Federal Wetlands Jurisdiction Act of 2005 - Amends the Federal Water Pollution Control Act 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 (permitting program) if such waters are: (1) navigable; (2) connected to navigable waters through a continuous, naturally occurring surface water connection; or (3) wetlands adjacent to such navigable or connected waters.
States that waters are considered 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 (non-channelized water flowing over upland); (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.
Grants sole authority to the Secretary of the Army to determine the waters subject to the jurisdiction of the permitting program.
Sets forth procedures whereby property owners, or those with written authorization from such owners, may: (1) request that the Secretary determine jurisdiction under this Act and thereafter seek judicial review or injunctive relief; or (2) proceed under the administrative appeals process.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2658 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 2658
To amend the Federal Water Pollution Control Act to clarify the
jurisdiction of the Federal Government over waters of the United
States, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 26, 2005
Mr. Baker (for himself, Mr. Berry, Mr. Brown of South Carolina, Mrs.
Northup, Mr. Cannon, and Mr. Duncan) introduced the following bill;
which was referred to the Committee on Transportation and
Infrastructure
_______________________________________________________________________
A BILL
To amend the Federal Water Pollution Control Act to clarify the
jurisdiction of the Federal Government over waters of the United
States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Wetlands Jurisdiction Act of
2005''.
SEC. 2. STATEMENT OF PURPOSES.
The purposes of this Act are--
(1) to clarify the jurisdiction of the Federal Government
over waters of the United States in light of the decision of
the Supreme Court in Solid Waste Agency of Northern Cook County
v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), so that,
consistent with the States' traditional and primary power over
land and water use, waters such as isolated wetlands that do
not have a significant nexus with traditional navigable waters
are not subject to Federal jurisdiction, but remain subject to
regulation by the States;
(2) to provide consistency throughout the Nation in
determining the jurisdiction of the Federal Government over
waters of the United States;
(3) to consolidate in one Federal agency the administrative
authority of the Federal Government to determine, in accordance
with this Act, the waters of the United States subject to the
jurisdiction of the permitting program established by section
404 of the Federal Water Pollution Control Act (33 U.S.C.
1344); and
(4) to protect the right of States to regulate wetlands and
other waters within their jurisdiction.
SEC. 3. FEDERAL JURISDICTION.
Section 404(a) of the Federal Water Pollution Control Act (33
U.S.C. 1344(a)) is amended--
(1) by striking ``(a) The Secretary'' and inserting the
following:
``(a) Issuance of Permits.--
``(1) In general.--The Secretary''; and
(2) by adding at the end the following:
``(2) Jurisdiction.--
``(A) In general.--Waters of the United States,
including the territorial seas, shall be subject to the
jurisdiction of the permitting program established by
this section if the waters are--
``(i) navigable;
``(ii) connected to navigable waters
through a continuous, naturally occurring
surface water connection; or
``(iii) wetlands adjacent to waters
described in clause (i) or (ii).
``(B) Included waters.--For purposes of
subparagraph (A)(ii) waters shall be considered to be
connected to navigable waters by a continuous,
naturally occurring surface water connection if the
waters are connected by perennial or intermittent
streams that contribute flow to navigable waters,
including perennial or intermittent streams that have
been restored, relocated, or channelized on the surface
or that flow through culverts.
``(C) Excluded waters.--
``(i) In general.--For purposes of
subparagraph (A)(ii), waters shall not be
considered to be connected to navigable waters
by a continuous, naturally occurring surface
water connection if the waters are connected
by--
``(I) sheet flow;
``(II) ephemeral waters, ground
water, manmade ditches, or pipelines;
or
``(III) a municipal separate storm
sewer system or any other point source
regulated under section 402, including
a State program approved under section
402(b).
``(ii) Treatment of connecting waters.--The
connecting waters described in clause (i) shall
not be subject to the jurisdiction of the
permitting program established by this section.
``(iii) Fastlands.--Fastlands shall not be
subject to the jurisdiction of the permitting
program established by this section.''.
SEC. 4. STATUTORY CONSTRUCTION.
Nothing in this Act, or the amendments made by this Act, shall be
construed to preclude or deny the right of any State or interstate
agency to control the discharge of dredged or fill material in any
portion of the wetlands or other waters within the jurisdiction of such
State, including any activity of any Federal agency.
