II 

116TH CONGRESS 

1ST SESSION S. 376 

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 

FEBRUARY 7, 2019 

Mr. PAUL (for himself, Mr. RUBIO, Mr. CRUZ, and Mr. LEE) 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Defense of Environ5 ment and Property Act of 2019’’. 

6 SEC. 2. NAVIGABLE WATERS. 

7 (a) IN GENERAL.—Section 502 of the Federal Water 

8 Pollution Control Act (33 U.S.C. 1362) is amended by 

9 striking paragraph (7) and inserting the following: 

10 ‘‘(7) NAVIGABLE WATERS.— 


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1 ‘‘(A) IN GENERAL.—The term ‘navigable 

2 waters’ means the waters of the United States, 

3 including the territorial seas, that are— 

4 ‘‘(i) navigable-in-fact; or 

5 ‘‘(ii) permanent, standing, or continu6 ously flowing bodies of water that form 

7 geographical features commonly known as 

8 streams, oceans, rivers, and lakes that are 

9 connected to waters that are navigable-in10 fact. 

11 ‘‘(B) EXCLUSIONS.—The term ‘navigable 

12 waters’ does not include (including by regula13 tion)— 

14 ‘‘(i) waters that— 

15 ‘‘(I) do not physically abut 

16 waters described in subparagraph (A); 

17 and 

18 ‘‘(II) lack a continuous surface 

19 water connection to navigable waters; 

20 ‘‘(ii) man-made or natural structures 

21 or channels— 

22 ‘‘(I) through which water flows 

23 intermittently or ephemerally; or 

24 ‘‘(II) that periodically provide 

25 drainage for rainfall; or 


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1 ‘‘(iii) wetlands without a continuous 

2 surface connection to bodies of water that 

3 are waters of the United States.’’. 

4 (b) JURISDICTION OF EPA AND CORPS OF ENGI5 NEERS.—Title V of the Federal Water Pollution Control 

6 Act (33 U.S.C. 1361 et seq.) is amended— 

7 (1) by redesignating section 519 as section 520; 

8 and 

9 (2) by inserting after section 518 the following: 

10 ‘‘SEC. 519. JURISDICTION OF THE ADMINISTRATOR AND 

11 SECRETARY OF THE ARMY. 

12 ‘‘(a) EPA AND CORPS ACTIVITIES.—An activity car13 ried out by the Administrator or the Corps of Engineers 

14 shall not, without explicit State authorization, impinge 

15 upon the traditional and primary power of States over 

16 land and water use. 

17 ‘‘(b) AGGREGATION; WETLANDS.— 

18 ‘‘(1) AGGREGATION.—Aggregation of wetlands 

19 or waters not described in clauses (i) through (iii) of 

20 section 502(7)(B) shall not be used to determine or 

21 assert Federal jurisdiction. 

22 ‘‘(2) WETLANDS.—Wetlands described in sec23 tion 502(7)(B)(iii) shall not be considered to be 

24 under Federal jurisdiction. 


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1 ‘‘(c) JUDICIAL REVIEW.—If a jurisdictional deter2 mination by the Administrator or the Secretary of the 

3 Army would affect the ability of a State or individual prop4 erty owner to plan the development and use (including res5 toration, preservation, and enhancement) of land and 

6 water resources, the State or individual property owner 

7 may obtain expedited judicial review not later than 30 

8 days after the date on which the determination is made 

9 in a district court of the United States, of appropriate ju10 risdiction and venue, that is located within the State seek11 ing the review. 

12 ‘‘(d) TREATMENT OF GROUND WATER.—Ground 

13 water shall— 

14 ‘‘(1) be considered to be State water; and 

15 ‘‘(2) not be considered in determining or assert16 ing Federal jurisdiction over isolated or other 

17 waters, including intermittent or ephemeral water 

18 bodies. 

19 ‘‘(e) PROHIBITION ON USE OF NEXUS TEST.—Not20 withstanding any other provision of law, the Administrator 

21 may not use a significant nexus test (as used by the Ad22 ministrator in the final rule described in section 3(a)(2) 

23 of the Defense of Environment and Property Act of 2019) 

24 to determine Federal jurisdiction over navigable waters 

25 and waters of the United States.’’. 


