Regulatory Certainty for Navigable Waters Act

I 116TH CONGRESS 1ST SESSION H. R. 667 To repeal the Waters of the United States rule and amend the Federal Water Pollution Control Act definition of navigable waters, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 17, 2019 Ms. HERRERA BEUTLER (for herself and Mr. GIBBS) introduced the following bill; which was referred to the Committee on Transportation and Infra- structure A BILL To repeal the Waters of the United States rule and amend the Federal Water Pollution Control Act 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 ‘‘Regulatory Certainty 4 for Navigable Waters Act’’. 5 SEC. 2. WATERS OF THE UNITED STATES AND NAVIGABLE 6 WATERS. 7 (a) WOTUS REPEAL.—The final rule issued by the 8 Administrator of the Environmental Protection Agency 9 VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS 2 •HR 667 IH and the Secretary of the Army entitled ‘‘Clean Water 1 Rule: Definition of ‘Waters of the United States’ ’’ (80 2 Fed. Reg. 37053 (June 29, 2015)) is repealed. 3 (b) NAVIGABLE WATERS DEFINITION.—Section 502 4 of the Federal Water Pollution Control Act (33 U.S.C. 5 1362) is amended by striking paragraph (7) and inserting 6 the following: 7 ‘‘(7) NAVIGABLE WATERS.— 8 ‘‘(A) IN GENERAL.—The term ‘navigable 9 waters’ means— 10 ‘‘(i) the territorial seas; 11 ‘‘(ii) interstate waters which are pres- 12 ently used, or are susceptible to use in 13 their natural and ordinary condition, as a 14 means to transport interstate or foreign 15 commerce; 16 ‘‘(iii) relatively permanent, standing, 17 or continuously flowing bodies of water 18 that form geographical features commonly 19 known as streams, rivers, or lakes, that 20 flow directly into waters described in 21 clause (ii); or 22 ‘‘(iv) wetlands that have a continuous 23 surface water connection to waters de- 24 scribed in clause (ii) or (iii). 25 VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS 3 •HR 667 IH ‘‘(B) EXCLUSIONS.—The term ‘navigable 1 waters’ shall be limited to the waters described 2 in subparagraph (A) and does not include— 3 ‘‘(i) intermittent or ephemeral waters; 4 ‘‘(ii) subsurface waters, including 5 ground water or underground streams; 6 ‘‘(iii) any water that by itself does not 7 meet the definition in subparagraph (A); 8 ‘‘(iv) an intrastate water, unless meet- 9 ing the requirements of subparagraph (A); 10 ‘‘(v) a man-made channel or ditch, in- 11 cluding irrigation, distribution, and drain- 12 age systems; 13 ‘‘(vi) a water that does not meet the 14 definition in subparagraph (A), including a 15 water that in the past could have been a 16 water that meets the definition in subpara- 17 graph (A) or a water that in the future 18 could be a water that meets the definition 19 in subparagraph (A); 20 ‘‘(vii) a water that requires the use of 21 means beyond visual inspection by the 22 naked eye, including aerial photographs, 23 satellite imaging, or hydrological testing, to 24 VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS 4 •HR 667 IH determine if it meets the definition in sub- 1 paragraph (A); 2 ‘‘(viii) prior converted cropland; or 3 ‘‘(ix) waste management systems, in- 4 cluding systems created in or with im- 5 pounded waters described in subparagraph 6 (A) and all features and components of 7 any system used to actively or passively re- 8 tain, reduce, concentrate, settle, or remove 9 pollutants from wastewater or stormwater, 10 including those that convey the pollutants 11 into and out of the system. 12 ‘‘(C) CONTINUOUS SURFACE WATER CON- 13 NECTION.—For purposes of this paragraph, a 14 continuous surface water connection is a con- 15 nection with respect to which an ordinary per- 16 son would not be able to visually determine by 17 the naked eye, by looking at the water surface, 18 where one body of water ends and the other be- 19 gins. 20 ‘‘(D) RELATIVELY PERMANENT, STAND- 21 ING, OR CONTINUOUSLY FLOWING.—For pur- 22 poses of this paragraph, a water is relatively 23 permanent, standing, or continuously flowing if 24 it has continuous flow for at least 290 days of 25 VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS 5 •HR 667 IH the year, except in cases of extreme events, 1 such as a drought. 2 ‘‘(E) WETLANDS.—For purposes of this 3 paragraph, wetlands— 4 ‘‘(i) are areas that are inundated or 5 saturated by surface or ground water at a 6 frequency and duration sufficient to sup- 7 port, and that under normal circumstances 8 do support, a prevalence of vegetation typi- 9 cally adapted for life in saturated soil con- 10 ditions; and 11 ‘‘(ii) include swamps, marshes, bogs, 12 and similar areas. 13 ‘‘(F) PRIOR CONVERTED CROPLAND.—For 14 purposes of this paragraph, the term ‘prior con- 15 verted cropland’— 16 ‘‘(i) means areas that, prior to De- 17 cember 23, 1985, were drained or other- 18 wise manipulated for the purpose, or hav- 19 ing the effect, of making an agricultural 20 product possible, and that are inundated 21 for no more than 14 consecutive days dur- 22 ing the growing season; and 23 ‘‘(ii) includes agricultural drainage 24 features, including ditches and convey- 25 VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS 6 •HR 667 IH ances, that are the means by which the 1 original conversion from wetlands to crop- 2 land took place and that are integral to the 3 continued production of agricultural prod- 4 ucts by providing drainage or irrigation to 5 maintain productive growing conditions. 6 ‘‘(G) JURISDICTIONAL DETERMINATION.— 7 The Secretary of the Army, at his cost, shall 8 provide a binding determination upon the re- 9 quest of a permit applicant, landowner, or other 10 affected person with an identifiable and sub- 11 stantial legal interest in a property, to deter- 12 mine whether a water is a navigable water 13 under clause (iv) of subparagraph (A). The re- 14 view process shall not exceed 60 days, begin- 15 ning on the date of receipt of a written request 16 from the affected person. If no determination 17 has been made within the 60-day review period, 18 the water shall not be considered a navigable 19 water. A determination that a water is not a 20 navigable water, or a failure to provide a deter- 21 mination, shall be binding on both the Sec- 22 retary and the Administrator for as long as the 23 person has an identifiable and substantial legal 24 interest in the property. If a determination is 25 VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS 7 •HR 667 IH made that a water is a navigable water, the de- 1 termination shall be binding for a period of no 2 longer than 5 years. The affected person may 3 obtain expedited judicial review not later than 4 30 days after the date on which the determina- 5 tion is made in a district court of the United 6 States, of appropriate jurisdiction and venue, 7 which is located within the State of the affected 8 person seeking the review.’’. 9 Æ VerDate Sep 11 2014 23:56 Feb 02, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H667.IH H667 pbinns on DSK79D2C42PROD with BILLS