text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Federal Wetlands Jurisdiction Act of 
  2005''.
  
  SEC. 2. STATEMENT OF PURPOSES.
  
      The purposes of this Act are--
              (1) to clarify the jurisdiction of the Federal Government 
          over waters of the United States in light of the decision of 
          the Supreme Court in Solid Waste Agency of Northern Cook County 
          v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), so that, 
          consistent with the States' traditional and primary power over 
          land and water use, waters such as isolated wetlands that do 
          not have a significant nexus with traditional navigable waters 
          are not subject to Federal jurisdiction, but remain subject to 
          regulation by the States;
              (2) to provide consistency throughout the Nation in 
          determining the jurisdiction of the Federal Government over 
          waters of the United States;
              (3) to consolidate in one Federal agency the administrative 
          authority of the Federal Government to determine, in accordance 
          with this Act, the waters of the United States subject to the 
          jurisdiction of the permitting program established by section 
          404 of the Federal Water Pollution Control Act (33 U.S.C. 
          1344); and
              (4) to protect the right of States to regulate wetlands and 
          other waters within their jurisdiction.
  
  SEC. 3. FEDERAL JURISDICTION.
  
      Section 404(a) of the Federal Water Pollution Control Act (33 
  U.S.C. 1344(a)) is amended--
              (1) by striking ``(a) The Secretary'' and inserting the 
          following:
      ``(a) Issuance of Permits.--
              ``(1) In general.--The Secretary''; and
              (2) by adding at the end the following:
              ``(2) Jurisdiction.--
                      ``(A) In general.--Waters of the United States, 
                  including the territorial seas, shall be subject to the 
                  jurisdiction of the permitting program established by 
                  this section if the waters are--
                              ``(i) navigable;
                              ``(ii) connected to navigable waters 
                          through a continuous, naturally occurring 
                          surface water connection; or
                              ``(iii) wetlands adjacent to waters 
                          described in clause (i) or (ii).
                      ``(B) Included waters.--For purposes of 
                  subparagraph (A)(ii) waters shall be considered to be 
                  connected to navigable waters by a continuous, 
                  naturally occurring surface water connection if the 
                  waters are connected by perennial or intermittent 
                  streams that contribute flow to navigable waters, 
                  including perennial or intermittent streams that have 
                  been restored, relocated, or channelized on the surface 
                  or that flow through culverts.
                      ``(C) Excluded waters.--
                              ``(i) In general.--For purposes of 
                          subparagraph (A)(ii), waters shall not be 
                          considered to be connected to navigable waters 
                          by a continuous, naturally occurring surface 
                          water connection if the waters are connected 
                          by--
                                      ``(I) sheet flow;
                                      ``(II) ephemeral waters, ground 
                                  water, manmade ditches, or pipelines; 
                                  or
                                      ``(III) a municipal separate storm 
                                  sewer system or any other point source 
                                  regulated under section 402, including 
                                  a State program approved under section 
                                  402(b).
                              ``(ii) Treatment of connecting waters.--The 
                          connecting waters described in clause (i) shall 
                          not be subject to the jurisdiction of the 
                          permitting program established by this section.
                              ``(iii) Fastlands.--Fastlands shall not be 
                          subject to the jurisdiction of the permitting 
                          program established by this section.''.
  
  SEC. 4. STATUTORY CONSTRUCTION.
  
      Nothing in this Act, or the amendments made by this Act, shall be 
  construed to preclude or deny the right of any State or interstate 
  agency to control the discharge of dredged or fill material in any 
  portion of the wetlands or other waters within the jurisdiction of such 
  State, including any activity of any Federal agency.
  
  SEC. 5. SINGLE AGENCY IMPLEMENTATION.
  
      Section 404(a) of the Federal Water Pollution Control Act (33 
  U.S.C. 1344(a)) is further amended by adding the following:
              ``(3) Authority of secretary.--Beginning on the date of 
          enactment of this paragraph, the Secretary shall have sole 
          administrative authority to determine, in accordance with this 
          Act, the waters of the United States subject to the 
          jurisdiction of the permitting program established by this 
          section.''.
  
  SEC. 6. DETERMINATION OF JURISDICTION.
  
