[env-trinity] Clean Water Restoration Act to Amend CWA "Navigable" Clause to "Waters of the US" in Committee
Joshua Allen
trinityjosh at gmail.com
Fri May 8 11:37:34 PDT 2009
*http://thomas.loc.gov/cgi-bin/query/z?c111:S.787:
S.787*
*Title:* A bill to amend the Federal Water Pollution Control Act to clarify
the jurisdiction of the United States over waters of the United States.
*Sponsor: *Sen Feingold, Russell
D.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD003+@4%28%28@1%28Sen+Feingold++Russell+D.%29%29+01331%29%29>[WI]
(introduced 4/2/2009)
Cosponsors<http://thomas.loc.gov/cgi-bin/bdquery/D?d111:1:./temp/%7Ebd24kI:@@@P%7C/bss/111search.html%7C>(24)
*Latest Major Action: *4/2/2009 Referred to Senate committee. Status: Read
twice and referred to the Committee on Environment and Public Works.
*SUMMARY:*
***NONE***
------------------------------
*MAJOR ACTIONS:*
***NONE***
------------------------------
*ALL ACTIONS:*
See also: Related House Committee
Documents<http://thomas.loc.gov/cgi-bin/bdquery/z?d111::@@@M>
*4/2/2009:*Sponsor introductory remarks on measure. (CR
S4317-4318<http://thomas.loc.gov/cgi-bin/query/R?r111:FLD001:S04318>)
*4/2/2009:*Read twice and referred to the Committee on Environment and
Public Works.
------------------------------
*TITLE(S):* (*italics indicate a title for a portion of a bill*)
- SHORT TITLE(S) AS INTRODUCED:
Clean Water Restoration Act
- OFFICIAL TITLE AS INTRODUCED:
A bill to amend the Federal Water Pollution Control Act to clarify the
jurisdiction of the United States over waters of the United States.
------------------------------
* COSPONSORS(24), ALPHABETICAL* [followed by Cosponsors
withdrawn]: (Sort: by
date<http://thomas.loc.gov/cgi-bin/bdquery/D?d111:1:./temp/%7Ebd24kI:@@@N%7C/bss/111search.html%7C>
)
Sen Boxer, Barbara<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Boxer++Barbara%29%29+00116%29%29>[CA]
- 4/2/2009
Sen Brown, Sherrod<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Brown++Sherrod%29%29+00136%29%29>[OH]
- 4/2/2009
Sen Cantwell,
Maria<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Cantwell++Maria%29%29+00172%29%29>[WA]
- 4/2/2009
Sen Cardin, Benjamin
L.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Cardin++Benjamin+L.%29%29+00174%29%29>[MD]
- 4/2/2009
Sen Carper, Thomas
R.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Carper++Thomas+R.%29%29+00179%29%29>[DE]
- 4/2/2009
Sen Dodd, Christopher
J.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Dodd++Christopher+J.%29%29+00302%29%29>[CT]
- 4/2/2009
Sen Durbin, Richard<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Durbin++Richard%29%29+00326%29%29>[IL]
- 4/2/2009
Sen Gillibrand, Kirsten
E.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Gillibrand++Kirsten+E.%29%29+01866%29%29>[NY]
- 4/2/2009
Sen Kaufman, Edward
E.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Kaufman++Edward+E.%29%29+01964%29%29>[DE]
- 4/27/2009
Sen Kerry, John
F.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Kerry++John+F.%29%29+01379%29%29>[MA]
- 4/2/2009
Sen Kohl, Herb<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Kohl++Herb%29%29+01380%29%29>[WI]
- 4/2/2009
Sen Lautenberg, Frank
R.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Lautenberg++Frank+R.%29%29+01381%29%29>[NJ]
- 4/2/2009
Sen Leahy, Patrick
J.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Leahy++Patrick+J.%29%29+01383%29%29>[VT]
- 4/2/2009
Sen Levin, Carl<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Levin++Carl%29%29+01384%29%29>[MI]
- 4/2/2009
Sen Lieberman, Joseph
I.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Lieberman++Joseph+I.%29%29+01385%29%29>[CT]
- 4/2/2009
Sen Menendez,
Robert<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Menendez++Robert%29%29+00791%29%29>[NJ]
- 4/2/2009
Sen Merkley,
Jeff<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Merkley++Jeff%29%29+01900%29%29>[OR]
- 4/2/2009
Sen Reed, Jack<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Reed++Jack%29%29+00949%29%29>[RI]
- 4/2/2009
Sen Sanders,
Bernard<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Sanders++Bernard%29%29+01010%29%29>[VT]
- 4/2/2009
Sen Schumer, Charles
E.<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Schumer++Charles+E.%29%29+01036%29%29>[NY]
- 4/2/2009
Sen Shaheen,
Jeanne<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Shaheen++Jeanne%29%29+01901%29%29>[NH]
- 4/2/2009
Sen Stabenow,
Debbie<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Stabenow++Debbie%29%29+01531%29%29>[MI]
- 4/2/2009
Sen Whitehouse,
Sheldon<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Whitehouse++Sheldon%29%29+01823%29%29>[RI]
- 4/2/2009
Sen Wyden, Ron<http://thomas.loc.gov/cgi-bin/bdquery/?&Db=d111&querybd=@FIELD%28FLD004+@4%28%28@1%28Sen+Wyden++Ron%29%29+01247%29%29>[OR]
- 4/2/2009
------------------------------
*COMMITTEE(S):*
*Committee/Subcommittee:* *Activity:* Senate Environment and Public
Works<http://thomas.loc.gov/cgi-bin/bdquery/R?d111:FLD005:@3%28Senate+Environment+and+Public+Works%29%7C/bss/111search.html%7C>
Referral,
In Committee
------------------------------
*RELATED BILL DETAILS:*
***NONE***
------------------------------
*AMENDMENT(S):*
***NONE***
*Clean Water Restoration Act (Introduced in Senate)*
S 787 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.
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