II

104TH CONGRESS

1ST SESSION S. 352

To amend the Federal Water Pollution Control Act to establish a comprehensive program for conserving and managing wetlands and waters of the

United States, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 3 (legislative day, JANUARY 30), 1995

Mr. PRESSLER 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 establish a comprehensive program for conserving and managing wetlands and waters of the United States, 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 ‘‘Comprehensive Wet5 lands Conservation and Management Act of 1995’’.

6 SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

7 (a) FINDINGS.—Congress finds that—
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1 (1) wetlands play an integral role in maintain2 ing high quality of life through material contribu3 tions to the national economy, food supply, water

4 supply and quality, flood control, and fish, wildlife,

5 and plant resources, and to the health, safety, recre6 ation, and economic well-being of citizens throughout

7 the United States;

8 (2) wetlands serve important ecological and nat9 ural resource functions, such as providing essential

10 nesting and feeding habitat for waterfowl, other

11 wildlife, and many rare and endangered species, fish12 eries habitat, the enhancement of water quality, and

13 natural flood control;

14 (3) much of the wetlands resource of the United

15 States has sustained significant loss or degradation,

16 resulting in the need for effective programs to limit

17 the loss and degradation of ecologically significant

18 wetlands and to provide for long-term restoration

19 and enhancement of the wetlands resource base;

20 (4) because 75 percent of the wetlands in the

21 lower 48 States is privately owned and because the

22 majority of the population of the United States lives

23 in or near wetlands, an effective wetlands conserva24 tion and management program must reflect a bal25 anced approach that conserves and enhances impor-
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1 tant wetlands functions and values while observing

2 private property rights, recognizing the need for es3 sential public infrastructure, such as highways,

4 ports, airports, sewer systems, and public water sup5 ply systems, and providing the opportunity for sus6 tained economic growth; and

7 (5) the Federal permit program established

8 under section 404 of the Federal Water Pollution

9 Control Act (33 U.S.C. 1344) was not originally

10 conceived as a wetlands regulatory program and is

11 insufficient to ensure that the wetlands resource

12 base of the United States will be conserved and

13 managed in a fair and environmentally sound man14 ner.

15 (b) PURPOSE.—The purpose of this Act is to estab16 lish a new Federal regulatory program for activities in

17 wetlands and waters of the United States to—

18 (1) assert Federal regulatory jurisdiction over a

19 broad category of specifically identified activities

20 that result in the loss or degradation of wetlands

21 and waters of the United States;

22 (2) account for variations in wetlands functions

23 or values in determining the character and extent of

24 regulation of activities occurring in wetlands;
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1 (3) provide sufficient regulatory incentives for

2 conservation, restoration, or enhancement activities;

3 (4) encourage conservation of resources on an

4 ecosystem basis to the fullest extent practicable; and

5 (5) balance public and private interests in de6 termining the conditions under which activity in wet7 lands and waters of the United States may occur.

8 SEC. 3. WETLANDS CONSERVATION AND MANAGEMENT.

9 Title IV of the Federal Water Pollution Control Act

10 (33 U.S.C. 1341 et seq.) is amended by striking section

11 404 and inserting the following new section:

12 ‘‘SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WA13 TERS OF THE UNITED STATES.

14 ‘‘(a) DEFINITIONS.—As used in this section:

15 ‘‘(1) ACTIVITY IN WETLANDS OR WATERS OF

16 THE UNITED STATES.—The term ‘activity in wet17 lands or waters of the United States’ means—

18 ‘‘(A) the discharge of dredged or fill mate19 rial into waters of the United States, including

20 wetlands at a specific disposal site; or

21 ‘‘(B) the draining, channelization, or exca22 vation of wetlands.

23 ‘‘(2) CREATION.—The term ‘creation’, used

24 with respect to wetlands, means an activity that

25 brings wetlands into existence, at a site where the
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1 wetlands did not formerly occur, for the purpose of

2 compensation.

3 ‘‘(3) DIRECTOR.—The term ‘Director’, used

4 without further modification, means the Director of

5 the United States Fish and Wildlife Service.

6 ‘‘(4) ENHANCEMENT.—The term ‘enhance7 ment’, used with respect to wetlands or waters of the

8 United States, means an activity that increases the

9 value of a function in wetlands or waters of the

10 United States.

11 ‘‘(5) FASTLANDS.—The term ‘fastlands’ means

12 lands located behind permitted manmade structures,

13 such as lands located behind a levee to permit utili14 zation of the lands for commercial, industrial, or res15 idential purposes consistent with each local land use

16 planning requirement.

17 ‘‘(6) GROWING SEASON.—The term ‘growing

18 season’ means, for each plant hardiness zone, the

19 period between the average date of last frost in

20 spring and the average date of first frost in autumn.

21 ‘‘(7) INCIDENTALLY CREATED.—The term ‘inci22 dentally created’, used with respect to wetlands,

23 means lands that otherwise meet the standards for

24 delineation of wetlands described in paragraphs (1)

25 and (2) of subsection (g), if a characteristic of the
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1 wetlands is the unintended result of a human-in2 duced alteration of hydrology.

3 ‘‘(8) MAINTENANCE.—The term ‘maintenance’

4 means an activity undertaken to ensure continuation

5 of wetlands or the accomplishment of a project goal

6 after a wetlands restoration or wetlands creation

7 project has been technically completed, including

8 water level manipulation and control of any

9 nonnative plant species.

10 ‘‘(9) MITIGATION BANKING.—The term ‘mitiga11 tion banking’ means wetlands restoration, enhance12 ment, preservation, or creation for the purpose of

13 providing compensation for wetlands loss or deg14 radation.

15 ‘‘(10) NORMAL FARMING, SILVICULTURE, AQUA16 CULTURE, OR RANCHING ACTIVITY.—The term ‘nor17 mal farming, silviculture, aquaculture, or ranching

18 activity’ means a normal ongoing practice identified

19 as a normal ongoing activity by the Secretary of Ag20 riculture (in consultation with the Cooperative State

21 Research, Education, and Extension Service for each

22 State, the land-grant university system, and the ag23 ricultural colleges of the State), taking into account

24 any existing practice (as of the date of the identi25 fication) and any other practice that may be identi-
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1 fied in consultation with the affected industry or

2 community.

3 ‘‘(11) PRIOR CONVERTED CROPLAND.—The

4 term ‘prior converted cropland’ means lands that

5 were both manipulated (by drainage or other phys6 ical alteration to remove excess water from the land)

7 and cropped before December 23, 1985, to the ex8 tent that the lands no longer exhibit significant wet9 lands functions or values.

10 ‘‘(12) RESTORATION.—The term ‘restoration’,

11 used with respect to wetlands, means an activity un12 dertaken to return wetlands from a disturbed or al13 tered condition with lesser wetlands acreage or fewer

14 wetlands functions or values to a previous condition

15 with greater wetlands acreage or more wetlands

16 functions or values.

17 ‘‘(13) SECRETARY.—The term ‘Secretary’, used

18 without further modification, means the Secretary of

19 the Army.

20 ‘‘(14) TEMPORARY.—The term ‘temporary’,

21 used with respect to an impact, means the disturb22 ance or alteration of wetlands or waters of the Unit23 ed States caused by an activity under a cir24 cumstance in which, not later than 3 years following
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1 the commencement of the activity, the wetlands or

2 waters—

3 ‘‘(A) are returned to the condition in exist4 ence prior to the commencement of the activity;

5 or

6 ‘‘(B) display a condition sufficient to en7 sure that without further human action the

8 wetlands or waters will return to the condition

9 in existence prior to the commencement of the

10 activity.

11 ‘‘(15) WETLANDS.—The term ‘wetlands’ means

12 lands that meet the standards for delineation of

13 lands as wetlands set forth in paragraphs (1) and

14 (2) of subsection (g).

15 ‘‘(16) WETLANDS FUNCTIONS.—The term ‘wet16 lands functions’ means the roles wetlands serve that

17 are of value, including flood water storage, flood

18 water conveyance, ground water discharge, erosion

19 control, wave attenuation, water quality protection,

20 scenic and aesthetic use, food chain support, fishery

21 support, wetlands plant habitat support, aquatic

22 habitat support, and habitat for wetlands-dependent

23 wildlife support.

24 ‘‘(b) AUTHORIZED ACTIVITIES.—
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1 ‘‘(1) PERMIT REQUIREMENT.—No person shall

2 undertake an activity in wetlands or waters of the

3 United States unless the activity is undertaken pur4 suant to a permit issued by the Secretary, except as

5 provided in paragraph (3).