SEC. 5. SINGLE AGENCY IMPLEMENTATION.
Section 404(a) of the Federal Water Pollution Control Act (33
U.S.C. 1344(a)) is further amended by adding the following:
``(3) Authority of secretary.--Beginning on the date of
enactment of this paragraph, the Secretary shall have sole
administrative authority to determine, in accordance with this
Act, the waters of the United States subject to the
jurisdiction of the permitting program established by this
section.''.
SEC. 6. DETERMINATION OF JURISDICTION.
Section 404(a) of the Federal Water Pollution Control Act (33
U.S.C. 1344(a)) is further amended by adding the following:
``(4) Request for determination.--A person who holds an
ownership interest in property, or who has written
authorization from such person, may submit to the Secretary a
request identifying the property and requesting the Secretary
to determine the presence or absence of waters of the United
States subject to the jurisdiction of the permitting program
established by this section. The person making the request may
limit the request to a determination of the presence or absence
of any of the waters described in paragraph (2)(A)(i),
(2)(A)(ii), or (2)(A)(iii).
``(5) Requests for additional information.--Not later than
30 days after the date of receipt of a request under paragraph
(4), the Secretary may make one request for such additional
information as may be necessary to make the jurisdiction
determination.
``(6) Determination and notification by the secretary.--Not
later that 90 days after the date of receipt of a request under
paragraph (4), or not later than 60 days after the date of
receipt of additional information provided under paragraph (5),
whichever is later, the Secretary shall--
``(A) make a jurisdictional determination for the
waters described in the request; and
``(B) provide written notification of the
jurisdictional determination to the person submitting
the request, together with written documentation of the
determination and a written basis for the
determination.
``(7) Authority to seek immediate judicial review.--
``(A) In general.--Any person authorized under
paragraph (4) to request a jurisdictional determination
for property may--
``(i) seek judicial review of any such
jurisdictional determination, or injunctive
relief in the case of a failure to make a
determination, in the United States District
Court for the district in which the property is
located; or
``(ii) proceed under the administrative
appeals process established under this section.
``(B) Waters subject to review.--Judicial review,
injunctive relief, or administrative appeal under
subparagraph (A) may be sought for any of the waters
described in paragraph (2)(A)(i), (2)(A)(ii), or
(2)(A)(iii), as specified in the request made under
paragraph (4).
``(C) Judicial review following administrative
appeals.--Any person who elects to proceed under the
administrative appeals process shall retain the right
to seek in the United States District Court for the
district in which the property is located judicial
review of the final decision of the Secretary under the
administrative appeals process.''.
SEC. 7. DEFINITIONS.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is further amended by adding at the end the following:
``(v) Definitions.--In this section, the following definitions
apply:
``(1) Adjacent wetlands.--The term `adjacent wetlands'
means wetlands that are physically touching (abutting or
contiguous to) a water described in subsection (a)(2)(A)(i) or
(a)(2)(A)(ii). Wetlands separated by a riverbank from which
river water overflows into the wetlands annually or biannually
are adjacent wetlands for purposes of this section.
``(2) Culvert.--The term `culvert' means a pipe or
structure that conveys perennial or intermittent streams from
one side of a linear structure, such as a roadway, to the other
side.
``(3) Fastlands.--The term `fastlands' means areas located
within legally constituted manmade structures, such as levees
and dikes, constructed and maintained to permit the utilization
of the areas for commercial, industrial, or residential
purposes consistent with local land use planning requirements.
``(4) Navigable.--The term `navigable' means a water that
is presently used, or is susceptible to use, in its natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce shoreward to its ordinary
highwater mark, including all waters that are subject to the
ebb and flow of the tide shoreward to their mean highwater
mark.
``(5) Sheet flow.--The term `sheet flow' means non-
channelized water flowing over upland.
``(6) Wetlands.--The term `wetlands' means those lands that
have a predominance of hydric soils and that are inundated or
saturated by surface water or ground water at a frequency and
duration to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life
in saturated soil conditions. Wetlands generally include
swamps, marshes, bogs, and similar areas.''.
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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.
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