Define WOTUS Act of 2021

II 117TH CONGRESS 1ST SESSION S. 2168 To amend the Federal Water Pollution Control Act to modify the definition of navigable waters, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 22, 2021 Mr. BRAUN (for himself, Ms. ERNST, and Mr. GRASSLEY) introduced the fol- lowing bill; which was read twice and referred to the Committee on Envi- ronment and Public Works A BILL To amend the Federal Water Pollution Control Act to modify the definition of navigable waters, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Define WOTUS Act 4 of 2021’’. 5 SEC. 2. NAVIGABLE WATERS. 6 (a) NAVIGABLE WATERS DEFINITION.—Section 502 7 of the Federal Water Pollution Control Act (33 U.S.C. 8 1362) is amended by striking paragraph (7) and inserting 9 the following: 10 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 2 •S 2168 IS ‘‘(7) NAVIGABLE WATERS.— 1 ‘‘(A) IN GENERAL.—The term ‘navigable 2 waters’ means— 3 ‘‘(i) the territorial seas; 4 ‘‘(ii) interstate waters that are used, 5 or are susceptible to use in the natural and 6 ordinary condition of those waters, as a 7 means in transport of interstate or foreign 8 commerce; 9 ‘‘(iii) relatively permanent, standing, 10 or continuously flowing bodies of water 11 that form geographical features commonly 12 known as streams, rivers, or lakes, that 13 flow directly into waters described in 14 clause (ii); and 15 ‘‘(iv) wetlands that are adjacent to 16 and have a continuous surface water con- 17 nection to waters described in clause (ii) or 18 (iii). 19 ‘‘(B) EXCLUSIONS.—The term ‘navigable 20 waters’ does not include— 21 ‘‘(i) intermittent or ephemeral waters, 22 including features that flow only in re- 23 sponse to precipitation or melt from 24 snowpack; 25 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 3 •S 2168 IS ‘‘(ii) subsurface waters, such as 1 groundwater or underground streams, in- 2 cluding subsurface waters drained through 3 subsurface drainage systems, such as drain 4 tiling; 5 ‘‘(iii) intrastate waters, unless the 6 waters meet the requirements described in 7 subparagraph (A); 8 ‘‘(iv) a man-made channel or ditch, 9 including irrigation, distribution, and 10 drainage systems; 11 ‘‘(v) prior converted cropland; 12 ‘‘(vi) artificially irrigated areas; 13 ‘‘(vii) artificial lakes and ponds con- 14 structed in upland; 15 ‘‘(viii) water-filled depressions created 16 in upland, including water-filled depres- 17 sions incidental to mining or construction 18 activity; 19 ‘‘(ix) stormwater control features ex- 20 cavated or constructed in upland to convey, 21 treat, infiltrate, or store stormwater run- 22 off; 23 ‘‘(x) wastewater recycling structures 24 constructed in upland; 25 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 4 •S 2168 IS ‘‘(xi) waste treatment systems; 1 ‘‘(xii) waters that require the use of 2 means beyond visual inspection by the 3 naked eye, including aerial photographs, 4 satellite imaging, or hydrological testing, to 5 determine if the waters meets the require- 6 ments described in subparagraph (A); or 7 ‘‘(xiii) any other waters that do not 8 meet the requirements under subparagraph 9 (A), without regard to whether the water— 10 ‘‘(I) previously met or would have 11 met those requirements; or 12 ‘‘(II) may in the future meet 13 those requirements. 14 ‘‘(C) ASSOCIATED DEFINITIONS.—For the 15 purposes of this paragraph: 16 ‘‘(i) CONTINUOUS SURFACE WATER 17 CONNECTION.—The term ‘continuous sur- 18 face water connection’ means a connection 19 with respect to which an ordinary person 20 would not be able to visually determine by 21 the naked eye, by looking at the water sur- 22 face, where 1 body of water ends and the 23 other begins. 24 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 5 •S 2168 IS ‘‘(ii) RELATIVELY PERMANENT, 1 STANDING, OR CONTINUOUSLY FLOWING 2 BODIES OF WATER.—The term ‘relatively 3 permanent, standing, or continuously flow- 4 ing bodies of water’ means waters that, ex- 5 cept in cases of extreme events (such as a 6 drought)— 7 ‘‘(I) stand or have continuous 8 flow for not less than 185 days each 9 year; and 10 ‘‘(II) exhibit a bed and banks.’’. 11 (b) JURISDICTIONAL DETERMINATION.—Title V of 12 the Federal Water Pollution Control Act is amended— 13 (1) by redesignating section 520 (33 U.S.C. 14 1251 note) as section 521; and 15 (2) by inserting after section 519 (33 U.S.C. 16 1377a) the following: 17 ‘‘SEC. 520. JURISDICTIONAL DETERMINATIONS. 18 ‘‘(a) DEFINITIONS.—In this section: 19 ‘‘(1) AFFECTED PERSON.—The term ‘affected 20 person’ means an applicant for a permit under sec- 21 tion 404, landowner, or other affected person with 22 an identifiable and substantial legal interest in a 23 property. 24 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 6 •S 2168 IS ‘‘(2) SECRETARY.—The term ‘Secretary’ means 1 the Secretary of the Army. 2 ‘‘(b) BINDING DETERMINATION.—On written request 3 of an affected person, the Secretary shall provide a bind- 4 ing determination of whether the waters on the property 5 of the affected person are navigable waters that meet the 6 requirements described in section 502(7)(A)(iv). 7 ‘‘(c) COSTS.—A determination of the Secretary under 8 subsection (b) shall be made at the cost of the Secretary. 9 ‘‘(d) TIMING.— 10 ‘‘(1) IN GENERAL.—The Secretary shall make a 11 determination under subsection (b) not later than 60 12 days after the date on which the Secretary receives 13 a written request from an affected person. 14 ‘‘(2) EFFECT OF NONRESPONSE.—If the Sec- 15 retary does not make a determination by the end of 16 the period described in paragraph (1), the waters on 17 the property of the affected person shall not be con- 18 sidered to be navigable waters. 19 ‘‘(e) TERM OF DETERMINATION.— 20 ‘‘(1) FINDING OF NAVIGABLE WATERS.—If the 21 Secretary determines under subsection (b) that the 22 waters on the property of the affected person are 23 navigable waters, the determination shall be binding 24 on the Secretary and the Administrator for a period 25 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 7 •S 2168 IS to be determined by the Secretary, but in any case 1 not longer than 5 years after the date of the deter- 2 mination. 3 ‘‘(2) FINDING OF NONNAVIGABLE WATERS.—If 4 the Secretary determines under subsection (b) that 5 the waters on the property of the affected person are 6 not navigable waters, the determination shall be 7 binding on the Secretary and the Administrator for 8 as long as the affected person has an identifiable 9 and substantial legal interest in the property. 10 ‘‘(f) JUDICIAL REVIEW.— 11 ‘‘(1) IN GENERAL.—An affected person may ob- 12 tain expedited judicial review of a determination of 13 the Secretary under subsection (b). 14 ‘‘(2) TIMING.—To obtain expedited judicial re- 15 view under paragraph (1), the affected person shall 16 submit a claim under that paragraph not later than 17 30 days after the date on which the Secretary makes 18 the determination under subsection (b). 19 ‘‘(3) JURISDICTION.—A district court of the 20 United States with appropriate venue for the State 21 in which the affected person resides or in which a 22 substantial part of the property of the affected per- 23 VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS 8 •S 2168 IS son is located shall have jurisdiction over an action 1 under this subsection.’’. 2 Æ VerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S2168.IS S2168 kjohnson on DSK79L0C42PROD with BILLS