I

103D CONGRESS

1ST SESSION H. R. 1330

To amend the Federal Water Pollution Control Act to establish a comprehensive program for conserving and managing wetlands in the United States,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 11, 1993

Mr. HAYES (for himself, Mr. RIDGE, Mr. TAUZIN, Mr. YOUNG of Alaska, Mr.

BREWSTER, Mr. SHUSTER, Mr. BROOKS, Mr. FIELDS of Texas, Mr.

NATCHER, Mr. CLINGER, Mr. MONTGOMERY, Mr. EMERSON, Mr. THOMAS of California, Mr. LAUGHLIN, Mr. INHOFE, Mr. PAXON, Mr. LAFALCE, Mr. CUNNINGHAM, Mr. VOLKMER, Mrs. VUCANOVICH, Mr.

GRANDY, Mr. WILSON, Mr. PICKETT, Mr. BAKER of Louisiana, Mr.

DELAY, Mr. ROTH, Mr. PARKER, Mr. CLEMENT, Mr. HEFNER, Mr.

POMBO, Mr. PACKARD, Mr. MURPHY, Mr. SARPALIUS, Mr. THOMAS of

Wyoming, Mr. SMITH of Oregon, Mr. EWING, Mr. HANSEN, Mr. BLILEY,

Mr. PETE GEREN of Texas, Mr. CRAPO, Mr. CONDIT, Mr. LIVINGSTON,

Mr. BATEMAN, Ms. LAMBERT, Mr. LIGHTFOOT, Mr. MCCRERY, Mr.

POSHARD, Mr. WALKER, Mr. SOLOMON, Mr. LANCASTER, Mr. STENHOLM, Mr. SKELTON, and Mr. ORTON) introduced the following bill;

which was referred jointly to the Committees on Public Works and Transportation and Merchant Marine and Fisheries

MARCH 3, 1994

Additional sponsors: Mr. SUNDQUIST, Mr. HERGER, Mr. EDWARDS of Texas,

Mr. GOODLING, Mr. HANCOCK, Mr. MCHUGH, Mr. BURTON of Indiana,

Mr. NUSSLE, Mr. SAM JOHNSON of Texas, Mr. MCDADE, Mr. GILLMOR,

Mr. DORNAN, Mr. HASTERT, Mr. BOEHNER, Mr. STUMP, Mr. BARRETT

of Nebraska, Mr. TAYLOR of North Carolina, Mr. LEWIS of California,

Mr. GALLEGLY, Mr. BARTON of Texas, Mr. COSTELLO, Mr. COMBEST,

Mr. BONILLA, Mr. MYERS of Indiana, Mr. ROBERTS, Mr. HUTCHINSON,

Mr. SMITH of Texas, Mr. GEKAS, Mr. HOUGHTON, Mr. SISISKY, Mr.

MICHEL, Mr. KYL, Mr. COBLE, Mr. BUYER, Mr. DUNCAN, Mr. ROWLAND, Mr. DOOLEY, Mr. BUNNING, Mr. QUILLEN, Mr. TALENT, Mr.

COLLINS of Georgia, Mr. LINDER, Mr. CRANE, Mr. HOBSON, Mrs. BENTLEY, Mr. ARMEY, Mr. MCCOLLUM, Mr. DOOLITTLE, Mr. MCINNIS, Mr.

BISHOP, Mr. OXLEY, Mr. CALLAHAN, Mr. BARTLETT of Maryland, Mr.

HILLIARD, Mr. HYDE, Mr. CALVERT, Mrs. FOWLER, Mr. ALLARD, Mr.

HALL of Texas, Mr. GINGRICH, Mr. SCHAEFER, Mr. SPENCE, Mr.
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SKEEN, Mr. HUNTER, Mr. BALLENGER, Ms. DUNN, Mr. ORTIZ, Mr.

MCCANDLESS, Mr. KIM, Mr. MCKEON, Mr. HORN, Mr. BARCIA of Michigan, Mr. ROGERS, Mr. MOORHEAD, Mr. DREIER, Mr. WALSH, Mr.

ROYCE, and Mr. COX

A BILL

To amend the Federal Water Pollution Control Act to establish a comprehensive program for conserving and managing wetlands in 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 1993’’.

6 SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

7 (a) FINDINGS.—The Congress finds that—

8 (1) wetlands play an integral role in maintain9 ing the quality of life through material contributions

10 to our national economy, food supply, water supply

11 and quality, flood control, and fish, wildlife, and

12 plant resources, and thus to the health, safety,

13 recreation and economic well-being of citizens

14 throughout the Nation;

15 (2) wetlands serve important ecological and nat16 ural resource functions, such as providing essential

17 nesting and feeding habitat for waterfowl, other
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1 wildlife, and many rare and endangered species, fish2 eries habitat, the enhancement of water quality, and

3 natural flood control;

4 (3) much of the Nation’s resource has sustained

5 significant degradation, resulting in the need for ef6 fective programs to limit the loss of ecologically sig7 nificant wetlands and to provide for long-term res8 toration and enhancement of the wetlands resource

9 base;

10 (4) most of the loss of wetlands in coastal Lou11 isiana is not attributable to human activity;

12 (5) because 75 per centum of the Nation’s wet13 lands in the lower forty-eight States are privately

14 owned and because the majority of the Nation’s pop15 ulation lives in or near wetlands areas, an effective

16 wetlands conservation and management program

17 must reflect a balanced approach that conserves and

18 enhances important wetlands values and functions

19 while observing private property rights, recognizing

20 the need for essential public infrastructure, such as

21 highways, ports, airports, sewer system, and public

22 water supply systems and providing the opportunity

23 for sustained economic growth;

24 (6) while wetlands provide many varied eco25 nomic and environmental benefits, they also present
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1 health risks in some instances where they act as

2 breeder grounds for insects that are carriers of

3 human and animal diseases; and

4 (7) the Federal permit program established

5 under section 404 of the Federal Water Pollution

6 Control Act was not originally conceived as a wet7 lands regulatory program and is insufficient to en8 sure that the Nation’s wetlands resource base will be

9 conserved and managed in a fair and environ10 mentally sound manner.

11 (b) PURPOSE.—The purpose of this Act is to estab12 lish a new Federal wetlands regulatory program to—

13 (1) assert Federal regulatory jurisdiction over a

14 broad category of specifically identified activities

15 that result in the degradation or loss of wetlands;

16 (2) account for variations in wetlands values or

17 functions in determining the character and extent of

18 regulation of activities occurring in wetlands areas;

19 (3) provide sufficient regulatory incentives for

20 conservation, restoration, or enhancement activities;

21 (4) encourage conservation of resources on an

22 ecosystem basis to the fullest extent practicable; and

23 (5) balance public and private interests in de24 termining the conditions under which activity in wet25 lands areas may occur.
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1 SEC. 3. WETLANDS CONSERVATION AND MANAGEMENT.

2 Title IV of the Federal Water Pollution Control Act

3 (33 U.S.C. 1341 et seq.) is amended by striking section

4 404 and inserting in lieu thereof the following new section:

5 ‘‘SEC 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WA6 TERS OF THE UNITED STATES.

7 ‘‘(a) PROHIBITED ACTIVITIES.—(1) No person shall

8 undertake an activity in wetlands or waters of the United

9 States as described in paragraph (2) of this subsection un10 less such activity is undertaken pursuant to a permit is11 sued by the Secretary or is otherwise authorized under

12 this section.

