
Drinking Water Supply
Small streams, wetlands and other waters recharge surface
and subsurface drinking water supplies, and filter and remove
pollutants from surface run-off before that water is released
to groundwater. EPA reports that ``at least a half-million
cases of illness annually can be attributed to microbial
contamination in drinking water.''\50\ Protecting water quality
can save substantial amounts that would be spent on water
treatment. For example, a 2007 Brookings Institution study
estimated the direct benefits of Great Lakes clean up and
restoration from reducing water treatment costs to be $50-125
million.\51\ Each of the categories of ``waters of the United
States'' protected by the Clean Water Act, as restored by this
bill, supports provision of safe and adequate drinking water
supplies.
---------------------------------------------------------------------------
\50\Liquid Assets at 2.
\51\Brookings Institution, Healthy Waters, Strong Economy: The
Benefits of Restoring the Great Lakes Ecosystem (Sept. 2007) (``Healthy
Waters'') at 8.
---------------------------------------------------------------------------
Fishing, Hunting and Other Recreation
Waters of the United States also support substantial
commercial activities associated with fishing, hunting,
wildlife watching, and recreation, each of which generate
significant interstate commerce that depends on protection of
waters of the United States.
In 2006, 87.5 million Americans 16 years old and older, 29%
of the U.S. population, enjoyed recreational activities
relating to fish and wildlife. Expenditures by this group were
$122.3 billion, about 1% of the nation's Gross Domestic Product
(GDP).\52\ According to another study, beach visitation and
recreational fishing contribute $16 billion to $56 billion to
the U.S. economy annually.\53\
---------------------------------------------------------------------------
\52\U.S. Fish and Wildlife Service, 2006 National Survey of
Fishing, Hunting, and Wildlife-Associated Recreation National Overview,
Preliminary Findings (``FWS 2006 Survey'') at 4.
\53\Value of Estuaries at 60-61, 165.
---------------------------------------------------------------------------
Almost 34 million people fished and hunted in 2006. They
spent $76.7 billion on their activities, including $24.6
billion on trip expenses, nearly $41 billion on equipment, and
$11.1 billion on licenses and fees, magazines, membership dues
and contributions, and land leasing and ownership. On average,
each sportsperson spent $2,256 in 2006.\54\ Anglers spent more
than $42 billion on trips, equipment, licenses, and other items
to support their fishing activities in 2006. The average annual
expenditure per angler was $1,400.\55\
---------------------------------------------------------------------------
\54\FWS 2006 Survey at 4.
\55\Id. at 4, 8.
---------------------------------------------------------------------------
More than 71 million people 16 years old and over
participated in observing, feeding, or photographing wildlife
in 2006, 23 million of whom took trips away from home for the
primary purpose of enjoying wildlife. In 2006, wildlife-
watching participants spent $45.7 billion on such trips,
equipment, magazines, membership dues, and contributions made
to conservation or wildlife-related organizations.\56\
---------------------------------------------------------------------------
\56\Id. at 5.
---------------------------------------------------------------------------
The cost of water pollution impacts in the Great Lakes
region illustrates the economic importance of the Clean Water
Act. A 2007 Brookings Institution study estimated the direct
economic benefits of Great Lakes clean up and restoration from
tourism, fishing and recreation at $6.5 to $11.8 billion.\57\
---------------------------------------------------------------------------
\57\Healthy Waters at 6. The study notes that: ``With 8 million
swimmers and 80 million swimming days annually in the Great Lakes, the
economic benefit from a 20 percent reduction in beach closings and
advisories would be $130 to $190 million per year, which translates
into a present value of about $2 to $3 billion dollars. . . . The
benefits related to fish abundance alone are conservatively estimated
at $1.1 to $5.8 billion dollars.'' Id.
---------------------------------------------------------------------------
Impacts Involving Sale of Fish and Shellfish
Waters of the United States, including intrastate waters,
play an important role in supporting the substantial commerce
associated with the sale of fish and shellfish in interstate or
foreign commerce. Commercial fishing and shellfishing
industries need clean wetlands and coastal waters to stay in
business.\58\
---------------------------------------------------------------------------
\58\Liquid Assets at 2.
---------------------------------------------------------------------------
Wetlands and estuaries play essential roles in the
lifecycles of 75 percent of fish and shellfish commercially
harvested and up to 90 percent of fish recreationally caught in
the United States.\59\ In 2004 the value of landed crab,
shrimp, and salmon alone was placed at $1.2 billion.\60\
Estuary-dependent species such as menhaden, Gulf shrimp,
Pacific salmon, blue crab, oysters, and clams generated an ex-
vessel harvest worth almost $1.4 billion.\61\
---------------------------------------------------------------------------
\59\EPA, Economic Benefits of Wetlands (2006), available at http://
www.epa.gov/owow/wetlands/pdf/EconomicBenefits.pdf
\60\Id.
\61\Value of Estuaries at 66.
---------------------------------------------------------------------------
Uncontrolled pollution and destruction of water bodies,
including small streams, wetlands, and so-called ``isolated''
waters, has direct negative economic impacts on productivity of
fishing and shellfishing.\62\ According to EPA, in 2008 there
were 4,249 fish advisories or bans warning against adverse
health effects due to consumption of fish caught in
contaminated waters.\63\
---------------------------------------------------------------------------
\62\See Kier, W., Fisheries, Wetlands, and Jobs, The Value of
Wetlands to America's Fisheries at 6 (1998).
\63\U.S. EPA, National Listing of Fish Advisories, Technical Fact
Sheet: 2008 Biennial Listing, EPA-823-F-09-007 (September 2009).
---------------------------------------------------------------------------
Flood Control and Protection
Wetlands help ameliorate floods by storing and slowing the
force of flood waters. A typical one-acre wetland can store up
to 1 million gallons of water. These characteristics of
wetlands allow them to lower flood heights and help reduce the
destructive potential of flood waters.\64\ The cumulative loss
of wetlands over time has increased flooding and flood damage.
---------------------------------------------------------------------------
\64\U.S. EPA, Wetlands: Protecting Life and Property from Flooding,
EPA843-F-06-001 at 1 (May 2006).
---------------------------------------------------------------------------
Economic impacts associated with reduced flood control
values are substantial. In Fiscal Years 2004 and 2005, direct
non-coastal flood damages in the United States were estimated
at $15.647 billion and $44.951 billion, respectively, and total
Hurricane Katrina-related flood losses in 2005 were estimated
at $125 billion.\65\ The tremendous losses caused by Hurricane
Katrina were due in part to the extensive loss of coastal
wetlands that has occurred in Southern Louisiana and
Mississippi.\66\
---------------------------------------------------------------------------
\65\National Oceanic and Atmospheric Administration, National
Weather Service, Hydrologic Information Center, 2009 Flood losses:
Compilation of Flood Loss Statistics, http://www.weather.gov/hic/
flood_stats/Flood_loss_time_series.shtml
\66\See Tim Hirsh, Katrina Damage Blamed on Wetland Loss, available
at http://news.bbc.co.uk/2/hi/americas/4393852.stm; see also CRS Report
to Congress, Hurricane Katrina and Rita and the Coastal Louisiana
Ecosystem Restoration, RS22276 (Sept. 2005).
---------------------------------------------------------------------------
After the Great Midwest Flood of 1993, one of the most
costly U.S. natural disasters in history, thousands of
Americans were displaced, 48 people lost their lives and flood-
related damages reached an estimated $21 billion.\67\ Only 15
years later, there were more than $15 billion of agricultural
and property losses, major displacements occurred, and 24
people lost their lives in the May-June 2008 flooding, again in
these Midwest States.\68\
---------------------------------------------------------------------------
\67\Billion Dollar U.S. Weather Disasters, 1980-2008. National
Climatic Data Center, Asheville, NC, 01/01/09. http://
www.ncdc.noaa.gov/oa/reports/billionz.html.
\68\Id.
---------------------------------------------------------------------------
The natural value of floodplain land for services other
than flood control has been estimated at $8,177 per acre. Flood
water storage services on these lands is worth about $52,340
per acre, so the total value of these ecosystem services is
around $60,517 per acre.\69\ Thus, protection of wetlands,
streams and other water bodies that, taken alone, may be viewed
as ``isolated,'' ``intermittent,'' ``ephemeral,'' or ``small,''
is vital to reducing the substantial economic costs and damage
of flooding in the U.S.
