II

103D CONGRESS

1ST SESSION S. 1195

To amend the Federal Water Pollution Control Act to further the protection

of wetlands, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 1 (legislative day, JUNE 30), 1993

Mrs. BOXER 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 further

the protection of wetlands, and for other purposes.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

5 ‘‘Wetlands Reform Act of 1993’’.

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

7 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—AMENDMENTS TO THE FEDERAL WATER POLLUTION

CONTROL ACT

Sec. 101. Statement of policy.

Sec. 102. Expansion of scope of permit program.

Sec. 103. Definition of fill material.
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Sec. 104. Permit review by resource agencies.

Sec. 105. Clarification of general permit program.

Sec. 106. Reports on effects of permit program on wetlands.

Sec. 107. Expedited permit review.

Sec. 108. Avoidance and minimization of adverse effects.

Sec. 109. Exemptions for agriculture and other activities.

Sec. 110. Citizen suits amendments.

TITLE II—IMPROVED WETLANDS PERMITTING; REVISIONS TO

WETLANDS DELINEATION PROCEDURES

Sec. 201. Improvement of administration of wetlands permitting.

Sec. 202. Revisions to Federal wetlands delineation procedures.

TITLE III—WETLANDS RESTORATION PROGRAM

Sec. 301. Wetlands restoration pilot program.

Sec. 302. Sense of Congress concerning wetlands reserve program.

TITLE IV—TAX INCENTIVES FOR WETLANDS CONSERVATION

Sec. 401. Wetlands stewardship trusts.

Sec. 402. Tax treatment of donations of wetlands.

Sec. 403. Exclusion from gross income for amounts received from compatible

uses of wetlands.

1 TITLE I—AMENDMENTS TO THE

2 FEDERAL WATER POLLUTION

3 CONTROL ACT

4 SEC. 101. STATEMENT OF POLICY.

5 Section 101(a) of the Federal Water Pollution Con6 trol Act (33 U.S.C. 1251(a)) is amended—

7 (1) in paragraph (6), by striking ‘‘and’’ at the

8 end;

9 (2) in paragraph (7), by striking the period at

10 the end and inserting ‘‘; and’’; and

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

12 paragraph:

13 ‘‘(8) it is the national policy to preserve the

14 quantity and quality of the wetlands of the United
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1 States and to restore those wetlands that have been

2 degraded.’’.

3 SEC. 102. EXPANSION OF SCOPE OF PERMIT PROGRAM.

4 (a) PROHIBITION OF ACTIVITIES.—Subsection (a) of

5 section 301 of the Federal Water Pollution Control Act

6 (33 U.S.C. 1311(a)) is amended to read as follows:

7 ‘‘(a) Except as in compliance with this section and

8 sections 302, 306, 307, 318, 402, and 404, the discharge

9 of any pollutant or other alteration of navigable waters

10 by any person shall be unlawful.’’.

11 (b) CERTIFICATION.—The first sentence of section

12 401(a) of such Act (33 U.S.C. 1341(a)) is amended to

13 read as follows: ‘‘Any applicant for a Federal license or

14 permit to conduct any activity, including the construction

15 or operation of a facility, that may result in any discharge

16 into or other alteration of navigable waters, shall provide

17 the licensing or permitting agency a certification from the

18 State where the activity occurs or will occur, or, if appro19 priate, from the interstate water pollution control agency

20 having jurisdiction over navigable waters where the activ21 ity occurs or will occur, that the activity will comply with

22 the applicable provisions of sections 301, 302, 303, 306,

23 and 307 and will allow for the protection, achievement,

24 and maintenance of designated uses included in applicable

25 water quality standards.’’.
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1 (c) ISSUANCE OF PERMITS.—The first sentence of

2 section 404(a) of such Act (33 U.S.C. 1344(a)) is amend3 ed by inserting before the period at the end the following:

4 ‘‘, or for any other alteration of navigable waters’’.

5 (d) DEFINITION OF OTHER ALTERATION.—Section

6 502 of such Act (33 U.S.C. 1362) is amended by adding

7 at the end the following new paragraph:

8 ‘‘(21) The term ‘other alteration’ means the draining,

9 dredging, excavation, channelization, flooding, clearing of

10 vegetation, driving of a piling or placement of other ob11 struction, diversion of waters, or other activity in navi12 gable waters that impairs the flow, reach, or circulation

13 of surface waters, or that results in a more than minimal

14 change in the hydrologic regime, bottom contour, or con15 figuration of the waters, or in the type, distribution, or

16 diversity of vegetation, fish, and wildlife that depend on

17 the waters.’’.

