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. 

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 2019’’. 

6 SEC. 2. WATERS OF THE UNITED STATES AND NAVIGABLE 

7 WATERS. 

8 (a) WATERS OF THE UNITED STATES RULE RE9 PEAL.—The final rule issued by the Administrator of the 

10 Environmental Protection Agency and the Secretary of the 


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1 Army entitled ‘‘Clean Water Rule: Definition of ‘Waters 

2 of the United States’ ’’ (80 Fed. Reg. 37054 (June 29, 

3 2015)) is void. 

4 (b) NAVIGABLE WATERS DEFINITION.—Section 502 

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

6 1362) is amended by striking paragraph (7) and inserting 

7 the following: 

8 ‘‘(7) NAVIGABLE WATERS.— 

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

10 waters’ means— 

11 ‘‘(i) the territorial seas; 

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

13 or are susceptible to use in the natural and 

14 ordinary condition of those waters, as a 

15 means in transport of interstate or foreign 

16 commerce; 

17 ‘‘(iii) relatively permanent, standing, 

18 or continuously flowing bodies of water 

19 that form geographical features commonly 

20 known as streams, rivers, or lakes, that 

21 flow directly into waters described in 

22 clause (ii); and 

23 ‘‘(iv) wetlands that are adjacent to 

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1 nection to waters described in clause (ii) or 

2 (iii). 

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

4 waters’ does not include— 

5 ‘‘(i) intermittent or ephemeral waters, 

6 including features that flow only in re7 sponse to precipitation or melt from 

8 snowpack; 

9 ‘‘(ii) subsurface waters, such as 

10 groundwater or underground streams, in11 cluding subsurface waters drained through 

12 subsurface drainage systems, such as drain 

13 tiling; 

14 ‘‘(iii) intrastate waters, unless the 

15 waters meet the requirements described in 

16 subparagraph (A); 

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

18 including irrigation, distribution, and 

19 drainage systems; 

20 ‘‘(v) prior converted cropland; 

21 ‘‘(vi) artificially irrigated areas; 

22 ‘‘(vii) artificial lakes and ponds con23 structed in upland; 

24 ‘‘(viii) water-filled depressions created 

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1 sions incidental to mining or construction 

2 activity; 

3 ‘‘(ix) stormwater control features ex4 cavated or constructed in upland to convey, 

5 treat, infiltrate, or store stormwater run6 off; 

7 ‘‘(x) wastewater recycling structures 

8 constructed in upland; 

9 ‘‘(xi) waste treatment systems; 

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

11 means beyond visual inspection by the 

12 naked eye, including aerial photographs, 

13 satellite imaging, or hydrological testing, to 

14 determine if the waters meets the require15 ments described in subparagraph (A); or 

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

17 meet the requirements under subparagraph 

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

19 ‘‘(I) previously met or would have 

20 met those requirements; or 

21 ‘‘(II) may in the future meet 

22 those requirements. 

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

24 purposes of this paragraph: 


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1 ‘‘(i) CONTINUOUS SURFACE WATER

2 CONNECTION.—The term ‘continuous sur3 face water connection’ means a connection 

4 with respect to which an ordinary person 

5 would not be able to visually determine by 

6 the naked eye, by looking at the water sur7 face, where 1 body of water ends and the 

8 other begins. 

9 ‘‘(ii) RELATIVELY PERMANENT, 

10 STANDING, OR CONTINUOUSLY FLOWING

11 BODIES OF WATER.—The term ‘relatively 

12 permanent, standing, or continuously flow13 ing bodies of water’ means waters that, ex14 cept in cases of extreme events (such as a 

15 drought)— 

16 ‘‘(I) stand or have continuous 

17 flow for not less than 185 days each 

18 year; and 

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

20 (c) JURISDICTIONAL DETERMINATION.—Title V of 

21 the Federal Water Pollution Control Act is amended— 

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

23 1251 note) as section 521; and 

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

25 1377a) the following: 


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1 ‘‘SEC. 520. JURISDICTIONAL DETERMINATIONS. 

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

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

4 person’ means an applicant for a permit under sec5 tion 404, landowner, or other affected person with 

6 an identifiable and substantial legal interest in a 

7 property. 

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

9 the Secretary of the Army. 

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

11 of an affected person, the Secretary shall provide a bind12 ing determination of whether the waters on the property 

13 of the affected person are navigable waters that meet the 

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

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

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

17 ‘‘(d) TIMING.— 

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

19 determination under subsection (b) not later than 60 

20 days after the date on which the Secretary receives 

21 a written request from an affected person. 

22 ‘‘(2) EFFECT OF NONRESPONSE.—If the Sec23 retary does not make a determination by the end of 

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

25 the property of the affected person shall not be con26 sidered to be navigable waters. 


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1 ‘‘(e) TERM OF DETERMINATION.— 

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

3 Secretary determines under subsection (b) that the 

4 waters on the property of the affected person are 

5 navigable waters, the determination shall be binding 

6 on the Secretary and the Administrator for a period 

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

8 not longer than 5 years after the date of the deter9 mination. 

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

11 the Secretary determines under subsection (b) that 

12 the waters on the property of the affected person are 

13 not navigable waters, the determination shall be 

14 binding on the Secretary and the Administrator for 

15 as long as the affected person has an identifiable 

16 and substantial legal interest in the property. 

17 ‘‘(f) JUDICIAL REVIEW.— 

18 ‘‘(1) IN GENERAL.—An affected person may ob19 tain expedited judicial review of a determination of 

20 the Secretary under subsection (b). 

21 ‘‘(2) TIMING.—To obtain expedited judicial re22 view under paragraph (1), the affected person shall 

23 submit a claim under that paragraph not later than 

24 30 days after the date on which the Secretary makes 

25 the determination under subsection (b). 


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

2 United States with appropriate venue for the State 

3 in which the affected person resides or in which a 

4 substantial part of the property of the affected per5 son is located shall have jurisdiction over an action 

6 under this subsection.’’. 

Æ 


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