II 

115TH CONGRESS 

1ST SESSION S. 1288 

To amend the Federal Water Pollution Control Act to allow preservation 

leasing as a form of compensatory mitigation for discharges of dredged 

or fill material affecting Indian land, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 25, 2017 

Mr. SULLIVAN (for himself and Ms. MURKOWSKI) introduced the following 

bill; which was read twice and referred to the Committee on Environment 

and Public Works 

A BILL 

To amend the Federal Water Pollution Control Act to allow 

preservation leasing as a form of compensatory mitigation for discharges of dredged or fill material affecting 

Indian land, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. PRESERVATION LEASING OF INDIAN LAND. 

4 (a) IN GENERAL.—Section 404 of the Federal Water 

5 Pollution Control Act (33 U.S.C. 1344) is amended by 

6 adding at the end the following: 

7 ‘‘(u) PRESERVATION LEASING OF INDIAN LAND.— 

8 ‘‘(1) DEFINITIONS.—In this subsection: 


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1 ‘‘(A) INDIAN LAND.—The term ‘Indian 

2 land’ means land owned by, operated by, or oth3 erwise belonging to an Indian tribe. 

4 ‘‘(B) INDIAN TRIBE.—The term ‘Indian 

5 tribe’ has the meaning given the term in section 

6 4 of the Indian Self-Determination and Edu7 cation Assistance Act (25 U.S.C. 5304). 

8 ‘‘(C) PERMITTED ACTIVITY.—The term 

9 ‘permitted activity’ means a discharge of 

10 dredged or fill material for which a permit is 

11 issued under this section. 

12 ‘‘(D) PERMITTEE.—The term ‘permittee’ 

13 means a person that is issued a permit under 

14 this section. 

15 ‘‘(E) PRESERVATION LEASE.—The term 

16 ‘preservation lease’ means an agreement under 

17 which a permittee leases wetlands or other 

18 aquatic sites on Indian land for the sole pur19 pose of preserving the wetlands or other aquatic 

20 sites in an undisturbed state during the term of 

21 the lease to mitigate for a permitted activity. 

22 ‘‘(2) PRESERVATION LEASING OF INDIAN

23 LAND.—The Secretary shall allow a permittee to sat24 isfy compensatory mitigation requirements for a per25 mitted activity by entering into a preservation lease 


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1 with an Indian tribe, if the permitted activity affects 

2 wetlands that are located in the same watershed as 

3 the Indian land to be leased. 

4 ‘‘(3) TERM.—In order to satisfy compensatory 

5 mitigation requirements, the term of a preservation 

6 lease— 

7 ‘‘(A) shall be not less than the life of the 

8 permitted activity; and 

9 ‘‘(B) shall be adjusted to account for the 

10 cessation, in whole or in part, of the impacts 

11 caused by the permitted activity. 

12 ‘‘(4) SITUATIONS IN WHICH A PERMITTEE

13 CEASES TO MAINTAIN PERMITTED ACTIVITY.— 

14 ‘‘(A) PERMIT MODIFICATIONS.—If a per15 mittee enters into a preservation lease with an 

16 Indian tribe under this subsection and subse17 quently ceases to maintain the permitted activ18 ity or seeks to abandon the permitted activity 

19 without a good faith transfer the permittee 

20 shall obtain a permit modification from the Sec21 retary, which may require restoration and reha22 bilitation of the area. 

23 ‘‘(B) CONSULTATION WITH AN INDIAN

24 TRIBE.—Before making a determination under 

25 subparagraph (A) as to whether, and to what 


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1 degree, restoration and rehabilitation are re2 quired, the Secretary shall consult, and fully 

3 consider, the position of the Indian tribe that is 

4 a party to any preservation lease relating to the 

5 permitted activity. 

6 ‘‘(C) RESTORATION AND REHABILITATION

7 PLANS.— 

8 ‘‘(i) IN GENERAL.—If the Secretary 

9 determines under subparagraph (A) that 

10 restoration and rehabilitation are required, 

11 the Secretary may require the permittee to 

12 submit to the Secretary and the Indian 

13 tribe a plan for conducting the restoration 

14 and rehabilitation. 

15 ‘‘(ii) CONTENTS.—A restoration and 

16 rehabilitation plan submitted under clause 

17 (i) shall include, at a minimum, goals and 

18 objectives, performance standards, and 

19 plans for site treatment, reporting, reme20 dial work, and monitoring to ensure that 

21 performance standards are met. 

22 ‘‘(D) REVERSION OF LAND.—After activi23 ties conducted under a restoration and rehabili24 tation plan submitted under subparagraph 

25 (C)(i) have been completed and the hydrological 


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1 functions and fish and wildlife habitat of the 

2 area impacted by the permitted activity have 

3 been restored pursuant to the restoration and 

4 rehabilitation plan, the land subject to the lease 

5 shall revert back to the Indian tribe without re6 striction.’’. 

7 (b) APPLICABILITY.—The amendment made by sub8 section (a) shall apply to permits issued under section 404 

9 of the Federal Water Pollution Control Act (33 U.S.C. 

10 1344) after the date of enactment of this Act. 

Æ 


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