18 SEC. 103. DEFINITION OF FILL MATERIAL.

19 Section 404(d) of the Federal Water Pollution Con20 trol Act (33 U.S.C. 1344(d)) is amended—

21 (1) by inserting ‘‘(1)’’ after ‘‘(d)’’; and

22 (2) by adding at the end the following new

23 paragraph:

24 ‘‘(2) As used in this section, the term ‘fill material’

25 means any pollutant that has the effect of replacing a por-
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1 tion of navigable waters or changing the bottom elevation

2 or configuration of a water body.’’.

3 SEC. 104. PERMIT REVIEW BY RESOURCE AGENCIES.

4 (a) REVIEW BY SECRETARY OF THE INTERIOR AND

5 SECRETARY OF COMMERCE.—Section 404(m) of the Fed6 eral Water Pollution Control Act (33 U.S.C. 1344(m)) is

7 amended—

8 (1) by striking ‘‘Service that’’ and inserting

9 ‘‘Service, and the Secretary of Commerce, acting

10 through the Assistant Administrator of the National

11 Marine Fisheries Service, that’’; and

12 (2) by striking ‘‘Service, shall’’ and inserting

13 ‘‘Service, and the Secretary of Commerce, acting

14 through the Assistant Administrator of the National

15 Marine Fisheries Service, shall’’.

16 (b) RESPONSE IN WRITING.—Section 404(m) of such

17 Act (33 U.S.C. 1344(m)) is amended by adding at the

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

19 adopt the recommendations made in the comments or re20 spond in writing to the Secretary of the Interior or the

21 Secretary of Commerce, as appropriate, describing the

22 reasons of the Secretary for not adopting the rec23 ommendations and explaining how the determination of

24 the Secretary is consistent with the goals and purposes
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1 of this Act and the guidelines developed under subsection

2 (b)(1).’’.

3 SEC. 105. CLARIFICATION OF GENERAL PERMIT PROGRAM.

4 Paragraph (1) of section 404(e) of the Federal Water

5 Pollution Control Act (33 U.S.C. 1344(e)(1)) is amended

6 to read as follows:

7 ‘‘(1)(A)(i) In carrying out the functions of the Sec8 retary under this section relating to the discharge of

9 dredged or fill material or other alteration of navigable

10 waters, the Secretary may, after notice and opportunity

11 for public hearing, and with the concurrence of the Admin12 istrator, issue general permits on a State, multi-State, or

13 nationwide basis for any narrowly defined category of ac14 tivities involving discharges of dredged or fill material or

15 any other alteration of navigable waters if the Secretary

16 determines that the activities in the category—

17 ‘‘(I) are similar in nature;

18 ‘‘(II) will cause only minimal adverse environ19 mental effects when performed separately; and

20 ‘‘(III) will have only minimal cumulative ad21 verse effect on the environment.

22 ‘‘(ii) Any general permit issued under this subsection

23 shall—

24 ‘‘(I) be consistent with the goals and purposes

25 of this Act;
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1 ‘‘(II) be based on the guidelines described in

2 subsection (b)(1);

3 ‘‘(III) set forth the requirements and standards

4 that shall apply to any activity authorized by the

5 general permit; and

6 ‘‘(IV) include adequate measures to enable the

7 Secretary to be apprised of, and to monitor activities

8 conducted pursuant to, the general permit.

9 ‘‘(B) Before any activity is authorized under a gen10 eral permit issued under this subsection for which

11 predischarge notification is required pursuant to regula12 tions, the Secretary shall give notice and opportunity to

13 comment, for a 30-day period beginning on the date of

14 the notice, to—

15 ‘‘(i) the Administrator;

16 ‘‘(ii) the Secretary of the Interior;

17 ‘‘(iii) the Secretary of Commerce;

18 ‘‘(iv) the appropriate officials of State agencies

19 responsible for water quality, fish, and wildlife re20 sources that may be affected by the activity; and

21 ‘‘(v) the public.

22 ‘‘(C) No activity shall be authorized under a general

23 permit issued under this subsection within a State that

24 has denied or revoked water quality certification pursuant

25 to section 401 for the activities under the general permit.
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1 ‘‘(D) Each general permit issued under this sub2 section shall be reviewed by the Secretary biennially. In

3 conducting the review, the Secretary shall take into ac4 count the information contained in reports required by

5 subsection (u), and shall, after notice and hearing, revise

6 or revoke the permit as necessary to avoid or minimize

7 cumulative adverse effects on navigable waters.’’.

