II 

110TH CONGRESS 

1ST SESSION S. 1870 

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

of the United States over waters of the United States. 

IN THE SENATE OF THE UNITED STATES 

JULY 25, 2007 

Mr. FEINGOLD (for himself, Mr. LAUTENBERG, Mr. LEVIN, Mr. KERRY, Mr. 

LIEBERMAN, Mrs. BOXER, Mr. MENENDEZ, Mr. SANDERS, Mr. CARDIN, 

Mr. DURBIN, Mr. REED, Mr. DODD, Mr. KOHL, Mr. WHITEHOUSE, Ms. 

STABENOW, Mr. CARPER, Mr. WYDEN, Mr. LEAHY, Mr. BROWN, and Mr. 

SCHUMER) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

To amend the Federal Water Pollution Control Act to clarify 

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 ‘‘Clean Water Restora5 tion Act of 2007’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are as follows: 


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1 (1) To reaffirm the original intent of Congress 

2 in enacting the Federal Water Pollution Control Act 

3 Amendments of 1972 (86 Stat. 816) to restore and 

4 maintain the chemical, physical, and biological integ5 rity of the waters of the United States. 

6 (2) To clearly define the waters of the United 

7 States that are subject to the Federal Water Pollu8 tion Control Act (commonly known as the ‘‘Clean 

9 Water Act’’). 

10 (3) To provide protection to the waters of the 

11 United States to the fullest extent of the legislative 

12 authority of Congress under the Constitution. 

13 SEC. 3. FINDINGS. 

14 Congress finds the following: 

15 (1) Water is a unique and precious resource 

16 that is necessary to sustain human life and the life 

17 of animals and plants. 

18 (2) Water is used not only for human, animal, 

19 and plant consumption, but is also important for ag20 riculture, transportation, flood control, energy pro21 duction, recreation, fishing and shellfishing, and mu22 nicipal and commercial uses. 

23 (3) Through prior enactments, Congress estab24 lished the national objective of restoring and main25 taining the chemical, physical, and biological integVerDate Aug 31 2005 03:29 Jul 26, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1870.IS S1870

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1 rity of the waters of the United States and recog2 nized that achieving this objective requires uniform, 

3 minimum national water quality and aquatic eco4 system protection standards to restore and maintain 

5 the natural structures and functions of the aquatic 

6 ecosystems of the United States. Since the 1970s, 

7 the definitions of ‘‘waters of the United States’’ in 

8 the U.S. Environmental Protection Agency’s and the 

9 U.S. Army Corps of Engineers’ regulations have 

10 properly established the scope of waters needed to be 

11 protected by the Federal Water Pollution Control 

12 Act (33 U.S.C. 1251 et seq.) in order to meet the 

13 national objective. 

14 (4) Water is transported through inter15 connected hydrologic cycles, and the pollution, im16 pairment, or destruction of any part of an aquatic 

17 system may affect the chemical, physical, and bio18 logical integrity of other parts of the aquatic system. 

19 (5) Protection of intrastate waters is necessary 

20 to restore and maintain the chemical, physical, and 

21 biological integrity of all waters in the United 

22 States. 

23 (6) The regulation of discharges of pollutants 

24 into intrastate waters is an integral part of the comVerDate Aug 31 2005 03:29 Jul 26, 2007 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1870.IS S1870

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1 prehensive clean water regulatory program of the 

2 United States. 

3 (7) Small and intermittent streams, including 

4 ephemeral and seasonal streams, comprise the ma5 jority of all stream miles in the United States and 

6 serve critical biological and hydrological functions 

7 that affect entire watersheds. These waters reduce 

8 the introduction of pollutants to large streams and 

9 rivers, provide and purify drinking water supplies, 

10 and are especially important to the life cycles of 

11 aquatic organisms and the flow of higher order 

12 streams during floods. 

13 (8) The pollution or other degradation of wa14 ters of the United States, individually and in the ag15 gregate, has a substantial relation to and effect on 

16 interstate commerce. 

17 (9) Protection of intrastate waters is necessary 

18 to prevent significant harm to interstate commerce 

19 and sustain a robust system of interstate commerce 

20 in the future. 

21 (10) Waters, including streams and wetlands, 

22 provide protection from flooding. Draining or filling 

23 intrastate wetlands and channelizing or filling intra24 state streams can cause or exacerbate flooding that 


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1 causes billions of dollars of damages annually, plac2 ing a significant burden on interstate commerce. 

3 (11) Millions of people in the United States de4 pend on streams, wetlands, and other waters of the 

5 United States to filter water and recharge surface 

6 and subsurface drinking water supplies, protect 

7 human health, and create economic opportunity. 

8 Source water protection areas containing small or 

9 intermittent streams provide water to public drink10 ing water supplies serving more than 110 million 

11 Americans. 

12 (12) Millions of people in the United States 

13 enjoy recreational activities that depend on intra14 state waters, such as waterfowl hunting, bird watch15 ing, fishing, and photography, and those activities 

16 and associated travel generate hundreds of billions 

17 of dollars of income each year for the travel, tour18 ism, recreation, and sporting sectors of the economy 

19 of the United States. 

