I

104TH CONGRESS

1ST SESSION H. R. 1330

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 28, 1995

Mr. HAYES (for himself, Mr. SHUSTER, Mr. TAUZIN, Mr. YOUNG of Alaska,

Mr. EMERSON, Mr. PETE GEREN of Texas, Mr. SOLOMON, Mr.

COSTELLO, Mr. CLINGER, Ms. DANNER, Mr. BLUTE, Mr. LAUGHLIN, Mr.

BATEMAN, Mr. PARKER, Mr. HUTCHINSON, Mr. KIM, Mr. EWING, Mr.

INGLIS of South Carolina, Mr. DICKEY, Mr. ENGLISH of Pennsylvania,

Mr. BREWSTER, Mr. MICA, Mr. FIELDS of Texas, Mr. COBLE, Mr. DUNCAN, Mr. DOOLITTLE, Mrs. FOWLER, Mr. HANSEN, Mr. CALVERT, Mr.

LATHAM, Mr. POMBO, Mrs. CUBIN, Mr. JONES, Mrs. LINCOLN, Mr. TAYLOR of North Carolina, Mr. SHADEGG, Mrs. CHENOWETH, Mr. DELAY,

Mr. POSHARD, Mr. BAKER of Louisiana, Mr. WAMP, Mr. LIVINGSTON,

Mr. CLEMENT, Mr. PACKARD, Mr. LEWIS of California, Mr. LAHOOD,

Mr. DEAL of Georgia, Mr. QUINN, and Mr. GALLEGLY) 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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Comprehensive

3 Wetlands Conservation and Management Act of 1995’’.

4 SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

5 (a) FINDINGS.—Congress finds that—

6 (1) wetlands play an integral role in maintain7 ing the quality of life through material contributions

8 to our national economy, food supply, water supply

9 and quality, flood control, and fish, wildlife, and

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

11 recreation and economic well-being of citizens

12 throughout the Nation;

13 (2) wetlands serve important ecological and nat14 ural resource functions, such as providing essential

15 nesting and feeding habitat for waterfowl, other

16 wildlife, and many rare and endangered species, fish17 eries habitat, the enhancement of water quality, and

18 natural flood control;

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

20 significant degradation, resulting in the need for ef21 fective programs to limit the loss of ecologically sig22 nificant wetlands and to provide for long-term res23 toration and enhancement of the wetlands resource

24 base;

25 (4) most of the loss of wetlands in coastal Lou26 isiana is not attributable to human activity;
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1 (5) because 75 percent of the Nation’s wetlands

2 in the lower 48 States are privately owned and be3 cause the majority of the Nation’s population lives

4 in or near wetlands areas, an effective wetlands con5 servation and management program must reflect a

6 balanced approach that conserves and enhances im7 portant wetlands values and functions while observ8 ing private property rights, recognizing the need for

9 essential public infrastructure, such as highways,

10 ports, airports, pipelines, sewer systems, and public

11 water supply systems, and providing the opportunity

12 for sustained economic growth;

13 (6) while wetlands provide many varied eco14 nomic and environmental benefits, they also present

15 health risks in some instances where they act as

16 breeding grounds for insects that are carriers of

17 human and animal diseases; and

18 (7) the Federal permit program established

19 under section 404 of the Federal Water Pollution

20 Control Act was not originally conceived as a wet21 lands regulatory program and is insufficient to en22 sure that the Nation’s wetlands resource base will be

23 conserved and managed in a fair and environ24 mentally sound manner.
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1 (b) PURPOSE.—The purpose of this Act is to estab2 lish a new Federal regulatory program for certain wet3 lands and waters of the United States—

4 (1) to assert Federal regulatory jurisdiction

5 over a broad category of specifically identified activi6 ties that result in the degradation or loss of wet7 lands;

8 (2) to provide that each Federal agency, officer,

9 and employee exercise Federal authority under sec10 tion 404 of the Federal Water Pollution Control Act

11 to ensure that agency action under such section will

12 not limit the use of privately owned property so as

13 to diminish its value;

14 (3) to account for variations in wetlands func15 tions in determining the character and extent of reg16 ulation of activities occurring in wetlands areas;

17 (4) to provide sufficient regulatory incentives

18 for conservation, restoration, or enhancement activi19 ties;

20 (5) to encourage conservation of resources on a

21 watershed basis to the fullest extent practicable; and

22 (6) to protect public safety and balance public

23 and private interests in determining the conditions

24 under which activity in wetlands areas may occur.
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1 SEC. 3. WETLANDS CONSERVATION AND MANAGEMENT.

2 Title IV of the Federal Water Pollution Control Act

3 (33 U.S.C. 1341 et seq.) is further amended by striking

4 section 404 and inserting the following new section:

5 ‘‘SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WA6 TERS OF THE UNITED STATES.

7 ‘‘(a) PROHIBITED ACTIVITIES.—No person shall un8 dertake an activity in wetlands or waters of the United

9 States unless such activity is undertaken pursuant to a

10 permit issued by the Secretary or is otherwise authorized

11 under this section.

12 ‘‘(b) AUTHORIZED ACTIVITIES.—

13 ‘‘(1) PERMITS.—The Secretary is authorized to

14 issue permits authorizing an activity in wetlands or

15 waters of the United States in accordance with the

16 requirements of this section.

17 ‘‘(2) NONPERMIT ACTIVITIES.—An activity in

18 wetlands or waters of the United States may be un19 dertaken without a permit from the Secretary if that

20 activity is authorized under subsection (e)(6) or

21 (e)(8) or is exempt from the requirements of this

22 section under subsection (f) or other provisions of

23 this section.

24 ‘‘(c) WETLANDS CLASSIFICATION.—

25 ‘‘(1) REGULATIONS; APPLICATIONS.—
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1 ‘‘(A) DEADLINE FOR ISSUANCE OF REGU2 LATIONS.—Not later than 1 year after the date

3 of the enactment of the Comprehensive Wet4 lands Conservation and Management Act of

5 1995, the Secretary shall issue regulations to

6 classify wetlands as type A, type B, or type C

7 wetlands depending on the relative ecological

8 significance of the wetlands.

9 ‘‘(B) APPLICATION REQUIREMENT.—Any

10 person seeking to undertake activities in wet11 lands or waters of the United States for which

12 a permit is required under this section shall

13 make application to the Secretary identifying

14 the site of such activity and requesting that the

15 Secretary determine, in accordance with para16 graph (3) of this subsection, the classification

17 of the wetlands in which such activity is pro18 posed to occur. The applicant may also provide

19 such additional information regarding such pro20 posed activity as may be necessary or appro21 priate for purposes of determining the classi22 fication of such wetlands or whether and under

23 what conditions the proposed activity may be

24 permitted to occur.

25 ‘‘(2) DEADLINES FOR CLASSIFICATIONS.—
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1 ‘‘(A) GENERAL RULE.—Except as provided

2 in subparagraph (B) of this paragraph, within

3 90 days following the receipt of an application

4 under paragraph (1), the Secretary shall pro5 vide notice to the applicant of the classification

6 of the wetlands that are the subject of such ap7 plication and shall state in writing the basis for

8 such classification. The classification of the wet9 lands that are the subject of the application

10 shall be determined by the Secretary in accord11 ance with the requirements for classification of

12 wetlands under paragraph (3) and subsection

13 (i).

14 ‘‘(B) RULE FOR ADVANCE CLASSIFICA15 TIONS.—In the case of an application proposing

16 activities located in wetlands that are the sub17 ject of an advance classification under sub18 section (h), the Secretary shall provide notice to

19 the applicant of such classification within thirty

20 days following the receipt of such application,

21 and shall provide an opportunity for review of

22 such classification under paragraph (5) and

23 subsection (i).

24 ‘‘(3) CLASSIFICATION SYSTEM.—Upon applica25 tion under this subsection, the Secretary shall—
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1 ‘‘(A) classify as type A wetlands those wet2 lands that are of critical significance to the

3 long-term conservation of the aquatic environ4 ment of which such wetlands are a part and

5 which meet the following requirements:

6 ‘‘(i) such wetlands serve critical wet7 lands functions, including the provision of

8 critical habitat for a concentration of

9 avian, aquatic, or wetland dependent wild10 life;

11 ‘‘(ii) such wetlands consist of or may

12 be a portion of ten or more contiguous

13 acres and have an inlet or outlet for relief

14 of water flow; except that this requirement

15 shall not operate to preclude the classifica16 tion as type A wetlands lands containing

17 prairie pothole features, playa lakes, or

18 vernal pools if such lands otherwise meet

19 the requirements for type A classification

20 under this paragraph;

21 ‘‘(iii) there exists a scarcity within the

22 watershed or aquatic environment of iden23 tified functions served by such wetlands

24 such that the use of such wetlands for an

25 activity in wetlands or waters of the Unit-
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1 ed States would seriously jeopardize the

2 availability of these identified wetlands

3 functions; and

4 ‘‘(iv) there is unlikely to be an over5 riding public interest in the use of such

6 wetlands for purposes other than conserva7 tion.

8 ‘‘(B) classify as type B wetlands those wet9 lands that provide habitat for a significant pop10 ulation of wetland dependent wildlife or provide

11 other significant wetlands functions, including

12 significant enhancement or protection of water

13 quality or significant natural flood control; and

14 ‘‘(C) classify as type C wetlands all wet15 lands that—

16 ‘‘(i) serve limited wetlands functions;

17 ‘‘(ii) serve marginal wetlands func18 tions but which exist in such abundance

19 that regulation of activities in such wet20 lands is not necessary for conserving im21 portant wetlands functions;

22 ‘‘(iii) are prior converted cropland;

23 ‘‘(iv) are fastlands; or

24 ‘‘(v) are wetlands within industrial,

25 commercial, or residential complexes or
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1 other intensely developed areas that do not

2 serve significant wetlands functions as a

3 result of such location.

4 ‘‘(4) REQUEST FOR DETERMINATION OF JURIS5 DICTION.—

6 ‘‘(A) IN GENERAL.—A person who holds

7 an ownership interest in property, or who has

8 written authorization from such a person, may

9 submit a request to the Secretary identifying

10 the property and requesting the Secretary to

11 make one or more of the following determina12 tions with respect to the property:

13 ‘‘(i) Whether the property contains

14 waters of the United States.

15 ‘‘(ii) If the determination under clause

16 (i) is made, whether any portion of the wa17 ters meets the requirements for delineation

18 as wetland under subsection (g).

19 ‘‘(iii) If the determination under

20 clause (ii) is made, the classification of

21 each wetland on the property under this

22 subsection.

23 ‘‘(B) PROVISION OF INFORMATION.—The

24 person shall provide such additional information
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1 as may be necessary to make each determina2 tion requested under subparagraph (A).