8 SEC. 106. REPORTS ON EFFECTS OF PERMIT PROGRAM ON

9 WETLANDS.

10 Section 404 of the Federal Water Pollution Control

11 Act (33 U.S.C. 1344) is amended by adding at the end

12 the following new subsection:

13 ‘‘(u) REPORTS ON PERMIT PROGRAM.—

14 ‘‘(1) EFFECTS OF PERMITTED ACTIVITIES.—

15 ‘‘(A) IN GENERAL.—The Secretary, in con16 sultation with the Administrator, the Secretary

17 of the Interior, and those States that have a

18 permit program approved under subsection

19 (h)(2), shall report biennially to Congress on

20 the effects on navigable waters of activities con21 ducted under permits issued under this section,

22 including general permits. The reports shall

23 contain estimates of the acreage and functions

24 of navigable waters affected by each general

25 permit, in order to determine whether the indi-
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1 vidual and cumulative adverse environmental ef2 fects of activities authorized by each general

3 permit are minimal.

4 ‘‘(B) MONITORING.—For purposes of pre5 paring reports under this subsection, the Sec6 retary, the Administrator, and the Secretary of

7 the Interior shall jointly monitor the achieve8 ment of the policy stated in section 101(a)(8)

9 under permits issued under this section.

10 ‘‘(C) CONTENT OF REPORTS.—The reports

11 submitted to Congress under this subsection

12 shall include consideration of relevant informa13 tion contained in individual and general permit

14 applications, compliance monitoring records and

15 maps, and any other relevant information.

16 ‘‘(2) EFFECTS OF COMPENSATORY MITIGA17 TION.—

18 ‘‘(A) IN GENERAL.—The Secretary, in con19 sultation with the Administrator, the Secretary

20 of the Interior, and those States that have a

21 permit program approved under subsection

22 (h)(2), shall report biennially to Congress on

23 the effects on navigable waters of compensatory

24 mitigation required under permits issued under

25 this section, including general permits.
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1 ‘‘(B) CONTENTS OF REPORTS.—The re2 ports shall contain—

3 ‘‘(i) estimates of the number of per4 mits for which compensatory mitigation is

5 required; and

6 ‘‘(ii) a description of—

7 ‘‘(I) the type and extent of com8 pensatory mitigation projects re9 quired;

10 ‘‘(II) the degree of compliance

11 with the compensatory mitigation re12 quirements;

13 ‘‘(III) the extent to which the

14 compensatory mitigation requirements

15 have been successful in restoring the

16 intended range of functions and val17 ues to navigable waters; and

18 ‘‘(IV) the extent to which mon19 itoring and enforcement of compen20 satory mitigation requirements have

21 been conducted by the agencies re22 sponsible for the monitoring and en23 forcement.’’.
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1 SEC. 107. EXPEDITED PERMIT REVIEW.

2 Subsection (q) of section 404 of the Federal Water

3 Pollution Control Act (33 U.S.C. 1344(q)) is amended to

4 read as follows:

5 ‘‘(q) REDUCTION IN PAPERWORK AND DELAYS.—

6 ‘‘(1) IN GENERAL.—Not later than 180 days

7 after the date of enactment of this paragraph, the

8 Secretary shall enter into an agreement with the Ad9 ministrator, the Secretaries of Agriculture, Com10 merce, and the Interior, and the heads of other ap11 propriate Federal agencies to minimize, to the maxi12 mum extent practicable, duplication, needless paper13 work, and delays in the issuance of permits under

14 this section.

15 ‘‘(2) FAST TRACK FOR MINOR PERMITS.—

16 ‘‘(A) IN GENERAL.—Not later than 180

17 days after the date of enactment of this para18 graph, the Secretary shall establish in each dis19 trict office a special team, to be known as the

20 ‘Fast Track team’, to expedite the review and

21 processing of minor permits. Each team shall

22 consist of not more than 25 percent of all per23 sonnel assigned to review permit applications

24 under this section, and shall not be assigned to

25 review or process any permits other than minor

26 permits, unless final decisions have been
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1 reached with respect to all minor permits by not

2 later than 60 days after the notice of applica3 tion for the permits is published pursuant to

4 subsection (a).

5 ‘‘(B) REVIEW.—The District Engineer in

6 each district office shall review the operations

7 of the Fast Track team in the office every 180

8 days. If final decisions on a significant percent9 age of minor permits have not been reached by

10 not later than 60 days after the notice of appli11 cation for the permits is published pursuant to

12 subsection (a), additional personnel shall be as13 signed to the Fast Track team.

14 ‘‘(C) DEFINITION OF MINOR PERMIT.—As

15 used in this subsection, the term ‘minor per16 mit’—

17 ‘‘(i) means a permit for an activity

18 that—

19 ‘‘(I) would disturb not more than

20 1 acre of wetlands;

21 ‘‘(II) is not part of a larger com22 mon plan or proposal that would dis23 turb acreage in addition to that speci24 fied in subclause (I); and
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1 ‘‘(III) is being performed by an

2 individual or a private business that

3 employs not more than 10 people; and

4 ‘‘(ii) does not include a permit—

5 ‘‘(I) with respect to which the

6 Secretary is required to issue an envi7 ronmental impact statement under the

8 National Environmental Policy Act of

9 1969 (42 U.S.C. 4321 et seq.);

10 ‘‘(II) that involves an activity

11 that may affect any species that is

12 listed as an endangered species or

13 threatened species under the Endan14 gered Species Act of 1973 (16 U.S.C.

