II

104TH CONGRESS

1ST SESSION S. 49

To amend the Federal Water Pollution Control Act to modify the wetlands

regulatory program corresponding to the low wetlands loss rate in Alaska

and the significant wetlands conservation in Alaska, to protect Alaskan

property owners, and to ease the burden on overly regulated Alaskan

cities, boroughs, municipalities, and villages.

IN THE SENATE OF THE UNITED STATES

JANUARY 4, 1995

Mr. STEVENS (for himself and Mr. MURKOWSKI) introduced the following bill;

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

Public Works

A BILL

To amend the Federal Water Pollution Control Act to modify

the wetlands regulatory program corresponding to the

low wetlands loss rate in Alaska and the significant

wetlands conservation in Alaska, to protect Alaskan property owners, and to ease the burden on overly regulated

Alaskan cities, boroughs, municipalities, and villages.

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 ‘‘Alaska Wetlands Con5 servation Credit Procedures Act of 1994’’.
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1 SEC. 2. FINDINGS.

2 The Congress finds that—

3 (1) according to the United States Fish and

4 Wildlife Service, approximately 170,200,000 acres of

5 wetlands existed in Alaska in the 1780s and approxi6 mately 170,000,000 acres of wetlands exist now,

7 representing a loss rate of less than one-tenth of 1

8 percent through human and natural processes;

9 (2) according to the United States Fish and

10 Wildlife Service more than 221 million acres of wet11 lands existed at the time of Colonial America in the

12 area that is now the contiguous United States and

13 117 million of those acres, roughly 53 percent, have

14 been filled, drained, or otherwise removed from wet15 land status;

16 (3) Alaska contains more wetlands than any

17 other State, and more wetlands than all other States

18 combined;

19 (4) 88 percent of Alaska’s wetlands are publicly

20 owned, whereas only 26 percent of the wetlands in

21 the contiguous 48 States are in public ownership;

22 (5) approximately 98 percent of all Alaskan

23 communities, including 200 of 209 remote villages in

24 Alaska, are located in or adjacent to wetlands;

25 (6) approximately 62 percent of all federally

26 designated wilderness lands, 70 percent of all Fed-
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1 eral park lands, and 90 percent of all Federal refuge

2 lands are located in Alaska, thus providing protec3 tion to approximately 60 million acres of wetlands;

4 (7) more than 60 million acres of wetlands are

5 conserved in some form by land designations that re6 strict utilization or degradation of wetlands;

7 (8) 104 million acres of land were granted to

8 the State of Alaska at statehood for purposes of eco9 nomic development;

10 (9) approximately 43 million acres of land were

11 granted to Native Alaskans through regional and vil12 lage corporations and native allotments for their use

13 and between 45 percent and 100 percent of each

14 Native corporations’ land is categorized as wetlands;

15 (10) development of basic community infra16 structure in Alaska, where approximately 75 percent

17 of the non-mountainous areas are wetlands, is often

18 delayed and sometimes prevented by the wetlands

19 regulatory program for minimal identifiable environ20 mental benefit;

21 (11) the 1899 Rivers and Harbors Act formerly

22 regulated disposition of dredge spoils in navigable

23 waters, which did not include wetlands, to keep navi24 gable waters free of impairments;
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1 (12) the 1972 Clean Water Act formed the

2 basis for a broad expansion of Federal jurisdiction

3 over wetlands by modifying the definition of ‘‘navi4 gable waters’’ to include all ‘‘waters of the United

5 States’’;

6 (13) in 1975, a United States district court or7 dered the Corps to publish revised regulations con8 cerning the scope of the section 404 program, regu9 lations that expanded the scope of the program to

10 include the discharge of dredged and fill material

11 into wetlands;

12 (14) the wetlands regulatory program was ex13 panded yet again by regulatory action to include iso14 lated wetlands, those that are not adjacent to navi15 gable waters, and such an expansion formed the

16 basis for burdensome intrusions on the property

17 rights of Alaskans, Alaskan Native Corporations, the

18 State of Alaska, and property owners in Alaska;

19 (15) expansion of the wetlands regulatory pro20 gram in this manner is beyond what the Congress

