I

103D CONGRESS

1ST SESSION H. R. 3465

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

of wetlands and thereby restore and maintain the physical, chemical,

and biological integrity of the Nation’s waters, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 8, 1993

Mr. STUDDS (for himself and Mr. DE LA GARZA) introduced the following bill;

which was referred jointly to the Committees on Merchant Marine and

Fisheries, Agriculture, and Public Works and Transportation

A BILL

To amend the Federal Water Pollution Control Act to improve the protection of wetlands and thereby restore

and maintain the physical, chemical, and biological integrity of the Nation’s waters, 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.

4 This Act may be cited as the ‘‘Wetlands Protection

5 and Management Act’’.

6 SEC. 2. REFERENCES.

7 Except as otherwise expressly provided, whenever in

8 this Act an amendment or repeal is expressed in terms
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1 of an amendment to, or repeal of, a section or other provi2 sion, the reference shall be considered to be made to a

3 section or other provision of the Federal Water Pollution

4 Control Act.

5 SEC. 3. POLICY AND FINDINGS.

6 (a) WETLAND POLICY.—Subsection (a) of section

7 101 (33 U.S.C. 1251) is amended—

8 (1) by striking ‘‘and’’ at the end of paragraph

9 (6);

10 (2) by striking the period at the end of para11 graph (7) and inserting ‘‘; and’’; and

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

13 paragraph:

14 ‘‘(8) it is the national policy to protect the

15 quantity and quality of the Nation’s remaining wet16 land base and restore wetlands that have been de17 graded.’’.

18 (b) FINDINGS.—Section 101 is further amended by

19 adding at the end the following new subsection:

20 ‘‘(h) WETLANDS.—Congress finds the following:

21 ‘‘(1) Wetlands perform a number of valuable

22 functions needed to restore and maintain the chemi23 cal, physical, and biological integrity of the Nation’s

24 waters.
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1 ‘‘(2) Wetlands serve important ecological and

2 natural resource functions, such as providing an es3 sential nesting and feeding habitat for waterfowl and

4 other wildlife (including many rare and endangered

5 species), providing fisheries habitat, enhancing water

6 quality, and providing natural flood control.

7 ‘‘(3) Wetlands are highly sensitive to changes in

8 water regimes and are, therefore, susceptible to deg9 radation by fills, drainage, grading, water extrac10 tions, excavations, and other activities within their

11 watersheds which affect the quantity, quality, and

12 flow of surface and ground waters. Protection and

13 management of wetlands, therefore, should be inte14 grated with management of hydrologic systems.

15 ‘‘(4) Wetland systems are difficult to evaluate,

16 map, plan, and restore. Efforts to protect and re17 store wetlands should be coordinated to make effi18 cient use of scarce Federal, State, and local re19 sources. States and local governments should be en20 couraged to undertake advanced planning for wet21 lands. This planning should help to integrate wet22 land protection and management with other water

23 resource management programs on a watershed

24 basis such as flood loss reduction, stormwater man25 agement, water supply, protection of fish and wild-
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1 life habitat, and control of point and nonpoint

2 sources of pollution.

3 ‘‘(5) The discharge of dredged or fill material

4 into wetlands can adversely affect interstate com5 merce because such discharges can destroy or dimin6 ish the utility of a wetland for purposes such as

7 flood control, water purification, recharging ground8 water, erosion control, and providing habitat and

9 food supply for fish and wildlife.

10 ‘‘(6) Wetland functions have tremendous finan11 cial value to the United States economy both be12 cause of the natural ecological protection that wet13 lands afford and because of the importance of wet14 lands to economically important activities, such as

15 flood control, tourism, and commercial and rec16 reational fishing.’’.

17 SEC. 4. DELINEATION OF WETLANDS.

18 (a) GENERAL RULE.—

19 (1) LIMITATION ON REVISIONS TO CORPS MAN20 UAL.—After the date of the enactment of this Act,

21 the 1987 Corps of Engineers Wetlands Delineation

22 Manual may not be revised, except as provided by

23 this section, before the date on which the Committee

24 on Wetlands Characterization of the National Re-
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1 search Council publishes its report pursuant to Pub2 lic Law 102–389.

3 (2) REQUIREMENTS FOR REVISION OF CORPS

4 MANUAL.—After the date of publication of the re5 port referred to in paragraph (1), the 1987 Corps of

6 Engineers Wetlands Delineation Manual may be re7 vised if—

8 (A) such revisions take into account the

9 findings and recommendations contained in

10 such report; and

11 (B) such revisions are made after field

12 testing and notice and opportunity for public

13 comment.

14 (3) REQUIRED USE OF CORPS MANUAL.—Until

15 the 1987 Corps of Engineers Wetlands Delineation

16 Manual is revised in accordance with this subsection

17 (and other than under subsection (c)), identification

18 and delineation of wetlands for purposes of section

19 404 of the Federal Water Pollution Control Act

20 shall be carried out through the use of such manual.

