I

104TH CONGRESS

1ST SESSION H. R. 1268

To amend the Federal Water Pollution Control Act to establish a comprehensive program for conserving and managing wetlands in the United States,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 21, 1995

Mr. ENGLISH of Pennsylvania 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 establish a comprehensive program for conserving and managing wetlands in the United States, and for other purposes.

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 ‘‘Comprehensive Wet5 lands Conservation and Management Act of 1995’’.

6 SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

7 (a) FINDINGS.—Congress finds that—
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1 (1) wetlands play an integral role in maintain2 ing the quality of life through material contributions

3 to our national economy, food supply, water supply

4 and quality, flood control, and fish, wildlife, and

5 plant resources, and thus to the health, safety,

6 recreation and economic well-being of citizens

7 throughout the Nation;

8 (2) wetlands serve important ecological and nat9 ural resource functions, such as providing essential

10 nesting and feeding habitat for waterfowl, other

11 wildlife, and many rare and endangered species, fish12 eries habitat, the enhancement of water quality, and

13 natural flood control;

14 (3) much of the Nation’s resource has sustained

15 significant degradation, resulting in the need for ef16 fective programs to limit the loss of ecologically sig17 nificant wetlands and to provide for long-term res18 toration and enhancement of the wetlands resource

19 base;

20 (4) most of the loss of wetlands in coastal Lou21 isiana is not attributable to human activity;

22 (5) because 75 percent of the Nation’s wetlands

23 in the lower 48 States are privately owned and be24 cause the majority of the Nation’s population lives

25 in or near wetlands areas, an effective wetlands con-
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1 servation and management program must reflect a

2 balanced approach that conserves and enhances im3 portant wetlands values and functions while observ4 ing private property rights, recognizing the need for

5 essential public infrastructure, such as highways,

6 ports, airports, sewer system, and public water sup7 ply systems and providing the opportunity for sus8 tained economic growth;

9 (6) while wetlands provide many varied eco10 nomic and environmental benefits, they also present

11 health risks in some instances where they act as

12 breeder grounds for insects that are carriers of

13 human and animal diseases; and

14 (7) the Federal permit program established

15 under section 404 of the Federal Water Pollution

16 Control Act was not originally conceived as a wet17 lands regulatory program and is insufficient to en18 sure that the Nation’s wetlands resource base will be

19 conserved and managed in a fair and environ20 mentally sound manner.

21 (b) PURPOSE.—The purpose of this Act is to estab22 lish a new Federal wetlands regulatory program to—

23 (1) assert Federal regulatory jurisdiction over a

24 broad category of specifically identified activities

25 that result in the degradation or loss of wetlands;
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1 (2) account for variations in wetlands values or

2 functions in determining the character and extent of

3 regulation of activities occurring in wetlands areas;

4 (3) provide sufficient regulatory incentives for

5 conservation, restoration, or enhancement activities;

6 (4) encourage conservation of resources on an

7 ecosystem basis to the fullest extent practicable; and

8 (5) balance public and private interests in de9 termining the conditions under which activity in wet10 lands areas may occur.

11 SEC. 3. WETLANDS CONSERVATION AND MANAGEMENT.

12 Title IV of the Federal Water Pollution Control Act

13 (33 U.S.C. 1341 et seq.) is amended by striking section

14 404 and inserting the following new section:

15 ‘‘SEC 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WA16 TERS OF THE UNITED STATES.

17 ‘‘(a) PROHIBITED ACTIVITIES.—(1) No person shall

18 undertake an activity in wetlands or waters of the United

19 States as described in paragraph (2) of this subsection un20 less such activity is undertaken pursuant to a permit is21 sued by the Secretary or is otherwise authorized under

22 this section.

23 ‘‘(2) For purposes of this section, the term ‘activity

24 in wetlands or waters of the United States’ means—
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1 ‘‘(A) the discharge of dredged or fill material

2 into waters of the United States, including wetlands

3 at a specific disposal site; or

4 ‘‘(B) the draining, channelization, excavation,

5 or flooding of wetlands, construction of structures in

6 and diversion of water from wetlands or the conduct

7 of any other activity which adversely effects wet8 lands.

9 ‘‘(3) For purposes of this section, the term—

10 ‘‘(A) ‘wetlands’ means those lands that meet

11 the criteria for delineation of lands as wetlands set

12 forth in paragraph (2) of subsection (g);

13 ‘‘(B) ‘Secretary’ means the Secretary of the

14 Army; and

15 ‘‘(C) ‘Director’ means the Director of the Unit16 ed States Fish and Wildlife Service.

17 ‘‘(b) AUTHORIZED ACTIVITIES.—(1) The Secretary is

18 authorized to issue permits authorizing activities described

19 in subsection (a)(2) of this section in accordance with the

20 requirements of this section.

21 ‘‘(2) Activities described in paragraph (2) of sub22 section (a) may be undertaken without a permit from the

23 Secretary if those activities are authorized under sub24 sections (e)(5) or (6) or are exempt from the requirements
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1 of this section under subsection (f) or other provisions of

2 this section.

3 ‘‘(c) WETLANDS CLASSIFICATION.—(1) Any person

4 seeking to undertake activities in wetlands for which a per5 mit is required under subsection (b) shall make application

6 to the Secretary identifying the site of such activity and

7 requesting that the Secretary determine, in accordance

8 with paragraph (3) of this subsection, the classification

9 of the wetlands in which such activity is proposed to occur.

10 The applicant may also provide such additional informa11 tion regarding such proposed activity as may be necessary

12 or appropriate for purposes of determining the classifica13 tion of such wetlands or whether and under what condi14 tions the proposed activity may be permitted to occur.

15 ‘‘(2)(A) Except as provided in subparagraph (B) of

16 this paragraph, within 90 days following the receipt of an

17 application under paragraph (1), the Secretary shall pro18 vide notice to the applicant of the classification of the wet19 lands that are the subject of such application and shall

20 state in writing the basis for such classification. The clas21 sification of the wetlands that are the subject of the appli22 cation shall be determined by the Secretary in accordance

23 with the requirements for classification of wetlands

24 under paragraphs (3) and (5).
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1 ‘‘(B) In the case of an application proposing activities

2 located in wetlands that are the subject of an advance clas3 sification under subsection (h), the Secretary shall provide

4 notice to the applicant of such classification within thirty

5 days following the receipt of such application, and shall

6 provide an opportunity for review of such classification

7 under paragraphs (4) and (5) of this subsection.

