1.This Act may be cited as the
Defense of Environment and Property
Act of 2012
.
2.
(a)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)
(A)The term navigable waters means the waters
of the United States, including the territorial seas, that are—
(i)navigable-in-fact;
or
(ii)permanent,
standing, or continuously flowing bodies of water that form geographical
features commonly known as streams, oceans, rivers, and lakes that are
connected to waters that are navigable-in-fact.
(B)The
term navigable waters does not include—
(i)waters
that—
(I)do not physically
abut waters described in subparagraph (A); and
(II)lack a continuous
surface water connection to navigable waters;
(ii)man-made or
natural structures or channels—
(I)through which
water flows intermittently or ephemerally; or
(II)that periodically
provide drainage for rainfall; or
(iii)wetlands without
a continuous surface connection to bodies of water that are waters of the
United States.
(C)An activity carried out by the Administrator or the
Corps of Engineers shall not, without explicit State authorization, impinge
upon the traditional and primary power of States over land and water
use.
(D)
(i)Aggregation
of wetlands or waters not described in clauses (i) through (iii) of
subparagraph (B) shall not be used to determine or assert Federal
jurisdiction.
(ii)Wetlands
described in subparagraph (B)(iii) shall not be considered to be under Federal
jurisdiction.
(E)A
jurisdictional determination by the Administrator that would affect the ability
of a State to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources may be appealed by
the State during the 30-day period beginning on the date of the
determination.
(F)Treatment of
ground waterGround water shall—
(i)be
considered to be State water; and
(ii)not be considered
in determining or asserting Federal jurisdiction over isolated or other waters,
including intermittent or ephemeral water
bodies.
.
(b)Prohibition on
use of nexus testNotwithstanding any other provision of law,
the Administrator of the Environmental Protection Agency may not use a
significant nexus test (as used by the Environmental Protection Agency in the
document listed in section 3(a)(3) of this Act) to determine Federal
jurisdiction over navigable waters and waters of the United States (as those
terms are defined and used, respectively, in section 502 of the Federal Water
Pollution Control Act (33 U.S.C. 1362)).
(c)Nothing
in this section or the amendments made by this section affects or alters any
exemption under—
(1)section 402(l) of
the Federal Water Pollution Control Act (33 U.S.C. 1342(l)); or
(2)section 404(f) of
the Federal Water Pollution Control Act (33 U.S.C. 1344(f)).
3.Applicability of
agency regulations and guidance
(a)The following regulations and guidance shall have no
force or effect:
(1)The final rule of the Corps of Engineers
entitled Final Rule for Regulatory Programs of the Corps of
Engineers
(51 Fed. Reg. 41206 (November 13, 1986)).
(2)The proposed rule
of the Environmental Protection Agency entitled Advance Notice of
Proposed Rulemaking on the Clean Water Act Regulatory Definition of
Waters of the United States
(68 Fed. Reg. 1991 (January
15, 2003)).
(3)The guidance
document entitled Clean Water Act Jurisdiction Following the U.S.
Supreme Court’s Decision in Rapanos v. United States
&
Carabell v. United States
(December 2, 2008) (relating
to the definition of waters under the jurisdiction of the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.)).
(4)Any subsequent
regulation of or guidance issued by any Federal agency that defines or
interprets the term navigable waters
.
(b)The
Secretary of the Army, acting through the Chief of Engineers, and the
Administrator of the Environmental Protection Agency shall not promulgate any
rules or issue any guidance that expands or interprets the definition of
navigable waters unless expressly authorized by Congress.
4.State regulation
of waterNothing in this Act
affects, amends, or supersedes—
(1)the right of a
State to regulate waters in the State; or
(2)the duty of a
landowner to adhere to any State nuisance laws (including regulations) relating
to waters in the State.
5.Consent for entry
by Federal representativesSection 308 of the Federal Water Pollution
Control Act (33 U.S.C. 1318) is amended by striking subsection (a) and
inserting the following:
(a)
(1)A representative of a Federal agency shall only enter
private property to collect information about navigable waters if the owner of
that property—
(A)has consented to the entry in
writing;
(B)is notified regarding the date of the
entry; and
(C)is given access to any data collected from
the entry.
(2)If a landowner consents to entry under
paragraph (1), the landowner shall have the right to be present at the time any
data collection on the property of the landowner is carried
out.
.
6.Compensation for
regulatory taking
(a)If a Federal regulation relating to the definition of
navigable waters or waters of the United States diminishes the fair market
value or economic viability of a property, as determined by an independent
appraiser, the Federal agency issuing the regulation shall pay the affected
property owner an amount equal to twice the value of the loss.
(b)Any
payment provided under subsection (a) shall be made from the amounts made
available to the relevant agency head for general operations of the
agency.
(c)A
Federal regulation described in subsection (a) shall have no force or effect
until the date on which each landowner with a claim under this section relating
to that regulation has been compensated in accordance with this section.