[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withdrawn]:     (Sort: by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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