II

106TH CONGRESS

1ST SESSION S. 49

To amend the wetlands regulatory program under the Federal Water Pollution

Control Act to provide credit for the low wetlands loss rate in Alaska

and recognize the significant extent of 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 19, 1999

Mr. STEVENS introduced the following bill; which was read twice and referred

to the Committee on Environment and Public Works

A BILL

To amend the wetlands regulatory program under the Federal Water Pollution Control Act to provide credit for

the low wetlands loss rate in Alaska and recognize the

significant extent of 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 Act’’.
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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 of less than one-tenth of 1 per8 cent through human and natural processes;

9 (2) according to the United States Fish and

10 Wildlife Service more than 221,000,000 acres of

11 wetlands existed at the time of Colonial America in

12 the area that is now the contiguous United States

13 and that 117,000,000 of those acres, roughly 53

14 percent, have been filled, drained, or otherwise re15 moved from wetland status;

16 (3) Alaska contains more wetlands than all of

17 the other States combined;

18 (4) 88 percent of Alaska’s wetlands are publicly

19 owned, while only 26 percent of the wetlands in the

20 48 contiguous States are publicly owned;

21 (5) approximately 98 percent of all Alaskan

22 communities, including 200 of the 209 remote vil23 lages in Alaska, are located in or adjacent to wet24 lands;

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 against use or degradation to approximately

4 60,000,000 acres of wetlands in Alaska;

5 (7) 104,000,000 acres of land were granted to

6 the State of Alaska at statehood for purposes of eco7 nomic development;

8 (8) approximately 43,000,000 acres of land

9 were granted to Alaska Natives through regional

10 and village corporations and Native allotments for

11 their use and between 45 percent and 100 percent

12 of each Native corporation’s land is categorized as

13 wetlands;

14 (9) development of basic community infrastruc15 ture in Alaska, where approximately 75 percent of

16 the nonmountainous areas are wetlands, is often de17 layed and sometimes prevented by the existing wet18 lands regulatory program, with minimal identifiable

19 environmental benefit;

20 (10) the 1899 Rivers and Harbors Act formerly

21 regulated disposition of dredge spoils in navigable

22 waters, which did not include wetlands, to keep navi23 gable waters free of impairments;

24 (11) the 1972 Federal Water Pollution Control

25 Act, more commonly known as the Clean Water Act,
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1 formed the basis for a broad expansion of Federal

2 jurisdiction over wetlands by modifying the defini3 tion of ‘‘navigable waters’’ to include all ‘‘waters of

4 the United States’’;

5 (12) in 1975, a United States district court or6 dered the Army Corps of Engineers to publish re7 vised regulations concerning the program to imple8 ment section 404 of the Clean Water Act, which ex9 panded the scope of the program to include the dis10 charge of dredged and fill material into wetlands;

11 (13) the wetlands regulatory program was ex12 panded yet again by regulatory action to include iso13 lated wetlands (wetlands that are not adjacent to

14 navigable waters), and such an expansion formed the

15 basis for burdensome intrusions on the property

16 rights of Alaskans, Alaskan Native Corporations,

17 and the State of Alaska;

18 (14) expansion of the wetlands regulatory pro19 gram in this manner is beyond what the Congress

20 intended when it passed the Clean Water Act and

21 has placed unnecessary economic and administrative

22 burdens on private property owners, small busi23 nesses, city governments, State governments, farm24 ers, ranchers, and others, while providing negligible

25 environmental benefits;
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1 (15) for Alaska, a State with substantial con2 served wetlands and less than 1 percent private,

3 noncorporate land ownership, the burdens of the

4 current wetlands regulatory program unnecessarily

5 inhibit reasonable community growth and environ6 mentally benign resource development;

7 (16) Alaska villages, municipalities, boroughs,

8 city governments, and Native organizations are in9 creasingly frustrated with the constraints of the wet10 lands regulatory program because it interferes with

11 the location of community centers, airports, sanita12 tion systems, roads, schools, industrial areas, and

13 other critical community infrastructure;

14 (17) policies intended to achieve ‘‘no net loss’’

15 of wetlands reflect a response to the 53 percent loss

16 of the wetlands base in the 48 contiguous States,

17 and do not take into account the large percentage of

18 conserved wetlands in Alaska; and

19 (18) individual landowners in Alaska have lost

20 up to 97 percent of their property value and Alaskan

21 communities have lost a significant portion of their

22 tax base due to wetlands regulations.
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1 SEC. 3. AMENDMENTS TO THE FEDERAL WATER POLLU2 TION CONTROL ACT.