13 ‘‘(2) For purposes of this section an ‘activity in wet14 lands or waters of the United States’ means—

15 ‘‘(A) the discharge of dredged or fill material

16 into waters of the United States, including wetlands

17 at a specific disposal site; or

18 ‘‘(B) the draining, channelization, or excavation

19 of wetlands.

20 ‘‘(3) For purposes of this section—

21 ‘‘(A) ‘wetlands’ means those lands that meet

22 the criteria for delineation of lands as wetlands set

23 forth in paragraph (2) of subsection (g);

24 ‘‘(B) ‘Secretary’ means the Secretary of the

25 Army; and
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1 ‘‘(C) ‘Director’ means the Director of the Unit2 ed States Fish and Wildlife Service.

3 ‘‘(b) AUTHORIZED ACTIVITIES.—(1) The Secretary is

4 authorized to issue permits authorizing activities described

5 in subsection (a)(2) of this section in accordance with the

6 requirements of this section.

7 ‘‘(2) Activities described in paragraph (2) of sub8 section (a) may be undertaken without a permit from the

9 Secretary if those activities are authorized under sub10 sections (e)(5) or (6) or are exempt from the requirements

11 of this section under subsection (f) or other provisions of

12 this section.

13 ‘‘(c) WETLANDS CLASSIFICATION.—(1) Any person

14 seeking to undertake activities in wetlands for which a per15 mit is required under subsection (b) shall make application

16 to the Secretary identifying the site of such activity and

17 requesting that the Secretary determine, in accordance

18 with paragraph (3) of this subsection, the classification

19 of the wetlands in which such activity is proposed to occur.

20 The applicant may also provide such additional informa21 tion regarding such proposed activity as may be necessary

22 or appropriate for purposes of determining the classifica23 tion of such wetlands or whether and under what condi24 tions the proposed activity may be permitted to occur.
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1 ‘‘(2)(A) Except as provided in subparagraph (B) of

2 this paragraph, within ninety days following the receipt

3 of an application under paragraph (1), the Secretary shall

4 provide notice to the applicant of the classification of the

5 wetlands that are the subject of such application and shall

6 state in writing the basis for such classification. The clas7 sification of the wetlands that are the subject of the appli8 cation shall be determined by the Secretary in accordance

9 with the requirements for classification of wetlands

10 under paragraphs (3) and (5).

11 ‘‘(B) In the case of an application proposing activities

12 located in wetlands that are the subject of an advance clas13 sification under subsection (h), the Secretary shall provide

14 notice to the applicant of such classification within thirty

15 days following the receipt of such application, and shall

16 provide an opportunity for review of such classification

17 under paragraphs (4) and (5) of this subsection.

18 ‘‘(3) Upon application under this subsection, the Sec19 retary shall—

20 ‘‘(A) classify as type A wetlands those wetlands

21 that are of critical significance to the long-term con22 servation of the ecosystem of which such wetlands

23 are a part and which meet the following require24 ments—
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1 ‘‘(i) such wetlands serve critical wetlands

2 functions, including the provision of critical

3 habitat for a concentration of avian, aquatic, or

4 wetland dependent wildlife;

5 ‘‘(ii) such wetlands consist of or may be a

6 portion of ten or more contiguous acres and

7 have an inlet or outlet for relief of water flow;

8 except that this requirement shall not operate

9 to preclude the classification as type A wetlands

10 lands containing prairie pothole features, playa

11 lakes, or vernal pools if such lands otherwise

12 meet the requirements for type A classification

13 under this paragraph;

14 ‘‘(iii) there exists a scarcity within the wa15 tershed or aquatic ecosystem of identified eco16 logical functions served by such wetlands such

17 that the use of such wetlands for activities de18 scribed in subsection (a) would seriously jeop19 ardize the availability of these identified wet20 lands functions;

21 ‘‘(iv) there is no overriding public interest

22 in the use of such wetlands for purposes other

23 than conservation; and

24 ‘‘(v) the nature and scope of wetlands

25 functions are such that minimization and com-
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1 pensation are not feasible means for conserving

2 wetlands values and functions;

3 ‘‘(B) classify as type B wetlands those wetlands

4 that provide habitat for a significant population of

5 avian, aquatic or wetland dependent wildlife, or pro6 vide other significant wetlands functions including

7 significant enhancement or protection of water qual8 ity, or significant natural flood control; and

9 ‘‘(C) classify as type C wetlands all wetlands

10 that:

11 ‘‘(i) serve limited wetlands functions;

12 ‘‘(ii) serve marginal wetlands functions but

13 which exist in such abundance that regulation

14 of activities in such wetlands is not necessary

15 for conserving important wetlands values and

16 functions;

17 ‘‘(iii) are prior converted cropland;

18 ‘‘(iv) are fastlands; or,

19 ‘‘(v) are wetlands within industrial com20 plexes or other intensely developed areas that

21 do not serve significant wetlands functions as a

22 result of such location.

23 ‘‘(4)(A) Within thirty days of receipt of notice of an

24 advance classification by the Secretary under paragraph

25 (2)(B) of this subsection, an applicant may request the
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1 Secretary to make a de novo determination of the classi2 fication of wetlands that are the subject of such notice.

3 Such de novo determination shall be made by the Sec4 retary in consultation with the Director. The Secretary

5 may sustain an advance classification made by the Direc6 tor or may modify such classification if the Secretary de7 termines, upon examination of all relevant information

8 submitted by the applicant or otherwise available to the

9 Secretary (including, if appropriate, an on-the-ground-ex10 amination), that—

11 ‘‘(i) the lands involved do not meet the stand12 ards and criteria for delineating wetlands set forth

13 in paragraph (2) of subsection (g);

14 ‘‘(ii) the weight of relevant information does not

15 support the determination of the advance classifica16 tion with respect to the specific wetlands involved;

17 ‘‘(iii) the factual basis for such advance classi18 fication is no longer valid; except that such change

19 in factual circumstances has not been caused by ac20 tivities undertaken without authorization by the Sec21 retary as may have been required under this section;

22 or

23 ‘‘(iv) the limitations on uses of the specific wet24 lands involved that would be imposed by the Sec25 retary under the requirements of this section would
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1 effectively preclude reasonable economic use of the

2 wetlands.

3 ‘‘(5) In the event that the Secretary delegates author4 ity to determine the classification of wetlands under para5 graphs (3) and (4), the Secretary shall, by rule, provide

6 for a right of appeal to the Secretary or his designee of

7 the classification of wetlands under paragraph (3) or the

8 de novo determination of a classification under paragraph

9 (4).

10 ‘‘(d) COMPENSATION FOR LANDOWNERS.—(1) Any

11 person (including a State or political subdivision thereof)

12 who owns an interest in lands that have been classified

13 as type A wetlands by the Secretary under subsection (c)

14 or by the Director under subsection (h) may, within two

15 years of receipt of actual notice of such classification (or

16 within two years following a de novo determination of such

17 classification), notify the Secretary and the Director that

18 such person is electing to seek compensation for the fair

19 market value of such interests in lands at the time of such

20 classification, in accordance with the requirements of this

21 section. Fair market value may include reasonable attor22 neys fees and shall be calculated without regard to any

23 diminution in value resulting from the applicability of this

24 section.
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1 ‘‘(2) Immediately upon receipt by the Secretary and

2 the Director of notification of election to seek compensa3 tion under paragraph (1), the Director shall enter into

4 good faith negotiations with the owner for purposes of de5 termining the value of the interests in lands that have

6 been classified as type A wetlands. Within three months

7 after receipt of the notice of election by the landowner

8 under paragraph (1), the Director shall make an offer of

9 reasonable compensation to the owner.