3 ‘‘(C) DETERMINATION AND NOTIFICATION

4 BY THE SECRETARY.—Not later than 90 days

5 after receipt of a request under subparagraph

6 (A), the Secretary shall—

7 ‘‘(i) notify the person submitting the

8 request of each determination made by the

9 Secretary pursuant to the request; and

10 ‘‘(ii) provide written documentation of

11 each determination and the basis for each

12 determination.

13 ‘‘(D) AUTHORITY TO SEEK IMMEDIATE RE14 VIEW.—Any person authorized under this para15 graph to request a jurisdictional determination

16 may seek immediate judicial review of any such

17 jurisdictional determination or may proceed

18 under subsection (i).

19 ‘‘(5) DE NOVO DETERMINATION AFTER AD20 VANCE CLASSIFICATION.—Within 30 days of receipt

21 of notice of an advance classification by the Sec22 retary under paragraph (2)(B) of this subsection, an

23 applicant may request the Secretary to make a de

24 novo determination of the classification of wetlands

25 that are the subject of such notice.
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1 ‘‘(d) RIGHT TO COMPENSATION.—

2 ‘‘(1) IN GENERAL.—The Federal Government

3 shall compensate an owner of property whose use of

4 any portion of that property has been limited by an

5 agency action under this section that diminishes the

6 fair market value of that portion by 20 percent or

7 more. The amount of the compensation shall equal

8 the diminution in value that resulted from the agen9 cy action. If the diminution in value of a portion of

10 that property is greater than 50 percent, at the op11 tion of the owner, the Federal Government shall buy

12 that portion of the property for its fair market

13 value.

14 ‘‘(2) DURATION OF LIMITATION ON USE.—

15 Property with respect to which compensation has

16 been paid under this section shall not thereafter be

17 used contrary to the limitation imposed by the agen18 cy action, even if that action is later rescinded or

19 otherwise vitiated. However, if that action is later

20 rescinded or otherwise vitiated, and the owner elects

21 to refund the amount of the compensation, adjusted

22 for inflation, to the Treasury of the United States,

23 the property may be so used.

24 ‘‘(3) EFFECT OF STATE LAW.—If a use is a

25 nuisance as defined by the law of a State or is al-
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1 ready prohibited under a local zoning ordinance, no

2 compensation shall be made under this section with

3 respect to a limitation on that use.

4 ‘‘(4) EXCEPTIONS.—

5 ‘‘(A) PREVENTION OF HAZARD TO HEALTH

6 OR SAFETY OR DAMAGE TO SPECIFIC PROP7 ERTY.—No compensation shall be made under

8 this section with respect to an agency action the

9 primary purpose of which is to prevent an iden10 tifiable—

11 ‘‘(i) hazard to public health or safety;

12 or

13 ‘‘(ii) damage to specific property other

14 than the property whose use is limited.

15 ‘‘(B) NAVIGATION SERVITUDE.—No com16 pensation shall be made under this section with

17 respect to an agency action pursuant to the

18 Federal navigation servitude, as defined by the

19 courts of the United States, except to the ex20 tent such servitude is interpreted to apply to

21 wetlands.

22 ‘‘(5) PROCEDURE.—

23 ‘‘(A) REQUEST OF OWNER.—An owner

24 seeking compensation under this section shall

25 make a written request for compensation to the
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1 agency whose agency action resulted in the limi2 tation. No such request may be made later than

3 180 days after the owner receives actual notice

4 of that agency action.

5 ‘‘(B) NEGOTIATIONS.—The agency may

6 bargain with that owner to establish the

7 amount of the compensation. If the agency and

8 the owner agree to such an amount, the agency

9 shall promptly pay the owner the amount

10 agreed upon.

11 ‘‘(C) CHOICE OF REMEDIES.—If, not later

12 than 180 days after the written request is

13 made, the parties do not come to an agreement

14 as to the right to and amount of compensation,

15 the owner may choose to take the matter to

16 binding arbitration or seek compensation in a

17 civil action.

18 ‘‘(D) ARBITRATION.—The procedures that

19 govern the arbitration shall, as nearly as prac20 ticable, be those established under title 9, Unit21 ed States Code, for arbitration proceedings to

22 which that title applies. An award made in such

23 arbitration shall include a reasonable attorney’s

24 fee and other arbitration costs (including ap-
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1 praisal fees). The agency shall promptly pay

2 any award made to the owner.

3 ‘‘(E) CIVIL ACTION.—An owner who does

4 not choose arbitration, or who does not receive

5 prompt payment when required by this section,

6 may obtain appropriate relief in a civil action

7 against the agency. An owner who prevails in a

8 civil action under this section shall be entitled

9 to, and the agency shall be liable for, a reason10 able attorney’s fee and other litigation costs (in11 cluding appraisal fees). The court shall award

12 interest on the amount of any compensation

13 from the time of the limitation.

14 ‘‘(F) SOURCE OF PAYMENTS.—Any pay15 ment made under this section to an owner and

16 any judgment obtained by an owner in a civil

17 action under this section shall, notwithstanding

18 any other provision of law, be made from the

19 annual appropriation of the agency whose ac20 tion occasioned the payment or judgment. If the

21 agency action resulted from a requirement im22 posed by another agency, then the agency mak23 ing the payment or satisfying the judgment

24 may seek partial or complete reimbursement

25 from the appropriated funds of the other agen-
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1 cy. For this purpose the head of the agency

2 concerned may transfer or reprogram any ap3 propriated funds available to the agency. If in4 sufficient funds exist for the payment or to sat5 isfy the judgment, it shall be the duty of the

6 head of the agency to seek the appropriation of

7 such funds for the next fiscal year.

8 ‘‘(6) LIMITATION.—Notwithstanding any other

9 provision of law, any obligation of the United States

10 to make any payment under this section shall be

11 subject to the availability of appropriations.

12 ‘‘(7) DUTY OF NOTICE TO OWNERS.—Whenever

13 an agency takes an agency action limiting the use of

14 private property, the agency shall give appropriate

15 notice to the owners of that property directly af16 fected explaining their rights under this section and

17 the procedures for obtaining any compensation that

18 may be due to them under this section.

19 ‘‘(8) RULES OF CONSTRUCTION.—

20 ‘‘(A) EFFECT ON CONSTITUTIONAL RIGHT

21 TO COMPENSATION.—Nothing in this section

22 shall be construed to limit any right to com23 pensation that exists under the Constitution,

24 laws of the United States, or laws of any State.
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1 ‘‘(B) EFFECT OF PAYMENT.—Payment of

2 compensation under this section (other than

3 when the property is bought by the Federal

4 Government at the option of the owner) shall

5 not confer any rights on the Federal Govern6 ment other than the limitation on use resulting

7 from the agency action.

8 ‘‘(9) TREATMENT OF CERTAIN ACTIONS.—A

9 diminution in value under this subsection shall apply

10 to surface interests in lands only or water rights al11 located under State law; except that—

12 ‘‘(A) if the Secretary determines that the

13 exploration for or development of oil and gas or

14 mineral interests is not compatible with limita15 tions on use related to the surface interests in

16 lands that have been classified as type A or

17 type B wetlands located above such oil and gas

18 or mineral interests (or located adjacent to such

19 oil and gas or mineral interests where such ad20 jacent lands are necessary to provide reasonable

21 access to such interests), the Secretary shall no22 tify the owner of such interests that the owner

23 may elect to receive compensation for such in24 terests under paragraph (1); and
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1 ‘‘(B) the failure to provide reasonable ac2 cess to oil and gas or mineral interests located

3 beneath or adjacent to surface interests of type

4 A or type B wetlands shall be deemed a diminu5 tion in value of such oil and gas or mineral in6 terests.

7 ‘‘(10) JURISDICTION.—The arbitrator or court

8 under paragraph (5)(D) or (5)(E) of this subsection,

9 as the case may be, shall have jurisdiction, in the

10 case of oil and gas or mineral interests, to require

11 the United States to provide reasonable access in,

12 across, or through lands that may be the subject of

13 a diminution in value under this subsection solely for

14 the purpose of undertaking activity necessary to de15 termine the value of the interests diminished and to

16 provide other equitable remedies deemed appro17 priate.

18 ‘‘(11) LIMITATIONS ON STATUTORY CONSTRUC19 TION.—No action under this subsection shall be con20 strued—

21 ‘‘(A) to impose any obligation on any State

22 or political subdivision thereof to compensate

23 any person, even in the event that the Secretary

24 has approved a land management plan under
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1 subsection (f)(2) or an individual and general

2 permit program under subsection (l); or

3 ‘‘(B) to alter or supersede requirements

4 governing use of water applicable under State

5 law.

6 ‘‘(e) REQUIREMENTS APPLICABLE TO PERMITTED

7 ACTIVITY.—

8 ‘‘(1) ISSUANCE OR DENIAL OF PERMITS.—Fol9 lowing the determination of wetlands classification

10 pursuant to subsection (c) if applicable, and after

11 compliance with the requirements of subsection (d)

12 if applicable, the Secretary may issue or deny per13 mits for authorization to undertake activities in wet14 lands or waters of the United States in accordance

15 with the requirements of this subsection.

16 ‘‘(2) TYPE A WETLANDS.—

17 ‘‘(A) SEQUENTIAL ANALYSIS.—The Sec18 retary shall determine whether to issue a permit

19 for an activity in waters of the United States

20 classified under subsection (c) as type A wet21 lands based on a sequential analysis that seeks,

22 to the maximum extent practicable, to—

23 ‘‘(i) avoid adverse impact on the wet24 lands;
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1 ‘‘(ii) minimize such adverse impact on

2 wetlands functions that cannot be avoided;

3 and

4 ‘‘(iii) compensate for any loss of wet5 land functions that cannot be avoided or

6 minimized.

7 ‘‘(B) MITIGATION TERMS AND CONDI8 TIONS.—Any permit issued authorizing activi9 ties in type A wetlands may contain such terms

10 and conditions concerning mitigation (including

11 those applicable under paragraph (3) for type B

12 wetlands) that the Secretary deems appropriate

13 to prevent the unacceptable loss or degradation

14 of type A wetlands. The Secretary shall deem

15 the mitigation requirement of this section to be

16 met with respect to activities in type A wetlands

17 if such activities (i) are carried out in accord18 ance with a State-approved reclamation plan or

19 permit which requires recontouring and

20 revegetation following mining, and (ii) result in

21 overall environmental benefits being achieved.

22 ‘‘(3) TYPE B WETLANDS.—

23 ‘‘(A) GENERAL RULE.—The Secretary may

24 issue a permit authorizing activities in type B

25 wetlands if the Secretary finds that issuance of
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1 the permit is in the public interest, balancing

2 the reasonably foreseeable benefits and det3 riments resulting from the issuance of the per4 mit. The permit shall be subject to such terms

5 and conditions as the Secretary finds are nec6 essary to carry out the purposes of the Com7 prehensive Wetlands Conservation and Manage8 ment Act of 1995. In determining whether or

9 not to issue the permit and whether or not spe10 cific terms and conditions are necessary to

11 avoid a significant loss of wetlands functions,

12 the Secretary shall consider the following fac13 tors:

14 ‘‘(i) The quality and quantity of sig15 nificant functions served by the areas to be

16 affected.

