```

[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1949 Introduced in House (IH)]

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.
    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Agricultural 
Wetlands Administration Act of 1995''.
    (b) Table of Contents.--The table of contents of 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.
SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) In addition to a range of State and local laws that 
        govern the use of lands for agricultural purposes, subtitle C 
        of title XII of the Food Security Act (16 U.S.C. 3821-3824) and 
        section 404 of the Federal Water Pollution Control Act (33 
        U.S.C. 1344) contain Federal requirements regulating the use of 
        agricultural lands that contain or affect wetlands.
            (2) A number of Federal, State, and local agencies attempt 
        to restrict the use of agricultural lands containing wetlands. 
        At the Federal level, these include the Consolidated Farm 
        Service Agency and Natural Resources Conservation Service of 
        the Department of Agriculture, the Fish and Wildlife Service of 
        the Department of the Interior, the Army Corps of Engineers, 
        and the Environmental Protection Agency.
            (3) The overlapping legislation, agencies, and levels of 
        government regulation handicap the productive use of 
        agricultural lands and cause needless confusion, delay, and 
        expenses for agricultural producers.
            (4) Legislation that has resulted in the unreasonable 
        classification of productive agricultural lands as possible 
        wetlands, and the inequitable administration of programs 
        conducted under such legislation, adversely affect the value of 
        agricultural lands.
            (5) Agricultural producers desire to manage their lands in 
        a manner that prevents soil erosion, avoids degradation of 
        surface and subsurface water, and provides wildlife habitat. 
        However, the American agricultural economy is highly 
        competitive and marginally profitable, and agricultural 
        producers cannot reasonably be expected to absorb the cost of 
        governmental requirements and procedures without compensation.
    (b) Purposes.--The purposes of this Act are--
            (1) to simplify decisionmaking regarding the productive 
        agricultural use of agricultural lands containing wetlands;
            (2) to consolidate in a single agency all Federal 
        responsibility regarding agricultural lands containing 
        wetlands;
            (3) to relieve agricultural producers from the regulatory 
        burden imposed on those agricultural lands that should not be 
        classified as wetlands; and
            (4) to provide additional opportunities for agricultural 
        producers to mitigate the effects of converting a wetland for 
        agricultural purposes.

SEC. 3. DEPARTMENT OF AGRICULTURE JURISDICTION OVER WETLAND 
              DETERMINATIONS REGARDING AGRICULTURAL LANDS.

    (a) Elimination of Required Concurrence by Fish and Wildlife 
Service.--Section 1222(j) of the Food Security Act of 1985 (16 U.S.C. 
3822(j)) is amended--
            (1) in paragraph (1), by striking ``through the agreement'' 
        and all that follows through the period at the end of the 
        paragraph and inserting ``by the local representative of the 
        Natural Resources Conservation Service of the Department of 
        Agriculture, under the supervision of the relevant State 
        Conservationist.'';
            (2) by striking paragraph (2); and
            (3) by redesignating paragraph (3) as paragraph (2).
    (b) Jurisdiction Over Wetland Conservation Easements on FmHA 
Inventory Lands.--Section 335(g)(1) of the Consolidated Farm and Rural 
Development Act (7 U.S.C. 1985(g)(1)) is amended by adding at the end 
the following new sentence: ``The Secretary shall carry out this 
subsection through the Natural Resources Conservation Service of the 
Department of Agriculture.''.
    (c) Expansion of Consultation.--Section 1223 of the Food Security 
Act of 1985 (16 U.S.C. 3823) is amended--
            (1) by striking ``shall consult'' and inserting ``may 
        consult'';
            (2) by inserting ``, the Administrator of the Environmental 
        Protection Agency, and the Chief of the Army Corps of 
        Engineers'' after ``Secretary of the Interior''; and
            (3) by striking ``as are necessary'' and inserting ``as the 
        Secretary of Agriculture considers appropriate''.
    (d) Annual Comments and Recommendations Regarding Wetland 
Conservation Program.--Section 1223 of the Food Security Act of 1985 
(16 U.S.C. 3823), as amended by subsection (c), is further amended--
            (1) by striking the section heading and ``Sec. 1223.'' and 
        inserting the following:

``SEC. 1223. CONSULTATION WITH OTHER FEDERAL AGENCIES.