---------------------------------------------------------------------------
\69\National Research Council, Valuing Ecosystem Services: Towards
Better Environmental Decision Making 170 (2005).
---------------------------------------------------------------------------
Use as Habitat for Threatened and Endangered Species and
Migratory Birds
Waters of the United States provide habitat used for
breeding, rearing, and feeding for numerous threatened and
endangered species of birds, fish, amphibians, mammals,
reptiles, clams, snails and plants. Many of these species
provide direct economic benefits. For example, coho salmon are
valuable in both recreational and commercial fisheries.\70\
Coho spend approximately the first half of their life cycle
rearing and feeding in streams and small freshwater
tributaries. Their spawning habitat is small streams with
stable gravel substrates.\71\
---------------------------------------------------------------------------
\70\See 62 Fed. Reg. 24588 (1997); Reid and Ziemer, Evaluating the
Biological Significance of Intermittent Streams, U.S. Department of
Agriculture Forest Service (1994).
\71\National Oceanic and Atmospheric Administration, Office of
Protected Species report, http://www.nmfs.noaa.gov/pr/species/fish/
cohosalmon.htm.
---------------------------------------------------------------------------
Wetlands and other waters also play a critical role in
providing habitat for migratory birds. According to FWS, all
migratory waterfowl and nearly half of all threatened or
endangered species depend on wetlands and associated habitat
for their survival.\72\ The FWS has found that the loss of
wetland and associated upland habitat is the most significant
problem facing North American migratory bird populations.\73\
---------------------------------------------------------------------------
\72\U.S. Fish and Wildlife Service, 1994 Update to the North
American Waterfowl Management Plan at 20.
\73\Id.
---------------------------------------------------------------------------
The economic value of healthy migratory bird populations is
substantial. According to the FWS, migratory bird hunting
generated $1.3 billion in expenditures in 2006, of which $691
million was spent on hunting trips.\74\
---------------------------------------------------------------------------
\74\FWS 2006 Survey at 23, 25.
---------------------------------------------------------------------------
Section 4. Definition of waters of the United States
Summary
Section 4 defines the term ``waters of the United States''
and establishes two categories of waters that are excluded from
that definition.
Discussion
In Section 4, the term ``waters of the United States'' is
defined to mean the categories of waters that generally were
protected by the Act under the agencies' interpretations for
over 25 years prior to SWANCC. Regulations of EPA and the Corps
going back to the mid-1970s included each of the listed
categories as within the scope of jurisdiction under the Act.
The definition in Section 4 of the bill reaffirms the Act's
historic protection of these categories of waters. As stated in
Section 2 (Purposes), this definition is intended to restore
the scope of protection as the Act was applied prior to SWANCC.
Section 7(b) of the bill, discussed below, further provides
that the definition shall be construed consistently with
the scope of jurisdiction established by the agencies prior to
that decision.
Section 4 also codifies two exclusions that had been
included in the agencies' regulations prior to SWANCC, relating
to prior converted croplands and waste treatment systems.
Prior Converted Croplands Exclusion
In the early 1990s, the agencies stated that ``prior
converted cropland'' would not be considered ``waters of the
United States.'' The Corps initially created this exception as
an interpretation of its regulatory definition of wetlands.\75\
Thereafter, both EPA and the Corps amended their regulations to
provide an exclusion from the regulatory definition of ``waters
of the United States'' for such cropland.\76\ Section 4 inserts
the text of the regulatory prior converted cropland exclusion
into the Act.
---------------------------------------------------------------------------
\75\U.S. Army Corps of Engineers, Regulatory Guidance Letter 90-7:
Clarification of the Phrase ``Normal Circumstances'' as it pertains to
Cropped Wetlands (Sept. 26, 1990).
\76\58 Fed. Reg. 45,008, 45,031 & 45,036-37 (Aug. 25, 1993).
---------------------------------------------------------------------------
Waste Treatment Systems Exclusion
In 1980, EPA amended its Clean Water Act regulations to
provide that:
Waste treatment systems, including treatment ponds or
lagoons designed to meet the requirements of the Act
(other than cooling ponds as defined in 40 CFR
123.11(m) 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 a disposal area in wetlands) nor
resulted from the impoundment of waters of the United
States.\77\
---------------------------------------------------------------------------
\77\See W. Va. Coal Ass'n v. Reilly, 728 F. Supp. 1276, 1290 (S.D.
W. Va. 1989), aff'd, 932 F.2d 964 (4th Cir. 1991) (quoting 40 C.F.R.
122.3 (1980)).
Section 4 inserts the text of the regulatory waste
treatment system exclusion into the Act.
As EPA explained at the time, the exclusion was limited to
man-made systems, since the Act ``was not intended to license
dischargers to freely use waters of the United States as waste
treatment systems . . .''\78\ Soon after the waste treatment
system regulation was promulgated, however, EPA announced that
it was suspending the provision that limited the exclusion only
to ``manmade bodies of water,'' out of concern that pre-
existing treatment systems would be improperly brought into the
regulatory system.\79\ EPA made clear that this was not
intended to allow uncontrolled dumping of pollutants in streams
and lakes simply by calling them ``waste treatment
systems.''\80\ Section 4 returns to the regulatory provision as
promulgated. However, this new section of the Act is only
applicable on a prospective basis. Waste treatment units
previously constructed in compliance with legal requirements,
which relied on EPA's suspension of the man-made limitation,
will not be subject to retroactive enforcement action. Going
forward, EPA's regulations under Section 7 should address the
extent to which discharges into waste treatment systems placed
in waters of the United States pursuant to dredge and fill
permits under Section 404 should be subject to or exempt from
additional discharge permits under Section 402.
---------------------------------------------------------------------------
\78\45 Fed. Reg. 33,298 (May 19, 1980). As this Committee noted in
reporting the bill that would become the 1972 Act, ``[t]he use of any
river, lake, stream or ocean as a waste treatment system is
unacceptable.'' S. Rep. No. 92-414, at 7 (1971), 1972 Act Legisl. Hist.
at 1425.
\79\45 Fed. Reg. 48,620 (July 21, 1980). EPA stated that it did not
intend to allow new waste treatment systems in natural waters going
forward. See W. Va. Coal Ass'n v. Reilly, 728 F. Supp. 1276, 1290 (S.D.
W. Va. 1989), aff'd, 932 F.2d 964 (4th Cir. 1991).
\80\45 Fed. Reg. 48,620 (July 21, 1980).
---------------------------------------------------------------------------
Section 5--Conforming amendments
Summary
Section 5 strikes the terms ``navigable waters'' and
``navigable waters of the United States'' where they appear in
the Act and replaces them with the term ``waters of the United
States''.
Discussion
The SWANCC majority and Rapanos plurality opinions departed
from the long-standing interpretation of the term ``navigable
waters'' and construed it to limit the scope of protection
under the Clean Water Act. To provide clarity and avoid further
confusion, Section 5 deletes the term ``navigable waters'' in
each case it had previously appeared in the Act and replaces it
with the defined term ``waters of the United States.''
From its early implementation in the mid-1970s until the
SWANCC decision in 2001, the term ``navigable waters,'' held
over from prior water laws, was not a limitation on the scope
of jurisdiction of the Clean Water Act. The purposes,
structure, legislative history, agency interpretation, judicial
interpretation, and subsequent action by Congress all made
clear that the Act's scope of protection was not limited by any
concept of navigability. Thus, replacing the term ``navigable
waters'' with ``waters of the United States'' will not result
in any expansion of the Act, but on the contrary will ensure
that the Act remains consistent with the scope that existed for
decades.
Import of the Term ``Navigable Waters'' in the Clean Water
Act
Consistent with the goals of the 1972 Clean Water Act,
which includes restoring the chemical, physical and biological
integrity of the Nation's waters, Congress broadly defined the
waters covered by the Act. In their respective bills, both the
House and Senate borrowed the term ``navigable waters'' from
the Rivers and Harbor Act, and included a definition that
retained the term ``navigable,''\81\ but both bodies also made
clear that the continued use of that term was not to narrow the
scope of waters to be covered.
