SENATOR RAND PAUL (With Senator Mike Lee) and CONGRESSMAN TOM ROONEY (with Congressman Glenn Thompson) SUBMIT THE FOLLOWING;
THE DEFENSE OF ENVIRONMENT AND PROPERTY ACT
This Bill directly targets the use of "wetlands" as a way of striping personal property rights
Washington, D.C. – U.S. Rep. Tom Rooney (FL-16), Chairman of the House
Agriculture Subcommittee on Livestock, Dairy and Poultry, this week introduced
legislation to protect law-abiding farmers and landowners from reckless, arbitrary
and aggressive enforcement actions by the Environmental Protection Agency
(EPA) and Army Corps of Engineers.
“For many farmers and landowners, recent actions by the EPA and Corps have
engineers have put their fundamental right to private property at stake,” Rooney
said. “The EPA and Corps have unilaterally expanded their own jurisdiction,
giving themselves new authority to regulate private property and spend millions
of dollars to prosecute law-abiding citizens.
“By clearly defining federal water policy and setting firm limits on the regulatory
authority of the EPA, this legislation strikes the right balance between protecting
the environment and preserving the fundamental right to private property.”
The EPA and Army Corps of Engineers spend millions of dollars each year on
“wetlands enforcement,” prosecuting citizens for building or expanding on their
own private property if that property has a wetlands designation. On April 27,
2011 the EPA and Army Corps released a joint guidance document, which
redefined “navigable waters” and asserted federal jurisdiction over “all waters . . .
subject to the ebb and flow of the tide.” This includes canals, ditches and
ephemeral streams, which form when it rains. This is a blatant power grab to
remove “navigability” as a component of federally regulated water bodies and
assert government control over all U.S. waters.
The Defense of Environment and Property Act, HR 4304, would restore common
sense to federal water policy and protect private property rights by:
• Redefining “navigable waters” as “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
• Excluding ephemeral or intermittent streams, which sometimes form when
rain falls, from federal jurisdiction.
• Prohibiting the EPA and the Army Corps from regulating or redefining
“navigable waters” without Congressional authorization.
• Reasserting the primary authority of states over the land and water within
• Forbidding federal agents from entering private property without the
express consent of the landowner.
• Requiring the government to pay double the value of the land to any
landowner whose property value is diminished by a wetlands designation.
The Rooney legislation is a House companion to S. 2122. Representative Glenn
Thompson (PA-05) and Representative Raul Labrador (ID-01) are original
2D SESSION S. 2122
To clarify the definition of navigable waters, and for other purposes.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 16, 2012
Mr. PAUL (for himself and Mr. LEE) introduced the following bill; which was
read twice and referred to the Committee on Environment and Public Works
To clarify the definition of navigable waters, and for other
1 Be it enacted by the Senate and House of Representa2
tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘Defense of Environ5
ment and Property Act of 2012’’.
6 SEC. 2. NAVIGABLE WATERS.
7 (a) IN GENERAL.—Section 502 of the Federal Water
8 Pollution Control Act (33 U.S.C. 1362) is amended by
9 striking paragraph (7) and inserting the following:
10 ‘‘(7) NAVIGABLE WATERS.--
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1 ‘‘(A) IN GENERAL.—The term ‘navigable
2 waters’ means the waters of the United States,
3 including the territorial seas, that are--
4 ‘‘(i) navigable-in-fact; or
5 ‘‘(ii) permanent, standing, or continu6
ously flowing bodies of water that form
7 geographical features commonly known as
8 streams, oceans, rivers, and lakes that are
9 connected to waters that are navigable-in10
11 ‘‘(B) EXCLUSIONS.—The term ‘navigable
12 waters’ does not include--
13 ‘‘(i) waters that--
14 ‘‘(I) do not physically abut
15 waters described in subparagraph (A);
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
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1 ‘‘(iii) wetlands without a continuous
2 surface connection to bodies of water that
3 are waters of the United States.
4 ‘‘(C) EPA AND CORPS ACTIVITIES.—An
5 activity carried out by the Administrator or the
6 Corps of Engineers shall not, without explicit
7 State authorization, impinge upon the tradi8
tional and primary power of States over land
9 and water use.
10 ‘‘(D) AGGREGATION; WETLANDS.--
11 ‘‘(i) AGGREGATION.—Aggregation of
12 wetlands or waters not described in clauses
13 (i) through (iii) of subparagraph (B) shall
14 not be used to determine or assert Federal
16 ‘‘(ii) WETLANDS.—Wetlands described
17 in subparagraph (B)(iii) shall not be con18
sidered to be under Federal jurisdiction.