3 (a) NATIONAL POLICY.—Section 101(a) of the Fed4 eral Water Pollution Control Act (33 U.S.C. 1251(a)) is

5 amended by—

6 (1) striking ‘‘and’’ at the end of paragraph (6);

7 (2) striking the period at the end of paragraph

8 (7) and inserting in lieu thereof a semicolon; and

9 (3) adding at the end the following new para10 graphs:

11 ‘‘(8) it is the national policy to (A) achieve a

12 balance between wetlands conservation and adverse

13 economic impacts on local, regional, and private eco14 nomic interests, and (B) eliminate the regulatory

15 taking of private property by the regulatory program

16 authorized under section 404;

17 ‘‘(9) it is the national policy to encourage local18 ized wetlands planning (without mandating such

19 planning and by providing funds to facilitate such

20 planning), and to allow greater flexibility for the

21 issuance of wetlands permits in States with substan22 tial conserved wetlands; and

23 ‘‘(10) it is the national policy that compen24 satory mitigation under section 404 for the develop25 ment of wetlands in a State with substantial con26 served wetlands shall not be required, requested, or
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1 otherwise utilized to offset impacts to such wet2 lands.’’.

3 (b) DISCHARGE PERMITS.—Section 404(b) of the

4 Federal Water Pollution Control Act (33 U.S.C. 1344(b))

5 is amended by inserting after the period at the end the

6 following new sentence: ‘‘Notwithstanding the preceding

7 sentence, such guidelines with respect to disposal sites in

8 any State with substantial conserved wetlands—

9 ‘‘(A) shall not require mitigation to com10 pensate for wetlands loss and adverse impacts

11 to wetlands;

12 ‘‘(B) may include reasonable requirements

13 for the minimization of adverse impacts to wet14 lands; and

15 ‘‘(C) may include reasonable requirements

16 for the avoidance of impacts, but may not re17 quire the permit applicant to establish that al18 ternative sites do not exist.’’.

19 (c) GENERAL PERMITS.—Section 404(e) of the Fed20 eral Water Pollution Control Act (33 U.S.C. 1344(e)) is

21 amended by inserting at the end the following new para22 graph:

23 ‘‘(3) Notwithstanding the requirements of para24 graphs (1) and (2), at the request of a State with

25 substantial conserved wetlands, the Secretary shall
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1 issue a general permit on a Statewide basis for any

2 category of activities in such State. Any such permit

3 shall apply to the discharge of dredged or fill mate4 rial into disposal sites that are up to, at a minimum,

5 10 acres in size, and may not contain guidelines for

6 disposal sites that are more stringent than the

7 guidelines for such sites in that State under sub8 section (b).’’.

9 (d) NONPROHIBITED DISCHARGES.—Section

10 404(f)(1) of the Federal Water Pollution Control Act (33

11 U.S.C. 1344(f)(1)) is amended by—

12 (1) striking the comma at the end of subpara13 graph (F) and inserting in lieu thereof a semicolon;

14 and

15 (2) adding at the end the following new sub16 paragraph:

17 ‘‘(G) in a State with substantial conserved

18 wetlands—

19 ‘‘(i) associated with airport safety

20 (ground and air);

21 ‘‘(ii) for the construction and mainte22 nance of log transfer facilities relating to

23 log transportation activities;

24 ‘‘(iii) for the construction of tailings

25 impoundments utilized for treatment facili-
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1 ties (as determined by the development

2 document) for the mining subcategory for

3 which the tailings impoundments are con4 structed; and

5 ‘‘(iv) for the construction of ice pads

6 and ice roads and for the purposes of snow

7 storage and removal.’’.

