I

104TH CONGRESS

1ST SESSION H. R. 1949

To amend the conservation title of the Food Security Act of 1985 to give

the Secretary of Agriculture jurisdiction over all wetland determinations

involving agricultural lands, to provide for consultation between the Secretary of Agriculture and other Federal agencies involved in wetland

conservation, and to improve the operation of the wetland conservation

program of the Department of Agriculture.

IN THE HOUSE OF REPRESENTATIVES

JUNE 28, 1995

Mr. MINGE introduced the following bill; which was referred to the Committee

on Agriculture, and in addition to the Committees on Transportation and

Infrastructure, and Resources, for a period to be subsequently determined

by the Speaker, in each case for consideration of such provisions as fall

within the jurisdiction of the committee concerned

A BILL

To amend the conservation title of the Food Security Act

of 1985 to give the Secretary of Agriculture jurisdiction

over all wetland determinations involving agricultural

lands, to provide for consultation between the Secretary

of Agriculture and other Federal agencies involved in

wetland conservation, and to improve the operation of

the wetland conservation program of the Department

of Agriculture.

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; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the

3 ‘‘Agricultural Wetlands Administration Act of 1995’’.

4 (b) TABLE OF CONTENTS.—The table of contents of

5 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Department of Agriculture jurisdiction over wetland determinations regarding agricultural lands.

Sec. 4. Additional exemptions to farm program ineligibility under wetland conservation program.

Sec. 5. Mitigation, mitigation bank program, and related issues.

Sec. 6. Contract authority for administration of wetland conservation program.

Sec. 7. Definitions of agricultural land and farmed wetland.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds the following:

8 (1) In addition to a range of State and local

9 laws that govern the use of lands for agricultural

10 purposes, subtitle C of title XII of the Food Security

11 Act (16 U.S.C. 3821–3824) and section 404 of the

12 Federal Water Pollution Control Act (33 U.S.C.

13 1344) contain Federal requirements regulating the

14 use of agricultural lands that contain or affect wet15 lands.

16 (2) A number of Federal, State, and local agen17 cies attempt to restrict the use of agricultural lands

18 containing wetlands. At the Federal level, these in19 clude the Consolidated Farm Service Agency and

20 Natural Resources Conservation Service of the De21 partment of Agriculture, the Fish and Wildlife Serv-
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1 ice of the Department of the Interior, the Army

2 Corps of Engineers, and the Environmental Protec3 tion Agency.

4 (3) The overlapping legislation, agencies, and

5 levels of government regulation handicap the produc6 tive use of agricultural lands and cause needless con7 fusion, delay, and expenses for agricultural produc8 ers.

9 (4) Legislation that has resulted in the unrea10 sonable classification of productive agricultural lands

11 as possible wetlands, and the inequitable administra12 tion of programs conducted under such legislation,

13 adversely affect the value of agricultural lands.

14 (5) Agricultural producers desire to manage

15 their lands in a manner that prevents soil erosion,

16 avoids degradation of surface and subsurface water,

17 and provides wildlife habitat. However, the American

18 agricultural economy is highly competitive and mar19 ginally profitable, and agricultural producers cannot

20 reasonably be expected to absorb the cost of govern21 mental requirements and procedures without com22 pensation.

23 (b) PURPOSES.—The purposes of this Act are—
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1 (1) to simplify decisionmaking regarding the

2 productive agricultural use of agricultural lands con3 taining wetlands;

4 (2) to consolidate in a single agency all Federal

5 responsibility regarding agricultural lands containing

6 wetlands;

7 (3) to relieve agricultural producers from the

8 regulatory burden imposed on those agricultural

9 lands that should not be classified as wetlands; and

10 (4) to provide additional opportunities for agri11 cultural producers to mitigate the effects of convert12 ing a wetland for agricultural purposes.