21 (b) DELINEATION OF WETLANDS ON AGRICULTURAL

22 LANDS.—

23 (1) MEMORANDUM OF AGREEMENT.—

24 (A) ISSUANCE.—Not later than 180 days

25 after the date of the enactment of this Act, and
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1 after notice and opportunity for public com2 ment, the Chief of the Soil Conservation Serv3 ice, the Administrator of the Environmental

4 Protection Agency, the Secretary of the Army,

5 and the Secretary of the Interior shall jointly

6 issue a memorandum of agreement which sets

7 forth procedures for identifying and delineating

8 wetlands on agricultural lands for purposes of

9 section 404(a) of the Federal Water Pollution

10 Control Act.

11 (B) REQUIREMENTS.—The agreement to

12 be issued under subparagraph (A) shall ensure

13 that—

14 (i) agency and field staff of the Soil

15 Conservation Service are properly trained

16 by the Secretary of the Army;

17 (ii) standard wetland delineation

18 methods are utilized by the Soil Conserva19 tion Service; and

20 (iii) appropriate programmatic level

21 review is conducted by the Administrator

22 of the Environmental Protection Agency

23 and the Secretary of the Army.

24 (C) PROCEDURES.—Procedures set forth

25 in the agreement to be issued under subpara-
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1 graph (A) shall provide for the use of the 1987

2 Corps of Engineers Wetlands Delineation Man3 ual in conjunction with the National Food Se4 curity Act Manual of the Soil Conservation

5 Service until such date as the 1987 Corps of

6 Engineers manual is revised in accordance with

7 this section.

8 (2) ROLE OF SOIL CONSERVATION SERVICE.—

9 After the date of issuance of the memorandum of

10 agreement under paragraph (1), and in accordance

11 with the procedures set forth in such memorandum,

12 the Chief of the Soil Conservation Service, in con13 sultation with the Director of the United States Fish

14 and Wildlife Service, shall carry out identification

15 and delineation of wetlands on agricultural lands for

16 purposes of section 404(a) of the Federal Water Pol17 lution Control Act.

18 (3) ADDITIONAL RESPONSIBILITIES.—The Ad19 ministrator of the Environmental Protection Agency,

20 in consultation with the Secretary of the Army, the

21 Chief of the Soil Conservation Service, and the Di22 rector of the United States Fish and Wildlife Serv23 ice, shall issue regulations to authorize the Chief of

24 the Soil Conservation Service to carry out, for the

25 purposes of section 404(a) of the Federal Water Pol-
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1 lution Control Act, identification and delineation of

2 wetlands on non-agricultural lands which are contig3 uous to or contained within agricultural lands in

4 order to simplify and streamline the permitting proc5 ess.

6 (4) LIMITATION ON STATUTORY CONSTRUC7 TION.—Nothing in this subsection shall be construed

8 to limit the authority of the Administrator of the

9 Environmental Protection Agency to prohibit the

10 specification of any defined area as a disposal site

11 pursuant to section 404(c) of the Federal Water

12 Pollution Control Act.

13 (5) AGRICULTURAL LANDS DEFINED.—For the

14 purposes of this subsection, the term ‘‘agricultural

15 lands’’ means cropland, pastureland, haylands,

16 rangelands, orchards, vineyards, production nurs17 eries, and any other land that is intensively used or

18 managed for agricultural purposes such that the

19 natural vegetation cannot be relied on for delineation

20 purposes.

21 (c) REGIONAL WETLAND VARIATIONS.—The Admin22 istrator of the Environmental Protection Agency, in co23 operation with the Secretary of the Army, the Chief of

24 the Soil Conservation Service, the Director of the United

25 States Fish and Wildlife Service, and the States, is au-
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1 thorized to issue rules to make such revisions to the 1987

2 Corps of Engineers Wetlands Delineation Manual as may

3 be necessary to address regional variations in plants and

4 soils and technical procedures pertaining to wetland hy5 drology, soils, and vegetation. Notwithstanding paragraph

6 (1), such revisions may be made and instituted before the

7 Committee on Wetlands Characterization of the National

8 Research Council publishes its report pursuant to Public

9 Law 102–389. Such revisions shall not be considered to

10 be part of any other manual unless specifically incor11 porated into the manual.

12 SEC. 5. WETLANDS CONSERVATION, MANAGEMENT, AND

13 RESTORATION.

14 (a) FUNDING FOR STATE WETLANDS CONSERVATION

15 PLANS.—Paragraph (3) of section 104(b) (33 U.S.C.

16 1254(b)) is amended by inserting before the semicolon

17 ‘‘and for the development and implementation of State

18 wetlands conservation plans under section 321’’.

19 (b) WETLANDS CONSERVATION, MANAGEMENT AND

20 RESTORATION.—Title III (33 U.S.C. 1311 et seq.) is

21 amended by adding at the end the following new section:

22 ‘‘SEC. 321. STATE WETLANDS CONSERVATION PLANS.

23 ‘‘(a) DEVELOPMENT AND IMPLEMENTATION ASSIST24 ANCE.—Subject to the requirements of this section, the

25 Administrator is authorized to make grants to States to
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1 assist in the development and implementation of State

2 wetlands conservation plans.