10 ‘‘(3) Within six years of the date an offer for com11 pensation is made under paragraph (2), the owner shall,

12 in his discretion—

13 ‘‘(A) accept such offer of compensation;

14 ‘‘(B) file a claim for determination of value of

15 compensation with the United States Claims Court;

16 or

17 ‘‘(C) advise the Director and the Secretary that

18 he elects to retain title to such wetlands and elects

19 not to receive compensation for the taking of land

20 under this subsection.

21 Failure to provide notice in accordance with this para22 graph shall be deemed an election not to receive compensa23 tion under this subsection.

24 ‘‘(4) Upon acceptance of an offer for compensation

25 or the filing of a claim for compensation under paragraph
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1 (3), the classification as type A wetlands of the wetlands

2 that are the subject of such offer or claim shall be binding

3 upon the owner and any successor in interest, and the title

4 to such lands shall pass to the United States. The classi5 fication of such lands as type A wetlands under this para6 graph shall constitute a taking by the United States of

7 the owner’s interests in such lands and shall be compen8 sable under the provisions of this subsection.

9 ‘‘(5) A taking under this subsection shall be deemed

10 to be a taking of surface interests in lands only or water

11 rights allocated under State law; except that: (A) if the

12 Secretary determines that the exploration for or develop13 ment of oil and gas or mineral interests is not compatible

14 with conservation of the surface interests in lands that

15 have been classified as type A wetlands located above such

16 oil and gas or mineral interests (or located adjacent to

17 such oil and gas or mineral interests where such adjacent

18 lands are necessary to provide reasonable access to such

19 interests), the Secretary may classify such oil and gas or

20 mineral interests as type A wetlands and notify the owner

21 of such interests that the owner may elect to receive com22 pensation for such interests under paragraph (1), and (B)

23 the failure to provide reasonable access to oil and gas or

24 mineral interests located beneath or adjacent to surface
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1 interests of type A wetlands shall be deemed a taking of

2 such oil and gas or mineral interests.

3 ‘‘(6) The United States Claims Court shall have juris4 diction—

5 ‘‘(A) to determine the value of interests taken

6 and the fair compensation required under this sub7 section and the Constitution of the United States;

8 ‘‘(B) in case of oil and gas or mineral interests,

9 to require the United States to provide reasonable

10 access in, across, or through lands that may be the

11 subject of a taking under this subsection solely for

12 the purpose of undertaking activity necessary to de13 termine the value of the interests taken; and

14 ‘‘(C) to provide other equitable remedies

15 deemed appropriate.

16 ‘‘(7) Any judgment rendered under paragraph (6)

17 may be executed, at the election of the landowner, no later

18 than two years after the date such judgment is rendered.

19 The landowner may, prior to the execution of such judg20 ment, enter into an agreement with the United States for

21 satisfaction of such judgment through a crediting of tax

22 benefits, acquisition of interests in oil and gas or minerals,

23 an exchange of interests in lands with the United States

24 or other means of compensation.
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1 ‘‘(8)(A) The remedies for taking of interests in lands

2 under this subsection shall not be construed to preempt,

3 alter, or limit the availability of other remedies for the

4 taking of interests in lands under the Constitution of the

5 United States or State law, including the taking of rights

6 to the use of water allocated under State law or the taking

7 of interest in lands by denial of a permit under this sec8 tion.

9 ‘‘(B) Any award of compensation for the taking of

10 interest in lands by denial of a permit under this section

11 shall be based upon the fair market value of such interests

12 in lands at the time of such taking. Fair market value

13 may include reasonable attorneys fees and shall be cal14 culated without regard to any diminution in value result15 ing from the applicability of this section.

16 ‘‘(9) Interests in lands acquired by the United States

17 under this subsection shall be managed by the United

18 States Fish and Wildlife Service as a part of the National

19 Wildlife Refuge System unless otherwise provided by the

20 Director or by Act of Congress.

21 ‘‘(10) No action taken under this subsection shall be

22 construed to alter or supersede requirements governing

23 use of water applicable under State law.

24 ‘‘(e) REQUIREMENTS APPLICABLE TO PERMITTED

25 ACTIVITY.—(1) Following the determination of wetlands
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1 classification pursuant to subsection (c), and after compli2 ance with the requirements of subsection (d) if applicable,

3 the Secretary may issue or deny permits for authorization

4 to undertake activities in wetlands, in accordance with the

5 requirements of this subsection.

6 ‘‘(2) The Secretary shall deny a permit authorizing

7 activities in type A wetlands unless the Secretary deter8 mines that—

9 ‘‘(A) such an activity can be undertaken with

10 minimal alteration or surface disturbance;

11 ‘‘(B) there are overriding public interest con12 cerns that require use of the lands for purposes

13 other than conservation, including:

14 ‘‘(i) the likelihood that efforts to mitigate

15 adverse impacts through avoidance and mini16 mization will protect, enhance, or increase criti17 cal wetlands values and functions; or

18 ‘‘(ii) the lack of practical and feasible

19 means for accomplishing the project purpose at

20 an alternative location; or

21 ‘‘(C) the proposed use of the land, taking into

22 account all proposed mitigation, will result in overall

23 environmental benefits, including the prevention of

24 wetlands loss.
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1 Any permit issued authorizing activities in type A wet2 lands may contain such terms and conditions concerning

3 mitigation (including those applicable under paragraph (3)

4 for type B wetlands) that the Secretary deems appropriate

5 to prevent the unacceptable loss or degradation of type

6 A wetlands.

7 ‘‘(3)(A) The Secretary may issue a permit authoriz8 ing activities in type B wetlands subject to such terms and

9 conditions as the Secretary finds are necessary to ensure

10 that the watershed or aquatic ecosystem of which such

11 wetlands are a part does not suffer significant loss or deg12 radation of wetlands values and functions. In determining

13 whether or not specific terms and conditions are necessary

14 to avoid a significant loss of wetlands values and func15 tions, the Secretary shall consider the following:

16 ‘‘(i) the quality and quantity of ecologically sig17 nificant functions served by the areas to be affected;

18 ‘‘(ii) the opportunities to reduce impacts

19 through cost effective design to avoid or minimize

20 use of wetlands areas;

21 ‘‘(iii) the costs of mitigation requirements and

22 the social, recreational, and economic benefits associ23 ated with the proposed activity, including local, re24 gional, or national needs for improved or expanded

25 infrastructure;
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1 ‘‘(iv) the ability of the permittee to mitigate

2 wetlands loss or degradation as measured by wet3 lands functions;

4 ‘‘(v) the environmental benefit, measured by

5 wetlands functions, that may occur through mitiga6 tion efforts, including restoring, preserving, enhanc7 ing, or creating wetlands values and functions; and

8 ‘‘(vi) the marginal impact of the proposed activ9 ity on the watershed of which such wetlands are a

10 part.

