[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5849 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 5849
To amend the Federal Water Pollution Control Act to clarify the
definition of navigable waters, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 3, 2021
Mr. Rouzer introduced the following bill; which was referred to the
Committee on Transportation and Infrastructure
_______________________________________________________________________
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 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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