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

111th CONGRESS
  1st Session
                                 S. 787

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 2, 2009

   Mr. Feingold (for himself, Mrs. Boxer, Mr. Cardin, Mr. Brown, Ms. 
Cantwell, Mr. Carper, Mr. Dodd, Mr. Durbin, Mrs. Gillibrand, Mr. Kerry, 
  Mr. Kohl, Mr. Lautenberg, Mr. Leahy, Mr. Levin, Mr. Lieberman, Mr. 
    Menendez, Mr. Merkley, Mr. Reed, Mr. Sanders, Mr. Schumer, Mrs. 
 Shaheen, Ms. Stabenow, Mr. Whitehouse, and Mr. Wyden) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Environment and Public Works

_______________________________________________________________________

                                 A BILL


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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Clean Water Restoration Act''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to reaffirm the original intent of Congress in enacting 
        the Federal Water Pollution Control Act Amendments of 1972 
        (Public Law 92-500; 86 Stat. 816) to restore and maintain the 
        chemical, physical, and biological integrity of the waters of 
        the United States;
            (2) to clearly define the waters of the United States that 
        are subject to the Federal Water Pollution Control Act (33 
        U.S.C. 1251 et seq.); and
            (3) to provide protection to the waters of the United 
        States to the maximum extent of the legislative authority of 
        Congress under the Constitution.

SEC. 3. FINDINGS.