11 ‘‘(B) In considering an application for activities on

12 type B wetlands, the Secretary may require alternative

13 site analyses for individual permit applications involving

14 the alteration or permanent surface disturbance of ten or

15 more contiguous acres of wetlands. There shall be a rebut16 table presumption that the project purpose as defined by

17 the applicant shall be binding upon the Secretary. The def18 inition of project purpose for projects sponsored by public

19 agencies shall be binding upon the Secretary, subject to

20 the authority of the Secretary to impose mitigation re21 quirements to minimize impacts on wetlands values and

22 functions, including cost effective redesign of projects to

23 avoid wetlands areas.

24 ‘‘(C) Except as otherwise provided in this section, re25 quirements for mitigation shall be imposed when the Sec-
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1 retary finds that activities undertaken under this section

2 will result in the loss or degradation of type B wetlands

3 functions and values where such loss or degradation is not

4 a temporary or incidental impact. When determining miti5 gation requirements in any specific case, the Secretary

6 shall take into consideration the type of wetlands affected,

7 the character of the impact on ecological functions, wheth8 er any adverse effects on wetlands are of a permanent or

9 temporary nature, and the cost effectiveness of such miti10 gation and shall seek to minimize the costs of such mitiga11 tion.

12 ‘‘(D) In accordance with subsection (i), the Secretary

13 shall issue rules governing requirements for mitigation for

14 activities occurring in type B wetlands that allow for—

15 ‘‘(i) minimization of impacts through project

16 design, including avoidance of specific wetlands im17 pacts where economically practicable and consistent

18 with the project’s purpose, provisions for compen19 satory mitigation, if any, and other terms and condi20 tions necessary and appropriate in the public inter21 est;

22 ‘‘(ii) preservation or donation of type A wet23 lands or type B wetlands (where title has not been

24 acquired by the United States and no compensation

25 for the taking of such wetlands has been provided)
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1 as mitigation for activities that alter or degrade wet2 lands;

3 ‘‘(iii) enhancement or restoration of degraded

4 wetlands as compensation for wetlands lost or de5 graded through permitted activity;

6 ‘‘(iv) compensation through contribution to a

7 mitigation banking program established for a State

8 pursuant to subparagraph (F);

9 ‘‘(v) offsite compensatory mitigation if such

10 mitigation contributes to the restoration, enhance11 ment or creation of significant wetlands values on a

12 watershed or ecosystem-wide basis and is balanced

13 with the affects that the proposed activity will have

14 on the specific site; except that offsite compensatory

15 mitigation, if any, shall be required only within the

16 State within which the proposed activity is to occur,

17 and shall, to the extent practicable, be within the

18 watershed within which the proposed activity is to

19 occur, unless otherwise consistent with a State wet20 lands management plan;

21 ‘‘(vi) contribution of in-kind value acceptable to

22 the Secretary and otherwise authorized by law;

23 ‘‘(vii) in areas subject to wetlands loss, the con24 struction of coastal protection and enhancement

25 projects;
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1 ‘‘(viii) contribution of resources of more than

2 one permittee toward a single mitigation project;

3 and

4 ‘‘(ix) other mitigation measures determined by

5 the Secretary to be appropriate in the public interest

6 and consistent with the requirements and purposes

7 of this Act.

8 ‘‘(E) Notwithstanding the provisions of subparagraph

9 (C), the Secretary may determine not to impose require10 ments for compensatory mitigation if the Secretary finds

11 that—

12 ‘‘(i) the adverse impacts of a permitted activity

13 are limited;

14 ‘‘(ii) the failure to impose compensatory mitiga15 tion requirements is compatible with maintaining

16 wetlands functions and values and no practicable

17 and reasonable means of mitigation is available;

18 ‘‘(iii) there is an abundance of similar signifi19 cant wetlands functions and values in or near the

20 area in which the proposed activity is to occur that

21 will continue to serve the functions lost or degraded

22 as a result of such activity, taking into account the

23 impacts of such proposed activity and the cumulative

24 impacts of similar activity in the area;
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1 ‘‘(iv) the temporary character of the impacts

2 and the use of minimization techniques make com3 pensatory mitigation unnecessary to protect signifi4 cant wetlands values; or

5 ‘‘(v) a waiver from requirements for compen6 satory mitigation is necessary to prevent special

7 hardship.

8 ‘‘(F) The Secretary, in consultation with the Direc9 tor, shall establish a mitigation banking program in each

10 State. Such mitigation banking program shall be devel11 oped in consultation with the Director and the Governor

12 of the State in which the wetlands covered by such mitiga13 tion banking program is located and, after approval by

14 the Secretary, will be available to the Secretary as a means

15 for ensuring compensation for loss and degradation of wet16 lands functions and values in such State in accordance

17 with the requirements of this paragraph. The primary ob18 jective of such programs shall be to provide for the res19 toration, enhancement, or, where feasible, creation of eco20 logically significant wetlands on an ecosystem basis. Such

21 programs shall—

22 ‘‘(i) provide a preference for larger scale

23 projects, unless the Secretary (or the Governor of a

24 State that is administering its own permit program

25 under subsection (1)) determines that a smaller
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1 project will contribute substantially to the conserva2 tion, enhancement or restoration of ecologically sig3 nificant wetlands values and functions or that the

4 restoration of indigenous wetlands resources cannot

5 be accomplished through large-scale projects;

6 ‘‘(ii) authorize mitigation banks sponsored ei7 ther by private entities or public entities;

8 ‘‘(iii) provide for crediting of contributions to

9 the mitigation bank in land, cash, or in-kind con10 tributions so that persons unable to sponsor specific

11 mitigation projects can contribute to a State or pri12 vately maintained mitigation bank;

13 ‘‘(iv) have sufficient requirements to ensure

14 completion, maintenance and supervision for at least

15 a twenty-five-year period, including requirements for

16 bonds or other evidence of financial responsibility;

17 ‘‘(v) authorize the imposition of bonding re18 quirements on private entities operating such banks;

19 ‘‘(vi) limit activities in or on wetlands that are

20 part of a mitigation bank to uses that are consistent

21 with maintaining or gaining significant wetlands val22 ues and functions; and

23 ‘‘(vii) authorize a credit to be provided on an

24 acre-for-acre or value-for-value basis for type A and

25 B wetlands that are permanently protected in na-
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1 tional conservation units in States that have con2 verted less than 10 per centum of their State’s his3 toric wetlands base.

4 ‘‘(4)(A) In the case of any application for authoriza5 tion to undertake activities in wetlands that are not eligi6 ble for treatment on an expedited basis pursuant to para7 graph (5) of this subsection, final action by the Secretary

8 shall occur within six months following the date such ap9 plication is filed, unless—

10 ‘‘(i) the Secretary and the applicant agree that

11 such final action shall occur within a shorter or

12 longer period of time;

13 ‘‘(ii) the Secretary determines that an addi14 tional, specified period of time is necessary to permit

15 the Secretary to comply with other applicable Fed16 eral law; or

17 ‘‘(iii) the Secretary, within fifteen days from

18 the date such application is received, notifies the ap19 plicant that such application does not contain all in20 formation necessary to allow the Secretary to con21 sider such application and identifies any necessary

22 additional information, in which case, the provisions

23 of subparagraph (B) shall apply.

