Defense of Environment and Property Act of 2021
Bill: S.2517 | Sponsor: Sen. Paul, Rand (R-KY)
Policy area: Environmental Protection

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.

To amend the Federal Water Pollution Control Act to clarify the 
        definition of navigable waters, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defense of Environment and Property 
Act of 2021''.

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.--
                    ``(A) In general.--The term `navigable waters' 
                means the waters of the United States, including the 
                territorial seas, that are--
                            ``(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' does 
                not include (including by regulation)--
                            ``(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.) is 
amended--
            (1) by redesignating section 520 as section 521; and
            (2) by inserting after section 519 the following:

``SEC. 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' means an analysis 
        to determine whether a water has a significant nexus (as 
        defined in subsection (c) of section 328.3 of title 33, Code of 
        Federal Regulations (as in effect on August 29, 2015)) to a 
        water described in paragraphs (1) through (3) of subsection (a) 
        of that section (as in effect on that date), or any similar 
        analysis.
            ``(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)); or
            (2) section 404(f) of the Federal Water Pollution 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 entitled 
        ``Final Rule for Regulatory Programs of the Corps of 
        Engineers'' (51 Fed. Reg. 41206 (November 13, 1986)).
            (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''' and 
        dated December 2, 2008 (relating to the definition of waters 
        under the jurisdiction of the Federal Water Pollution Control 
        Act (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'' or ``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.

SEC. 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.

SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTATIVES.

    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 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.''.

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 economic viability of a property, as 
determined by an independent appraiser, the Federal agency issuing the 
regulation 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 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.
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