17 ‘‘(ii) The opportunities to reduce im18 pacts through cost-effective design to mini19 mize use of wetlands areas.

20 ‘‘(iii) The costs of mitigation require21 ments and the social, recreational, and eco22 nomic benefits associated with the pro23 posed activity, including local, regional, or

24 national needs for improved or expanded
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1 infrastructure, minerals, energy, food pro2 duction, or recreation.

3 ‘‘(iv) The ability of the permittee to

4 mitigate wetlands loss or degradation as

5 measured by wetlands functions.

6 ‘‘(v) The environmental benefit, meas7 ured by wetlands functions, that may occur

8 through mitigation efforts, including re9 storing, preserving, enhancing, or creating

10 wetlands values and functions.

11 ‘‘(vi) The marginal impact of the pro12 posed activity on the watershed of which

13 such wetlands are a part.

14 ‘‘(vii) Whether the impact on the wet15 lands is temporary or permanent.

16 ‘‘(B) DETERMINATION OF PROJECT PUR17 POSE.—In considering an application for activi18 ties on type B wetlands, there shall be a rebut19 table presumption that the project purpose as

20 defined by the applicant shall be binding upon

21 the Secretary. The definition of project purpose

22 for projects sponsored by public agencies shall

23 be binding upon the Secretary, subject to the

24 authority of the Secretary to impose mitigation

25 requirements to minimize impacts on wetlands
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1 values and functions, including cost effective re2 design of projects on the proposed project site.

3 ‘‘(C) MITIGATION REQUIREMENTS.—Ex4 cept as otherwise provided in this section, re5 quirements for mitigation shall be imposed

6 when the Secretary finds that activities under7 taken under this section will result in the loss

8 or degradation of type B wetlands functions

9 where such loss or degradation is not a tem10 porary or incidental impact. When determining

11 mitigation requirements in any specific case,

12 the Secretary shall take into consideration the

13 type of wetlands affected, the character of the

14 impact on wetland functions, whether any ad15 verse effects on wetlands are of a permanent or

16 temporary nature, and the cost effectiveness of

17 such mitigation and shall seek to minimize the

18 costs of such mitigation. The Secretary shall

19 deem the mitigation requirement of this section

20 to be met with respect to activities in type B

21 wetlands if such activities (i) are carried out in

22 accordance with a State-approved reclamation

23 plan or permit which requires recontouring and

24 revegetation following mining, and (ii) will re-
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1 sult in overall environmental benefits being

2 achieved.

3 ‘‘(D) RULES GOVERNING MITIGATION.—In

4 accordance with subsection (j), the Secretary

5 shall issue rules governing requirements for

6 mitigation for activities occurring in wetlands

7 that allow for—

8 ‘‘(i) minimization of impacts through

9 project design in the proposed project site

10 consistent with the project’s purpose, pro11 visions for compensatory mitigation, if any,

12 and other terms and conditions necessary

13 and appropriate in the public interest;

14 ‘‘(ii) preservation or donation of type

15 A wetlands or type B wetlands (where title

16 has not been acquired by the United States

17 and no compensation under subsection (d)

18 for such wetlands has been provided) as

19 mitigation for activities that alter or de20 grade wetlands;

21 ‘‘(iii) enhancement or restoration of

22 degraded wetlands as compensation for

23 wetlands lost or degraded through per24 mitted activity;
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1 ‘‘(iv) creation of wetlands as com2 pensation for wetlands lost or degraded

3 through permitted activity if conditions are

4 imposed that have a reasonable likelihood

5 of being successful;

6 ‘‘(v) compensation through contribu7 tion to a mitigation bank program estab8 lished pursuant to paragraph (4);

9 ‘‘(vi) offsite compensatory mitigation

10 if such mitigation contributes to the res11 toration, enhancement or creation of sig12 nificant wetlands functions on a watershed

13 basis and is balanced with the effects that

14 the proposed activity will have on the spe15 cific site; except that offsite compensatory

16 mitigation, if any, shall be required only

17 within the State within which the proposed

18 activity is to occur, and shall, to the extent

19 practicable, be within the watershed within

20 which the proposed activity is to occur, un21 less otherwise consistent with a State wet22 lands management plan;

23 ‘‘(vii) contribution of in-kind value ac24 ceptable to the Secretary and otherwise au25 thorized by law;
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1 ‘‘(viii) in areas subject to wetlands

2 loss, the construction of coastal protection

3 and enhancement projects;

4 ‘‘(ix) contribution of resources of

5 more than one permittee toward a single

6 mitigation project; and

7 ‘‘(x) other mitigation measures, in8 cluding contributions of other than in-kind

9 value referred to in clause (vii), determined

10 by the Secretary to be appropriate in the

11 public interest and consistent with the re12 quirements and purposes of this Act.

13 ‘‘(E) LIMITATIONS ON REQUIRING MITIGA14 TION.—Notwithstanding the provisions of sub15 paragraph (C), the Secretary may determine

16 not to impose requirements for compensatory

17 mitigation if the Secretary finds that—

18 ‘‘(i) the adverse impacts of a per19 mitted activity are limited;

20 ‘‘(ii) the failure to impose compen21 satory mitigation requirements is compat22 ible with maintaining wetlands functions;

23 ‘‘(iii) no practicable and reasonable

24 means of mitigation are available;
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1 ‘‘(iv) there is an abundance of similar

2 significant wetlands functions and values

3 in or near the area in which the proposed

4 activity is to occur that will continue to

5 serve the functions lost or degraded as a

6 result of such activity, taking into account

7 the impacts of such proposed activity and

8 the cumulative impacts of similar activity

9 in the area;

10 ‘‘(v) the temporary character of the

11 impacts and the use of minimization tech12 niques make compensatory mitigation un13 necessary to protect significant wetlands

14 values; or

15 ‘‘(vi) a waiver from requirements for

16 compensatory mitigation is necessary to

17 prevent special hardship.

18 ‘‘(4) MITIGATION BANKS.—

19 ‘‘(A) ESTABLISHMENT.—Not later than 6

20 months after the date of the enactment of this

21 subparagraph, after providing notice and oppor22 tunity for public review and comment, the Sec23 retary shall issue regulations for the establish24 ment, use, maintenance, and oversight of miti25 gation banks. The regulations shall be devel-
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1 oped in consultation with the heads of other ap2 propriate Federal agencies.

3 ‘‘(B) PROVISIONS AND REQUIREMENTS.—

4 The regulations issued pursuant to subpara5 graph (A) shall ensure that each mitigation

6 bank—

7 ‘‘(i) provides for the chemical, phys8 ical, and biological functions of wetlands or

9 waters of the United States which are lost

10 as a result of authorized adverse impacts

11 to wetlands or other waters of the United

12 States;

13 ‘‘(ii) to the extent practicable and en14 vironmentally desirable, provides in-kind

15 replacement of lost wetlands functions and

16 be located in, or in proximity to, the same

17 watershed or designated geographic area

18 as the affected wetlands or waters of the

19 United States;

20 ‘‘(iii) be operated by a public or pri21 vate entity which has the financial capabil22 ity to meet the requirements of this para23 graph, including the deposit of a perform24 ance bond or other appropriate demonstra25 tion of financial responsibility to support
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1 the long-term maintenance of the bank,

2 fulfill responsibilities for long-term mon3 itoring, maintenance, and protection, and

4 provide for the long-term security of own5 ership interests of wetlands and uplands

6 on which projects are conducted to protect

7 the wetlands functions associated with the

8 mitigation bank;

9 ‘‘(iv) employ consistent and scientif10 ically sound methods to determine debits

11 by evaluating wetlands functions, project

12 impacts, and duration of the impact at the

13 sites of proposed permits for authorized

14 activities pursuant to this section and to

15 determine credits based on wetlands func16 tions at the site of the mitigation bank;

17 ‘‘(v) provide for the transfer of credits

18 for mitigation that has been performed and

19 for mitigation that shall be performed

20 within a designated time in the future,

21 provided that financial bonds shall be post22 ed in sufficient amount to ensure that the

23 mitigation will be performed in the case of

24 default; and
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1 ‘‘(vi) provide opportunity for public

2 notice of and comment on proposals for the

3 mitigation banks; except that any process

4 utilized by a mitigation bank to obtain a

5 permit authorizing operations under this

6 section before the date of the enactment of

7 the Comprehensive Wetlands Conservation

8 and Management Act of 1995 satisfies the

9 requirement for such public notice and

10 comment.

11 ‘‘(5) PROCEDURES AND DEADLINES FOR FINAL

12 ACTION.—

13 ‘‘(A) OPPORTUNITY FOR PUBLIC COM14 MENT.—Not later than 15 days after receipt of

15 an application for a permit under this section,

16 together with information necessary to consider

17 such application, the Secretary shall publish no18 tice that the application has been received and

19 shall provide opportunity for public comment

20 and, to the extent appropriate, opportunity for

21 a public hearing on the issuance of the permit.

22 ‘‘(B) GENERAL PROCEDURES.—In the case

23 of any application for authorization to under24 take activities in wetlands or waters of the

25 United States that are not eligible for treat-
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•HR 1330 IH

1 ment on an expedited basis pursuant to para2 graph (8), final action by the Secretary shall

3 occur within 90 days following the date such

4 application is filed, unless—

5 ‘‘(i) the Secretary and the applicant

6 agree that such final action shall occur

7 within a longer period of time;

8 ‘‘(ii) the Secretary determines that an

9 additional, specified period of time is nec10 essary to permit the Secretary to comply

11 with other applicable Federal law; except

12 that if the Secretary is required under the

13 National Environmental Policy Act of

14 1969 (42 U.S.C. 4321 et seq.) to prepare

15 an environmental impact statement, with

16 respect to the application, the final action

17 shall occur not later than 45 days follow18 ing the date such statement is filed; or

19 ‘‘(iii) the Secretary, within 15 days

20 from the date such application is received,

21 notifies the applicant that such application

22 does not contain all information necessary

23 to allow the Secretary to consider such ap24 plication and identifies any necessary addi-
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•HR 1330 IH

1 tional information, in which case, the pro2 visions of subparagraph (C) shall apply.

3 ‘‘(C) SPECIAL RULE WHEN ADDITIONAL

4 INFORMATION IS REQUIRED.—Upon the receipt

5 of a request for additional information under

6 subparagraph (B)(iii), the applicant shall sup7 ply such additional information and shall advise

8 the Secretary that the application contains all

9 requested information and is therefore com10 plete. The Secretary may—

11 ‘‘(i) within 30 days of the receipt of

12 notice of the applicant that the application

13 is complete, determine that the application

14 does not contain all requested additional

15 information and, on that basis, deny the

16 application without prejudice to resubmis17 sion; or

18 ‘‘(ii) within 90 days from the date

19 that the applicant provides notification to

20 the Secretary that the application is com21 plete, review the application and take final

22 action.