13 SEC. 3. DEPARTMENT OF AGRICULTURE JURISDICTION

14 OVER WETLAND DETERMINATIONS REGARD15 ING AGRICULTURAL LANDS.

16 (a) ELIMINATION OF REQUIRED CONCURRENCE BY

17 FISH AND WILDLIFE SERVICE.—Section 1222(j) of the

18 Food Security Act of 1985 (16 U.S.C. 3822(j)) is amend19 ed—

20 (1) in paragraph (1), by striking ‘‘through the

21 agreement’’ and all that follows through the period

22 at the end of the paragraph and inserting ‘‘by the

23 local representative of the Natural Resources Con24 servation Service of the Department of Agriculture,
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1 under the supervision of the relevant State Con2 servationist.’’;

3 (2) by striking paragraph (2); and

4 (3) by redesignating paragraph (3) as para5 graph (2).

6 (b) JURISDICTION OVER WETLAND CONSERVATION

7 EASEMENTS ON FMHA INVENTORY LANDS.—Section

8 335(g)(1) of the Consolidated Farm and Rural Develop9 ment Act (7 U.S.C. 1985(g)(1)) is amended by adding at

10 the end the following new sentence: ‘‘The Secretary shall

11 carry out this subsection through the Natural Resources

12 Conservation Service of the Department of Agriculture.’’.

13 (c) EXPANSION OF CONSULTATION.—Section 1223 of

14 the Food Security Act of 1985 (16 U.S.C. 3823) is

15 amended—

16 (1) by striking ‘‘shall consult’’ and inserting

17 ‘‘may consult’’;

18 (2) by inserting ‘‘, the Administrator of the En19 vironmental Protection Agency, and the Chief of the

20 Army Corps of Engineers’’ after ‘‘Secretary of the

21 Interior’’; and

22 (3) by striking ‘‘as are necessary’’ and inserting

23 ‘‘as the Secretary of Agriculture considers appro24 priate’’.
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1 (d) ANNUAL COMMENTS AND RECOMMENDATIONS

2 REGARDING WETLAND CONSERVATION PROGRAM.—Sec3 tion 1223 of the Food Security Act of 1985 (16 U.S.C.

4 3823), as amended by subsection (c), is further amend5 ed—

6 (1) by striking the section heading and ‘‘SEC.

7 1223.’’ and inserting the following:

8 ‘‘SEC. 1223. CONSULTATION WITH OTHER FEDERAL

9 AGENCIES.

10 ‘‘(a) CONSULTATION AUTHORITY.—’’; and

11 (2) by adding at the end the following new sub12 section:

13 ‘‘(b) ANNUAL COMMENTS AND RECOMMENDATIONS

14 REGARDING PROGRAM.—The Secretary of the Interior,

15 the Administrator of the Environmental Protection Agen16 cy, and the Chief of the Army Corps of Engineers shall

17 individually submit to the Secretary of Agriculture each

18 year comments and recommendations regarding the gen19 eral administration of this subtitle. Within 120 days after

20 receiving the comments and recommendations submitted

21 under this subsection, the Secretary of Agriculture shall

22 submit a report to Congress describing the comments and

23 recommendations received and containing the comments

24 of the Secretary thereto.’’.
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1 (e) ELIMINATION OF DUPLICATIVE REGULATION BY

2 ARMY CORPS OF ENGINEERS AND EPA.—Section 1222

3 of the Food Security Act of 1985 (16 U.S.C. 3822) is

4 amended by adding at the end the following new sub5 section:

6 ‘‘(k) EXCLUSION OF AGRICULTURAL LANDS FROM

7 SCOPE OF CLEAN WATER ACT.—Agricultural lands sub8 ject to this subtitle shall be exempt from the permit proc9 ess under section 404 of the Federal Water Pollution Con10 trol Act (33 U.S.C. 1344) and shall not be considered ‘wa11 ters of the United States’ or ‘navigable waters’ for pur12 poses of such Act.’’.

13 SEC. 4. ADDITIONAL EXEMPTIONS TO FARM PROGRAM IN14 ELIGIBILITY UNDER WETLAND CONSERVA15 TION PROGRAM.

16 (a) PRODUCTION AND CONVERSION EXEMPTION FOR

17 CERTAIN SMALL TRACTS.—Subsection (b)(1) of section

18 1222 of the Food Security Act of 1985 (16 U.S.C. 3822)

19 is amended—

20 (1) by striking ‘‘or’’ at the end of subparagraph

21 (C);

22 (2) by striking ‘‘or’’ at the end of subparagraph

23 (D); and

24 (3) by adding at the end the following new sub25 paragraph:
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1 ‘‘(E) a tract of land less than 2 acres in

2 size, whether or not the land has a predomi3 nance of hydric soil or hydropathic vegetation,

4 if the land lies primarily within a field used for

5 production of an agricultural commodity and is

6 sufficiently free of water during 6 out of the

7 previous 10 crop years to permit the production

8 of an agricultural commodity;’’.