    ``(a) Consultation Authority.--''; and
            (2) by adding at the end the following new subsection:
    ``(b) Annual Comments and Recommendations Regarding Program.--The 
Secretary of the Interior, the Administrator of the Environmental 
Protection Agency, and the Chief of the Army Corps of Engineers shall 
individually submit to the Secretary of Agriculture each year comments 
and recommendations regarding the general administration of this 
subtitle. Within 120 days after receiving the comments and 
recommendations submitted under this subsection, the Secretary of 
Agriculture shall submit a report to Congress describing the comments 
and recommendations received and containing the comments of the 
Secretary thereto.''.
    (e) Elimination of Duplicative Regulation by Army Corps of 
Engineers and EPA.--Section 1222 of the Food Security Act of 1985 (16 
U.S.C. 3822) is amended by adding at the end the following new 
subsection:
    ``(k) Exclusion of Agricultural Lands From Scope of Clean Water 
Act.--Agricultural lands subject to this subtitle shall be exempt from 
the permit process under section 404 of the Federal Water Pollution 
Control Act (33 U.S.C. 1344) and shall not be considered `waters of the 
United States' or `navigable waters' for purposes of such Act.''.

SEC. 4. ADDITIONAL EXEMPTIONS TO FARM PROGRAM INELIGIBILITY UNDER 
              WETLAND CONSERVATION PROGRAM.

    (a) Production and Conversion Exemption for Certain Small Tracts.--
Subsection (b)(1) of section 1222 of the Food Security Act of 1985 (16 
U.S.C. 3822) is amended--
            (1) by striking ``or'' at the end of subparagraph (C);
            (2) by striking ``or'' at the end of subparagraph (D); and
            (3) by adding at the end the following new subparagraph:
                    ``(E) a tract of land less than 2 acres in size, 
                whether or not the land has a predominance of hydric 
                soil or hydropathic vegetation, if the land lies 
                primarily within a field used for production of an 
                agricultural commodity and is sufficiently free of 
                water during 6 out of the previous 10 crop years to 
                permit the production of an agricultural commodity;''.
    (b) Production and Conversion Exemption for Certain Wetlands 
Located on Agricultural Lands.--Such subsection is further amended by 
inserting after subparagraph (E) (as added by subsection (a)) the 
following new subparagraphs:
                    ``(F) a wetland that--
                            ``(i) is located on agricultural land;
                            ``(ii) is a shallow, freshwater, seasonally 
                        flooded basin or flat, including an upland 
                        depression or overflow bottom land;
                            ``(iii) consists of soils that are covered 
                        with water or are waterlogged during variable 
                        seasonal periods but are well drained during 
                        much of the growing season; and
                            ``(iv) has emergent and persistent 
                        vegetation, which is characterized by erect, 
                        rooted, herbaceous hydrophytes, excluding 
                        mosses and lichens, and normally remains 
                        standing at least until the beginning of the 
                        next growing season;
                    ``(G) a wetland that--
                            ``(i) is located on agricultural land but 
                        has not been used in the production of an 
                        agricultural commodity in 6 out of the previous 
                        10 crop years;
                            ``(ii) is less than 2 acres in size;
                            ``(iii) is a shallow, freshwater, inland 
                        fresh meadow;
                            ``(iv) consists of soils that are usually 
                        without standing water during most of the 
                        growing season but are waterlogged within 
                        inches of the surface; and
                            ``(v) has emergent and persistent 
                        vegetation, which is characterized by erect, 
                        rooted, herbaceous hydrophytes, excluding 
                        mosses and lichens, and normally remains 
                        standing at least until the beginning of the 
                        next growing season; or
                    ``(H) a wetland that--
                            ``(i) is located on land which has met the 
                        definition of agricultural land in 6 out of the 
                        previous 10 crop years;
                            ``(ii) is a shallow, freshwater, inland 
                        fresh meadow;
                            ``(iii) consists of soils that are usually 
                        without standing water during most of the 
                        growing season but are waterlogged within 
                        inches of the surface; and
                            ``(iv) has emergent and persistent 
                        vegetation, which is characterized by erect, 
                        rooted, herbaceous hydrophytes, excluding 
                        mosses and lichens, and normally remains 
                        standing at least until the beginning of the 
                        next growing season;''.
