Section 1 Short title
This Act may be cited as the “Clean Water Act of 2023”.
Clean Water Act of 2023
A BILL
To amend the Federal Water Pollution Control Act to restore a national minimum standard of protection for the water resources of the United States while providing certainty to regulated entities.
Sec. 2 Purposes
The purposes of this Act are as follows:
To reaffirm the commitment of Congress to restore and maintain the chemical, physical, and biological integrity of the Nation’s protected water resources.
To clearly define the Nation’s protected water resources that are subject to the Federal Water Pollution Control Act (33 U.S.C. 1252 et seq.) (commonly known as the “Clean Water Act”) based on the best available scientific evidence and decades of partnership between the Federal, State, and Tribal governments to protect water quality.
To eliminate the confusion initiated by the Supreme Court’s overly narrow interpretation of the term navigable waters and to reestablish the comprehensive authority necessary to meet the codified objective of the Clean Water Act.
To restore a national minimum standard of protection of the Nation’s protected water resources to the fullest extent of the legislative authority of Congress under the Constitution.
Sec. 3 Findings
Congress finds the following:
Water is a singular and precious resource that sustains all life and is fundamental to civilization’s survival, cultural practices, and indigenous ways of life.
Clean and abundant water is important for public health, agriculture, transportation, flood control, energy production, recreation, fishing, and municipal and commercial uses.
Rivers, streams, wetlands, and other water bodies are hydrologically connected within their watersheds, and scientific evidence shows that the pollution, impairment, or destruction of a water body in one location may significantly affect the chemical, physical, and biological integrity of other waters.
The Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023), reduces the protections of the Clean Water Act contrary to, and impairing, the congressional objective of restoring and maintaining the chemical, physical, and biological integrity of the Nation’s protected water resources.
The decision eliminates Clean Water Act protections for tens of millions of acres of wetlands, including wetlands that perform vital functions such as storing water to help reduce flooding, improving water quality by filtering pollutants, providing critical and important habitats for aquatic and other species, and recharging groundwater that provides drinking water and contributes to downstream flows.
The decision also puts at risk Clean Water Act protections for millions of miles of small, intermittent, and ephemeral streams that—
comprise the majority of stream miles in the United States;
transport large volumes of water to downstream rivers;
reduce the introduction of pollutants to large streams and rivers;
provide and purify drinking water supplies;
are especially important to the life cycles of aquatic organisms; and
aid in flood prevention.
The peer reviewed scientific literature unequivocally demonstrates that—
streams, regardless of their size or frequency of flow, are connected to, and strongly influence the function of, downstream waters; and
wetlands, including wetlands that lack surface water connections, are physically, chemically, and biologically connected to, and affect the integrity of, other protected water resources.
Restoring and maintaining the Nation’s protected water resources, including intrastate waters, is necessary to prevent significant harm to interstate commerce and sustain a robust system of interstate commerce in the future.
This Act restores Clean Water Act protections to the Nation’s protected water resources to ensure their chemical, physical, and biological integrity.
The pollution or other degradation of the Nation’s protected water resources, individually and in the aggregate, has a substantial relation to and effect on interstate commerce.
Protected water resources, including streams and wetlands, provide protection from flooding, and draining or filling wetlands and channelizing or filling streams can cause or exacerbate flooding, placing a significant burden on interstate commerce.
Millions of individuals in the United States depend on the Nation’s protected water resources, including streams and wetlands, to filter water and recharge surface and subsurface drinking water supplies, protect human health, and create economic opportunity.
Source water protection areas containing small, intermittent, and ephemeral streams replenish public drinking water supplies serving more than 110 million individuals in the United States.
Millions of individuals in the United States enjoy recreational activities that depend on protected water resources, including streams and wetlands, such as waterfowl hunting, bird watching, fishing, paddling, and photography.
Those activities and associated travel generate hundreds of billions of dollars of income each year for the travel, tourism, recreation, and sporting sectors of the economy of the United States.
Regionally specific protected water resources, such as prairie potholes in the upper Midwestern prairies, pocosins in the Atlantic coastal plain, playa lakes in the southern High Plains, and Carolina and Delmarva bays along the eastern coast of the United States, provide unique and critical benefits to their surrounding regions, including sustainable water quality and availability, groundwater recharge, wildlife habitat, and ecological benefits.
Activities that result in the discharge of pollutants into the Nation’s protected water resources, including through dredging and filling, are commercial or economic in nature, and, in the aggregate, have a substantial effect on interstate commerce.
Restoring and maintaining the quality of, and regulating activities affecting, the Nation’s protected water resources is essential to fulfilling the United States treaty obligations.
Restoring and maintaining wetlands and other protected water resources is essential to North American wildlife, hunters, and anglers.