24 ‘‘(B) Upon the receipt of a request for additional in25 formation under paragraph (A)(iii), the applicant shall
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1 supply such additional information and shall advise the

2 Secretary that the application contains all requested infor3 mation and is therefore complete. The Secretary may—

4 ‘‘(i) within thirty days of the receipt of notice

5 of the applicant that the application is complete, de6 termine that the application does not contain all re7 quested additional information and, on that basis,

8 deny the application without prejudice to resubmis9 sion; or

10 ‘‘(ii) review the application and take final action

11 within six months from the date that the applicant

12 provides notification to the Secretary that the appli13 cation is complete.

14 ‘‘(C) If the Secretary fails to take final action on an

15 application under this paragraph within six months from

16 the date that the applicant provides notification to the

17 Secretary that such application is complete, a permit shall

18 be presumed to be granted authorizing the activities pro19 posed in such application under such terms and conditions

20 as are stated in such completed application.

21 ‘‘(D) Within sixty days from the date of decision of

22 the Secretary denying an application under this para23 graph, the applicant may appeal such decision to the Sec24 retary of Defense or his designee. Upon such an appeal,

25 the Secretary must prove by clear and convincing evidence
26

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1 that granting the permit requested in such application

2 would be inconsistent with the provisions of this section.

3 ‘‘(5)(a) Activities in wetlands that have been classi4 fied as type C wetlands by the Secretary or the Director

5 may be undertaken without authorization required under

6 subsection (b) of this section.

7 ‘‘(B) The Secretary may establish requirements for

8 reporting activities undertaken in type C wetlands.

9 ‘‘(C) No requirements for alternative site analyses or

10 mitigation of environmental impacts shall apply for activi11 ties undertaken in type C wetlands.

12 ‘‘(6) The Secretary may, by rule in accordance with

13 subsection (i), issue general permits on a State, regional,

14 or nationwide basis for any category of activities involving

15 activities described in section (a) of this section in wet16 lands if the Secretary determines that such activities are

17 similar in nature and that such activities, when performed

18 separately and cumulatively, will not result in the signifi19 cant loss of ecologically significant wetlands values and

20 functions. Permits issued under this subsection shall in21 clude procedures for expedited review of eligibility for such

22 permits (if such review is required) and may include re23 quirements for reporting and mitigation. Requirements for

24 compensatory mitigation for such permits may be imposed

25 where necessary to avoid or minimize the significant loss
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1 or degradation of significant wetlands values and func2 tions where such loss or degradation is not a temporary

3 or incidental impact. Nationwide, general or regional per4 mits in effect on the date of enactment of the Comprehen5 sive Wetlands Conservation and Management Act of 1993

6 shall remain in effect until otherwise modified by the Sec7 retary.

8 ‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—(1) Ex9 cept as provided in paragraph (3) of this subsection, ac10 tivities undertaken in wetlands are exempt from the re11 quirements of this section and are not prohibited by or

12 otherwise subject to regulation under this section or sec13 tion 301 or 402 of the Act (except effluent standards or

14 prohibitions under section 307 of the Act), if such activi15 ties—

16 ‘‘(A) result from normal farming, silviculture,

17 aquaculture, and ranching activities and practices,

18 such as plowing, seeding, cultivating, minor drain19 age, burning of vegetation in connection with such

20 activities, harvesting for the production of food,

21 fiber, and forest products, or upland soil and water

22 conservation practices;

23 ‘‘(B) are for the purpose of maintenance, in24 cluding emergency reconstruction of recently dam25 aged parts of currently serviceable structures such
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1 as dikes, dams, levees, water control structures,

2 groins, riprap, breakwaters, causeways, and bridge

3 abutments or approaches, and transportation struc4 tures;

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

6 maintenance of farm, stock or aquaculture ponds or

7 irrigation canals and ditches, or the maintenance of

8 drainage ditches;

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

10 temporary sedimentation basins on a construction

11 site which does not include placement of fill material

12 into the navigable waters;

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

14 maintenance of farm roads or forest roads, or tem15 porary roads for moving mining equipment if such

16 roads are constructed and maintained, in accordance

17 with best management practices, to assure that flow

18 and circulation patterns and chemical and biological

19 characteristics of the waters are not impaired, that

20 the reach of the waters is not reduced, and that any

21 adverse effect on the aquatic environment will be

22 otherwise minimized;

23 ‘‘(F) are undertaken on farmed wetlands, ex24 cept that any change in use of such land for the

25 purpose of undertaking activities that are not ex-
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1 empt from regulation under this subsection shall be

2 subject to the requirements of this section to the ex3 tent that such farmed wetlands are ‘wetlands’ under

4 paragraph (2) of subsection (g);

5 ‘‘(G) result from any activity with respect to

6 which a State has an approved program under sec7 tion 208(b)(4) of this title which meets the require8 ments of subparagraphs (B) and (C) of such section;

9 ‘‘(H) are consistent with a State or local land

10 management plan submitted to the Secretary and

11 approved pursuant to paragraph (2);

12 ‘‘(I) are undertaken in connection with a marsh

13 management and conservation program in a coastal

14 Parish in the State of Louisiana where such pro15 gram has been approved by the Governor of such

16 State or the designee of the Governor;

17 ‘‘(J) are undertaken on lands or involve activi18 ties within a State’s coastal zone which are excluded

19 from regulation under a State coastal zone manage20 ment program approved under the Coastal Zone

21 Management Act of 1972 (16 U.S.C. 1451, et seq.);

22 ‘‘(K) are undertaken in incidentally created

23 wetlands, unless such incidentally created wetlands

24 have exhibited wetlands functions and values for

25 more than five years in which case activities under-
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1 taken in such wetlands shall be subject to the re2 quirements of this section;

3 ‘‘(L) are part of expanding an ongoing farming

4 operation involving the water dependent, obligate

5 crop Vaccinium macrocarpin, so long as such expan6 sion does not occur in type A wetlands, does not re7 sult in the conversion of more than ten acres of wet8 lands per operator per year, and the converted wet9 lands (other than where dikes and other necessary

10 facilities are placed) remain as wetlands or other wa11 ters of the United States; or

12 ‘‘(M) result from aggregate or clay mining ac13 tivities in wetlands conducted pursuant to a State

14 or Federal permit that requires the reclamation of

15 such affected wetlands. Conditions of reclamation

16 shall include that for any site, such reclamation shall

17 be completed within five years of the commencement

18 of activities at such site and that upon completion

19 of such reclamation, such wetlands shall support

20 wetlands functions and values equivalent to the func21 tions and values supported by such wetlands at the

22 time of commencement of such activities.

23 ‘‘(2) Any State or political subdivision thereof acting

24 pursuant to State authorization may develop a land man25 agement plan with respect to lands that include identified
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1 wetlands. The State or local government agency may sub2 mit any such plan to the Secretary for review and ap3 proval. The Secretary shall, within sixty days, notify in

4 writing the designated State or local official of approval

5 or disapproval of any such plan. The Secretary shall ap6 prove any plan that is consistent with the objectives and

7 policies of this section. No person shall be entitled to judi8 cial review of the decision of the Secretary to approve or

9 disapprove a land management plan under this paragraph.

10 Nothing in this paragraph shall be construed to alter, limit

11 or supersede the authority of a State or political subdivi12 sion thereof to establish land management plans for pur13 poses other than the provisions of this subsection.