3 ‘‘(b) CONTENTS OF PLANS.—To qualify for assist4 ance under subsection (a), a State wetlands conservation

5 plan shall generally include—

6 ‘‘(1) management strategies and policies for

7 achieving within the State the goal under section

8 101(a)(8);

9 ‘‘(2) an inventory of wetlands resources in the

10 State;

11 ‘‘(3) a description of the major causes of wet12 lands loss and degradation in the State, including an

13 estimate of historical wetlands losses;

14 ‘‘(4) a description of State and local govern15 ment programs applying to wetlands resources in the

16 State;

17 ‘‘(5) identification of sites in the State with

18 wetlands restoration potential;

19 ‘‘(6) identification of riparian areas in the State

20 with restoration potential;

21 ‘‘(7) a schedule for implementing the elements

22 of the plan;

23 ‘‘(8) a mechanism for monitoring achievement

24 of the stated goals of the plan; and
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1 ‘‘(9) involvement of local public and private

2 agencies and organizations which have expertise in

3 wetlands conservation or land use planning or devel4 opment.’’.

5 SEC. 6. PERMITTING REQUIREMENTS.

6 Subsection (d) of section 404 (33 U.S.C. 1344) is

7 amended to read as follows:

8 ‘‘(d) PERMITTING REQUIREMENTS.—

9 ‘‘(1) NO NET LOSS OF WETLAND FUNCTIONS

10 AND VALUES.—In issuing each permit under this

11 section, the Secretary shall ensure, to the maximum

12 extent practicable, that there is no net loss of the

13 acreage, functions, and values of wetlands.

14 ‘‘(2) MITIGATION REQUIREMENTS.—All condi15 tions contained in permits issued pursuant to this

16 section shall be enforceable. Conditions requiring the

17 mitigation of wetland losses shall be monitored in

18 order to ensure compliance and determine effective19 ness.

20 ‘‘(3) DEADLINE FOR ISSUANCE OF PERMITS TO

21 ASSIST SMALL LANDOWNERS.—

22 ‘‘(A) IN GENERAL.—On or before the 60th

23 day following the date on which the Secretary

24 publishes notice of a completed application

25 under paragraph (1) for a permit for a minor
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1 discharge into wetlands, the Secretary shall

2 make a determination on whether to issue or

3 deny such permit and transmit to the applicant

4 written notice of such determination. Except as

5 provided by subparagraph (B), if the Secretary

6 does not transmit such written notice on or be7 fore such 60th day such application shall be

8 deemed approved and the Secretary shall trans9 mit to the applicant written notice of such ap10 proval.

11 ‘‘(B) EXCEPTIONS.—The Secretary may

12 make a determination on whether to issue or

13 deny a permit for a minor discharge into wet14 lands after the 60th day referred to in subpara15 graph (A) only if on or before such 60th day—

16 ‘‘(i) the Secretary provides to the ap17 plicant written notice that the application

18 is subject to further review because the

19 Secretary has determined based on avail20 able information that issuance of the per21 mit may pose a significant risk to the envi22 ronment;

23 ‘‘(ii) the Secretary provides to the ap24 plicant, based upon a determination by the

25 Secretary or upon request of the Secretary
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1 of the Interior, the Secretary of Commerce,

2 or the Administrator, written notice that

3 additional time is needed to process the ap4 plication in order to provide for compliance

5 with other Federal laws; or

6 ‘‘(iii) the applicant transmits to the

7 Secretary a written request for additional

8 time.

9 ‘‘(C) MINOR DISCHARGE INTO WETLANDS

10 DEFINED.—For the purposes of this paragraph,

11 the term ‘minor discharge into wetlands’ means

12 a discharge of dredged or fill material into wet13 lands which—

14 ‘‘(i) does not affect more than 1 acre

15 of wetlands;

16 ‘‘(ii) is performed by a private individ17 ual; and

18 ‘‘(iii) is not part of a plan, proposal,

19 or project to affect additional wetlands.

20 ‘‘(D) REGULATIONS.—Not later than 6

21 months after the date of the enactment of this

22 paragraph, and after notice and opportunity for

23 public comment, the Secretary shall issue regu24 lations to carry out this paragraph.

25 ‘‘(4) PROCESSING FEES.—
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1 ‘‘(A) IN GENERAL.—The Secretary shall

2 establish and collect fees for processing permit

3 applications under this section.

4 ‘‘(B) AMOUNTS.—In establishing fees

5 under subparagraph (A), the Secretary shall

6 seek to collect a total of $10,000,000 per fiscal

7 year from such fees. No fee for an application

8 for an individual permit to conduct a non-com9 mercial activity shall exceed $20.00.

10 ‘‘(C) SMALL LANDOWNERS ASSISTANCE AC11 COUNT.—There is established in the Treasury

12 of the United States an account to be known as

13 the ‘Small Landowners Assistance Account’.

14 The amounts from fees collected pursuant to

15 this paragraph shall be deposited into such ac16 count and shall be available to the Secretary

17 without further appropriation for providing

18 technical assistance to private landowners with

19 inadequate financial resources in complying

20 with the requirements of this section. Such

21 technical assistance may include identification

22 and delineation of wetlands, preparation of per23 mit applications, and guidance on methods to

24 avoid and mitigate against adverse impacts to

25 wetlands.’’.
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1 SEC. 7. GENERAL PERMITS.

2 Subsection (e) of section 404 (33 U.S.C. 1344) is

3 amended to read as follows:

4 ‘‘(e) GENERAL PERMITS.—

5 ‘‘(1) ISSUANCE.—

6 ‘‘(A) IN GENERAL.—In carrying out the

7 functions of the Secretary under this section re8 lating to the discharge of dredged or fill mate9 rial, the Secretary may, after notice and oppor10 tunity for public hearing, issue general permits.

