Define WOTUS Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2356 To provide a definition of navigable waters, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 31, 2019 Mr. BRAUN (for himself and Ms. ERNST) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To provide a 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 2019’’. 5 SEC. 2. WATERS OF THE UNITED STATES AND NAVIGABLE 6 WATERS. 7 (a) WATERS OF THE UNITED STATES RULE RE- 8 PEAL.—The final rule issued by the Administrator of the 9 Environmental Protection Agency and the Secretary of the 10 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 2 •S 2356 IS Army entitled ‘‘Clean Water Rule: Definition of ‘Waters 1 of the United States’ ’’ (80 Fed. Reg. 37054 (June 29, 2 2015)) is void. 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 that are used, 12 or are susceptible to use in the natural and 13 ordinary condition of those waters, as a 14 means in transport of 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); and 22 ‘‘(iv) wetlands that are adjacent to 23 and have a continuous surface water con- 24 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 3 •S 2356 IS nection to waters described in clause (ii) or 1 (iii). 2 ‘‘(B) EXCLUSIONS.—The term ‘navigable 3 waters’ does not include— 4 ‘‘(i) intermittent or ephemeral waters, 5 including features that flow only in re- 6 sponse to precipitation or melt from 7 snowpack; 8 ‘‘(ii) subsurface waters, such as 9 groundwater or underground streams, in- 10 cluding subsurface waters drained through 11 subsurface drainage systems, such as drain 12 tiling; 13 ‘‘(iii) intrastate waters, unless the 14 waters meet the requirements described in 15 subparagraph (A); 16 ‘‘(iv) a man-made channel or ditch, 17 including irrigation, distribution, and 18 drainage systems; 19 ‘‘(v) prior converted cropland; 20 ‘‘(vi) artificially irrigated areas; 21 ‘‘(vii) artificial lakes and ponds con- 22 structed in upland; 23 ‘‘(viii) water-filled depressions created 24 in upland, including water-filled depres- 25 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 4 •S 2356 IS sions incidental to mining or construction 1 activity; 2 ‘‘(ix) stormwater control features ex- 3 cavated or constructed in upland to convey, 4 treat, infiltrate, or store stormwater run- 5 off; 6 ‘‘(x) wastewater recycling structures 7 constructed in upland; 8 ‘‘(xi) waste treatment systems; 9 ‘‘(xii) waters that require the use of 10 means beyond visual inspection by the 11 naked eye, including aerial photographs, 12 satellite imaging, or hydrological testing, to 13 determine if the waters meets the require- 14 ments described in subparagraph (A); or 15 ‘‘(xiii) any other waters that do not 16 meet the requirements under subparagraph 17 (A), without regard to whether the water— 18 ‘‘(I) previously met or would have 19 met those requirements; or 20 ‘‘(II) may in the future meet 21 those requirements. 22 ‘‘(C) ASSOCIATED DEFINITIONS.—For the 23 purposes of this paragraph: 24 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 5 •S 2356 IS ‘‘(i) CONTINUOUS SURFACE WATER 1 CONNECTION.—The term ‘continuous sur- 2 face water connection’ means a connection 3 with respect to which an ordinary person 4 would not be able to visually determine by 5 the naked eye, by looking at the water sur- 6 face, where 1 body of water ends and the 7 other begins. 8 ‘‘(ii) RELATIVELY PERMANENT, 9 STANDING, OR CONTINUOUSLY FLOWING 10 BODIES OF WATER.—The term ‘relatively 11 permanent, standing, or continuously flow- 12 ing bodies of water’ means waters that, ex- 13 cept in cases of extreme events (such as a 14 drought)— 15 ‘‘(I) stand or have continuous 16 flow for not less than 185 days each 17 year; and 18 ‘‘(II) exhibit a bed and banks.’’. 19 (c) JURISDICTIONAL DETERMINATION.—Title V of 20 the Federal Water Pollution Control Act is amended— 21 (1) by redesignating section 520 (33 U.S.C. 22 1251 note) as section 521; and 23 (2) by inserting after section 519 (33 U.S.C. 24 1377a) the following: 25 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 6 •S 2356 IS ‘‘SEC. 520. JURISDICTIONAL DETERMINATIONS. 1 ‘‘(a) DEFINITIONS.—In this section: 2 ‘‘(1) AFFECTED PERSON.—The term ‘affected 3 person’ means an applicant for a permit under sec- 4 tion 404, landowner, or other affected person with 5 an identifiable and substantial legal interest in a 6 property. 7 ‘‘(2) SECRETARY.—The term ‘Secretary’ means 8 the Secretary of the Army. 9 ‘‘(b) BINDING DETERMINATION.—On written request 10 of an affected person, the Secretary shall provide a bind- 11 ing determination of whether the waters on the property 12 of the affected person are navigable waters that meet the 13 requirements described in section 502(7)(A)(iv). 14 ‘‘(c) COSTS.—A determination of the Secretary under 15 subsection (b) shall be made at the cost of the Secretary. 16 ‘‘(d) TIMING.— 17 ‘‘(1) IN GENERAL.—The Secretary shall make a 18 determination under subsection (b) not later than 60 19 days after the date on which the Secretary receives 20 a written request from an affected person. 21 ‘‘(2) EFFECT OF NONRESPONSE.—If the Sec- 22 retary does not make a determination by the end of 23 the period described in paragraph (1), the waters on 24 the property of the affected person shall not be con- 25 sidered to be navigable waters. 26 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 7 •S 2356 IS ‘‘(e) TERM OF DETERMINATION.— 1 ‘‘(1) FINDING OF NAVIGABLE WATERS.—If the 2 Secretary determines under subsection (b) that the 3 waters on the property of the affected person are 4 navigable waters, the determination shall be binding 5 on the Secretary and the Administrator for a period 6 to be determined by the Secretary, but in any case 7 not longer than 5 years after the date of the deter- 8 mination. 9 ‘‘(2) FINDING OF NONNAVIGABLE WATERS.—If 10 the Secretary determines under subsection (b) that 11 the waters on the property of the affected person are 12 not navigable waters, the determination shall be 13 binding on the Secretary and the Administrator for 14 as long as the affected person has an identifiable 15 and substantial legal interest in the property. 16 ‘‘(f) JUDICIAL REVIEW.— 17 ‘‘(1) IN GENERAL.—An affected person may ob- 18 tain expedited judicial review of a determination of 19 the Secretary under subsection (b). 20 ‘‘(2) TIMING.—To obtain expedited judicial re- 21 view under paragraph (1), the affected person shall 22 submit a claim under that paragraph not later than 23 30 days after the date on which the Secretary makes 24 the determination under subsection (b). 25 VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS 8 •S 2356 IS ‘‘(3) JURISDICTION.—A district court of the 1 United States with appropriate venue for the State 2 in which the affected person resides or in which a 3 substantial part of the property of the affected per- 4 son is located shall have jurisdiction over an action 5 under this subsection.’’. 6 Æ VerDate Sep 11 2014 00:55 Aug 08, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S2356.IS S2356 kjohnson on DSK79L0C42 with BILLS