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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. 

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 2004’’. 

6 SEC. 2. STATEMENT OF PURPOSES. 

7 The purposes of this Act are to— 

8 (1) clarify the jurisdiction of the Federal Gov9 ernment over waters of the United States in light of 
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1 the decision of the Supreme Court in Solid Waste 

2 Agency of Northern Cook County v. U.S. Army 

3 Corps of Engineers, 531 U.S. 159 (2001); 

4 (2) provide consistency throughout the Nation 

5 in determining the jurisdiction of the Federal Gov6 ernment over waters of the United States; and 

7 (3) consolidate in one Federal agency the au8 thority of the Federal Government to implement the 

9 permitting program established under section 404 of 

10 the Federal Water Pollution Act (33 U.S.C. 1344). 

11 SEC. 3. FEDERAL JURISDICTION. 

12 Section 404(a) of the Federal Water Pollution Con13 trol Act (33 U.S.C. 1344(a)) is amended— 

14 (1) by striking ‘‘(a) The Secretary’’ and insert15 ing the following: 

16 ‘‘(a) ISSUANCE OF PERMITS.— 

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

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

19 ‘‘(2) JURISDICTION.—Waters of the United 

20 States, including the territorial seas, shall be subject 

21 to the jurisdiction of the permitting program estab22 lished by this section if the waters are— 

23 ‘‘(A) navigable; 
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1 ‘‘(B) hydrologically connected to navigable 

2 waters through a continuous, naturally occur3 ring surface connection; or 

4 ‘‘(C) wetlands adjacent to waters described 

5 in subparagraph (A) or (B). 

6 ‘‘(3) SURFACE CONNECTION.— 

7 ‘‘(A) INCLUDED WATERS.—For purposes 

8 of paragraph (2)(B), waters shall be considered 

9 to be hydrologically connected to navigable wa10 ters by a continuous, naturally occurring sur11 face connection if the waters are connected by 

12 perennial or intermittent streams that con13 tribute flow to navigable waters, including pe14 rennial or intermittent streams that have been 

15 restored, relocated, or channelized on the sur16 face or that flow through culverts. 

17 ‘‘(B) EXCLUDED WATERS.—For purposes 

18 of paragraph (2)(B), waters shall not be consid19 ered to be hydrologically connected to navigable 

20 waters by a continuous, naturally occurring sur21 face connection if the waters are connected 

22 by— 

23 ‘‘(i) sheet flow (normal runoff of pre24 cipitation); 
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1 ‘‘(ii) ephemeral waters, ground water, 

2 manmade ditches, or pipelines; or 

3 ‘‘(iii) a municipal separate storm 

4 sewer system or any other point source 

5 regulated under section 402, including a 

6 State program approved under section 

7 402(b). 

8 Such connecting waters also shall not be subject 

9 to the jurisdiction of the permitting program 

10 established by this section. 

11 ‘‘(4) FASTLANDS.—Fastlands shall not be sub12 ject to the jurisdiction of the permitting program es13 tablished by this section. 

14 ‘‘(5) DETERMINATION OF JURISDICTION.— 

15 ‘‘(A) REQUEST FOR DETERMINATION.—A 

16 person who holds an ownership interest in prop17 erty, or who has written authorization from 

18 such person, may submit a request to the Sec19 retary identifying the property and requesting 

20 the Secretary to determine the presence or ab21 sence of waters of the United States subject to 

22 the jurisdiction of the permitting program es23 tablished by this section. The person making 

24 the request may limit the request to a deter25 mination of the presence or absence of any of 
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1 the waters described in paragraph (2)(A), 

2 (2)(B), or (2)(C). 

3 ‘‘(B) REQUESTS FOR ADDITIONAL INFOR4 MATION.—Not later than 30 days after the date 

5 of receipt of a request under subparagraph (A), 

6 the Secretary may make one request for such 

7 additional information as may be necessary to 

8 make the jurisdictional determination. 

9 ‘‘(C) DETERMINATION AND NOTIFICATION

10 BY THE SECRETARY.—Not later than 90 days 

11 after the date of receipt of a request under sub12 paragraph (A), or not later than 60 days after 

13 the date of receipt of additional information 

14 provided under subparagraph (B), whichever is 

15 later, the Secretary shall— 

16 ‘‘(i) make a jurisdictional determina17 tion for the waters described in the re18 quest; and 

19 ‘‘(ii) provide written notification of 

20 the jurisdictional determination to the per21 son submitting the request, together with 

22 written documentation of the determina23 tion and a written basis for the determina24 tion. 
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1 ‘‘(D) AUTHORITY TO SEEK IMMEDIATE JU2 DICIAL REVIEW.— 

3 ‘‘(i) IN GENERAL.—Any person au4 thorized under this paragraph to request a 

5 jurisdictional determination for property 

6 may— 

7 ‘‘(I) seek judicial review of any 

8 such jurisdictional determination, or 

9 injunctive relief in the case of a fail10 ure to make a determination, in the 

11 United States District Court for the 

12 district in which the property is lo13 cated; or 

14 ‘‘(II) may proceed under the ad15 ministrative appeals process estab16 lished under this section. 