8 ‘‘(3) Upon application under this subsection, the Sec9 retary shall—

10 ‘‘(A) classify as type A wetlands those wetlands

11 that are of critical significance to the long-term con12 servation of the ecosystem of which such wetlands

13 are a part and which meet the following require14 ments:

15 ‘‘(i) such wetlands serve critical wetlands

16 functions, including the provision of critical

17 habitat for a concentration of avian, aquatic, or

18 wetland dependent wildlife;

19 ‘‘(ii) such wetlands have an inlet or outlet

20 for relief of water flow; except that this require21 ment shall not operate to preclude the classi22 fication as type A wetlands lands containing

23 prairie pothole features, playa lakes, vernal

24 pools, bogs, tidal marshes, or permafrost tundra

25 lakes if such lands otherwise meet the require-
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1 ments for type A classification under this para2 graph;

3 ‘‘(iii) there exists a scarcity within the wa4 tershed or aquatic ecosystem of identified eco5 logical functions served by such wetlands such

6 that the use of such wetlands for activities de7 scribed in subsection (a) would seriously jeop8 ardize the availability of these identified wet9 lands functions;

10 ‘‘(iv) there is no emergency which requires

11 the use of such wetlands for purposes other

12 than conservation;

13 ‘‘(v) the nature and scope of wetlands

14 functions are such that minimization and com15 pensation are not feasible means for conserving

16 wetlands values and functions;

17 ‘‘(B) classify as type B wetlands those wetlands

18 that provide habitat for a significant population of

19 avian, aquatic or wetland dependent wildlife, or pro20 vide other significant wetlands functions including

21 significant enhancement or protection of water qual22 ity, or significant natural flood control; and

23 ‘‘(C) classify as type C wetlands all wetlands

24 that—

25 ‘‘(i) serve limited wetlands functions;
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1 ‘‘(ii) serve marginal wetlands functions but

2 which exist in such abundance that regulation

3 of activities in such wetlands is not necessary

4 for conserving important wetlands values and

5 functions;

6 ‘‘(iii) are fastlands; or

7 ‘‘(iv) are wetlands within industrial com8 plexes or other intensely developed areas that

9 do not serve significant wetlands functions as a

10 result of such location.

11 ‘‘(4) Within 30 days of receipt of notice of an advance

12 classification by the Secretary under paragraph (2)(B) of

13 this subsection, an applicant may request the Secretary

14 to make a de novo determination of the classification of

15 wetlands that are the subject of such notice. Such de novo

16 determination shall be made by the Secretary in consulta17 tion with the Director. The Secretary may sustain an ad18 vance classification made by the Director or may modify

19 such classification if the Secretary determines, upon exam20 ination of all relevant information submitted by the appli21 cant or otherwise available to the Secretary (including, if

22 appropriate, an on-the-ground-examination), that—

23 ‘‘(A) the lands involved do not meet the stand24 ards and criteria for delineating wetlands set forth

25 in paragraph (2) of subsection (g);
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1 ‘‘(B) the weight of relevant information does

2 not support the determination of the advance classi3 fication with respect to the specific wetlands in4 volved;

5 ‘‘(C) the factual basis for such advance classi6 fication is no longer valid; except that such change

7 in factual circumstances has not been caused by ac8 tivities undertaken without authorization by the Sec9 retary as may have been required under this section;

10 or

11 ‘‘(D) the limitations on uses of the specific wet12 lands involved that would be imposed by the Sec13 retary under the requirements of this section would

14 effectively preclude reasonable economic use of the

15 wetlands.

16 ‘‘(5) In the event that the Secretary delegates author17 ity to determine the classification of wetlands under para18 graphs (3) and (4), the Secretary shall, by rule, provide

19 for a right of appeal to the Secretary or his designee of

20 the classification of wetlands under paragraph (3) or the

21 de novo determination of a classification under paragraph

22 (4).

23 ‘‘(d) COMPENSATION FOR LANDOWNERS.—(1) Any

24 person (including a State or political subdivision thereof)

25 who owns an interest in lands that have been classified
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1 as type A wetlands by the Secretary under subsection (c)

2 or by the Director under subsection (h) may, within 2

3 years of receipt of actual notice of such classification (or

4 within 2 years following a de novo determination of such

5 classification), notify the Secretary and the Director that

6 such person is electing to seek compensation for the fair

7 market value of such interests in lands at the time of such

8 classification, in accordance with the requirements of this

9 section. Fair market value may include reasonable attor10 neys fees and shall be calculated without regard to any

11 diminution in value resulting from the applicability of this

12 section.

13 ‘‘(2) Immediately upon receipt by the Secretary and

14 the Director of notification of election to seek compensa15 tion under paragraph (1), the Director shall enter into

16 good faith negotiations with the owner for purposes of de17 termining the value of the interests in lands that have

18 been classified as type A wetlands. Within three months

19 after receipt of the notice of election by the landowner

20 under paragraph (1), the Director shall make an offer of

21 reasonable compensation to the owner.

22 ‘‘(3) Within 6 years of the date an offer for com23 pensation is made under paragraph (2), the owner shall,

24 in his or her discretion—

25 ‘‘(A) accept such offer of compensation;
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1 ‘‘(B) file a claim for determination of value of

2 compensation with the United States Court of Fed3 eral Claims; or

4 ‘‘(C) advise the Director and the Secretary that

5 he elects to retain title to such wetlands and elects

6 not to receive compensation for the taking of land

7 under this subsection.

8 Failure to provide notice in accordance with this para9 graph shall be deemed an election not to receive compensa10 tion under this subsection.

11 ‘‘(4) Upon acceptance of an offer for compensation

12 or the filing of a claim for compensation under paragraph

13 (3), the classification as type A wetlands of the wetlands

14 that are the subject of such offer or claim shall be binding

15 upon the owner and any successor in interest, and the title

16 to such lands shall pass to the United States. The classi17 fication of such lands as type A wetlands under this para18 graph shall constitute a taking by the United States of

19 the owner’s interests in such lands and shall be compen20 sable under the provisions of this subsection.

21 ‘‘(5) A taking under this subsection shall be deemed

22 to be a taking of surface interests in lands only or water

23 rights allocated under State law; except that (A) if the

24 Secretary determines that the exploration for or develop25 ment of oil and gas or mineral interests is not compatible
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1 with conservation of the surface interests in lands that

2 have been classified as type A wetlands located above such

3 oil and gas or mineral interests (or located adjacent to

4 such oil and gas or mineral interests where such adjacent

5 lands are necessary to provide reasonable access to such

6 interests), the Secretary may classify such oil and gas or

7 mineral interests as type A wetlands and notify the owner

8 of such interests that the owner may elect to receive com9 pensation for such interests under paragraph (1), and (B)

10 the failure to provide reasonable access to oil and gas or

11 mineral interests located beneath or adjacent to surface

12 interests of type A wetlands shall be deemed a taking of

13 such oil and gas or mineral interests.

14 ‘‘(6) The United States Court of Federal Claims shall

15 have jurisdiction—

16 ‘‘(A) to determine the value of interests taken

17 and the fair compensation required under this sub18 section and the Constitution of the United States;

19 ‘‘(B) in case of oil and gas or mineral interests,

20 to require the United States to provide reasonable

21 access in, across, or through lands that may be the

22 subject of a taking under this subsection solely for

23 the purpose of undertaking activity necessary to de24 termine the value of the interests taken; and
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1 ‘‘(C) to provide other equitable remedies

2 deemed appropriate.

