To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the Federal Government over waters of the United States, and for other purposes.

May 26, 2005

Mr. BAKER (for himself, Mr. BERRY, Mr. BROWN of South Carolina, Mrs. NORTHUP, Mr. CANNON, and Mr. DUNCAN) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure

To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the Federal Government over waters of the United States, and for other purposes.

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 `Federal Wetlands Jurisdiction Act of 2005'.

SEC. 2. STATEMENT OF PURPOSES.

The purposes of this Act are--

(1) to clarify the jurisdiction of the Federal Government over waters of the United States in light of the decision of the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), so that, consistent with the States' traditional and primary power over land and water use, waters such as isolated wetlands that do not have a significant nexus with traditional navigable waters are not subject to Federal jurisdiction, but remain subject to regulation by the States;

(2) to provide consistency throughout the Nation in determining the jurisdiction of the Federal Government over waters of the United States;

(3) to consolidate in one Federal agency the administrative authority of the Federal Government to determine, in accordance with this Act, the waters of the United States subject to the jurisdiction of the permitting program established by section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344); and

(4) to protect the right of States to regulate wetlands and other waters within their jurisdiction.

SEC. 3. FEDERAL JURISDICTION.

Section 404(a) of the Federal Water Pollution Control Act (33 U.S.C. 1344(a)) is amended--

(1) by striking `(a) The Secretary' and inserting the following:

`(a) Issuance of Permits-

`(1) IN GENERAL- The Secretary'; and

(2) by adding at the end the following:

`(2) JURISDICTION-

`(A) IN GENERAL- Waters of the United States, including the territorial seas, shall be subject to the jurisdiction of the permitting program established by this section if the waters are--

`(i) navigable;

`(ii) connected to navigable waters through a continuous, naturally occurring surface water connection; or

`(iii) wetlands adjacent to waters described in clause (i) or (ii).

`(B) INCLUDED WATERS- For purposes of subparagraph (A)(ii) waters shall be considered to be connected to navigable waters by a continuous, naturally occurring surface water connection if the waters are connected by perennial or intermittent streams that contribute flow to navigable waters, including perennial or intermittent streams that have been restored, relocated, or channelized on the surface or that flow through culverts.

`(C) EXCLUDED WATERS-

`(i) IN GENERAL- For purposes of subparagraph (A)(ii), waters shall not be considered to be connected to navigable waters by a continuous, naturally occurring surface water connection if the waters are connected by--

`(I) sheet flow;

`(II) ephemeral waters, ground water, manmade ditches, or pipelines; or

`(III) a municipal separate storm sewer system or any other point source regulated under section 402, including a State program approved under section 402(b).

`(ii) TREATMENT OF CONNECTING WATERS- The connecting waters described in clause (i) shall not be subject to the jurisdiction of the permitting program established by this section.

`(iii) FASTLANDS- Fastlands shall not be subject to the jurisdiction of the permitting program established by this section.'.

SEC. 4. STATUTORY CONSTRUCTION.

Nothing in this Act, or the amendments made by this Act, shall be construed to preclude or deny the right of any State or interstate agency to control the discharge of dredged or fill material in any portion of the wetlands or other waters within the jurisdiction of such State, including any activity of any Federal agency.

SEC. 5. SINGLE AGENCY IMPLEMENTATION.

Section 404(a) of the Federal Water Pollution Control Act (33 U.S.C. 1344(a)) is further amended by adding the following:

`(3) AUTHORITY OF SECRETARY- Beginning on the date of enactment of this paragraph, the Secretary shall have sole administrative authority to determine, in accordance with this Act, the waters of the United States subject to the jurisdiction of the permitting program established by this section.'.

SEC. 6. DETERMINATION OF JURISDICTION.

Section 404(a) of the Federal Water Pollution Control Act (33 U.S.C. 1344(a)) is further amended by adding the following:

`(4) REQUEST FOR DETERMINATION- A person who holds an ownership interest in property, or who has written authorization from such person, may submit to the Secretary a request identifying the property and requesting the Secretary to determine the presence or absence of waters of the United States subject to the jurisdiction of the permitting program established by this section. The person making the request may limit the request to a determination of the presence or absence of any of the waters described in paragraph (2)(A)(i), (2)(A)(ii), or (2)(A)(iii).

`(5) REQUESTS FOR ADDITIONAL INFORMATION- Not later than 30 days after the date of receipt of a request under paragraph (4), the Secretary may make one request for such additional information as may be necessary to make the jurisdiction determination.

`(6) DETERMINATION AND NOTIFICATION BY THE SECRETARY- Not later that 90 days after the date of receipt of a request under paragraph (4), or not later than 60 days after the date of receipt of additional information provided under paragraph (5), whichever is later, the Secretary shall--

`(A) make a jurisdictional determination for the waters described in the request; and

`(B) provide written notification of the jurisdictional determination to the person submitting the request, together with written documentation of the determination and a written basis for the determination.

`(7) AUTHORITY TO SEEK IMMEDIATE JUDICIAL REVIEW-

`(A) IN GENERAL- Any person authorized under paragraph (4) to request a jurisdictional determination for property may--

`(i) seek judicial review of any such jurisdictional determination, or injunctive relief in the case of a failure to make a determination, in the United States District Court for the district in which the property is located; or

`(ii) proceed under the administrative appeals process established under this section.

`(B) WATERS SUBJECT TO REVIEW- Judicial review, injunctive relief, or administrative appeal under subparagraph (A) may be sought for any of the waters described in paragraph (2)(A)(i), (2)(A)(ii), or (2)(A)(iii), as specified in the request made under paragraph (4).

`(C) JUDICIAL REVIEW FOLLOWING ADMINISTRATIVE APPEALS- Any person who elects to proceed under the administrative appeals process shall retain the right to seek in the United States District Court for the district in which the property is located judicial review of the final decision of the Secretary under the administrative appeals process.'.

SEC. 7. DEFINITIONS.

Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is further amended by adding at the end the following:

`(v) Definitions- In this section, the following definitions apply:

`(1) ADJACENT WETLANDS- The term `adjacent wetlands' means wetlands that are physically touching (abutting or contiguous to) a water described in subsection (a)(2)(A)(i) or (a)(2)(A)(ii). Wetlands separated by a riverbank from which river water overflows into the wetlands annually or biannually are adjacent wetlands for purposes of this section.

`(2) CULVERT- The term `culvert' means a pipe or structure that conveys perennial or intermittent streams from one side of a linear structure, such as a roadway, to the other side.

`(3) FASTLANDS- The term `fastlands' means areas located within legally constituted manmade structures, such as levees and dikes, constructed and maintained to permit the utilization of the areas for commercial, industrial, or residential purposes consistent with local land use planning requirements.

`(4) NAVIGABLE- The term `navigable' means a water that is presently used, or is susceptible to use, in its natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to its ordinary highwater mark, including all waters that are subject to the ebb and flow of the tide shoreward to their mean highwater mark.

`(5) SHEET FLOW- The term `sheet flow' means non-channelized water flowing over upland.

`(6) WETLANDS- The term `wetlands' means those lands that have a predominance of hydric soils and that are inundated or saturated by surface water or ground water at a frequency and duration to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.'.

END