I

103D CONGRESS

1ST SESSION H. R. 350

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

of wetlands, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 5, 1993

Mr. EDWARDS of California (for himself, Mr. ABERCROMBIE, Mr. BEILENSON,

Mr. BERMAN, Mr. BLACKWELL, Mr. DELLUMS, Mr. EVANS, Mr.

GILCHREST, Mr. HAMBURG, Mr. KENNEDY, Mr. LANTOS, Mr. MARKEY,

Mr. MILLER of California, Mr. MINETA, Mrs. MINK, Ms. PELOSI, Mr.

RAVENEL, Mr. SHAYS, Mr. STARK, Mr. STOKES, Mr. VENTO, Mr.

WELDON, and Mr. YATES) introduced the following bill; which was referred jointly to the Committees on Public Works and Transportation,

Merchant Marine and Fisheries, and Ways and Means

APRIL 19, 1993

Additional sponsors: Mr. ANDREWS of Maine, Mr. BROWN of California, Mrs.

BYRNE, Mr. CARDIN, Ms. ESHOO, Mr. GEJDENSON, Mr. HINCHEY, Mr.

MACHTLEY, Mr. MCDERMOTT, Mr. OLVER, Mr. RANGEL, Mr. SABO, Mr.

SANDERS, Mrs. SCHROEDER, Mr. SKAGGS, Ms. SLAUGHTER, Mr.

TORRES, Mr. TOWNS, Mr. WAXMAN, Ms. WOOLSEY, Mr. ACKERMAN, Mr.

ANDREWS of New Jersey, Mr. COLEMAN, Mr. CONYERS, Mr. DE LUGO,

Mr. HASTINGS, Mr. HOCHBRUECKNER, Mr. MCHALE, Mrs. MALONEY,

Mr. MORAN, Ms. NORTON, Mr. RICHARDSON, Mr. SAWYER, Mr. JOHNSTON of Florida, Mr. MEEHAN, Mr. LEWIS of Georgia, Mr. SWETT, Mr.

JACOBS, Mr. PAYNE of New Jersey, Ms. MCKINNEY, Mr. SERRANO, Ms.

HARMAN, and Mr. NADLER

A BILL

To amend the Federal Water Pollution Control Act to further

the protection of wetlands, and for other purposes.
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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 Reform Act

5 of 1993’’.

6 TITLE I—AMENDMENTS TO THE

7 FEDERAL WATER POLLUTION

8 CONTROL ACT

9 SEC. 101. STATEMENT OF POLICY.

10 Section 101(a) of the Federal Water Pollution Con11 trol Act (33 U.S.C. 1251(a)) is amended—

12 (1) in paragraph (6) by striking ‘‘and’’ after

13 the semicolon at the end;

14 (2) in paragraph (7) by striking the period and

15 inserting ‘‘; and’’; and

16 (3) by adding at the end the following:

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

18 quantity and quality of the Nation’s wetlands and to

19 restore those wetlands which have been degraded.’’.

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

21 (a) PROHIBITION OF ACTIVITIES.—Subsection

22 301(a) of the Federal Water Pollution Control Act (33

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

24 ‘‘SEC. 301. (a) Except as in compliance with this sec25 tion and sections 302, 306, 307, 318, 402, and 404 of
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1 this Act, the discharge of any pollutant or other alteration

2 of navigable waters by any person shall be unlawful.’’.

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

4 401(a) of the Federal Water Pollution Control Act (33

5 U.S.C. 1341(a)) is amended to read as follows: ‘‘Any ap6 plicant for a Federal license or permit to conduct any ac7 tivity, including the construction or operation of facilities,

8 which may result in any discharge into or other alteration

9 of navigable waters, shall provide the licensing or permit10 ting agency a certification from the State where the activ11 ity occurs or will occur, or, if appropriate, from the inter12 state water pollution control agency having jurisdiction

13 over the navigable waters where the activity occurs or will

14 occur, that the activity will comply with the applicable pro15 visions of sections 301, 302, 303, 306, and 307 and will

16 allow for the protection, achievement, and maintenance of

17 designated uses included in applicable water quality stand18 ards.’’.