---------------------------------------------------------------------------
\81\In the Senate, the definition read ``the term navigable waters
means the navigable waters of the United States, portions thereof, and
the tributaries thereof, including the territorial seas and the Great
Lakes. S. 2770, 92nd Cong. 502(h) (1971), 1972 Act Legisl. Hist. at
1698. The House bill's definition read ``The term navigable waters'
means the navigable waters of the United States, including the
territorial seas.'' H.R. 11896, 92nd Cong. 502(8) (1971), 1972 Act
Legisl. Hist. at 1069.
---------------------------------------------------------------------------
The House Public Works Committee stated:
The Committee is reluctant to define the term
``navigable waters.'' This is based on the fear that
any interpretation would be read narrowly. This is not
the Committee's intent. The Committee fully intends the
term navigable waters' be given the broadest possible
constitutional interpretation unencumbered by agency
determinations which have been made or may be made for
administrative purposes.\82\
---------------------------------------------------------------------------
\82\H.R. Rep. No. 92-911 at 76-77 (1972), 1972 Act Legisl. Hist. at
818.
When the House and Senate met in Conference Committee, they
took further measures to ensure that the definition of
``navigable waters'' was not limiting. As discussed in the
Report of the Conference Committee, the House version of the
definition was accepted into the final bill, but the word
``navigable'' was deleted from the definition.\83\
---------------------------------------------------------------------------
\83\Conf. Rep. No. 92-1236, 92nd Cong. 144 (1971), 1972 Act Legisl.
Hist. at 327.
---------------------------------------------------------------------------
Describing this change, the Conference Report repeated
Congress's intent that the term ``must be given the broadest
constitutional interpretation, unencumbered by agency
determinations which have been made or may be made for
administrative purposes.''\84\
---------------------------------------------------------------------------
\84\Id.
---------------------------------------------------------------------------
The debate on final passage of the Act confirmed this
point. For example, Congressman John Dingell, who reported the
Conference Committee bill to the House, explained:
The conference bill defines the term ``navigable
waters'' broadly for water quality purposes. It means
all ``the waters of the United States'' in a
geographical sense. It does not mean ``navigable waters
of the United States'' in the technical sense as we
sometimes see in some laws.
After reviewing the broad extent of the Commerce Clause
authority invoked by Congress, Rep. Dingell went on to state:
Thus, this new definition clearly encompasses all
water bodies, including main streams and their
tributaries, for water quality purposes. No longer are
the old, narrow definitions of navigability, as
determined by the Corps of Engineers, going to govern
matters covered by this bill.\85\
---------------------------------------------------------------------------
\85\118 Cong. Rec. 33,756-57 (Oct. 4, 1972).
Thus, it was clear from the outset that the term
``navigable waters'' was intended broadly.
The Regulatory Agencies' Treatment of the Term ``Navigable
Waters''
The U.S. Army Corps of Engineers historically had been
responsible for issuing permits for discharges into navigable
waters and their tributaries under the Rivers and Harbors Act.
After passage of the 1972 Act, the Corps proposed to revise the
existing regulations to incorporate the provisions of Sec. 404
of the 1972 Act.
The Corps' initial proposed regulatory definition of
``navigable waters'' for purposes of the 404 program was
narrow, applying only to traditionally navigable waters.\86\
This definition did not attempt to define the new statutory
term ``waters of the United States.'' The Corps would not do so
until July 1977.\87\
---------------------------------------------------------------------------
\86\``The term `navigable waters of the United States' and
`navigable waters,' as used herein mean those waters of the United
States which are subject to the ebb and flow of the tide, and/or are
presently or have been in the past, or may be in the future susceptible
for use for purposes of interstate or foreign commerce (See 33 C.F.R.
Sec. 209.260 for a more complete definition of these terms).''
Importantly, the Corps' final rule of April 3, 1974, addressed only the
geographic jurisdiction of the Corps' regulatory authorities, such as
Sec. 10 of the Rivers and Harbors Act of 1899 and Sec. 404 of the 1972
Act. The Corps' 1974 final rule did not purport to address the
geographic jurisdiction of any part of the FWPCA of 1972 other than
Sec. 404, nor of the FWPCA of 1972 as a whole.
\87\42 Fed. Reg. 37127 (July 19, 1977).
---------------------------------------------------------------------------
On June 19, 1974, EPA Administrator Russell Train sent a
letter to the Corps asserting that the Corps' proposed narrow
interpretation was inconsistent with Congress's intent in the
1972 Act. Administrator Train said: ``Our interpretation of
`navigable waters' within the meaning of the FWPCA does not
conform to the Corps' recently issued regulation. We firmly
believe that the Conference Committee deleted `navigable' from
the FWPCA definition of `navigable waters' in order to free
pollution control from jurisdictional restrictions based on
navigability.'''\88\
---------------------------------------------------------------------------
\88\Letter from Russell E. Train to General William G. Gribble,
Chief, Army Corps of Engineers (June 19, 1974).
---------------------------------------------------------------------------
In response to a lawsuit, the U.S. District Court for the
District of Columbia held in NRDC v. Calloway that the Corps'
definition was not what Congress intended. The court ordered
the Corps to rescind the part of its regulation ``which limits
the permit (Sec. 404) jurisdiction of the Corps by definition
or otherwise to other than the waters of the United States.''
The court ordered the Corps to expeditiously propose
regulations which reflected the broad mandate to protect all
waters of the United States, as provided by Congress in
1972.\89\
---------------------------------------------------------------------------
\89\NRDC v. Callaway, 392 F. Supp 685 (D.D.C. 1975). A Corps
official later stated that the Corps had knowingly misconstrued the
requirements of the Act in its initial regulations, for political
reasons. See Lance D. Wood, Don't Be Misled: Clean Water Act
Jurisdiction Extends to All Non-Navigable Tributaries of the
Traditional Navigable Waters and to Their Adjacent Wetlands, 34 ELR
10187, 10211-10212 (Feb. 2004).
---------------------------------------------------------------------------
Responding to the court's order in Callaway, the Corps
issued an interim final regulation in July 1975, defining the
term navigable waters' to include:
coastal waters, wetlands, mudflats, swamps, and similar
areas, freshwater lakes, rivers, and streams that are
used, were used in the past, or are susceptible to use
to transport interstate commerce, including all
tributaries to these waters; interstate waters, certain
specified intrastate waters, the pollution of which
would affect interstate commerce; and freshwater
wetlands including marshes, shallows, swamps, and
similar areas that are contiguous or adjacent to the
above described lakes, rivers, and streams, and that
are periodically inundated and normally characterized
by the prevalence of vegetation that requires saturated
soil conditions for growth and reproduction.
The Corps promulgated final regulations in 1977, which
consolidated the numerous types of waters listed in the 1975
interim rule down to four categories:
Category 1--Coastal and inland waters, lakes, rivers
and streams that are navigable waters of the United
States, including adjacent wetlands.
Category 2--Tributaries to navigable waters of the
U.S., including adjacent wetlands.
Category 3--Interstate waters and their tributaries,
including adjacent wetlands.
Category 4--All other waters of the United States not
identified in Categories 1-3, such as isolated lakes
and wetlands, intermittent streams, prairie potholes,
and other waters that are not part of a tributary
system to interstate waters or to navigable waters of
the United States, the degradation or destruction of
which could affect interstate commerce.\90\
---------------------------------------------------------------------------
\90\42 Fed. Reg. 37127-37128 (July 19, 1977).
---------------------------------------------------------------------------
The Corps recognized, however, that this list was not all-
inclusive, as some waters may be involved as links to
interstate commerce in a manner that is not readily established
by the listing of a broad category. The regulation therefore
gave Corps officials authority to assert jurisdiction over
``other waters,'' such as intermittent and ephemeral streams,
tributaries and perched wetlands, in order to protect water
quality.\91\
---------------------------------------------------------------------------
\91\Id.
---------------------------------------------------------------------------
EPA had promulgated regulations implementing the 1972 Act,
which also defined the scope of protected waters broadly to
include non-navigable waters with specified interstate commerce
connections.\92\ Thus, the basic approach to defining waters of
the United States broadly and without regard to navigability,
as intended by Congress in 1972, was adopted into regulations
by mid-1977.
---------------------------------------------------------------------------
\92\38 Fed. Reg. 13527 (May 22, 1973).
