Defense of Environment and Property Act of 2019

II 116TH CONGRESS 1ST SESSION S. 376 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 FEBRUARY 7, 2019 Mr. PAUL (for himself, Mr. RUBIO, Mr. CRUZ, and Mr. LEE) introduced the following bill; which was read twice and referred to the Committee on En- vironment and Public Works A BILL 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Defense of Environ- 4 ment and Property Act of 2019’’. 5 SEC. 2. NAVIGABLE WATERS. 6 (a) IN GENERAL.—Section 502 of the Federal Water 7 Pollution Control Act (33 U.S.C. 1362) is amended by 8 striking paragraph (7) and inserting the following: 9 ‘‘(7) NAVIGABLE WATERS.— 10 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 376 IS ‘‘(A) IN GENERAL.—The term ‘navigable 1 waters’ means the waters of the United States, 2 including the territorial seas, that are— 3 ‘‘(i) navigable-in-fact; or 4 ‘‘(ii) permanent, standing, or continu- 5 ously flowing bodies of water that form 6 geographical features commonly known as 7 streams, oceans, rivers, and lakes that are 8 connected to waters that are navigable-in- 9 fact. 10 ‘‘(B) EXCLUSIONS.—The term ‘navigable 11 waters’ does not include (including by regula- 12 tion)— 13 ‘‘(i) waters that— 14 ‘‘(I) do not physically abut 15 waters described in subparagraph (A); 16 and 17 ‘‘(II) lack a continuous surface 18 water connection to navigable waters; 19 ‘‘(ii) man-made or natural structures 20 or channels— 21 ‘‘(I) through which water flows 22 intermittently or ephemerally; or 23 ‘‘(II) that periodically provide 24 drainage for rainfall; or 25 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 376 IS ‘‘(iii) wetlands without a continuous 1 surface connection to bodies of water that 2 are waters of the United States.’’. 3 (b) JURISDICTION OF EPA AND CORPS OF ENGI- 4 NEERS.—Title V of the Federal Water Pollution Control 5 Act (33 U.S.C. 1361 et seq.) is amended— 6 (1) by redesignating section 519 as section 520; 7 and 8 (2) by inserting after section 518 the following: 9 ‘‘SEC. 519. JURISDICTION OF THE ADMINISTRATOR AND 10 SECRETARY OF THE ARMY. 11 ‘‘(a) EPA AND CORPS ACTIVITIES.—An activity car- 12 ried out by the Administrator or the Corps of Engineers 13 shall not, without explicit State authorization, impinge 14 upon the traditional and primary power of States over 15 land and water use. 16 ‘‘(b) AGGREGATION; WETLANDS.— 17 ‘‘(1) AGGREGATION.—Aggregation of wetlands 18 or waters not described in clauses (i) through (iii) of 19 section 502(7)(B) shall not be used to determine or 20 assert Federal jurisdiction. 21 ‘‘(2) WETLANDS.—Wetlands described in sec- 22 tion 502(7)(B)(iii) shall not be considered to be 23 under Federal jurisdiction. 24 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 376 IS ‘‘(c) JUDICIAL REVIEW.—If a jurisdictional deter- 1 mination by the Administrator or the Secretary of the 2 Army would affect the ability of a State or individual prop- 3 erty owner to plan the development and use (including res- 4 toration, preservation, and enhancement) of land and 5 water resources, the State or individual property owner 6 may obtain expedited judicial review not later than 30 7 days after the date on which the determination is made 8 in a district court of the United States, of appropriate ju- 9 risdiction and venue, that is located within the State seek- 10 ing the review. 11 ‘‘(d) TREATMENT OF GROUND WATER.—Ground 12 water shall— 13 ‘‘(1) be considered to be State water; and 14 ‘‘(2) not be considered in determining or assert- 15 ing Federal jurisdiction over isolated or other 16 waters, including intermittent or ephemeral water 17 bodies. 18 ‘‘(e) PROHIBITION ON USE OF NEXUS TEST.—Not- 19 withstanding any other provision of law, the Administrator 20 may not use a significant nexus test (as used by the Ad- 21 ministrator in the final rule described in section 3(a)(2) 22 of the Defense of Environment and Property Act of 2019) 23 to determine Federal jurisdiction over navigable waters 24 and waters of the United States.’’. 25 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 376 IS (c) APPLICABILITY.