19 (c) ISSUANCE OF PERMITS.—Section 404(a) of the

20 Federal Water Pollution Control Act (33 U.S.C. 1344(a))

21 is amended by inserting before the period at the end of

22 the first sentence the following: ‘‘, or for other alterations

23 of navigable waters’’.
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1 (d) DEFINITION.—Section 502 of the Federal Water

2 Pollution Control Act (33 U.S.C. 1362) is amended by

3 adding at the end the following:

4 ‘‘(21) The term ‘other alteration’ means drain5 ing, dredging, excavation, channelization, flooding,

6 clearing of vegetation, driving of pilings or place7 ment of other obstructions, diversion of water, or

8 other activities in navigable waters which impair the

9 flow, reach, or circulation of surface water, or which

10 result in a more than minimal change in the hydro11 logic regime, bottom contour, or configuration of

12 such waters, or in the type, distribution, or diversity

13 of vegetation, fish, and wildlife that depend on such

14 waters.’’.

15 SEC. 103. DEFINITION OF FILL MATERIAL.

16 Section 404(d) of the Federal Water Pollution Con17 trol Act (33 U.S.C. 1344(d)) is amended—

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

19 (2) by adding at the end the following:

20 ‘‘(2) The term ‘fill material’ as used in this section

21 means any pollutant which has the effect of replacing por22 tions of navigable waters or changing the bottom elevation

23 or configuration of a water body.’’.
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1 SEC. 104. PERMIT REVIEW BY RESOURCE AGENCIES.

2 (a) REVIEW BY SECRETARY OF INTERIOR AND SEC3 RETARY OF COMMERCE.—Section 404(m) of the Federal

4 Water Pollution Control Act (33 U.S.C. 1344(m)) is

5 amended by striking ‘‘Secretary of the Interior, acting

6 through the Director of the United States Fish and Wild7 life Service’’ each place it appears and inserting ‘‘Sec8 retary of the Interior, acting through the Director of the

9 United States Fish and Wildlife Service, and the Secretary

10 of Commerce, acting through the Assistant Administrator

11 of the National Marine Fisheries Service’’.

12 (b) RESPONSE IN WRITING.—Section 404(m) of the

13 Federal Water Pollution Control Act (33 U.S.C. 1344(m))

14 is amended by adding at the end the following: ‘‘The Sec15 retary shall adopt the recommendations made in the com16 ments or respond in writing to the Secretary of the Inte17 rior or the Secretary of Commerce, as appropriate, de18 scribing his or her reasons for not adopting the rec19 ommendations and explaining how his or her determina20 tion is consistent with the goals and purposes of this Act

21 and the guidelines developed under section 404(b)(1).’’.

22 SEC. 105. CLARIFICATION OF GENERAL PERMIT PROGRAM.

23 Section 404(e)(1) of the Federal Water Pollution

24 Control Act (33 U.S.C. 1344(e)(1)) is amended to read

25 as follows:
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1 ‘‘(e)(1)(A) In carrying out the functions of the Sec2 retary under this section relating to the discharge of

3 dredged or fill material or other alteration of navigable

4 waters, the Secretary may, after notice and opportunity

5 for public hearing, and with the concurrence of the Admin6 istrator, issue general permits on a State, multi-State, or

7 nationwide basis for any narrowly defined category of ac8 tivities involving discharges of dredged or fill material or

9 other alterations of navigable waters if the Secretary de10 termines that the activities in such category are similar

11 in nature, will cause only minimal adverse environmental

12 effects when performed separately, and will have only

13 minimal cumulative adverse effect on the environment.

14 Any general permit issued under this subsection shall be

15 consistent with the goals and purposes of this Act, shall

16 be based on the guidelines described in subsection (b)(1),

17 shall set forth the requirements and standards which shall

18 apply to any activity authorized by such general permit,

19 and shall include adequate measures to enable the Sec20 retary to be apprised of and to monitor activities con21 ducted pursuant to such general permit.

22 ‘‘(B) Before any activity is authorized under a gen23 eral permit for which predischarge notification is required

24 pursuant to regulations, notice and 30 days opportunity

25 to comment shall be given by the Secretary to the Admin-
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1 istrator, the Secretary of the Interior, the Secretary of

2 Commerce, State agencies responsible for water quality,

3 fish, and wildlife resources which may be affected by such

4 activity, and to the public.