3 ‘‘(7) Any judgment rendered under paragraph (6)

4 may be executed, at the election of the landowner, no later

5 than two years after the date such judgment is rendered.

6 The landowner may, prior to the execution of such judg7 ment, enter into an agreement with the United States for

8 satisfaction of such judgment through a crediting of tax

9 benefits, acquisition of interests in oil and gas or minerals,

10 an exchange of interests in lands with the United States

11 or other means of compensation.

12 ‘‘(8)(A) The remedies for taking of interests in lands

13 under this subsection shall not be construed to preempt,

14 alter, or limit the availability of other remedies for the

15 taking of interests in lands under the Constitution of the

16 United States or State law, including the taking of rights

17 to the use of water allocated under State law or the taking

18 of interest in lands by denial of a permit under this sec19 tion.

20 ‘‘(B) Any award of compensation for the taking of

21 interest in lands by denial of a permit under this section

22 shall be based upon the fair market value of such interests

23 in lands at the time of such taking. Fair market value

24 may include reasonable attorneys fees and shall be cal-
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1 culated without regard to any diminution in value result2 ing from the applicability of this section.

3 ‘‘(9) Interests in lands acquired by the United States

4 under this subsection shall be managed by the United

5 States Fish and Wildlife Service as a part of the National

6 Wildlife Refuge System unless otherwise provided by the

7 Director or by Act of Congress.

8 ‘‘(10) No action taken under this subsection shall be

9 construed to alter or supersede requirements governing

10 use of water applicable under State law.

11 ‘‘(e) REQUIREMENTS APPLICABLE TO PERMITTED

12 ACTIVITY.—(1) Following the determination of wetlands

13 classification pursuant to subsection (c), and after compli14 ance with the requirements of subsection (d) if applicable,

15 the Secretary may issue or deny permits for authorization

16 to undertake activities in wetlands, in accordance with the

17 requirements of this subsection.

18 ‘‘(2) The Secretary shall deny a permit authorizing

19 activities in type A wetlands unless the Secretary deter20 mines that—

21 ‘‘(A) such an activity can be undertaken with

22 minimal alteration or surface disturbance;

23 ‘‘(B) there are overriding public interest con24 cerns that require use of the lands for purposes

25 other than conservation, including—
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1 ‘‘(i) the likelihood that efforts to mitigate

2 adverse impacts through avoidance and mini3 mization will protect, enhance, or increase criti4 cal wetlands values and functions; or

5 ‘‘(ii) the lack of practical and feasible

6 means for accomplishing the project purpose at

7 an alternative location; or

8 ‘‘(C) the proposed use of the land, taking into

9 account all proposed mitigation, will result in overall

10 environmental benefits, including the prevention of

11 wetlands loss.

12 Any permit issued authorizing activities in type A wet13 lands may contain such terms and conditions concerning

14 mitigation (including those applicable under paragraph (3)

15 for type B wetlands) that the Secretary deems appropriate

16 to prevent the unacceptable loss or degradation of type

17 A wetlands.

18 ‘‘(3)(A) The Secretary may issue a permit authoriz19 ing activities in type B wetlands subject to such terms and

20 conditions as the Secretary finds are necessary to ensure

21 that the watershed or aquatic ecosystem of which such

22 wetlands are a part does not suffer significant loss or deg23 radation of wetlands values and functions. In determining

24 whether or not specific terms and conditions are necessary
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1 to avoid a significant loss of wetlands values and func2 tions, the Secretary shall consider the following:

3 ‘‘(i) The quality and quantity of ecologically sig4 nificant functions served by the areas to be affected.

5 ‘‘(ii) The opportunities to reduce impacts

6 through cost effective design to avoid or minimize

7 use of wetlands areas.

8 ‘‘(iii) The costs of mitigation requirements and

9 the social, recreational, and economic benefits associ10 ated with the proposed activity, including local, re11 gional, or national needs for improved or expanded

12 infrastructure.

13 ‘‘(iv) The ability of the permittee to mitigate

14 wetlands loss or degradation as measured by wet15 lands functions.

16 ‘‘(v) The environmental benefit, measured by

17 wetlands functions, that may occur through mitiga18 tion efforts, including restoring, preserving, enhanc19 ing, or creating wetlands values and functions.

20 ‘‘(vi) The marginal impact of the proposed ac21 tivity on the watershed of which such wetlands are

22 a part.

23 ‘‘(B) In considering an application for activities on

24 type B wetlands, the Secretary may require alternative

25 site analyses for individual permit applications involving
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1 the alteration or permanent surface disturbance of 10 or

2 more contiguous acres of wetlands. There shall be a rebut3 table presumption that the project purpose as defined by

4 the applicant shall be binding upon the Secretary. The def5 inition of project purpose for projects sponsored by public

6 agencies shall be binding upon the Secretary, subject to

7 the authority of the Secretary to impose mitigation re8 quirements to minimize impacts on wetlands values and

9 functions, including cost effective redesign of projects to

10 avoid wetlands areas.

11 ‘‘(C) Except as otherwise provided in this section, re12 quirements for mitigation shall be imposed when the Sec13 retary finds that activities undertaken under this section

14 will result in the loss or degradation of type B wetlands

15 functions and values where such loss or degradation is not

16 a temporary or incidental impact. When determining miti17 gation requirements in any specific case, the Secretary

18 shall take into consideration the type of wetlands affected,

19 the character of the impact on ecological functions, wheth20 er any adverse effects on wetlands are of a permanent or

21 temporary nature, and the cost effectiveness of such miti22 gation and shall seek to minimize the costs of such mitiga23 tion.
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1 ‘‘(D) In accordance with subsection (i), the Secretary

2 shall issue rules governing requirements for mitigation for

3 activities occurring in type B wetlands that allow for—

4 ‘‘(i) minimization of impacts through project

5 design, including avoidance of specific wetlands im6 pacts where economically practicable and consistent

7 with the project’s purpose, provisions for compen8 satory mitigation, if any, and other terms and condi9 tions necessary and appropriate in the public inter10 est;

11 ‘‘(ii) preservation or donation of type A wet12 lands or type B wetlands (where title has not been

13 acquired by the United States and no compensation

14 for the taking of such wetlands has been provided)

15 as mitigation for activities that alter or degrade wet16 lands;

17 ‘‘(iii) enhancement or restoration of degraded

18 wetlands as compensation for wetlands lost or de19 graded through permitted activity;

20 ‘‘(iv) compensation through contribution to a

21 mitigation banking program established for a State

22 pursuant to subparagraph (F);

23 ‘‘(v) offsite compensatory mitigation if such

24 mitigation contributes to the restoration, enhance25 ment or creation of significant wetlands values on a
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1 watershed or ecosystem-wide basis and is balanced

2 with the affects that the proposed activity will have

3 on the specific site; except that offsite compensatory

4 mitigation, if any, shall be required only within the

5 State within which the proposed activity is to occur,

6 and shall, to the extent practicable, be within the

7 watershed within which the proposed activity is to

8 occur, unless otherwise consistent with a State wet9 lands management plan;

10 ‘‘(vi) contribution of in-kind value acceptable to

11 the Secretary and otherwise authorized by law;

12 ‘‘(vii) in areas subject to wetlands loss, the con13 struction of coastal protection and enhancement

14 projects;

15 ‘‘(viii) contribution of resources of more than

16 one permittee toward a single mitigation project;

17 and

18 ‘‘(ix) other mitigation measures determined by

19 the Secretary to be appropriate in the public interest

20 and consistent with the requirements and purposes

21 of this Act.