6 ‘‘(2) ISSUANCE OF PERMITS.—The Secretary

7 may issue permits authorizing activities in wetlands

8 or waters of the United States in accordance with

9 the requirements of this section.

10 ‘‘(3) ACTIVITIES NOT REQUIRING PERMITS.—

11 An activity in wetlands or waters of the United

12 States may be undertaken without a permit de13 scribed in paragraph (2) from the Secretary if the

14 activity is authorized under paragraph (5) or (6) of

15 subsection (e), is exempt under subsection (f), or is

16 otherwise exempt under another provision of this

17 section.

18 ‘‘(4) APPLICATION.—Any person seeking to un19 dertake an activity in wetlands or waters of the

20 United States shall submit an application to the Sec21 retary identifying the site of the activity. The appli22 cant shall also provide such additional information

23 regarding the proposed activity as may be necessary

24 or appropriate for purposes of determining whether
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1 and under what conditions the proposed activity may

2 be permitted to occur.

3 ‘‘(c) WETLANDS CLASSIFICATION.—

4 ‘‘(1) APPLICATION.—In submitting an applica5 tion under subsection (b), any person seeking to un6 dertake an activity in wetlands for which a permit

7 is required under subsection (b) shall request that

8 the Secretary determine, in accordance with para9 graph (3), the classification of the wetlands in which

10 the activity is proposed to occur. The applicant shall

11 also provide such information as may be necessary

12 or appropriate for determining the classification of

13 wetlands.

14 ‘‘(2) NOTICE.—

15 ‘‘(A) IN GENERAL.—Except as provided in

16 subparagraph (B), not later than 90 days after

17 the receipt of an application described in para18 graph (1) relating to an activity in wetlands,

19 the Secretary shall provide notice to the appli20 cant of the classification of the wetlands that

21 are the subject of the application and shall

22 state in writing the basis for the classification.

23 The classification of the wetlands that are the

24 subject of the application shall be determined

25 by the Secretary in accordance with the require-
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1 ments for classification of wetlands under para2 graphs (3), (4), and (5).

3 ‘‘(B) NOTICE REGARDING ADVANCE CLAS4 SIFICATION.—In the case of an application pro5 posing an activity located in wetlands that are

6 the subject of an advance classification under

7 subsection (h), the Secretary shall provide no8 tice to the applicant of the classification within

9 30 days following the receipt of the application,

10 and shall provide an opportunity for review of

11 the classification under paragraphs (4) and (5).

12 ‘‘(3) CLASSIFICATION.—On receipt of an appli13 cation under this subsection with respect to wet14 lands, the Secretary shall, in accordance with the

15 standards and procedures established by regulation

16 issued under subsection (i)—

17 ‘‘(A) classify as type A wetlands the wet18 lands that are of critical significance to the

19 long-term conservation of the ecosystem of

20 which the wetlands are a part if—

21 ‘‘(i) the wetlands serve critical wet22 lands functions and values, including the

23 provision of critical habitat for a con24 centration of avian, aquatic, or wetlands25 dependent wildlife;
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1 ‘‘(ii)(I) the wetlands consist of or are

2 a portion of 10 or more contiguous acres

3 and have an inlet or outlet for relief of

4 water flow; or

5 ‘‘(II) the wetlands contain a prairie

6 pothole feature, playa lake, or vernal pool;

7 ‘‘(iii) there exists a scarcity within the

8 watershed or aquatic ecosystem of identi9 fied ecological functions served by the wet10 lands such that the use of the wetlands for

11 an activity in wetlands or waters of the

12 United States would seriously jeopardize

13 the availability of the identified functions;

14 ‘‘(iv) there is no overriding public in15 terest in the use of the wetlands for pur16 poses other than conservation; and

17 ‘‘(v) the nature and scope of the wet18 lands functions and values of the wetlands

19 are such that minimization and compensa20 tion are not feasible means for conserving

21 the wetlands functions and values;

22 ‘‘(B) classify as type B wetlands the wet23 lands that provide habitat for a significant pop24 ulation of avian, aquatic, or wetlands-dependent

25 wildlife, or provide other significant wetlands
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1 functions and values, including significant en2 hancement or protection of water quality in wa3 ters of the United States, or significant natural

4 flood control; and

5 ‘‘(C) classify as type C wetlands the wet6 lands that—

7 ‘‘(i) serve limited wetlands functions

8 and values;

9 ‘‘(ii) serve marginal wetlands func10 tions and values but that exist in such

11 abundance that regulation of activities in

12 the wetlands is not necessary for conserv13 ing important wetlands functions and val14 ues;

15 ‘‘(iii) are prior converted cropland;

16 ‘‘(iv) are fastlands; or

17 ‘‘(v) are wetlands within industrial

18 complexes or other intensely developed

19 areas that do not serve significant wet20 lands functions and values as a result of

21 the location of the wetlands.

22 ‘‘(4) DE NOVO DETERMINATION.—Not later

23 than 30 days after receipt of notice of an advance

24 classification by the Secretary under paragraph

25 (2)(B), an applicant may request that the Secretary
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1 make a de novo determination of the classification of

2 wetlands that are the subject of the notice. The de

3 novo determination shall be made by the Secretary

4 in consultation with the Director. The Secretary may

5 sustain the advance classification made by the Direc6 tor. The Secretary may modify the classification if

7 the Secretary determines, on examination of all rel8 evant information submitted by the applicant or oth9 erwise available to the Secretary (including, if appro10 priate, an on-the-ground examination) that—

11 ‘‘(A) the lands involved do not meet the

12 standards for delineating wetlands set forth in

13 paragraph (1) or (2) of subsection (g);

14 ‘‘(B) the weight of relevant information

15 does not support the determination of the ad16 vance classification with respect to the specific

17 wetlands involved;

18 ‘‘(C) the factual basis for the advance clas19 sification is no longer valid; or

20 ‘‘(D) the limitations on uses of the specific

21 wetlands involved that would be imposed by the

22 Secretary under this section would effectively

23 preclude reasonable economic use of the wet24 lands.
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1 ‘‘(5) APPEALS.—In the event that the Secretary

2 delegates authority to determine the classification of

3 wetlands under paragraphs (3) and (4), the Sec4 retary shall, by regulation, provide for a right of ap5 peal to the Secretary or the designee of the Sec6 retary of the classification of wetlands under para7 graph (3) or the de novo determination of an ad8 vance classification in accordance with paragraph

9 (4).

10 ‘‘(6) MAXIMUM PERCENT OF LANDS CLASSIFIED

11 AS TYPE A WETLANDS.—No more than 20 percent

12 of any county, parish, or borough shall be classified

13 as type A wetlands. For purposes of this paragraph,

14 a county, parish, or borough includes any land in the

15 county, parish, or borough that is owned by the

16 United States or by a State, including land in a unit

17 of the National Wildlife Refuge System, land in the

18 National Park System, and land subject to a con19 servation easement.

20 ‘‘(d) COMPENSATION FOR LANDOWNERS.—

21 ‘‘(1) ELECTION TO SEEK COMPENSATION.—Any

22 person (including a State or political subdivision of

23 a State) who owns an interest in lands that have

24 been classified as type A wetlands by the Secretary

25 under subsection (c)(3)(A) or by the Director under
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1 subsection (h) may, not later than 2 years after re2 ceipt of actual notice of the classification (or not

3 later than 2 years after a de novo determination of

4 the classification under subsection (c)(4)), notify the

5 Secretary and the Director that the person is elect6 ing to seek compensation for the fair market value

7 of the interest in lands at the time of the classifica8 tion, in accordance with the requirements of this

9 section. The fair market value may include reason10 able attorney’s fees and shall be calculated without

11 regard to any diminution in value resulting from the

12 applicability of this section.

13 ‘‘(2) NEGOTIATIONS.—Immediately on receipt

14 by the Secretary and the Director of notification of

15 election to seek compensation under paragraph (1),

16 the Director shall enter into good faith negotiations

17 with the owner for purposes of determining the value

18 of the interest in lands that have been classified as

19 type A wetlands. Not later than 90 days after re20 ceipt of the notification of election by the owner

21 under paragraph (1), the Director shall make an

22 offer of reasonable compensation to the owner.

23 ‘‘(3) ACTION OF OWNER.—

24 ‘‘(A) IN GENERAL.—Not later than 6 years

25 after the date the Director makes an offer of
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1 compensation under paragraph (2), the owner

2 shall provide notice that the owner, in the dis3 cretion of the owner—

4 ‘‘(i) accepts the offer of compensation;

5 ‘‘(ii) has filed a claim for determina6 tion of the value of the compensation de7 scribed in paragraph (1) with the United

8 States Court of Federal Claims; or

9 ‘‘(iii) advises the Director and the

10 Secretary that the owner elects to retain

11 title to the wetlands and elects not to re12 ceive compensation for the taking of land

13 under this subsection.