      Section 404(a) of the Federal Water Pollution Control Act (33 
  U.S.C. 1344(a)) is further amended by adding the following:
              ``(4) Request for determination.--A person who holds an 
          ownership interest in property, or who has written 
          authorization from such person, may submit to the Secretary a 
          request identifying the property and requesting the Secretary 
          to determine the presence or absence of waters of the United 
          States subject to the jurisdiction of the permitting program 
          established by this section. The person making the request may 
          limit the request to a determination of the presence or absence 
          of any of the waters described in paragraph (2)(A)(i), 
          (2)(A)(ii), or (2)(A)(iii).
              ``(5) Requests for additional information.--Not later than 
          30 days after the date of receipt of a request under paragraph 
          (4), the Secretary may make one request for such additional 
          information as may be necessary to make the jurisdiction 
          determination.
              ``(6) Determination and notification by the secretary.--Not 
          later that 90 days after the date of receipt of a request under 
          paragraph (4), or not later than 60 days after the date of 
          receipt of additional information provided under paragraph (5), 
          whichever is later, the Secretary shall--
                      ``(A) make a jurisdictional determination for the 
                  waters described in the request; and
                      ``(B) provide written notification of the 
                  jurisdictional determination to the person submitting 
                  the request, together with written documentation of the 
                  determination and a written basis for the 
                  determination.
              ``(7) Authority to seek immediate judicial review.--
                      ``(A) In general.--Any person authorized under 
                  paragraph (4) to request a jurisdictional determination 
                  for property may--
                              ``(i) seek judicial review of any such 
                          jurisdictional determination, or injunctive 
                          relief in the case of a failure to make a 
                          determination, in the United States District 
                          Court for the district in which the property is 
                          located; or
                              ``(ii) proceed under the administrative 
                          appeals process established under this section.
                      ``(B) Waters subject to review.--Judicial review, 
                  injunctive relief, or administrative appeal under 
                  subparagraph (A) may be sought for any of the waters 
                  described in paragraph (2)(A)(i), (2)(A)(ii), or 
                  (2)(A)(iii), as specified in the request made under 
                  paragraph (4).
                      ``(C) Judicial review following administrative 
                  appeals.--Any person who elects to proceed under the 
                  administrative appeals process shall retain the right 
                  to seek in the United States District Court for the 
                  district in which the property is located judicial 
                  review of the final decision of the Secretary under the 
                  administrative appeals process.''.
  
  SEC. 7. DEFINITIONS.
  
      Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
  1344) is further amended by adding at the end the following:
      ``(v) Definitions.--In this section, the following definitions 
  apply:
              ``(1) Adjacent wetlands.--The term `adjacent wetlands' 
          means wetlands that are physically touching (abutting or 
          contiguous to) a water described in subsection (a)(2)(A)(i) or 
          (a)(2)(A)(ii). Wetlands separated by a riverbank from which 
          river water overflows into the wetlands annually or biannually 
          are adjacent wetlands for purposes of this section.
              ``(2) Culvert.--The term `culvert' means a pipe or 
          structure that conveys perennial or intermittent streams from 
          one side of a linear structure, such as a roadway, to the other 
          side.
              ``(3) Fastlands.--The term `fastlands' means areas located 
          within legally constituted manmade structures, such as levees 
          and dikes, constructed and maintained to permit the utilization 
          of the areas for commercial, industrial, or residential 
          purposes consistent with local land use planning requirements.
              ``(4) Navigable.--The term `navigable' means a water that 
          is presently used, or is susceptible to use, in its natural 
          condition or by reasonable improvement as a means to transport 
          interstate or foreign commerce shoreward to its ordinary 
          highwater mark, including all waters that are subject to the 
          ebb and flow of the tide shoreward to their mean highwater 
          mark.
              ``(5) Sheet flow.--The term `sheet flow' means non-
          channelized water flowing over upland.
              ``(6) Wetlands.--The term `wetlands' means those lands that 
          have a predominance of hydric soils and that are inundated or 
          saturated by surface water or ground water at a frequency and 
          duration to support, and that under normal circumstances do 
          support, a prevalence of vegetation typically adapted for life 
          in saturated soil conditions. Wetlands generally include 
          swamps, marshes, bogs, and similar areas.''.
target: Federal Wetlands Jurisdiction Act of 2005 - Amends the Federal Water Pollution Control Act to clarify that waters of the United States, including the territorial seas, are subject to the jurisdiction of the permitting program for the discharge of dredged or fill material (permitting program) if such waters are: (1) navigable; (2) connected to navigable waters through a continuous, naturally occurring surface water connection; or (3) wetlands adjacent to such navigable or connected waters.
  
  States that waters are considered connected to navigable waters for purposes of this Act if connected by perennial or intermittent streams that contribute flow to navigable waters. Excludes from the definition those waters connected by: (1) sheet flow (non-channelized water flowing over upland); (2) ephemeral waters, ground water, manmade ditches, or pipelines; or (3) a municipal separate storm sewer system or any other regulated point source.
  
  Excludes fastlands (areas located behind legally constituted manmade structures) from the jurisdiction of the permitting program.
  
  Grants sole authority to the Secretary of the Army to determine the waters subject to the jurisdiction of the permitting program.
  
  Sets forth procedures whereby property owners, or those with written authorization from such owners, may: (1) request that the Secretary determine jurisdiction under this Act and thereafter seek judicial review or injunctive relief; or (2) proceed under the administrative appeals process.
feat_title: 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.