23 ‘‘(D) EFFECT OF NOT MEETING DEAD24 LINE.—If the Secretary fails to take final ac25 tion on an application under this paragraph
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1 within 90 days from the date that the applicant

2 provides notification to the Secretary that such

3 application is complete, a permit shall be pre4 sumed to be granted authorizing the activities

5 proposed in such application under such terms

6 and conditions as are stated in such completed

7 application.

8 ‘‘(6) TYPE C WETLANDS.—Activities in wet9 lands that have been classified as type C wetlands

10 by the Secretary may be undertaken without author11 ization required under subsection (a) of this section.

12 ‘‘(7) STATES WITH SUBSTANTIAL CONSERVED

13 WETLANDS.—

14 ‘‘(A) IN GENERAL.—With respect to type

15 A and type B wetlands in States with substan16 tial conserved wetlands areas, at the option of

17 the permit applicant, the Secretary shall issue

18 permits authorizing activities in such wetlands

19 pursuant to this paragraph. Final action on is20 suance of such permits shall be in accordance

21 with the procedures and deadlines of paragraph

22 (5). The Secretary may include conditions or

23 requirements for minimization of adverse im24 pacts to wetlands functions when minimization

25 is economically practicable. No permit to which
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1 this paragraph applies shall include conditions,

2 requirements, or standards for mitigation to

3 compensate for adverse impacts to wetlands or

4 waters of the United States or conditions, re5 quirements, or standards for avoidance of ad6 verse impacts to wetlands or waters of the

7 United States.

8 ‘‘(B) ECONOMIC BASE LANDS.—Upon ap9 plication by the owner of economic base lands

10 in a State with substantial conserved wetlands

11 areas, the Secretary shall issue individual and

12 general permits to owners of such lands for ac13 tivities in wetlands or waters of the United

14 States. The Secretary shall reduce the require15 ments of subparagraph (A)—

16 ‘‘(i) to allow economic base lands to

17 be beneficially used to create and sustain

18 economic activity; and

19 ‘‘(ii) in the case of lands owned by

20 Alaska Native entities, to reflect the social

21 and economic needs of Alaska Natives to

22 utilize economic base lands.

23 The Secretary shall consult with and provide

24 assistance to the Alaska Natives (including

25 Alaska Native Corporations) in promulgation
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1 and administration of policies and regulations

2 under this section.

3 ‘‘(8) GENERAL PERMITS.—

4 ‘‘(A) GENERAL AUTHORITY.—The Sec5 retary may issue, by rule in accordance with

6 subsection (j), general permits on a pro7 grammatic, State, regional, or nationwide basis

8 for any category of activities involving an activ9 ity in wetlands or waters of the United States

10 if the Secretary determines that such activities

11 are similar in nature and that such activities,

12 when performed separately and cumulatively,

13 will not result in the significant loss of eco14 logically significant wetlands values and func15 tions.

16 ‘‘(B) PROCEDURES.—Permits issued under

17 this paragraph shall include procedures for ex18 pedited review of eligibility for such permits (if

19 such review is required) and may include re20 quirements for reporting and mitigation. To the

21 extent that a proposed activity requires a deter22 mination by the Secretary as to the eligibility to

23 qualify for a general permit under this sub24 section, such determination shall be made with25 in 30 days of the date of submission of the ap-
36

•HR 1330 IH

1 plication for such qualification, or the applica2 tion shall be treated as being approved.

3 ‘‘(C) COMPENSATORY MITIGATION.—Re4 quirements for compensatory mitigation for

5 general permits may be imposed where nec6 essary to offset the significant loss or degrada7 tion of significant wetlands functions where

8 such loss or degradation is not a temporary or

9 incidental impact.

10 ‘‘(D) GRANDFATHER OF EXISTING GEN11 ERAL PERMITS.—General permits in effect on

12 day before the date of the enactment of the

13 Comprehensive Wetlands Conservation and

14 Management Act of 1995 shall remain in effect

15 until otherwise modified by the Secretary.

16 ‘‘(E) STATES WITH SUBSTANTIAL CON17 SERVED LANDS.—Upon application by a State

18 or local authority in a State with substantial

19 conserved wetlands areas, the Secretary shall

20 issue a general permit applicable to such au21 thority for activities in wetlands or waters of

22 the United States. No permit issued pursuant

23 to this subparagraph shall include conditions,

24 requirements, or standards for mitigation to

25 compensate for adverse impacts to wetlands or
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•HR 1330 IH

1 waters of the United States or shall include

2 conditions, requirements, or standards for

3 avoidance of adverse impacts of wetlands or wa4 ters of the United States.

5 ‘‘(9) OTHER WATERS OF THE UNITED

6 STATES.—The Secretary may issue a permit author7 izing activities in waters of the United States (other

8 than those classified as type A, B, or C wetlands

9 under this section) if the Secretary finds that issu10 ance of the permit is in the public interest, bal11 ancing the reasonably foreseeable benefits and det12 riments resulting from the issuance of the permit.

13 The permit shall be subject to such terms and condi14 tions as the Secretary finds are necessary to carry

15 out the purposes of the Comprehensive Wetlands

16 Conservation and Management Act of 1995. In de17 termining whether or not to issue the permit and

18 whether or not specific terms and conditions are nec19 essary to carry out such purposes, the Secretary

20 shall consider the factors set forth in paragraph

21 (3)(A) as they apply to nonwetlands areas and such

22 other provisions of paragraph (3) as the Secretary

23 determines are appropriate to apply to nonwetlands

24 areas.

25 ‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—
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1 ‘‘(1) IN GENERAL.—Activities undertaken in

2 any wetlands or waters of the United States are ex3 empt from the requirements of this section and are

4 not prohibited by or otherwise subject to regulation

5 under this section or section 301 or 402 of this Act

6 (except effluent standards or prohibitions under sec7 tion 307 of this Act) if such activities—

8 ‘‘(A) result from normal farming,

9 silviculture, aquaculture, and ranching activities

10 and practices, including but not limited to plow11 ing, seeding, cultivating, haying, grazing, nor12 mal maintenance activities, minor drainage,

13 burning of vegetation in connection with such

14 activities, harvesting for the production of food,

15 fiber, and forest products, or upland soil and

16 water conservation practices;

17 ‘‘(B) are for the purpose of maintenance,

18 including emergency reconstruction of recently

19 damaged parts, of currently serviceable struc20 tures such as dikes, dams, levees, flood control

21 channels, water control structures, groins,

22 riprap, breakwaters, utility distribution and

23 transmission lines, causeways, and bridge abut24 ments or approaches, and transportation struc25 tures;
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•HR 1330 IH

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

2 maintenance of farm, stock or aquaculture

3 ponds, wastewater retention facilities (including

4 dikes and berms) that are used by concentrated

5 animal feeding operations, or irrigation canals

6 and ditches or the maintenance of drainage

7 ditches;

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

9 temporary sedimentation basins on a construc10 tion site which does not include placement of

11 fill material into the navigable waters;

12 ‘‘(E) are for the purpose of construction or

13 maintenance of farm roads or forest roads, tem14 porary roads for moving mining equipment, ac15 cess roads for utility distribution and trans16 mission lines, or railroad lines of up to 10 miles

17 in length if such roads or railroad lines are con18 structed and maintained, in accordance with

19 best management practices, to assure that flow

20 and circulation patterns and chemical and bio21 logical characteristics of the waters are not im22 paired, that the reach of the waters is not re23 duced, and that any adverse effect on the

24 aquatic environment will be otherwise mini25 mized;
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•HR 1330 IH

1 ‘‘(F) are undertaken on farmed wetlands,

2 except that any change in use of such land for

3 the purpose of undertaking activities that are

4 not exempt from regulation under this sub5 section shall be subject to the requirements of

6 this section to the extent that such farmed wet7 lands are ‘wetlands’ under this section;

8 ‘‘(G) result from any activity with respect

9 to which a State has an approved program

10 under section 208(b)(4) of this Act which meets

11 the requirements of subparagraphs (B) and (C)

12 of such section;

13 ‘‘(H) are consistent with a State or local

14 land management plan submitted to the Sec15 retary and approved pursuant to paragraph (2);

16 ‘‘(I) are undertaken in connection with a

17 marsh management and conservation program

18 in a coastal parish in the State of Louisiana

19 where such program has been approved by the

20 Governor of such State or the designee of the

21 Governor;

22 ‘‘(J) are undertaken on lands or involve

23 activities within a State’s coastal zone which

24 are excluded from regulation under a State

25 coastal zone management program approved
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•HR 1330 IH

1 under the Coastal Zone Management Act of

2 1972 (16 U.S.C. 1451, et seq.);

3 ‘‘(K) are undertaken in incidentally created

4 wetlands, unless such incidentally created wet5 lands have exhibited wetlands functions and val6 ues for more than 5 years in which case activi7 ties undertaken in such wetlands shall be sub8 ject to the requirements of this section;

9 ‘‘(L) are for the purpose of preserving and

10 enhancing aviation safety or are undertaken in

11 order to prevent an airport hazard;

12 ‘‘(M) result from aggregate, clay, or phos13 phate mining activities in wetlands conducted

14 pursuant to a State or Federal permit that re15 quires the reclamation of such affected wetlands

16 if such reclamation will be completed within 5

17 years of the commencement of activities at the

18 site and, upon completion of such reclamation,

19 the wetlands will support wetlands functions

20 equivalent to the functions supported by the

21 wetlands at the time of commencement of such

22 activities;

23 ‘‘(N) are for the placement of a structural

24 member for a pile-supported structure, such as

25 a pier or dock, or for a linear project such as
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•HR 1330 IH

1 a bridge, transmission or distribution line foot2 ing, powerline structure, or elevated or other

3 walkway;

4 ‘‘(O) are for the placement of a piling in

5 waters of the United States in a circumstance

6 that involves—

7 ‘‘(i) a linear project described in sub8 paragraph (N); or

9 ‘‘(ii) a structure such as a pier, boat10 house, wharf, marina, lighthouse, or indi11 vidual house built on stilts solely to reduce

12 the potential of flooding;

13 ‘‘(P) are for the clearing (including mecha14 nized clearing) of vegetation within a right-of15 way associated with the development and main16 tenance of a transmission or distribution line or

17 other powerline structure;

18 ‘‘(Q) are undertaken in or affecting

19 waterfilled depressions created in uplands inci20 dental to construction activity, or are under21 taken in or affecting pits excavated in uplands

22 for the purpose of obtaining fill, sand, gravel,

23 aggregates, or minerals, unless and until the

24 construction or excavation operation is aban25 doned; or
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1 ‘‘(R) are undertaken in a State with sub2 stantial conserved wetlands areas and—

3 ‘‘(i) are for purposes of providing crit4 ical infrastructure, including water and

5 sewer systems, airports, roads, communica6 tion sites, fuel storage sites, landfills, hous7 ing, hospitals, medical clinics, schools, and

8 other community infrastructure;

9 ‘‘(ii) are for construction and mainte10 nance of log transfer facilities associated

11 with log transportation activities;

12 ‘‘(iii) are for construction of tailings

13 impoundments utilized for treatment facili14 ties (as determined by the development

15 document) for the mining subcategory for

16 which the tailings impoundment is con17 structed; or

18 ‘‘(iv) are for construction of ice pads

19 and ice roads and for purposes of snow

20 storage and removal.

