Waters of the United States and navigable waters

(a)

WOTUS repeal

The final rule issued by the Administrator of the Environmental Protection Agency and the Secretary of the Army entitled Clean Water Rule: Definition of Waters of the United States (80 Fed. Reg. 37053 (June 29, 2015)) is repealed. (b)

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 which are presently used, or are susceptible to use in their natural and ordinary condition, as a means to transport 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); or (iv)wetlands that have a continuous surface water connection to waters described in clause (ii) or (iii). (B)

Exclusions

The term navigable waters shall be limited to the waters described in subparagraph (A) and does not include— (i)intermittent or ephemeral waters; (ii)subsurface waters, including ground water or underground streams; (iii)any water that by itself does not meet the definition in subparagraph (A); (iv)an intrastate water, unless meeting the requirements of subparagraph (A); (v)a man-made channel or ditch, including irrigation, distribution, and drainage systems; (vi)a water that does not meet the definition in subparagraph (A), including a water that in the past could have been a water that meets the definition in subparagraph (A) or a water that in the future could be a water that meets the definition in subparagraph (A); (vii)a water that requires the use of means beyond visual inspection by the naked eye, including aerial photographs, satellite imaging, or hydrological testing, to determine if it meets the definition in subparagraph (A); (viii)prior converted cropland; or (ix)waste management systems, including systems created in or with impounded waters described in subparagraph (A) and all features and components of any system used to actively or passively retain, reduce, concentrate, settle, or remove pollutants from wastewater or stormwater, including those that convey the pollutants into and out of the system. (C)

Continuous surface water connection

For purposes of this paragraph, a continuous surface water connection is 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 one body of water ends and the other begins. (D)

Relatively permanent, standing, or continuously flowing

For purposes of this paragraph, a water is relatively permanent, standing, or continuously flowing if it has continuous flow for at least 290 days of the year, except in cases of extreme events, such as a drought. (E)

Wetlands

For purposes of this paragraph, wetlands— (i)are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions; and (ii)include swamps, marshes, bogs, and similar areas. (F)

Prior converted cropland

For purposes of this paragraph, the term prior converted cropland— (i)means areas that, prior to December 23, 1985, were drained or otherwise manipulated for the purpose, or having the effect, of making an agricultural product possible, and that are inundated for no more than 14 consecutive days during the growing season; and (ii)includes agricultural drainage features, including ditches and conveyances, that are the means by which the original conversion from wetlands to cropland took place and that are integral to the continued production of agricultural products by providing drainage or irrigation to maintain productive growing conditions. (G)

Jurisdictional determination

The Secretary of the Army, at his cost, shall provide a binding determination upon the request of a permit applicant, landowner, or other affected person with an identifiable and substantial legal interest in a property, to determine whether a water is a navigable water under clause (iv) of subparagraph (A). The review process shall not exceed 60 days, beginning on the date of receipt of a written request from the affected person. If no determination has been made within the 60-day review period, the water shall not be considered a navigable water. A determination that a water is not a navigable water, or a failure to provide a determination, shall be binding on both the Secretary and the Administrator for as long as the person has an identifiable and substantial legal interest in the property. If a determination is made that a water is a navigable water, the determination shall be binding for a period of no longer than 5 years. The affected person may obtain expedited judicial review not later than 30 days after the date on which the determination is made in a district court of the United States, of appropriate jurisdiction and venue, which is located within the State of the affected person seeking the review.