11 ‘‘(B) CATEGORIES OF ACTIVITIES.—The

12 Secretary may issue general permits under this

13 subsection on a State or nationwide basis for

14 any specifically defined category of activities in15 volving discharges of dredged or fill material if

16 the Secretary determines that the activities in

17 such category are similar in nature, will cause

18 only minimal adverse environmental effects

19 when performed separately, and will have only

20 a minimal cumulative adverse effect on the en21 vironment.

22 ‘‘(C) CATEGORIES OF WATERS.—The Sec23 retary may issue general permits under this

24 subsection on a State or nationwide basis for

25 discharges of dredged or fill material into any

26 specifically defined category of waters if the
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1 Secretary determines that the waters in such

2 category are similar in nature and that dis3 charges into such waters will cause only mini4 mal adverse environmental effects when per5 formed separately and will have only a minimal

6 cumulative adverse effect on the environment.

7 ‘‘(D) REQUIREMENTS AND STANDARDS.—

8 Any general permit issued under this subsection

9 shall—

10 ‘‘(i) be based on guidelines established

11 pursuant to subsection (b)(1);

12 ‘‘(ii) set forth requirements and

13 standards to minimize individual and cu14 mulative impacts resulting from activities

15 authorized by the general permit; and

16 ‘‘(iii) include measures to enable the

17 Secretary to be apprised of and to monitor

18 activities conducted under the general per19 mit.

20 ‘‘(2) PROGRAMMATIC PERMITS.—In order to

21 avoid unnecessary duplication of Federal and State

22 requirements, a general permit may be issued under

23 this subsection for an existing State regulatory pro24 gram if the general permit—
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1 ‘‘(A) requires the State agency administer2 ing the regulatory program to have jurisdiction

3 over the activities and waters within the scope

4 of the general permit;

5 ‘‘(B) provides adequate safeguards to en6 sure that the activities permitted under the reg7 ulatory program will have no more than a mini8 mal cumulative adverse effect on the environ9 ment and that the regulatory program will pro10 vide at least the same degree of protection for

11 the navigable waters as the protection provided

12 by this section;

13 ‘‘(C) provides at least the same oppor14 tunity for public review, comment, and hearings

15 as provided by this section;

16 ‘‘(D) includes provisions to provide an op17 portunity for the Secretary, the Administrator,

18 the Secretary of the Interior (acting through

19 the Director of the United States Fish and

20 Wildlife Service), and the Secretary of Com21 merce (acting through the Administrator of the

22 National Oceanic and Atmospheric Administra23 tion) to review permit applications submitted to

24 and decisions made by the State agency to en25 sure that the requirements of this subsection
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1 are met and to ensure that individual permits

2 are required under subsection (a) for discharges

3 that may have more than a minimal individual

4 or cumulative impact on the environment; and

5 ‘‘(E) is expressly made subject to all other

6 Federal environmental laws.

7 ‘‘(3) TERM.—No general permit issued under

8 this subsection shall be for a period of more than 5

9 years after the date of its issuance and such general

10 permit shall be revoked or modified by the Secretary

11 if, after notice and opportunity for public hearing,

12 the Secretary determines that—

13 ‘‘(A) the activities authorized by the gen14 eral permit have more than a minimal adverse

15 impact on the environment;

16 ‘‘(B) such activities are more appropriately

17 authorized by individual permits; or

18 ‘‘(C) a State government has failed to

19 monitor and control the individual and cumu20 lative adverse effects of activities conducted

21 under State general permits.

22 ‘‘(4) NOTICE FOR ACTIVITIES REQUIRING

23 PREDISCHARGE NOTIFICATION.—Any activity for

24 which a general permit issued under this subsection

25 requires predischarge notification shall not be con-
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1 sidered to be authorized by the general permit before

2 the Secretary provides notice and 30 days oppor3 tunity for comment to the Administrator, the Sec4 retary of the Interior, the Secretary of Commerce,

5 and State agencies responsible for water quality,

6 coastal zone management, and fish and wildlife re7 sources which may be affected by the activity, and

8 to the public.

9 ‘‘(5) REVIEW.—The Secretary shall conduct a

10 review of each general permit issued pursuant to

11 this subsection for which a report issued under sub12 section (u) contains information indicating more

13 than a minimal adverse cumulative effect on the en14 vironment. Any such general permit shall, after no15 tice and opportunity for public hearing, be revoked

16 or modified by the Secretary as necessary to avoid

17 or minimize such cumulative adverse effects.

18 ‘‘(6) STATE REGULATORY PROGRAM DE19 FINED.—For the purposes of this subsection, the

20 term ‘State regulatory program’ shall include the

21 regulatory program of an Indian tribe.’’.

22 SEC. 8. EXEMPTIONS FROM PERMITTING REQUIREMENTS.

23 (a) EXEMPTION OF DISCHARGES.—

24 (1) NORMAL FARMING, SILVICULTURE, AND

25 RANCHING ACTIVITIES.—Subparagraph (A) of sec-
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1 tion 404(f)(1) (33 U.S.C. 1344(f)(1)) is amended to

2 read as follows:

3 ‘‘(A) from normal farming, silviculture, and

4 ranching activities, such as haying, grazing, plowing,

5 seeding, cultivating, minor drainage, maintenance,

6 fence building and maintenance, water management

7 activities associated with cranberry farming, includ8 ing those which periodically change the hydrologic

9 regime of the navigable waters, harvesting for the

10 production of food, fiber, and forest products, or up11 land soils and water conservation practices;’’.