22 ‘‘(E) Notwithstanding the provisions of subparagraph

23 (C), the Secretary may determine not to impose require24 ments for compensatory mitigation if the Secretary finds

25 that—
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1 ‘‘(i) the adverse impacts of a permitted activity

2 are limited;

3 ‘‘(ii) the failure to impose compensatory mitiga4 tion requirements is compatible with maintaining

5 wetlands functions and values and no practicable

6 and reasonable means of mitigation is available;

7 ‘‘(iii) there is an abundance of similar signifi8 cant wetlands functions and values in or near the

9 area in which the proposed activity is to occur that

10 will continue to serve the functions lost or degraded

11 as a result of such activity, taking into account the

12 impacts of such proposed activity and the cumulative

13 impacts of similar activity in the area; or

14 ‘‘(iv) the temporary character of the impacts

15 and the use of minimization techniques make com16 pensatory mitigation unnecessary to protect signifi17 cant wetlands values.

18 ‘‘(F) The Secretary, in consultation with the Direc19 tor, shall establish a mitigation banking program in each

20 State. Such mitigation banking program shall be devel21 oped in consultation with the Director and the Governor

22 of the State in which the wetlands covered by such mitiga23 tion banking program is located and, after approval by

24 the Secretary, will be available to the Secretary as a means

25 for ensuring compensation for loss and degradation of wet-
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1 lands functions and values in such State in accordance

2 with the requirements of this paragraph. The primary ob3 jective of such programs shall be to provide for the res4 toration, enhancement, or, where feasible, creation of eco5 logically significant wetlands on an ecosystem basis. Such

6 programs shall—

7 ‘‘(i) provide a preference for larger scale

8 projects, unless the Secretary (or the Governor of a

9 State that is administering its own permit program

10 under subsection (1)) determines that a smaller

11 project will contribute substantially to the conserva12 tion, enhancement or restoration of ecologically sig13 nificant wetlands values and functions or that the

14 restoration of indigenous wetlands resources cannot

15 be accomplished through large-scale projects;

16 ‘‘(ii) authorize mitigation banks sponsored ei17 ther by private entities or public entities;

18 ‘‘(iii) provide for crediting of contributions to

19 the mitigation bank in land, cash, or in-kind con20 tributions so that persons unable to sponsor specific

21 mitigation projects can contribute to a State or pri22 vately maintained mitigation bank;

23 ‘‘(iv) have sufficient requirements to ensure

24 completion, maintenance and supervision for at least
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1 a 25-year period, including requirements for bonds

2 or other evidence of financial responsibility;

3 ‘‘(v) authorize the imposition of bonding re4 quirements on private entities operating such banks;

5 ‘‘(vi) limit activities in or on wetlands that are

6 part of a mitigation bank to uses that are consistent

7 with maintaining or gaining significant wetlands val8 ues and functions; and

9 ‘‘(vii) authorize a credit to be provided on an

10 acre-for-acre or value-for-value basis for type A and

11 B wetlands that are permanently protected in na12 tional conservation units in States that have con13 verted less than 10 percent of their State’s historic

14 wetlands base.

15 ‘‘(4)(A) In the case of any application for authoriza16 tion to undertake activities in wetlands that are not eligi17 ble for treatment on an expedited basis pursuant to para18 graph (5) of this subsection, final action by the Secretary

19 shall occur within 6 months following the date such appli20 cation is filed, unless—

21 ‘‘(i) the Secretary and the applicant agree that

22 such final action shall occur within a shorter or

23 longer period of time;

24 ‘‘(ii) the Secretary determines that an addi25 tional, specified period of time is necessary to permit
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1 the Secretary to comply with other applicable Fed2 eral law; or

3 ‘‘(iii) the Secretary, within 15 days from the

4 date such application is received, notifies the appli5 cant that such application does not contain all infor6 mation necessary to allow the Secretary to consider

7 such application and identifies any necessary addi8 tional information, in which case, the provisions of

9 subparagraph (B) shall apply.

10 ‘‘(B) Upon the receipt of a request for additional in11 formation under subparagraph (A)(iii), the applicant shall

12 supply such additional information and shall advise the

13 Secretary that the application contains all requested infor14 mation and is therefore complete. The Secretary may—

15 ‘‘(i) within 30 days of the receipt of notice of

16 the applicant that the application is complete, deter17 mine that the application does not contain all re18 quested additional information and, on that basis,

19 deny the application without prejudice to resubmis20 sion; or

21 ‘‘(ii) within 6 months from the date that the

22 applicant provides notification to the Secretary that

23 the application is complete, review the application

24 and take final action.
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1 ‘‘(C) If the Secretary fails to take final action on an

2 application under this paragraph within 6 months from

3 the date that the applicant provides notification to the

4 Secretary that such application is complete, a permit shall

5 be presumed to be granted authorizing the activities pro6 posed in such application under such terms and conditions

7 as are stated in such completed application.

8 ‘‘(D) Within 60 days from the date of decision of the

9 Secretary denying an application under this paragraph,

10 the applicant may appeal such decision to the Secretary

11 of Defense or his designee. Upon such an appeal, the Sec12 retary must prove by clear and convincing evidence that

13 granting the permit requested in such application would

14 be inconsistent with the provisions of this section.

15 ‘‘(5)(A) Activities in wetlands that have been classi16 fied as type C wetlands by the Secretary or the Director

17 may be undertaken without authorization required under

18 subsection (b) of this section.

19 ‘‘(B) The Secretary may establish requirements for

20 reporting activities undertaken in type C wetlands.

21 ‘‘(C) No requirements for alternative site analyses or

22 mitigation of environmental impacts shall apply for activi23 ties undertaken in type C wetlands.

24 ‘‘(6) The Secretary may, by rule in accordance with

25 subsection (i), issue general permits on a State, regional,
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1 or nationwide basis for any category of activities involving

2 activities described in section (a) of this section in wet3 lands if the Secretary determines that such activities are

4 similar in nature and that such activities, when performed

5 separately and cumulatively, will not result in the signifi6 cant loss of ecologically significant wetlands values and

7 functions. Permits issued under this subsection shall in8 clude procedures for expedited review of eligibility for such

9 permits (if such review is required) and may include re10 quirements for reporting and mitigation. Requirements for

11 compensatory mitigation for such permits may be imposed

12 where necessary to avoid or minimize the significant loss

13 or degradation of significant wetlands values and func14 tions where such loss or degradation is not a temporary

15 or incidental impact. Nationwide, general or regional per16 mits in effect on the date of the enactment of the Com17 prehensive Wetlands Conservation and Management Act

18 of 1995 shall remain in effect until otherwise modified by

19 the Secretary.