    Congress finds that--
            (1) water is a unique and precious resource used not only 
        to sustain human, animal, and plant life, but is also 
        economically important for agriculture, transportation, flood 
        control, energy production, recreation, fishing and 
        shellfishing, and municipal and commercial uses;
            (2) water is transported through interconnected 
        hydrological cycles, and the pollution, impairment, or 
        destruction of any part of an aquatic system may affect the 
        chemical, physical, and biological integrity of other parts of 
        the aquatic system;
            (3) in 1972, Congress enacted the Federal Water Pollution 
        Control Act Amendments of 1972 (Public Law 92-500; 86 Stat. 
        816), which amended the Federal Water Pollution Act (33 U.S.C. 
        1251 et seq.) in its entirety, in order to meet the national 
        objective of restoring and maintaining the chemical, physical, 
        and biological integrity of the Nation's waters;
            (4) prior to the date of enactment of that Act in 1972, 
        State approaches and previous Federal legislation proved 
        ineffective in protecting the Nation's waters;
            (5) the enactment of that Act in 1972 established uniform, 
        minimum national water quality and other clean water protection 
        programs to restore and maintain aquatic ecosystems of the 
        United States that serve as critical drinking water sources, 
        water supplies for municipal, industrial, and agricultural 
        uses, flood reduction, recreation, habitat for fish and 
        wildlife, and many other uses;
            (6) in establishing broad, uniform, and minimum Federal 
        standards and programs under the Federal Water Pollution 
        Control Act (33 U.S.C. 1251 et seq.) in 1972, Congress 
        recognized, preserved, and protected the responsibility and 
        right of the States and Indian tribes to prevent, reduce, and 
        eliminate pollution of waters by preserving for States and 
        Indian tribes the ability to manage grant, research, and 
        permitting programs by assuming implementation of portions of 
        the Act to prevent, reduce, and eliminate pollution, and to 
        establish standards and programs that are more protective than 
        Federal standards and programs, for waters of the United States 
        within the borders of each State or on land under the 
        jurisdiction of the Indian tribe;
            (7) since the 1970s, the definitions of ``waters of the 
        United States'' in regulations of the Environmental Protection 
        Agency and the Corps of Engineers have properly established the 
        scope of waters that require protection by the Federal Water 
        Pollution Control Act in order to meet the national objective 
        described in paragraph (3);
            (8) this Act will treat, as ``waters of the United 
        States'', those features that were treated as such pursuant to 
        the regulations of the Environmental Protection Agency and the 
        Corps of Engineers in existence before the dates of the 
        decisions referred to in paragraph (10), including--
                    (A) all waters which are subject to the ebb and 
                flow of the tide;
                    (B) all interstate waters, including interstate 
                wetlands;
                    (C) all other waters, such as intrastate lakes, 
                rivers, streams (including intermittent streams), 
                mudflats, sandflats, wetlands, sloughs, prairie 
                potholes, wet meadows, playa lakes, or natural ponds;
                    (D) all impoundments of waters of the United 
                States;
                    (E) tributaries of the aforementioned waters;
                    (F) the territorial seas; and
                    (G) wetlands adjacent to the aforementioned waters;
            (9) ``ground waters'' are treated separately from ``waters 
        of the United States'' for purposes of the Federal Water 
        Pollution Control Act and are not considered ``waters of the 
        United States'' under this Act;
            (10) the ability to meet the national objective described 
        in paragraph (3) has been undermined by the decisions of the 
        United States Supreme Court in Solid Waste Agency of Northern 
        Cook County v. United States Army Corps of Engineers, 531 U.S. 
        159 (January 9, 2001) and Rapanos v. United States, 547 U.S. 
        715 (June 19, 2006), which have resulted in confusion, 
        permitting delays, increased costs, litigation, and reduced 
        protections for waters of the United States described in 
        paragraph (8);
            (11) to restore original protections, Congress is the only 
        entity that can reaffirm the geographical scope of waters that 
        are protected under the Federal Water Pollution Control Act;
            (12) the intent of Congress with the enactment of this Act 
        is to restore geographical jurisdiction of the Federal Water 
        Pollution Control Act to that which was in existence before the 
        dates of the decisions referred to in paragraph (10);
            (13)(A) as set forth in section 6, nothing in this Act 
        modifies or otherwise affects the amendments made by the Clean 
        Water Act of 1977 (Public Law 95-217; 91 Stat. 1566) to the 
        Federal Water Pollution Control Act that exempted certain 
        activities, such as farming, silviculture, and ranching 
        activities, as well as agricultural stormwater discharges and 
        return flows from oil, gas, and mining operations and irrigated 
        agriculture, from particular permitting requirements;
            (B) furthermore, the definition of the term ``point 
        source'' under section 502 of that Act (33 U.S.C. 1362) 
        excludes agricultural stormwater discharges and return flows 
        from irrigated agriculture; and
            (C) this Act does not modify or otherwise affect any of the 
        provisions described in subparagraphs (A) and (B);
            (14)(A) through agency rulemaking, the term ``waters of the 
        United States'' did not include--
                    (i) prior converted cropland used for agriculture; 
                or
                    (ii) manmade waste treatment systems neither 
                created in waters of the United States nor resulting 
                from the impoundment of waters of the United States; 
                and
            (B) this Act does not modify or otherwise affect either of 
        the provisions described in subparagraph (A);
            (15) Congress supports the policy in effect under section 
        101(g) of the Federal Water Pollution Control Act (33 U.S.C. 
        1251(g)), which states that ``the authority of each State to 
        allocate quantities of water within its jurisdiction shall not 
        be superseded, abrogated or otherwise impaired by this Act. It 
        is the further policy of Congress that nothing in this Act 
        shall be construed to supersede or abrogate rights to 
        quantities of water which have been established by any State. 
        Federal agencies shall co-operate with State and local agencies 
        to develop comprehensive solutions to prevent, reduce and 
        eliminate pollution in concert with programs for managing water 
        resources.'';
            (16) protection of intrastate waters is necessary to 
        restore and maintain the chemical, physical, and biological 
        integrity of all waters in the United States;
            (17) the regulation of discharges of pollutants into 
        intrastate waters is an integral part of the comprehensive 
        clean water regulatory program of the United States;
            (18) small and intermittent streams, including ephemeral 
        and seasonal streams, which have been jeopardized by the 
        decisions referred to in paragraph (10)--
                    (A) comprise the majority of all stream miles in 
                the United States;
                    (B) serve critical biological and hydrological 
                functions that affect entire watersheds;
                    (C) reduce the introduction of pollutants to large 
                streams and rivers;
                    (D) provide and purify drinking water supplies;
                    (E) are especially important to the life cycles of 
                aquatic organisms; and
                    (F) aid in flood prevention, including reducing the 
                flow of higher-order streams;
            (19) the pollution or other degradation of waters of the 
        United States, individually and in the aggregate, has a 
        substantial relation to and effect on interstate commerce;
            (20) protection of intrastate waters is necessary to 
        prevent significant harm to interstate commerce and sustain a 
        robust system of interstate commerce in the future;
            (21)(A) waters, including streams and wetlands, provide 
        protection from flooding; and
            (B) draining or filling intrastate wetlands and 
        channelizing or filling intrastate streams can cause or 
        exacerbate flooding that causes billions of dollars of damages 
        annually, placing a significant burden on interstate commerce;
            (22) millions of individuals in the United States depend on 
        streams, wetlands, and other waters of the United States to 
        filter water and recharge surface and subsurface drinking water 
        supplies, protect human health, and create economic 
        opportunity;
            (23) source water protection areas containing small or 
        intermittent streams provide water to public drinking water 
        supplies serving more than 110,000,000 individuals in the 
        United States;
            (24)(A) millions of individuals in the United States enjoy 
        recreational activities that depend on intrastate waters, such 
        as waterfowl hunting, bird watching, fishing, and photography;
            (B) those activities and associated travel generate 
        hundreds of billions of dollars of income each year for the 
        travel, tourism, recreation, and sporting sectors of the 
        economy of the United States;
            (C) annually, 34,000,000 hunters and anglers spend more 
        than $76,600,000,000 on hunting- and fishing-related products 
        and activities, including approximately 2,000,000 waterfowl 
        hunters who account for about $2,300,000,000 in annual economic 
        growth;
            (25) activities that result in the discharge of pollutants 
        into waters of the United States are commercial or economic in 
        nature, and, in the aggregate, have a substantial effect on 
        interstate commerce;
            (26) a substantial number of the sources regulated under 
        the Federal Water Pollution Control Act discharge into 
        headwater streams that may be intermittent or seasonal;
            (27) more than 40 percent of those sources, or 14,800 
        facilities with individual permits issued in accordance with 
        the Federal Water Pollution Control Act (33 U.S.C. 1251 et 
        seq.), including industrial plants and municipal sewage 
        treatment systems, discharge into small or intermittent 
        streams;
            (28) protecting the quality of and regulating activities 
        affecting the waters of the United States is a necessary and 
        proper means of implementing treaties to which the United 
        States is a party, including treaties protecting species of 
        fish, birds, and other wildlife;
            (29) approximately half of North American migratory birds 
        depend upon or are associated with wetlands and intermittent or 
        ephemeral streams;
            (30) approximately half of all threatened and endangered 
        species in the United States depend on wetlands;
            (31) for those reasons, the protection of wetlands and 
        other waters providing breeding, feeding, and sheltering 
        habitat for migratory birds and endangered species is essential 
        to enable the United States to fulfill the obligations of the 
        United States under international treaties for the conservation 
        of those species;
            (32) protecting the quality of and regulating activities 
        affecting the waters of the United States is a necessary and 
        proper means of protecting Federal land, including hundreds of 
        millions of acres of parkland, refuge land, and other land 
        under Federal ownership and the wide array of waters 
        encompassed by that land; and
            (33) protecting the quality of and regulating activities 
        affecting the waters of the United States is necessary to 
        protect Federal land and waters from discharges of pollutants 
        and other forms of degradation.