Restoring and maintaining the quality of, and regulating activities affecting, the Nation’s protected water resources is necessary to protect Federal land and waters from degradation.
Sec. 4 Protected water resources
by amending paragraph (7) to read as follows:
“(7) Protected water resources
“(A) In general—The term protected water resources means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters (and their tributaries), including lakes, rivers, streams (including intermittent and ephemeral streams), wetlands, and all impoundments of the foregoing, to the fullest extent that these waters are subject to the legislative power of Congress under the Constitution.
“(B) Exclusions—The term protected water resources does not include—
“(i) any category of water body or feature listed in paragraphs (1) through (8) of section 120.2(b) of title 40, Code of Federal Regulations, as in effect on March 20, 2023; or
“(ii) any other category of water body or feature excluded by the Administrator in accordance with subparagraph (C).
“(C) Review and modifications
“(i) Review required—Not later than 1 year after the date of enactment of the Clean Water Act of 2023, and periodically thereafter, the Administrator shall, by rule, review the categories of water body or feature excluded under subparagraph (B) to determine, based on the best available scientific evidence, whether the implementation of such exclusions, or any individual exclusion, has a significant cumulative adverse effect on—
“(I) the chemical, physical, or biological integrity of—
“(aa) the waters described in subparagraph (A); or
“(bb) surface waters, other than those described in subparagraph (A), that are sources of water for public water systems, as such term is defined in section 1401 of the Safe Drinking Water Act (42 U.S.C. 300f);
“(II) environmental justice communities; or
“(III) water resources described in section 518(e)(2).
“(ii) Modifications and removal—If the Administrator determines under clause (i) that the implementation of the exclusions, or any individual exclusion, under subparagraph (B) has a significant adverse effect described in clause (i), the Administrator shall, by rule and concurrent with such determination—
“(I) modify the category of water body or feature so excluded to ensure that, based on the best available scientific evidence, the implementation of such category will not have a significant cumulative adverse effect described in clause (i); or
“(II) remove such category.
“(iii) Additional exclusions—The Administrator may, by rule, exclude an additional category of water body or feature under subparagraph (B) if the Administrator determines, based on the best available scientific evidence, that the implementation of such additional exclusion will not have a significant cumulative adverse effect described in clause (i).”
by adding at the end the following:
“(28) Wetlands—The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”
Conforming amendments—
Federal Water Pollution Control Act— The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) is amended—
in sections 101, 102, 104, 106, 208, 301, 302, 303, 304, 319, 401, 404, 405, and 511(c), by striking “navigable waters” each place it appears and inserting “protected water resources”;
in section 303(c)—
in paragraph (2)(A), by striking “such waters” and inserting “such protected water resources”; and
in paragraph (4)(A), by striking “such waters” and inserting “such protected water resources”;
in section 304(l)(1) by striking “navigable waters” in the heading and inserting “protected water resources”;
in section 305—
in subsection (a), by striking “navigable waters” each place it appears and inserting “protected water resources”; and
in subsection (b)(1)—
in subparagraph (A), by striking “navigable waters” and inserting “protected water resources”; and
in subparagraph (B), by striking “navigable waters of” and inserting “protected water resources in”;
in section 311—
in subsections (a)(11), (b), and (m), by striking “navigable waters of the United States” each place it appears and inserting “protected water resources”; and
in subsections (c) and (j), by striking “navigable waters” each place it appears and inserting “protected water resources”;
in section 312—
in subsections (a) and (b), by striking “navigable waters” each place it appears and inserting “protected water resources”; and
in subsections (h), (l), and (n), by striking “navigable waters of the United States” each place it appears and inserting “protected water resources”;
in section 319, by striking “such waters” each place it appears and inserting “such protected water resources”;
in section 402—
in subsection (a)(4), by striking “into the navigable waters”;
in subsections (b), (g), and (n)(1), by striking “navigable waters” each place it appears and inserting “protected water resources”; and
in subsection (n)(2), by striking “navigable waters of” and inserting “protected water resources in”;
in section 404—
in subsection (f)(2), by striking “such waters” and inserting “such protected water resources”; and
in subsection (g)(1)—
by striking “those waters” and inserting “those protected water resources”; and
by striking “all waters” and inserting “all protected water resources”;
in paragraphs (11) and (12) of section 502, by striking “navigable waters” each place it appears and inserting “protected water resources”; and
in section 511(b), by inserting “as discharges of pollutants into protected water resources” after “shall be regulated”.
Oil Pollution Act of 1990— Section 1001(21) of the Oil Pollution Act of 1990 (33 U.S.C. 2701(21)) is amended by striking “waters of the United States, including the territorial sea” and inserting “protected water resources (as defined in section 502 of the Federal Water Pollution Control Act)”.