—Nothing in this section or the 1 amendments made by this section affects or alters any ex- 2 emption under— 3 (1) section 402(l) of the Federal Water Pollu- 4 tion Control Act (33 U.S.C. 1342(l)); or 5 (2) section 404(f) of the Federal Water Pollu- 6 tion Control Act (33 U.S.C. 1344(f)). 7 SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND 8 GUIDANCE. 9 (a) IN GENERAL.—The following regulations and 10 guidance shall have no force or effect: 11 (1) The final rule of the Corps of Engineers en- 12 titled ‘‘Final Rule for Regulatory Programs of the 13 Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem- 14 ber 13, 1986)). 15 (2) The final rule issued by the Administrator 16 of the Environmental Protection Agency and the 17 Secretary of the Army entitled ‘‘Clean Water Rule: 18 Definition of ‘Waters of the United States’ ’’ (80 19 Fed. Reg. 37054 (June 29, 2015)). 20 (3) The guidance document entitled ‘‘Clean 21 Water Act Jurisdiction Following the U.S. Supreme 22 Court’s Decision in ‘Rapanos v. United States’ & 23 ‘Carabell v. United States’ ’’ and dated December 2, 24 2008 (relating to the definition of waters under the 25 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 376 IS jurisdiction of the Federal Water Pollution Control 1 Act (33 U.S.C. 1251 et seq.)). 2 (4) Any subsequent regulation of or guidance 3 issued by any Federal agency that defines or inter- 4 prets the terms ‘‘navigable waters’’ or ‘‘waters of the 5 United States’’. 6 (b) PROHIBITION.—The Secretary of the Army, act- 7 ing through the Chief of Engineers, and the Administrator 8 of the Environmental Protection Agency shall not promul- 9 gate any rules or issue any guidance that expands or inter- 10 prets the definition of navigable waters unless expressly 11 authorized by Congress. 12 SEC. 4. STATE REGULATION OF WATER. 13 Nothing in this Act or the amendments made by this 14 Act affects, amends, or supersedes— 15 (1) the right of a State to regulate waters in 16 the State; or 17 (2) the duty of a landowner to adhere to any 18 State nuisance laws (including regulations) relating 19 to waters in the State. 20 SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA- 21 TIVES. 22 Section 308 of the Federal Water Pollution Control 23 Act (33 U.S.C. 1318) is amended by striking subsection 24 (a) and inserting the following: 25 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 376 IS ‘‘(a) IN GENERAL.— 1 ‘‘(1) ENTRY BY FEDERAL AGENCY.—A rep- 2 resentative of a Federal agency shall only enter pri- 3 vate property to collect information about navigable 4 waters if the owner of that property— 5 ‘‘(A) has consented to the entry in writing; 6 ‘‘(B) is notified regarding the date of the 7 entry; and 8 ‘‘(C) is given access to any data collected 9 from the entry. 10 ‘‘(2) ACCESS.—If a landowner consents to entry 11 under paragraph (1), the landowner shall have the 12 right to be present at the time any data collection 13 on the property of the landowner is carried out.’’. 14 SEC. 6. COMPENSATION FOR REGULATORY TAKING. 15 (a) IN GENERAL.—If a Federal regulation relating 16 to the definition of ‘‘navigable waters’’ or ‘‘waters of the 17 United States’’ diminishes the fair market value or eco- 18 nomic viability of a property, as determined by an inde- 19 pendent appraiser, the Federal agency issuing the regula- 20 tion shall pay the affected property owner an amount 21 equal to twice the value of the loss. 22 (b) ADMINISTRATION.—Any payment provided under 23 subsection (a) shall be made from the amounts made avail- 24 VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 376 IS able to the relevant agency head for general operations 1 of the Federal agency. 2 (c) APPLICABILITY.—A Federal regulation described 3 in subsection (a) shall have no force or effect until the 4 date on which each landowner with a claim under this sec- 5 tion relating to that regulation has been compensated in 6 accordance with this section. 7 Æ VerDate Sep 11 2014 01:10 Feb 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S376.IS S376 pamtmann on DSKBFK8HB2PROD with BILLS