17 ‘‘(ii) WATERS SUBJECT TO REVIEW.— 

18 Judicial review, injunctive relief, or admin19 istrative appeal under clause (i) may be 

20 sought for any of the waters described in 

21 paragraph (2)(A), (2)(B), or (2)(C), as 

22 specified in the request made under this 

23 paragraph. 

24 ‘‘(iii) JUDICIAL REVIEW FOLLOWING

25 ADMINISTRATIVE APPEALS.—Any person 
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1 who elects to proceed under the adminis2 trative appeals process shall retain the 

3 right to seek in the United States District 

4 Court for the district in which the property 

5 is located judicial review of the final deci6 sion of the Secretary under the administra7 tive appeals process.’’. 

8 SEC. 4. SINGLE AGENCY IMPLEMENTATION. 

9 (a) IN GENERAL.—Beginning on the date of enact10 ment of this Act, all authorities of the Administrator of 

11 the Environmental Protection Agency under section 404 

12 of the Federal Water Pollution Control Act (33 U.S.C. 

13 1344) are transferred to the Secretary of the Army, acting 

14 through the Chief of Engineers. 

15 (b) AUTHORITIES RETAINED BY EPA.—Notwith16 standing subsection (a), the Administrator shall retain the 

17 authority to comment on permits issued under section 

18 404(a) of the Federal Water Pollution Control Act (33 

19 U.S.C. 1344(a)) and general permits issued under section 

20 404(e) of such Act (33 U.S.C. 1344(e)). 

21 (c) TRANSFER OF FUNDS.—All funds appropriated 

22 to the Administrator for carrying out the authorities 

23 transferred under this section shall be transferred to the 

24 Secretary. 
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1 (d) CONFORMING AMENDMENTS.—Section 404 of the 

2 Federal Water Pollution Control Act (33 U.S.C. 1344) is 

3 amended— 

4 (1) in subsection (b) by striking ‘‘the Adminis5 trator, in conjunction with’’; 

6 (2) by striking subsection (c); and 

7 (3) in subsection (q) by adding at the end the 

8 following: ‘‘No agreement entered into under this 

9 subsection shall authorize any of the signatory agen10 cies to request a decision concerning a permit issued 

11 under this section to be elevated to any level above 

12 the District Engineer.’’. 

13 SEC. 5. DEFINITIONS. 

14 Section 404 of the Federal Water Pollution Control 

15 Act (33 U.S.C. 1344) is amended by adding at the end 

16 the following: 

17 ‘‘(u) DEFINITIONS.—In this section, the following 

18 definitions apply: 

19 ‘‘(1) NAVIGABLE.—The term ‘navigable’ means 

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

21 use, in its natural condition or by reasonable im22 provement as a means to transport interstate or for23 eign commerce shoreward to its ordinary highwater 

24 mark, including all waters that are subject to the 
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1 ebb and flow of the tide shoreward to their mean 

2 highwater mark. 

3 ‘‘(2) WETLANDS.—The term ‘wetlands’ means 

4 those lands that have a predominance of hydric soils 

5 and that are inundated or saturated by surface 

6 water or ground water at a frequency and duration 

7 to support, and that under normal circumstances do 

8 support, a prevalence of vegetation typically adapted 

9 for life in saturated soil conditions. Wetlands gen10 erally include swamps, marshes, bogs, and similar 

11 areas. 

12 ‘‘(3) ADJACENT WETLANDS.—The term ‘adja13 cent wetlands’ means wetlands that are physically 

14 touching (abutting or contiguous to) a water de15 scribed in subsection (a)(2)(A) or (a)(2)(B). Wet16 lands separated by a riverbank from which river 

17 water overflows into the wetlands annually or bian18 nually are adjacent wetlands for purposes of this 

19 section. 

20 ‘‘(4) CULVERT.—The term ‘culvert’ means a 

21 pipe or structure that conveys perennial or intermit22 tent streams from one side of a linear structure, 

23 such as a roadway, to the other side. 

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

25 areas located behind legally constituted manmade 
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1 structures, such as levees, constructed and main2 tained to permit the utilization of the areas for com3 mercial, industrial, or residential purposes consistent 

4 with local land use planning requirements.’’. 

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