14 ‘‘(B) FAILURE TO PROVIDE NOTICE.—Fail15 ure to provide notice in accordance with this

16 paragraph shall be deemed an election to retain

17 title to the wetlands and not to receive com18 pensation under this subsection.

19 ‘‘(4) EFFECT OF ACCEPTANCE OF OFFER OR

20 FILING OF CLAIM.—On acceptance of an offer of

21 compensation, or the filing of a claim for determina22 tion of the value of compensation, under paragraph

23 (3), the classification as type A wetlands of the wet24 lands that are the subject of the offer or claim shall

25 be binding on the owner and any successor in inter-
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1 est, and the title to the lands shall pass to the Unit2 ed States. The classification of the lands as type A

3 wetlands under this paragraph shall constitute a

4 taking by the United States of the interests in the

5 lands of the owner and shall be compensable under

6 this subsection.

7 ‘‘(5) EXTENT OF TAKING.—A taking under this

8 subsection shall be deemed to be a taking of surface

9 interests in lands only, with the following exceptions:

10 ‘‘(A) EXPLORATION OR DEVELOPMENT

11 NOT COMPATIBLE WITH CONSERVATION.—If the

12 Secretary determines that the exploration for or

13 development of oil and gas or mineral interests

14 is not compatible with conservation of the sur15 face interests in lands that have been classified

16 as type A wetlands located above the oil and

17 gas or mineral interests (or located adjacent to

18 the oil and gas or mineral interests where the

19 adjacent lands are necessary to provide reason20 able access to the interests), the Secretary may

21 classify the oil and gas or mineral interests as

22 type A wetlands and notify the owner of the in23 terests that the owner may elect to receive com24 pensation for the interests under paragraph (1).
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1 ‘‘(B) FAILURE TO PROVIDE REASONABLE

2 ACCESS.—The failure of the Secretary to pro3 vide reasonable access to oil and gas or mineral

4 interests located beneath or adjacent to surface

5 interests of type A wetlands shall be deemed a

6 taking of the oil and gas or mineral interests.

7 The Secretary shall classify the oil and gas or

8 mineral interests as type A wetlands and notify

9 the owner of the interests that the owner may

10 elect to receive compensation for the interests

11 under paragraph (1).

12 ‘‘(6) JURISDICTION.—The United States Court

13 of Federal Claims shall have jurisdiction—

14 ‘‘(A) to determine the value of interests

15 taken and the fair compensation required under

16 this subsection and the Constitution;

17 ‘‘(B) in the case of oil and gas or mineral

18 interests, to require the United States to pro19 vide reasonable access in, across, or through

20 lands that may be the subject of a taking under

21 this subsection solely for the purpose of under22 taking activity necessary to determine the value

23 of the interests taken; and

24 ‘‘(C) to provide other equitable remedies

25 determined to be appropriate.
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1 ‘‘(7) EXECUTION OF JUDGMENT.—Any judg2 ment rendered under paragraph (6) may be exe3 cuted, at the election of the owner. Any owner seek4 ing to execute such a judgment shall execute the

5 judgment not later than 2 years after the date the

6 judgment is rendered. The owner may, prior to the

7 execution of the judgment, enter into an agreement

8 with the United States for satisfaction of the judg9 ment through a crediting of a tax benefit, acquisi10 tion of an interest in oil and gas or minerals, an ex11 change of interests in lands with the United States,

12 or other means of compensation.

13 ‘‘(8) CONSTRUCTION.—

14 ‘‘(A) AVAILABILITY OF OTHER REM15 EDIES.—The remedy for a taking of an interest

16 in lands under this subsection shall not be con17 strued to preempt, alter, or limit the availability

18 of other remedies for the taking of the interest

19 in lands under the Constitution or under State

20 law, including the taking of rights to the use of

21 water allocated under State law or the taking of

22 the interest in lands by denial of a permit

23 under this section.

24 ‘‘(B) TAKING BY DENIAL OF A PERMIT.—

25 Any award of compensation for the taking of an
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1 interest in lands by denial of a permit under

2 this section shall be based on the fair market

3 value of the interest in lands at the time of the

4 taking. The fair market value may include rea5 sonable attorney’s fees and shall be calculated

6 without regard to any diminution in value re7 sulting from the applicability of this section.

8 ‘‘(9) MANAGEMENT.—Interests in lands ac9 quired by the United States under this subsection

10 shall be managed by the United States Fish and

11 Wildlife Service as a part of the National Wildlife

12 Refuge System unless the Secretary of the Interior,

13 acting through the Director, makes a determination

14 otherwise, or unless otherwise provided by law.

15 ‘‘(10) REQUIREMENTS GOVERNING USE OF

16 WATER.—No action taken under this subsection

17 shall be construed to alter or supersede requirements

18 governing use of water applicable under State law.

19 ‘‘(e) REQUIREMENTS APPLICABLE TO PERMITTED

20 ACTIVITY.—

21 ‘‘(1) ISSUANCE OR DENIAL OF PERMITS.—Fol22 lowing the provision of notice of wetlands classifica23 tion pursuant to subsection (c) if applicable, and

24 after compliance with the requirements of subsection

25 (d) if applicable, the Secretary may issue or deny a
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1 permit for authorization to undertake an activity in

2 wetlands or waters of the United States, in accord3 ance with the requirements of this subsection.

4 ‘‘(2) TYPE A WETLANDS.—

5 ‘‘(A) IN GENERAL.—The Secretary shall

6 deny a permit authorizing an activity in type A

7 wetlands unless the Secretary determines

8 that—

9 ‘‘(i) the activity can be undertaken

10 with minimal alteration or surface disturb11 ance of the wetlands; or

12 ‘‘(ii) the proposed use of the land,

13 taking into account all proposed mitiga14 tion, will result in overall environmental

15 benefits, including the prevention of wet16 lands loss or degradation.

17 ‘‘(B) TERMS AND CONDITIONS CONCERN18 ING MITIGATION.—Any permit issued authoriz19 ing activities in type A wetlands may contain

20 such terms and conditions concerning mitiga21 tion (including terms and conditions applicable

22 under paragraph (3) for type B wetlands) as

23 the Secretary determines to be appropriate to

24 prevent the unacceptable loss or degradation of

25 type A wetlands.
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1 ‘‘(3) TYPE B WETLANDS.—

2 ‘‘(A) CONSIDERATIONS.—The Secretary

3 may issue a permit authorizing an activity in

4 type B wetlands subject to such terms and con5 ditions as the Secretary finds are necessary to

6 ensure that the watershed or aquatic ecosystem

7 of which the wetlands are a part does not suffer

8 significant loss or degradation of wetlands func9 tions and values. In determining whether spe10 cific terms and conditions are necessary to

11 avoid a significant loss or degradation of wet12 lands functions and values, the Secretary shall

13 consider the following:

14 ‘‘(i) The quality and quantity of eco15 logically significant functions and values

16 served by the areas to be affected.

17 ‘‘(ii) The opportunities to reduce im18 pacts through cost-effective design to avoid

19 or minimize use of wetlands.

20 ‘‘(iii) The costs of mitigation require21 ments and the social, recreational, and eco22 nomic benefits associated with the pro23 posed activity, including local, regional, or

24 national needs for improved or expanded

25 infrastructure.
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1 ‘‘(iv) The ability of the applicant for

2 the permit to mitigate wetlands loss or

3 degradation as measured by wetlands func4 tions and values.

5 ‘‘(v) The environmental benefit, meas6 ured by wetlands functions and values,

7 that may occur through mitigation efforts,

8 including restoration, preservation, en9 hancement, or creation of wetlands func10 tions and values.

11 ‘‘(vi) The marginal impact of the pro12 posed activity on the watershed or aquatic

13 ecosystem of which the wetlands are a

14 part.

15 ‘‘(B) ALTERNATIVE SITE ANALYSES AND

16 PROJECT PURPOSES.—In considering applica17 tions for permits with respect to activities on

18 type B wetlands, the Secretary may require al19 ternative site analyses for individual permit ap20 plications involving the alteration or permanent

21 surface disturbance of 10 or more contiguous

22 acres of wetlands. In the case of such an appli23 cation, there shall be a rebuttable presumption

24 that the project purpose for the activities as de25 fined by the applicant shall be binding on the
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1 Secretary. In the case of such an application,

2 the definition of project purpose for the activi3 ties sponsored by a public agency shall be bind4 ing on the Secretary, subject to the authority of

5 the Secretary to impose mitigation requirements

6 to minimize impacts on wetlands functions and

7 values, including cost-effective redesign of the

8 project to avoid wetlands.