14 ‘‘(g) RULES FOR DELINEATING WETLANDS.—(1)

15 The Secretary is authorized and directed to establish

16 standards, by rule in accordance with subsection (i), that

17 shall govern the delineation of lands as ‘wetlands’ for pur18 poses of this section. Such rules shall be established after

19 consultation with other agencies of the United States, in20 cluding the United States Fish and Wildlife Service, the

21 Environmental Protection Agency, and the United States

22 Soil Conservation Service, and shall be binding on all Fed23 eral agencies in connection with the administration or im24 plementation of any provision of this section. The stand25 ards for delineation of wetlands and any decision of the
32

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1 Secretary, the Director, or any other Federal officer or

2 agency made in connection with the administration of this

3 section shall comply with the requirements for delineation

4 of wetlands set forth in paragraph (2) of this subsection.

5 ‘‘(2)(A) The standards established by rule or applied

6 in any case for purposes of this section shall ensure that

7 lands are delineated as wetlands only if such lands are

8 found to be ‘wetlands’ under section 502 of this Act (33

9 U.S.C. 1362), except that such standards may not—

10 ‘‘(i) result in the delineation of lands as wet11 lands unless clear evidence of wetlands hydrology,

12 hydrophytic vegetation, and hydric soil are found to

13 be present during the period in which such delinea14 tion is made, which delineation shall be conducted

15 during the growing season unless otherwise re16 quested by the applicant;

17 ‘‘(ii) result in the classification of vegetation as

18 hydrophytic if such vegetation is equally adapted to

19 dry or wet soil conditions or is more typically adapt20 ed to dry soil conditions than to wet soil conditions;

21 ‘‘(iii) result in the classification of lands as wet22 lands unless some obligate wetlands vegetation is

23 found to be present during the period of delineation;

24 except that if such vegetation has been removed for
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1 the purpose of evading jurisdiction under this sec2 tion, this clause shall not apply;

3 ‘‘(iv) result in the conclusion that wetlands hy4 drology is present unless water is found to be

5 present at the surface of such lands for at least

6 twenty-one consecutive days during the growing sea7 son in which such delineation is made and for twen8 ty-one consecutive days in the growing seasons in a

9 majority of the years for which records are available;

10 and,

11 ‘‘(v) result in the classification of lands as wet12 lands that are temporarily or incidentally created as

13 a result of adjacent development activity.

14 ‘‘(B) In addition to the requirements of subparagraph

15 (A), any standards established by rule or applied to delin16 eate wetlands for purposes of this section shall provide

17 that ‘normal circumstances’ shall be determined on the

18 basis of the factual circumstances in existence at the time

19 a classification is made under subsection (h) or at the time

20 of application under subsection (e), whichever is applica21 ble, if such circumstances have not been altered by an ac22 tivity prohibited under this section.

23 ‘‘(3) No more than 20 per centum of any county, par24 ish, or borough shall be classified as type A wetlands; ex25 cept that, type A wetlands in Federal or State ownership
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1 (including type A wetlands in units of the National Wild2 life Refuge System, the National Park System, and lands

3 held in conservation easements) shall be included in cal4 culating the percent of type A wetlands in a county, par5 ish, or borough.

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

7 WETLANDS IDENTIFICATION AND CLASSIFICATION

8 PROJECT.—(1) The Director, in concurrence with the

9 Chief of the Soil Conservation Service, shall undertake a

10 project to identify and classify wetlands in the United

11 States. The Director shall complete such project not later

12 than ten years after the date of enactment of the Com13 prehensive Wetlands Conservation and Management Act

14 of 1993.

15 ‘‘(2) In conducting the project under this section, the

16 Director shall identify and classify wetlands in accordance

17 with standards for delineation of wetlands established by

18 the Secretary under subsection (g) of this section.

19 ‘‘(3) In conducting the project under this section, the

20 Director shall provide notice and an opportunity for a pub21 lic hearing in each county, parish or borough of a State

22 before completion of identification and classification of

23 wetlands in such county, parish, or borough.

24 ‘‘(4) Promptly after completion of identification and

25 classification of wetlands in a county, parish, or borough
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1 under this section, the Director shall publish information

2 on such identification and classification in the Federal

3 Register and in publications of wide circulation and take

4 other steps reasonably necessary to ensure that such infor5 mation is available to the public.

6 ‘‘(5) The Director shall report to Congress on imple7 mentation of the project to be conducted under this section

8 not later than two years after the date of the enactment

9 of the Comprehensive Wetlands Conservation and Man10 agement Act and annually thereafter.

11 ‘‘(6) Any classification of lands as wetlands under

12 this section shall, to the fullest extent practicable, be re13 corded on the property records in the county, parish or

14 borough in which such wetlands are located.

15 ‘‘(i) ADMINISTRATIVE PROVISIONS.—(1) Not later

16 than one year after the date of enactment of the Com17 prehensive Wetlands Conservation and Management Act

18 of 1993, the Secretary shall, after notice and opportunity

19 for comment, issue (in accordance with section 553 of title

20 5 of the United States Code and as otherwise required

21 under this section), final rules and regulations for the is22 suance of permits. Such rules and regulations shall, in ac23 cordance with this section, provide—

24 ‘‘(A) standards and procedures for the classi25 fication and delineation of wetlands and procedures
36

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1 for administrative review of any such classification

2 or delineation;

3 ‘‘(B) standards and procedures for the review

4 of State or local land management plans and State

5 programs for the regulation of wetlands;

6 ‘‘(C) for the issuance of general, nationwide, or

7 regional permits;

8 ‘‘(D) standards and procedures for the individ9 ual permit applications under this section;

10 ‘‘(E) for enforcement of this section;

11 ‘‘(F) any other rules and regulations that the

12 Secretary deems necessary or appropriate to imple13 ment the requirements of this section;

14 ‘‘(G) standards and procedures for administra15 tive appeals of actions by the Secretary denying ap16 plications for permits under subsection (b) or issuing

17 such permits subject to conditions; and,

18 ‘‘(H) requirements governing the establishment

19 of mitigation banks.

20 ‘‘(2) Any judicial review of final regulations issued

21 pursuant to this section and the Secretary’s denial of any

22 petition for the issuance, amendment, or repeal of any reg23 ulation under this section shall be in accordance with sec24 tions 701 through 706 of title 5 of the United States Code;

25 except that a petition for review of action of the Secretary
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1 in issuing any regulation or requirement under this section

2 or denying any petition for the issuance, amendment, or

3 repeal of any regulation under this section may be filed

4 only in the United States Court of Appeals for the District

5 of Columbia, and such petition shall be filed within ninety

6 days from the date of such issuance or denial or after such

7 date if such petition for review is based solely on grounds

8 arising after such ninetieth day. Action of the Secretary

9 with respect to which review could have been obtained

10 under this subsection shall not be subject to judicial review

11 in civil or criminal proceedings for enforcement.

12 ‘‘(3) The Secretary shall, within ninety days after the

13 date of the enactment of the Comprehensive Wetlands

14 Conservation and Management Act of 1993, issue interim

15 rules and regulations consistent with this section to take

16 effect immediately. Notice of the interim regulations shall

17 be published in the Federal Register, and such regulations

18 shall be binding until the issuance of final regulations pur19 suant to paragraph (1); except that the Secretary shall

20 provide adequate procedures for waiver of any provisions

21 of such interim regulations to avoid special hardship, in22 equity, or unfair distribution of burdens, or to advance

23 the purposes of this section.