20 ‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—(1) Ex21 cept as provided in paragraph (3) of this subsection, ac22 tivities undertaken in wetlands are exempt from the re23 quirements of this section and are not prohibited by or

24 otherwise subject to regulation under this section or sec25 tion 301 or 402 of this Act (except effluent standards or
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1 prohibitions under section 307 of this Act), if such activi2 ties—

3 ‘‘(A) result from normal farming, silviculture,

4 aquaculture, and ranching activities and practices,

5 such as plowing, seeding, cultivating, minor drain6 age, burning of vegetation in connection with such

7 activities, harvesting for the production of food,

8 fiber, and forest products, or upland soil and water

9 conservation practices;

10 ‘‘(B) are for the purpose of maintenance, in11 cluding emergency reconstruction of recently dam12 aged parts of currently serviceable structures such

13 as dikes, dams, levees, water control structures,

14 groins, riprap, breakwaters, causeways, and bridge

15 abutments or approaches, and transportation struc16 tures;

17 ‘‘(C) are for the purpose of construction or

18 maintenance of farm, stock or aquaculture ponds or

19 irrigation canals and ditches, or the maintenance of

20 drainage ditches;

21 ‘‘(D) are for the purpose of construction of

22 temporary sedimentation basins on a construction

23 site which does not include placement of fill material

24 into the navigable waters;
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1 ‘‘(E) are for the purpose of construction or

2 maintenance of farm roads or forest roads, or tem3 porary roads for moving mining equipment if such

4 roads are constructed and maintained, in accordance

5 with best management practices, to assure that flow

6 and circulation patterns and chemical and biological

7 characteristics of the waters are not impaired, that

8 the reach of the waters is not reduced, and that any

9 adverse effect on the aquatic environment will be

10 otherwise minimized;

11 ‘‘(F) are undertaken on farmed wetlands, ex12 cept that any change in use of such land for the

13 purpose of undertaking activities that are not ex14 empt from regulation under this subsection shall be

15 subject to the requirements of this section to the ex16 tent that such farmed wetlands are ‘wetlands’ under

17 paragraph (2) of subsection (g);

18 ‘‘(G) result from any activity with respect to

19 which a State has an approved program under sec20 tion 208(b)(4) of this Act which meets the require21 ments of subparagraphs (B) and (C) of such section;

22 ‘‘(H) are consistent with a State or local land

23 management plan submitted to the Secretary and

24 approved pursuant to paragraph (2);
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1 ‘‘(I) are undertaken in connection with a marsh

2 management and conservation program in a coastal

3 parish in the State of Louisiana where such program

4 has been approved by the Governor of such State or

5 the designee of the Governor;

6 ‘‘(J) are undertaken on lands or involve activi7 ties within a State’s coastal zone which are excluded

8 from regulation under a State coastal zone manage9 ment program approved under the Coastal Zone

10 Management Act of 1972 (16 U.S.C. 1451, et seq.);

11 ‘‘(K) are undertaken in incidentally created

12 wetlands, unless such incidentally created wetlands

13 have exhibited wetlands functions and values for

14 more than five years in which case activities under15 taken in such wetlands shall be subject to the re16 quirements of this section;

17 ‘‘(L) are part of expanding an ongoing farming

18 operation involving the water dependent, obligate

19 crop Vaccinium macrocarpin, so long as such expan20 sion does not occur in type A wetlands, does not re21 sult in the conversion of more than 10 acres of wet22 lands per operator per year, and the converted wet23 lands (other than where dikes and other necessary

24 facilities are placed) remain as wetlands or other wa25 ters of the United States; or
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1 ‘‘(M) result from aggregate or clay mining ac2 tivities in wetlands conducted pursuant to a State

3 or Federal permit that requires the reclamation of

4 such affected wetlands.

5 Conditions of reclamation shall include that for any site,

6 such reclamation shall be completed within 5 years of the

7 commencement of activities at such site and that upon

8 completion of such reclamation, such wetlands shall sup9 port wetlands functions and values equivalent to the func10 tions and values supported by such wetlands at the time

11 of commencement of such activities.

12 ‘‘(2) Any State or political subdivision thereof acting

13 pursuant to State authorization may develop a land man14 agement plan with respect to lands that include identified

15 wetlands. The State or local government agency may sub16 mit any such plan to the Secretary for review and ap17 proval. The Secretary shall, within sixty days, notify in

18 writing the designated State or local official of approval

19 or disapproval of any such plan. The Secretary shall ap20 prove any plan that is consistent with the objectives and

21 policies of this section. No person shall be entitled to judi22 cial review of the decision of the Secretary to approve or

23 disapprove a land management plan under this paragraph.

24 Nothing in this paragraph shall be construed to alter, limit

25 or supersede the authority of a State or political subdivi-
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1 sion thereof to establish land management plans for pur2 poses other than the provisions of this subsection.

3 ‘‘(g) RULES FOR DELINEATING WETLANDS.—(1)

4 The Secretary is authorized and directed to establish

5 standards, by rule in accordance with subsection (i), that

6 shall govern the delineation of lands as ‘wetlands’ for pur7 poses of this section. Such rules shall be established after

8 consultation with other agencies of the United States, in9 cluding the United States Fish and Wildlife Service, the

10 Environmental Protection Agency, and the United States

11 Natural Resources Conservation Service, and shall be

12 binding on all Federal agencies in connection with the ad13 ministration or implementation of any provision of this

14 section. The standards for delineation of wetlands and any

15 decision of the Secretary, the Director, or any other Fed16 eral officer or agency made in connection with the admin17 istration of this section shall comply with the requirements

18 for delineation of wetlands set forth in paragraph (2) of

19 this subsection.

20 ‘‘(2)(A) The standards established by rule or applied

21 in any case for purposes of this section shall ensure that

22 lands are delineated as wetlands only if such lands are

23 found to be ‘wetlands’ under section 502 of this Act, ex24 cept that such standards may not—
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1 ‘‘(i) result in the delineation of lands as wet2 lands unless clear evidence of wetlands hydrology,

3 hydrophytic vegetation, and hydric soil are found to

4 be present during the period in which such delinea5 tion is made, which delineation shall be conducted

6 during the growing season unless otherwise re7 quested by the applicant;

8 ‘‘(ii) result in the classification of vegetation as

9 hydrophytic if such vegetation is equally adapted to

10 dry or wet soil conditions or is more typically adapt11 ed to dry soil conditions than to wet soil conditions;

12 ‘‘(iii) result in the classification of lands as wet13 lands unless some obligate wetlands vegetation is

14 found to be present during the period of delineation;

15 except that if such vegetation has been removed for

16 the purpose of evading jurisdiction under this sec17 tion, this clause shall not apply;

18 ‘‘(iv) result in the conclusion that wetlands hy19 drology is present unless water is found to be

20 present at the surface of such lands for at least 21

21 consecutive days during the growing season in which

22 such delineation is made and for 21 consecutive days

23 in the growing seasons in a majority of the years for

24 which records are available; and
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1 ‘‘(v) result in the classification of lands as wet2 lands that are temporarily or incidentally created as

3 a result of adjacent development activity.