9 ‘‘(C) REQUIREMENTS FOR MITIGATION.—

10 Except as otherwise provided in this section, re11 quirements for mitigation shall be imposed if

12 the Secretary finds that activities undertaken

13 under this section will result in the loss or deg14 radation of type B wetlands functions and val15 ues where the loss or degradation is not an inci16 dental or a temporary impact. When determin17 ing the mitigation requirements in any specific

18 case, the Secretary shall take into consideration

19 the characteristics of the wetlands affected, the

20 character of the impact on ecological functions,

21 whether any adverse effects on wetlands are of

22 a permanent or temporary nature, and the cost23 effectiveness of the mitigation and shall seek to

24 minimize the costs of the mitigation.
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1 ‘‘(D) REGULATIONS GOVERNING REQUIRE2 MENTS FOR MITIGATION.—The Secretary shall

3 issue regulations under subsection (i) governing

4 requirements for compensatory mitigation, for

5 activities occurring in type B wetlands, that

6 allow for—

7 ‘‘(i) minimization of impacts through

8 project design for the activities, including

9 avoidance of specific wetlands impacts

10 where economically practicable and consist11 ent with the project purpose, provisions for

12 compensatory mitigation, if any, and other

13 terms and conditions necessary and appro14 priate in the public interest;

15 ‘‘(ii) preservation or donation of type

16 A wetlands or type B wetlands (if title has

17 not been acquired by the United States

18 and no compensation for the taking of the

19 wetlands has been provided) as mitigation

20 for activities that result in loss or degrada21 tion of wetlands;

22 ‘‘(iii) enhancement or restoration of

23 lost or degraded wetlands as compensation

24 for wetlands lost or degraded through per25 mitted activity;
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1 ‘‘(iv) compensation through contribu2 tion to a mitigation banking program es3 tablished for a State pursuant to subpara4 graph (F);

5 ‘‘(v) offsite compensatory mitigation

6 with respect to an activity in a wetlands, if

7 the mitigation contributes to the restora8 tion, enhancement, or creation of signifi9 cant wetlands functions and values on a

10 watershed or ecosystem-wide basis and is

11 balanced with the effects that an activity

12 proposed to be carried out under a permit

13 will have on the specific site (except that

14 offsite compensatory mitigation, if any,

15 shall be required only in the State in which

16 the proposed activity is to occur, and shall,

17 to the extent practicable, be within the wa18 tershed or aquatic ecosystem within which

19 the proposed activity is to occur, unless

20 otherwise consistent with a State wetlands

21 management plan);

22 ‘‘(vi) contribution of in-kind value ac23 ceptable to the Secretary and otherwise au24 thorized by law;
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1 ‘‘(vii) in areas subject to wetlands loss

2 or degradation, construction of coastal pro3 tection and enhancement projects;

4 ‘‘(viii) contribution of resources of

5 more than 1 permit recipient toward a sin6 gle mitigation project; and

7 ‘‘(ix) other mitigation measures deter8 mined by the Secretary to be appropriate,

9 in the public interest, and consistent with

10 the requirements and purposes of this Act.

11 ‘‘(E) COMPENSATORY MITIGATION.—Not12 withstanding subparagraph (C), the Secretary

13 may determine not to impose requirements for

14 compensatory mitigation, with respect to an ac15 tivity in a wetlands, if the Secretary finds

16 that—

17 ‘‘(i) the adverse impacts of an activity

18 proposed to be carried out under a permit

19 are limited;

20 ‘‘(ii) the failure to impose compen21 satory mitigation requirements is compat22 ible with maintaining wetlands functions

23 and values and no practicable and reason24 able means of compensatory mitigation is

25 available;
29

•S 352 IS

1 ‘‘(iii) there is an abundance of similar

2 significant wetlands functions and values

3 in or near the area in which the proposed

4 activity is to occur that will continue to

5 serve the functions and values lost or de6 graded as a result of the activity, taking

7 into account the impacts of the activity

8 and the cumulative impacts of similar ac9 tivity in the area;

10 ‘‘(iv) the temporary character of the

11 impacts and the use of minimization tech12 niques make compensatory mitigation un13 necessary to protect significant wetlands

14 functions and values; or

15 ‘‘(v) a waiver from requirements for

16 compensatory mitigation is necessary to

17 prevent special hardship.

18 ‘‘(F) MITIGATION BANKING PROGRAM.—

19 ‘‘(i) ESTABLISHMENT.—The Sec20 retary, in consultation with the Director,

21 shall establish a mitigation banking pro22 gram in each State. The mitigation bank23 ing program shall be developed in consulta24 tion with the Director and the Governor of

25 the State in which the wetlands covered by
30

•S 352 IS

1 the mitigation banking program is located.

2 After approval of the program by the Sec3 retary, the Secretary may require contribu4 tions to the program as a means for ensur5 ing compensation for loss and degradation

6 of wetlands functions and values in the

7 State in accordance with the requirements

8 of this paragraph.

9 ‘‘(ii) PRIMARY OBJECTIVE.—The pri10 mary objective of the programs shall be to

11 provide for the restoration, enhancement,

12 or, where feasible, creation of ecologically

13 significant wetlands on an ecosystem basis.

14 ‘‘(iii) FUNCTIONS AND VALUES.—

15 Each program described in clause (i)

16 shall—

17 ‘‘(I) provide a preference for

18 large-scale projects for conservation,

19 enhancement, or restoration of wet20 lands, unless the Secretary (or the

21 Governor of a State that is admin22 istering a State permit program under

23 subsection (l)) determines that a

24 smaller project will contribute sub25 stantially to the conservation, en-
31

•S 352 IS

1 hancement, or restoration of eco2 logically significant wetlands functions

3 and values or that the restoration of

4 indigenous wetlands resources cannot

5 be accomplished through large-scale

6 projects;

7 ‘‘(II) authorize mitigation banks

8 sponsored by private entities or public

9 entities;

10 ‘‘(III) provide for the crediting to

11 a State or privately maintained miti12 gation bank of contributions in land

13 or cash, or in-kind contributions, so

14 that persons unable to sponsor spe15 cific mitigation projects can contribute

16 to the mitigation bank;

17 ‘‘(IV) have sufficient require18 ments to ensure completion, mainte19 nance, and supervision of wetlands

20 projects for at least a 25-year period,

21 including requirements for bonds or

22 other evidence of financial responsibil23 ity;
32

•S 352 IS

1 ‘‘(V) authorize the imposition of

2 bonding requirements on private enti3 ties operating the banks;

4 ‘‘(VI) limit activities in or on

5 wetlands that are part of a mitigation

6 bank to uses that are consistent with

7 maintaining or gaining significant

8 wetlands functions and values; and

9 ‘‘(VII) authorize a credit to be

10 provided on an acre-for-acre or value11 for-value basis for type A and B wet12 lands that are permanently protected

13 in national conservation units in any

14 State that has converted less than 10

15 percent of the historic wetlands base

16 of the State to other uses.

17 ‘‘(4) ACTION ON APPLICATIONS.—

18 ‘‘(A) TIMING.—In the case of any applica19 tion for authorization to undertake activities in

20 wetlands or waters of the United States that

21 are not type C wetlands, final action by the

22 Secretary shall occur not later than 180 days

23 after the date the application is filed, unless—
33

•S 352 IS

1 ‘‘(i) the Secretary and the applicant

2 agree that the final action shall occur with3 in a shorter or longer period of time;

4 ‘‘(ii) the Secretary determines that an

5 additional, specified period of time is nec6 essary to permit the Secretary to comply

7 with other applicable Federal law; or

8 ‘‘(iii) the Secretary, not later than 15

9 days after the date the application is re10 ceived, notifies the applicant that the ap11 plication does not contain all information

12 necessary to allow the Secretary to con13 sider the application and identifies any

14 necessary additional information, in which

15 case the provisions of subparagraph (B)

16 shall apply.

17 ‘‘(B) ADDITIONAL INFORMATION.—On the

18 receipt of a request for additional information

19 under subparagraph (A)(iii), the applicant shall

20 supply the additional information and shall pro21 vide notice to the Secretary that the application

22 contains all requested additional information

23 and is therefore complete. The Secretary may—

24 ‘‘(i) not later than 30 days after the

25 receipt of notice from the applicant that
34

•S 352 IS

1 the application is complete, determine that

2 the application does not contain all re3 quested additional information and, on the

4 basis of the determination, deny the appli5 cation without prejudice with respect to re6 submission; or

7 ‘‘(ii) not later than 180 days after the

8 receipt of notice from the applicant that

9 the application is complete, review the ap10 plication and take final action on the appli11 cation.