21 ‘‘(2) STATE OR LOCAL MANAGEMENT PLAN.—

22 Any State or political subdivision thereof acting pur23 suant to State authorization may develop a land

24 management plan with respect to lands that include

25 identified wetlands. The State or local government
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•HR 1330 IH

1 agency may submit any such plan to the Secretary

2 for review and approval. The Secretary shall, within

3 60 days, notify in writing the designated State or

4 local official of approval or disapproval of any such

5 plan. The Secretary shall approve any plan that is

6 consistent with the purposes of this section. No per7 son shall be entitled to judicial review of the decision

8 of the Secretary to approve or disapprove a land

9 management plan under this paragraph. Nothing in

10 this paragraph shall be construed to alter, limit, or

11 supersede the authority of a State or political sub12 division thereof to establish land management plans

13 for purposes other than the provisions of this sub14 section.

15 ‘‘(g) RULES FOR DELINEATING WETLANDS.—

16 ‘‘(1) STANDARDS.—

17 ‘‘(A) ISSUANCE OF RULE.—The Secretary

18 is authorized and directed to establish stand19 ards, by rule in accordance with subsection (j),

20 that shall govern the delineation of lands as

21 ‘wetlands’ for purposes of this section. Such

22 rules shall be established after consultation with

23 the heads of other appropriate Federal agencies

24 and shall be binding on all Federal agencies in

25 connection with the administration or imple-
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1 mentation of any provision of this section. The

2 standards for delineation of wetlands and any

3 decision of the Secretary, the Secretary of Agri4 culture (in the case of agricultural lands and

5 associated nonagricultural lands), or any other

6 Federal officer or agency made in connection

7 with the administration of this section shall

8 comply with the requirements for delineation of

9 wetlands set forth in subparagraphs (B) and

10 (C).

11 ‘‘(B) EXCEPTIONS.—The standards estab12 lished by rule or applied in any case for pur13 poses of this section shall ensure that lands are

14 delineated as wetlands only if such lands are

15 found to be ‘wetlands’ under section 502 of this

16 Act; except that such standards may not—

17 ‘‘(i) result in the delineation of lands

18 as wetlands unless clear evidence of wet19 lands hydrology, hydrophytic vegetation,

20 and hydric soil are found to be present

21 during the period in which such delineation

22 is made, which delineation shall be con23 ducted during the growing season unless

24 otherwise requested by the applicant;
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•HR 1330 IH

1 ‘‘(ii) result in the classification of

2 vegetation as hydrophytic if such vegeta3 tion is equally adapted to dry or wet soil

4 conditions or is more typically adapted to

5 dry soil conditions than to wet soil condi6 tions;

7 ‘‘(iii) result in the classification of

8 lands as wetlands unless some obligate

9 wetlands vegetation is found to be present

10 during the period of delineation; except

11 that if such vegetation has been removed

12 for the purpose of evading jurisdiction

13 under this section, this clause shall not

14 apply;

15 ‘‘(iv) result in the conclusion that wet16 lands hydrology is present unless water is

17 found to be present at the surface of such

18 lands for 21 consecutive days in the grow19 ing seasons in a majority of the years for

20 which records are available; and

21 ‘‘(v) result in the classification of

22 lands as wetlands that are temporarily or

23 incidentally created as a result of adjacent

24 development activity.
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1 ‘‘(C) NORMAL CIRCUMSTANCES.—In addi2 tion to the requirements of subparagraph (B),

3 any standards established by rule or applied to

4 delineate wetlands for purposes of this section

5 shall provide that ‘normal circumstances’ shall

6 be determined on the basis of the factual cir7 cumstances in existence at the time a classifica8 tion is made under subsection (h) or at the time

9 of application under subsection (e), whichever is

10 applicable, if such circumstances have not been

11 altered by an activity prohibited under this sec12 tion.

13 ‘‘(2) LAND AREA CAP FOR TYPE A WET14 LANDS.—No more than 20 percent of any county,

15 parish, or borough shall be classified as type A wet16 lands. Type A wetlands in Federal or State owner17 ship (including type A wetlands in units of the Na18 tional Wildlife Refuge System, the National Park

19 System, and lands held in conservation easements)

20 shall be included in calculating the percent of type

21 A wetlands in a county, parish, or borough.

22 ‘‘(3) AGRICULTURAL LANDS.—

23 ‘‘(A) DELINEATION BY SECRETARY OF AG24 RICULTURE.—For purposes of this section, wet25 lands located on agricultural lands and associ-
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1 ated nonagricultural lands shall be delineated

2 solely by the Secretary of Agriculture in accord3 ance with section 1222(j) of the Food Security

4 Act of 1985 (16 U.S.C. 3822(j)).

5 ‘‘(B) EXEMPTION OF LANDS EXEMPTED

6 UNDER FOOD SECURITY ACT.—Any area of ag7 ricultural land or any activities related to the

8 land determined to be exempt from the require9 ments of subtitle C of title XII of the Food Se10 curity Act of 1985 (16 U.S.C. 3821 et seq.)

11 shall also be exempt from the requirements of

12 this section for such period of time as those

13 lands are used as agricultural lands.

14 ‘‘(C) EFFECT OF APPEAL DETERMINATION

15 PURSUANT TO FOOD SECURITY ACT.—Any area

16 of agricultural land or any activities related to

17 the land determined to be exempt pursuant to

18 an appeal taken pursuant to subtitle C of title

19 XII of the Food Security Act of 1985 (16

20 U.S.C. 3821 et seq.) shall be exempt under this

21 section for such period of time as those lands

22 are used as agricultural lands.

23 ‘‘(h) MAPPING AND PUBLIC NOTICE REQUIRE24 MENTS.—

25 ‘‘(1) PROVISION OF PUBLIC NOTICE.—
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1 ‘‘(A) IN GENERAL.—Not later than 90

2 days after the date of the enactment of the

3 Comprehensive Wetlands Conservation and

4 Management Act of 1995, the Secretary shall

5 provide the court of each county, parish, or bor6 ough in which the wetland subject to classifica7 tion under subsection (c) is located, a notice for

8 posting near the property records of the county,

9 parish, or borough. The notice shall—

10 ‘‘(i) state that wetlands regulated

11 under this section may be located in the

12 county, parish, or borough;

13 ‘‘(ii) provide an explanation under14 standable to the general public of how wet15 lands are delineated and classified;

16 ‘‘(iii) describe the requirements and

17 restrictions of the regulatory program

18 under this section; and

19 ‘‘(iv) provide instructions on how to

20 obtain a delineation and classification of

21 wetlands under this section.

22 ‘‘(2) PROVISION OF DELINEATION DETERMINA23 TIONS.—On completion under this section of a delin24 eation and classification of property that contains

25 wetlands or a delineation of property that contains
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1 waters of the United States that are not wetlands,

2 the Secretary of Agriculture, in the case of wetlands

3 located on agricultural lands and associated non4 agricultural lands, and the Secretary, in the case of

5 other lands, shall—

6 ‘‘(A) file a copy of the delineation, includ7 ing the classification of any wetland located on

8 the property, with the records of the property

9 in the local courthouse; and

10 ‘‘(B) serve a copy of the delineation deter11 mination on every owner of the property on

12 record and any person with a recorded mort13 gage or lien on the property.

14 ‘‘(3) NOTICE OF ENFORCEMENT ACTIONS.—The

15 Secretary shall file notice of each enforcement action

16 under this section taken with respect to private

17 property with the records of the property in the local

18 courthouse.

19 ‘‘(4) WETLANDS IDENTIFICATION AND CLASSI20 FICATION PROJECT.—

21 ‘‘(A) IN GENERAL.—The Secretary and the

22 Secretary of Agriculture shall undertake a

23 project to identify and classify wetlands in the

24 United States that are regulated under this sec25 tion. The Secretaries shall complete such
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1 project not later than 10 years after the date

2 of the enactment of the Comprehensive Wet3 lands Conservation and Management Act of

4 1995.

5 ‘‘(B) APPLICABILITY OF DELINEATION

6 STANDARDS.—In conducting the project under

7 this section, the Secretaries shall identify and

8 classify wetlands in accordance with standards

9 for delineation of wetlands established by the

10 Secretaries under subsection (g).

11 ‘‘(C) PUBLIC HEARINGS.—In conducting

12 the project under this section, the Secretaries

13 shall provide notice and an opportunity for a

14 public hearing in each county, parish or bor15 ough of a State before completion of identifica16 tion and classification of wetlands in such coun17 ty, parish, or borough.

18 ‘‘(D) PUBLICATION.—Promptly after com19 pletion of identification and classification of

20 wetlands in a county, parish, or borough under

21 this section, the Secretaries shall have published

22 information on such identification and classi23 fication in the Federal Register and in publica24 tions of wide circulation and take other steps
52

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1 reasonably necessary to ensure that such infor2 mation is available to the public.

3 ‘‘(E) REPORTS.—The Secretaries shall re4 port to Congress on implementation of the

5 project to be conducted under this section not

6 later than 2 years after the date of the enact7 ment of the Comprehensive Wetlands Conserva8 tion and Management Act of 1995 and annually

9 thereafter.

10 ‘‘(F) RECORDATION.—Any classification of

11 lands as wetlands under this section shall, to

12 the maximum extent practicable, be recorded on

13 the property records in the county, parish, or

14 borough in which such wetlands are located.

15 ‘‘(i) ADMINISTRATIVE APPEALS.—

16 ‘‘(1) REGULATIONS ESTABLISHING PROCE17 DURES.—Not later than 1 year after the date of the

18 enactment of the Comprehensive Wetlands Conserva19 tion and Management Act of 1995, the Secretary

20 shall, after providing notice and opportunity for pub21 lic comment, issue regulations establishing proce22 dures pursuant to which—

23 ‘‘(A) a landowner may appeal a determina24 tion of regulatory jurisdiction under this section
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1 with respect to a parcel of the landowner’s

2 property;

3 ‘‘(B) a landowner may appeal a wetlands

4 classification under this section with respect to

5 a parcel of the landowner’s property;

6 ‘‘(C) any person may appeal a determina7 tion that the proposed activity on the land8 owner’s property is not exempt under sub9 section (f);

10 ‘‘(D) a landowner may appeal a determina11 tion that an activity on the landowner’s prop12 erty does not qualify under a general permit is13 sued under this section;

14 ‘‘(E) an applicant for a permit under this

15 section may appeal a determination made pur16 suant to this section to deny issuance of the

17 permit or to impose a requirement under the

18 permit; and

19 ‘‘(F) a landowner or any other person re20 quired to restore or otherwise alter a parcel of

21 property pursuant to an order issued under this

22 section may appeal such order.