12 (2) MAINTENANCE OF WASTEWATER RETEN13 TION FACILITIES.—Subparagraph (C) of section

14 404(f)(1) is amended by inserting after ‘‘irrigation

15 ditches,’’ the following: ‘‘the maintenance, including

16 diking and berming, of wastewater retention facili17 ties that are used by concentrated animal feeding

18 operations,’’.

19 (b) EXEMPTION OF AREAS.—Subsection (f) of sec20 tion 404 is amended by adding at the end the following

21 new paragraphs:

22 ‘‘(3) EXEMPTION OF AREAS FROM PERMITTING

23 REQUIREMENTS.—For the purposes of this section,

24 the following shall not be considered to be navigable

25 waters:
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1 ‘‘(A) Irrigation ditches excavated in non2 waters.

3 ‘‘(B) Artificially irrigated areas which

4 would revert to non-waters if the irrigation

5 ceased.

6 ‘‘(C) Artificial lakes or ponds which are

7 created by excavating or diking non-waters to

8 collect and retain water and which are used ex9 clusively for stock watering, irrigation, or rice

10 growing.

11 ‘‘(D) Artificial reflecting or swimming

12 pools or other small ornamental bodies of water

13 created by excavating or diking non-waters to

14 retain water for primarily aesthetic reasons.

15 ‘‘(E) Temporary, water-filled depressions

16 created in non-waters incidental to construction

17 activity.

18 ‘‘(F) Pits excavated in non-waters for the

19 purpose of obtaining fill, sand, gravel, aggre20 gates, or minerals, unless and until the con21 struction or excavation operation is abandoned

22 and the resulting body of water meets the defi23 nition of navigable waters.
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1 ‘‘(G) Artificial stormwater detention areas

2 and artificial sewage treatment areas that are

3 not modifications of navigable waters.

4 ‘‘(H) Prior converted cropland unless and

5 until such cropland is abandoned, as deter6 mined by the Chief of the Soil Conservation

7 Service pursuant to paragraph (4).

8 ‘‘(I) Confined dredged material disposal

9 sites constructed in non-waters.

10 ‘‘(4) ABANDONMENT OF PRIOR CONVERTED

11 CROPLAND.—For the purposes of paragraph (3)(H),

12 abandonment of prior converted cropland means the

13 cessation of cropping, management, or maintenance

14 operations of agricultural commodities on such land.

15 Where the cessation of such cropping, management,

16 or maintenance operations has occurred, prior con17 verted cropland is considered to be abandoned unless

18 it is shown that there was no intent to abandon; pro19 vided, however, that at the end of 5 successive years

20 during which there was no crop production, such

21 land shall be determined to be abandoned if the land

22 meets the wetland criteria of section 12.31 of title

23 7, Code of Federal Regulations, as in effect on the

24 date of the enactment of this paragraph. Participa25 tion in a set-aside, diverted acres, or similar pro-
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1 gram of the Department of Agriculture shall not be

2 considered to constitute abandonment.’’.

3 SEC. 9. REPORT ON EFFECTS OF PERMIT PROGRAM; NEEDS

4 ANALYSIS.

5 (a) REPORT ON EFFECTS OF PERMIT PROGRAM.—

6 Section 404 (33 U.S.C. 1344) is amended by adding at

7 the end the following new subsection:

8 ‘‘(u) REPORT ON EFFECTS OF PERMIT PROGRAM.—

9 ‘‘(1) IN GENERAL.—Not later than January 1,

10 1996, and once every 2 years thereafter, the Sec11 retary shall transmit to Congress and the Adminis12 trator a report on the effects on navigable waters of

13 activities conducted under permits (including general

14 permits) issued pursuant to this section.

15 ‘‘(2) CONTENTS.—Each report transmitted

16 under this subsection shall include, at a minimum,

17 for the preceding 2-year period—

18 ‘‘(A) an identification of the number of

19 permit applications that were granted, with20 drawn, or denied;

21 ‘‘(B) estimates of the total acreage, func22 tions, and values of navigable waters adversely

23 affected by the issuance of individual permits

24 under subsection (a);
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1 ‘‘(C) estimates of the acreage, functions,

2 and values of navigable waters adversely af3 fected by each general permit issued under sub4 section (e), in order to determine whether the

5 individual and cumulative adverse environ6 mental effects of activities authorized by the

7 general permit are minimal;

8 ‘‘(D) estimates of the acreage of navigable

9 waters preserved or restored through mitigation

10 of permitted activities, the rate of compliance

11 with such mitigation requirements, the monitor12 ing of such compliance, and estimates of suc13 cess and failure rates of mitigation projects;

14 ‘‘(E) estimates of the acreage of navigable

15 waters restored through activities other than

16 compensatory mitigation; and

17 ‘‘(F) a summary of information contained

18 in the national data base established under this

19 subsection.

