Summary
# H.R. 1556: Define WOTUS Act
## WHAT THIS BILL DOES
This bill changes how "navigable waters" are defined under the Federal Water Pollution Control Act. The bill creates a narrower definition of which waters the federal government can regulate and establishes a process for property owners to request official determinations about whether their land contains navigable waters.
## WHO IT AFFECTS
- Landowners and property applicants
- The Secretary of the Army
- The Environmental Protection Agency Administrator
- People seeking permits for activities on their property
- Federal courts handling water-related disputes
## KEY PROVISIONS
- Waters must be territorial seas, interstate waters used for commerce, relatively permanent streams/rivers/lakes that flow into commerce waters, or wetlands adjacent to and continuously connected to those waters (Sec. 2(a))
- The bill excludes from federal regulation: intermittent or seasonal waters, groundwater, human-made ditches and channels, irrigated croplands, artificial ponds, stormwater control features, and waters requiring special equipment or satellite imaging to detect (Sec. 2(a))
- Landowners can request a binding written determination from the Secretary of the Army about whether their property contains navigable waters, and the Secretary must respond within 60 days (Sec. 2(b))
- If the Secretary does not respond within 60 days, the property's waters are automatically considered non-navigable (Sec. 2(b))
- Landowners can challenge the Secretary's determination in federal district court within 30 days (Sec. 2(b))
## WHAT CHANGES
If this becomes law, the federal government would regulate fewer water bodies. Waters that only flow seasonally, underground water, and many human-made water features would no longer be considered navigable waters. Landowners would gain a formal process to get official answers about whether their property is subject to federal water regulations, with automatic relief if the government fails to respond.
## IMPORTANT DEFINITIONS
- "Continuous surface water connection" means a connection so seamless that an ordinary person cannot tell where one body of water ends and another begins just by looking (Sec. 2(a))
- "Relatively permanent, standing, or continuously flowing bodies of water" means water that stands or flows continuously for at least 185 days each year except during extreme events like droughts, and that has visible banks and a bottom (Sec. 2(a))
- "Affected person" means a permit applicant, landowner, or other person with a clear and substantial legal right to a property (Sec. 2(b))
## EFFECTIVE DATE
Not specified in bill text
I
118TH CONGRESS
1ST SESSION H. R. 1556
To amend the Federal Water Pollution Control Act to modify the definition
of navigable waters, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 10, 2023
Mrs. MILLER of Illinois 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 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
SEC. 2. NAVIGABLE WATERS.
5
(a) NAVIGABLE WATERS DEFINITION.—Section 502
6
of the Federal Water Pollution Control Act (33 U.S.C.
7
1362) is amended by striking paragraph (7) and inserting
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the following:
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‘‘(7) NAVIGABLE WATERS.—
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‘‘(A) IN GENERAL.—The term ‘navigable
1
waters’ means—
2
‘‘(i) the territorial seas;
3
‘‘(ii) interstate waters that are used,
4
or are susceptible to use in the natural and
5
ordinary condition of those waters, as a
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means in transport of interstate or foreign
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commerce;
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‘‘(iii) relatively permanent, standing,
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or continuously flowing bodies of water
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that form geographical features commonly
11
known as streams, rivers, or lakes, that
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flow directly into waters described in
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clause (ii); and
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‘‘(iv) wetlands that are adjacent to
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and have a continuous surface water con-
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nection to waters described in clause (ii) or
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(iii).
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‘‘(B) EXCLUSIONS.—The term ‘navigable
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waters’ does not include—
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‘‘(i) intermittent or ephemeral waters,
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including features that flow only in re-
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sponse to precipitation or melt from
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snowpack;
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‘‘(ii) subsurface waters, such as
1
groundwater or underground streams, in-
2
cluding subsurface waters drained through
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subsurface drainage systems, such as drain
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tiling;
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‘‘(iii) intrastate waters, unless the
6
waters meet the requirements described in
7
subparagraph (A);
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‘‘(iv) a man-made channel or ditch,
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including
irrigation,
distribution,
and
10
drainage systems;
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‘‘(v) prior converted cropland;
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‘‘(vi) artificially irrigated areas;
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‘‘(vii) artificial lakes and ponds con-
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structed in upland;
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‘‘(viii) water-filled depressions created
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in upland, including water-filled depres-
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sions incidental to mining or construction
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activity;
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‘‘(ix) stormwater control features ex-
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cavated or constructed in upland to convey,
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treat, infiltrate, or store stormwater run-
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off;
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‘‘(x) wastewater recycling structures
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constructed in upland;
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‘‘(xi) waste treatment systems;
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‘‘(xii) waters that require the use of
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means beyond visual inspection by the
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naked eye, including aerial photographs,
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satellite imaging, or hydrological testing, to
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determine if the waters meets the require-
6
ments described in subparagraph (A); or
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‘‘(xiii) any other waters that do not
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meet the requirements under subparagraph
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(A), without regard to whether the water—
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‘‘(I) previously met or would have
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met those requirements; or
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‘‘(II) may in the future meet
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those requirements.