23 ‘‘(2) DEADLINE FOR FILING APPEAL.—An ap24 peal brought pursuant to this subsection shall be

25 filed not later than 30 days after the date on which
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1 the decision or action on which the appeal is based

2 occurs.

3 ‘‘(3) DEADLINE FOR DECISION.—An appeal

4 brought pursuant to this subsection shall be decided

5 not later than 90 days after the date on which the

6 appeal is filed.

7 ‘‘(4) PARTICIPATION IN APPEALS PROCESS.—

8 Any person who participated in the public comment

9 process concerning a decision or action that is the

10 subject of an appeal brought pursuant to this sub11 section may participate in such appeal.

12 ‘‘(5) DECISIONMAKER.—An appeal brought

13 pursuant to this subsection shall be heard and de14 cided by an appropriate and impartial official of the

15 Federal Government, other than the official who

16 made the determination or carried out the action

17 that is the subject of the appeal.

18 ‘‘(6) STAY OF PENALTIES AND MITIGATION.—A

19 landowner or any other person who has filed an ap20 peal under this subsection shall not be required to

21 pay a penalty or perform mitigation or restoration

22 assessed under this section or section 309 until after

23 the appeal has been decided.

24 ‘‘(j) ADMINISTRATIVE PROVISIONS.—
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1 ‘‘(1) FINAL REGULATIONS FOR ISSUANCE OF

2 PERMITS.—Not later than 1 year after the date of

3 the enactment of the Comprehensive Wetlands Con4 servation and Management Act of 1995, the Sec5 retary shall, after notice and opportunity for com6 ment, issue (in accordance with section 553 of title

7 5 of the United States Code and this section) final

8 regulations for implementation of this section. Such

9 regulations shall, in accordance with this section,

10 provide—

11 ‘‘(A) standards and procedures for the

12 classification and delineation of wetlands and

13 procedures for administrative review of any

14 such classification or delineation;

15 ‘‘(B) standards and procedures for the re16 view of State or local land management plans

17 and State programs for the regulation of wet18 lands;

19 ‘‘(C) for the issuance of general, including

20 programmatic, State, regional, and nationwide

21 permits;

22 ‘‘(D) standards and procedures for the in23 dividual permit applications under this section;

24 ‘‘(E) for enforcement of this section; and
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1 ‘‘(F) any other rules and regulations that

2 the Secretary deems necessary or appropriate to

3 implement the requirements of this section.

4 ‘‘(2) JUDICIAL REVIEW OF FINAL REGULA5 TIONS.—Any judicial review of final regulations is6 sued pursuant to this section and the Secretary’s de7 nial of any petition for the issuance, amendment, or

8 repeal of any regulation under this section shall be

9 in accordance with sections 701 through 706 of title

10 5 of the United States Code; except that a petition

11 for review of action of the Secretary in issuing any

12 regulation or requirement under this section or de13 nying any petition for the issuance, amendment, or

14 repeal of any regulation under this section may be

15 filed only in the United States Court of Appeals for

16 the District of Columbia, and such petition shall be

17 filed within 90 days from the date of such issuance

18 or denial or after such date if such petition for re19 view is based solely on grounds arising after such

20 ninetieth day. Action of the Secretary with respect

21 to which review could have been obtained under this

22 subsection shall not be subject to judicial review in

23 civil or criminal proceedings for enforcement.

24 ‘‘(3) INTERIM REGULATIONS.—The Secretary

25 shall, within 90 days after the date of the enactment
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1 of the Comprehensive Wetlands Conservation and

2 Management Act of 1995, issue interim regulations

3 consistent with this section to take effect imme4 diately. Notice of the interim regulations shall be

5 published in the Federal Register, and such regula6 tions shall be binding until the issuance of final reg7 ulations pursuant to paragraph (1); except that the

8 Secretary shall provide adequate procedures for

9 waiver of any provisions of such interim regulations

10 to avoid special hardship, inequity, or unfair dis11 tribution of burdens or to advance the purposes

12 of this section.

13 ‘‘(4) ADMINISTRATION BY SECRETARY.—Except

14 where otherwise expressly provided in this section,

15 the Secretary shall administer this section. The Sec16 retary or any other Federal officer or agency in

17 which any function under this section is vested or

18 delegated is authorized to perform any and all acts

19 (including appropriate enforcement activity), and to

20 prescribe, issue, amend, or rescind such rules or or21 ders as such officer or agency may find necessary or

22 appropriate with this subsection, subject to the re23 quirements of this subsection.

24 ‘‘(k) ENFORCEMENT.—
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1 ‘‘(1) COMPLIANCE ORDER.—Whenever, on the

2 basis of reliable and substantial information and

3 after reasonable inquiry, the Secretary finds that

4 any person is or may be in violation of this section

5 or of any condition or limitation set forth in a per6 mit issued by the Secretary under this section, the

7 Secretary shall issue an order requiring such persons

8 to comply with this section or with such condition or

9 limitation.

10 ‘‘(2) NOTICE AND OTHER PROCEDURAL RE11 QUIREMENTS RELATING TO ORDERS.—A copy of any

12 order issued under this subsection shall be sent im13 mediately by the Secretary to the Governor of the

14 State in which the violation occurs and the Gov15 ernors of other affected States. The person commit16 ting the asserted violation that results in issuance of

17 the order shall be notified of the issuance of the

18 order by personal service made to the appropriate

19 person or corporate officer. The notice shall state

20 with reasonable specificity the nature of the asserted

21 violation and specify a time for compliance, not to

22 exceed 30 days, which the Secretary determines is

23 reasonable taking into account the seriousness of the

24 asserted violation and any good faith efforts to com25 ply with applicable requirements. If the person re-
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1 ceiving the notice disputes the Secretary’s deter2 mination, the person may file an appeal as provided

3 in subsection (i). Within 60 days of a decision which

4 denies an appeal, or within 150 days from the date

5 of notification of violation by the Secretary if no ap6 peal is filed, the Secretary shall prosecute a civil ac7 tion in accordance with paragraph (3) or rescind

8 such order and be estopped from any further en9 forcement proceedings for the same asserted viola10 tion.

11 ‘‘(3) CIVIL ACTION ENFORCEMENT.—The Sec12 retary is authorized to commence a civil action for

13 appropriate relief, including a permanent or tem14 porary injunction, for any violation for which the

15 Secretary is authorized to issue a compliance order

16 under paragraph (1). Any action under this para17 graph may be brought in the district court of the

18 United States for the district in which the defendant

19 is located or resides or is doing business, and such

20 court shall have jurisdiction to restrain such viola21 tion and to require compliance. Notice of the com22 mencement of such action shall be given immediately

23 to the appropriate State.

24 ‘‘(4) CIVIL PENALTIES.—Any person who vio25 lates any condition or limitation in a permit issued
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1 by the Secretary under this section and any person

2 who violates any order issued by the Secretary under

3 paragraph (1) shall be subject to a civil penalty not

4 to exceed $25,000 per day for each violation com5 mencing on expiration of the compliance period if no

6 appeal is filed or on the 30th day following the date

7 of the denial of an appeal of such violation. The

8 amount of the penalty imposed per day shall be in

9 proportion to the scale or scope of the project. In de10 termining the amount of a civil penalty, the court

11 shall consider the seriousness of the violation or vio12 lations, the economic benefit (if any) resulting from

13 the violation, any history of such violations, any

14 good-faith efforts to comply with the applicable re15 quirements, the economic impact of the penalty on

16 the violator, and such other matters as justice may

17 require.

18 ‘‘(5) CRIMINAL PENALTIES.—If any person

19 knowingly and willfully violates any condition or lim20 itation in a permit issued by the Secretary under

21 this section or knowingly and willfully violates an

22 order issued by the Secretary under paragraph (1)

23 and has been notified of the issuance of such order

24 under paragraph (2) and if such violation has re25 sulted in actual degradation of the environment,
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1 such person shall be punished by a fine of not less

2 than $5,000 nor more than $50,000 per day of vio3 lation, or by imprisonment for not more than 3

4 years, or by both. If a conviction of a person is for

5 a violation committed after a first conviction of such

6 person under this paragraph, punishment shall be by

7 a fine of not more than $100,000 per day of viola8 tion, or imprisonment of not more than 6 years, or

9 by both. An action for imposition of a criminal pen10 alty under this paragraph may only be brought by

11 the Attorney General.

12 ‘‘(l) STATE REGULATION.—

13 ‘‘(1) SUBMISSION OF PROPOSED STATE PRO14 GRAM.—The Governor of any State desiring to ad15 minister its own individual or general permit pro16 gram for some or all of the activities covered by this

17 section within any geographical region within its ju18 risdiction may submit to the Secretary a description

19 of the program it proposes to establish and admin20 ister under State law or under an interstate com21 pact. In addition, such State shall submit a state22 ment from the chief legal officer in the case of the

23 State or interstate agency, that the laws of such

24 State, or the interstate compact, as the case may be,
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1 provide adequate authority to carry out the de2 scribed program.

3 ‘‘(2) STATE AUTHORITIES REQUIRED FOR AP4 PROVAL.—Not later than 1 year after the date of

5 the receipt by the Secretary of a program and state6 ment submitted by any State under paragraph (1),

7 the Secretary shall determine whether such State

8 has the following authority with respect to the issu9 ance of permits pursuant to such program:

10 ‘‘(A) to issue permits which—

11 ‘‘(i) apply, and assure compliance

12 with, any applicable requirements of this

13 section; and

14 ‘‘(ii) can be terminated or modified

15 for cause, including—

16 ‘‘(I) violation of any condition of

17 the permit;

18 ‘‘(II) obtaining a permit by mis19 representation, or failure to disclose

20 fully all relevant facts; or

21 ‘‘(III) change in any condition

22 that requires either a temporary or

23 permanent reduction or elimination

24 of the permitted activity;
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1 ‘‘(B) to issue permits which apply, and en2 sure compliance with, all applicable require3 ments of section 308 of this Act or to inspect,

4 monitor, enter, and require reports to at least

5 the same extent as required in section 308 of

6 this Act;

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

8 other State the waters of which may be af9 fected, receive notice of each application for a

10 permit and to provide an opportunity for public

11 hearing before a ruling on each such applica12 tion;

13 ‘‘(D) to ensure that the Secretary receives

14 notice of each application for a permit and that,

15 prior to any action by the State, both the appli16 cant for the permit and the State have received

17 from the Secretary information with respect to

18 any advance classification applicable to wet19 lands that are the subject of such application;

20 ‘‘(E) to ensure that any State (other than

21 the permitting State) whose waters may be af22 fected by the issuance of a permit may submit

23 written recommendation to the permitting State

24 with respect to any permit application and, if

25 any part of such written recommendations are
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1 not accepted by the permitting State, that the

2 permitting State will notify such affected State

3 (and the Secretary) in writing of its failure to

4 so accept such recommendations together with

5 its reasons for doing so; and

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

7 the permit program, including civil and criminal

8 penalties and other ways and means of enforce9 ment.