20 ‘‘(3) CONSULTATION.—Each report transmitted

21 under this subsection shall be prepared in consulta22 tion with the Administrator, the Secretary of the In23 terior, the Chief of the Soil Conservation Service,

24 State officials administering regulatory programs for

25 which general permits have been issued under sec-
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1 tion 404(e), and State officials administering indi2 vidual and general permit programs approved under

3 section 404(h).

4 ‘‘(4) NOTICE AND COMMENT.—Before transmit5 ting any report under this subsection, the Secretary

6 shall provide notice and opportunity for public com7 ment.

8 ‘‘(5) NATIONAL DATA BASE.—The Secretary

9 shall establish a national data base containing infor10 mation on wetland location, functions, values, and

11 acreage, including information on mitigation and

12 restoration projects. Such information shall be made

13 available to the National Biological Survey of the

14 Department of the Interior and other interested per15 sons.’’.

16 (b) NEEDS ANALYSIS.—

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

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

19 Comptroller General shall transmit to Congress an

20 analysis of the needs of the Department of the

21 Army, the Environmental Protection Agency, the

22 United States Fish and Wildlife Service, the Soil

23 Conservation Service, and the National Marine Fish24 eries Service for additional personnel, administrative

25 resources, and funding to improve implementation of
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1 section 404 of the Federal Water Pollution Control

2 Act and to carry out the provisions of this Act.

3 (2) CONTENTS.—The analysis submitted under

4 this subsection shall—

5 (A) give particular emphasis to the needs

6 of the agencies identified in paragraph (1) with

7 respect to improving and expediting wetlands

8 delineation and permitting under section 404 of

9 the Federal Water Pollution Control Act, in10 cluding advance planning and early consulta11 tion;

12 (B) include specific recommendations re13 garding additional appropriations and staffing

14 necessary for such improvement and expedition;

15 and

16 (C) include specific recommendations con17 cerning allocation of additional appropriations

18 and staffing to the regional, district, and field

19 offices of the agencies identified in paragraph

20 (1) according to the workload of those offices.

21 SEC. 10. ADMINISTRATIVE APPEALS.

22 Section 404 (33 U.S.C. 1344(d)) is further amended

23 by adding at the end the following new subsection:

24 ‘‘(v) ADMINISTRATIVE APPEALS.—
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1 ‘‘(1) PROCEDURES.—The Secretary shall, after

2 notice and opportunity for public comment, issue

3 rules to establish procedures to provide for adminis4 trative appeal of each of the following actions under

5 this section:

6 ‘‘(A) A determination of regulatory juris7 diction over a particular parcel of property.

8 ‘‘(B) The issuance or denial of a permit.

9 ‘‘(C) The imposition of an administrative

10 penalty.

11 ‘‘(2) PERSONS WHO MAY INITIATE APPEALS.—

12 Rules issued under paragraph (1) shall provide that

13 any person who is adversely affected by an action

14 described in paragraph (1) and, in the case of the

15 issuance or denial of a permit, any person who has

16 participated in the public comment process concern17 ing the permit may initiate an administrative appeal.

18 ‘‘(3) HEARING OF APPEALS.—Rules issued

19 under paragraph (1) shall provide that any adminis20 trative appeal of an action described in paragraph

21 (1) will be heard and decided by an official other

22 than the official who took the action and will be con23 ducted at a location which is in the vicinity of the

24 parcel of property involved in the action.’’.
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1 SEC. 11. WETLANDS MITIGATION.

2 Section 404 (33 U.S.C. 1344) is further amended by

3 adding at the end the following new subsection:

4 ‘‘(w) WETLANDS COMPENSATORY MITIGATION

5 GUIDELINES.—

6 ‘‘(1) ESTABLISHMENT OF GUIDELINES.—The

7 Administrator, in cooperation with the Secretary,

8 and after notice and opportunity for public com9 ment, shall establish technical guidelines for the res10 toration, enhancement, and creation of wetlands

11 under this section. Such guidelines shall comply

12 with, and follow the scientific guidelines of, guide13 lines established pursuant to section 404(b)(1).

14 ‘‘(2) PERMIT REQUIREMENTS.—After the date

15 of issuance of guidelines under paragraph (1), condi16 tions contained in permits issued pursuant to this

17 section requiring mitigation of wetland losses shall

18 be established through the application of such guide19 lines.

20 ‘‘(3) PERFORMANCE BOND.—Guidelines issued

21 under paragraph (1) shall provide that any permit

22 issued pursuant to this section which imposes a re23 quirement on the permitee to carry out a project to

24 mitigate for wetlands losses will also impose a re25 quirement that the permitee issue a performance
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1 bond to ensure completion and protect against the

2 failure of such mitigation project unless—

3 ‘‘(A) such mitigation project is for the res4 toration or enhancement of less than 5 acres of

5 wetlands and is not part of a larger mitigation

6 project; or

7 ‘‘(B) such mitigation project is for the res8 toration or enhancement of any amount of

9 lands identified by the Soil Conservation Serv10 ice as prior converted cropland.

11 ‘‘(4) PRIOR CONVERTED CROPLAND.—Guide12 lines issued pursuant to paragraph (1) shall estab13 lish a rebuttable presumption that restoration of

14 lands identified by the Soil Conservation Service as

15 prior converted cropland, if proposed as mitigation

16 for the loss of a wetland with similar characteristics

17 and within close proximity to the permitted activity,

18 will result in 1:1 replacement of similar acreage,

19 functions, and values lost as a result of the per20 mitted activity.