24 ‘‘(4) Except where otherwise expressly provided in

25 this section, the Secretary shall administer this section.
38

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1 The Secretary or any other Federal officer or agency in

2 which any function under this section is vested or dele3 gated is authorized to perform any and all acts (including

4 appropriate enforcement activity), and to prescribe, issue,

5 amend, or rescind such rules or orders as such officer or

6 agency may find necessary or appropriate with this sub7 section, subject to the requirements of this subsection.

8 ‘‘(j) VIOLATIONS.—(1) Whenever, on the basis of reli9 able and substantial information and after reasonable in10 quiry, the Secretary finds that any person is or may be

11 in violation of this section or of any condition or limitation

12 set forth in a permit issued by the Secretary under this

13 section, the Secretary shall issue an order requiring such

14 persons to comply with this section or with such condition

15 or limitation or the Secretary shall bring a civil action in

16 accordance with paragraph (3).

17 ‘‘(2) A copy of any order issued under this subsection

18 shall be sent immediately by the Secretary to the Governor

19 of the State in which the violation occurs and the Gov20 ernors of other affected States. Any order issued under

21 this subsection shall be by personal service to the appro22 priate person or corporate officer and shall state with rea23 sonable specificity the nature of the asserted violation, and

24 specify a time for compliance, not to exceed thirty days,

25 which the Secretary determines is reasonable taking into
39

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1 account the seriousness of the asserted violation and any

2 good faith efforts to comply with applicable requirements;

3 except that if the person receiving notice of the asserted

4 violation disputes the Secretary’s determination and so no5 tifies the Secretary in writing within ninety days of receipt

6 of the Secretary’s notice, the Secretary shall within sixty

7 days after receiving notice of a dispute of an asserted vio8 lation, or within one hundred and fifty days from the date

9 of notification of violation by the Secretary if no notice

10 of a dispute is received (or after serving notice, unless oth11 erwise agreed to by the parties) prosecute a civil action

12 in accordance with paragraph (3) or rescind such order

13 and be estopped from any further enforcement proceed14 ings for the same asserted violation.

15 ‘‘(3) The Secretary is authorized to commence a civil

16 action for appropriate relief, including a permanent or

17 temporary injunction, for any violation for which the Sec18 retary is authorized to issue a compliance order under

19 paragraph (1) of this subsection. Any action under this

20 paragraph may be brought in the district court of the

21 United States for the district in which the defendant is

22 located or resides or is doing business, and such court

23 shall have jurisdiction to restrain such violation and to re24 quire compliance. Notice of the commencement of such ac25 tion shall be given immediately to the appropriate State.
40

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1 ‘‘(4) Any person who violates any condition or limita2 tion in a permit issued by the Secretary under this section,

3 and any person who violates any order issued by the Sec4 retary under paragraph (1) of this subsection shall be sub5 ject to a civil penalty not to exceed $25,000 per day for

6 each violation commencing on the day following expiration

7 of the time allowed for compliance. The amount of the fine

8 imposed per day shall be in proportion to the scale or

9 scope of the project. In determining the amount of a civil

10 penalty the court shall consider the seriousness of the vio11 lation or violations, the economic benefit (if any) resulting

12 from the violation, any history of such violations, any

13 good-faith efforts to comply with the applicable require14 ments, the economic impact of the penalty on the violator,

15 and such other matters as justice may require.

16 ‘‘(k) STATE AUTHORITY TO CONTROL DIS17 CHARGES.—Nothing in the section shall preclude or deny

18 the right of any State or interstate agency to control ac19 tivities in waters within the jurisdiction of such State, in20 cluding any activity of any Federal agency, and each such

21 agency shall comply with such State or interstate require22 ments both substantive and procedural to control such ac23 tivities to the same extent that any person is subject to

24 such requirements. This section shall not be construed as
41

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1 affecting or impairing the authority of the Secretary to

2 maintain navigation.

3 ‘‘(l) STATE REGULATION OF WETLANDS.—(1) The

4 Governor of any State desiring to administer its own indi5 vidual and general permit program for activities covered

6 by this section within its jurisdiction may submit to the

7 Secretary a description of the program it proposes to es8 tablish and administer under State law or under an inter9 state compact. In addition, such State shall submit a

10 statement from the chief legal officer in the case of the

11 State or interstate agency, that the laws of such State,

12 or the interstate compact, as the case may be, provide ade13 quate authority to carry out the described program.

14 ‘‘(2) Not later than one year after the date of the

15 receipt by the Secretary of a program and statement sub16 mitted by any State under paragraph (1), the Secretary

17 shall determine whether such State has the following au18 thority with respect to the issuance of permits pursuant

19 to such program:

20 ‘‘(A) to issue permits which—

21 ‘‘(i) apply, and assure compliance with,

22 any applicable requirements of this section; and

23 ‘‘(ii) can be terminated or modified for

24 cause, including—
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1 ‘‘(I) violation of any condition of the

2 permit;

3 ‘‘(II) obtaining a permit by misrepre4 sentation, or failure to disclose fully all rel5 evant facts; or

6 ‘‘(III) change in any condition that

7 requires either a temporary or permanent

8 reduction or elimination of the permitted

9 activity;

10 ‘‘(B) to issue permits which apply, and ensure

11 compliance with, all applicable requirements of sec12 tion 308 of this Act or to inspect, monitor, enter,

13 and require reports to at least the same extent as

14 required in section 308 of this Act;

15 ‘‘(C) to ensure that the public, and any other

16 State the waters of which may be affected, receive

17 notice of each application for a permit and to pro18 vide an opportunity for public hearing before a rul19 ing on each such application;

20 ‘‘(D) to ensure that the Secretary receives no21 tice of each application for a permit and that, prior

22 to any action by the State, both the applicant for the

23 permit and the State have received from the Sec24 retary information with respect to any advance clas-
43

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1 sification applicable to wetlands that are the sub2 ject of such application;

3 ‘‘(E) to ensure that any State (other than the

4 permitting State) whose waters may be affected by

5 the issuance of a permit may submit written rec6 ommendation to the permitting State with respect to

7 any permit application and, if any part of such writ8 ten recommendations are not accepted by the per9 mitting State, that the permitting State will notify

10 such affected State (and the Secretary) in writing of

11 its failure to so accept such recommendations to12 gether with its reasons for doing so; and

13 ‘‘(F) to abate violations of the permit or the

14 permit program, including civil and criminal pen15 alties and other ways and means of enforcement.

16 ‘‘(3) If, with respect to a State program submitted

17 under paragraph (1) of this section, the Secretary deter18 mines that such State—

19 ‘‘(A) has the authority set forth in paragraph

20 (2), the Secretary shall approve the program and so

21 notify such State and suspend the issuance of per22 mits under subsection (b) for activities with respect

23 to which a permit may be issued pursuant to such

24 State program; or
44

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1 ‘‘(B) does not have the authority set forth in

2 paragraph (2) of this subsection, the Secretary shall

3 so notify such State and provide a description of the

4 revisions or modifications necessary so that such

5 State may resubmit such program for a determina6 tion by the Secretary under this subsection.

7 ‘‘(4) If the Secretary fails to make a determination

8 with respect to any program submitted by a State under

9 this subsection within one year after the date of receipt

10 of such program, such program shall be deemed approved

11 pursuant to paragraph (3)(A) and the Secretary shall so

12 notify such State and suspend the issuance of permits

13 under subsection (b) for activities with respect to which

14 a permit may be issued by such State.

