[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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