[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2122 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 2122
To clarify the definition of navigable waters, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 16, 2012
Mr. Paul (for himself and Mr. Lee) introduced the following bill; which
was read twice and referred to the Committee on Environment and Public
Works
_______________________________________________________________________
A BILL
To clarify 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 ``Defense of Environment and Property
Act of 2012''.
SEC. 2. NAVIGABLE WATERS.
(a) In General.--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 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) Exclusions.--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) EPA and corps activities.--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) Aggregation; wetlands.--
``(i) Aggregation.--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.--Wetlands described in
subparagraph (B)(iii) shall not be considered
to be under Federal jurisdiction.
``(E) Appeals.--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 water.--Ground 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.
``(G) Prohibition on use of nexus test.--
Notwithstanding any other provision of law, the
Administrator may not use a significant nexus test (as
used by EPA in the proposed document listed in section
3(a)(1)) 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)).''.
(b) Applicability.--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)).
SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND GUIDANCE.
(a) In General.--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) Prohibition.--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.
SEC. 4. STATE REGULATION OF WATER.
Nothing 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.
SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTATIVES.
Section 308 of the Federal Water Pollution Control Act (33 U.S.C.
1318) is amended by striking subsection (a) and inserting the
following:
``(a) In General.--
``(1) Entry by federal agency.--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) Access.--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.''.
SEC. 6. COMPENSATION FOR REGULATORY TAKING.
(a) In General.--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) Administration.--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) Applicability.--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.
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