21 intended when it passed the Clean Water Act and

22 the expansion has placed increasing and unnecessary

23 economic and administrative burdens on private

24 property owners, small businesses, city governments,

25 State governments, farmers, ranchers, and others
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1 for negligible environmental benefit associated with

2 wetland permits;

3 (16) for Alaska, a State with substantial con4 served wetlands and less than 1 percent private,

5 non-corporate land ownership, the burdens of the

6 current wetlands regulatory program unnecessarily

7 inhibit reasonable community growth and environ8 mentally benign, sensitive resource development;

9 (17) Alaska villages, municipalities, boroughs,

10 city governments, and Native organizations are expe11 riencing increasing frustration with the constraints

12 of the wetlands regulatory program because it inter13 feres with the location of community centers, air14 ports, sanitation systems, roads, schools, industrial

15 areas, and other critical community infrastructure;

16 (18) policies that purport to achieve ‘‘no net

17 loss’’ of wetlands reflect a Federal response to the

18 53 percent loss of the wetlands base in the south 48,

19 a calculation that excludes Alaska wetlands;

20 (19) total wetlands loss in Alaska is less than

21 one-tenth of 1 percent of the total wetlands acreage

22 in Alaska;

23 (20) individual landowners in Alaska have expe24 rienced devaluations of up to 97 percent of their

25 property value due to wetlands regulations and the
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1 tax base of many communities has diminished by

2 those regulations.

3 SEC. 3. AMENDMENT TO THE FEDERAL WATER POLLUTION

4 CONTROL ACT.

5 The Federal Water Pollution Control Act (33 U.S.C.

6 1251 et seq.) is amended—

7 (a) in section 101(a) (33 U.S.C. 1251(a)) by—

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

9 (6);

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

12 and

13 (3) adding the following new paragraphs:

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

15 ‘‘(A) achieve a balance between wetlands

16 conservation and adverse economic impacts on

17 local, regional, and private economic interests

18 and

19 ‘‘(B) to eliminate the regulatory taking of

20 private property by the regulatory program au21 thorized under section 404;

22 ‘‘(9) it is the national policy to encourage local23 ized wetlands planning, without mandating it and by

24 providing funds to encourage it, and such planning

25 shall allow local political subdivisions and local gov-
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1 ernments to apply differential standards for the issu2 ance of wetlands permits based on factors that in3 clude the relative amount of conserved wetlands

4 habitat and the wetlands loss rate in the State in

5 which such political subdivision or local government

6 is located; and

7 ‘‘(10) it is the national policy that compen8 satory mitigation on wetlands or potential wetlands

9 located outside the boundaries of a State shall not

10 be required, requested, or otherwise utilized to offset

11 impacts to wetlands inside that State.’’;

12 (b) in section 404(b) (33 U.S.C. 1344(b)) by

13 inserting immediately after ‘‘anchorage’’ the follow14 ing—

15 ‘‘: Provided, however, That the guidelines adopt16 ed pursuant to clause (1) for a State with substan17 tial conserved wetlands areas—

18 ‘‘(A) shall not include requirements or stand19 ards for mitigation to compensate for wetlands loss

20 and adverse impacts to wetlands;

21 ‘‘(B) may include requirements or standards for

22 minimization of adverse impacts to wetlands; and

23 ‘‘(C) may include standards or requirements for

24 avoidance of impacts only if the permit applicant is
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1 not required to establish that upland alternative

2 sites do not exist.’’;

3 (c) in section 404(e) (33 U.S.C. 1344(e)) by in4 serting at the end the following new paragraph—

5 ‘‘(3) Notwithstanding the requirements of para6 graphs (1) and (2), at the request of a State with

7 substantial conserved wetlands areas, the Secretary

8 shall issue general permits for such States and the

9 requirements under which such general permits are

10 issued shall contain a regulatory standard for dis11 charge of dredged or fill material into navigable wa12 ters in such State, including wetlands, that is no

13 greater than the standard under subsection (b).’’;

14 (d) in section 404(f)(1) (33 U.S.C. 1344(f)(1))

15 by—

16 (1) striking the comma at the end of sub17 paragraph (F) and inserting in lieu thereof a