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

6 permit within a State that has denied or revoked water

7 quality certification pursuant to section 401 for such ac8 tivities under that general permit.

9 ‘‘(D) Each general permit shall be reviewed by the

10 Secretary biennially, taking into account the information

11 contained in reports required by section 404(u), and shall,

12 after notice and hearing, be revised or revoked as nec13 essary to avoid or minimize cumulative adverse effects on

14 navigable waters.’’.

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

16 WETLANDS.

17 Section 404 of the Federal Water Pollution Control

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

19 the following:

20 ‘‘(u) REPORTS ON PERMIT PROGRAM.—

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

22 ‘‘(A) IN GENERAL.—The Secretary, in con23 sultation with the Administrator, the Secretary

24 of the Interior, and those States which have a

25 permit program approved under subsection
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1 (h)(2), shall report biennially to the Congress

2 on the effects on navigable waters of activities

3 conducted under permits issued pursuant to

4 this section, including general permits. Such re5 ports shall contain estimates of the acreage and

6 functions of navigable waters affected by each

7 general permit, in order to determine whether

8 the individual and cumulative adverse environ9 mental effects of activities authorized by each

10 general permit are minimal.

11 ‘‘(B) MONITORING.—For purposes of pre12 paring reports under this subsection, the Sec13 retary, the Administrator, and the Secretary of

14 the Interior shall jointly monitor the achieve15 ment of the policy stated in section 101(a)(8)

16 under permits issued under this section.

17 ‘‘(C) CONTENT OF REPORTS.—Reports

18 under this subsection shall include consideration

19 of relevant information contained in individual

20 and general permit applications, compliance

21 monitoring records and maps, and any other

22 relevant information.

23 ‘‘(2) EFFECTS OF COMPENSATORY MITIGA24 TION.—The Secretary, in consultation with the Ad25 ministrator, the Secretary of the Interior, and those
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1 States which have a permit program approved under

2 subsection (h)(2), shall report biennially to the Con3 gress on the effects on navigable waters of compen4 satory mitigation required under permits issued

5 under this section, including general permits. Such

6 reports shall contain—

7 ‘‘(A) estimates of the number of permits

8 for which compensatory mitigation is required;

9 and

10 ‘‘(B) a description of—

11 ‘‘(i) the type and extent of compen12 satory mitigation projects required,

13 ‘‘(ii) the degree of compliance with

14 those compensatory mitigation require15 ments,

16 ‘‘(iii) the extent to which such com17 pensatory mitigation requirements have

18 been successful in restoring the intended

19 range of functions and values, and

20 ‘‘(iv) the extent to which monitoring

21 and enforcement of compensatory mitiga22 tion requirements have been conducted by

23 the agencies.’’.
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1 SEC. 107. EXPEDITED PERMIT REVIEW.

2 Section 404(q) of the Federal Water Pollution Con3 trol Act (33 U.S.C. 1344(q)) is amended to read as fol4 lows:

5 ‘‘(q)(1) REDUCTION IN PAPERWORK AND DELAYS.—

6 Not later than the 180th day after the date of the enact7 ment of this subsection, the Secretary shall enter into

8 agreements with the Administrator, the Secretaries of the

9 Departments of Agriculture, Commerce, and Interior, and

10 the heads of other appropriate Federal agencies to mini11 mize, to the maximum extent practicable, duplication,

12 needless paperwork, and delays in the issuance of permits

13 under this section.

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

15 ‘‘(A) Not later than 6 months after the date of

16 enactment of this subsection, the Secretary shall es17 tablish in each district office a special Fast Track

18 team to expedite the review and processing of minor

19 permits. Each team shall consist of not more than

20 25 percent of all personnel assigned to review permit

21 applications under this section, and shall not be as22 signed to review or process any permits other than

23 minor permits, unless final decisions have been

24 reached with respect to all such minor permits with25 in 60 days after the notice of application for such

26 permits is published pursuant to subsection (a).
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1 ‘‘(B) The District Engineer in each district of2 fice shall review the operations of the Fast Track

3 team in that office every 6 months. If final decisions

4 on a significant percentage of minor permits have

5 not been reached within 60 days after the notice of

6 application for such permits is published pursuant to

7 subsection (a), additional personnel shall be assigned

8 to the Fast Track team.