21 ‘‘(5) MONITORING AND EVALUATION.—Guide22 lines issued pursuant to paragraph (1) shall estab23 lish standards and protocols for the monitoring and

24 evaluation of mitigation projects.
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1 ‘‘(6) PREFERENCE.—Guidelines issued pursu2 ant to paragraph (1) shall provide that in imposing

3 wetland mitigation requirements under permits is4 sued pursuant to this section preference will be

5 given, in order of priority, to—

6 ‘‘(A) in-kind restoration carried out on the

7 site of the permitted activity;

8 ‘‘(B) in-kind restoration carried out on the

9 same water body as, and in close proximity to,

10 the site of the permitted activity; and

11 ‘‘(C) in-kind restoration carried out within

12 the same watershed as, and in close proximity

13 to, the site of the permitted activity;

14 unless the applicant can demonstrate that other

15 compensatory mitigation, including participation in

16 mitigation banks, would provide greater restoration

17 of the functions and values lost as a result of the

18 permitted activity.’’.

19 SEC. 12. MITIGATION BANKS.

20 Section 404 (33 U.S.C. 1344) is further amended by

21 adding at the end the following new subsection:

22 ‘‘(x) MITIGATION BANKS.—

23 ‘‘(1) ESTABLISHMENT.—

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

25 days after the date of the enactment of this
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1 Act, the Secretary of the Interior (acting

2 through the Director of the United States Fish

3 and Wildlife Service), in consultation with the

4 Administrator, shall issue regulations, after no5 tice and opportunity for public review and com6 ment, for the establishment, operation, monitor7 ing, and enforcement of mitigation banks.

8 ‘‘(B) REQUIREMENTS.—Regulations issued

9 under subparagraph (A) shall ensure that miti10 gation banks—

11 ‘‘(i) comply with the guidelines estab12 lished pursuant to subsection (b)(1);

13 ‘‘(ii) comply with the guidelines issued

14 under subsection (w);

15 ‘‘(iii) to the extent practicable and en16 vironmentally desirable, provide for full re17 placement of the acreage, functions, and

18 values of lost wetlands and be at sites lo19 cated in close proximity to the impacted

20 wetlands;

21 ‘‘(iv) employ consistent and scientif22 ically sound methods to determine debits

23 by evaluating wetlands functions and

24 project impacts at the sites of proposed

25 permits for discharges of dredged or fill
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1 material pursuant to this section and to

2 determine credits based upon wetlands

3 acreage, functions, and values at the sites

4 of mitigation banks;

5 ‘‘(v) award credits only for wetlands

6 which are successfully restored or en7 hanced in advance of awarding credit;

8 ‘‘(vi) base fee charges for participa9 tion in the mitigation bank on the full

10 costs of replacing the acreage, functions,

11 and values of lost wetlands, including the

12 costs of land acquisition, wetlands estab13 lishment, management measures, long-term

14 maintenance, monitoring, and protection,

15 potential remediation of project failure,

16 and other relevant factors;

17 ‘‘(vii) are established only in conjunc18 tion with a State restoration strategy that

19 is developed, after notice and opportunity

20 for public comment, on a statewide, re21 gional, or watershed basis;

22 ‘‘(viii) be operated by an entity which

23 has the financial capability to meet the re24 quirements of this section, including the

25 deposit of a performance bond or other ap-
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1 propriate demonstration of financial re2 sponsibility to support the long-term main3 tenance of the bank;

4 ‘‘(ix) specify responsibilities for long5 term monitoring, maintenance, and protec6 tion; and

7 ‘‘(x) provide opportunity for public re8 view of proposals for the establishment,

9 siting, and operation of mitigation banks

10 through 1 or more opportunities for public

11 notice and comment.

12 ‘‘(2) MITIGATION BANK DEFINED.—For the

13 purposes of this subsection, the term ‘mitigation

14 bank’ means wetlands restoration or enhancement

15 projects undertaken by one or more parties, includ16 ing private and public entities, expressly for the pur17 pose of providing advance mitigation to fully offset

18 reasonably foreseeable wetlands losses from future

19 discharges of dredged or fill material into the navi20 gable waters, where adverse impacts to wetlands

21 cannot be avoided or minimized and compensatory

22 mitigation at the project site is not practicable or

23 mitigation off the project site would provide greater

24 replacement of the wetland functions and values lost

25 as a result of such discharges.
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1 ‘‘(3) NONAPPLICABILITY OF OTHER LAWS.—

2 Notwithstanding any other provision of law, mitiga3 tion banks may be established for the purposes of

4 this section only in accordance with rules issued

5 under this subsection.’’.