12 ‘‘(C) FAILURE TO ACT ON APPLICATION.—

13 If the Secretary fails to take final action on an

14 application as provided in subparagraph (B)(ii),

15 on the 180th day described in the subparagraph

16 a permit shall be presumed to be granted au17 thorizing the activities proposed in the applica18 tion under such terms and conditions as are

19 stated in the completed application.

20 ‘‘(D) APPEALS.—Not later than 60 days

21 after the date of a decision of the Secretary de22 nying a permit requested in an application

23 under this paragraph, the applicant may appeal

24 the decision to the Secretary of Defense or the

25 designee of the Secretary of Defense. On such
35

•S 352 IS

1 an appeal, the Secretary of Defense or the des2 ignee shall uphold the decision of the Secretary

3 of the Army if the Secretary of the Army

4 proves by clear and convincing evidence that

5 granting the permit requested in the application

6 would be inconsistent with this section.

7 ‘‘(5) TYPE C WETLANDS.—

8 ‘‘(A) PERMIT NOT REQUIRED.—Activities

9 in wetlands that have been classified as type C

10 wetlands under subsection (c)(3)(C) by the Sec11 retary or under subsection (h) by the Director

12 may be undertaken without a permit referred to

13 in subsection (b).

14 ‘‘(B) REPORTING REQUIREMENTS.—The

15 Secretary may establish requirements for re16 porting activities undertaken in type C wet17 lands.

18 ‘‘(C) ALTERNATIVE SITE ANALYSIS AND

19 MITIGATION NOT REQUIRED.—No requirements

20 for alternative site analyses or mitigation of en21 vironmental impacts shall apply for activities

22 undertaken in type C wetlands.

23 ‘‘(6) NATIONAL, REGIONAL, OR STATEWIDE

24 GENERAL PERMITS.—
36

•S 352 IS

1 ‘‘(A) IN GENERAL.—The Secretary may, in

2 accordance with a regulation issued under sub3 section (i), issue general permits on a national,

4 regional, or statewide basis for any category of

5 activities in wetlands or waters of the United

6 States for which a permit would otherwise be

7 required under subsection (b), if the Secretary

8 determines that the activities in the category

9 are similar in nature and that the activities,

10 whether performed separately or cumulatively,

11 will not result in a significant loss or degrada12 tion of ecologically significant wetlands func13 tions and values or of ecologically significant

14 waters of the United States. Permits issued

15 under this paragraph shall include procedures

16 for expedited review of eligibility for the permits

17 (if the review is required) and may include re18 quirements for reporting and mitigation. The

19 Secretary may impose requirements for compen20 satory mitigation for the permits if necessary to

21 avoid or minimize the significant loss or deg22 radation of significant wetlands functions and

23 values where the loss or degradation is not an

24 incidental or a temporary impact.
37

•S 352 IS

1 ‘‘(B) EXISTING GENERAL PERMITS.—Gen2 eral permits issued on a national or regional

3 basis for activities in the wetlands or waters of

4 the United States and in effect on the date of

5 enactment of the Comprehensive Wetlands Con6 servation and Management Act of 1995 shall

7 remain in effect until otherwise modified by the

8 Secretary.

9 ‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—

10 ‘‘(1) ACTIVITIES.—Except as provided in para11 graph (3), activities in wetlands or waters of the

12 United States shall be exempt from the requirements

13 of this section and shall not be prohibited by or oth14 erwise subject to regulation under this section or

15 section 301 or 402 (except to the extent the sections

16 relate to compliance with effluent standards or pro17 hibitions under section 307), if the activities—

18 ‘‘(A) result from normal farming,

19 silviculture, aquaculture, or ranching activities

20 and practices, such as plowing, seeding, cul21 tivating, minor drainage, burning of vegetation

22 in connection with the activities and practices,

23 harvesting for the production of food, fiber, or

24 forest products, or upland soil and water con25 servation practices;
38

•S 352 IS

1 ‘‘(B) are for the purpose of maintenance,

2 including emergency reconstruction of recently

3 damaged parts of currently (as of the date of

4 the maintenance) serviceable structures, such as

5 dikes, dams, levees, water control structures,

6 groins, riprap, breakwaters, causeways, and

7 bridge abutments or approaches, and transpor8 tation structures;

9 ‘‘(C) are for the purpose of construction or

10 maintenance of farm, stock, or aquaculture

11 ponds or irrigation canals and ditches, or the

12 maintenance of drainage ditches;

13 ‘‘(D) are for the purpose of construction of

14 temporary sedimentation basins on a construc15 tion site that does not include placement of fill

16 material into navigable waters;

17 ‘‘(E) are for the purpose of construction or

18 maintenance of farm roads or forest roads, or

19 temporary roads for moving mining equipment,

20 if the roads are constructed and maintained, in

21 accordance with best management practices, to

22 ensure that flow and circulation patterns and

23 chemical and biological characteristics of the

24 waters involved are not impaired, that the reach

25 of the waters is not reduced, and that any ad-
39

•S 352 IS

1 verse effect on the aquatic environment will be

2 otherwise minimized;

3 ‘‘(F) are undertaken on farmed wetlands,

4 except that any change in use of the wetlands

5 for the purpose of undertaking activities that

6 are not exempt from regulation under this sub7 section shall be subject to this section;

8 ‘‘(G) result from any activity with respect

9 to which a State has an approved program for

10 which an application was submitted under sec11 tion 208(b)(4) that meets the requirements of

12 subparagraphs (B) and (C) of the section;

13 ‘‘(H) are consistent with a State or local

14 land management plan submitted to the Sec15 retary and approved pursuant to paragraph (2);

16 ‘‘(I) are undertaken in connection with a

17 marsh management and conservation program

18 in a coastal parish in Louisiana if the program

19 has been approved by the Governor of the State

20 or the designee of the Governor;

21 ‘‘(J) are undertaken on lands or involve

22 activities within a coastal zone of a State that

23 are excluded from regulation under the State

24 coastal zone management program approved
40

•S 352 IS

1 under the Coastal Zone Management Act of

2 1972 (16 U.S.C. 1451 et seq.);

3 ‘‘(K) are undertaken in incidentally created

4 wetlands, unless the incidentally created wet5 lands have exhibited wetlands functions and val6 ues for more than 5 years (in which case activi7 ties undertaken in the wetlands shall be subject

8 to the requirements of this section);

9 ‘‘(L) are part of expanding an ongoing

10 farming operation involving the water depend11 ent, obligate crop, Vaccinium macrocarpin, if—

12 ‘‘(i) the expansion does not occur in

13 type A wetlands;

14 ‘‘(ii) the expansion does not result in

15 the conversion of more than 10 acres of

16 wetlands or waters of the United States

17 per operator per year; and

18 ‘‘(iii) the converted wetlands or waters

19 of the United States (other than in loca20 tions where dikes and other necessary fa21 cilities are placed) remain as wetlands or

22 other waters of the United States; or

23 ‘‘(M) result from aggregate or clay mining

24 activities in wetlands or waters of the United

25 States conducted pursuant to a State or Fed-
41

•S 352 IS

1 eral permit that requires the reclamation of the

2 wetlands or waters of the United States, if the

3 reclamation meets conditions for reclamation,

4 including conditions that—

5 ‘‘(i) the reclamation shall be com6 pleted within 5 years of the commencement

7 of activities in the wetlands or waters; and

8 ‘‘(ii) on completion of the reclamation,

9 the wetlands or waters shall support func10 tions (including wetlands functions, as ap11 propriate) and values equivalent to the

12 functions and values supported by the wet13 lands or waters at the time of commence14 ment of the activities.

15 ‘‘(2) STATE AND LOCAL LAND MANAGEMENT

16 PLANS.—

17 ‘‘(A) DEVELOPMENT AND SUBMISSION OF

18 PLAN.—Any State or political subdivision of a

19 State acting pursuant to State authorization

20 may develop a land management plan with re21 spect to lands that include wetlands. A State or

22 local government agency, acting on behalf of

23 the State or political subdivision, may submit

24 the plan to the Secretary for review and ap25 proval. The Secretary shall, not later than 60
42

•S 352 IS

1 days after receipt of the plan, notify a des2 ignated State or local official in writing of ap3 proval or disapproval of the plan.

4 ‘‘(B) APPROVAL.—The Secretary shall ap5 prove any plan described in subparagraph (A)

6 that is consistent with the objectives of this sec7 tion. No person shall be entitled to judicial re8 view of the decision of the Secretary to approve

9 or disapprove a land management plan under

10 this paragraph.

