[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3760 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3760

    To amend the Federal Water Pollution Control Act to clarify the 
        definition of navigable waters, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 17, 2018

   Mr. Paul (for himself, Mr. Cruz, and Mr. Grassley) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
    To amend the Federal Water Pollution Control Act 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 2018''.

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 (including by regulation)--
                            ``(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) Judicial review.--If a jurisdictional 
                determination by the Administrator or the Secretary of 
                the Army would affect the ability of a State or 
                individual property owner to plan the development and 
                use (including restoration, preservation, and 
                enhancement) of land and water resources, the State or 
                individual property owner 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, 
                that is located within the State seeking the review.
                    ``(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 the Administrator in the final rule described 
                in section 3(a)(2) of the Defense of Environment and 
                Property Act of 2018) to determine Federal jurisdiction 
                over navigable waters and waters of the United 
                States.''.
    (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 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. 37054 (June 29, 2015)).
            (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''' and 
        dated 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 terms ``navigable 
        waters'' or ``waters of the United States''.
    (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 Federal 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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