---------------------------------------------------------------------------
The Clean Water Act of 1977 Rejected Proposals to Limit the
Act to Navigable Waters
Congress debated amendments to the Clean Water Act in 1977,
after EPA's and the Corps' regulations were finalized. One of
the major issues debated was how to address concerns that had
been raised with regard to how the Act was being applied,
particularly with respect to farming and ranching activities.
During the 1977 debates two competing approaches were
considered. The first approach was to modify the Act's permit
program and add exemptions for activities such as farming and
ranching. A second, alternative approach would have cut back on
the scope of jurisdiction, by redefining the term ``waters of
the United States.''
The first approach was taken in a bill reported out of this
Committee (S. 1952). That bill refined and clarified several
elements of the 404 permit program to address the concerns that
had been raised, including by exempting farming and ranching
activities from permit requirements, while leaving the Act's
broad scope of jurisdiction in place.
The key exemptions in the bill reported by the Committee
included:
Section 402(m), exempting discharges composed
entirely of return flows from irrigated agriculture.
Section 404(e)(1)(A), exempting discharges of
dredged or fill materials that result 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.
Section 404(e)(1)(C), exempting discharges of
dredged or fill materials for the purpose of maintenance,
including the construction of recently damaged parts, of
currently serviceable structures, such as dikes, dams, levees,
groins, riprap, breakwaters, causeways, and bridge abutments or
approaches, and transportation structures.
Section 404(e)(1)(D), exempting discharges of
dredged or fill materials that involve construction or
maintenance of farm or stock ponds or irrigation ditches, or
the maintenance of drainage ditches.
Section 404(e)(1)(E), exempting discharges of
dredged or fill materials that involve construction of
temporary sedimentation basins on construction sites, which do
not include placement of fill material into the navigable
waters.
Section 404(e)(1)(F), exempting discharges of
dredged or fill materials that involve construction or
maintenance of farm roads or forest roads or temporary roads
for moving mining equipment where such roads are constructed
and maintained, in accordance with best management practices,
to assure that flow and circulation patterns and chemical and
biological characteristics of the navigable waters are not
impaired, that the reach of navigable waters is not reduced,
and that any adverse effect on the aquatic environment will be
otherwise minimized.\93\
---------------------------------------------------------------------------
\93\See Sen. Rept. 95-370, 1977 Amendments Legisl. Hist. at 575,
623-24.
---------------------------------------------------------------------------
The Committee bill also authorized the Corps to establish a
general permit program for categories of activities involving
discharges that would have minimal adverse impact on the
environment in Section 404(f), and it increased the role of the
States in implementing the Act's water programs.\94\
---------------------------------------------------------------------------
\94\Id. at 626-28.
---------------------------------------------------------------------------
The second approach that was considered in 1977 was to cut
back on the scope of the ``waters of the United States''
protected by the Act. However, that approach was rejected by
this Committee, and later by the full Senate and the House as
well.
During the floor debate on the 1977 amendments, Senator
Bentsen offered an amendment to the bill reported by the
Committee that would have limited the scope of 404 to only
traditionally navigable waters and their adjacent wetlands. The
Congressional Record reflects an extensive debate before the
Senate voted on the Bentsen amendment. It was clear that all of
the participants understood that the scope of the Act since
1972 encompassed all waters of the United States--including
intermittent and ephemeral streams and wetlands--and that the
bill reported by the Committee, if passed, would continue to
apply that comprehensive scope of protection.
As Senator Bentsen himself stated: ``The committee has
failed to recommend any reduction in the scope of the 404
permit program. The program would still cover all waters of the
United States, including small streams, ponds, isolated
marshes, and intermittently flowing gullies.''\95\ Senator John
Tower of Texas, who supported the Bentsen amendment, described
the scope of jurisdiction under the 1972 Act similarly, as a
``regulatory scheme which covers not just the rivers of the
Nation but all surface waters and wetlands of the United
States.''\96\
---------------------------------------------------------------------------
\95\Id. at 903.
\96\Id. at 930.
---------------------------------------------------------------------------
Opponents of Senator Bentsen's amendment noted that the
Committee's bill maintained the broad jurisdiction enacted in
1972, and argued why Senator Bentsen's amendment to reduce
jurisdiction of the Act should be rejected.
Committee member Senator Robert Stafford (R-VT) explained:
The 1972 Federal Water Pollution Control Act
exercised comprehensive jurisdiction over the Nation's
waters to control pollution. This decision was the
result of extensive and careful study and debate. In
its report on that legislation, the Senate Public Works
Committee stated 'waters move in hydrologic cycles and
it is essential that discharge of pollutants be
controlled at the source.'. . . After extensive
deliberation, the committee amendment rejects the
redefinition of navigable waters. Instead, the
committee amendment insures continued protection of the
Nation's waters, but allows States to assume the
primary responsibility for protecting those lakes,
rivers, streams, swamps, marshes and similar areas that
lie outside the Corps program in the so-called `Phase I
waters.'''\97\
---------------------------------------------------------------------------
\97\Id. at 911
---------------------------------------------------------------------------
Senator Howard Baker (R-TN) noted:
A fundamental element of the Water Act is broad
jurisdiction over water for pollution control
purposes?. Comprehensive jurisdiction is necessary not
only to protect the natural environment but also to
avoid creating unfair competition. Unless Federal
jurisdiction is uniformly implemented for all waters,
dischargers located on non-navigable tributaries
upstream from the larger rivers and estuaries would not
be required to comply with the same procedural and
substantive standards imposed upon their downstream
competitors. Thus, artificially limiting the
jurisdiction can create a considerable competitive
disadvantage for certain discharges. . . . It is
important to understand that toxic substances threaten
the aquatic environment when discharged into small
streams or into major waterways. . . . Continuation of
the comprehensive coverage of this program is essential
for the protection for the aquatic environment.''\98\
---------------------------------------------------------------------------
\98\Id. at 920-21.
Senator Bentsen's amendment was defeated.\99\ Although the
House had passed legislation amending the Act along the lines
of the Bentsen amendment, when the House and Senate met in
conference, the Senate approach was accepted and no reduction
in the scope of the Act's jurisdiction was enacted.\100\
---------------------------------------------------------------------------
\99\Id. at 947.
\100\See id. at 281-82, Conf. Rept. (95-830) at 97-98.
---------------------------------------------------------------------------
The 1977 debate thus makes clear that Congress fully
understood the comprehensive scope of jurisdiction under the
1972 Act, and Congress expressly rejected proposed limitations
on that jurisdiction. Rather than undermining the foundation of
the Clean Water Act, Congress addressed concerns about the
Act's scope and application by adding a number of exemptions
for specific activities that remain in place and are reaffirmed
by the reported text of S. 787, by expanding the authority for
use of general permits, and by increasing the role of the
States. As the Supreme Court itself recognized in its 1985
decision in Riverside Bayview, to the extent there had been any
uncertainty in the mid-1970s, Congress's debates in 1977
confirmed the comprehensive scope of ``waters of the United
States.''\101\
---------------------------------------------------------------------------
\101\United States v. Riverside Bayview, 474 U.S. 121 (1985).
---------------------------------------------------------------------------
Early Supreme Court Decisions Confirmed the Comprehensive
Scope of the Act
In the 1980s the Supreme Court addressed the scope of the
Clean Water Act in a number of cases, which consistently noted
the Act's comprehensive definition of ``waters of the United
States.''
In Milwaukee v. Illinois, 451 U.S. 304, 316 & n.12 (1981),
for example, the Court held that the Act was so expansive as to
preempt claims between States under federal common law. The
Court stated:
Congress' intent in enacting the Amendments was
clearly to establish an all-encompassing program of
water pollution regulation. . . . No Congressman's
remarks on the legislation were complete without
reference to the ``comprehensive'' nature of the
Amendments.
In United States v. Riverside Bayview, 474 U.S. 121 (1985)
the Court held that the jurisdiction of the Act under the
definition of ``waters of the United States'' was not limited
to navigable waters, but extended to non-navigable waters
adjacent to navigable waters. And in 1987 in International
Paper Company v. Ouellette, a unanimous Supreme Court found
that the Clean Water Act ``applies to all point sources and
virtually all bodies of water.''\102\
---------------------------------------------------------------------------
\102\Intl. Paper Co v. Ouellete 479 U.S. 481, 492 (1987)
---------------------------------------------------------------------------
Section 6. Savings clause
Summary
Section 6 provides that nothing in this bill affects the
applicability of a number of listed provisions of the Federal
Water Pollution Control Act.
