Defense of Environment and Property Act of 2021

To amend the Federal Water Pollution Control Act to clarify the definition of navigable waters, and for other purposes. 1. Short title This Act may be cited as the Defense of Environment and Property Act of 2021 2. Navigable waters (a) In general Section 502 of the Federal Water Pollution Control Act ( 33 U.S.C. 1362 (7) Navigable waters (A) In general The term navigable waters (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 (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. . (b) Jurisdiction of EPA and Corps of Engineers Title V of the Federal Water Pollution Control Act ( 33 U.S.C. 1361 et seq. (1) by redesignating section 520 as section 521; and (2) by inserting after section 519 the following: 520. Jurisdiction of the Administrator and Secretary of the Army (a) 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. (b) Aggregation; wetlands (1) Aggregation Aggregation of wetlands or waters not described in clauses (i) through (iii) of section 502(7)(B) shall not be used to determine or assert Federal jurisdiction. (2) Wetlands Wetlands described in section 502(7)(B)(iii) shall not be considered to be under Federal jurisdiction. (c) 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. (d) Treatment of ground water Ground water shall— (1) be considered to be State water; and (2) not be considered in determining or asserting Federal jurisdiction over isolated or other waters, including intermittent or ephemeral water bodies. (e) Prohibition on use of significant nexus test (1) Definition of significant nexus test In this subsection, the term significant nexus test (2) Prohibition Notwithstanding any other provision of law, the Administrator may not use a significant nexus test to determine Federal jurisdiction over navigable waters and waters of the United States. . (c) 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) (2) section 404(f) of the Federal Water Pollution Control Act ( 33 U.S.C. 1344(f) 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 (2) 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 33 U.S.C. 1251 et seq. (3) Any subsequent regulation of or guidance issued by any Federal agency that defines or interprets the terms navigable waters 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. 4. State regulation of water Nothing in this Act or the amendments made by 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. 5. Consent for entry by Federal representatives Section 308 of the Federal Water Pollution Control Act ( 33 U.S.C. 1318 (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. . 6. Compensation for regulatory taking (a) In general If a Federal regulation relating to the definition of navigable waters waters of the United States (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.

Summary: Defense of Environment and Property Act of 2021 This bill revises the scope, jurisdiction, and requirements of the Clean Water Act. It specifies the types of water bodies that are navigable waters and therefore receive protection. It defines navigable waters as waters of the United States that are (1) navigable-in-fact; or (2) 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. The bill limits the jurisdiction of the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) over such waters, including by stating that ground water is under the jurisdiction of states. The bill prohibits the EPA from using a significant nexus test to determine federal jurisdiction over navigable waters and waters of the United States. The bill nullifies the Migratory Bird rule and a 2008 guidance document about the definition of waters under the jurisdiction of the Clean Water Act. The bill prohibits the EPA and the Corps from issuing new rules or guidance that expands or interprets the definition of navigable waters unless expressly authorized by Congress. Federal agencies must obtain consent from private property owners to collect information about navigable waters on their land. If regulations relating to navigable waters or waters of United States diminish the value of a property, then the federal government must pay the property owner an amount equal to twice the value of the loss.