15 1531 et seq.), or the habitat of the

16 species; or

17 ‘‘(III) with respect to which the

18 Secretary, the Administrator, or a

19 Federal agency referred to in para20 graph (1) requests that the permit ap21 plication receive additional review.’’.

22 SEC. 108. AVOIDANCE AND MINIMIZATION OF ADVERSE EF23 FECTS.

24 Section 404 of the Federal Water Pollution Control

25 Act (33 U.S.C. 1344) (as amended by section 106) is fur-
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1 ther amended by adding at the end the following new sub2 section:

3 ‘‘(v) MINIMIZATION OF ADVERSE ENVIRONMENTAL

4 IMPACTS.—No individual or general permit shall be issued

5 for an activity pursuant to this section if there is a prac6 ticable alternative to the proposed activity that would have

7 less adverse environmental impact on navigable waters.’’.

8 SEC. 109. EXEMPTIONS FOR AGRICULTURE AND OTHER AC9 TIVITIES.

10 Subsection (f) of section 404 of the Federal Water

11 Pollution Control Act (33 U.S.C. 1344(f)) is amended to

12 read as follows:

13 ‘‘(f) EXEMPTIONS FOR AGRICULTURE AND OTHER

14 ACTIVITIES.—

15 ‘‘(1) IN GENERAL.—

16 ‘‘(A) GENERAL RULE.—Except as provided

17 in paragraph (2), the discharge of dredged or

18 fill material into or any other alteration of navi19 gable waters described in subparagraph (B) is

20 not prohibited by, or otherwise subject to, regu21 lation under this section or section 301(a) or

22 402 (except for effluent standards or prohibi23 tions under section 307).

24 ‘‘(B) ACTIVITIES.—The discharge of

25 dredged or fill material into or any other alter-
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1 ation of navigable waters referred to in sub2 paragraph (A) is a discharge or other alter3 ation—

4 ‘‘(i) from a normal farming,

5 silviculture, or ranching activity, including

6 plowing, seeding, cultivating, minor drain7 age, harvesting for the production of food,

8 fiber, and forest products, or an upland

9 soil or water conservation practice;

10 ‘‘(ii) for the purpose of the mainte11 nance, including the emergency reconstruc12 tion of a recently damaged part, of a then

13 currently serviceable structure, including a

14 dike, dam, levee, groin, riprap, breakwater,

15 causeway, bridge abutment or approach, or

16 a transportation structure, to the then cur17 rent or most recent configuration;

18 ‘‘(iii) for the purpose of the construc19 tion or maintenance of a farm or stock

20 pond or irrigation ditch, or the mainte21 nance of a drainage ditch;

22 ‘‘(iv) for the purpose of the construc23 tion of a temporary sedimentation basin on

24 a construction site that does not involve
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1 the placement of fill material into navi2 gable waters;

3 ‘‘(v) for the purpose of the construc4 tion or maintenance of a farm road or for5 est road, or a temporary road for moving

6 mining equipment, if the road is con7 structed and maintained, in accordance

8 with best management practices, to ensure

9 that—

10 ‘‘(I) the flow and circulation pat11 terns and chemical and biological

12 characteristics of navigable waters are

13 not impaired;

14 ‘‘(II) the reach of navigable wa15 ters is not reduced; and

16 ‘‘(III) any adverse effect on the

17 aquatic environment will otherwise be

18 minimized; or

19 ‘‘(vi) resulting from any activity with

20 respect to which a State has an approved

21 program under section 208(b)(4) that

22 meets the requirements of subparagraphs

23 (B) and (C) of such section.

24 ‘‘(2) EXCEPTION FOR NEW USES.—Any dis25 charge of dredged or fill material into, or other al-
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1 teration of, navigable waters incidental to any activ2 ity having as the purpose of the activity the bringing

3 of an area of navigable waters into a use to which

4 the area was not previously subject, if the flow or

5 circulation of navigable waters may be impaired or

6 the reach of the waters may be reduced, shall be re7 quired to have a permit under this section.

8 ‘‘(3) OTHER ACTIVITIES.—An activity that does

9 not result in the discharge of dredged or fill material

10 into, or any other alteration of, navigable waters

11 shall not be prohibited or otherwise subject to regu12 lation under this section.

13 ‘‘(4) NAVIGABLE WATERS.—

14 ‘‘(A) IN GENERAL.—For purposes of this

15 section, the following shall not be considered to

16 be navigable waters:

17 ‘‘(i) Nontidal drainage and irrigation

18 ditches excavated in uplands.