Discussion
The savings clause expressly preserves the existing
provisions in the Clean Water Act that have exempted farmers,
ranchers and other regulated entities from permitting
requirements. These exemptions, most of which have applied
since 1977, include:
Section 402(l)(1), exempting discharges composed
entirely of return flows from irrigated agriculture.
Section 402(l)(2), exempting discharges of
stormwater runoff from mining operations or oil and gas
exploration, production, processing, or treatment operations or
transmission facilities, composed entirely of flows which are
conveyances (including but not limited to pipes, conduits,
ditches, and channels) used for collecting and conveying
precipitation runoff and which are not contaminated by contact
with or do not come into contact with, any overburden, raw
material, intermediate products, finished product, byproduct,
or waste products located on the site of such operations.
Section 404(f)(1)(A), exempting 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.
Section 404(f)(1)(B), exempting discharges of
dredged or fill materials for the purpose of maintenance,
including emergency reconstruction of recently damaged parts,
of currently serviceable structures such as dikes, dams,
levees, groins, riprap, breakwaters, causeways, and bridge
abutments or approaches, and transportation structures.
Section 404(f)(1)(C), exempting discharges of
dredged or fill materials for the purpose of construction or
maintenance of farm or stock ponds or irrigation ditches or the
maintenance of drainage ditches.
Section 404(f)(1)(D), exempting 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 navigable waters.
Section 404(f)(1)(E), exempting 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, where such roads are constructed
and maintained, in accordance with best management practices,
to assure that flow and circulation patterns and chemical and
biological characteristics of the navigable waters are not
impaired, that the reach of navigable waters is not reduced,
and that any adverse effect on the aquatic environment will be
otherwise minimized.
Section 404(f)(1)(F), exempting 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 the Act (33 U.S.C. 1288(b)(4)) meeting the
requirements of subparagraphs (B) and (C) of that section.
The fact that Section 6 specifically refers to certain
cited provisions of the Act is not intended to imply that any
other exemptions, exclusions, or limiting interpretations under
the Act are not preserved. To the contrary, as provided in
Section 7(b), the bill is intended to restore the scope of
jurisdiction as the Act was applied prior to SWANCC, including
pursuant to regulatory qualifications and interpretations that
are not referenced in Section 6.
Section 7. Regulations
Summary
Section 7 requires EPA and the Army Corps of Engineers to
promulgate such regulations as may be necessary to implement
the bill, and provides a rule of construction ensuring that the
scope of ``waters of the United States'' shall be consistent
with the agencies' interpretation prior to the decision in
SWANCC and Rapanos.
Discussion
The Committee anticipates that the agencies may determine
that additional regulations are necessary. Section 7 requires
that any such regulations will be issued promptly.
The rule of construction established under Section 7
ensures that federal jurisdiction cannot expand through Agency
rulemaking as a result of enactment of S. 787, by requiring
that the term ``waters of the United States'' shall be
construed consistently with the scope of jurisdiction pre-
SWANCC and pre-Rapanos and with Congress's legislative
authority under the Constitution. This also ensures that the
agencies continue to maintain their historic interpretation of
the scope of the Act. The rule of construction provided in
Section 7(b) of the bill provides assurance that just as
certain categories of waters generally were not previously
subject to regulation under the Act, they will not be in the
future. These waters include, but are not limited to:
Non-tidal drainage and irrigation ditches
excavated on dry land.
Artificially irrigated areas which would revert to
upland if the irrigation ceased.
Artificial lakes or ponds created by excavating
and/or diking dry land to collect and retain water and which
are used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing.
Artificial reflecting or swimming pools or other
small ornamental bodies of water created by excavating and/or
diking dry land to retain water for primarily aesthetic
reasons.
Water filled depressions created in dry land
incidental to construction activity and pits excavated in dry
land for the purpose of obtaining fill, sand, or gravel unless
and until the construction or excavation operation is abandoned
and the resulting body of water meets the definition of waters
of the United States.\103\
---------------------------------------------------------------------------
\103\51 Fed. Reg. 41,206, 41,216 (Nov. 13, 1986).
---------------------------------------------------------------------------
Legislative History
On June 10, 2003, the Committee held a hearing to receive
testimony on Federal regulation of wetlands following the
Supreme Court's decision in the case of Solid Waste Agency of
Northern Cook County v. the U.S. Army Corps of Engineers.
On August 1, 2006, the Committee's Subcommittee on
Fisheries, Wildlife, and Water held a hearing on Interpreting
the Effect of the Supreme Court's Decision in the Joint Cases
of Rapanos v. United States and Carabell v. the U.S. Army Corps
of Engineers on ``the Waters of the United States.''
On December 13, 2007, the Committee held a hearing entitled
``The Clean Water Act Following the Recent Supreme Court
Decisions in Solid Waste Agency of Northern Cook County and
Rapanos-Carabell.''
On April 9, 2008, the Committee held a hearing entitled:
``Legislative Hearing on S. 1870, the Clean Water Restoration
Act of 2007,'' the predecessor bill to S. 787.
On June 18, 2009, the Committee held a business meeting at
which S. 787, with amendments, was approved and ordered to be
reported to the full Senate.
Roll Call Votes
Substitute Amendment Approved
At the business meeting held on June 18, 2009, an amendment
in the nature of a substitute was proposed by Senators Baucus,
Klobuchar and Boxer. The proposed substitute amendment would
modify the findings in S. 787 and the definition of ``waters of
the United States''; codify the existing regulatory exemptions
for prior converted croplands and man-made waste treatment
systems; ensure that existing statutory exemptions remain
intact; provide for issuance of regulations as necessary by the
EPA Administrator and Secretary of the Army; and establish a
rule of construction for interpreting the scope of the term
``waters of the United States.''
The substitute amendment offered by Senators Baucus,
Klobuchar and Boxer was adopted by voice vote.
Other Amendments Rejected
A total of 10 additional amendments to the bill were
offered and not approved by the Committee, as follows:
1. Amendment that would give the President the authority to
waive the requirements of the bill in the event of an emergency
or natural disaster (offered by Senator Vitter) (rejected by
voice vote).
2. Amendment that would clarify the definition of a
``pollutant'' under the Clean Water Act to exclude the
application of a pesticide (offered by Senator Vitter)
(rejected by a roll call vote of 7 yeas, 12 nays).
3. Amendment that would exempt ``streams, including
intermittent streams'' from the provisions of the measure
(offered by Senator Barrasso) (rejected by voice vote).
4. Amendment that would exempt ``mudflats'' from the
provisions of the measure (offered by Senator Barrasso)
(rejected by a roll call vote of 6 yeas, 13 nays).
5. Amendment that would exempt ``prairie potholes'' from
the provisions of the measure (offered by Senator Barrasso)
(rejected by a roll call vote of 6 yeas, 13 nays).
6. Amendment that would exempt ``wet meadows'' from the
provisions of the measure (offered by Senator Barrasso)
(rejected by voice vote).
7. Amendment that would exempt ``natural ponds'' from the
provisions of the measure (offered by Senator Barrasso)
(rejected by voice vote).
8. Amendment that would exempt individuals or entities from
being required to obtain EPA permits for any agricultural
practice (offered by Senator Barrasso) (rejected by voice
vote).
9. Amendment that would exempt individuals or entities from
being required to obtain EPA permits for livestock production
(offered by Senator Barrasso) (rejected by voice vote).
10. Amendment that would exempt groundwater from the
provisions in the measure (offered by Senator Barrasso)
(rejected by a roll call vote of 7 yeas, 12 nays).
Final Committee Vote to Report
S. 787, as amended by the Baucus/Klobuchar/Boxer substitute
amendment, was approved and ordered to be reported to the full
Senate. The roll call vote to report the bill was 12 to 7 in
favor (Senators Boxer, Baucus, Carper, Lautenberg, Sanders,
Cardin, Whitehouse, Klobuchar, Udall, Merkley, Gillibrand and
Specter voted yea, and Senators Inhofe, Voinovich, Vitter,
Crapo, Alexander, Barrasso, and Bond voted nay).