4 ‘‘(B) In addition to the requirements of subparagraph

5 (A), any standards established by rule or applied to delin6 eate wetlands for purposes of this section shall provide

7 that ‘normal circumstances’ shall be determined on the

8 basis of the factual circumstances in existence at the time

9 a classification is made under subsection (h) or at the time

10 of application under subsection (e), whichever is applica11 ble, if such circumstances have not been altered by an ac12 tivity prohibited under this section.

13 ‘‘(h) UNITED STATES FISH AND WILDLIFE SERVICE

14 WETLANDS IDENTIFICATION AND CLASSIFICATION

15 PROJECT.—(1) The Director, in concurrence with the

16 Chief of the Natural Resources Conservation Service, shall

17 undertake a project to identify and classify wetlands in

18 the United States. The Director shall complete such

19 project not later than 10 years after the date of the enact20 ment of the Comprehensive Wetlands Conservation and

21 Management Act of 1995.

22 ‘‘(2) In conducting the project under this section, the

23 Director shall identify and classify wetlands in accordance

24 with standards for delineation of wetlands established by

25 the Secretary under subsection (g) of this section.
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1 ‘‘(3) In conducting the project under this section, the

2 Director shall provide notice and an opportunity for a pub3 lic hearing in each county, parish or borough of a State

4 before completion of identification and classification of

5 wetlands in such county, parish, or borough.

6 ‘‘(4) Promptly after completion of identification and

7 classification of wetlands in a county, parish, or borough

8 under this section, the Director shall publish information

9 on such identification and classification in the Federal

10 Register and in publications of wide circulation and take

11 other steps reasonably necessary to ensure that such infor12 mation is available to the public.

13 ‘‘(5) The Director shall report to Congress on imple14 mentation of the project to be conducted under this section

15 not later than 2 years after the date of the enactment of

16 the Comprehensive Wetlands Conservation and Manage17 ment Act of 1995 and annually thereafter.

18 ‘‘(6) Any classification of lands as wetlands under

19 this section shall, to the fullest extent practicable, be re20 corded on the property records in the county, parish or

21 borough in which such wetlands are located.

22 ‘‘(i) ADMINISTRATIVE PROVISIONS.—(1) Not later

23 than 1 year after the date of the enactment of the Com24 prehensive Wetlands Conservation and Management Act

25 of 1995, the Secretary shall, after notice and opportunity
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1 for comment, issue (in accordance with section 553 of title

2 5 of the United States Code and as otherwise required

3 under this section), final rules and regulations for the is4 suance of permits. Such rules and regulations shall, in ac5 cordance with this section, provide—

6 ‘‘(A) standards and procedures for the classi7 fication and delineation of wetlands and procedures

8 for administrative review of any such classification

9 or delineation;

10 ‘‘(B) standards and procedures for the review

11 of State or local land management plans and State

12 programs for the regulation of wetlands;

13 ‘‘(C) for the issuance of general, nationwide, or

14 regional permits;

15 ‘‘(D) standards and procedures for the individ16 ual permit applications under this section;

17 ‘‘(E) for enforcement of this section;

18 ‘‘(F) any other rules and regulations that the

19 Secretary deems necessary or appropriate to imple20 ment the requirements of this section;

21 ‘‘(G) standards and procedures for administra22 tive appeals of actions by the Secretary denying ap23 plications for permits under subsection (b) or issuing

24 such permits subject to conditions; and
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1 ‘‘(H) requirements governing the establishment

2 of mitigation banks.

3 ‘‘(2) Any judicial review of final regulations issued

4 pursuant to this section and the Secretary’s denial of any

5 petition for the issuance, amendment, or repeal of any reg6 ulation under this section shall be in accordance with sec7 tions 701 through 706 of title 5 of the United States Code;

8 except that a petition for review of action of the Secretary

9 in issuing any regulation or requirement under this section

10 or denying any petition for the issuance, amendment, or

11 repeal of any regulation under this section may be filed

12 only in the United States Court of Appeals for the District

13 of Columbia, and such petition shall be filed within ninety

14 days from the date of such issuance or denial or after such

15 date if such petition for review is based solely on grounds

16 arising after such ninetieth day. Action of the Secretary

17 with respect to which review could have been obtained

18 under this subsection shall not be subject to judicial review

19 in civil or criminal proceedings for enforcement.

20 ‘‘(3) The Secretary shall, within 90 days after the

21 date of the enactment of the Comprehensive Wetlands

22 Conservation and Management Act of 1995, issue interim

23 rules and regulations consistent with this section to take

24 effect immediately. Notice of the interim regulations shall

25 be published in the Federal Register, and such regulations
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1 shall be binding until the issuance of final regulations pur2 suant to paragraph (1); except that the Secretary shall

3 provide adequate procedures for waiver of any provisions

4 of such interim regulations to avoid special hardship, in5 equity, or unfair distribution of burdens or to advance the

6 purposes of this section.

7 ‘‘(4) Except where otherwise expressly provided in

8 this section, the Secretary shall administer this section.

9 The Secretary or any other Federal officer or agency in

10 which any function under this section is vested or dele11 gated is authorized to perform any and all acts (including

12 appropriate enforcement activity), and to prescribe, issue,

13 amend, or rescind such rules or orders as such officer or

14 agency may find necessary or appropriate with this sub15 section, subject to the requirements of this subsection.

16 ‘‘(j) VIOLATIONS.—(1) Whenever, on the basis of reli17 able and substantial information and after reasonable in18 quiry, the Secretary finds that any person is or may be

19 in violation of this section or of any condition or limitation

20 set forth in a permit issued by the Secretary under this

21 section, the Secretary shall issue an order requiring such

22 persons to comply with this section or with such condition

23 or limitation or the Secretary shall bring a civil action in

24 accordance with paragraph (3).
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1 ‘‘(2) A copy of any order issued under this subsection

2 shall be sent immediately by the Secretary to the Governor

3 of the State in which the violation occurs and the Gov4 ernors of other affected States. Any order issued under

5 this subsection shall be by personal service to the appro6 priate person or corporate officer and shall state with rea7 sonable specificity the nature of the asserted violation, and

8 specify a time for compliance, not to exceed 30 days, which

9 the Secretary determines is reasonable taking into account

10 the seriousness of the asserted violation and any good

11 faith efforts to comply with applicable requirements; ex12 cept that if the person receiving notice of the asserted vio13 lation disputes the Secretary’s determination and so noti14 fies the Secretary in writing within 90 days of receipt of

15 the Secretary’s notice, the Secretary shall within 60 days

16 after receiving notice of a dispute of an asserted violation,

17 or within 150 days from the date of notification of viola18 tion by the Secretary if no notice of a dispute is received

19 (or after serving notice, unless otherwise agreed to by the

20 parties) prosecute a civil action in accordance with para21 graph (3) or rescind such order and be estopped from any

22 further enforcement proceedings for the same asserted vio23 lation.

