I 
112TH CONGRESS 
2D SESSION 
H. R. 4304 
To clarify the definition of navigable waters, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MARCH 29, 2012 
Mr. ROONEY (for himself, Mr. THOMPSON of Pennsylvania, and Mr. LAB-
RADOR) introduced the following bill; which was referred to the Com-
mittee on Transportation and Infrastructure 
A BILL 
To clarify the definition of navigable waters, and for other 
purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Defense of Environ-
ment and Property Act of 2012’’. 
SEC. 2. NAVIGABLE WATERS. 
(a) IN GENERAL.—Section 502 of the Federal Water 
Pollution Control Act (33 U.S.C. 1362) is amended by 
striking paragraph (7) and inserting the following: 
‘‘(7) NAVIGABLE WATERS.— 
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‘‘(iii) wetlands without a continuous 
surface connection to bodies of water that 
are waters of the United States. 
‘‘(C) 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 tradi-
tional and primary power of States over land 
and water use. 
‘‘(D) AGGREGATION; WETLANDS.— 
‘‘(i) AGGREGATION.—Aggregation of 
wetlands or waters not described in clauses 
(i) through (iii) of subparagraph (B) shall 
not be used to determine or assert Federal 
jurisdiction. 
‘‘(ii) WETLANDS.—Wetlands described 
in subparagraph (B)(iii) shall not be con-
sidered to be under Federal jurisdiction. 
‘‘(E) APPEALS.—A jurisdictional deter-
mination by the Administrator that would affect 
the ability of a State to plan the development 
and use (including restoration, preservation, 
and enhancement) of land and water resources 
may be appealed by the State during the 30-day 
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period beginning on the date of the determina-
tion. 
‘‘(F) TREATMENT OF GROUND WATER.— 
Ground water shall— 
‘‘(i) be considered to be State water; 
and 
‘‘(ii) not be considered in determining 
or asserting Federal jurisdiction over iso-
lated or other waters, including intermit-
tent or ephemeral water bodies.’’. 
(b) PROHIBITION ON USE OF NEXUS TEST.—Not-
withstanding any other provision of law, the Administrator 
of the Environmental Protection Agency may not use a 
significant nexus test (as used by the Environmental Pro-
tection Agency in the document listed in section 3(a)(3) 
of this Act) to determine Federal jurisdiction over navi-
gable waters and waters of the United States (as those 
terms are defined and used, respectively, in section 502 
of the Federal Water Pollution Control Act (33 U.S.C. 
1362)). 
(c) APPLICABILITY.—Nothing in this section or the 
amendments made by this section affects or alters any ex-
emption under— 
(1) section 402(l) of the Federal Water Pollu-
tion Control Act (33 U.S.C. 1342(l)); or 
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(2) section 404(f) of the Federal Water Pollu-
tion Control Act (33 U.S.C. 1344(f)). 
SEC. 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 en-
titled ‘‘Final Rule for Regulatory Programs of the 
Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem-
ber 13, 1986)). 
(2) The proposed rule of the Environmental 
Protection Agency entitled ‘‘Advance Notice of Pro-
posed Rulemaking on the Clean Water Act Regu-
latory Definition of ‘Waters of the United States’ ’’ 
(68 Fed. Reg. 1991 (January 15, 2003)). 
(3) 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’ ’’ (December 2, 2008) 
(relating to the definition of waters under the juris-
diction of the Federal Water Pollution Control Act 
(33 U.S.C. 1251 et seq.)). 
(4) Any subsequent regulation of or guidance 
issued by any Federal agency that defines or inter-
prets the term ‘‘navigable waters’’. 
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(b) PROHIBITION.—The Secretary of the Army, act-
ing through the Chief of Engineers, and the Administrator 
of the Environmental Protection Agency shall not promul-
gate any rules or issue any guidance that expands or inter-
prets the definition of navigable waters unless expressly 
authorized by Congress. 
SEC. 4. STATE REGULATION OF WATER. 
Nothing in 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. 
SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA-
TIVES. 
Section 308 of the Federal Water Pollution Control 
Act (33 U.S.C. 1318) is amended by striking subsection 
(a) and inserting the following: 
‘‘(a) IN GENERAL.— 
‘‘(1) ENTRY
BY
FEDERAL
AGENCY.—A rep-
resentative of a Federal agency shall only enter pri-
vate property to collect information about navigable 
waters if the owner of that property— 
‘‘(A) has consented to the entry in writing; 
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‘‘(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.’’. 
SEC. 6. COMPENSATION FOR REGULATORY TAKING. 
(a) IN GENERAL.—If a Federal regulation relating 
to the definition of navigable waters or waters of the 
United States diminishes the fair market value or eco-
nomic viability of a property, as determined by an inde-
pendent appraiser, the Federal agency issuing the regula-
tion shall pay the affected property owner an amount 
equal to twice the value of the loss. 
(b) ADMINISTRATION.—Any payment provided under 
subsection (a) shall be made from the amounts made avail-
able to the relevant agency head for general operations 
of the 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 sec-
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tion relating to that regulation has been compensated in 
accordance with this section. 
Æ 
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