19 ‘‘(ii) Artificially irrigated areas that

20 would revert to uplands if the irrigation

21 ceased.

22 ‘‘(iii) Artificial lakes or ponds created

23 by excavating or diking uplands to collect

24 and retain water, and that are used exclu-
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1 sively for stock watering, irrigation, or rice

2 growing.

3 ‘‘(iv) Artificial reflecting or swimming

4 pools or other small ornamental water bod5 ies created by excavating or diking uplands

6 to retain water for primarily aesthetic rea7 sons.

8 ‘‘(v) Waterfilled depressions created in

9 uplands incidental to construction activity

10 and pits excavated in uplands for the pur11 pose of obtaining fill, sand, or gravel, un12 less and until the construction or exca13 vation operation is abandoned and the re14 sulting water body meets the definition of

15 waters of the United States.

16 ‘‘(B) BURDEN OF DEMONSTRATION.—Sub17 paragraph (A) shall not apply to a particular

18 water body unless the person desiring to con19 duct an activity in the water body is able to

20 demonstrate that the water body qualifies under

21 subparagraph (A) for exemption from regula22 tion under this section.

23 ‘‘(5) CONTINUING FARMING ACTIVITIES.—Ex24 cept as provided in paragraph (2), normal plowing,

25 seeding, cultivating, minor drainage for crop produc-
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1 tion, or harvesting shall not be prohibited or other2 wise subject to regulation under this section in wa3 ters of the United States that have been maintained

4 as cropland for at least 1 growing season in the 5-

5 year period prior to the plowing, seeding, cultivating,

6 minor drainage, or harvesting.’’.

7 SEC. 110. CITIZEN SUITS AMENDMENTS.

8 Section 505 of the Federal Water Pollution Control

9 Act (33 U.S.C. 1365) is amended—

10 (1) in subsection (a)—

11 (A) in paragraph (1)(B) of the first sen12 tence, by inserting after ‘‘Administrator’’ the

13 following: ‘‘, the Secretary of the Army,’’;

14 (B) in paragraph (2) of the first sentence,

15 and in the second sentence, by inserting after

16 ‘‘Administrator’’ each place it appears the fol17 lowing: ‘‘or the Secretary of the Army’’; and

18 (C) in the second sentence, by striking

19 ‘‘section 309(d)’’ and inserting ‘‘sections 309(d)

20 and 404(s)’’;

21 (2) in subsection (b)—

22 (A) in paragraph (1)—

23 (i) in subparagraph (A), by striking

24 ‘‘and (iii)’’ and inserting the following:

25 ‘‘(iii) to the Secretary of the Army (if the
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1 alleged violation is under section 404), and

2 (iv)’’; and

3 (ii) in subparagraph (B), by inserting

4 after ‘‘if the Administrator’’ the following:

5 ‘‘, Secretary of the Army,’’; and

6 (B) in paragraph (2), by inserting after

7 ‘‘to the Administrator’’ the following: ‘‘or the

8 Secretary of the Army’’;

9 (3) in subsection (c)—

10 (A) in paragraph (2), by inserting after

11 ‘‘the Administrator’’ the following: ‘‘(and the

12 Secretary of the Army, if the alleged violation

13 is under section 404)’’; and

14 (B) in paragraph (3), by inserting after

15 ‘‘Attorney General’’ both places it appears the

16 following: ‘‘, the Secretary of the Army (if the

17 alleged violation is under section 404),’’;

18 (4) in subsection (e), by inserting after ‘‘Ad19 ministrator’’ the following: ‘‘, the Secretary of the

20 Army,’’;

21 (5) in subsection (f), by striking ‘‘or (7)’’ and

22 inserting the following: ‘‘(7) a permit or condition of

23 a permit issued under section 404, that has been, or

24 is, in effect under this Act (including a requirement

25 applicable by reason of section 313); or (8)’’; and
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1 (6) in subsection (h), by inserting after ‘‘Ad2 ministrator’’ both places it appears the following:

3 ‘‘or the Secretary of the Army’’;

4 TITLE II—IMPROVED WETLANDS

5 PERMITTING; REVISIONS TO

6 WETLANDS DELINEATION

7 PROCEDURES

8 SEC. 201. IMPROVEMENT OF ADMINISTRATION OF WET9 LANDS PERMITTING.

10 (a) NEEDS ANALYSIS.—

11 (1) IN GENERAL.—Not later than 90 days after

12 the date of enactment of this Act, the Comptroller

13 General of the United States shall submit to Con14 gress an analysis of the needs of the Army Corps of

15 Engineers and the Environmental Protection Agency

16 for additional personnel, administrative resources,

17 and funding to improve the implementation of sec18 tion 404 of the Federal Water Pollution Control Act

19 (33 U.S.C. 1344).