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‘‘(C) ASSOCIATED DEFINITIONS.—For the
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purposes of this paragraph:
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‘‘(i) CONTINUOUS
SURFACE
WATER
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CONNECTION.—The term ‘continuous sur-
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face water connection’ means a connection
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with respect to which an ordinary person
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would not be able to visually determine by
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the naked eye, by looking at the water sur-
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face, where 1 body of water ends and the
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other begins.
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‘‘(ii)
RELATIVELY
PERMANENT,
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STANDING, OR
CONTINUOUSLY
FLOWING
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BODIES OF WATER.—The term ‘relatively
3
permanent, standing, or continuously flow-
4
ing bodies of water’ means waters that, ex-
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cept in cases of extreme events (such as a
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drought)—
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‘‘(I) stand or have continuous
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flow for not less than 185 days each
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year; and
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‘‘(II) exhibit a bed and banks.’’.
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(b) JURISDICTIONAL DETERMINATION.—Title V of
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the Federal Water Pollution Control Act is amended—
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(1) by redesignating section 520 (33 U.S.C.
14
1251 note) as section 521; and
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(2) by inserting after section 519 (33 U.S.C.
16
1377a) the following:
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‘‘SEC. 520. JURISDICTIONAL DETERMINATIONS.
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‘‘(a) DEFINITIONS.—In this section:
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‘‘(1) AFFECTED PERSON.—The term ‘affected
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person’ means an applicant for a permit under sec-
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tion 404, landowner, or other affected person with
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an identifiable and substantial legal interest in a
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property.
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‘‘(2) SECRETARY.—The term ‘Secretary’ means
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the Secretary of the Army.
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‘‘(b) BINDING DETERMINATION.—On written request
3
of an affected person, the Secretary shall provide a bind-
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ing determination of whether the waters on the property
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of the affected person are navigable waters that meet the
6
requirements described in section 502(7)(A)(iv).
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‘‘(c) COSTS.—A determination of the Secretary under
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subsection (b) shall be made at the cost of the Secretary.
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‘‘(d) TIMING.—
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‘‘(1) IN GENERAL.—The Secretary shall make a
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determination under subsection (b) not later than 60
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days after the date on which the Secretary receives
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a written request from an affected person.
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‘‘(2) EFFECT OF NONRESPONSE.—If the Sec-
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retary does not make a determination by the end of
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the period described in paragraph (1), the waters on
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the property of the affected person shall not be con-
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sidered to be navigable waters.
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‘‘(e) TERM OF DETERMINATION.—
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‘‘(1) FINDING OF NAVIGABLE WATERS.—If the
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Secretary determines under subsection (b) that the
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waters on the property of the affected person are
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navigable waters, the determination shall be binding
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on the Secretary and the Administrator for a period
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•HR 1556 IH
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.
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‘‘(f) JUDICIAL REVIEW.—
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‘‘(1) IN GENERAL.—An affected person may ob-
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tain expedited judicial review of a determination of
13
the Secretary under subsection (b).
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‘‘(2) TIMING.—To obtain expedited judicial re-
15
view under paragraph (1), the affected person shall
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submit a claim under that paragraph not later than
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30 days after the date on which the Secretary makes
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the determination under subsection (b).
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‘‘(3) JURISDICTION.—A district court of the
20
United States with appropriate venue for the State
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in which the affected person resides or in which a
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substantial part of the property of the affected per-
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•HR 1556 IH
son is located shall have jurisdiction over an action
1
under this subsection.’’.
2
Æ
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