Regulatory Impact Statement
In compliance with section 11(b)(2) of rule XXVI of the
Standing Rules of the Senate, the Committee estimates that no
regulatory impact is expected by the passage of the bill. The
bill will not affect the personal privacy of individuals. The
Committee notes the Congressional Budget Office has concluded
that while the bill would impose some private-sector mandates,
``implementing S. 787 could alter, and possibly reduce, certain
permitting and enforcement activities under the Clean Water
Act.''
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee notes that the Congressional
Budget Office has concluded the bill will impose
intergovernmental and private-sector impacts but that it ``has
no basis for estimating whether the cost of the mandate would
exceed the annual thresholds established in UMRA for
intergovernmental or private-sector mandates ($69 million and
$139 million in 2009, respectively, adjusted annually for
inflation).''
August 7, 2009.
Hon. Barbara Boxer,
Chairman Committee on Environment and Public Works, U.S. Senate,
Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 787, the Clean Water
Restoration Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
Congressional Budget Office Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office.
CBO estimates that implementing S. 787 would have no
significant impact on the federal budget.
Enacting the bill would not affect direct spending or
revenues. S. 787 would amend the Clean Water Act to establish
federal jurisdiction over certain bodies of water. The Clean
Water Act requires that any person seeking to discharge certain
material into waters under federal jurisdiction obtain a permit
from the Army Corps of Engineers (the Corps). The Supreme Court
has ruled that this provision of the Clean Water Act applies
only to ``relatively permanent, standing or flowing bodies of
water.''
S. 787 would expand federal jurisdiction to include
intermittent and geographically isolated wetlands. Based on
information from the Corps and the Environmental Protection
Agency (EPA), CBO expects that implementing S. 787 could alter,
and possibly reduce, certain permitting and enforcement
activities under the Clean Water Act. CBO expects that S. 787
would restore federal jurisdiction over certain waters that
were covered under the Clean Water Act prior to the Supreme
Court decisions in Solid Waste Agency of Northern Cook County
v. U.S. Army Corps of Engineers (2001), Carabell v. United
States (2006), and Rapanos v. United States (2006). Both the
Corps of Engineers and EPA have maintained the personnel levels
for permitting and enforcement activities under the Clean Water
Act that existed prior to those decisions, and despite an
increase in such activities, neither agency has received
additional appropriations to carry out those activities. Under
S. 787, CBO expects that the agencies would maintain existing
personnel levels and that those personnel would be adequate to
carry out permitting and enforcement activities under the bill.
CBO expects that implementing S. 787 could alter and
possibly reduce litigation duties of federal attorneys.
According to information from the Department of Justice, 45
federal court proceedings have arisen from jurisdictional
determinations under the Clean Water Act since 2006. CBO
estimates that the budgetary impact of reducing such litigation
would be insignificant in any year given the small number of
cases involved.
CBO also expects that implementing S. 787 would slightly
increase receipts from permitting fees. The Corps charges
corporations $100 and individuals $10 for standard permits
issued under section 404 of the Clean Water Act. Following the
Supreme Court decisions mentioned above, the number of standard
permits issued by the Corps decreased 30 percent, but
information from the Corps indicates that the decline is mainly
attributable to weakening economic conditions. CBO estimates
that under S. 787, fee receipts from permits would increase by
less than $100,000 a year.
S. 787 would impose intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), because it would require public and private entities to
obtain permits and otherwise comply with restrictions for any
activities that would affect the bodies of water added by the
bill. The cost of the mandates would be the additional costs of
obtaining permits (or designing projects to avoid having to
obtain a permit), net of any savings that would result from a
modified permitting process.
Information about the additional bodies of water that would
be covered by the bill is scarce, and the number of activities
that would require a permit is uncertain. Therefore, CBO has no
basis for estimating whether the cost of the mandate would
exceed the annual thresholds established in UMRA for
intergovernmental or private-sector mandates ($69 million and
$139 million in 2009, respectively, adjusted annually for
inflation).
The CBO staff contacts for this estimate are Jeff LaFave
(for federal costs) and Ryan Miller and Amy Petz (for the
impact on state and local governments and the private sector).
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
MINORITY VIEWS OF SENATORS INHOFE, VITTER, BARRASSO, AND CRAPO
Clean water is one of our nation's most valuable and
cherished resources. For 37 years, the Federal Water Pollution
Control Act Amendments of 1972 (FWPCA), later amended in 1977
and commonly known as the Clean Water Act (CWA), has supported
a federal-state partnership to clean up and properly care for
our nation's navigable waters. This federal-state partnership
has been a cornerstone of the CWA since its inception,
successfully protecting waters of importance to the United
States. The partnership has also given local and state
governments important flexibility in meeting not only the goals
of the CWA but the specific and distinct needs of local
residents.
S. 787, the Clean Water Restoration Act, expands the scope
of federal power to all ``waters of the United States,''
stripping the states of much of their flexibility and
subjecting our nation's waters to the blanket jurisdiction of
federal bureaucracies. It also invalidates almost 40 years of
congressional intent and case law by restoring a fundamentally
flawed executive branch interpretation of the CWA, which defied
congressional intent from the very beginning. Rather than
improving water quality, this bill would create federal
roadblocks to local storm water management, unduly delay
development and maintenance of local infrastructure, increase
permit requests and litigation, create higher compliance costs,
exacerbate wait times for CWA permits, and raise costs for
farmers, ranchers, landowners, communities and businesses. For
these reasons, we oppose this legislation.
Proponents of the bill say it is designed merely to
overturn two United States Supreme Court cases, 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. 71519 (June 19, 2006). The bill claims that
these rulings have led to ``confusion, permitting delays,
increased costs, litigation, and reduced protections for waters
of the United States.''
In fact, these two Supreme Court decisions reined in the
Environmental Protection Agency and the Army Corps of
Engineers, which for years had stretched the interpretation of
Congressional intent and exceeded their authority under the CWA
to areas with little to no impact on the nation's waters which,
in some cases, were dry much more often than they were wet. In
response to these clear failures of the federal government to
abide by the law, the Supreme Court properly set up tests to
ensure federal agencies do not exceed the limits of the CWA,
providing Americans greater protection against regulatory
overreach.
The CWRA purportedly seeks ``to reaffirm the original
intent of Congress in enacting the Federal Water Pollution
Control Act Amendments of 1972.'' In the FWPCA and its
subsequent amendments, however, the statute is clear that
federal regulation is to extend only to ``navigable'' waters.
Congress' use of the word ``navigable'' is deliberate: the term
was used over 85 times in legislation considered by three
separate Congresses during a span of four decades. The
intentional reference to ``navigable'' waters serves to limit
federal authority over smaller, intrastate waters. Yet the CWRA
seeks to remove this distinction, thus changing the original
aim of Congress and vastly expanding the scope of the CWA.
For supporters of this bill, the term ``navigable'' has
been particularly troubling, since its origin rests with
Congress' power to regulate interstate commerce under the
Constitution. Although the limits of the Commerce Clause have
been determined and reinforced over the decades through
numerous judicial decisions, the bill's proponents want to
remove this limitation on federal authority. That is why the
CWRA would require implementing regulations to ``be construed
consistently (sic) with . . . the legislative authority of
Congress under the Constitution,'' pointedly leapfrogging the
limitations imposed by the Commerce Clause.
The CWRA also reverses Congress' long-standing support for
a federal-state partnership for water protection. The CWA has
long affirmed that ``it is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities
and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources.'' The CWRA would reverse this approach, removing
states' authority over waters that are traditionally within
their jurisdiction. It erases distinctions between federal,
state, and private waters and categorizes all waters as
``waters of the United States,'' subjecting nearly all waters
to the jurisdiction of federal agencies.
The bill expands the definition of ``waters of the United
States'' to include ``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.'' With this expansion of regulatory authority
this bill will have an especially significant impact on many
western and rural communities.
In addition to giving federal agencies authority over
wholly intrastate waters, including ephemeral and intermittent
streams, the CWRA would for the first time in 37 years of clean
water legislation open the door to the extension of federal
regulatory authority over ground water. Even though the bill
purports to exclude ground waters from federal jurisdiction, it
then lays the foundation for a claim of jurisdiction over
ground water by noting that ``water is transported through
interconnected hydrological cycles'' and that ``pollution . . .
of any part of an aquatic system may affect . . . other parts
of the aquatic system.'' This connectedness may ultimately
prove irresistible to regulators, who would be able to tie
above-ground activities to their impact on aquifers, springs,
and wells. Although proponents contend this is not the case, it
was revealing that the Committee's majority voted against an
amendment by Senator Barrasso to make such a prohibition clear.
