I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Wetlands Ju5 risdiction Act of 2005’’. 

6 SEC. 2. STATEMENT OF PURPOSES. 

7 The purposes of this Act are — 
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1 (1) to clarify the jurisdiction of the Federal 

2 Government over waters of the United States in 

3 light of the decision of the Supreme Court in Solid 

4 Waste Agency of Northern Cook County v. U.S. Army 

5 Corps of Engineers, 531 U.S. 159 (2001), so that, 

6 consistent with the States’ traditional and primary 

7 power over land and water use, waters such as iso8 lated wetlands that do not have a significant nexus 

9 with traditional navigable waters are not subject to 

10 Federal jurisdiction, but remain subject to regula11 tion by the States; 

12 (2) to provide consistency throughout the Na13 tion in determining the jurisdiction of the Federal 

14 Government over waters of the United States; 

15 (3) to consolidate in one Federal agency the ad16 ministrative authority of the Federal Government to 

17 determine, in accordance with this Act, the waters of 

18 the United States subject to the jurisdiction of the 

19 permitting program established by section 404 of the 

20 Federal Water Pollution Control Act (33 U.S.C. 

21 1344); and 

22 (4) to protect the right of States to regulate 

23 wetlands and other waters within their jurisdiction. 
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1 SEC. 3. FEDERAL JURISDICTION. 

2 Section 404(a) of the Federal Water Pollution Con3 trol Act (33 U.S.C. 1344(a)) is amended— 

4 (1) by striking ‘‘(a) The Secretary’’ and insert5 ing the following: 

6 ‘‘(a) ISSUANCE OF PERMITS.— 

7 ‘‘(1) IN GENERAL.—The Secretary’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(2) JURISDICTION.— 

10 ‘‘(A) IN GENERAL.—Waters of the United 

11 States, including the territorial seas, shall be 

12 subject to the jurisdiction of the permitting pro13 gram established by this section if the waters 

14 are— 

15 ‘‘(i) navigable; 

16 ‘‘(ii) connected to navigable waters 

17 through a continuous, naturally occurring 

18 surface water connection; or 

19 ‘‘(iii) wetlands adjacent to waters de20 scribed in clause (i) or (ii). 

21 ‘‘(B) INCLUDED WATERS.—For purposes 

22 of subparagraph (A)(ii) waters shall be consid23 ered to be connected to navigable waters by a 

24 continuous, naturally occurring surface water 

25 connection if the waters are connected by pe26 rennial or intermittent streams that contribute 
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1 flow to navigable waters, including perennial or 

2 intermittent streams that have been restored, 

3 relocated, or channelized on the surface or that 

4 flow through culverts. 

5 ‘‘(C) EXCLUDED WATERS.— 

6 ‘‘(i) IN GENERAL.—For purposes of 

7 subparagraph (A)(ii), waters shall not be 

8 considered to be connected to navigable 

9 waters by a continuous, naturally occurring 

10 surface water connection if the waters are 

11 connected by— 

12 ‘‘(I) sheet flow; 

13 ‘‘(II) ephemeral waters, ground 

14 water, manmade ditches, or pipelines; 

15 or 

16 ‘‘(III) a municipal separate storm 

17 sewer system or any other point 

18 source regulated under section 402, 

19 including a State program approved 

20 under section 402(b). 

21 ‘‘(ii) TREATMENT OF CONNECTING

22 WATERS.—The connecting waters de23 scribed in clause (i) shall not be subject to 

24 the jurisdiction of the permitting program 

25 established by this section. 
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1 ‘‘(iii) FASTLANDS.—Fastlands shall 

2 not be subject to the jurisdiction of the 

3 permitting program established by this sec4 tion.’’. 

5 SEC. 4. STATUTORY CONSTRUCTION. 

6 Nothing in this Act, or the amendments made by this 

7 Act, shall be construed to preclude or deny the right of 

8 any State or interstate agency to control the discharge of 

9 dredged or fill material in any portion of the wetlands or 

10 other waters within the jurisdiction of such State, includ11 ing any activity of any Federal agency. 

12 SEC. 5. SINGLE AGENCY IMPLEMENTATION. 

13 Section 404(a) of the Federal Water Pollution Con14 trol Act (33 U.S.C. 1344(a)) is further amended by add15 ing the following: 

16 ‘‘(3) AUTHORITY OF SECRETARY.—Beginning 

17 on the date of enactment of this paragraph, the Sec18 retary shall have sole administrative authority to de19 termine, in accordance with this Act, the waters of 

20 the United States subject to the jurisdiction of the 

21 permitting program established by this section.’’. 