9 ‘‘(C) For purposes of this subsection, a minor

10 permit is a permit for an activity that would disturb

11 no more than 1 acre of wetlands, is being performed

12 by a private individual or a business that employs no

13 more than 10 people, and is not part of a larger

14 common plan or proposal that would disturb addi15 tional acreage, except that a permit shall not be a

16 minor permit if—

17 ‘‘(i) the Secretary is required under the

18 National Environmental Policy Act of 1969 to

19 issue an environmental impact statement;

20 ‘‘(ii) the permit involves an activity that

21 may affect any species that is listed as an en22 dangered species or threatened species under

23 the Endangered Species Act of 1973, or the

24 habitat of such a species; or
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1 ‘‘(iii) the Secretary, the Administrator, or

2 a Federal department or agency referred to in

3 paragraph (1) requests that the permit applica4 tion receive additional review.’’.

5 SEC. 108. AVOIDANCE AND MINIMIZATION OF ADVERSE EF6 FECTS.

7 Section 404 of the Federal Water Pollution Control

8 Act (33 U.S.C. 1344), as amended by this Act, is further

9 amended by adding at the end the following:

10 ‘‘(v) No individual or general permit shall be issued

11 for an activity pursuant to this section if there is a prac12 ticable alternative to the proposed activity which would

13 have less adverse environmental impact on navigable

14 waters.’’.

15 SEC. 109. EXEMPTIONS FOR AGRICULTURE AND OTHER AC16 TIVITIES.

17 (a) IN GENERAL.—Section 404(f) of the Federal

18 Water Pollution Control Act (33 U.S.C. 1344) is amended

19 to read as follows:

20 ‘‘(f)(1) Except as provided in paragraph (2), the dis21 charge of dredge or fill material in or other alterations

22 of navigable waters—

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

24 ranching activities, such as plowing, seeding, cul25 tivating, minor drainage, harvesting for the produc-
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1 tion of food, fiber, and forest products, and upland

2 soil and water conservation practices;

3 ‘‘(B) for the purpose of maintenance, including

4 emergency reconstruction of recently damaged parts,

5 of currently serviceable structures such as dikes,

6 dams, levees, groins, riprap, breakwaters, causeways,

7 bridge abutments or approaches, and transportation

8 structures, to their current or most recent configura9 tion;

10 ‘‘(C) for the purpose of construction or mainte11 nance of farm or stock ponds or irrigation ditches,

12 or the maintenance of drainage ditches;

13 ‘‘(D) for the purpose of construction of tem14 porary sedimentation basins on a construction site

15 which does not involve placement of fill material into

16 navigable waters;

17 ‘‘(E) for the purpose of construction or mainte18 nance of farm roads or forest roads, or temporary

19 roads for moving mining equipment, where such

20 roads are constructed and maintained, in accordance

21 with best management practices, to assure that flow

22 and circulation patterns and chemical and biological

23 characteristics of the navigable waters are not im24 paired, that the reach of the navigable waters is not
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1 reduced, and that any adverse effect on the aquatic

2 environment will otherwise be minimized; or

3 ‘‘(F) resulting from any activity with respect to

4 which a State has an approved program under sec5 tion 208(b)(4) which meets the requirements of sub6 paragraphs (B) and (C) of that section;

7 is not prohibited by or otherwise subject to regulation

8 under this section or section 301(a) or 402 (except for

9 effluent standards or prohibitions under section 307).

10 ‘‘(2) Any discharge of dredged or fill material into,

11 or other alteration of, the navigable waters incidental to

12 any activity having as its purpose bringing an area of the

13 navigable waters into a use to which it was not previously

14 subject, where the flow or circulation of navigable waters

15 may be impaired or the reach of such waters be reduced,

16 shall be required to have a permit under this section.

17 ‘‘(3) An activity which does not result in the dis18 charge of dredge or fill material into, or other alterations

19 of, the navigable waters shall not be prohibited or other20 wise subject to regulation under this section.

21 ‘‘(4)(A) For purposes of this section, the following

22 shall not be considered to be navigable waters:

23 ‘‘(i) Nontidal drainage and irrigation ditches

24 excavated in uplands.
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1 ‘‘(ii) Artificially irrigated areas which would re2 vert to uplands if the irrigation ceased.