8 (e) DEFINITIONS.—Section 404 of the Federal Water

9 Pollution Control Act (33 U.S.C. 1344), as amended, is

10 amended further by adding at the end the following new

11 subsections:

12 ‘‘(u) DEFINITIONS.—For purposes of this section—

13 ‘‘(1) the term ‘conserved wetlands’ means wet14 lands that are located in the National Park System,

15 National Wildlife Refuge System, National Wilder16 ness System, the Wild and Scenic River System, and

17 other similar Federal conservation systems, as well

18 as wetlands located in comparable types of conserva19 tion systems established under State or local author20 ity;

21 ‘‘(2) the term ‘economic base lands’ means

22 lands conveyed to, selected by, or owned by Alaska

23 Native entities pursuant to the Alaska Native

24 Claims Settlement Act (Public Law 92–203), as

25 amended, or the Alaska Native Allotment Act of
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1 1906 (34 Stat. 197), as amended, and lands con2 veyed to, selected by, or owned by, the State of Alas3 ka pursuant to the Alaska Statehood Act (Public

4 Law 85–508), as amended; and

5 ‘‘(3) the term ‘State with substantial conserved

6 wetlands’ means any State which—

7 ‘‘(A) contains at least 15 acres of con8 served wetlands for each acre of wetlands filled,

9 drained, or otherwise converted within such

10 State (based upon wetlands loss statistics re11 ported in the 1990 United States Fish and

12 Wildlife Service Wetlands Trends report to

13 Congress entitled ‘Wetlands Losses in the

14 United States 1780’s to 1980’s); or

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

16 has sufficient conserved wetlands to provide

17 adequate wetlands conservation in such State,

18 based on the policies set forth in this Act.

19 ‘‘(v) ALASKA NATIVE AND STATE OF ALASKA LAND

20 EXCEPTIONS.—

21 ‘‘(1)(A) Notwithstanding subsections (a) or (b),

22 upon application by the holder of economic base

23 lands, the Secretary shall issue a permit for the dis24 charge of dredged or fill material into the navigable

25 waters at a disposal site on such lands if such dis-
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1 charge complies with reasonable guidelines estab2 lished by the Secretary under this subsection. The

3 guidelines established by the Secretary under this

4 subsection may be no more stringent than the guide5 lines established under subsection (b) for disposal

6 sites in a State with substantial conserved wetlands,

7 and must take into consideration the requirements

8 of subparagraph (B).

9 ‘‘(B) In considering the requirements otherwise

10 applicable under subsections (a) and (b) for use in

11 guidelines applicable to permits issued under this

12 paragraph, the Secretary shall—

13 ‘‘(i) balance the standards and policies of

14 this Act against the obligations of the United

15 States to allow economic base lands to be bene16 ficially used to create and sustain economic ac17 tivity;

18 ‘‘(ii) with respect to Alaska Native lands,

19 give substantial weight to the social and eco20 nomic needs of Alaska Natives; and

21 ‘‘(iii) consider the abundance and value of

22 conserved wetlands in the State in which such

23 economic base lands are found.

24 ‘‘(2) The Secretary shall issue general permits

25 under subsection (e)(1) for categories of activities on
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1 economic base lands relating to the development of

2 rural Alaska community infrastructure (including

3 water and sewer systems, airports, roads, commu4 nication sites, fuel storage sites, landfills, housing,

5 hospitals, medical clinics, and schools) without deter6 mining whether or not such activities will cause only

7 minimal adverse environmental effects when per8 formed separately, or whether or not such activities

9 will have only minimal cumulative adverse effects on

10 the environment.

11 ‘‘(3) The Secretary shall consult with and pro12 vide assistance to Alaska Natives (including Alaska

13 Native Corporations) and the State of Alaska re14 garding promulgation and administration of policies

15 and regulations under this section.’’.

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