20 (2) CONTENTS.—The analysis submitted under

21 this subsection shall—

22 (A) give particular emphasis to the needs

23 of the Army Corps of Engineers and the Envi24 ronmental Protection Agency with respect to
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1 improving and expediting wetlands delineation

2 and wetlands permitting generally;

3 (B) include recommendations regarding

4 additional appropriations necessary for the im5 provement and expedition referred to in sub6 paragraph (A); and

7 (C) identify the Army Corps of Engineers

8 district offices and Environmental Protection

9 Agency regional offices that have the greatest

10 need for the additional appropriations referred

11 to in subparagraph (C).

12 (b) USE OF FUNDS FOR WETLANDS AND EDU13 CATION.—Section 404 of the Federal Water Pollution

14 Control Act (33 U.S.C. 1344) (as amended by section

15 108) is further amended by adding at the end the follow16 ing new subsection:

17 ‘‘(w) USE OF FUNDS FOR WETLANDS AND EDU18 CATION.—

19 ‘‘(1) IN GENERAL.—For each fiscal year begin20 ning after the date of enactment of this subsection,

21 of amounts made available to carry out this sec22 tion—

23 ‘‘(A) to the Army Corps of Engineers, the

24 Secretary shall use such amounts as are nec25 essary to carry out the program for training
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1 and certification of individuals as wetlands de2 lineators authorized by section 307(e) of the

3 Water Resources Development Act of 1990 (33

4 U.S.C. 2317(e));

5 ‘‘(B) to the Army Corps of Engineers or

6 the Environmental Protection Agency, the Sec7 retary or the Administrator, respectively, shall

8 use such amounts as are necessary to improve

9 such education and outreach programs of the

10 Army Corps of Engineers or the Environmental

11 Protection Agency as are in existence on the

12 date of the use of the funds, with respect to the

13 requirements of this section; and

14 ‘‘(C) to the Secretary, the Secretary shall

15 use, in accordance with paragraph (2), such

16 amounts as are necessary, but not to exceed

17 $5,000,000, to assist landowners who lack the

18 financial capacity to perform the wetlands de19 lineations necessary to apply for permits under

20 this section.

21 ‘‘(2) WETLANDS DELINEATIONS ASSISTANCE.—

22 The Secretary may provide the assistance described

23 in paragraph (1)(C) by providing technical assist24 ance or by performing delineations. Not later than

25 180 days after the date of enactment of this sub-
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1 section, the Secretary shall issue regulations specify2 ing which landowners are eligible for the assist3 ance.’’.

4 (c) FUNDING FOR EXPEDITING AND COMPLETING

5 WETLANDS MAPPING.—

6 (1) COMPLETION OF MAPPING.—For each fiscal

7 year beginning after the date of enactment of this

8 Act, of amounts appropriated for programs of the

9 United States Fish and Wildlife Service, the Direc10 tor of the United States Fish and Wildlife Service

11 shall use—

12 (A) such amounts as are necessary to com13 plete the wetland mapping program of the Serv14 ice, in existence on the date of enactment of

15 this Act, by not later than 1 year after the date

16 of enactment of this Act;

17 (B) such amounts (in addition to amounts

18 used pursuant to subparagraphs (A) and (C))

19 as are necessary to conduct mapping under the

20 program referred to in subparagraph (A) in

21 areas where there is the potential for delineat22 ing particularly large areas of wetlands; and

23 (C) such amounts as are necessary (in ad24 dition to amounts used pursuant to subpara25 graphs (A) and (B)) to delineate wetlands
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1 under the program referred to in subparagraph

2 (A) in watersheds and ecosystems for which the

3 need for delineation is particularly acute, in4 cluding where wetlands are particularly difficult

5 to identify or where pressure for the develop6 ment of wetlands is intense, by as soon as prac7 ticable after the date of enactment of this Act.

8 (2) UPDATING MAPS.—The Director of the

9 United States Fish and Wildlife Service shall update

10 each map prepared under the wetlands mapping pro11 gram referred to in paragraph (1)(A) at least once—

12 (A) in the 15-year period beginning on the

13 date of the completion of the map; and

14 (B) in each 15-year period thereafter.