9 (b) PRODUCTION AND CONVERSION EXEMPTION FOR

10 CERTAIN WETLANDS LOCATED ON AGRICULTURAL

11 LANDS.—Such subsection is further amended by inserting

12 after subparagraph (E) (as added by subsection (a)) the

13 following new subparagraphs:

14 ‘‘(F) a wetland that—

15 ‘‘(i) is located on agricultural land;

16 ‘‘(ii) is a shallow, freshwater, season17 ally flooded basin or flat, including an up18 land depression or overflow bottom land;

19 ‘‘(iii) consists of soils that are covered

20 with water or are waterlogged during vari21 able seasonal periods but are well drained

22 during much of the growing season; and

23 ‘‘(iv) has emergent and persistent

24 vegetation, which is characterized by erect,

25 rooted, herbaceous hydrophytes, excluding
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1 mosses and lichens, and normally remains

2 standing at least until the beginning of the

3 next growing season;

4 ‘‘(G) a wetland that—

5 ‘‘(i) is located on agricultural land but

6 has not been used in the production of an

7 agricultural commodity in 6 out of the pre8 vious 10 crop years;

9 ‘‘(ii) is less than 2 acres in size;

10 ‘‘(iii) is a shallow, freshwater, inland

11 fresh meadow;

12 ‘‘(iv) consists of soils that are usually

13 without standing water during most of the

14 growing season but are waterlogged within

15 inches of the surface; and

16 ‘‘(v) has emergent and persistent

17 vegetation, which is characterized by erect,

18 rooted, herbaceous hydrophytes, excluding

19 mosses and lichens, and normally remains

20 standing at least until the beginning of the

21 next growing season; or

22 ‘‘(H) a wetland that—

23 ‘‘(i) is located on land which has met

24 the definition of agricultural land in 6 out

25 of the previous 10 crop years;
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1 ‘‘(ii) is a shallow, freshwater, inland

2 fresh meadow;

3 ‘‘(iii) consists of soils that are usually

4 without standing water during most of the

5 growing season but are waterlogged within

6 inches of the surface; and

7 ‘‘(iv) has emergent and persistent

8 vegetation, which is characterized by erect,

9 rooted, herbaceous hydrophytes, excluding

10 mosses and lichens, and normally remains

11 standing at least until the beginning of the

12 next growing season;’’.

13 (c) MINOR CLEARING OF TREES OR BRUSH.—Sub14 section (b) of such section is amended by adding at the

15 end the following new paragraph:

16 ‘‘(3) as a result of incidental clearing or grub17 bing of trees or brush on or near a wetland if mini18 mal alteration of wetland hydrology occurs.’’.

19 (d) CLARIFICATION OF PRIOR CONVERTED EXEMP20 TION.—

21 (1) CLARIFICATION.—Subsection (d) of such

22 section is amended to read as follows:

23 ‘‘(d) PRIOR CONVERTED WETLANDS.—

24 ‘‘(1) TYPES OF PRIOR CONVERTED WET25 LANDS.—The exemption for prior converted wetland
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1 provided in subsection (b)(1)(A) includes lands that

2 have hydrologic alterations caused by subsurface

3 drainage tile, surface drainage ditches, levees, diver4 sions, or similar structures constructed or com5 menced before December 23, 1985, if agricultural

6 commodities were produced on the lands before De7 cember 23, 1985.

8 ‘‘(2) ABANDONMENT.—Prior converted wetland

9 exempted under subsection (b)(1)(A) shall not be

10 considered to be abandoned for purposes of removing

11 the exemption unless the exempted land is not used

12 for agricultural purposes for 10 consecutive years

13 and once again satisfies the definition of wetland.’’.

