II 

113TH CONGRESS 

1ST SESSION S. 890 

To clarify the definition of navigable waters, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 7, 2013 

Mr. PAUL (for himself, Mr. LEE, Mr. RUBIO, Mr. VITTER, and Mr. MCCONNELL) 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 2013’’. 

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 ‘‘(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) JUDICIAL REVIEW.—If a jurisdic20 tional determination by the Administrator or 

21 the Secretary of the Army would affect the abil22 ity of a State or individual property owner to 

23 plan the development and use (including res24 toration, preservation, and enhancement) of 

25 land and water resources, the State or indiVerDate Mar 15 2010 23:33 May 08, 2013 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S890.IS S890

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1 vidual property owner may obtain expedited ju2 dicial review not later than 30 days after the 

3 date on which the determination is made in a 

4 district court of the United States, of appro5 priate jurisdiction and venue, that is located 

6 within the State seeking the review. 

7 ‘‘(F) TREATMENT OF GROUND WATER.— 

8 Ground water shall— 

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

10 and 

11 ‘‘(ii) not be considered in determining 

12 or asserting Federal jurisdiction over iso13 lated or other waters, including intermit14 tent or ephemeral water bodies. 

15 ‘‘(G) PROHIBITION ON USE OF NEXUS

16 TEST.—Notwithstanding any other provision of 

17 law, the Administrator may not use a signifi18 cant nexus test (as used by EPA in the pro19 posed document listed in section 3(a)(1)) to de20 termine Federal jurisdiction over navigable 

21 waters and waters of the United States.’’. 

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

23 amendments made by this section affects or alters any ex24 emption under— 


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1 (1) section 402(l) of the Federal Water Pollu2 tion Control Act (33 U.S.C. 1342(l)); or 

3 (2) section 404(f) of the Federal Water Pollu4 tion Control Act (33 U.S.C. 1344(f)). 

5 SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND 

6 GUIDANCE. 

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

8 guidance shall have no force or effect: 

9 (1) The final rule of the Corps of Engineers en10 titled ‘‘Final Rule for Regulatory Programs of the 

11 Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem12 ber 13, 1986)). 

13 (2) The proposed rule of the Environmental 

14 Protection Agency entitled ‘‘Advance Notice of Pro15 posed Rulemaking on the Clean Water Act Regu16 latory Definition of ‘Waters of the United States’ ’’ 

17 (68 Fed. Reg. 1991 (January 15, 2003)). 

18 (3) The guidance document entitled ‘‘Clean 

19 Water Act Jurisdiction Following the U.S. Supreme 

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

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

22 (relating to the definition of waters under the juris23 diction of the Federal Water Pollution Control Act 

24 (33 U.S.C. 1251 et seq.)). 


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1 (4) Any subsequent regulation of or guidance 

2 issued by any Federal agency that defines or inter3 prets the term ‘‘navigable waters’’. 

4 (b) PROHIBITION.—The Secretary of the Army, act5 ing through the Chief of Engineers, and the Administrator 

6 of the Environmental Protection Agency shall not promul7 gate any rules or issue any guidance that expands or inter8 prets the definition of navigable waters unless expressly 

9 authorized by Congress. 

10 SEC. 4. STATE REGULATION OF WATER. 

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

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

13 the State; or 

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

15 State nuisance laws (including regulations) relating 

16 to waters in the State. 

17 SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA18 TIVES. 

19 Section 308 of the Federal Water Pollution Control 

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

21 (a) and inserting the following: 

22 ‘‘(a) IN GENERAL.— 

23 ‘‘(1) ENTRY BY FEDERAL AGENCY.—A rep24 resentative of a Federal agency shall only enter priVerDate Mar 15 2010 23:33 May 08, 2013 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S890.IS S890

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1 vate property to collect information about navigable 

2 waters if the owner of that property— 

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

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

5 entry; and 

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

7 from the entry. 

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

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

10 right to be present at the time any data collection 

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

12 SEC. 6. COMPENSATION FOR REGULATORY TAKING. 

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

14 to the definition of navigable waters or waters of the 

15 United States diminishes the fair market value or eco16 nomic viability of a property, as determined by an inde17 pendent appraiser, the Federal agency issuing the regula18 tion shall pay the affected property owner an amount 

19 equal to twice the value of the loss. 

20 (b) ADMINISTRATION.—Any payment provided under 

21 subsection (a) shall be made from the amounts made avail22 able to the relevant agency head for general operations 

23 of the agency. 

24 (c) APPLICABILITY.—A Federal regulation described 

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


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1 date on which each landowner with a claim under this sec2 tion relating to that regulation has been compensated in 

3 accordance with this section. 

Æ 


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