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S. 2168: Define WOTUS Act of 2021


The text of the bill below is as of Jun 22, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 2168

IN THE SENATE OF THE UNITED STATES

June 22, 2021

(for himself, Ms. Ernst, and Mr. Grassley) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To amend the Federal Water Pollution Control Act to modify the definition of navigable waters, and for other purposes.

1.

Short title

This Act may be cited as the Define WOTUS Act of 2021.

2.

Navigable waters

(a)

Navigable waters definition

Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended by striking paragraph (7) and inserting the following:

(7)

Navigable waters

(A)

In general

The term navigable waters means—

(i)

the territorial seas;

(ii)

interstate waters that are used, or are susceptible to use in the natural and ordinary condition of those waters, as a means in transport of interstate or foreign commerce;

(iii)

relatively permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, rivers, or lakes, that flow directly into waters described in clause (ii); and

(iv)

wetlands that are adjacent to and have a continuous surface water connection to waters described in clause (ii) or (iii).

(B)

Exclusions

The term navigable waters does not include—

(i)

intermittent or ephemeral waters, including features that flow only in response to precipitation or melt from snowpack;

(ii)

subsurface waters, such as groundwater or underground streams, including subsurface waters drained through subsurface drainage systems, such as drain tiling;

(iii)

intrastate waters, unless the waters meet the requirements described in subparagraph (A);

(iv)

a man-made channel or ditch, including irrigation, distribution, and drainage systems;

(v)

prior converted cropland;

(vi)

artificially irrigated areas;

(vii)

artificial lakes and ponds constructed in upland;

(viii)

water-filled depressions created in upland, including water-filled depressions incidental to mining or construction activity;

(ix)

stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater runoff;

(x)

wastewater recycling structures constructed in upland;

(xi)

waste treatment systems;

(xii)

waters that require the use of means beyond visual inspection by the naked eye, including aerial photographs, satellite imaging, or hydrological testing, to determine if the waters meets the requirements described in subparagraph (A); or

(xiii)

any other waters that do not meet the requirements under subparagraph (A), without regard to whether the water—

(I)

previously met or would have met those requirements; or

(II)

may in the future meet those requirements.

(C)

Associated definitions

For the purposes of this paragraph:

(i)

Continuous surface water connection

The term continuous surface water connection means a connection with respect to which an ordinary person would not be able to visually determine by the naked eye, by looking at the water surface, where 1 body of water ends and the other begins.

(ii)

Relatively permanent, standing, or continuously flowing bodies of water

The term relatively permanent, standing, or continuously flowing bodies of water means waters that, except in cases of extreme events (such as a drought)—

(I)

stand or have continuous flow for not less than 185 days each year; and

(II)

exhibit a bed and banks.

.

(b)

Jurisdictional determination

Title V of the Federal Water Pollution Control Act is amended—

(1)

by redesignating section 520 (33 U.S.C. 1251 note) as section 521; and

(2)

by inserting after section 519 (33 U.S.C. 1377a) the following:

520.

Jurisdictional determinations

(a)

Definitions

In this section:

(1)

Affected person

The term affected person means an applicant for a permit under section 404, landowner, or other affected person with an identifiable and substantial legal interest in a property.

(2)

Secretary

The term Secretary means the Secretary of the Army.

(b)

Binding determination

On written request of an affected person, the Secretary shall provide a binding determination of whether the waters on the property of the affected person are navigable waters that meet the requirements described in section 502(7)(A)(iv).

(c)

Costs

A determination of the Secretary under subsection (b) shall be made at the cost of the Secretary.

(d)

Timing

(1)

In general

The Secretary shall make a determination under subsection (b) not later than 60 days after the date on which the Secretary receives a written request from an affected person.

(2)

Effect of nonresponse

If the Secretary does not make a determination by the end of the period described in paragraph (1), the waters on the property of the affected person shall not be considered to be navigable waters.

(e)

Term of determination

(1)

Finding of navigable waters

If the Secretary determines under subsection (b) that the waters on the property of the affected person are navigable waters, the determination shall be binding on the Secretary and the Administrator for a period to be determined by the Secretary, but in any case not longer than 5 years after the date of the determination.

(2)

Finding of nonnavigable waters

If the Secretary determines under subsection (b) that the waters on the property of the affected person are not navigable waters, the determination shall be binding on the Secretary and the Administrator for as long as the affected person has an identifiable and substantial legal interest in the property.

(f)

Judicial review

(1)

In general

An affected person may obtain expedited judicial review of a determination of the Secretary under subsection (b).

(2)

Timing

To obtain expedited judicial review under paragraph (1), the affected person shall submit a claim under that paragraph not later than 30 days after the date on which the Secretary makes the determination under subsection (b).

(3)

Jurisdiction

A district court of the United States with appropriate venue for the State in which the affected person resides or in which a substantial part of the property of the affected person is located shall have jurisdiction over an action under this subsection.

.