14 (2) RELOCATION OF FORMER SUBSECTION.—

15 Section 1221 of the Food Security Act of 1985 (16

16 U.S.C. 3821) is amended by adding at the end the

17 following new subsection:

18 ‘‘(c) PRIOR LOANS.—This section shall not apply to

19 a loan described in this section made before December 23,

20 1985.’’.

21 SEC. 5. MITIGATION, MITIGATION BANK PROGRAM, AND

22 RELATED ISSUES.

23 (a) MITIGATION.—Subsection (f) of section 1222 of

24 the Food Security Act of 1985 (16 U.S.C. 3822) is

25 amended—
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1 (1) in paragraph (2)—

2 (A) in the matter before the subpara3 graphs, by inserting ‘‘farmed wetland or’’ be4 fore ‘‘converted wetland’’; and

5 (B) by striking subparagraphs (E) and (F)

6 and inserting the following new subparagraphs:

7 ‘‘(E) performed in the same general area

8 of the local watershed as the converted wetland

9 or land being converted or within 10 miles of

10 such lands; and

11 ‘‘(F) with respect to such restored wetland,

12 made subject to a contract that—

13 ‘‘(i) is for a term of 10 years or for

14 as long as the converted wetland is not re15 turned to its original wetland classification

16 with equivalent functions and values,

17 whichever occurs first; and

18 ‘‘(ii) prohibits making alterations to

19 such restored wetland that lower the re20 stored wetland’s functions and values;’’;

21 (2) in paragraph (3)—

22 (A) by inserting ‘‘is a farmed wetland or’’

23 after ‘‘such wetland’’;

24 (B) by inserting ‘‘farmed wetland or’’ be25 fore ‘‘converted wetland’’; and
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1 (C) by striking the period at the end and

2 inserting ‘‘; or’’; and

3 (3) by adding at the end the following new

4 paragraph:

5 ‘‘(4) the conversion of such wetland is com6 pensated for through a contribution to a mitigation

7 bank program.’’.

8 (b) MITIGATION BANKS.—Such section is further

9 amended by inserting after subsection (k), as added by

10 section 3(e), the following new subsection:

11 ‘‘(l) MITIGATION BANKS.—Not later than 6 months

12 after the date of the enactment of this subsection, and

13 after providing notice and opportunity for public review

14 and comment, the Secretary shall issue regulations for the

15 establishment, use, maintenance, and oversight of mitiga16 tion banks. The Secretary may develop these regulations

17 in consultation with other appropriate Federal agencies.’’.

18 (c) GOOD FAITH EXEMPTION.—Subsection

19 (h)(1)(B)(i) of such section is amended by striking ‘‘10-

20 year’’ and inserting ‘‘5-year’’.

21 (d) RESTORATION.—Subsection (i) of such section is

22 amended by inserting after ‘‘its prior wetland state’’ the

23 following: ‘‘or entered into an approved mitigation plan

24 relating to such converted wetland’’.
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1 SEC. 6. CONTRACT AUTHORITY FOR ADMINISTRATION OF

2 WETLAND CONSERVATION PROGRAM.

3 Section 1222(j) of the Food Security Act of 1985 (16

4 U.S.C. 3822(j)), as amended by section 3(a), is further

5 amended by adding at the end the following new para6 graphs:

7 ‘‘(3) CONTRACT AUTHORITY FOR PERFORM8 ANCE OF DUTIES.—

9 ‘‘(A) IN GENERAL.—The Secretary may

10 enter into contracts, agreements, and similar

11 arrangements with other Federal agencies,

12 agencies of State and local governments, and

13 private entities to perform any or all respon14 sibilities of the Secretary in delineating, regu15 lating, supervising, issuing permits or otherwise

16 dealing with wetlands and drainage activities on

17 agricultural lands. The Secretary shall be re18 sponsible for costs incurred by the other parties

19 to carry out such contracts, agreements, and

20 similar arrangements. The Secretary shall mon21 itor the performance of the other parties to

22 such contracts, agreements, and similar ar23 rangements to ensure that such parties satisfac24 torily perform the determinations and actions

25 required by this subtitle. The Secretary may

26 terminate such a contract, agreement, or simi-
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1 lar arrangement consistent with the terms of

2 the contract, agreement, or arrangement. In

3 contracting for such services, the Secretary

4 shall endeavor to simplify the regulatory proc5 ess. In order to achieve simplification of the

6 regulatory process, the Secretary shall eliminate

7 inconsequential differences identified by the

8 Secretary between the requirements of Federal

9 law administered by the Secretary and State

10 and local laws regarding wetlands.

