Federal Wetlands Jurisdiction Act of 2004 - Amends the Federal Water Pollution Control Act (FWPCA) to clarify that waters of the United States, including the territorial seas, are subject to the jurisdiction of the permitting program for the discharge of dredged or fill material if such waters are: (1) navigable; (2) hydrologically connected to navigable waters through a continuous, naturally occurring surface connection; or (3) wetlands adjacent to such navigable or hydrologically connected waters.
States that waters are considered hydrologically connected to navigable waters for purposes of this Act if connected by perennial or intermittent streams that contribute flow to navigable waters. Excludes from the definition those waters connected by: (1) sheet flow; (2) ephemeral waters, ground water, manmade ditches, or pipelines; or (3) a municipal separate storm sewer system or any other regulated point source.
Excludes fastlands (areas located behind legally constituted manmade structures) from the jurisdiction of the permitting program for the discharge of dredged or fill material.
Sets forth procedures whereby property owners, or those with written authorization from such owners, may: (1) request that the Secretary of the Army determine jurisdiction under this Act and thereafter seek judicial review or injunctive relief; or (2) proceed under the administrative appeals process.
Transfers to the Secretary of the Army, acting through the Chief of Engineers, the Environmental Protection Agency (EPA) Administrator's authority over permits for the discharge of dredged or fill material into navigable waters under the FWPCA. Allows the Administrator to retain authority to comment on such permits.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4843 Introduced in House (IH)]
108th CONGRESS
2d Session
H. R. 4843
To amend the Federal Water Pollution Control Act to clarify the
jurisdiction of the United States over waters of the United States, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 15, 2004
Mr. Baker (for himself, Mr. Duncan, Mr. Berry, Mr. Young of Alaska, Mr.
Cannon, Mr. Tauzin, Mr. Bishop of Utah, Mr. Otter, Mr. Doolittle, Mr.
Forbes, and Mr. Ose) introduced the following bill; which was referred
to the Committee on Transportation and Infrastructure
_______________________________________________________________________
A BILL
To amend the Federal Water Pollution Control Act to clarify the
jurisdiction of the United States over waters of the United States, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Wetlands Jurisdiction Act of
2004''.
SEC. 2. STATEMENT OF PURPOSES.
The purposes of this Act are to--
(1) clarify the jurisdiction of the Federal Government over
waters of the United States in light of the decision of the
Supreme Court in Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001);
(2) provide consistency throughout the Nation in
determining the jurisdiction of the Federal Government over
waters of the United States; and
(3) consolidate in one Federal agency the authority of the
Federal Government to implement the permitting program
established under section 404 of the Federal Water Pollution
Act (33 U.S.C. 1344).
SEC. 3. FEDERAL JURISDICTION.
Section 404(a) of the Federal Water Pollution Control Act (33
U.S.C. 1344(a)) is amended--
(1) by striking ``(a) The Secretary'' and inserting the
following:
``(a) Issuance of Permits.--
``(1) In general.--The Secretary''; and
(2) by adding at the end the following:
``(2) Jurisdiction.--Waters of the United States, including
the territorial seas, shall be subject to the jurisdiction of
the permitting program established by this section if the
waters are--
``(A) navigable;
``(B) hydrologically connected to navigable waters
through a continuous, naturally occurring surface
connection; or
``(C) wetlands adjacent to waters described in
subparagraph (A) or (B).
``(3) Surface connection.--
``(A) Included waters.--For purposes of paragraph
(2)(B), waters shall be considered to be hydrologically
connected to navigable waters by a continuous,
naturally occurring surface connection if the waters
are connected by perennial or intermittent streams that
contribute flow to navigable waters, including
perennial or intermittent streams that have been
restored, relocated, or channelized on the surface or
that flow through culverts.
``(B) Excluded waters.--For purposes of paragraph
(2)(B), waters shall not be considered to be
hydrologically connected to navigable waters by a
continuous, naturally occurring surface connection if
the waters are connected by--
``(i) sheet flow (normal runoff of
precipitation);
``(ii) ephemeral waters, ground water,
manmade ditches, or pipelines; or
``(iii) a municipal separate storm sewer
system or any other point source regulated
under section 402, including a State program
approved under section 402(b).
Such connecting waters also shall not be subject to the
jurisdiction of the permitting program established by
this section.
``(4) Fastlands.--Fastlands shall not be subject to the
jurisdiction of the permitting program established by this
section.