15 SEC. 202. REVISIONS TO FEDERAL WETLANDS DELINEA16 TION PROCEDURES.

17 Beginning on the day after the date of enactment of

18 this Act, no revision to or clarification of any Federal

19 manual for identifying and delineating jurisdictional wet20 lands shall be adopted, and no guidance or regulation re21 lated to the definition, delineation, or identification of wet22 lands shall be issued, until the National Academy of

23 Sciences has completed the study of wetlands authorized

24 under the Departments of Veterans Affairs and Housing

25 and Urban Development, and Independent Agencies Ap-
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1 propriations Act, 1993 (Public Law 102–389). All revi2 sions made after the date of completion of the study to

3 any Federal manual for the identification and delineation

4 of wetlands shall take into consideration the scientific and

5 technical recommendations of the National Academy of

6 Sciences.

7 TITLE III—WETLANDS

8 RESTORATION PROGRAM

9 SEC. 301. WETLANDS RESTORATION PILOT PROGRAM.

10 (a) IN GENERAL.—The Secretary of the Army, in co11 operation with the Administrator of the Environmental

12 Protection Agency, the Director of the United States Fish

13 and Wildlife Service, and appropriate officials of State and

14 local government entities, shall establish, with opportunity

15 for public notice and comment, a pilot program of wet16 lands restoration.

17 (b) PURPOSES.—The purposes of the pilot program

18 established under subsection (a) are—

19 (1) to identify areas where the restoration of

20 significant wetland acreage and functions, including

21 fish and wildlife habitat, water quality protection,

22 and natural hydrologic functions, could contribute

23 substantially to preserving the quantity and quality

24 of the wetlands of the United States;
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1 (2) to test methods and techniques for wetlands

2 restoration in the areas described in paragraph (1),

3 and in areas previously identified as suitable for res4 toration; and

5 (3) to develop a means of evaluating the success

6 over the long term of the wetlands restoration ef7 forts described in paragraph (2).

8 SEC. 302. SENSE OF CONGRESS CONCERNING WETLANDS

9 RESERVE PROGRAM.

10 It is the sense of Congress that the wetlands reserve

11 program authorized by subchapter C of chapter 1 of sub12 title D of title XII of the Food Security Act of 1985 (16

13 U.S.C. 3837 et seq.) is an effective wetlands conservation

14 and restoration program that has the potential to benefit

15 agriculturalists, rural communities, and the wetlands re16 source base of the United States. Further, it is the sense

17 of Congress that the wetlands reserve program should be

18 fully funded to achieve the acreage enrollment goals of the

19 program, and should be actively promoted by the Depart20 ment of Agriculture to achieve full subscription.

21 TITLE IV—TAX INCENTIVES FOR

22 WETLANDS CONSERVATION

23 SEC. 401. WETLANDS STEWARDSHIP TRUSTS.

24 (a) DESIGNATION.—The Secretary of the Interior

25 shall designate a nonprofit organization to be a Wetlands
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1 Stewardship Trust for purposes of this section if the orga2 nization—

3 (1) includes among the primary purposes of the

4 organization the acquisition of private interests in

5 wetlands, former wetlands, and associated real prop6 erty for the purpose of restoring or preserving the

7 property; and

8 (2) meets such other requirements as may be

9 established in regulations issued under subsection

10 (c).

11 (b) APPLICATION.—A nonprofit organization seeking

12 to be designated a Wetlands Stewardship Trust for pur13 poses of this section may submit to the Secretary of the

14 Interior an application for the designation, in accordance

15 with procedures established in regulations issued under

16 subsection (c).

17 (c) REGULATIONS.—Not later than 180 days after

18 the date of enactment of this Act, the Secretary of the

19 Interior, acting through the Director of the United States

20 Fish and Wildlife Service, in consultation with the Sec21 retary of the Army, acting through the Army Corps of En22 gineers, and the Administrator of the Environmental Pro23 tection Agency shall issue regulations establishing require24 ments for being designated a Wetlands Stewardship Trust

25 under this section.
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1 SEC. 402. TAX TREATMENT OF DONATIONS OF WETLANDS.

2 (a) TAX TREATMENT.—Subsection (e) of section 170

3 of the Internal Revenue Code of 1986 (relating to chari4 table, etc., contributions and gifts) is amended by adding

5 at the end the following new paragraph:

6 ‘‘(6) SPECIAL RULES FOR CONTRIBUTIONS OF

7 WETLANDS.—

8 ‘‘(A) IN GENERAL.—In the case of a chari9 table contribution by a taxpayer of wetlands (or

10 any interest in wetlands) to a Wetlands Stew11 ardship Trust or to a governmental unit re12 ferred to in subsection (c)(1) for the purpose of

13 preserving the property in its natural state:

14 ‘‘(i) 50 PERCENT LIMITATION TO

15 APPLY TO INDIVIDUALS.—Such a contribu16 tion by an individual shall be treated for

17 purposes of this section as described in

18 subsection (b)(1)(A).

19 ‘‘(ii) 20-YEAR CARRYFORWARD.—Sub20 section (d)(1) shall be applied by substitut21 ing ‘20 years’ for ‘5 years’ each place it

22 appears and with appropriate adjustments

23 in the application of subparagraphs (A)(ii)

24 and (B)(ii) of such subsection.