11 ‘‘(C) CONSTRUCTION.—Nothing in this

12 paragraph shall be construed to alter, limit, or

13 supersede the authority of a State or political

14 subdivision of a State to establish a land man15 agement plan for purposes other than the objec16 tives of this subsection.

17 ‘‘(g) STANDARDS FOR DELINEATING WETLANDS.—

18 ‘‘(1) IN GENERAL.—

19 ‘‘(A) ESTABLISHMENT OF STANDARDS.—

20 The Secretary shall establish standards, by reg21 ulation issued under subsection (i), that shall

22 govern the delineation of lands as wetlands for

23 purposes of this section.

24 ‘‘(B) CONSULTATION.—Before establishing

25 standards as described in subparagraph (A),
43

•S 352 IS

1 the Secretary shall consult with the heads of

2 other departments and agencies of the United

3 States, including the Director, the Adminis4 trator of the Environmental Protection Agency,

5 and the Chief of the Natural Resources Con6 servation Service of the Department of Agri7 culture.

8 ‘‘(C) STANDARDS BINDING ON FEDERAL

9 AGENCIES.—The standards established as de10 scribed in subparagraph (A) shall bind all Fed11 eral agencies in connection with the administra12 tion or implementation of this section.

13 ‘‘(2) DELINEATION OF WETLANDS.—

14 ‘‘(A) IN GENERAL.—The standards estab15 lished as described in paragraph (1)(A) shall be

16 issued in accordance with this paragraph, and

17 any decision of the Secretary, the Director, or

18 any other Federal officer or employee, made in

19 connection with the administration of the stand20 ards, shall be made in accordance with this

21 paragraph.

22 ‘‘(B) REQUIREMENTS FOR DELINEATION

23 OF WETLANDS.—For purposes of this section,

24 lands shall be delineated as wetlands only if—
44

•S 352 IS

1 ‘‘(i) the lands are wetlands, as defined

2 in section 502;

3 ‘‘(ii) the Secretary finds clear evidence

4 of wetlands hydrology, hydrophytic vegeta5 tion, and hydric soil during the period in

6 which the delineation (to be conducted dur7 ing the growing season unless otherwise re8 quested by the applicant) is made;

9 ‘‘(iii) the delineation does not result in

10 the classification of vegetation as

11 hydrophytic if the vegetation is equally

12 adapted to dry or wet soil conditions or is

13 more typically adapted to dry soil condi14 tions than to wet soil conditions;

15 ‘‘(iv) the Secretary finds some obli16 gate wetlands vegetation present during

17 the period of delineation (except that if the

18 vegetation is removed for the purpose of

19 evading a requirement of this section, this

20 clause shall not apply);

21 ‘‘(v) the delineation does not result in

22 the conclusion that conditions of wetlands

23 hydrology are present, unless the Secretary

24 finds water present at the surface of the

25 lands for at least 21 consecutive days dur-
45

•S 352 IS

1 ing the growing season (or period re2 quested by the applicant) in which the de3 lineation is made and for 21 consecutive

4 days during the growing seasons in a ma5 jority of the years for which records are

6 available; and

7 ‘‘(vi) the lands were not temporarily

8 or incidentally created as a result of adja9 cent development activity.

10 ‘‘(C) NORMAL CIRCUMSTANCES.—For the

11 purpose of delineating wetlands under this sec12 tion, a normal circumstance shall be determined

13 on the basis of the factual circumstance in ex14 istence on the date a classification is made

15 under subsection (h), or on the date of applica16 tion under subsection (b), whichever is applica17 ble, if the circumstance has not been altered by

18 an activity prohibited under this section.

19 ‘‘(h) UNITED STATES FISH AND WILDLIFE SERVICE

20 WETLANDS ADVANCE IDENTIFICATION AND CLASSIFICA21 TION PROJECT.—

22 ‘‘(1) IN GENERAL.—The Director, after receiv23 ing the concurrence of the Chief of the Natural Re24 sources Conservation Service, shall conduct a project

25 to identify and classify wetlands in the United
46

•S 352 IS

1 States. The Director shall complete the project not

2 later than 10 years after the date of enactment of

3 the Comprehensive Wetlands Conservation and Man4 agement Act of 1995.

5 ‘‘(2) STANDARDS FOR CLASSIFYING WET6 LANDS.—In conducting the project, the Director

7 shall identify and classify wetlands in accordance

8 with the standards for delineation of wetlands estab9 lished by the Secretary as described in paragraphs

10 (1) and (2) of subsection (g).

11 ‘‘(3) NOTICE AND HEARING.—Before comple12 tion of identification and classification of wetlands

13 under paragraph (1), the Director shall provide no14 tice and an opportunity for a public hearing in each

15 county, parish, or borough that includes lands sub16 ject to identification and classification.

17 ‘‘(4) PUBLICATION.—Promptly after completion

18 of identification and classification of wetlands under

19 paragraph (1), the Director shall publish informa20 tion concerning the identification and classification

21 in the Federal Register and in publications of wide

22 circulation and take other steps reasonably necessary

23 to ensure that information concerning the identifica24 tion and classification is made available to the pub25 lic.
47

•S 352 IS

1 ‘‘(5) RECORDING.—The Director shall, to the

2 fullest extent practicable, record any classification of

3 lands as wetlands under paragraph (1) on the prop4 erty records in the county, parish, or borough in

5 which the wetlands are located.

6 ‘‘(6) REPORT TO CONGRESS.—Not later than 2

7 years after the date of enactment of the Comprehen8 sive Wetlands Conservation and Management Act of

9 1995, and annually thereafter, the Secretary of the

10 Interior shall prepare and submit to the appropriate

11 committees of Congress a report on implementation

12 of the project conducted under this subsection.

13 ‘‘(i) ADMINISTRATIVE PROVISIONS.—

14 ‘‘(1) PROMULGATION OF FINAL REGULA15 TIONS.—Not later than 1 year after the date of en16 actment of the Comprehensive Wetlands Conserva17 tion and Management Act of 1995, the Secretary

18 shall, after notice and opportunity for public com19 ment, issue 1 or more final regulations for the issu20 ance of permits under this section. The regulations

21 shall—

22 ‘‘(A) establish standards and procedures

23 for—

24 ‘‘(i) the classification and delineation

25 of wetlands, and procedures for adminis-
48

•S 352 IS

1 trative review of the classification or delin2 eation of wetlands;

3 ‘‘(ii) the review of State or local land

4 management plans and State programs for

5 the regulation of wetlands and waters of

6 the United States;

7 ‘‘(iii) the issuance of general permits

8 on a national, regional, or statewide basis

9 under this section;

10 ‘‘(iv) the issuance of individual permit

11 applications under this section;

12 ‘‘(v) enforcement of this section;

13 ‘‘(vi) administrative appeal of an ac14 tion by the Secretary denying an applica15 tion for a permit referred to in subsection

16 (b), or issuing a permit referred to in sub17 section (b) subject to 1 or more conditions;

18 and

19 ‘‘(vii) any other related area that the

20 Secretary determines necessary or appro21 priate to implement the requirements of

22 this section; and

23 ‘‘(B) establish requirements governing the

24 establishment of a mitigation bank.
49

•S 352 IS

1 ‘‘(2) JUDICIAL REVIEW OF A FINAL REGULA2 TION.—

3 ‘‘(A) IN GENERAL.—Except as provided in

4 subparagraph (B), any judicial review of a final

5 regulation issued pursuant to paragraph (1),

6 and any denial by the Secretary of a petition

7 for the issuance or repeal of a regulation under

8 paragraph (1), shall be conducted in accordance

9 with sections 701 through 706 of title 5, United

10 States Code.

11 ‘‘(B) JURISDICTION OF COURT.—

12 ‘‘(i) PETITIONS FOR REVIEW.—A peti13 tion for review of the action of the Sec14 retary in issuing a regulation under para15 graph (1), or denying a petition for the is16 suance or repeal of a regulation under

17 paragraph (1), may be filed only in the

18 United States Court of Appeals for the

19 District of Columbia. The petition for re20 view may only be filed—

21 ‘‘(I) not later than 90 days after

22 the date of issuance or denial; or

23 ‘‘(II) if the petition for review is

24 based solely on grounds arising after

25 the date of issuance or denial, not
50

•S 352 IS

1 later than 90 days after the date the

2 grounds arise.

3 ‘‘(ii) PROHIBITION ON REVIEW DUR4 ING ENFORCEMENT PROCEEDINGS.—Ac5 tion by the Secretary with respect to which

6 review could have been obtained under this

7 paragraph shall not be subject to judicial

8 review in civil or criminal proceedings for

9 enforcement.

