I 

115TH CONGRESS 

2D SESSION H. R. 7194 

To repeal the Waters of the United States rule and amend the Federal 

Water Pollution Control Act definition of navigable waters, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 29, 2018 

Ms. HERRERA BEUTLER (for herself and Mr. GIBBS) introduced the following 

bill; which was referred to the Committee on Transportation and Infrastructure 

A BILL 

To repeal the Waters of the United States rule and amend 

the Federal Water Pollution Control Act 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 ‘‘Regulatory Certainty 

5 for Navigable Waters Act’’. 

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

7 WATERS. 

8 (a) WOTUS REPEAL.—The final rule issued by the 

9 Administrator of the Environmental Protection Agency 


kjohnson on DSK79L0C42 with BILLS
2 

•HR 7194 IH

1 and the Secretary of the Army entitled ‘‘Clean Water 

2 Rule: Definition of ‘Waters of the United States’ ’’ (80 

3 Fed. Reg. 37053 (June 29, 2015)) is repealed. 

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 which are pres13 ently used, or are susceptible to use in 

14 their natural and ordinary condition, as a 

15 means to transport 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); or 

23 ‘‘(iv) wetlands that have a continuous 

24 surface water connection to waters de25 scribed in clause (ii) or (iii). 


kjohnson on DSK79L0C42 with BILLS
3 

•HR 7194 IH

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

2 waters’ shall be limited to the waters described 

3 in subparagraph (A) and does not include— 

4 ‘‘(i) intermittent or ephemeral waters; 

5 ‘‘(ii) subsurface waters, including 

6 ground water or underground streams; 

7 ‘‘(iii) any water that by itself does not 

8 meet the definition in subparagraph (A); 

9 ‘‘(iv) an intrastate water, unless meet10 ing the requirements of subparagraph (A); 

11 ‘‘(v) a man-made channel or ditch, in12 cluding irrigation, distribution, and drain13 age systems; 

14 ‘‘(vi) a water that does not meet the 

15 definition in subparagraph (A), including a 

16 water that in the past could have been a 

17 water that meets the definition in subpara18 graph (A) or a water that in the future 

19 could be a water that meets the definition 

20 in subparagraph (A); 

21 ‘‘(vii) a water that requires the use of 

22 means beyond visual inspection by the 

23 naked eye, including aerial photographs, 

24 satellite imaging, or hydrological testing, to 


kjohnson on DSK79L0C42 with BILLS
4 

•HR 7194 IH

1 determine if it meets the definition in sub2 paragraph (A); 

3 ‘‘(viii) prior converted cropland; or 

4 ‘‘(ix) waste treatment systems, includ5 ing systems created in or with impounded 

6 waters described in subparagraph (A) and 

7 all features and components of any system 

8 designed to actively or passively retain or 

9 reduce or remove pollutants from waste10 water or stormwater, including those that 

11 convey the pollutants into and out of the 

12 system. 

13 ‘‘(C) CONTINUOUS SURFACE WATER CON14 NECTION.—For purposes of this paragraph, a 

15 continuous surface water connection is a con16 nection with respect to which an ordinary per17 son would not be able to visually determine by 

18 the naked eye, by looking at the water surface, 

19 where one body of water ends and the other be20 gins. 

21 ‘‘(D) RELATIVELY PERMANENT, STAND22 ING, OR CONTINUOUSLY FLOWING.—For pur23 poses of this paragraph, a water is relatively 

24 permanent, standing, or continuously flowing if 

25 it has continuous flow for at least 290 days of 


kjohnson on DSK79L0C42 with BILLS
5 

•HR 7194 IH

1 the year, except in cases of extreme events, 

2 such as a drought. 

3 ‘‘(E) WETLANDS.—For purposes of this 

4 paragraph, wetlands— 

5 ‘‘(i) are areas that are inundated or 

6 saturated by surface or ground water at a 

7 frequency and duration sufficient to sup8 port, and that under normal circumstances 

9 do support, a prevalence of vegetation typi10 cally adapted for life in saturated soil con11 ditions; and 

12 ‘‘(ii) include swamps, marshes, bogs, 

13 and similar areas. 

14 ‘‘(F) PRIOR CONVERTED CROPLAND.—For 

15 purposes of this paragraph, the term ‘prior con16 verted cropland’— 

17 ‘‘(i) means areas that, prior to De18 cember 23, 1985, were drained or other19 wise manipulated for the purpose, or hav20 ing the effect, of making an agricultural 

21 product possible, and that are inundated 

22 for no more than 14 consecutive days dur23 ing the growing season; and 

24 ‘‘(ii) includes agricultural drainage 

25 features, including ditches and conveyVerDate Sep 11 2014 21:22 Nov 30, 2018 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7194.IH H7194

kjohnson on DSK79L0C42 with BILLS
6 

•HR 7194 IH

1 ances, that are the means by which the 

2 original conversion from wetlands to crop3 land took place and that are integral to the 

4 continued production of agricultural prod5 ucts by providing drainage or irrigation to 

6 maintain productive growing conditions. 

7 ‘‘(G) JURISDICTIONAL DETERMINATION.— 

8 The Secretary of the Army, at his cost, shall 

9 provide a binding determination upon the re10 quest of a permit applicant, landowner, or other 

11 affected person with an identifiable and sub12 stantial legal interest in a property, to deter13 mine whether a water is a navigable water 

14 under clause (iv) of subparagraph (A). The re15 view process shall not exceed 60 days, begin16 ning on the date of receipt of a written request 

17 from the affected person. If no determination 

18 has been made within the 60 day review period, 

19 the water shall not be considered a navigable 

20 water. A determination that a water is not a 

21 navigable water, or a failure to provide a deter22 mination, shall be binding on both the Sec23 retary and the Administrator for as long as the 

24 person has an identifiable and substantial legal 

25 interest in the property. If a determination is 


kjohnson on DSK79L0C42 with BILLS
7 

•HR 7194 IH

1 made that a water is a navigable water, the de2 termination shall be binding for a period of no 

3 longer than 5 years. The affected person may 

4 obtain expedited judicial review not later than 

5 30 days after the date on which the determina6 tion is made in a district court of the United 

7 States, of appropriate jurisdiction and venue, 

8 which is located within the State of the affected 

9 person seeking the review.’’. 

Æ 


kjohnson on DSK79L0C42 with BILLS