Define WOTUS Act of 2021
Bill: S.2168 | Sponsor: Sen. Braun, Mike (R-IN)
Policy area: Environmental Protection

Summary:
Define WOTUS Act of 2021
This bill describes which bodies of water fall under federal jurisdiction for purposes of the Clean Water Act. Specifically, the bill redefines navigable waters and establishes a process for the U.S. Army Corps of Engineers to determine, upon request, whether certain waters are navigable waters.

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 2021''.

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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