I 

111TH CONGRESS 

2D SESSION H. R. 5088 

To amend the Federal Water Pollution Control Act to reaffirm the jurisdiction 

of the United States over waters of the United States. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 21, 2010 

Mr. OBERSTAR (for himself, Mr. DINGELL, and Mr. EHLERS) 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 reaffirm the jurisdiction of the United States over waters 

of the United States. 

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 ‘‘America’s Commit5 ment to Clean Water Act’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are as follows: 

8 (1) To reaffirm the original objective of Con9 gress in enacting the Federal Water Pollution ConVerDate Nov 24 2008 02:51 Apr 22, 2010 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5088.IH H5088

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1 trol Act Amendments of 1972 (86 Stat. 816) to re2 store and maintain the chemical, physical, and bio3 logical integrity of the Nation’s waters. 

4 (2) To reaffirm the definition of the waters of 

5 the United States that are subject to the Federal 

6 Water Pollution Control Act (33 U.S.C. 1251 et 

7 seq.) consistent with the interpretation of such Act 

8 prior to the decisions of the United States Supreme 

9 Court in Solid Waste Agency of Northern Cook 

10 County v. United States Army Corps of Engineers, 

11 531 U.S. 159 (2001), and the consolidated cases of 

12 Rapanos v. United States and Carabell v. United 

13 States Army Corps of Engineers, 547 U.S. 715 

14 (2006), by legislatively overturning the effect of 

15 those decisions. 

16 (3) To define the term ‘‘waters of the United 

17 States’’ and to protect such waters as authorized by 

18 the powers granted under section 8 of article I, sec19 tion 2 of article II, and section 3 of article IV of the 

20 Constitution of the United States and in a manner 

21 consistent with the Federal Water Pollution Control 

22 Act and subsequent amendments thereto. 

23 SEC. 3. FINDINGS. 

24 Congress finds the following: 


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1 (1) The decisions of the United States Supreme 

2 Court in Solid Waste Agency of Northern Cook 

3 County v. United States Army Corps of Engineers 

4 and the consolidated cases of Rapanos v. United 

5 States and Carabell v. United States Army Corps of 

6 Engineers unduly restricted the scope of the Federal 

7 Water Pollution Control Act and impair the statu8 tory protections for waters of the United States con9 trary to the intent of Congress. 

10 (2) Water is a unique and precious resource 

11 that is necessary to sustain human life and the life 

12 of animals and plants. 

13 (3) Water is important for agriculture, trans14 portation, energy production, recreation, fishing and 

15 shellfishing, and municipal and commercial uses. 

16 (4) Water moves through interconnected hydro17 logic cycles, and the pollution, degradation, or de18 struction of a part of an aquatic system, including 

19 geographically isolated or intrastate waters, can af20 fect the chemical, physical, and biological integrity 

21 of other parts of the aquatic system. 

22 (5) Small and intermittent streams, including 

23 seasonal streams, and their headwaters comprise the 

24 majority of all stream and river miles in the 

25 conterminous United States. These waters affect the 


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1 introduction of pollutants to larger rivers and 

2 streams, the life cycles of aquatic organisms and 

3 other wildlife, and the flow of higher order streams 

4 during floods. 

5 (6) The pollution, degradation, and destruction 

6 of waters of the United States, individually and in 

7 the aggregate, have a substantial relation to and ef8 fect on interstate commerce. Discharges of pollut9 ants into waters of the United States are the result 

10 of, relate to, and are a necessary part of commercial 

11 or economic activity. 

12 (7) Millions of people in the United States de13 pend on the waters of the United States, including 

14 wetlands, to improve water quality, recharge surface 

15 and subsurface drinking water supplies, protect 

16 human health, and create commercial or economic 

17 opportunity. Source water protection areas con18 taining one or more small or intermittent streams 

19 provide water to public drinking water supplies that 

20 serve more than 117,000,000 people in the United 

21 States. 

22 (8) Millions of people in the United States 

23 enjoy recreational activities that depend on the wa24 ters of the United States, including wetlands, and 

25 those activities and associated travel generate bilVerDate Nov 24 2008 02:51 Apr 22, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5088.IH H5088

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1 lions of dollars of income each year for the travel, 

2 tourism, recreation, and sporting sectors of the econ3 omy of the United States. 

4 (9) Protecting the waters of the United States 

5 from discharges of pollutants, degradation, and de6 struction is a necessary and proper means of imple7 menting treaties to which the United States is a 

8 party, including treaties protecting fish, birds, and 

9 wildlife. 

10 (10) Protecting the waters of the United States 

11 from discharges of pollutants, degradation, and de12 struction is a necessary and proper means of pro13 tecting the territory or other property belonging to 

14 the United States, including parkland, refuge land, 

15 and other land under Federal ownership and the wa16 ters encompassed by that land. 

17 (11) Administrative and judicial interpretations 

18 of the Federal Water Pollution Control Act have 

19 treated ground water separately from ‘‘waters of the 

20 United States’’ as that term is used in such Act, and 

21 ground water has not been considered to be ‘‘waters 

22 of the United States’’ under such Act. This Act and 

23 the amendments made by this Act do not affect 

24 those administrative and judicial interpretations. 


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1 (12) This Act and the amendments made by 

2 this Act do not affect the authority of the Secretary 

3 of the Army or the Administrator of the Environ4 mental Protection Agency under the provisions of 

5 the Federal Water Pollution Control Act as inter6 preted or applied by the Secretary or Administrator 

7 as of January 8, 2001. 