The CWRA not only states that all water is connected
through ``interconnected hydrological cycles,'' but that if any
part of that cycle is subject to ``pollution, impairment, or
destruction,'' then all water can be affected. This concept is
behind the bill's efforts to regulate ``all waters'' at the
federal level, assuming that any waters left out of federal
regulatory authority would be unprotected and could be
irreparably damaged. This train of thought clearly implies that
not only are states incapable of regulating any waters wholly
within their borders, but that the federal government needs to
regulate any body of water or piece of land that could
potentially hold water in order to properly protect the
``waters of the United States.''
It also leads to an argument, already made in the original
text of the CWRA, that ``activities affecting'' water bodies
should be subject to regulation. This latter contention,
repeatedly advanced by advocates of greater federal control,
will logically lead to the conclusion that actions affecting
air quality must also be regulated under the CWA, since air
pollution can ultimately affect the hydrological cycle.
Private landowners as well as a wide range of industries
and development will be negatively impacted if the CWRA becomes
law. Building and road projects will see complications and
delays, while private projects stall as they are subjected to
new and unreasonable permitting procedures. Small businesses
would face new financial burdens and suffer unnecessary losses
in productivity. Farmers and ranchers would potentially be hit
the hardest by this legislation, which would open the door for
EPA regulation of ponds, irrigation and drainage ditches, and
water retention systems. Even though ``prior converted
croplands'' are purportedly not covered by the bill, it is
telling that the language goes on to specify that ``the final
authority regarding jurisdiction under this act remains with
the Environmental Protection Agency''.
Uncertainty of how much the CWRA would increase costs for
millions of Americans is expressed by the cost estimate
prepared by the Congressional Budget Office (CBO). The CBO
found that ``S. 787 would impose intergovernmental and private-
sector mandates, as defined in the Unfunded Mandates Reform
Act'' by requiring private and public entities to obtain
permits and comply with new restrictions for ``any activities
that would affect the bodies of water added by the bill.''
Costs of these mandates would include either the time, money,
and resources needed to obtain new permits, or the costs and
resources associated with complying with the new regulations
and avoiding the need for additional permitting. The CBO states
that the information about the additional bodies of water that
the bill would cover is insufficient and the number of new
activities that would require permitting cannot be determined.
Because of this inadequacy of information, CBO has no way of
estimating whether the cost of the mandates would exceed the
annual thresholds established for intergovernmental or private-
sector mandates which could be in the hundreds of millions of
dollars.
The federal-state partnership created by nearly 40 years of
Clean Water Act legislation has worked to protect our nation's
waters. The Clean Water Restoration Act would end this
partnership and give Washington bureaucrats broadly expanded
powers to regulate America's waters. Proponents of the bill may
argue there might not be specific language directing federal
agencies to expand their authority to regulate groundwater, air
pollutants and other water-related features. The bill, however,
lays the foundation for such an interpretation, encouraging
federal agencies to regulate any and all waters within the
``hydrological cycle'' at their discretion. The CWRA is, at the
end, a federal power grab that should concern states,
municipalities and property owners across the nation.
James M. Inhofe.
David Vitter.
John Barrasso.
Mike Crapo.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
----------
Federal Water Pollution Control Act
* * * * * * *
Sec. 101. (a) The objective of this Act is to restore and
maintain the chemical, physical, and biological integrity of
the Nation's waters. In order to achieve this objective it is
hereby declared that, consistent with the provisions of this
Act--
(1) * * *
* * * * * * *
Sec. 301. (a) Except as in compliance with this section and
sections 302, 306, 307, 318, 402, and 404 of this Act, the
discharge of any pollutant by any person shall be unlawful.
(b) * * *
* * * * * * *
information and guidelines
Sec. 304. (a)(1) * * *
* * * * * * *
(l) Individual Control Strategies for Toxic Pollutants.--
(1) State list of [navigable waters] waters of the
united states and development of strategies.--Not later
than 2 years after the date of the enactment of this
subsection, each State shall submit to the
Administrator for review, approval, and implementation
under this subsection--
* * * * * * *
Sec. 311. (a) For the purpose of this section, the term--
(1) * * *
* * * * * * *
(11) ``offshore facility'' means any facility of any
kind located in, on, or under, any of the [navigable
waters of the United States] waters of the United
States, and any facility of any kind which is subject
to the jurisdiction of the United States and is located
in, on, or under any other waters, other than a vessel
or a public vessel;
(12) ``act of God'' means an act occasioned by an
unanticipated grave natural disaster;
* * * * * * *
(26) ``nontank vessel'' means a self-propelled vessel
that--
(A) is at least 400 gross tons as measured
under section 14302 of title 46, United States
Code, or, for vessels not measured under that
section, as measured under section 14502 of
that title;
(B) is not a tank vessel;
(C) carries oil of any kind as fuel for main
propulsion; and
(D) operates on the [navigable waters of the
United States] waters of the United States, as
defined in section 2101(17a) of that title.
(b)(1) The Congress hereby declares that it is the policy
of the United States that there should be no discharges of oil
or hazardous substances into or upon the [navigable waters of
the United States] waters of the United States, adjoining
shorelines, or into or upon the waters of the contiguous zone,
or in connection with activities under the Outer Continental
Shelf Lands Act or the Deepwater Port Act of 1974, or which may
affect natural resources belonging to, appertaining to, or
under the exclusive management authority of the United States
(including resources under the Fishery Conservation and
Management Act of 1976).
(2)(A) The Administrator shall develop, promulgate, and
revise as may be appropriate, regulations designating as
hazardous substances, other than oil as defined in this
section, such elements and compounds which, when discharged in
any quantity into or upon the [navigable waters of the United
States] waters of the United States or adjoining shorelines or
the waters of the contiguous zone or in connection with
activities under the Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974, or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources
under the Fishery Conservation and Management Act of 1976),
present an imminent and substantial danger to the public health
or welfare, including, but not limited to, fish, shellfish,
wildlife, shorelines, and beaches.
(B) The Administrator shall within 18 months after the date
of enactment of this paragraph, conduct a study and report to
the Congress on methods, mechanisms, and procedures to create
incentives to achieve a higher standard of care in all aspects
of the management and movement of hazardous substances on the
part of owners, operators, or persons in charge of onshore
facilities, offshore facilities, or vessels. The Administrator
shall include in such study (1) limits of liability, (2)
liability for third party damages, (3) penalties and fees, (4)
spill prevention plans, (5) current practices in the insurance
and banking industries, and (6) whether the penalty enacted in
subclause (bb) of clause (iii) of subparagraph (B) of
subsection (b)(2) of section 311 of Public Law 9209500 should
be enacted.
(3) The discharge of oil or hazardous substances (i) into
or upon the [navigable waters of the United States] waters of
the United States, adjoining shorelines, or into or upon the
waters of the contiguous zone, or (ii) in connection with
activities under the Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974, or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources
under the Fishery Conservation and Management Act of 1976), in
such quantities as may be harmful as determined by the
President under paragraph (4) of this subsection, is
prohibited, except (A) in the case of such discharges into the
waters of the contiguous zone or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources
under the Fishery Conservation and Management Act of 1976),
where permitted under the Protocol of 1978 Relating to the
International Convention for the Prevention of Pollution from
Ships, 1973, and (B) where permitted in quantities and at times
and locations or under such circumstances or conditions as the
President may, by regulation, determine not to be harmful. Any
regulations issued under this subsection shall be consistent
with maritime safety and with marine and navigation laws and
regulations and applicable water quality standards.