10 ‘‘(3) INTERIM REGULATIONS.—

11 ‘‘(A) PROMULGATION OF INTERIM REGU12 LATIONS.—Not later than 90 days after the

13 date of enactment of the Comprehensive Wet14 lands Conservation and Management Act of

15 1995, the Secretary shall issue interim regula16 tions consistent with paragraph (1). The in17 terim regulations shall become effective on the

18 date of issuance. Notice of the interim regula19 tions shall be published in the Federal Register.

20 Except as provided in subparagraph (B), the in21 terim regulations shall apply until the issuance

22 of final regulations under paragraph (1).

23 ‘‘(B) WAIVER OF INTERIM REGULA24 TIONS.—The Secretary shall provide a proce-
51

•S 352 IS

1 dure for waiving a provision of an interim regu2 lation—

3 ‘‘(i) in a case in which the applicant

4 demonstrates special hardship, inequity, or

5 unfair distribution of burdens; or

6 ‘‘(ii) in a case in which the Secretary

7 determines that a waiver under this sub8 paragraph would advance the purposes of

9 this section.

10 ‘‘(4) AUTHORITY TO CARRY OUT REGULA11 TIONS.—Except as otherwise expressly provided in

12 this section, the Secretary shall be responsible for

13 carrying out this section. The Secretary or any other

14 Federal officer or employee in whom any function

15 under this section is vested or to whom any such

16 function is delegated may perform any and all acts

17 (including appropriate enforcement activity), and

18 may prescribe, issue, amend, or rescind any regula19 tion or order the officer or employee may find nec20 essary or appropriate to prescribe, issue, amend, or

21 rescind under this section, subject to the require22 ments of this section.

23 ‘‘(j) VIOLATIONS.—

24 ‘‘(1) ENFORCEMENT BY SECRETARY.—When25 ever the Secretary finds, on the basis of reliable and
52

•S 352 IS

1 substantial information and after reasonable inquiry,

2 that a person is or may be in violation of this section

3 or a condition or limitation set forth in a permit is4 sued by the Secretary under subsection (b), the Sec5 retary shall—

6 ‘‘(A) issue an order requiring the person to

7 comply with this section or with the condition

8 or limitation in the permit; or

9 ‘‘(B) bring a civil action in accordance

10 with paragraph (3).

11 ‘‘(2) ORDERS ISSUED BY SECRETARY.—

12 ‘‘(A) COPY OF ORDER SENT TO STATES.—

13 A copy of each order issued under paragraph

14 (1) shall be sent immediately by the Secretary

15 to the Governor of the State in which the viola16 tion occurred and the Governor of any other af17 fected State.

18 ‘‘(B) SERVICE.—Except as provided in

19 subparagraph (C), any order issued under para20 graph (1) shall—

21 ‘‘(i) be issued by personal service to

22 the appropriate person or corporate officer;

23 ‘‘(ii) state with reasonable specificity

24 the nature of the asserted violation; and
53

•S 352 IS

1 ‘‘(iii) specify a period for compliance,

2 not to exceed 30 days, that the Secretary

3 determines is reasonable (taking into ac4 count the seriousness of the asserted viola5 tion and any good faith efforts to comply

6 with applicable requirements).

7 ‘‘(C) TIME LIMIT ON ORDER AND ESTOP8 PEL.—

9 ‘‘(i) IN GENERAL.—Not later than

10 150 days after the date of service under

11 subparagraph (B), the Secretary shall—

12 ‘‘(I) take such action as is nec13 essary for the prosecution of a civil

14 action in accordance with paragraph

15 (3); or

16 ‘‘(II) rescind the order issued

17 under paragraph (1) and be estopped

18 from any further enforcement pro19 ceeding for the same asserted viola20 tion.

21 ‘‘(ii) DISPUTED ORDERS.—If a person

22 receiving service under subparagraph (B)

23 disputes the finding described in para24 graph (1) and notifies the Secretary in

25 writing not later than 90 days after the
54

•S 352 IS

1 service, the Secretary shall, not later than

2 60 days after receiving the notification of

3 the dispute—

4 ‘‘(I) take such action as is nec5 essary for the prosecution of a civil

6 action in accordance with paragraph

7 (3); or

8 ‘‘(II) rescind the order and be es9 topped from any further enforcement

10 proceeding for the same asserted vio11 lation.

12 ‘‘(3) CIVIL ACTIONS.—The Secretary may com13 mence a civil action for appropriate relief, including

14 a permanent or temporary injunction, for any viola15 tion for which the Secretary may issue an order

16 under paragraph (1). An action commenced under

17 this paragraph may be brought in the district court

18 of the United States for the district in which the de19 fendant is located or resides or is doing business,

20 and the court shall have jurisdiction to restrain the

21 violation and to require compliance. Notice of the

22 commencement of the action shall be given imme23 diately to the Governor of any affected State.

24 ‘‘(4) PENALTIES.—
55

•S 352 IS

1 ‘‘(A) IN GENERAL.—Any person who vio2 lates this section or a condition or limitation in

3 a permit issued by the Secretary under sub4 section (b), or who violates an order issued by

5 the Secretary under paragraph (1), shall be

6 subject to a civil penalty not to exceed $25,000

7 per day for each violation involved, commencing

8 on the day following expiration of the period al9 lowed for compliance.

10 ‘‘(B) DETERMINATION OF AMOUNT.—The

11 amount of the penalty imposed per day shall be

12 in proportion to the scale or scope of the

13 project that results in the violation. In deter14 mining the amount of a civil penalty under this

15 paragraph, the Secretary or the court, as ap16 propriate, shall consider the seriousness of the

17 violation, the economic benefit (if any) resulting

18 from the violation, any history of a previous vio19 lation, any good-faith effort to comply with ap20 plicable requirements, the economic impact of

21 the penalty on the violator, and any other mat22 ter that justice may require.

23 ‘‘(k) STATE AUTHORITY TO CONTROL DIS24 CHARGES.—Nothing in this section shall affect or impair

25 the right of a State or interstate agency to control activity,
56

•S 352 IS

1 including activity of a Federal agency, in waters of the

2 United States within the jurisdiction of the State or inter3 state agency. Each Federal agency shall comply with a

4 State or interstate requirement, whether substantive or

5 procedural, to the same extent that a person is subject

6 to the requirement. This section shall not affect or impair

7 the authority of the Secretary to maintain navigation.

8 ‘‘(l) STATE REGULATION OF WETLANDS AND WA9 TERS.—

10 ‘‘(1) APPLICATION FOR STATE REGULATION.—

11 The Governor of a State desiring to administer an

12 individual and general permit program for an activ13 ity in wetlands or waters of the United States within

14 the jurisdiction of the State shall submit to the Sec15 retary—

16 ‘‘(A) a description of the program pro17 posed to be established and administered under

18 State law; and

19 ‘‘(B) a statement from the chief legal offi20 cer of the State that the State law provides

21 adequate authority to carry out the described

22 program.

23 ‘‘(2) DETERMINATION BY SECRETARY.—Not

24 later than 1 year after the date of receipt by the

25 Secretary of a program description and statement
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1 under paragraph (1), the Secretary shall determine

2 whether the State has the authority to—

3 ‘‘(A) issue permits that—

4 ‘‘(i) apply, and ensure compliance

5 with, each applicable requirement of this

6 section; and

7 ‘‘(ii) can be terminated or modified

8 for cause, including—

9 ‘‘(I) a violation of any condition

10 or limitation in the permit;

11 ‘‘(II) evidence that the permit

12 was obtained by misrepresentation or

13 failure to disclose fully all relevant

14 facts; or

15 ‘‘(III) a change in any condition

16 that requires either a temporary or

17 permanent reduction or elimination of

18 the permitted activity;

19 ‘‘(B)(i) issue permits that apply, and en20 sure compliance with, all applicable require21 ments of section 308; or

22 ‘‘(ii) inspect, monitor, enter, and require

23 reports to at least the same extent as required

24 under section 308;
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1 ‘‘(C) ensure that the public, and any other

2 State in which the wetlands or waters of the

3 United States may be affected by the issuance

4 of a permit under this subsection, receive notice

5 of each application for a permit under this sub6 section and provide an opportunity for a public

7 hearing before a ruling on the application;

8 ‘‘(D) ensure that the Secretary receives no9 tice of each application for a permit under this

10 subsection and, prior to any action by the

11 State, ensure that both the applicant for the

12 permit and the State receive from the Secretary

13 information with respect to any advance classi14 fication under subsection (h) applicable to wet15 lands or waters of the United States that are

16 the subject of the application;

17 ‘‘(E) ensure that each State (other than

18 the State seeking to issue permits under this

19 subsection) in which the wetlands or waters of

20 the United States may be affected by the issu21 ance of a permit under this subsection may sub22 mit a written recommendation to the permitting

23 State with respect to any permit application

24 and, if any part of the written recommendation

25 is not accepted by the permitting State, ensure
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1 that the permitting State will notify the af2 fected State (and the Secretary) in writing of

3 the failure by the permitting State to accept the

4 recommendation together with the reason for

5 the failure by the permitting State to accept the

6 recommendation of the affected State; and

7 ‘‘(F) abate a violation of the permit or the

8 permit program, through a civil or criminal

9 penalty or other means of enforcement.