20 (13) Activities that result in the discharge of 

21 pollutants into waters of the United States are com22 mercial or economic in nature. More than 14,000 fa23 cilities with individual permits issued in accordance 

24 with the Federal Water Pollution Control Act (33 

25 U.S.C. 1251 et seq.), including industrial plants and 


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1 municipal sewage treatment systems, discharge into 

2 small or intermittent streams. 

3 (14) States have the responsibility and right to 

4 prevent, reduce, and eliminate pollution of waters, 

5 and the Federal Water Pollution Control Act re6 spects the rights and responsibilities of States by 

7 preserving for States the ability to manage permit8 ting, grant, and research programs to prevent, re9 duce, and eliminate pollution, and to establish stand10 ards and programs more protective of a State’s wa11 ters than is provided under Federal standards and 

12 programs. 

13 (15) Protecting the quality of and regulating 

14 activities affecting the waters of the United States 

15 is a necessary and proper means of implementing 

16 treaties to which the United States is a party, in17 cluding treaties protecting species of fish, birds, and 

18 wildlife. 

19 (16) Protecting the quality of and regulating 

20 activities affecting the waters of the United States 

21 is a necessary and proper means of protecting Fed22 eral land, including hundreds of millions of acres of 

23 parkland, refuge land, and other land under Federal 

24 ownership and the wide array of waters encompassed 

25 by that land. 


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1 (17) Protecting the quality of and regulating 

2 activities affecting the waters of the United States 

3 is necessary to protect Federal land and waters from 

4 discharges of pollutants and other forms of degrada5 tion. 

6 SEC. 4. DEFINITION OF WATERS OF THE UNITED STATES. 

7 Section 502 of the Federal Water Pollution Control 

8 Act (33 U.S.C. 1362) is amended— 

9 (1) by striking paragraph (7); 

10 (2) by redesignating paragraphs (8) through 

11 (24) as paragraphs (7) through (23), respectively; 

12 and 

13 (3) by adding at the end the following: 

14 ‘‘(24) WATERS OF THE UNITED STATES.—The 

15 term ‘waters of the United States’ means all waters 

16 subject to the ebb and flow of the tide, the territorial 

17 seas, and all interstate and intrastate waters and 

18 their tributaries, including lakes, rivers, streams (in19 cluding intermittent streams), mudflats, sandflats, 

20 wetlands, sloughs, prairie potholes, wet meadows, 

21 playa lakes, natural ponds, and all impoundments of 

22 the foregoing, to the fullest extent that these waters, 

23 or activities affecting these waters, are subject to the 

24 legislative power of Congress under the Constitu25 tion.’’. 


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1 SEC. 5. CONFORMING AMENDMENTS. 

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

3 1251 et seq.) is amended— 

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

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

6 of the United States’’; 

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

8 WATERS’’ in the heading and inserting ‘‘WATERS OF

9 THE UNITED STATES’’; and 

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

11 appears and inserting ‘‘waters of the United 

12 States’’. 

13 SEC. 6. SAVINGS CLAUSE. 

14 Nothing in this Act shall be construed as affecting 

15 the authority of the Administrator of the Environmental 

16 Protection Agency or the Secretary of the Army under the 

17 following provisions of the Federal Water Pollution Con18 trol Act (33 U.S.C. 1251 et seq.): 

19 (1) Section 402(l)(1), relating to discharges 

20 composed entirely of return flows from irrigated ag21 riculture. 

22 (2) Section 402(l)(2), relating to discharges of 

23 stormwater runoff from certain oil, gas, and mining 

24 operations composed entirely of flows from precipita25 tion runoff conveyances, which are not contaminated 

26 by or in contact with specified materials. 


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1 (3) Section 404(f)(1)(A), relating to discharges 

2 of dredged or fill materials from normal farming, 

3 silviculture, and ranching activities. 

4 (4) Section 404(f)(1)(B), relating to discharges 

5 of dredged or fill materials for the purpose of main6 tenance of currently serviceable structures. 

7 (5) Section 404(f)(1)(C), relating to discharges 

8 of dredged or fill materials for the purpose of con9 struction or maintenance of farm or stock ponds or 

10 irrigation ditches and maintenance of drainage 

11 ditches. 

12 (6) Section 404(f)(1)(D), relating to discharges 

13 of dredged or fill materials for the purpose of con14 struction of temporary sedimentation basins on con15 struction sites, which do not include placement of fill 

16 material into the waters of the United States. 

17 (7) Section 404(f)(1)(E), relating to discharges 

18 of dredged or fill materials for the purpose of con19 struction or maintenance of farm roads or forest 

20 roads or temporary roads for moving mining equip21 ment in accordance with best management practices. 

22 (8) Section 404(f)(1)(F), relating to discharges 

23 of dredged or fill materials resulting from activities 

24 with respect to which a State has an approved pro25 gram under section 208(b)(4) of such Act meeting 


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1 the requirements of subparagraphs (B) and (C) of 

2 that section. 

Æ 


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