    (c) Minor Clearing of Trees or Brush.--Subsection (b) of such 
section is amended by adding at the end the following new paragraph:
            ``(3) as a result of incidental clearing or grubbing of 
        trees or brush on or near a wetland if minimal alteration of 
        wetland hydrology occurs.''.
    (d) Clarification of Prior Converted Exemption.--
            (1) Clarification.--Subsection (d) of such section is 
        amended to read as follows:
    ``(d) Prior Converted Wetlands.--
            ``(1) Types of prior converted wetlands.--The exemption for 
        prior converted wetland provided in subsection (b)(1)(A) 
        includes lands that have hydrologic alterations caused by 
        subsurface drainage tile, surface drainage ditches, levees, 
        diversions, or similar structures constructed or commenced 
        before December 23, 1985, if agricultural commodities were 
        produced on the lands before December 23, 1985.
            ``(2) Abandonment.--Prior converted wetland exempted under 
        subsection (b)(1)(A) shall not be considered to be abandoned 
        for purposes of removing the exemption unless the exempted land 
        is not used for agricultural purposes for 10 consecutive years 
        and once again satisfies the definition of wetland.''.
            (2) Relocation of former subsection.--Section 1221 of the 
        Food Security Act of 1985 (16 U.S.C. 3821) is amended by adding 
        at the end the following new subsection:
    ``(c) Prior Loans.--This section shall not apply to a loan 
described in this section made before December 23, 1985.''.

SEC. 5. MITIGATION, MITIGATION BANK PROGRAM, AND RELATED ISSUES.

    (a) Mitigation.--Subsection (f) of section 1222 of the Food 
Security Act of 1985 (16 U.S.C. 3822) is amended--
            (1) in paragraph (2)--
                    (A) in the matter before the subparagraphs, by 
                inserting ``farmed wetland or'' before ``converted 
                wetland''; and
                    (B) by striking subparagraphs (E) and (F) and 
                inserting the following new subparagraphs:
                    ``(E) performed in the same general area of the 
                local watershed as the converted wetland or land being 
                converted or within 10 miles of such lands; and
                    ``(F) with respect to such restored wetland, made 
                subject to a contract that--
                            ``(i) is for a term of 10 years or for as 
                        long as the converted wetland is not returned 
                        to its original wetland classification with 
                        equivalent functions and values, whichever 
                        occurs first; and
                            ``(ii) prohibits making alterations to such 
                        restored wetland that lower the restored 
                        wetland's functions and values;'';
            (2) in paragraph (3)--
                    (A) by inserting ``is a farmed wetland or'' after 
                ``such wetland'';
                    (B) by inserting ``farmed wetland or'' before 
                ``converted wetland''; and
                    (C) by striking the period at the end and inserting 
                ``; or''; and
            (3) by adding at the end the following new paragraph:
            ``(4) the conversion of such wetland is compensated for 
        through a contribution to a mitigation bank program.''.
    (b) Mitigation Banks.--Such section is further amended by inserting 
after subsection (k), as added by section 3(e), the following new 
subsection:
    ``(l) Mitigation Banks.--Not later than 6 months after the date of 
the enactment of this subsection, and after providing notice and 
opportunity for public review and comment, the Secretary shall issue 
regulations for the establishment, use, maintenance, and oversight of 
mitigation banks. The Secretary may develop these regulations in 
consultation with other appropriate Federal agencies.''.
    (c) Good Faith Exemption.--Subsection (h)(1)(B)(i) of such section 
is amended by striking ``10-year'' and inserting ``5-year''.
    (d) Restoration.--Subsection (i) of such section is amended by 
inserting after ``its prior wetland state'' the following: ``or entered 
into an approved mitigation plan relating to such converted wetland''.
SEC. 6. CONTRACT AUTHORITY FOR ADMINISTRATION OF WETLAND CONSERVATION 
              PROGRAM.

    Section 1222(j) of the Food Security Act of 1985 (16 U.S.C. 