SEC. 4. DEFINITION OF WATERS OF THE UNITED STATES.

    Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 
1362) is amended--
            (1) by striking paragraph (7);
            (2) by redesignating paragraphs (8) through (25) as 
        paragraphs (7) through (24), respectively; and
            (3) by adding at the end the following:
            ``(25) Waters of the united states.--The term `waters of 
        the United States' means all waters subject to the ebb and flow 
        of the tide, the territorial seas, and all interstate and 
        intrastate waters and their tributaries, including lakes, 
        rivers, streams (including intermittent streams), mudflats, 
        sandflats, wetlands, sloughs, prairie potholes, wet meadows, 
        playa lakes, natural ponds, and all impoundments of the 
        foregoing, to the fullest extent that these waters, or 
        activities affecting these waters, are subject to the 
        legislative power of Congress under the Constitution.''.

SEC. 5. CONFORMING AMENDMENTS.

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

SEC. 6. SAVINGS CLAUSE.

    Nothing in this Act affects the authority of the Administrator of 
the Environmental Protection Agency or the Secretary of the Army under 
the following provisions of the Federal Water Pollution Control Act:
            (1) Section 402(l)(1) (33 U.S.C. 1342(l)(1)), relating to 
        discharges composed entirely of return flows from irrigated 
        agriculture.
            (2) Section 402(l)(2) (33 U.S.C. 1342(l)(2)), relating to 
        discharges of stormwater runoff from certain oil, gas, and 
        mining operations composed entirely of flows from precipitation 
        runoff conveyances, which are not contaminated by or in contact 
        with specified materials.
            (3) Section 404(f)(1)(A) (33 U.S.C. 1344(f)(1)(A)), 
        relating to discharges of dredged or fill materials from normal 
        farming, silviculture, and ranching activities, such as 
        plowing, seeding, cultivating, minor drainage, harvesting for 
        the production of food, fiber, and forest products, or upland 
        soil and water conservation practices.
            (4) Section 404(f)(1)(B) (33 U.S.C. 1344(f)(1)(B)), 
        relating to discharges of dredged or fill materials for the 
        purpose of maintenance of currently serviceable structures.
            (5) Section 404(f)(1)(C) (33 U.S.C. 1344(f)(1)(C)), 
        relating to discharges of dredged or fill materials for the 
        purpose of construction or maintenance of farm or stock ponds 
        or irrigation ditches and maintenance of drainage ditches.
            (6) Section 404(f)(1)(D) (33 U.S.C. 1344(f)(1)(D)), 
        relating to discharges of dredged or fill materials for the 
        purpose of construction of temporary sedimentation basins on 
        construction sites, which do not include placement of fill 
        material into the waters of the United States.
            (7) Section 404(f)(1)(E) (33 U.S.C. 1344(f)(1)(E)), 
        relating to discharges of dredged or fill materials for the 
        purpose of construction or maintenance of farm roads or forest 
        roads or temporary roads for moving mining equipment in 
        accordance with best management practices.
            (8) Section 404(f)(1)(F) (33 U.S.C. 1344(f)(1)(F)), 
        relating to discharges of dredged or fill materials resulting 
        from activities with respect to which a State has an approved 
        program under section 208(b)(4) of that Act (33 U.S.C. 
        1288(b)(4)) meeting the requirements of subparagraphs (B) and 
        (C) of that section.
                                 <all>