10 ‘‘(3) APPROVAL OR MODIFICATION OF PRO11 GRAM.—

12 ‘‘(A) APPROVAL OF PROGRAM.—If, with

13 respect to a proposed State program for which

14 a description and statement were submitted

15 under paragraph (1), the Secretary determines

16 that the State has the authority set forth in

17 paragraph (2), the Secretary shall approve the

18 program, notify the State, and suspend the is19 suance of permits under subsection (b) for each

20 activity with respect to which a permit may be

21 issued pursuant to the State program.

22 ‘‘(B) MODIFICATION OF PROGRAM.—If,

23 with respect to a proposed State program for

24 which a description and statement were submit25 ted under paragraph (1), the Secretary deter-
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1 mines that the State does not have the author2 ity set forth in paragraph (2), the Secretary

3 shall notify the State and provide a description

4 of any revision or modification necessary so

5 that the State may resubmit the program for

6 another determination by the Secretary under

7 this subsection.

8 ‘‘(4) FAILURE OF SECRETARY TO MAKE DETER9 MINATION.—If, with respect to a proposed State

10 program for which a description and statement were

11 submitted under paragraph (1), the Secretary fails

12 to make a determination within 1 year after the date

13 of receipt of the description and statement, the pro14 posed program shall be deemed to be approved pur15 suant to paragraph (3)(A) on the day that is 1 year

16 after that date, the Secretary shall notify the State

17 of the approval, and the Secretary shall suspend the

18 issuance of permits under subsection (b) for each ac19 tivity with respect to which a permit may be issued

20 pursuant to the State program.

21 ‘‘(5) TRANSFER OF APPLICATIONS.—After ap22 proval of a State permit program under this sub23 section, the Secretary shall transfer to the State for

24 appropriate action any application for a permit

25 pending before the Secretary for an activity with re-
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1 spect to which a permit may be issued pursuant to

2 the State program.

3 ‘‘(6) SUSPENSION OF ENFORCEMENT.—If the

4 Secretary is notified that a State with a permit pro5 gram approved under this subsection intends to ad6 minister and enforce the terms and conditions of a

7 general permit issued by the Secretary under sub8 section (e)(6), the Secretary shall, with respect to

9 each activity in the State to which the general per10 mit applies, suspend the administration and enforce11 ment of the general permit.

12 ‘‘(7) CORRECTIVE ACTION.—If the Secretary

13 determines after a public hearing that a State ad14 ministering a program approved under this sub15 section is not administering the program in accord16 ance with this section, the Secretary shall notify the

17 State and, if appropriate corrective action is not

18 taken within a reasonable time (not to exceed 90

19 days after the date of the receipt of the notification),

20 the Secretary shall—

21 ‘‘(A) withdraw approval of the program

22 until the Secretary determines appropriate cor23 rective action has been taken; and

24 ‘‘(B) resume the program for the issuance

25 of permits under subsections (b) and (e)(6) for
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1 all activities with respect to which the State

2 was issuing permits, until such time as the Sec3 retary makes the determination described in

4 paragraph (2) and approves the State program

5 again.

6 ‘‘(8) REGULATION BY AN INTERSTATE AGEN7 CY.—For purposes of this subsection:

8 ‘‘(A) GOVERNOR.—The term ‘Governor’ in9 cludes the head of an interstate agency.

10 ‘‘(B) STATE.—The term ‘State’ includes

11 an interstate agency.

12 ‘‘(C) STATE LAW.—The term ‘State law’

13 includes an interstate compact.

14 ‘‘(m) COPIES AVAILABLE TO PUBLIC.—A copy of

15 each permit application submitted, and each permit is16 sued, under this section shall be available to the public.

17 Each permit application or portion of a permit application

18 shall also be available on request for the purpose of repro19 duction.

20 ‘‘(n) COMPLIANCE WITH PERMIT SATISFIES RE21 QUIREMENTS.—Compliance with a permit issued pursuant

22 to this section, including carrying out an activity pursuant

23 to a general permit issued under this section, shall be

24 deemed, for purposes of sections 309 and 505, to be com25 pliance with sections 301, 307, and 403.
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1 ‘‘(o) EFFECTIVE DATE FOR PERMIT PROVISIONS.—

2 After the 90th day after the date of enactment of the

3 Comprehensive Wetlands Conservation and Management

4 Act of 1995, no permit for an activity in wetlands or wa5 ters of the United States may be issued except in accord6 ance with this section. Any permit for an activity in wet7 lands or waters of the United States issued prior to the

8 90th day shall be deemed to be a permit under this section

9 and shall continue in force and effect for the term of the

10 permit unless revoked, modified, or suspended in accord11 ance with this section. An application for a permit pending

12 under this section on the 90th day shall be deemed to be

13 an application for a permit under this section.

14 ‘‘(p) LIMIT ON FEES.—Any fee charged in connection

15 with—

16 ‘‘(1) the delineation or classification of wet17 lands;

18 ‘‘(2) an application for a permit authorizing an

19 activity in wetlands or waters of the United States;

20 or

21 ‘‘(3) any other action taken in compliance with

22 the requirements of this section (other than a pen23 alty for a violation under subsection (j));

24 shall not exceed the amount of the fee in effect on January

25 1, 1990.’’.
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1 SEC. 4. DEFINITIONS.

2 Section 502 of the Federal Water Pollution Control

3 Act (33 U.S.C. 1362) is amended by adding at the end

4 the following new paragraph:

5 ‘‘(21) WETLANDS.—The term ‘wetlands’ means

6 lands, such as swamps, marshes, bogs, and similar

7 areas, that have a predominance of hydric soils and

8 that are inundated by surface water at a frequency

9 and duration sufficient to support, and that under

10 normal circumstances support, a prevalence of vege11 tation typically adapted for life in saturated soil con12 ditions.’’.

13 SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.

14 (a) Section 119(c)(2)(E) of the Federal Water Pollu15 tion Control Act (33 U.S.C. 1269(c)(2)(E)) is amended

16 by striking ‘‘wetland’’ and inserting ‘‘wetlands’’.

17 (b) Section 208(b)(4)(B)(iii) of the Act (33 U.S.C.

18 1288(b)(4)(B)(iii)) is amended by striking ‘‘the guidelines

19 established under section 404(b)(1), and’’ and inserting

20 ‘‘section 404, and with the guidelines established under’’.

21 (c) Section 309 of the Act (33 U.S.C. 1319) is

22 amended—

23 (1) in subsection (a)—

24 (A) in the first sentence of paragraph (1),

25 by striking ‘‘or 404’’; and
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1 (B) in paragraph (3), by striking ‘‘or in a

2 permit issued under section 404 of this Act by

3 a State’’;

4 (2) in the first sentence of subsection (d), by

5 striking ‘‘or in a permit issued under section 404 of

6 this Act by a State,,’’; and

7 (3) in subsection (g)—

8 (A) by striking paragraph (1) and insert9 ing the following new paragraph:

10 ‘‘(1) VIOLATIONS.—If the Administrator finds,

11 on the basis of any information available, that a per12 son has violated section 301, 302, 306, 307, 308,

13 318, or 405, or has violated any permit condition or

14 limitation implementing any of the sections in a per15 mit issued under section 402 by the Administrator

16 or by a State, the Administrator may, after con17 sultation with the State in which the violation oc18 curred, assess a class I civil penalty or a class II

19 civil penalty under this subsection.’’;

20 (B) in the third sentence of paragraph

21 (2)(B), by striking ‘‘and the Secretary’’;

22 (C) in paragraph (6)(A)(iii), by striking ‘‘,

23 the Secretary,’’;
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1 (D) by striking ‘‘or Secretary, as the case

2 may be,’’ and ‘‘or the Secretary, as the case

3 may be,’’ each place they appear; and

4 (E) by striking ‘‘or Secretary’’, ‘‘or the

5 Secretary’’, and ‘‘or Secretary’s’’ each place

6 they appear.

7 SEC. 6. EFFECTIVE DATE.

8 The amendments made by this Act shall become ef9 fective 90 days after the date of enactment of this Act.

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