18 semicolon; and

19 (2) adding the following new subpara20 graphs—

21 ‘‘(G) associated with airport safety (ground

22 and air) in a State with substantial conserved

23 wetlands areas, and in any case associated with

24 airport safety (ground and air) when the Sec25 retary of Transportation determines that it is
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1 advisable for public safety reasons and deems it

2 necessary;

3 ‘‘(H) for construction and maintenance of

4 log transfer facilities associated with log trans5 portation activities;

6 ‘‘(I) for construction of tailings impound7 ments utilized for treatment facilities (as deter8 mined by the development document) for the

9 mining subcategory for which the tailings im10 poundment is constructed;

11 ‘‘(J) for construction of ice pads and ice

12 roads and for purposes of snow storage and re13 moval,’’; and

14 (e) by adding at the end of section 404 (33

15 U.S.C. 1344) the following new subsections—

16 ‘‘(s) DEFINITIONS.—For purposes of this section the

17 term—

18 ‘‘(1) ‘conserved wetlands’ means wetlands that

19 are located in the National Park System, National

20 Wildlife Refuge System, National Wilderness Sys21 tem, the Wild and Scenic River System, and other

22 similar Federal conservation systems, combined with

23 wetlands located in comparable types of conservation

24 systems established under State and local authority

25 within State and local land use systems.
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1 ‘‘(2) ‘economic base lands’ means lands con2 veyed to, selected by, or owned by Alaska Native en3 tities pursuant to the Alaska Native Claims Settle4 ment Act, Public Law 92–203, as amended, or the

5 Alaska Native Allotment Act of 1906 (34 Stat. 197),

6 and lands conveyed to, selected by, or owned by the

7 State of Alaska pursuant to the Alaska Statehood

8 Act, Public Law 85–508, as amended.

9 ‘‘(3) ‘State with substantial conserved wetlands

10 areas’ means any State which—

11 ‘‘(A) contains at least 15 areas of wetlands

12 for each acre of wetlands filled, drained, or oth13 erwise converted within such State (based upon

14 wetlands loss statistics reported in the 1990

15 United States Fish and Wildlife Service Wet16 lands Trends report to Congress entitled ‘Wet17 lands Losses in the United States 1780’s to

18 1980’s’); or

19 ‘‘(B) the Secretary of the Army determines

20 has sufficient conserved wetlands areas to pro21 vided adequate wetlands conservation in such

22 State, based on the policies set forth in this

23 Act.

24 ‘‘(t) ALASKA NATIVE AND STATE OF ALASKA

25 LANDS.—
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1 ‘‘(1) IN GENERAL.—The Secretary shall issue

2 individual and general permits pursuant to the

3 standards and requirements of subsections (a) and

4 (b) for a State with substantial conserved wetlands

5 areas.

6 ‘‘(2) PERMIT CONSIDERATIONS.—For permits

7 issued pursuant to this section for economic base

8 lands, in addition to the requirements in subsections

9 (a) and (b), the Secretary shall—

10 ‘‘(A) balance the standards and policies of

11 this Act against the obligations of the United

12 States to allow economic base lands to be bene13 ficially used to create and sustain economic ac14 tivity;

15 ‘‘(B) with respect to Alaska Native lands,

16 give substantial weight to the social and eco17 nomic needs of Alaska Natives; and

18 ‘‘(C) account for regional differences in the

19 abundance and value of wetlands.

20 ‘‘(3) GENERAL PERMITS.—For permits issued

21 under this section on lands owned by Alaska villages,

22 the Secretary shall issue general permits for disposi23 tion of dredged and fill material for critical infra24 structure including water and sewer systems, air25 ports, roads, communication sites, fuel storage sites,
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1 landfills, housing, hospitals, medical clinics, schools,

2 and other community infrastructure in rural Alaska

3 villages without a determination that activities au4 thorized by such a general permit cause only mini5 mal adverse environmental effects when performed

6 separately and will have only minimal cumulative ad7 verse effects on the environment.

8 ‘‘(4) OTHER CONSIDERATIONS.—The Secretary

9 shall consult with and provide assistance to Alaska

10 Natives (including Alaska Native Corporations) and

11 the State of Alaska regarding promulgation and ad12 ministration of policies and regulations under this

13 section.’’.

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