6 SEC. 13. WETLANDS DELINEATION CERTIFICATION PRO7 GRAM AND PROGRAMS TO PROVIDE TECH8 NICAL ASSISTANCE.

9 Section 404 (33 U.S.C. 1344) is further amended by

10 adding at the end the following new subsection:

11 ‘‘(y) WETLANDS DELINEATION CERTIFICATION PRO12 GRAM.—

13 ‘‘(1) IN GENERAL.—The Secretary shall estab14 lish a program for training and certification of indi15 viduals as wetlands delineators. Such program shall

16 supplement, as necessary, any program established

17 pursuant to section 307(e) of the Water Resources

18 Development Act of 1990 (104 Stat. 4627).

19 ‘‘(2) TRAINING.—As part of the program to be

20 established under paragraph (1), the Secretary

21 shall—

22 ‘‘(A) develop courses for certification of

23 wetlands delineators;

24 ‘‘(B) develop courses on wetlands delinea25 tion, utilization of wetlands in pollution control,
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1 restoration, planning, evaluation, mitigation

2 banking, and other appropriate wetland tech3 nologies; and

4 ‘‘(C) provide for the participation of State,

5 tribal, and local governments and individuals in

6 such courses.

7 ‘‘(3) FEES.—The Secretary shall collect fees for

8 services provided under the program to offset the

9 costs of administering the program.’’.

10 SEC. 14. EDUCATION AND OUTREACH PROGRAM.

11 Section 404 (33 U.S.C. 1344) is further amended by

12 adding at the end the following new subsection:

13 ‘‘(z) EDUCATION AND OUTREACH PROGRAM.—

14 ‘‘(1) IN GENERAL.—The Secretary, the Admin15 istrator, and the Chief of the Soil Conservation Serv16 ice shall jointly establish a program and prepare ma17 terials—

18 ‘‘(A) to improve existing outreach and edu19 cation activities of the Corps of Engineers, the

20 Department of Agriculture, and the Environ21 mental Protection Agency;

22 ‘‘(B) to assist private individuals in com23 plying with the requirements of this section;

24 and
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1 ‘‘(C) to inform the public of the value in

2 preserving wetlands.

3 ‘‘(2) MATERIALS.—As part of the program to

4 be established under paragraph (1), the Secretary

5 shall provide private landowners with technical mate6 rials to assist with wetlands identification, evalua7 tion, and mitigation and with the development of

8 restoration plans.’’.

9 SEC. 15. SECTION 404 DEFINITIONS.

10 Section 404 (33 U.S.C. 1344) is further amended by

11 adding at the end the following new subsection:

12 ‘‘(a)(a) DEFINITIONS.—As used in this section, the

13 following definitions apply:

14 ‘‘(1) DISCHARGE OF DREDGED OR FILL MATE15 RIAL.—The term ‘discharge of dredged or fill mate16 rial’ means—

17 ‘‘(A) any addition or redeposit of dredged

18 or fill material into the navigable waters which

19 is incidental to any activity, including draining,

20 dredging, excavating, channelizing, flooding,

21 pumping, driving of pilings or placement of

22 other obstructions, mechanized land clearing,

23 ditching, and diversion of water; and

24 ‘‘(B) any activity specifically referred to in

25 subparagraph (A) conducted in or near the nav-
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1 igable waters which, without adding or redepos2 iting dredged or fill material into the navigable

3 waters, otherwise impairs the flow, reach, or

4 circulation of surface water or results in a sig5 nificant change in the hydrologic regime, bot6 tom contour, or configuration of such waters or

7 in the type, distribution, or diversity of vegeta8 tion, fish, and wildlife that depend on such wa9 ters.

10 ‘‘(2) PRIOR CONVERTED CROPLAND.—The term

11 ‘prior converted cropland’ means wetlands that were

12 drained, dredged, filled, leveled, or otherwise manip13 ulated before December 23, 1985, for the purpose

14 of, or to have the effect of, making the production

15 of an agricultural commodity possible, and that no

16 longer meet the definition of the term ‘wetlands’

17 contained in section 1201(a) of the Food Security

18 Act of 1985.

19 ‘‘(3) SECRETARY.—The term ‘Secretary’ means

20 the Secretary of the Army, acting through the Chief

21 of Engineers.’’.

22 SEC. 16. GENERAL DEFINITIONS.

23 (a) NAVIGABLE WATERS.—Paragraph (7) of section

24 502 (33 U.S.C. 1362) is amended by inserting ‘‘and wet25 lands’’ before the period.
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1 (b) WETLANDS.—Section 502 is further amended by

2 adding at the end the following new paragraph:

3 ‘‘(21) The term ‘wetlands’ means those areas that are

4 inundated or saturated by surface water or ground water

5 at a frequency and duration sufficient to support, and that

6 under normal circumstances do support, a prevalence of

7 vegetation typically adapted to life in saturated soil condi8 tions. Wetlands include, but are not limited to, bogs,

9 marshes, fens, pocosins, playa lakes, prairie potholes,

10 swamps, and vernal pools.’’.

11 SEC. 17. SENSE OF CONGRESS CONCERNING WETLANDS RE12 SERVE PROGRAM.

13 It is the sense of Congress that the Wetlands Reserve

14 Program authorized by the Food, Agriculture, Conserva15 tion, and Trade Act of 1990 is an effective wetlands con16 servation and restoration program which has the potential

17 to benefit agriculturists, rural communities, and the Na18 tion’s wetlands resource base. Further, it is the sense of

19 Congress that the Wetlands Reserve Program should be

20 fully funded to achieve its acreage enrollment goals, and

21 should be actively promoted by the Department of Agri22 culture to achieve full subscription.

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