25 ‘‘(iii) EXTENSION OF PERIOD FOR EX26 CHANGES.—If the contribution is made as
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1 part of an exchange to which section 1031

2 applies, paragraph (3) of section 1031(a)

3 shall be treated as met if the property to

4 be received in the exchange is received by

5 the taxpayer not later than the date which

6 is 3 years after the date on which the tax7 payer transfers the property relinquished

8 in the exchange.

9 ‘‘(B) PROPERTY MUST BE PROTECTED IN

10 PERPETUITY.—A contribution shall not be

11 treated as for the purpose referred to in sub12 paragraph (A) unless the purpose is protected

13 in perpetuity.

14 ‘‘(C) CERTAIN PROPERTY INELIGIBLE.—

15 Subparagraph (A) shall not apply to any con16 tribution of property if—

17 ‘‘(i) the property is required (as of the

18 date of the contribution) to be preserved in

19 perpetuity in its natural state other than

20 by reason of the terms of contribution; or

21 ‘‘(ii) the property is required to be re22 stored or preserved as compensatory miti23 gation as a condition of a permit issued

24 under section 404 of the Federal Water

25 Pollution Control Act (33 U.S.C. 1344).
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1 ‘‘(D) UNUSED DEDUCTION CARRYOVER AL2 LOWED ON TAXPAYER’S LAST RETURN.—In the

3 case of an individual, if—

4 ‘‘(i) the taxpayer dies before the close

5 of the last taxable year for which a deduc6 tion for a contribution to which subpara7 graph (A) applies could have been allowed

8 under subsection (d)(1), and

9 ‘‘(ii) any portion of the deduction for

10 the contribution has not been allowed for

11 any taxable year before the taxable year in

12 which the death occurs,

13 the portion shall be allowed as a deduction

14 under subsection (a) for the taxable year in

15 which the death occurs without regard to sub16 section (b), or the unused portion may be used

17 against the estate taxes of the taxpayer.

18 ‘‘(E) DEFINITIONS.—As used in this para19 graph:

20 ‘‘(i) WETLANDS.—The term ‘wet21 lands’ means any area that is inundated or

22 saturated by surface or ground water at a

23 frequency and duration sufficient to sup24 port, and which under normal cir25 cumstances does support, a prevalence of
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1 vegetation typically adapted for life in

2 saturated soil conditions.

3 ‘‘(ii) WETLANDS STEWARDSHIP

4 TRUST.—The term ‘Wetlands Stewardship

5 Trust’ means any entity designated by the

6 Secretary of the Interior under section 401

7 of the Wetlands Reform Act of 1993.’’.

8 (b) EFFECTIVE DATE.—The amendment made by

9 this section shall apply to contributions and gifts made

10 after the date of enactment of this Act in taxable years

11 ending after the date.

12 SEC. 403. EXCLUSION FROM GROSS INCOME FOR AMOUNTS

13 RECEIVED FROM COMPATIBLE USES OF WET14 LANDS.

15 (a) IN GENERAL.—Part III of subchapter B of chap16 ter 1 of the Internal Revenue Code of 1986 (relating to

17 items specifically excluded from gross income) is amend18 ed—

19 (1) by redesignating section 137 as section 138;

20 and

21 (2) by inserting after section 136 the following

22 new section:
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1 ‘‘SEC. 137. INCOME FROM COMPATIBLE USES OF WET2 LANDS.

3 ‘‘(a) GENERAL RULE.—Gross income shall not in4 clude any amount received by the owner of wetlands for

5 allowing any person to use the wetlands in a compatible

6 use.

7 ‘‘(b) DEFINITIONS.—As used in this section:

8 ‘‘(1) COMPATIBLE USE.—The term ‘compatible

9 use’ has the meaning given the term in the regula10 tions prescribed under the following sentence. The

11 Secretary of the Interior, acting through the Direc12 tor of the United States Fish and Wildlife Service,

13 shall prescribe regulations identifying those activities

14 which constitute compatible uses for purposes of this

15 section, including any pertinent restrictions on the

16 activities. The activities may include fishing, hunt17 ing, and occasional and prudent managed haying, if

18 deemed appropriate by the Secretary of the Interior,

19 but shall not include any activity which degrades the

20 functions or values of wetlands.

21 ‘‘(2) WETLANDS.—The term ‘wetlands’ has the

22 meaning given the term by section 170(e)(6)(E)(i).’’.

23 (b) CLERICAL AMENDMENT.—The table of sections

24 for such part III is amended by striking the last item and

25 inserting the following new items:

‘‘Sec. 137. Income from compatible uses of wetlands.
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‘‘Sec. 138. Cross references to other Acts.’’.

1 (c) EFFECTIVE DATE.—The amendments made by

2 this section shall apply to amounts received after the date

3 of enactment of this Act in taxable years ending after the

4 date.

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