3 ‘‘(iii) Artificial lakes or ponds created by exca4 vating or diking uplands to collect and retain water,

5 and which are used exclusively for stock watering, ir6 rigation, or rice growing.

7 ‘‘(iv) Artificial reflecting or swimming pools or

8 other small ornamental bodies of water created by

9 excavating or diking uplands to retain water for pri10 marily aesthetic reasons.

11 ‘‘(v) Waterfilled depressions created in uplands

12 incidental to construction activity and pits excavated

13 in uplands for the purpose of obtaining fill, sand, or

14 gravel, unless and until the construction or exca15 vation operation is abandoned and the resulting

16 body of water meets the definition of waters of the

17 United States.

18 ‘‘(B) Subparagraph (A) shall not apply to a particu19 lar water body unless the person desiring to conduct an

20 activity in that water body is able to demonstrate that the

21 water body qualifies under subparagraph (A) for exemp22 tion from regulation under this section.

23 ‘‘(5) Except as provided in paragraph (2), normal

24 plowing, seeding, cultivating, minor drainage for crop pro25 duction, or harvesting shall not be prohibited or otherwise
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1 subject to regulation under this section in waters of the

2 United States which have been maintained as cropland at

3 least one growing season in the 5-years prior to such plow4 ing, seeding, cultivating, minor drainage, or harvesting.’’.

5 SEC. 110. CITIZEN SUITS AMENDMENTS.

6 Section 505 of the Federal Water Pollution Control

7 Act (33 U.S.C. 1365) is amended—

8 (1) in subsection (f) by striking ‘‘or (7)’’ and

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

10 thereof issued under section 404, which has been, or

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

12 applicable by reason of section 313); or (8)’’;

13 (2) in subsection (a)(1)(B) by inserting after

14 ‘‘Administrator’’, the following: ‘‘, the Secretary of

15 the Army’’;

16 (3) in subsection (a) in the matter following

17 paragraph (2) by inserting after ‘‘under section

18 309(d)’’ the following: ‘‘and section 404(s)’’;

19 (4) in subsection (b)(1)(A) by striking ‘‘and

20 (iii)’’ and inserting the following: ‘‘(iii) to the Sec21 retary of the Army (if the alleged violation is under

22 section 404); and (iv)’’;

23 (5) in subsection (b)(1)(B) by inserting after

24 ‘‘if the Administrator’’ the following: ‘‘, the Sec25 retary of the Army,’’;
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1 (6) in subsection (c)(2) by inserting after ‘‘the

2 Administrator’’ the following: ‘‘(and the Secretary of

3 the Army, if the alleged violation is under section

4 404)’’;

5 (7) in subsection (c)(3) by inserting after ‘‘At6 torney General’’ each place it appears the following:

7 ‘‘, the Secretary of the Army (if the alleged violation

8 is under section 404 of this Act),’’;

9 (8) in subsection (e) by inserting after ‘‘Admin10 istrator’’ the following: ‘‘, the Secretary of the

11 Army,’’;

12 (9) in subsection (h) by inserting after ‘‘Admin13 istrator’’ each place it appears the following: ‘‘or the

14 Secretary of the Army’’;

15 (10) in paragraph (2) of subsection (a) and in

16 the matter following that paragraph by inserting

17 after ‘‘Administrator’’ each place it appears the fol18 lowing: ‘‘or the Secretary of the Army’’; and

19 (11) in subsection (b)(2) by inserting after

20 ‘‘Administrator’’ the following: ‘‘or the Secretary of

21 the Army’’.
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1 TITLE II—IMPROVED WETLANDS

2 PERMITTING; REVISIONS TO

3 WETLANDS DELINEATION

4 PROCEDURES

5 SEC. 201. IMPROVEMENT OF ADMINISTRATION OF WET6 LANDS PERMITTING.

7 (a) NEEDS ANALYSIS.—

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

9 the date of the enactment of this Act, the Comptrol10 ler General of the United States shall submit to the

11 Congress an analysis of the needs of the Corps of

12 Engineers and the Environmental Protection Agency

13 for additional personnel, administrative resources,

14 and funding to improve implementation of section

15 404 of the Federal Water Pollution Control Act (33

16 U.S.C. 1344).

17 (2) CONTENTS.—The analysis submitted under

18 this subsection shall—

19 (A) give particular emphasis to the needs

20 of the Corps of Engineers and the Environ21 mental Protection Agency with respect to im22 proving and expediting wetlands delineation and

23 wetlands permitting generally;
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1 (B) include recommendations regarding

2 additional appropriations necessary for that im3 provement and expedition; and

4 (C) identify the Corps of Engineers district

5 offices and Environmental Protection Agency

6 regions that have the greatest need for those

7 additional appropriations.

