[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1022 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 1022
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
March 29, 2023
Mr. Braun (for himself, Mr. Grassley, and Ms. Ernst) 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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Define WOTUS Act of 2023''.
SEC. 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:
``SEC. 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.''.
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