S. Rept. 111-361 - 111th Congress (2009-2010)
December 10, 2010, As Reported by the Environment and Public Works Committee

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Senate Report 111-361 - CLEAN WATER RESTORATION ACT




[Senate Report 111-361]
[From the U.S. Government Printing 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\
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    \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).
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    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\
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    \3\See 118 Cong. Rec. 36,879 (Senate vote of 52 to 12); id. 37060-
61 (House vote of 247 to 23).
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    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.
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    \4\U.S. EPA, National Water Quality Inventory: 2002 Report, 
September 2002.
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    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\
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    \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.
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    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:
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    \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\
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    \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.
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    \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.
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    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\
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    \11\U.S. EPA, National Water Quality Inventory: 2002 Report, 
September 2002.
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    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\
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    \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'').
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    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.
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    \13\U.S. EPA Briefing for U.S. Senate Staff, June 1, 2009 (EPA 
Senate Briefing).
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    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\
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    \14\Id.
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    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\
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    \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.
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    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.
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    \17\See Letter from Linda Boornazian, U.S. EPA to Joan Mulhern, 
Earthjustice, dated May 18, 2007 (FOIA No. HQ-RIN-00684-07).
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    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\
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    \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.
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            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\
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    \22\Id.
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    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\
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    \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.
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            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\
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    \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).
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    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:
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    \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.
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 ``[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\
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    \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.
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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\
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    \29\1972 Act Legisl. Hist. at 1509.
    \30\118 Cong. Rec. 33,767 (1972).
    \31\Id. at 33,718.
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    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\
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    \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.
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    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.
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    \35\U.S. EPA and U.S. Army Corps of Engineers Memorandum of 
Agreement Concerning Mitigation of Wetland Losses, Feb. 6, 1990.
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    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\
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    \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.
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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.
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    \39\National Cotton Council v. EPA, Slip Op. No. 06-4630 (6th Cir. 
Jan. 7, 2009).
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 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\
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    \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\
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    \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.
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            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
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    \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\
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    \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.
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    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.
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            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\
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    \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.
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    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.
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            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.
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    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.
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    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\
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    \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.
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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.

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