II 

117TH CONGRESS 

1ST SESSION S. 2517 

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 

JULY 28, 2021 

Mr. PAUL (for himself, Mr. RUBIO, and Mr. CRUZ) 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 2021’’. 

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 520 as section 521; 

8 and 

9 (2) by inserting after section 519 the following: 

10 ‘‘SEC. 520. 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 SIGNIFICANT NEXUS

20 TEST.— 

21 ‘‘(1) DEFINITION OF SIGNIFICANT NEXUS

22 TEST.—In this subsection, the term ‘significant 

23 nexus test’ means an analysis to determine whether 

24 a water has a significant nexus (as defined in sub25 section (c) of section 328.3 of title 33, Code of FedVerDate Sep 11 2014 02:43 Aug 03, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2517.IS S2517

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1 eral Regulations (as in effect on August 29, 2015)) 

2 to a water described in paragraphs (1) through (3) 

3 of subsection (a) of that section (as in effect on that 

4 date), or any similar analysis. 

5 ‘‘(2) PROHIBITION.—Notwithstanding any other 

6 provision of law, the Administrator may not use a 

7 significant nexus test to determine Federal jurisdic8 tion over navigable waters and waters of the United 

9 States.’’. 

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

11 amendments made by this section affects or alters any ex12 emption under— 

13 (1) section 402(l) of the Federal Water Pollu14 tion Control Act (33 U.S.C. 1342(l)); or 

15 (2) section 404(f) of the Federal Water Pollu16 tion Control Act (33 U.S.C. 1344(f)). 

17 SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND 

18 GUIDANCE. 

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

20 guidance shall have no force or effect: 

21 (1) The final rule of the Corps of Engineers en22 titled ‘‘Final Rule for Regulatory Programs of the 

23 Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem24 ber 13, 1986)). 


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1 (2) The guidance document entitled ‘‘Clean 

2 Water Act Jurisdiction Following the U.S. Supreme 

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

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

5 2008 (relating to the definition of waters under the 

6 jurisdiction of the Federal Water Pollution Control 

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

8 (3) Any subsequent regulation of or guidance 

9 issued by any Federal agency that defines or inter10 prets the terms ‘‘navigable waters’’ or ‘‘waters of the 

11 United States’’. 

12 (b) PROHIBITION.—The Secretary of the Army, act13 ing through the Chief of Engineers, and the Administrator 

14 of the Environmental Protection Agency shall not promul15 gate any rules or issue any guidance that expands or inter16 prets the definition of navigable waters unless expressly 

17 authorized by Congress. 

18 SEC. 4. STATE REGULATION OF WATER. 

19 Nothing in this Act or the amendments made by this 

20 Act affects, amends, or supersedes— 

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

22 the State; or 

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

24 State nuisance laws (including regulations) relating 

25 to waters in the State. 


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1 SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA2 TIVES. 

3 Section 308 of the Federal Water Pollution Control 

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

5 (a) and inserting the following: 

6 ‘‘(a) IN GENERAL.— 

7 ‘‘(1) ENTRY BY FEDERAL AGENCY.—A rep8 resentative of a Federal agency shall only enter pri9 vate property to collect information about navigable 

10 waters if the owner of that property— 

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

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

13 entry; and 

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

15 from the entry. 

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

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

18 right to be present at the time any data collection 

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

20 SEC. 6. COMPENSATION FOR REGULATORY TAKING. 

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

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

23 United States’’ diminishes the fair market value or eco24 nomic viability of a property, as determined by an inde25 pendent appraiser, the Federal agency issuing the regulaVerDate Sep 11 2014 02:43 Aug 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2517.IS S2517

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1 tion shall pay the affected property owner an amount 

2 equal to twice the value of the loss. 

3 (b) ADMINISTRATION.—Any payment provided under 

4 subsection (a) shall be made from the amounts made avail5 able to the relevant agency head for general operations 

6 of the Federal agency. 

7 (c) APPLICABILITY.—A Federal regulation described 

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

9 date on which each landowner with a claim under this sec10 tion relating to that regulation has been compensated in 

11 accordance with this section. 

Æ 


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