II 

117TH CONGRESS 

1ST SESSION S. 2168 

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 

JUNE 22, 2021 

Mr. BRAUN (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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Define WOTUS Act 

5 of 2021’’. 

6 SEC. 2. NAVIGABLE WATERS. 

7 (a) NAVIGABLE WATERS DEFINITION.—Section 502 

8 of the Federal Water Pollution Control Act (33 U.S.C. 

9 1362) is amended by striking paragraph (7) and inserting 

10 the following: 


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1 ‘‘(7) NAVIGABLE WATERS.— 

2 ‘‘(A) IN GENERAL.—The term ‘navigable 

3 waters’ means— 

4 ‘‘(i) the territorial seas; 

5 ‘‘(ii) interstate waters that are used, 

6 or are susceptible to use in the natural and 

7 ordinary condition of those waters, as a 

8 means in transport of interstate or foreign 

9 commerce; 

10 ‘‘(iii) relatively permanent, standing, 

11 or continuously flowing bodies of water 

12 that form geographical features commonly 

13 known as streams, rivers, or lakes, that 

14 flow directly into waters described in 

15 clause (ii); and 

16 ‘‘(iv) wetlands that are adjacent to 

17 and have a continuous surface water con18 nection to waters described in clause (ii) or 

19 (iii). 

20 ‘‘(B) EXCLUSIONS.—The term ‘navigable 

21 waters’ does not include— 

22 ‘‘(i) intermittent or ephemeral waters, 

23 including features that flow only in re24 sponse to precipitation or melt from 

25 snowpack; 


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1 ‘‘(ii) subsurface waters, such as 

2 groundwater or underground streams, in3 cluding subsurface waters drained through 

4 subsurface drainage systems, such as drain 

5 tiling; 

6 ‘‘(iii) intrastate waters, unless the 

7 waters meet the requirements described in 

8 subparagraph (A); 

9 ‘‘(iv) a man-made channel or ditch, 

10 including irrigation, distribution, and 

11 drainage systems; 

12 ‘‘(v) prior converted cropland; 

13 ‘‘(vi) artificially irrigated areas; 

14 ‘‘(vii) artificial lakes and ponds con15 structed in upland; 

16 ‘‘(viii) water-filled depressions created 

17 in upland, including water-filled depres18 sions incidental to mining or construction 

19 activity; 

20 ‘‘(ix) stormwater control features ex21 cavated or constructed in upland to convey, 

22 treat, infiltrate, or store stormwater run23 off; 

24 ‘‘(x) wastewater recycling structures 

25 constructed in upland; 


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1 ‘‘(xi) waste treatment systems; 

2 ‘‘(xii) waters that require the use of 

3 means beyond visual inspection by the 

4 naked eye, including aerial photographs, 

5 satellite imaging, or hydrological testing, to 

6 determine if the waters meets the require7 ments described in subparagraph (A); or 

8 ‘‘(xiii) any other waters that do not 

9 meet the requirements under subparagraph 

10 (A), without regard to whether the water— 

11 ‘‘(I) previously met or would have 

12 met those requirements; or 

13 ‘‘(II) may in the future meet 

14 those requirements. 

15 ‘‘(C) ASSOCIATED DEFINITIONS.—For the 

16 purposes of this paragraph: 

17 ‘‘(i) CONTINUOUS SURFACE WATER

18 CONNECTION.—The term ‘continuous sur19 face water connection’ means a connection 

20 with respect to which an ordinary person 

21 would not be able to visually determine by 

22 the naked eye, by looking at the water sur23 face, where 1 body of water ends and the 

24 other begins. 


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1 ‘‘(ii) RELATIVELY PERMANENT, 

2 STANDING, OR CONTINUOUSLY FLOWING

3 BODIES OF WATER.—The term ‘relatively 

4 permanent, standing, or continuously flow5 ing bodies of water’ means waters that, ex6 cept in cases of extreme events (such as a 

7 drought)— 

8 ‘‘(I) stand or have continuous 

9 flow for not less than 185 days each 

10 year; and 

11 ‘‘(II) exhibit a bed and banks.’’. 

12 (b) JURISDICTIONAL DETERMINATION.—Title V of 

13 the Federal Water Pollution Control Act is amended— 

14 (1) by redesignating section 520 (33 U.S.C. 

15 1251 note) as section 521; and 

16 (2) by inserting after section 519 (33 U.S.C. 

17 1377a) the following: 

18 ‘‘SEC. 520. JURISDICTIONAL DETERMINATIONS. 

19 ‘‘(a) DEFINITIONS.—In this section: 

20 ‘‘(1) AFFECTED PERSON.—The term ‘affected 

21 person’ means an applicant for a permit under sec22 tion 404, landowner, or other affected person with 

23 an identifiable and substantial legal interest in a 

24 property. 


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1 ‘‘(2) SECRETARY.—The term ‘Secretary’ means 

2 the Secretary of the Army. 

3 ‘‘(b) BINDING DETERMINATION.—On written request 

4 of an affected person, the Secretary shall provide a bind5 ing determination of whether the waters on the property 

6 of the affected person are navigable waters that meet the 

7 requirements described in section 502(7)(A)(iv). 

8 ‘‘(c) COSTS.—A determination of the Secretary under 

9 subsection (b) shall be made at the cost of the Secretary. 

10 ‘‘(d) TIMING.— 

11 ‘‘(1) IN GENERAL.—The Secretary shall make a 

12 determination under subsection (b) not later than 60 

13 days after the date on which the Secretary receives 

14 a written request from an affected person. 

15 ‘‘(2) EFFECT OF NONRESPONSE.—If the Sec16 retary does not make a determination by the end of 

17 the period described in paragraph (1), the waters on 

18 the property of the affected person shall not be con19 sidered to be navigable waters. 

20 ‘‘(e) TERM OF DETERMINATION.— 

21 ‘‘(1) FINDING OF NAVIGABLE WATERS.—If the 

22 Secretary determines under subsection (b) that the 

23 waters on the property of the affected person are 

24 navigable waters, the determination shall be binding 

25 on the Secretary and the Administrator for a period 


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1 to be determined by the Secretary, but in any case 

2 not longer than 5 years after the date of the deter3 mination. 

4 ‘‘(2) FINDING OF NONNAVIGABLE WATERS.—If 

5 the Secretary determines under subsection (b) that 

6 the waters on the property of the affected person are 

7 not navigable waters, the determination shall be 

8 binding on the Secretary and the Administrator for 

9 as long as the affected person has an identifiable 

10 and substantial legal interest in the property. 

11 ‘‘(f) JUDICIAL REVIEW.— 

12 ‘‘(1) IN GENERAL.—An affected person may ob13 tain expedited judicial review of a determination of 

14 the Secretary under subsection (b). 

15 ‘‘(2) TIMING.—To obtain expedited judicial re16 view under paragraph (1), the affected person shall 

17 submit a claim under that paragraph not later than 

18 30 days after the date on which the Secretary makes 

19 the determination under subsection (b). 

20 ‘‘(3) JURISDICTION.—A district court of the 

21 United States with appropriate venue for the State 

22 in which the affected person resides or in which a 

23 substantial part of the property of the affected perVerDate Sep 11 2014 02:44 Jun 30, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2168.IS S2168

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1 son is located shall have jurisdiction over an action 

2 under this subsection.’’. 

Æ 


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