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1 (c) APPLICABILITY.—Nothing in this section or the 

2 amendments made by this section affects or alters any ex3 emption under— 

4 (1) section 402(l) of the Federal Water Pollu5 tion Control Act (33 U.S.C. 1342(l)); or 

6 (2) section 404(f) of the Federal Water Pollu7 tion Control Act (33 U.S.C. 1344(f)). 

8 SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND 

9 GUIDANCE. 

10 (a) IN GENERAL.—The following regulations and 

11 guidance shall have no force or effect: 

12 (1) The final rule of the Corps of Engineers en13 titled ‘‘Final Rule for Regulatory Programs of the 

14 Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem15 ber 13, 1986)). 

16 (2) The final rule issued by the Administrator 

17 of the Environmental Protection Agency and the 

18 Secretary of the Army entitled ‘‘Clean Water Rule: 

19 Definition of ‘Waters of the United States’ ’’ (80 

20 Fed. Reg. 37054 (June 29, 2015)). 

21 (3) The guidance document entitled ‘‘Clean 

22 Water Act Jurisdiction Following the U.S. Supreme 

23 Court’s Decision in ‘Rapanos v. United States’ & 

24 ‘Carabell v. United States’ ’’ and dated December 2, 

25 2008 (relating to the definition of waters under the 


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1 jurisdiction of the Federal Water Pollution Control 

2 Act (33 U.S.C. 1251 et seq.)). 

3 (4) Any subsequent regulation of or guidance 

4 issued by any Federal agency that defines or inter5 prets the terms ‘‘navigable waters’’ or ‘‘waters of the 

6 United States’’. 

7 (b) PROHIBITION.—The Secretary of the Army, act8 ing through the Chief of Engineers, and the Administrator 

9 of the Environmental Protection Agency shall not promul10 gate any rules or issue any guidance that expands or inter11 prets the definition of navigable waters unless expressly 

12 authorized by Congress. 

13 SEC. 4. STATE REGULATION OF WATER. 

14 Nothing in this Act or the amendments made by this 

15 Act affects, amends, or supersedes— 

16 (1) the right of a State to regulate waters in 

17 the State; or 

18 (2) the duty of a landowner to adhere to any 

19 State nuisance laws (including regulations) relating 

20 to waters in the State. 

21 SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA22 TIVES. 

23 Section 308 of the Federal Water Pollution Control 

24 Act (33 U.S.C. 1318) is amended by striking subsection 

25 (a) and inserting the following: 


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1 ‘‘(a) IN GENERAL.— 

2 ‘‘(1) ENTRY BY FEDERAL AGENCY.—A rep3 resentative of a Federal agency shall only enter pri4 vate property to collect information about navigable 

5 waters if the owner of that property— 

6 ‘‘(A) has consented to the entry in writing; 

7 ‘‘(B) is notified regarding the date of the 

8 entry; and 

9 ‘‘(C) is given access to any data collected 

10 from the entry. 

11 ‘‘(2) ACCESS.—If a landowner consents to entry 

12 under paragraph (1), the landowner shall have the 

13 right to be present at the time any data collection 

14 on the property of the landowner is carried out.’’. 

15 SEC. 6. COMPENSATION FOR REGULATORY TAKING. 

16 (a) IN GENERAL.—If a Federal regulation relating 

17 to the definition of ‘‘navigable waters’’ or ‘‘waters of the 

18 United States’’ diminishes the fair market value or eco19 nomic viability of a property, as determined by an inde20 pendent appraiser, the Federal agency issuing the regula21 tion shall pay the affected property owner an amount 

22 equal to twice the value of the loss. 

23 (b) ADMINISTRATION.—Any payment provided under 

24 subsection (a) shall be made from the amounts made availVerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376

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1 able to the relevant agency head for general operations 

2 of the Federal agency. 

3 (c) APPLICABILITY.—A Federal regulation described 

4 in subsection (a) shall have no force or effect until the 

5 date on which each landowner with a claim under this sec6 tion relating to that regulation has been compensated in 

7 accordance with this section. 

Æ 


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