19 ‘‘(E) APPEALS.—A jurisdictional deter20
mination by the Administrator that would affect
21 the ability of a State to plan the development
22 and use (including restoration, preservation,
23 and enhancement) of land and water resources
24 may be appealed by the State during the 30-day
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1 period beginning on the date of the determina2
3 ‘‘(F) TREATMENT OF GROUND WATER.--
4 Ground water shall--
5 ‘‘(i) be considered to be State water;
7 ‘‘(ii) not be considered in determining
8 or asserting Federal jurisdiction over iso9
lated or other waters, including intermit10
tent or ephemeral water bodies.
11 ‘‘(G) PROHIBITION ON USE OF NEXUS
12 TEST.—Notwithstanding any other provision of
13 law, the Administrator may not use a signifi14
cant nexus test (as used by EPA in the pro15
posed document listed in section 3(a)(1)) to de16
termine Federal jurisdiction over navigable
17 waters and waters of the United States (as
18 those terms are defined and used, respectively,
19 in section 502 of the Federal Water Pollution
20 Control Act (33 U.S.C. 1362)).’’.
21 (b) APPLICABILITY.—Nothing in this section or the
22 amendments made by this section affects or alters any ex23
24 (1) section 402(l) of the Federal Water Pollu25
tion Control Act (33 U.S.C. 1342(l)); or
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1 (2) section 404(f) of the Federal Water Pollu2
tion Control Act (33 U.S.C. 1344(f)).
3 SEC. 3. APPLICABILITY OF AGENCY REGULATIONS AND
5 (a) IN GENERAL.—The following regulations and
6 guidance shall have no force or effect:
7 (1) The final rule of the Corps of Engineers en8
titled ‘‘Final Rule for Regulatory Programs of the
9 Corps of Engineers’’ (51 Fed. Reg. 41206 (Novem10
ber 13, 1986)).
11 (2) The proposed rule of the Environmental
12 Protection Agency entitled ‘‘Advance Notice of Pro13
posed Rulemaking on the Clean Water Act Regu14
latory Definition of ‘Waters of the United States’ ’’
15 (68 Fed. Reg. 1991 (January 15, 2003)).
16 (3) The guidance document entitled ‘‘Clean
17 Water Act Jurisdiction Following the U.S. Supreme
18 Court’s Decision in ‘Rapanos v. United States’ &
19 ‘Carabell v. United States’ ’’ (December 2, 2008)
20 (relating to the definition of waters under the juris21
diction of the Federal Water Pollution Control Act
22 (33 U.S.C. 1251 et seq.)).
23 (4) Any subsequent regulation of or guidance
24 issued by any Federal agency that defines or inter25
prets the term ‘‘navigable waters’’.
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1 (b) PROHIBITION.—The Secretary of the Army, act2
ing through the Chief of Engineers, and the Administrator
3 of the Environmental Protection Agency shall not promul4
gate any rules or issue any guidance that expands or inter5
prets the definition of navigable waters unless expressly
6 authorized by Congress.
7 SEC. 4. STATE REGULATION OF WATER.
8 Nothing in this Act affects, amends, or supersedes--
9 (1) the right of a State to regulate waters in
10 the State; or
11 (2) the duty of a landowner to adhere to any
12 State nuisance laws (including regulations) relating
13 to waters in the State.
14 SEC. 5. CONSENT FOR ENTRY BY FEDERAL REPRESENTA15
16 Section 308 of the Federal Water Pollution Control
17 Act (33 U.S.C. 1318) is amended by striking subsection
18 (a) and inserting the following:
19 ‘‘(a) IN GENERAL.--
20 ‘‘(1) ENTRY BY FEDERAL AGENCY.—A rep21
resentative of a Federal agency shall only enter pri22
vate property to collect information about navigable
23 waters if the owner of that property--
24 ‘‘(A) has consented to the entry in writing;
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1 ‘‘(B) is notified regarding the date of the
2 entry; and
3 ‘‘(C) is given access to any data collected
4 from the entry.
5 ‘‘(2) ACCESS.—If a landowner consents to entry
6 under paragraph (1), the landowner shall have the
7 right to be present at the time any data collection
8 on the property of the landowner is carried out.’’.
9 SEC. 6. COMPENSATION FOR REGULATORY TAKING.
10 (a) IN GENERAL.—If a Federal regulation relating
11 to the definition of navigable waters or waters of the
12 United States diminishes the fair market value or eco13
nomic viability of a property, as determined by an inde14
pendent appraiser, the Federal agency issuing the regula15
tion shall pay the affected property owner an amount
16 equal to twice the value of the loss.
17 (b) ADMINISTRATION.—Any payment provided under
18 subsection (a) shall be made from the amounts made avail19
able to the relevant agency head for general operations
20 of the agency.
21 (c) APPLICABILITY.—A Federal regulation described
22 in subsection (a) shall have no force or effect until the
23 date on which each landowner with a claim under this sec-
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1 tion relating to that regulation has been compensated in
2 accordance with this section.