``(5) Determination of jurisdiction.--
``(A) Request for determination.--A person who
holds an ownership interest in property, or who has
written authorization from such person, may submit a
request to the Secretary identifying the property and
requesting the Secretary to determine the presence or
absence of waters of the United States subject to the
jurisdiction of the permitting program established by
this section. The person making the request may limit
the request to a determination of the presence or
absence of any of the waters described in paragraph
(2)(A), (2)(B), or (2)(C).
``(B) Requests for additional information.--Not
later than 30 days after the date of receipt of a
request under subparagraph (A), the Secretary may make
one request for such additional information as may be
necessary to make the jurisdictional determination.
``(C) Determination and notification by the
secretary.--Not later than 90 days after the date of
receipt of a request under subparagraph (A), or not
later than 60 days after the date of receipt of
additional information provided under subparagraph (B),
whichever is later, the Secretary shall--
``(i) make a jurisdictional determination
for the waters described in the request; and
``(ii) provide written notification of the
jurisdictional determination to the person
submitting the request, together with written
documentation of the determination and a
written basis for the determination.
``(D) Authority to seek immediate judicial
review.--
``(i) In general.--Any person authorized
under this paragraph to request a
jurisdictional determination for property may--
``(I) seek judicial review of any
such jurisdictional determination, or
injunctive relief in the case of a
failure to make a determination, in the
United States District Court for the
district in which the property is
located; or
``(II) may proceed under the
administrative appeals process
established under this section.
``(ii) Waters subject to review.--Judicial
review, injunctive relief, or administrative
appeal under clause (i) may be sought for any
of the waters described in paragraph (2)(A),
(2)(B), or (2)(C), as specified in the request
made under this paragraph.
``(iii) Judicial review following
administrative appeals.--Any person who elects
to proceed under the administrative appeals
process shall retain the right to seek in the
United States District Court for the district
in which the property is located judicial
review of the final decision of the Secretary
under the administrative appeals process.''.
SEC. 4. SINGLE AGENCY IMPLEMENTATION.
(a) In General.--Beginning on the date of enactment of this Act,
all authorities of the Administrator of the Environmental Protection
Agency under section 404 of the Federal Water Pollution Control Act (33
U.S.C. 1344) are transferred to the Secretary of the Army, acting
through the Chief of Engineers.
(b) Authorities Retained by EPA.--Notwithstanding subsection (a),
the Administrator shall retain the authority to comment on permits
issued under section 404(a) of the Federal Water Pollution Control Act
(33 U.S.C. 1344(a)) and general permits issued under section 404(e) of
such Act (33 U.S.C. 1344(e)).
(c) Transfer of Funds.--All funds appropriated to the Administrator
for carrying out the authorities transferred under this section shall
be transferred to the Secretary.
(d) Conforming Amendments.--Section 404 of the Federal Water
Pollution Control Act (33 U.S.C. 1344) is amended--
(1) in subsection (b) by striking ``the Administrator, in
conjunction with'';
(2) by striking subsection (c); and
(3) in subsection (q) by adding at the end the following:
``No agreement entered into under this subsection shall
authorize any of the signatory agencies to request a decision
concerning a permit issued under this section to be elevated to
any level above the District Engineer.''.
SEC. 5. DEFINITIONS.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended by adding at the end the following:
``(u) Definitions.--In this section, the following definitions
apply:
``(1) Navigable.--The term `navigable' means a water that
is presently used, or is susceptible to use, in its natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce shoreward to its ordinary
highwater mark, including all waters that are subject to the
ebb and flow of the tide shoreward to their mean highwater
mark.
``(2) Wetlands.--The term `wetlands' means those lands that
have a predominance of hydric soils and that are inundated or
saturated by surface water or ground water at a frequency and
duration to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life
in saturated soil conditions. Wetlands generally include
swamps, marshes, bogs, and similar areas.
``(3) Adjacent wetlands.--The term `adjacent wetlands'
means wetlands that are physically touching (abutting or
contiguous to) a water described in subsection (a)(2)(A) or
(a)(2)(B). Wetlands separated by a riverbank from which river
water overflows into the wetlands annually or biannually are
adjacent wetlands for purposes of this section.
``(4) Culvert.--The term `culvert' means a pipe or
structure that conveys perennial or intermittent streams from
one side of a linear structure, such as a roadway, to the other
side.
``(5) Fastlands.--The term `fastlands' means areas located
behind legally constituted manmade structures, such as levees,
constructed and maintained to permit the utilization of the
areas for commercial, industrial, or residential purposes
consistent with local land use planning requirements.''.
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Introduced in House
Introduced in House
Referred to the House Committee on Transportation and Infrastructure.
Referred to the Subcommittee on Water Resources and Environment.
Sponsor introductory remarks on measure. (CR E1409)
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