10 ‘‘(3) APPROVAL; RESUBMISSION.—If, with re11 spect to a State program submitted under paragraph

12 (1) of this section, the Secretary determines that the

13 State—

14 ‘‘(A) has the authority set forth in para15 graph (2), the Secretary shall approve the pro16 gram and so notify such State and suspend the

17 issuance of permits under subsection (b) for ac18 tivities with respect to which a permit may be

19 issued pursuant to the State program; or

20 ‘‘(B) does not have the authority set forth

21 in paragraph (2) of this subsection, the Sec22 retary shall so notify such State and provide a

23 description of the revisions or modifications

24 necessary so that the State may resubmit the
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1 program for a determination by the Secretary

2 under this subsection.

3 ‘‘(4) EFFECT OF FAILURE OF SECRETARY TO

4 MAKE TIMELY DECISION.—If the Secretary fails to

5 make a determination with respect to any program

6 submitted by a State under this subsection within 1

7 year after the date of receipt of the program, the

8 program shall be treated as being approved pursuant

9 to paragraph (3)(A) and the Secretary shall so no10 tify the State and suspend the issuance of permits

11 under subsection (b) for activities with respect to

12 which a permit may be issued by the State.

13 ‘‘(5) TRANSFER OF PENDING APPLICATIONS

14 FOR PERMITS.—If the Secretary approves a State

15 permit program under paragraph (3)(A) or (4), the

16 Secretary shall transfer any applications for permits

17 pending before the Secretary for activities with re18 spect to which a permit may be issued pursuant to

19 the State program to the State for appropriate

20 action.

21 ‘‘(6) GENERAL PERMITS.—Upon notification

22 from a State with a permit program approved under

23 this subsection that such State intends to administer

24 and enforce the terms and conditions of a general

25 permit issued by the Secretary under subsection (e)
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1 with respect to activities in the State to which such

2 general permit applies, the Secretary shall suspend

3 the administration and enforcement of such general

4 permit with respect to such activities.

5 ‘‘(7) REVIEW BY SECRETARY.—Every 5 years

6 after approval of a State administered program

7 under paragraph (3)(A), the Secretary shall review

8 the program to determine whether it is being admin9 istered in accordance with this section. If, on the

10 basis of such review, the Secretary finds that a State

11 is not administering its program in accordance with

12 this section or if the Secretary determines based on

13 clear and convincing evidence after a public hearing

14 that a State is not administering its program in ac15 cordance with this section and that substantial ad16 verse impacts to wetlands or waters of the United

17 States are imminent, the Secretary shall notify the

18 State and, if appropriate corrective action is not

19 taken within a reasonable time, not to exceed 90

20 days after the date of the receipt of such notifica21 tion, the Secretary shall—

22 ‘‘(A) withdraw approval of the program

23 until the Secretary determines such corrective

24 action has been taken; and
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1 ‘‘(B) resume the program for the issuance

2 of permits under subsections (b) and (e) for all

3 activities with respect to which the State was is4 suing permits until such time as the Secretary

5 makes the determination described in para6 graph (2) and the State again has an approved

7 program.

8 ‘‘(m) MISCELLANEOUS PROVISIONS.—

9 ‘‘(1) STATE AUTHORITY TO CONTROL DIS10 CHARGES.—Nothing in this section shall preclude or

11 deny the right of any State or interstate agency to

12 control activities in waters within the jurisdiction of

13 such State, including any activity of any Federal

14 agency, and each such agency shall comply with

15 such State or interstate requirements both sub16 stantive and procedural to control such activities to

17 the same extent that any person is subject to such

18 requirements. This section shall not be construed as

19 affecting or impairing the authority of the Secretary

20 to maintain navigation.

21 ‘‘(2) AVAILABILITY TO PUBLIC.—A copy of each

22 permit application and each permit issued under this

23 section shall be available to the public. Such permit

24 application or portion thereof shall further be avail25 able on request for the purpose of reproduction.
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1 ‘‘(3) PUBLICATION IN FEDERAL REGISTER.—

2 The Secretary shall have published in the Federal

3 Register all memoranda of agreement, regulatory

4 guidance letters, and other guidance documents of

5 general applicability to implementation of this sec6 tion at the time they are distributed to agency re7 gional or field offices. In addition, the Secretary

8 shall prepare, update on a biennial basis and make

9 available to the public for purchase at cost—

10 ‘‘(A) an indexed publication containing all

11 Federal regulations, general permits, memo12 randa of agreement, regulatory guidance letters,

13 and other guidance documents relevant to the

14 permitting of activities pursuant to this section;

15 and

16 ‘‘(B) information to enable the general

17 public to understand the delineation of wet18 lands, the permitting requirements referred to

19 in subsection (e), wetlands restoration and en20 hancement, wetlands functions, available non21 regulatory programs to conserve and restore

22 wetlands, and other matters that the Secretary

23 considers relevant.

24 ‘‘(4) COMPLIANCE.—
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1 ‘‘(A) COMPLIANCE WITH PERMIT.—Com2 pliance with a permit issued pursuant to this

3 section, including any activity carried out pur4 suant to a general permit issued under this sec5 tion, shall be deemed in compliance, for pur6 poses of sections 309 and 505, with sections

7 301, 307, and 403.

8 ‘‘(B) CRANBERRY PRODUCTION.—Activi9 ties associated with expansion, improvement, or

10 modification of existing cranberry production

11 operations shall be deemed in compliance, for

12 purposes of sections 309 and 505, with section

13 301, if—

14 ‘‘(i) the activity does not result in the

15 modification of more than 10 acres of wet16 lands per operator per year and the modi17 fied wetlands (other than where dikes and

18 other necessary facilities are placed) re19 main as wetlands or other waters of the

20 United States; or

21 ‘‘(ii) the activity is required by any

22 State or Federal water quality program.

23 ‘‘(5) LIMITATION ON FEES.—Any fee charged

24 in connection with the delineation or classification of

25 wetlands, the submission or processing of an applica-
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1 tion for a permit authorizing an activity in wetlands

2 or waters of the United States, or any other action

3 taken in compliance with the requirements of this

4 section (other than fines for violations under sub5 section (k)) shall not exceed the amount in effect for

6 such fee on February 15, 1995.

7 ‘‘(6) BALANCED IMPLEMENTATION.—

8 ‘‘(A) IN GENERAL.—In implementing his

9 or her responsibilities under the regulatory pro10 gram under this section, the Secretary shall

11 balance the objective of conserving functioning

12 wetlands with the objective of ensuring contin13 ued economic growth, providing essential infra14 structure, maintaining strong State and local

15 tax bases, and protecting against the diminish16 ment of the use and value of privately owned

17 property.

18 ‘‘(B) MINIMIZATION OF ADVERSE EFFECTS

19 ON PRIVATE PROPERTY.—In carrying out this

20 section, the Secretary and the heads of all other

21 Federal agencies shall seek in all actions to

22 minimize the adverse effects of the regulatory

23 program under this section on the use and

24 value of privately owned property.
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1 ‘‘(7) PROCEDURES FOR EMERGENCIES.—The

2 Secretary shall develop procedures for facilitating ac3 tions under this section that are necessary to re4 spond to emergency conditions (including flood

5 events and other emergency situations) which may

6 involve loss of life and property damage. Such proce7 dures shall address circumstances requiring expe8 dited approvals as well as circumstances requiring

9 no formal approval under this section.

10 ‘‘(8) USE OF PROPERTY.—For purposes of this

11 section, a use of property is limited by an agency ac12 tion if a particular legal right to use that property

13 no longer exists because of the action.

14 ‘‘(9) LIMITATION ON CLASSIFICATION OF CER15 TAIN WATERS.—For purposes of this section, no

16 water of the United States or wetland shall be sub17 ject to this section based solely on the fact that mi18 gratory birds use or could use such water or wet19 land.

20 ‘‘(10) TRANSITION RULES.—

21 ‘‘(A) PERMIT REQUIRED.—After the effec22 tive date of this section under section 6 of the

23 Comprehensive Wetlands Conservation and

24 Management Act of 1995, no permit for any ac25 tivity in wetlands or waters of the United
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1 States may be issued except in accordance with

2 this section. Any application for a permit for

3 such an activity pending under this section on

4 such effective date shall be deemed to be an ap5 plication for a permit under this section.

6 ‘‘(B) PRIOR PERMITS.—Any permit for an

7 activity in wetlands or waters of the United

8 States issued under this section prior to the ef9 fective date referred to in subparagraph (A)

10 shall be deemed to be a permit under this sec11 tion and shall continue in force and effect for

12 the term of the permit unless revoked, modified,

13 suspended, or canceled in accordance with this

14 section.

15 ‘‘(C) REEVALUATION.—Any person holding

16 a permit for an activity in wetlands or water of

17 the United States on the effective date referred

18 to in subparagraph (A) may petition, after such

19 effective date, the Secretary for reevaluation of

20 any decision made before such effective date

21 concerning (i) a determination of regulatory ju22 risdiction under this section, or (ii) any condi23 tion imposed under the permit. Upon receipt of

24 a petition for reevaluation, the Secretary shall

25 conduct the reevaluation in accordance with the
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1 provisions of this section. If the Secretary finds

2 that the provisions of this section apply with re3 spect to activities and lands which are subject

4 to the permit, the Secretary shall modify, re5 voke, suspend, cancel, or continue the permit as

6 appropriate in accordance with the provisions of

7 this section; except that no compensation shall

8 be awarded under this section to any person as

9 a result of reevaluation pursuant to this sub10 paragraph and, if the permit covers activities in

11 type A wetlands, the permit shall continue in

12 effect without modification. The reevaluation

13 shall be carried out in accordance with time

14 limits set forth in subsection (e)(5) and shall

15 be subject to administrative appeal under sub16 section (i).

17 ‘‘(11) DEFINITIONS.—In this section the follow18 ing definitions apply:

19 ‘‘(A) ACTIVITY IN WETLANDS OR WATERS

20 OF THE UNITED STATES.—The term ‘activity in

21 wetlands or waters of the United States’

22 means—

23 ‘‘(i) the discharge of dredged or fill

24 material into waters of the United States,
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1 including wetlands at a specific disposal

2 site; or

3 ‘‘(ii) the draining, channelization, or

4 excavation of wetlands.