22 SEC. 6. DETERMINATION OF JURISDICTION. 

23 Section 404(a) of the Federal Water Pollution Con24 trol Act (33 U.S.C. 1344(a)) is further amended by add25 ing the following: 
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1 ‘‘(4) REQUEST FOR DETERMINATION.—A per2 son who holds an ownership interest in property, or 

3 who has written authorization from such person, 

4 may submit to the Secretary a request identifying 

5 the property and requesting the Secretary to deter6 mine the presence or absence of waters of the 

7 United States subject to the jurisdiction of the per8 mitting program established by this section. The 

9 person making the request may limit the request to 

10 a determination of the presence or absence of any of 

11 the waters described in paragraph (2)(A)(i), 

12 (2)(A)(ii), or (2)(A)(iii). 

13 ‘‘(5) REQUESTS FOR ADDITIONAL INFORMA14 TION.—Not later than 30 days after the date of re15 ceipt of a request under paragraph (4), the Sec16 retary may make one request for such additional in17 formation as may be necessary to make the jurisdic18 tion determination. 

19 ‘‘(6) DETERMINATION AND NOTIFICATION BY

20 THE SECRETARY.—Not later that 90 days after the 

21 date of receipt of a request under paragraph (4), or 

22 not later than 60 days after the date of receipt of 

23 additional information provided under paragraph 

24 (5), whichever is later, the Secretary shall — 
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1 ‘‘(A) make a jurisdictional determination 

2 for the waters described in the request; and 

3 ‘‘(B) provide written notification of the ju4 risdictional determination to the person submit5 ting the request, together with written docu6 mentation of the determination and a written 

7 basis for the determination. 

8 ‘‘(7) AUTHORITY TO SEEK IMMEDIATE JUDI9 CIAL REVIEW.— 

10 ‘‘(A) IN GENERAL.—Any person authorized 

11 under paragraph (4) to request a jurisdictional 

12 determination for property may— 

13 ‘‘(i) seek judicial review of any such 

14 jurisdictional determination, or injunctive 

15 relief in the case of a failure to make a de16 termination, in the United States District 

17 Court for the district in which the property 

18 is located; or 

19 ‘‘(ii) proceed under the administrative 

20 appeals process established under this sec21 tion. 

22 ‘‘(B) WATERS SUBJECT TO REVIEW.—Ju23 dicial review, injunctive relief, or administrative 

24 appeal under subparagraph (A) may be sought 

25 for any of the waters described in paragraph 
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1 (2)(A)(i), (2)(A)(ii), or (2)(A)(iii), as specified 

2 in the request made under paragraph (4). 

3 ‘‘(C) JUDICIAL REVIEW FOLLOWING AD4 MINISTRATIVE APPEALS.—Any person who 

5 elects to proceed under the administrative ap6 peals process shall retain the right to seek in 

7 the United States District Court for the district 

8 in which the property is located judicial review 

9 of the final decision of the Secretary under the 

10 administrative appeals process.’’. 

11 SEC. 7. DEFINITIONS. 

12 Section 404 of the Federal Water Pollution Control 

13 Act (33 U.S.C. 1344) is further amended by adding at 

14 the end the following: 

15 ‘‘(v) DEFINITIONS.—In this section, the following 

16 definitions apply: 

17 ‘‘(1) ADJACENT WETLANDS.—The term ‘adja18 cent wetlands’ means wetlands that are physically 

19 touching (abutting or contiguous to) a water de20 scribed in subsection (a)(2)(A)(i) or (a)(2)(A)(ii). 

21 Wetlands separated by a riverbank from which river 

22 water overflows into the wetlands annually or bian23 nually are adjacent wetlands for purposes of this 

24 section. 
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1 ‘‘(2) CULVERT.—The term ‘culvert’ means a 

2 pipe or structure that conveys perennial or intermit3 tent streams from one side of a linear structure, 

4 such as a roadway, to the other side. 

5 ‘‘(3) FASTLANDS.—The term ‘fastlands’ means 

6 areas located within legally constituted manmade 

7 structures, such as levees and dikes, constructed and 

8 maintained to permit the utilization of the areas for 

9 commercial, industrial, or residential purposes con10 sistent with local land use planning requirements. 

11 ‘‘(4) NAVIGABLE .—The term ‘navigable’ means 

12 a water that is presently used, or is susceptible to 

13 use, in its natural condition or by reasonable im14 provement as a means to transport interstate or for15 eign commerce shoreward to its ordinary highwater 

16 mark, including all waters that are subject to the 

17 ebb and flow of the tide shoreward to their mean 

18 highwater mark. 

19 ‘‘(5) SHEET FLOW.—The term ‘sheet flow’ 

20 means non-channelized water flowing over upland. 

21 ‘‘(6) WETLANDS.—The term ‘wetlands’ means 

22 those lands that have a predominance of hydric soils 

23 and that are inundated or saturated by surface 

24 water or ground water at a frequency and duration 

25 to support, and that under normal circumstances do 
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1 support, a prevalence of vegetation typically adapted 

2 for life in saturated soil conditions. Wetlands gen3 erally include swamps, marshes, bogs, and similar 

4 areas.’’. 

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