24 ‘‘(3) The Secretary is authorized to commence a civil

25 action for appropriate relief, including a permanent or
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1 temporary injunction, for any violation for which the Sec2 retary is authorized to issue a compliance order under

3 paragraph (1) of this subsection. Any action under this

4 paragraph may be brought in the district court of the

5 United States for the district in which the defendant is

6 located or resides or is doing business, and such court

7 shall have jurisdiction to restrain such violation and to re8 quire compliance. Notice of the commencement of such ac9 tion shall be given immediately to the appropriate State.

10 ‘‘(4) Any person who violates any condition or limita11 tion in a permit issued by the Secretary under this section,

12 and any person who violates any order issued by the Sec13 retary under paragraph (1) of this subsection shall be sub14 ject to a civil penalty not to exceed $25,000 per day for

15 each violation commencing on the day following expiration

16 of the time allowed for compliance. The amount of the fine

17 imposed per day shall be in proportion to the scale or

18 scope of the project. In determining the amount of a civil

19 penalty the court shall consider the seriousness of the vio20 lation or violations, the economic benefit (if any) resulting

21 from the violation, any history of such violations, any

22 good-faith efforts to comply with the applicable require23 ments, the economic impact of the penalty on the violator,

24 and such other matters as justice may require.
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1 ‘‘(k) STATE AUTHORITY TO CONTROL DIS2 CHARGES.—Nothing in the section shall preclude or deny

3 the right of any State or interstate agency to control ac4 tivities in waters within the jurisdiction of such State, in5 cluding any activity of any Federal agency, and each such

6 agency shall comply with such State or interstate require7 ments both substantive and procedural to control such ac8 tivities to the same extent that any person is subject to

9 such requirements. This section shall not be construed as

10 affecting or impairing the authority of the Secretary to

11 maintain navigation.

12 ‘‘(l) STATE REGULATION OF WETLANDS.—(1) The

13 Governor of any State desiring to administer its own indi14 vidual and general permit program for activities covered

15 by this section within its jurisdiction may submit to the

16 Secretary a description of the program it proposes to es17 tablish and administer under State law or under an inter18 state compact. In addition, such State shall submit a

19 statement from the chief legal officer in the case of the

20 State or interstate agency, that the laws of such State,

21 or the interstate compact, as the case may be, provide ade22 quate authority to carry out the described program.

23 ‘‘(2) Not later than 1 year after the date of the re24 ceipt by the Secretary of a program and statement submit25 ted by any State under paragraph (1), the Secretary shall
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1 determine whether such State has the following authority

2 with respect to the issuance of permits pursuant to such

3 program:

4 ‘‘(A) to issue permits which—

5 ‘‘(i) apply, and assure compliance with,

6 any applicable requirements of this section; and

7 ‘‘(ii) can be terminated or modified for

8 cause, including—

9 ‘‘(I) violation of any condition of the

10 permit;

11 ‘‘(II) obtaining a permit by misrepre12 sentation, or failure to disclose fully all rel13 evant facts; or

14 ‘‘(III) change in any condition that

15 requires either a temporary or permanent

16 reduction or elimination of the permitted

17 activity;

18 ‘‘(B) to issue permits which apply, and ensure

19 compliance with, all applicable requirements of sec20 tion 308 of this Act or to inspect, monitor, enter,

21 and require reports to at least the same extent as

22 required in section 308 of this Act;

23 ‘‘(C) to ensure that the public, and any other

24 State the waters of which may be affected, receive

25 notice of each application for a permit and to pro-
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1 vide an opportunity for public hearing before a rul2 ing on each such application;

3 ‘‘(D) to ensure that the Secretary receives no4 tice of each application for a permit and that, prior

5 to any action by the State, both the applicant for the

6 permit and the State have received from the Sec7 retary information with respect to any advance clas8 sification applicable to wetlands that are the sub9 ject of such application;

10 ‘‘(E) to ensure that any State (other than the

11 permitting State) whose waters may be affected by

12 the issuance of a permit may submit written rec13 ommendation to the permitting State with respect to

14 any permit application and, if any part of such writ15 ten recommendations are not accepted by the per16 mitting State, that the permitting State will notify

17 such affected State (and the Secretary) in writing of

18 its failure to so accept such recommendations to19 gether with its reasons for doing so; and

20 ‘‘(F) to abate violations of the permit or the

21 permit program, including civil and criminal pen22 alties and other ways and means of enforcement.

23 ‘‘(3) If, with respect to a State program submitted

24 under paragraph (1) of this section, the Secretary deter25 mines that such State—
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1 ‘‘(A) has the authority set forth in paragraph

2 (2), the Secretary shall approve the program and so

3 notify such State and suspend the issuance of per4 mits under subsection (b) for activities with respect

5 to which a permit may be issued pursuant to such

6 State program; or

7 ‘‘(B) does not have the authority set forth in

8 paragraph (2) of this subsection, the Secretary shall

9 so notify such State and provide a description of the

10 revisions or modifications necessary so that such

11 State may resubmit such program for a determina12 tion by the Secretary under this subsection.

13 ‘‘(4) If the Secretary fails to make a determination

14 with respect to any program submitted by a State under

15 this subsection within 1 year after the date of receipt of

16 such program, such program shall be deemed approved

17 pursuant to paragraph (3)(A) and the Secretary shall so

18 notify such State and suspend the issuance of permits

19 under subsection (b) for activities with respect to which

20 a permit may be issued by such State.

21 ‘‘(5) After the Secretary approves a State permit pro22 gram under paragraph (3)(A) or (4), the Secretary shall

23 transfer any applications for permits pending before the

24 Secretary for activities with respect to which a permit may
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1 be issued pursuant to such State program to such State

2 for appropriate action.

3 ‘‘(6) Upon notification from a State with a permit

4 program approved under this subsection that such State

5 intends to administer and enforce the terms and condi6 tions of a general permit issued by the Secretary under

7 subsection (e) with respect to activities in such State to

8 which such general permit applies, the Secretary shall sus9 pend the administration and enforcement of such general

10 permit with respect to such activities.

11 ‘‘(7) Whenever the Secretary determines after public

12 hearing that a State is not administering a program ap13 proved under paragraph (3)(A) in accordance with this

14 section, the Secretary shall notify the State and, if appro15 priate corrective action is not taken within a reasonable

16 time, not to exceed ninety days after the date of the re17 ceipt of such notification, the Secretary shall—

18 ‘‘(A) withdraw approval of such program until

19 the Secretary determines such corrective action has

20 been taken; and

21 ‘‘(B) resume the program for the issuance of

22 permits under subsections (b) and (e) for all activi23 ties with respect to which the State was issuing per24 mits until such time as the Secretary makes the de-
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1 termination described in paragraph (2) and such

2 State again has an approved program.

3 ‘‘(m) AVAILABILITY.—A copy of each permit applica4 tion and each permit issued under this section shall be

5 available to the public. Such permit application or portion

6 thereof shall further be available on request for the pur7 pose of reproduction.