8 (b) FUNDING FOR TRAINING AND CERTIFICATION

9 PROGRAM FOR WETLANDS DELINEATORS.—Of amounts

10 appropriated for each fiscal year beginning after the date

11 of the enactment of this Act for administration of section

12 404 of the Federal Water Pollution Control Act (33

13 U.S.C. 1344) by the Corps of Engineers, the Secretary

14 of the Army (hereinafter in this title referred to as the

15 ‘‘Secretary’’) shall use such amounts as are necessary to

16 carry out the program for training and certification of in17 dividuals as wetlands delineators authorized by section

18 307(e) of the Water Resources Development Act of 1990

19 (Public Law 101–640).

20 (c) FUNDING FOR IMPROVEMENT OF SECTION 404

21 EDUCATION AND OUTREACH PROGRAMS.—Of amounts

22 appropriated for each fiscal year beginning after the date

23 of the enactment of this Act for administration of section

24 404 of the Federal Water Pollution Control Act (33

25 U.S.C. 1344) by the Corps of Engineers or the Environ-
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1 mental Protection Agency, the Secretary or the Adminis2 trator of the Environmental Protection Agency, respec3 tively, shall use such amounts as are necessary to improve

4 existing education and outreach programs of the Corps of

5 Engineers or the Environmental Protection Agency re6 garding requirements of that section.

7 (d) FUNDING FOR EXPEDITING AND COMPLETING

8 WETLANDS MAPPING.—

9 (1) COMPLETION OF MAPPING.—Of amounts

10 appropriated for each fiscal year beginning after the

11 date of the enactment of this Act for programs of

12 the United States Fish and Wildlife Service, the Di13 rector of the United States Fish and Wildlife Service

14 shall use—

15 (A) such amounts as are necessary to com16 plete the existing wetland mapping program of

17 the Service by not later than 1 year after the

18 date of the enactment of this Act;

19 (B) such amounts (in addition to amounts

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

21 as are necessary to conduct mapping under that

22 program in areas where there is the potential

23 for delineating particularly large areas of wet24 lands; and
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1 (C) such amounts as may be necessary (in

2 addition to amounts used pursuant to subpara3 graphs (A) and (B)) to delineate wetlands

4 under that program in watersheds and

5 ecosystems for which the need for delineation is

6 particularly acute, such as where wetlands are

7 particularly difficult to identify or where pres8 sure for development of wetlands is intense, by

9 as soon as practicable after the date of the en10 actment of this Act.

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

12 United States Fish and Wildlife Service shall update

13 each map prepared under the existing wetlands map14 ping program at least once—

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

16 date of the completion of the map, and

17 (B) in every 15-year period thereafter.

18 (e) FUNDING TO ASSIST SMALL LANDOWNERS WITH

19 WETLANDS DELINEATION.—Of amounts appropriated for

20 each fiscal year beginning after the date of enactment of

21 this Act for administration of section 404 of the Federal

22 Water Pollution Control Act (33 U.S.C. 1344), the Sec23 retary of the Army shall use such amounts as are nec24 essary, but not to exceed $5,000,000, to assist landowners

25 who lack the financial capacity to do wetlands delineations
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1 needed to apply for permits under that section. The Sec2 retary may provide such assistance either by providing

3 technical assistance or by performing delineations. Within

4 180 days after the date of the enactment of this Act the

5 Secretary shall issue regulations defining which land6 owners are eligible for such assistance.

7 SEC. 202. REVISIONS TO FEDERAL WETLANDS DELINEA8 TION PROCEDURES.

9 After the date of the enactment of this Act, no revi10 sions to or clarifications of any Federal manual for identi11 fying and delineating jurisdictional wetlands shall be

12 adopted, and no guidance or regulations related to the def13 inition, delineation, or identification of wetlands shall be

14 issued, until the National Academy of Sciences has com15 pleted the study of wetlands authorized by Public Law

16 102–389. All subsequent revisions to any Federal manual

17 for the identification and delineation of wetlands shall take

18 into consideration the scientific and technical rec19 ommendations of the National Academy of Sciences.