5 ‘‘(B) AGENCY.—The term ‘agency’ has the

6 meaning given that term in section 551 of title

7 5, United States Code.

8 ‘‘(C) AGENCY ACTION.—The term ‘agency

9 action’ has the meaning given that term in sec10 tion 551 of title 5, United States Code, but also

11 includes the making of a grant to a public au12 thority conditioned upon an action by the recip13 ient that would constitute a limitation if done

14 directly by the agency.

15 ‘‘(D) AGRICULTURAL LAND.—The term

16 ‘agricultural land’ means cropland, pastureland,

17 native pasture, rangeland, an orchard, a vine18 yard, nonindustrial forest land, an area that

19 supports a water dependent crop (including

20 cranberries, taro, watercress, or rice), and any

21 other land used to produce or support the pro22 duction of an annual or perennial crop (includ23 ing forage or hay), aquaculture product, nurs24 ery product, or wetland crop or the production

25 of livestock.
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1 ‘‘(E) CONSERVED WETLANDS.—The term

2 ‘conserved wetlands’ means wetlands that are

3 located in the National Park System, National

4 Wildlife Refuge System, National Wilderness

5 System, the Wild and Scenic River System, and

6 other similar Federal conservation systems,

7 combined with wetlands located in comparable

8 types of conservation systems established under

9 State and local authority within State and local

10 land use systems.

11 ‘‘(F) ECONOMIC BASE LANDS.—The term

12 ‘economic base lands’ means lands conveyed to,

13 selected by, or owned by Alaska Native entities

14 pursuant to the Alaska Native Claims Settle15 ment Act, Public Law 92–203 or the Alaska

16 Native Allotment Act of 1906 (34 Stat. 197),

17 and lands conveyed to, selected by, or owned by

18 the State of Alaska pursuant to the Alaska

19 Statehood Act, Public Law 85–508.

20 ‘‘(G) FAIR MARKET VALUE.—The term

21 ‘fair market value’ means the most probable

22 price at which property would change hands, in

23 a competitive and open market under all condi24 tions requisite to a fair sale, between a willing

25 buyer and a willing seller, neither being under
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1 any compulsion to buy or sell and both having

2 reasonable knowledge of relevant facts, at the

3 time the agency action occurs.

4 ‘‘(H) LAW OF A STATE.—The term ‘law of

5 a State’ includes the law of a political subdivi6 sion of a State.

7 ‘‘(I) MITIGATION BANK.—The term ‘miti8 gation bank’ means a wetlands restoration, cre9 ation, enhancement, or preservation project un10 dertaken by one or more parties, including pri11 vate and public entities, expressly for the pur12 pose of providing mitigation compensation cred13 its to offset adverse impacts to wetlands or

14 other waters of the United States authorized by

15 the terms of permits allowing discharges of

16 dredged or fill material into such wetlands or

17 waters.

18 ‘‘(J) PROPERTY.—The term ‘property’

19 means land and includes the right to use or re20 ceive water.

21 ‘‘(K) SECRETARY.—The term ‘Secretary’

22 means the Secretary of the Army.

23 ‘‘(L) STATE WITH SUBSTANTIAL CON24 SERVED WETLANDS AREAS.—The term ‘State
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1 with substantial conserved wetlands areas’

2 means any State which—

3 ‘‘(i) contains at least 10 areas of wet4 lands for each acre of wetlands filled,

5 drained, or otherwise converted within such

6 State (based upon wetlands loss statistics

7 reported in the 1990 United States Fish

8 and Wildlife Service Wetlands Trends re9 port to Congress entitled ‘Wetlands Losses

10 in the United States 1780’s to 1980’s’); or

11 ‘‘(ii) the Secretary of the Army deter12 mines has sufficient conserved wetlands

13 areas to provided adequate wetlands con14 servation in such State, based on the poli15 cies set forth in this Act.

16 ‘‘(M) WETLANDS.—The term ‘wetlands’

17 means those lands that meet the criteria for de18 lineation of lands as wetlands set forth in sub19 section (g).’’.

20 SEC. 4. DEFINITIONS.

21 Section 502 of the Federal Water Pollution Control

22 Act (33 U.S.C. 1362) is further amended—

23 (1) in paragraph (6)—

24 (A) by striking ‘‘dredged spoil,’’;
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1 (B) by striking ‘‘or (B)’’ and inserting

2 ‘‘(B)’’; and

3 (C) by inserting before the period at the

4 end ‘‘; and (C) dredged or fill material’’; and

5 (2) by adding at the end thereof the following

6 new paragraphs:

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

8 a predominance of hydric soils and which are inundated

9 by surface water at a frequency and duration sufficient

10 to support, and that under normal circumstances do sup11 port, a prevalence of vegetation typically adapted for life

12 in saturated soil conditions. Wetlands generally include

13 swamps, marshes, bogs, and similar areas.

14 ‘‘(22) The term ‘creation of wetlands’ means an activ15 ity that brings a wetland into existence at a site where

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

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

18 activity that increases the value of one or more functions

19 in existing wetlands.

20 ‘‘(24) The term ‘fastlands’ means lands located be21 hind legally constituted man-made structures or natural

22 formations, such as levees constructed and maintained to

23 permit the utilization of such lands for commercial, indus24 trial, or residential purposes consistent with local land use

25 planning requirements.
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1 ‘‘(25) The term ‘wetlands functions’ means the roles

2 wetlands serve, including flood water storage, flood water

3 conveyance, ground water recharge, erosion control, wave

4 attenuation, water quality protection, scenic and aesthetic

5 use, food chain support, fisheries, wetlands plant habitat,

6 aquatic habitat, and habitat for wetland dependent wild7 life.

8 ‘‘(26) The term ‘growing season’ means, for each

9 plant hardiness zone, the period between the average date

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

11 in autumn.

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

13 lands that exhibit wetlands characteristics sufficient to

14 meet the criteria for delineation of wetlands, where one

15 or more of such characteristics is the unintended result

16 of human induced alterations of hydrology.

17 ‘‘(28) The term ‘maintenance’ when used in reference

18 to wetlands means activities undertaken to assure continu19 ation of a wetland or the accomplishment of project goals

20 after a restoration or creation project has been technically

21 completed, including water level manipulations and control

22 of nonnative plant species.

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

24 restoration, enhancement, preservation or creation for the
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1 purpose of providing compensation for wetland degrada2 tion or loss.

3 ‘‘(30) The term ‘normal farming, silviculture, aqua4 culture and ranching activities’ means normal practices

5 identified as such by the Secretary of Agriculture, in con6 sultation with the Cooperative Extension Service for each

7 State and the land grant university system and agricul8 tural colleges of the State, taking into account existing

9 practices and such other practices as may be identified

10 in consultation with the affected industry or community.

11 ‘‘(31) The term ‘prior converted cropland’ means any

12 agricultural land that was manipulated (by drainage or

13 other physical alteration to remove excess water from the

14 land) or used for the production of any annual or peren15 nial agricultural crop (including forage or hay),

16 aquacultural product, nursery product or wetlands crop,

17 or the production of livestock before December 23, 1985.

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

19 means an activity undertaken to return a wetland from

20 a disturbed or altered condition with lesser acreage or

21 fewer functions to a previous condition with greater wet22 lands acreage or functions.

23 ‘‘(33) The term ‘temporary impact’ means the dis24 turbance or alteration of wetlands caused by activities
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1 under circumstances in which, within 3 years following the

2 commencement of such activities, such wetlands—

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

4 prior to the commencement of such activity; or

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

6 that without further human action, such wetlands

7 will return to the conditions in existence prior to the

8 commencement of such activity.

9 ‘‘(34) The term ‘airport hazard’ has the meaning

10 such term has under section 47102 of title 49, United

11 States Code.’’.

12 SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.

13 (a) VIOLATION.—Section 301(a) of the Federal

14 Water Pollution Control Act (33 U.S.C. 1311(a)) is

15 amended—

16 (1) by striking ‘‘402, and 404’’ and inserting

17 ‘‘and 402’’; and

18 (2) by adding at the end the following: ‘‘Except

19 as in compliance with this section and section 404,

20 the undertaking of any activity in wetlands or waters

21 of the United States shall be unlawful.’’.

22 (b) FEDERAL ENFORCEMENT.—Section 309 of the

23 Federal Water Pollution Control Act (33 U.S.C. 1319) is

24 amended—

25 (1) in subsection (a)(1) by striking ‘‘or 404’’;
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1 (2) in subsection (a)(3) by striking ‘‘or in a

2 permit issued under section 404 of this title by a

3 State’’;

4 (3) in each of subsections (c)(1)(A) and

5 (c)(2)(A) by striking ‘‘or in a permit’’ and all that

6 follows through ‘‘State;’’ and inserting a semicolon;

7 (4) in subsection (c)(3)(A) by striking ‘‘or in a

8 permit’’ and all that follows through ‘‘State, and’’

9 and inserting ‘‘and’’;

10 (5) by adding at the end of subsection (c) the

11 following:

12 ‘‘(8) TREATMENT OF CERTAIN VIOLATIONS.—

13 Any person who violates section 301 with respect to

14 an activity in wetlands or waters of the United

15 States for which a permit is required under section

16 404 shall not be subject to punishment under this

17 subsection but shall be subject to punishment under

18 section 404(k)(5).’’;

19 (6) in subsection (d) by striking ‘‘, or in a per20 mit issued under section 404 of this Act by a

21 State,’’;

22 (7) by adding at the end of subsection (d) the

23 following: ‘‘Any person who violates section 301 with

24 respect to an activity in wetlands or waters of the

25 United States for which a permit is required under
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1 section 404 shall not be subject to a civil penalty

2 under this subsection but shall be subject to a civil

3 penalty under section 404(k)(4).’’;

4 (8) in subsection (g)(1)—

5 (A) by striking ‘‘—’’ and all that follows

6 through ‘‘(A)’’;

7 (B) by striking ‘‘or in a permit issued

8 under section 404 of this Act by a State, or’’;

9 and

10 (C) by striking ‘‘(B)’’ and all that follows

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

12 ‘‘the Administrator’’;

13 (9) by adding at the end of subsection (g) the

14 following:

15 ‘‘(12) TREATMENT OF CERTAIN VIOLATIONS.—

16 Any person who violates section 301 with respect to

17 an activity in wetlands or waters of the United

18 States for which a permit is required under section

19 404 shall not be subject to assessment of a civil pen20 alty under this subsection but shall be subject to as21 sessment of a civil penalty under section

22 404(k)(4).’’; and

23 (10) by striking ‘‘or Secretary’’, ‘‘or the Sec24 retary’’, ‘‘or the Secretary, as the case may be,’’, ‘‘or
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1 Secretary’s’’, and ‘‘and the Secretary’’ each place

2 they appear.

3 SEC. 6. EFFECTIVE DATE.

4 This Act, including the amendments made by this

5 Act, shall take effect on the 90th day following the date

6 of the enactment of this Act.

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