8 ‘‘(n) COMPLIANCE.—Compliance with a permit issued

9 pursuant to this section, including any activity carried out

10 pursuant to a general permit issued under this section,

11 shall be deemed in compliance, for purposes of sections

12 309 and 505, with sections 301, 307, and 403.

13 ‘‘(o) SPECIAL RULES.—After the effective date of

14 this section under section 6 of the Comprehensive Wet15 lands Conservation and Management Act of 1995, no per16 mit for any activity described in subsection (a) may be

17 issued except in accordance with this section. Any permit

18 for an activity described in subsection (a) issued under

19 this section prior to such effective date shall be deemed

20 to be a permit under this section and shall continue in

21 force and effect for the term of the permit unless revoked,

22 modified, or suspended in accordance with this section.

23 Any application for a permit for such an activity pending

24 under this section on such effective date shall be deemed

25 to be an application for a permit under this section.
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1 ‘‘(p) LIMITATION ON FEES.—Any fee charged in con2 nection with the delineation or classification of wetlands,

3 an application for a permit authorizing an activity de4 scribed in subsection (a), or any other action taken in

5 compliance with the requirements of this section (other

6 than fines for violation under subsection (i)) shall not ex7 ceed the amount in effect for such fee on January 1,

8 1990.’’.

9 SEC. 4. DEFINITIONS.

10 Section 502 of the Federal Water Pollution Control

11 Act (33 U.S.C. 1362) is amended by adding at the end

12 thereof the following new paragraphs:

13 ‘‘(21) The term ‘wetlands’ means lands which have

14 a predominance of hydric soils and which are inundated

15 by surface water at a frequency and duration sufficient

16 to support, and that under normal circumstances do sup17 port, a prevalence of vegetation typically adapted for life

18 in saturated soil conditions. Wetlands generally include

19 swamps, marshes, bogs, and similar areas.

20 ‘‘(22) The term ‘creation of wetlands’ means an activ21 ity that brings a wetland into existence at a site where

22 it did not formerly occur for the purpose of compensation.

23 ‘‘(23) The term ‘enhancement of wetlands’ means any

24 activity that increases the value of one or more functions

25 in existing wetlands.
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1 ‘‘(24) The term ‘fastlands’ means lands located be2 hind permitted man-made structures, such as levees con3 structed and maintained to permit the utilization of such

4 lands for commercial, industrial or residential purposes

5 consistent with local land use planning requirements.

6 ‘‘(25) The term ‘wetlands functions’ means the roles

7 wetlands serve which are of value including flood water

8 storage, flood water conveyance, ground water discharge,

9 erosion control, wave attenuation, water quality protec10 tion, scenic and aesthetic use, food chain support, fish11 eries, wetlands plant habitat, aquatic habitat, and habitat

12 for wetland dependent wildlife.

13 ‘‘(26) The term ‘growing seasons’ means, for each

14 plant hardiness zone, the period between the average date

15 of last frost in spring and the average date of first frost

16 in autumn.

17 ‘‘(27) The term ‘incidentally created wetlands’ means

18 lands that exhibit wetlands characteristics sufficient to

19 meet the criteria for delineation of wetlands, where one

20 or more of such characteristics is the unintended result

21 of human induced alterations of hydrology.

22 ‘‘(28) The term ‘maintenance’ means activities un23 dertaken to assure continuation of a wetland or the accom24 plishment of project goals after a restoration or creation
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1 project has been technically completed, including water

2 level manipulations and control of nonnative plant species.

3 ‘‘(29) The term ‘mitigation banking’ means wetlands

4 restoration, enhancement, preservation or creation for the

5 purpose of providing compensation for wetland degrada6 tion or loss.

7 ‘‘(30) The term ‘normal farming, silviculture, aqua8 culture and ranching activities’ includes activities such as

9 plowing, seeding, cultivating, haying and grazing, fencing,

10 minor drainage, brushclearing, harvesting, construction

11 and maintenance of farm or stock ponds and farm roads,

12 construction, maintenance and replacement of irrigation

13 systems, mechanized maintenance and replacement of

14 drainage tiles and ditches, protection from flooding of

15 lands on which the activities are being conducted, the im16 plementation and maintenance of soil and water conserva17 tion practices and other activities related to the operation,

18 maintenance, and management of ongoing farming, ranch19 ing, aquaculture, and silviculture operations engaged in

20 the production of food, fiber, and forest products.

21 ‘‘(31) The term ‘prior converted cropland’ means

22 land (other than wetlands or waters of the United States)

23 that was manipulated (drained or otherwise physically al24 tered to remove excess water from the land) or intensely
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1 managed or cropped for the purpose of agriculture produc2 tion before the date of the enactment of this paragraph.

3 ‘‘(32) The term ‘restoration’ in reference to wetlands

4 means an activity undertaken to return a wetland from

5 a disturbed or altered condition with lesser acreage or

6 fewer functions to a previous condition with greater wet7 lands acreage or functions.

8 ‘‘(33) The term ‘temporary impact’ means the dis9 turbance or alteration of wetlands caused by activities

10 under circumstances in which, within 3 years following the

11 commencement of such activities, such wetlands—

12 ‘‘(A) are returned to the conditions in existence

13 prior to the commencement of such activity; or

14 ‘‘(B) display conditions sufficient to ensure,

15 that without further human action, such wetlands

16 will return to the conditions in existence prior to the

17 commencement of such activity.’’.

18 SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.—

19 Section 309 of the Federal Water Pollution Control

20 Act (33 U.S.C. 1319) is amended—

21 (1) by striking ‘‘or 404’’ in subsection (a)(1);

22 (2) by striking ‘‘or in a permit issued under

23 section 404 of this Act by a State’’ in subsection

24 (a)(3);
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1 (3) by striking ‘‘, or in a permit issued under

2 section 404 of this Act by a State,’’ in subsection

3 (d);

4 (4) by striking ‘‘—’’ and all that follows

5 through ‘‘(A)’’ in subsection (g)(1);

6 (5) by striking ‘‘or in a permit issued under

7 section 404 by a State, or’’ in subsection (g)(1)(A);

8 (6) by striking ‘‘(B)’’ and all that follows

9 through ‘‘as the case may be,’’ and inserting ‘‘the

10 Administrator’’ in subsection (g)(1); and

11 (7) by striking ‘‘or Secretary’’, ‘‘or the Sec12 retary’’, ‘‘or the Secretary, as the case may be,’’, ‘‘or

13 Secretary’s’’, and ‘‘and the Secretary’’ each place

14 they appear.

15 SEC. 6. EFFECTIVE DATE.

16 This Act, including the amendments made by this

17 Act, shall be effective on the 90th day following the date

18 of its enactment.

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