* * * * * * *
(m) Administrative Provisions.--
(1) For vessels.--Anyone authorized by the President
to enforce the provisions of this section with respect
to any vessel may, except as to public vessels--
(A) board and inspect any vessel upon the
[navigable waters of the United States] waters
of the United States or the waters of the
contiguous zone,
(B) with or without a warrant, arrest any
person who in the presence or view of the
authorized person violates the provisions of
this section or any regulation issued
thereunder, and
* * * * * * *
Sec. 312. (a) For the purpose of this section, the term--
(1) ``new vessel'' includes every description of
watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on
the navigable waters, the construction of which is
initiated after promulgation of standards and
regulations under this section;
(2) * * *
* * * * * * *
(h) After the effective date of standards and regulations
promulgated under this section, it shall be unlawful--
(1) for the manufacturer of any vessel subject to
such standards and regulations to manufacture for sale,
to sell or offer for sale, or to distribute for sale or
resale any such vessel unless it is equipped with a
marine sanitation device which is in all material
respects substantially the same as the appropriate test
device certified pursuant to this section;
(2) for any person, prior to the sale or delivery of
a vessel subject to such standards and regulations to
the ultimate purchaser, wrongfully to remove or render
inoperative any certified marine sanitation device or
element of design of such device installed in such
vessel;
(3) for any person to fail or refuse to permit access
to or copying of records or to fail to make reports or
provide information required under this section; and
(4) for a vessel subject to such standards and
regulations to operate on the [navigable waters of the
United States] waters of the United States, if such
vessel is not equipped with an operable marine
sanitation device certified pursuant to this section.
* * * * * * *
(l) Anyone authorized by the Secretary of the department in
which the Coast Guard is operating to enforce the provisions of
this section may, except as to public vessels, (1) board and
inspect any vessel upon the [navigable waters of the United
States] waters of the United States and (2) execute any warrant
or other process issued by an officer or court of competent
jurisdiction.
* * * * * * *
(n) Uniform National Discharge Standards for Vessels of the
Armed Forces.--
(1) Applicability.--* * *
* * * * * * *
(7) Establishment of state no-discharge zones.--
(A) State prohibition.--* * *
* * * * * * *
(C) Applicability to foreign flagged
vessels.--A prohibition under this paragraph--
(i) shall not impose any design,
construction, manning, or equipment
standard on a foreign flagged vessel
engaged in innocent passage unless the
prohibition implements a generally
accepted international rule or
standard; and
(ii) that relates to the prevention,
reduction, and control of pollution
shall not apply to a foreign flagged
vessel engaged in transit passage
unless the prohibition implements an
applicable international regulation
regarding the discharge of oil, oily
waste, or any other noxious substance
into the waters.
(8) Prohibition relating to vessels of the armed
forces.--After the effective date of the regulations
promulgated by the Secretary of Defense under paragraph
(4), it shall be unlawful for any vessel of the Armed
Forces subject to the regulations to--
(A) operate in the [navigable waters of the
United States] waters of the United States or
the waters of the contiguous zone, if the
vessel is not equipped with any required marine
pollution control device meeting standards
established under this subsection; or
(B) discharge overboard any discharge
incidental to the normal operation of a vessel
in waters with respect to which a prohibition
on the discharge has been established under
paragraph (7).
* * * * * * *
Sec. 501. (a) The Administrator is authorized to prescribe
such regulations as are necessary to carry out his functions
under this Act.
(b) * * *
* * * * * * *
Sec. 502. Except as otherwise specifically provided, when
used in this Act:
(1) * * *
* * * * * * *
(6) The term ``pollutant'' means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste
discharged into water. This term does not mean (A)
``sewage from vessels or a discharge incidental to the
normal operation of a vessel of the Armed Forces''
within the meaning of section 312 of this Act; or (B)
water, gas, or other material which is injected into a
well to facilitate production of oil or gas, or water
derived in association with oil or gas production and
disposed of in a well, if the well used either to
facilitate production or for disposal purpose is
approved by authority of the State in which the well is
located, and if such State determines that such
injection or disposal will not result in the
degradation of ground or surface water resources.
[(7) The term ``navigable waters'' means the waters
of the United States, including the territorial seas.]
[(8)] (7) The term ``territorial seas'' means the
belt of the seas measured from the line of ordinary low
water along that portion of the coast which is in
direct contact with the open sea and the line marking
the seaward limit of inland waters, and extending
seaward a distance of three miles.
[(9)] (8) The term ``contiguous zone'' means the
entire zone established or to be established by the
United States under article 24 of the Convention of the
Territorial Sea and the Contiguous Zone.
[(10)] (9) The term ``ocean'' means any portion of
the high seas beyond the contiguous zone.
[(11)] (10) The term ``effluent limitation'' means
any restriction established by a State or the
Administrator on quantities, rates, and concentrations
of chemical, physical, biological, and other
constituents which are discharged from point sources
into navigable waters, the waters of the contiguous
zone, or the ocean, including schedules of compliance.
[(12)] (11) The term ``discharge of a pollutant'' and
the term ``discharge of pollutants'' each means (A) any
addition of any pollutant to navigable waters from any
point source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any
point source other than a vessel or other floating
craft.
[(13)] (12) The term ``toxic pollutant'' means those
pollutants, or combinations of pollutants, including
disease-causing agents, which after discharge and upon
exposure, ingestion, inhalation or assimilation into
any organism, either directly from the environment or
indirectly by ingestion through food chains, will, on
the basis of information available to the
Administrator, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological
malfunctions (including malfunctions in reproduction)
or physical deformations, in such organisms or their
offspring.
[(14)] (13) The term ``point source'' means any
discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which
pollutants are or may be discharged. This term does not
include agricultural stormwater discharges and return
flows from irrigated agriculture.
[(15)] (14) The term ``biological monitoring'' shall
mean the determination of the effects on aquatic life,
including accumulation of pollutants in tissue, in
receiving waters due to the discharge of pollutants (A)
by techniques and procedures, including sampling of
organisms representative of appropriate levels of the
food chain appropriate to the volume and the physical,
chemical, and biological characteristics of the
effluent, and (B) at appropriate frequencies and
locations.
[(16)] (15) The term ``discharge'' when used without
qualification includes a discharge of a pollutant, and
a discharge of pollutants.
[(17)] (16)The term ``schedule of compliance'' means
a schedule of remedial measures including an
enforceable sequence of actions or operations leading
to compliance with an effluent limitation, other
limitation, prohibition, or standard.
[(18)] (17) The term ``industrial user'' means those
industries identified in the Standard Industrial
Classification Manual, Bureau of the Budget, 1967, as
amended and supplemented, under the category ``Division
D--Manufacturing'' and such other classes of
significant waste producers as, by regulation, the
Administrator deems appropriate.
[(19)] (18) The term ``pollution'' means the man-made
or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.
[(20)] (19) The term ``medical waste'' means
isolation wastes; infectious agents; human blood and
blood products; pathological wastes; sharps; body
parts; contaminated bedding; surgical wastes and
potentially contaminated laboratory wastes; dialysis
wastes; and such additional medical items as the
Administrator shall prescribe by regulation.
[(21)] (20) Coastal recreation waters.--
(A) In general.--The term ``coastal
recreation waters'' means--
(i) the Great Lakes; and
(ii) marine coastal waters (including
coastal estuaries) that are designated
under section 303(c) by a State for use
for swimming, bathing, surfing, or
similar water contact activities.
(B) Exclusions.--The term ``coastal
recreation waters'' does not include--
(i) inland waters; or
(ii) waters upstream of the mouth of
a river or stream having an unimpaired
natural connection with the open sea.
[(22)] (21) Floatable material.--
(A) In general.--The term ``floatable
material'' means any foreign matter that may
float or remain suspended in the water column.
(B) Inclusions.--The term ``floatable
material'' includes--
(i) plastic;
(ii) aluminum cans;
(iii) wood products;
(iv) bottles; and
(v) paper products.
[(23)] (22) Pathogen indicator.--The term ``pathogen
indicator'' means a substance that indicates the
potential for human infectious disease.
[(24)] (23) Oil and gas exploration and production.--
The term ``oil and gas exploration, production,
processing, or treatment operations or transmission
facilities'' means all field activities or operations
associated with exploration, production, processing, or
treatment operations, or transmission facilities,
including activities necessary to prepare a site for
drilling and for the movement and placement of drilling
equipment, whether or not such field activities or
operations may be considered to be construction
activities.
[(25)] (24) Recreational vessel.--
(A) In general.--The term ``recreational
vessel'' means any vessel that is--
(i) manufactured or used primarily
for pleasure; or
(ii) leased, rented, or chartered to
a person for the pleasure of that
person.
(B) Exclusion.--The term ``recreational
vessel'' does not include a vessel that is
subject to Coast Guard inspection and that--
(i) is engaged in commercial use; or
(ii) carries paying passengers.
(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.
* * * * * * *
----------