8 SEC. 4. DEFINITIONS. 

9 Section 502 of the Federal Water Pollution Control 

10 Act (33 U.S.C. 1362) is amended— 

11 (1) by repealing paragraph (7); and 

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

13 ‘‘(26) WATERS OF THE UNITED STATES.— 

14 ‘‘(A) IN GENERAL.—The term ‘waters of 

15 the United States’ includes— 

16 ‘‘(i) all waters that are currently used, 

17 were used in the past, or may be suscep18 tible to use in interstate or foreign com19 merce, including all waters that are subject 

20 to the ebb and flow of the tide; 

21 ‘‘(ii) all interstate and international 

22 waters, including interstate and inter23 national wetlands; 

24 ‘‘(iii) all other waters, including intra25 state lakes, rivers, streams (including 


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1 intermittent streams), mudflats, sandflats, 

2 wetlands, sloughs, prairie potholes, wet 

3 meadows, playa lakes, or natural ponds, 

4 the use, degradation, or destruction of 

5 which does or would affect interstate or 

6 foreign commerce, the obligations of the 

7 United States under a treaty, or the terri8 tory or other property belonging to the 

9 United States; 

10 ‘‘(iv) all impoundments of waters oth11 erwise defined as waters of the United 

12 States under this paragraph; 

13 ‘‘(v) tributaries of waters identified in 

14 clauses (i) through (iv); 

15 ‘‘(vi) the territorial seas; and 

16 ‘‘(vii) waters, including wetlands, ad17 jacent to waters identified in clauses (i) 

18 through (vi). 

19 ‘‘(B) EXCLUSIONS.—The term ‘waters of 

20 the United States’ does not include— 

21 ‘‘(i) waters that are all or part of a 

22 waste treatment system, including treat23 ment ponds or lagoons designed to meet 

24 the requirements of this Act; or 


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1 ‘‘(ii) prior converted cropland, except 

2 that, notwithstanding the determination of 

3 an area’s status as prior converted crop4 land by the Secretary of Agriculture, for 

5 the purposes of this Act, the final author6 ity regarding jurisdiction under this Act 

7 remains with the Administrator. 

8 ‘‘(27) WASTE TREATMENT SYSTEM.— 

9 ‘‘(A) IN GENERAL.—The term ‘waste 

10 treatment system’ means a confined and dis11 crete system or structure that is specifically de12 signed and engineered to meet the requirements 

13 of this Act and that is determined by the Ad14 ministrator to be documented by the applicable 

15 permitting authority under section 402 or 404. 

16 ‘‘(B) SPECIAL RULE.—A system or struc17 ture may not be documented as a waste treat18 ment system and the Administrator may not 

19 make a determination under subparagraph (A) 

20 if, after the date of enactment of this para21 graph, such system or structure is created in 

22 waters of the United States or results from the 

23 impoundment of waters of the United States. 

24 ‘‘(C) GRANDFATHER.—Notwithstanding 

25 subparagraph (B), a waste treatment system in 


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1 existence and documented before the date of en2 actment of this paragraph may include a waste 

3 treatment system that was either originally cre4 ated in or resultant from the impoundment of 

5 waters of the United States if the discharge 

6 from such system meets applicable standards 

7 and limitations at the point of discharge in a 

8 manner similar to other discharges under this 

9 Act. 

10 ‘‘(D) APPLICABILITY.—The definition con11 tained in this paragraph shall apply only for the 

12 purposes of paragraph (26). 

13 ‘‘(28) PRIOR CONVERTED CROPLAND.—The 

14 term ‘prior converted cropland’ means a wetland as 

15 determined by the Secretary of Agriculture— 

16 ‘‘(A) that has been converted by draining, 

17 dredging, filling, leveling, or other manipulation 

18 (including the removal of woody vegetation or 

19 any activity that results in impairing or reduc20 ing the flow and circulation of water) for the 

21 purpose of or to have the effect of making pos22 sible the production of an agricultural com23 modity without further application of the ma24 nipulations described herein if— 


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1 ‘‘(i) such production would not have 

2 been possible but for the conversion; and 

3 ‘‘(ii) before the conversion such land 

4 was wetland, farmed wetland, or farmed5 wetland pasture; 

6 ‘‘(B) on which such conversion occurred 

7 prior to December 23, 1985; 

8 ‘‘(C) on which an agricultural commodity 

9 had been produced at least once before Decem10 ber 23, 1985; 

11 ‘‘(D) that, as of December 23, 1985, did 

12 not support woody vegetation and met the fol13 lowing hydrologic criteria: 

14 ‘‘(i) inundation was fewer than 15 

15 consecutive days during the growing season 

16 or 10 percent of the growing season, 

17 whichever is less, in most years (50 per18 cent chance or more); and 

19 ‘‘(ii) if a pothole, playa, or pocosin, 

20 ponding was fewer than 7 consecutive days 

21 during the growing season in most years 

22 (50 percent chance or more) and satura23 tion was fewer than 14 consecutive days 

24 during the growing season most years (50 

25 percent chance or more); and 


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1 ‘‘(E) that is devoted to an agricultural 

2 use.’’. 

3 SEC. 5. CONFORMING AMENDMENTS. 

4 The Federal Water Pollution Control Act (33 U.S.C. 

5 1251 et seq.) is amended— 

6 (1) by striking ‘‘navigable waters of the United 

7 States’’ each place it appears and inserting ‘‘waters 

8 of the United States’’; 

9 (2) in section 304(l)(1) by striking ‘‘NAVIGABLE

10 WATERS’’ in the paragraph heading and inserting 

11 ‘‘WATERS OF THE UNITED STATES’’; and 

12 (3) by striking ‘‘navigable waters’’ each place it 

13 appears and inserting ‘‘waters of the United 

14 States’’. 

Æ 


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