20 TITLE III—WETLANDS

21 RESTORATION PROGRAM

22 SEC. 301. WETLANDS RESTORATION PILOT PROGRAM.

23 The Secretary, in cooperation with the Administrator,

24 the Director of the United States Fish and Wildlife Serv25 ice, and appropriate State and local government entities,
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1 shall initiate, with opportunity for public notice and com2 ment, a pilot program of wetlands restoration. The pur3 poses of the pilot program are—

4 (1) to identify areas where the restoration of

5 significant wetland acreage and functions, including

6 fish and wildlife habitat, water quality protection,

7 and natural hydrologic functions, could contribute

8 substantially to preserving the quantity and quality

9 of the Nation’s wetlands;

10 (2) to test methods and techniques for wetlands

11 restoration in such areas, and in areas previously

12 identified as suitable for restoration; and

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

14 over the long term of such wetlands restoration ef15 forts.

16 SEC. 302. SENSE OF CONGRESS CONCERNING WETLANDS

17 RESERVE PROGRAM.

18 It is the sense of Congress that the Wetlands Reserve

19 Program authorized by the Food, Agriculture, Conserva20 tion and Trade Act of 1990 is an effective wetlands con21 servation and restoration program which has the potential

22 to benefit agriculturalists, rural communities, and the Na23 tion’s wetlands resource base. Further, it is the sense of

24 Congress that the Wetlands Reserve Program should be

25 fully funded to achieve its acreage enrollment goals, and
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1 should be actively promoted by the Department of Agri2 culture to achieve full subscription.

3 TITLE IV—TAX INCENTIVES FOR

4 WETLANDS CONSERVATION

5 SEC. 401. WETLANDS STEWARDSHIP TRUSTS.

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

7 shall designate a nonprofit organization to be a Wetlands

8 Stewardship Trust for purposes of this section if the orga9 nization—

10 (1) includes among its primary purposes the ac11 quisition of private interests in wetlands, former

12 wetlands, and associated real property for the pur13 pose of restoring or preserving such property, and

14 (2) meets such other requirements as may be

15 established in regulations issued under subsection

16 (c).

17 (b) APPLICATION.—A nonprofit organization seeking

18 to be designated a Wetlands Stewardship Trust for pur19 poses of this section may submit to the Secretary of the

20 Interior an application for that designation, in accordance

21 with procedures established in regulations issued under

22 subsection (c).

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

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

25 the Interior, acting through the Director of the United
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1 States Fish and Wildlife Service, in consultation with the

2 Secretary of the Army, acting through the Corps of Engi3 neers, and the Administrator of the Environmental Pro4 tection Agency shall issue regulations establishing require5 ments for being designated a Wetlands Stewardship Trust

6 under this section.

7 SEC. 402. TAX TREATMENT OF DONATIONS OF WETLANDS.

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

9 of the Internal Revenue Code of 1986 (relating to chari10 table, etc., contributions and gifts) is amended by adding

11 at the end thereof the following new paragraph:

12 ‘‘(6) SPECIAL RULES FOR CONTRIBUTIONS OF

13 WETLANDS.—

14 ‘‘(A) IN GENERAL.—In the case of a chari15 table contribution by a taxpayer of wetlands (or

16 any interest therein) to a Wetlands Stewardship

17 Trust or to a governmental unit referred to in

18 subsection (c)(1) for the purpose of preserving

19 the property in its natural state—

20 ‘‘(i) 50 PERCENT LIMITATION TO

21 APPLY TO INDIVIDUALS.—Such a contribu22 tion by an individual shall be treated for

23 purposes of this section as described in

24 subsection (b)(1)(A).
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1 ‘‘(ii) 20-YEAR CARRYFORWARD.—Sub2 section (d)(1) shall be applied by substitut3 ing ‘20 years’ for ‘5 years’ each place it

4 appears and with appropriate adjustments

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

6 and (B)(ii) thereof.