11 ‘‘(B) JOINT ARRANGEMENTS.—In addition

12 to, or as an alternative to, a contract under

13 subparagraph (A), the Secretary may enter into

14 a joint power agreement with other Federal

15 agencies, agencies of State and local govern16 ments, and private entities to create a special

17 entity to perform the functions described in

18 such subparagraph on behalf of all such inter19 ested governmental entities. The Secretary shall

20 pay to such joint power entity the amount

21 which the entity reasonably incurs to perform

22 those functions that are otherwise the respon23 sibility of the Secretary.

24 ‘‘(C) WAIVER AUTHORITY.—To facilitate

25 the making of technical determinations and the
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1 development of restoration and mitigation plans

2 by the Natural Resources Conservation Service,

3 the Secretary may waive requirements of this

4 subtitle and section 404 of the Federal Water

5 Pollution Control Act (33 U.S.C. 1344) and of

6 regulations adopted pursuant thereto if the Sec7 retary finds, in the discretion of the Secretary,

8 that such a waiver would not compromise the

9 essential purposes of such laws but would con10 tribute to effective, simplified administration

11 within the purposes of this subtitle.

12 ‘‘(4) STANDARDS FOR ALTERNATION OF DELIN13 EATIONS.—Once a delineation is made it shall not be

14 changed unless—

15 ‘‘(A) the landowner requests a change, and

16 either—

17 ‘‘(i) the definition has been changed

18 and such change is relevant to the land in

19 question; or

20 ‘‘(ii) the existing delineation is not

21 being contested within the agency;

22 ‘‘(B) significant events warrant a change,

23 such as landscape changes caused by a major

24 flood, or abandonment by the landowner of

25 prior converted wetlands;
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1 ‘‘(C) a delineation has been made which is

2 erroneous beyond a reasonable doubt, provided

3 such an erroneous delineation shall not be

4 changed if the landowner has relied thereon and

5 the change would be to the significant economic

6 detriment of the landowner; or

7 ‘‘(D) a change has been made in the legal

8 standard.’’.

9 SEC. 7. DEFINITIONS OF AGRICULTURAL LAND AND

10 FARMED WETLAND.

11 Section 1222 of the Food Security Act of 1985 (16

12 U.S.C. 3822) is amended by inserting after paragraph (1),

13 as added by section 5(b), the following new subsection:

14 ‘‘(m) DEFINITIONS.—For purposes of this section:

15 ‘‘(1) AGRICULTURAL LAND.—The term ‘agricul16 tural land’ means—

17 ‘‘(A) land that is intensively used for the

18 production of an agricultural commodity;

19 ‘‘(B) land that is managed for the produc20 tion of an agricultural commodity;

21 ‘‘(C) land that is used for other agricul22 tural use, including use as cropland, orchard,

23 vineyard, or nursery, unused land ancillary

24 thereto, and pasture land which produced a

25 crop for sale in 6 out of the previous 10 crop
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1 years (excluding pasture land solely used for

2 grazing of livestock); or

3 ‘‘(D) a drainage ditch and other similar

4 structures that—

5 ‘‘(i) are in existence on the date of the

6 enactment of the Agricultural Wetlands

7 Administrative Act of 1995;

8 ‘‘(ii) primarily serve lands described in

9 subparagraph (A); and

10 ‘‘(iii) have a watershed of 2 square

11 miles or less.

12 ‘‘(2) FARMED WETLAND.—The term ‘farmed

13 wetland’ means a wetland which has been used for

14 production of an agricultural commodity and is suf15 ficiently free of water during 6 out of the previous

16 10 crop years to permit the production of an agricul17 tural commodity.’’.

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