15 ‘‘(5) After the Secretary approves a State permit pro16 gram under paragraphs (3)(A) or (4), the Secretary shall

17 transfer any applications for permits pending before the

18 Secretary for activities with respect to which a permit may

19 be issued pursuant to such State program to such State

20 for appropriate action.

21 ‘‘(6) Upon notification from a State with a permit

22 program approved under this subsection that such State

23 intends to administer and enforce the terms and condi24 tions of a general permit issued by the Secretary under

25 subsection (e) with respect to activities in such State to
45

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1 which such general permit applies, the Secretary shall sus2 pend the administration and enforcement of such general

3 permit with respect to such activities.

4 ‘‘(7) Whenever the Secretary determines after public

5 hearing that a State is not administering a program ap6 proved under paragraph (3)(A) in accordance with this

7 section, the Secretary shall notify the State and, if appro8 priate corrective action is not taken within a reasonable

9 time, not to exceed ninety days after the date of the re10 ceipt of such notification, the Secretary shall—

11 ‘‘(A) withdraw approval of such program until

12 the Secretary determines such corrective action has

13 been taken; and

14 ‘‘(B) resume the program for the issuance of

15 permits under subsections (b) and (e) for all activi16 ties with respect to which the State was issuing per17 mits until such time as the Secretary makes the de18 termination described in paragraph (2) and such

19 State again has an approved program.

20 ‘‘(m) A copy of each permit application and each per21 mit issued under this section shall be available to the pub22 lic. Such permit application or portion thereof shall fur23 ther be available on request for the purpose of reproduc24 tion.
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1 ‘‘(n) Compliance with a permit issued pursuant to

2 this section, including any activity carried out pursuant

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

4 deemed in compliance, for purposes of sections 309 and

5 505, with sections 301, 307, and 403.

6 ‘‘(o) After the effective date of this section under sec7 tion 6 of the Comprehensive Wetlands Conservation and

8 Management Act of 1993, no permit for any activity de9 scribed in subsection (a) may be issued except in accord10 ance with this section. Any permit for an activity described

11 in subsection (a) issued under this section prior to such

12 effective date shall be deemed to be a permit under this

13 section and shall continue in force and effect for the term

14 of the permit unless revoked, modified, or suspended in

15 accordance with this section. Any application for a permit

16 for such an activity pending under this section on such

17 effective date shall be deemed to be an application for a

18 permit under this section.

19 ‘‘(p) Any fee charged in connection with the delinea20 tion or classification of wetlands, an application for a per21 mit authorizing an activity described in subsection (a), or

22 any other action taken in compliance with the require23 ments of this section (other than fines for violation under

24 subsection (i)) shall not exceed the amount in effect for

25 such fee on January 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 thereof the following new paragraphs:

5 ‘‘(21) The term ‘wetlands’ means lands which have

6 a predominance of hydric soils and which are inundated

7 by surface water at a frequency and duration sufficient

8 to support, and that under normal circumstances do sup9 port, a prevalence of vegetation typically adapted for life

10 in saturated soil conditions. Wetlands generally include

11 swamps, marshes, bogs, and similar areas.

12 ‘‘(22) The term ‘creation of wetlands’ means an activ13 ity that brings a wetland into existence at a site where

14 it did not formerly occur for the purpose of compensation.

15 ‘‘(23) The term ‘enhancement of wetlands’ means any

16 activity that increases the value of one or more functions

17 in existing wetlands.

18 ‘‘(24) The term ‘fastlands’ means lands located be19 hind permitted man-made structures, such as levees con20 structed and maintained to permit the utilization of such

21 lands for commercial, industrial or residential purposes

22 consistent with local land use planning requirements.

23 ‘‘(25) The term ‘wetlands functions’ means the roles

24 wetlands serve which are of value including flood water

25 storage, flood water conveyance, ground water discharge,

26 erosion control, wave attenuation, water quality protec-
48

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1 tion, scenic and aesthetic use, food chain support, fish2 eries, wetlands plant habitat, aquatic habitat, and habitat

3 for wetland dependent wildlife.

4 ‘‘(26) The term ‘growing seasons’ means, for each

5 plant hardiness zone, the period between the average date

6 of last frost in spring and the average date of first frost

7 in autumn.

8 ‘‘(27) The term ‘incidentally created wetlands’ means

9 lands that exhibit wetlands characteristics sufficient to

10 meet the criteria for delineation of wetlands, where one

11 or more of such characteristics is the unintended result

12 of human induced alterations of hydrology.

13 ‘‘(28) The term ‘maintenance’ means activities un14 dertaken to assure continuation of a wetland or the accom15 plishment of project goals after a restoration or creation

16 project has been technically completed, including water

17 level manipulations and control of nonnative plant species.

18 ‘‘(29) The term ‘mitigation banking’ means wetlands

19 restoration, enhancement, preservation or creation for the

20 purpose of providing compensation for wetland degrada21 tion or loss.

22 ‘‘(30) The term ‘normal farming, silviculture, aqua23 culture and ranching activities’ means normal ongoing

24 practices identified as such by the Secretary of Agri25 culture, in consultation with the Cooperative Extension
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1 Service for each State and the land grant university sys2 tem and agricultural colleges of the State, taking into ac3 count existing practices and such other practices as may

4 be identified in consultation with the affected industry or

5 community.

6 ‘‘(31) The term ‘prior converted cropland’ means

7 land that was both manipulated (drained or otherwise

8 physically altered to remove excess water from the land)

9 and cropped before December 23, 1985, to the extent that

10 such land no longer exhibits significant wetlands values.

11 ‘‘(32) The term ‘restoration’ in reference to wetlands

12 means an activity undertaken to return a wetland from

13 a disturbed or altered condition with lesser acreage or

14 fewer functions to a previous condition with greater wet15 lands acreage or functions.

16 ‘‘(33) The term ‘temporary impact’ means the dis17 turbance or alteration of wetlands caused by activities

18 under circumstances in which, within three years following

19 the commencement of such activities, such wetlands—

20 ‘‘(A) are returned to the conditions in existence

21 prior to the commencement of such activity; or

22 ‘‘(B) display conditions sufficient to ensure,

23 that without further human action, such wetlands

24 will return to the conditions in existence prior to the

25 commencement of such activity.’’.
50

HR 1330 SC

1 SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.—

2 Section 309 of the Federal Water Pollution Control

3 Act (33 U.S.C. 1319) is hereby amended—

4 (a) by striking ‘‘or 404’’ in subsection (a)(1);

5 (b) by striking ‘‘or in a permit issued under section

6 404 of this title by a State’’ in subsection (a)(3);

7 (c) by striking ‘‘or in a permit issued under section

8 404 of this Act by a State,’’ in subsection (d);

9 (d) by striking ‘‘—(A)’’ and ‘‘or in a permit issued

10 under section 404 of this title by a State, or’’ in section

11 309(g)(1)(A);

12 (e) by striking ‘‘(B)’’ through ‘‘as the case may be,’’

13 and inserting in lieu thereof ‘‘the Administrator’’ in sec14 tion 309(g)(1); and,

15 (f) by striking ‘‘or Secretary’’, ‘‘or the Secretary’’,

16 ‘‘or the Secretary as the case may be,’’ ‘‘or Secretary’s’’,

17 and ‘‘and the Secretary’’ each place they occur.

18 SEC. 6. EFFECTIVE DATE.

19 This Act, including the amendments made by this

20 Act, shall be effective on the ninetieth day following the

21 date of its enactment.

Æ

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