7 ‘‘(iii) EXTENSION OF PERIOD FOR EX8 CHANGES.—If such contribution is made

9 as part of an exchange to which section

10 1031 applies, paragraph (3) of section

11 1031(a) shall be treated as met if the

12 property to be received in the exchange is

13 received by the taxpayer not later than the

14 date which is 3 years after the date on

15 which the taxpayer transfers the property

16 relinquished in the exchange.

17 ‘‘(B) PROPERTY MUST BE PROTECTED IN

18 PERPETUITY.—A contribution shall not be

19 treated as for the purpose referred to in sub20 paragraph (A) unless such purpose is protected

21 in perpetuity.

22 ‘‘(C) CERTAIN PROPERTY INELIGIBLE.—

23 Subparagraph (A) shall not apply to any con24 tribution of property if—
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1 ‘‘(i) the property is required (as of the

2 date of the contribution) to be preserved in

3 perpetuity in its natural state other than

4 by reason of the terms of contribution, or

5 ‘‘(ii) the property is required to be re6 stored or preserved as compensatory miti7 gation as a condition of a permit issued

8 under section 404 of the Federal Water

9 Pollution Control Act (33 U.S.C. 1344).

10 ‘‘(D) UNUSED DEDUCTION CARRYOVER AL11 LOWED ON TAXPAYER’S LAST RETURN.—In the

12 case of an individual, if—

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

14 of the last taxable year for which a deduc15 tion for a contribution to which subpara16 graph (A) applies could have been allowed

17 under subsection (d)(1), and

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

19 such contribution has not been allowed for

20 any taxable year before the taxable year in

21 which such death occurs,

22 then such portion shall be allowed as a deduc23 tion under subsection (a) for the taxable year in

24 which such death occurs without regard to sub-
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1 section (b), or the unused portion may be used

2 against the estate taxes of the taxpayer.

3 ‘‘(E) DEFINITIONS.—For purposes of this

4 paragraph—

5 ‘‘(i) Wetlands.—The term ‘wetlands’

6 means any area that is inundated or satu7 rated by surface or groundwater at a fre8 quency and duration sufficient to support,

9 and which under normal circumstances

10 does support, a prevalence of vegetation

11 typically adapted for life in saturated soil

12 conditions.

13 ‘‘(ii) WETLANDS STEWARDSHIP

14 TRUST.—The term ‘Wetlands Stewardship

15 Trust’ means any entity designated by the

16 Secretary of the Interior under section 401

17 of the Wetlands Reform Act of 1993.’’

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

19 this section shall apply to contributions and gifts made

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

21 ending after such date.
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1 SEC. 403. EXCLUSION FROM GROSS INCOME FOR AMOUNTS

2 RECEIVED FROM COMPATIBLE USES OF WET3 LANDS.

4 (a) IN GENERAL.—Part III of subchapter B of chap5 ter 1 of the Internal Revenue Code of 1986 (relating to

6 items specifically excluded from gross income) is amended

7 by redesignating section 137 as section 138 and by insert8 ing after section 136 the following new section:

9 ‘‘SEC. 137. INCOME FROM COMPATIBLE USES OF WET10 LANDS.

11 ‘‘(a) GENERAL RULE.—Gross income shall not in12 clude any amount received by the owner of wetlands for

13 allowing any person to use such wetlands in a compatible

14 use.

15 ‘‘(b) DEFINITIONS.—For purposes of this section—

16 ‘‘(1) WETLANDS.—The terms ‘wetlands’ has

17 the meaning given such term by section

18 170(e)(6)(E)(i).

19 ‘‘(2) COMPATIBLE USE.—The term ‘compatible

20 use’ has the meaning given such term in the regula21 tions prescribed under the following sentence. The

22 Secretary of the Interior, acting through the Direc23 tor of the Fish and Wildlife Service, shall prescribe

24 regulations identifying those activities which con25 stitute compatible uses for purposes of this section,

26 including any pertinent restrictions on such activi-
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1 ties. Such activities may include fishing, hunting,

2 and occasional and prudent managed haying, if

3 deemed appropriate by the Secretary of the Interior,

4 but shall not include any activity which degrades the

5 functions or values of wetlands.’’

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

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

8 inserting the following new items:

‘‘Sec. 137. Income from compatible uses of wetlands.

‘‘Sec. 138. Cross references to other Acts.’’

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

10 this section shall apply to amounts received after the date

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

12 such date.

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