S.Amdt. 3249

SA 3249. Mr. LEE submitted an amendment intended to be proposed to
amendment SA 3224 proposed by Mr. Roberts (for himself and Ms.
Stabenow) to the bill H.R. 2, to provide for the reform and
continuation of agricultural and other programs of the Department of
Agriculture through fiscal year 2023, and for other purposes; which was
ordered to lie on the table; as follows:

At the appropriate place, insert the following:

SEC. ____. WATERS OF THE UNITED STATES AND NAVIGABLE WATERS.

(a) Waters of the United States Rule 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

[[Page S4646]]

`Waters of the United States' '' (80 Fed. Reg. 37054 (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29, 2015)) is repealed.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 that are used, or are susceptible
to use in the natural and ordinary condition of those waters,
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); and
``(iv) wetlands that 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;
``(ii) subsurface waters, including groundwater or
underground streams;
``(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) 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);
``(vi) prior converted cropland;
``(vii) waste treatment systems, including systems created
in or with impounded waters described in subparagraph (A) and
all features and components of any system designed to
actively or passively retain or reduce or remove pollutants
from wastewater or stormwater, including those features or
components that convey the pollutants into and out of the
system; or
``(viii) 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) Prior converted cropland.--

``(I) In general.--The term `prior converted cropland'
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 not more than 14 consecutive days during the
growing season.
``(II) Inclusion.--The term `prior converted cropland'
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.

``(iii) Relatively permanent, standing, or continuously
flowing bodies of water.--The term `relatively permanent,
standing, or continuously flowing bodies of water' means
waters that stand or have continuous flow for not less than
290 days each year, except in cases of extreme events, such
as a drought.
``(iv) Wetlands.--

``(I) In general.--The term `wetlands' means areas that are
inundated or saturated by surface or groundwater at a
frequency and duration sufficient to support, and that under
normal circumstances does support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
``(II) Inclusion.--The term `wetlands' includes swamps,
marshes, bogs, and similar areas.''.

(c) Jurisdictional Determination.--Title V of the Federal
Water Pollution Control Act (33 U.S.C. 1361 et seq.) is
amended--
(1) by redesignating section 519 (33 U.S.C. 1251 note) as
section 520; and
(2) by inserting after section 518 (33 U.S.C. 1377) the
following:

``SEC. 519. JURISDICTIONAL DETERMINATIONS.

``(a) Definitions.--In this section:
``(1) Affected person.--The term `affected person' means an
applicant for a permit under section 402, 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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