II 

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. 

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 2012’’. 

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— 

13 ‘‘(i) waters that— 

14 ‘‘(I) do not physically abut 

15 waters described in subparagraph (A); 

16 and 

17 ‘‘(II) lack a continuous surface 

18 water connection to navigable waters; 

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

20 or channels— 

21 ‘‘(I) through which water flows 

22 intermittently or ephemerally; or 

23 ‘‘(II) that periodically provide 

24 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 ‘‘(C) EPA AND CORPS ACTIVITIES.—An 

5 activity carried out by the Administrator or the 

6 Corps of Engineers shall not, without explicit 

7 State authorization, impinge upon the tradi8 tional and primary power of States over land 

9 and water use. 

10 ‘‘(D) AGGREGATION; WETLANDS.— 

11 ‘‘(i) AGGREGATION.—Aggregation of 

12 wetlands or waters not described in clauses 

13 (i) through (iii) of subparagraph (B) shall 

14 not be used to determine or assert Federal 

15 jurisdiction. 

16 ‘‘(ii) WETLANDS.—Wetlands described 

17 in subparagraph (B)(iii) shall not be con18 sidered to be under Federal jurisdiction. 

19 ‘‘(E) APPEALS.—A jurisdictional deter20 mination by the Administrator that would affect 

21 the ability of a State to plan the development 

22 and use (including restoration, preservation, 

23 and enhancement) of land and water resources 

24 may be appealed by the State during the 30-day 


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1 period beginning on the date of the determina2 tion. 

3 ‘‘(F) TREATMENT OF GROUND WATER.— 

4 Ground water shall— 

5 ‘‘(i) be considered to be State water; 

6 and 

7 ‘‘(ii) not be considered in determining 

8 or asserting Federal jurisdiction over iso9 lated or other waters, including intermit10 tent or ephemeral water bodies. 

11 ‘‘(G) PROHIBITION ON USE OF NEXUS

12 TEST.—Notwithstanding any other provision of 

13 law, the Administrator may not use a signifi14 cant nexus test (as used by EPA in the pro15 posed document listed in section 3(a)(1)) to de16 termine Federal jurisdiction over navigable 

17 waters and waters of the United States (as 

18 those terms are defined and used, respectively, 

19 in section 502 of the Federal Water Pollution 

20 Control Act (33 U.S.C. 1362)).’’. 

21 (b) APPLICABILITY.—Nothing in this section or the 

22 amendments made by this section affects or alters any ex23 emption under— 

24 (1) section 402(l) of the Federal Water Pollu25 tion Control Act (33 U.S.C. 1342(l)); or 


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1 (2) section 404(f) of the Federal Water Pollu2 tion Control Act (33 U.S.C. 1344(f)). 

3 SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND 

4 GUIDANCE. 

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

6 guidance shall have no force or effect: 

7 (1) The final rule of the Corps of Engineers en8 titled ‘‘Final Rule for Regulatory Programs of the 

9 Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem10 ber 13, 1986)). 

11 (2) The proposed rule of the Environmental 

12 Protection Agency entitled ‘‘Advance Notice of Pro13 posed Rulemaking on the Clean Water Act Regu14 latory Definition of ‘Waters of the United States’ ’’ 

15 (68 Fed. Reg. 1991 (January 15, 2003)). 

16 (3) The guidance document entitled ‘‘Clean 

17 Water Act Jurisdiction Following the U.S. Supreme 

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

19 ‘Carabell v. United States’ ’’ (December 2, 2008) 

20 (relating to the definition of waters under the juris21 diction of the Federal Water Pollution Control Act 

22 (33 U.S.C. 1251 et seq.)). 

23 (4) Any subsequent regulation of or guidance 

24 issued by any Federal agency that defines or inter25 prets the term ‘‘navigable waters’’. 


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1 (b) PROHIBITION.—The Secretary of the Army, act2 ing through the Chief of Engineers, and the Administrator 

3 of the Environmental Protection Agency shall not promul4 gate any rules or issue any guidance that expands or inter5 prets the definition of navigable waters unless expressly 

6 authorized by Congress. 

7 SEC. 4. STATE REGULATION OF WATER. 

8 Nothing in this Act affects, amends, or supersedes— 

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

10 the State; or 

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

12 State nuisance laws (including regulations) relating 

13 to waters in the State. 

14 SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA15 TIVES. 

16 Section 308 of the Federal Water Pollution Control 

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

18 (a) and inserting the following: 

19 ‘‘(a) IN GENERAL.— 

20 ‘‘(1) ENTRY BY FEDERAL AGENCY.—A rep21 resentative of a Federal agency shall only enter pri22 vate property to collect information about navigable 

23 waters if the owner of that property— 

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


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

2 entry; and 

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

4 from the entry. 

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

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

7 right to be present at the time any data collection 

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

9 SEC. 6. COMPENSATION FOR REGULATORY TAKING. 

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

11 to the definition of navigable waters or waters of the 

12 United States diminishes the fair market value or eco13 nomic viability of a property, as determined by an inde14 pendent appraiser, the Federal agency issuing the regula15 tion shall pay the affected property owner an amount 

16 equal to twice the value of the loss. 

17 (b) ADMINISTRATION.—Any payment provided under 

18 subsection (a) shall be made from the amounts made avail19 able to the relevant agency head for general operations 

20 of the agency. 

21 (c) APPLICABILITY.—A Federal regulation described 

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

23 date on which each landowner with a claim under this secVerDate Mar 15 2010 02:06 Feb 17, 2012 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2122.IS S2122

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1 tion relating to that regulation has been compensated in 

2 accordance with this section. 

Æ 


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