3822(j)), as amended by section 3(a), is further amended by adding at 
the end the following new paragraphs:
            ``(3) Contract authority for performance of duties.--
                    ``(A) In general.--The Secretary may enter into 
                contracts, agreements, and similar arrangements with 
                other Federal agencies, agencies of State and local 
                governments, and private entities to perform any or all 
                responsibilities of the Secretary in delineating, 
                regulating, supervising, issuing permits or otherwise 
                dealing with wetlands and drainage activities on 
                agricultural lands. The Secretary shall be responsible 
                for costs incurred by the other parties to carry out 
                such contracts, agreements, and similar arrangements. 
                The Secretary shall monitor the performance of the 
                other parties to such contracts, agreements, and 
                similar arrangements to ensure that such parties 
                satisfactorily perform the determinations and actions 
                required by this subtitle. The Secretary may terminate 
                such a contract, agreement, or similar arrangement 
                consistent with the terms of the contract, agreement, 
                or arrangement. In contracting for such services, the 
                Secretary shall endeavor to simplify the regulatory 
                process. In order to achieve simplification of the 
                regulatory process, the Secretary shall eliminate 
                inconsequential differences identified by the Secretary 
                between the requirements of Federal law administered by 
                the Secretary and State and local laws regarding 
                wetlands.
                    ``(B) Joint arrangements.--In addition to, or as an 
                alternative to, a contract under subparagraph (A), the 
                Secretary may enter into a joint power agreement with 
                other Federal agencies, agencies of State and local 
                governments, and private entities to create a special 
                entity to perform the functions described in such 
                subparagraph on behalf of all such interested 
                governmental entities. The Secretary shall pay to such 
                joint power entity the amount which the entity 
                reasonably incurs to perform those functions that are 
                otherwise the responsibility of the Secretary.
                    ``(C) Waiver authority.--To facilitate the making 
                of technical determinations and the development of 
                restoration and mitigation plans by the Natural 
                Resources Conservation Service, the Secretary may waive 
                requirements of this subtitle and section 404 of the 
                Federal Water Pollution Control Act (33 U.S.C. 1344) 
                and of regulations adopted pursuant thereto if the 
                Secretary finds, in the discretion of the Secretary, 
                that such a waiver would not compromise the essential 
                purposes of such laws but would contribute to 
                effective, simplified administration within the 
                purposes of this subtitle.
            ``(4) Standards for alternation of delineations.--Once a 
        delineation is made it shall not be changed unless--
                    ``(A) the landowner requests a change, and either--
                            ``(i) the definition has been changed and 
                        such change is relevant to the land in 
                        question; or
                            ``(ii) the existing delineation is not 
                        being contested within the agency;
                    ``(B) significant events warrant a change, such as 
                landscape changes caused by a major flood, or 
                abandonment by the landowner of prior converted 
                wetlands;
                    ``(C) a delineation has been made which is 
                erroneous beyond a reasonable doubt, provided such an 
                erroneous delineation shall not be changed if the 
                landowner has relied thereon and the change would be to 
                the significant economic detriment of the landowner; or
                    ``(D) a change has been made in the legal 
                standard.''.

SEC. 7. DEFINITIONS OF AGRICULTURAL LAND AND FARMED WETLAND.

    Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is 
amended by inserting after paragraph (1), as added by section 5(b), the 
following new subsection:
    ``(m) Definitions.--For purposes of this section:
            ``(1) Agricultural land.--The term `agricultural land' 
        means--
                    ``(A) land that is intensively used for the 
                production of an agricultural commodity;
                    ``(B) land that is managed for the production of an 
                agricultural commodity;
                    ``(C) land that is used for other agricultural use, 
                including use as cropland, orchard, vineyard, or 
                nursery, unused land ancillary thereto, and pasture 
                land which produced a crop for sale in 6 out of the 
                previous 10 crop years (excluding pasture land solely 
                used for grazing of livestock); or
                    ``(D) a drainage ditch and other similar structures 
                that--
                            ``(i) are in existence on the date of the 
                        enactment of the Agricultural Wetlands 
                        Administrative Act of 1995;
                            ``(ii) primarily serve lands described in 
                        subparagraph (A); and
                            ``(iii) have a watershed of 2 square miles 
                        or less.
            ``(2) Farmed wetland.--The term `farmed wetland' means a 
        wetland which has been used for production of an agricultural 
        commodity and is sufficiently free of water during 6 out of the 
        previous 10 crop years to permit the production of an 
        agricultural commodity.''.
                                 <all>
HR 1949 IH----2
```