II

106TH CONGRESS

2D SESSION S. 2948

To amend the Federal Water Pollution Control Act to establish a program

for wetland mitigation banking, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 27, 2000

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

to the Committee on Environment and Public Works

A BILL

To amend the Federal Water Pollution Control Act to establish a program for wetland mitigation banking, 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 ‘‘American Wetland

5 Restoration Act’’.

6 SEC. 2. DECLARATION OF POLICIES AND GOALS.

7 Section 101(a) of the Federal Water Pollution Con8 trol Act (33 U.S.C. 1251(a)) is amended—

9 (1) in paragraph (6), by striking ‘‘and’’ at the

10 end;
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1 (2) in paragraph (7), by striking the period at

2 the end and inserting a semicolon; and

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

4 ‘‘(8) it is the national policy to achieve the con5 servation, creation, and restoration of wetland,

6 through—

7 ‘‘(A) regulatory means that take into ac8 count that 75 percent of the wetland in the con9 tiguous United States is privately owned and

10 that private property rights should not be un11 reasonably infringed; and

12 ‘‘(B) nonregulatory opportunities involving

13 all levels of government and supported by pri14 vate initiatives;

15 ‘‘(9) the national policy described in paragraph

16 (8) should be achieved in order—

17 ‘‘(A) to increase the quantity and quality

18 of the wetland resource base of the contiguous

19 United States; and

20 ‘‘(B) to meet the interim goal of no overall

21 net loss for the remaining wetland resource

22 base of the contiguous United States;

23 ‘‘while taking into account the status and trends of

24 the wetland resource base in particular regions and

25 areas; and
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1 ‘‘(10) it is the national policy to foster wetland

2 mitigation banking as a means to mitigate the un3 avoidable loss of wetland by—

4 ‘‘(A) providing a regulatory framework for

5 the establishment, operation, and use of mitiga6 tion banks;

7 ‘‘(B) making appropriate use of successful

8 programs for mitigation banking that are being

9 carried out as of the date of enactment of this

10 paragraph; and

11 ‘‘(C) taking into account regional vari12 ations in wetland conditions, functions, and val13 ues.’’.

14 SEC. 3. USE OF MITIGATION BANKS.

15 Section 404 of the Federal Water Pollution Control

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

17 the following:

18 ‘‘(u) USE OF MITIGATION BANKS.—

19 ‘‘(1) DEFINITIONS CONTAINED IN FEDERAL

20 GUIDANCE.—Except as otherwise provided in this

21 subsection, a term used in this subsection and de22 fined in the Federal Guidance for the Establishment,

23 Use and Operation of Mitigation Banks, published

24 on November 28, 1995 (60 Fed. Reg. 58605), shall
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1 have the meaning given the term in the Federal

2 Guidance.

3 ‘‘(2) OTHER DEFINITIONS.—In this subsection:

4 ‘‘(A) CHARTER.—The term ‘charter’

5 means a mitigation banking instrument, as de6 scribed in the Federal Guidance, that—

7 ‘‘(i) is established by an agreement

8 between an applicant and the Secretary or

9 a State (in the case of a State admin10 istering a program under subsection

11 (h)(2)(A)); and

12 ‘‘(ii) has been developed in consulta13 tion with the mitigation bank review team.

14 ‘‘(B) FEDERAL GUIDANCE.—The term

15 ‘Federal Guidance’ means the Federal Guidance

16 for the Establishment, Use and Operation of

17 Mitigation Banks, published on November 28,

18 1995 (60 Fed. Reg. 58605).

19 ‘‘(C) MAINTENANCE.—The term ‘mainte20 nance’, with respect to a wetland, means an ac21 tivity carried out to ensure—

22 ‘‘(i) viability of the wetland; or

23 ‘‘(ii) the accomplishment of a project

24 goal after a wetland restoration, enhance25 ment, creation, or preservation project (in-
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1 cluding hydrological manipulation and con2 trol of desirable and undesirable plant spe3 cies) has been completed.

4 ‘‘(D) MITIGATION BANK.—The term ‘miti5 gation bank’ means—

6 ‘‘(i) 1 or more specified wetland re7 source restoration, enhancement, creation,

8 or preservation projects (which may in9 clude the preservation of an appurtenant

10 wetland, upland, or open water resource, to

11 the extent that the wetland, upland, or

12 open water resource increases the ecologi13 cal functioning of the mitigation bank); or

14 ‘‘(ii) in exceptional circumstances, 1

15 or more projects, consisting solely of pres16 ervation of wetland, that have been char17 tered by the Secretary under this sub18 section for the purpose of providing mitiga19 tion credits to offset wetland losses author20 ized under permits allowing activities in

21 the waters of the United States.

22 ‘‘(E) SERVICE AREA.—The term ‘service

23 area’ means the designated area, as described

24 in the Federal Guidance, in which a mitigation
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1 bank may provide compensatory mitigation for

2 impacts to wetland resources.

3 ‘‘(F) WETLAND FUNCTION.—

4 ‘‘(i) IN GENERAL.—The term ‘wetland

5 function’ means an environmental,

6 hydrological, or other role that a wetland

7 serves.

8 ‘‘(ii) INCLUSIONS.—The term ‘wetland

9 function’ includes—

10 ‘‘(I) flood water storage;

11 ‘‘(II) flood water conveyance;

12 ‘‘(III) ground water discharge or

13 recharge;

14 ‘‘(IV) erosion control;

15 ‘‘(V) wave attenuation;

16 ‘‘(VI) water quality protection;

17 ‘‘(VII) scenic and aesthetic use;

18 ‘‘(VIII) food chain support;

19 ‘‘(IX) a fishery;

20 ‘‘(X) wetland plant habitat;

21 ‘‘(XI) aquatic habitat; and

22 ‘‘(XII) habitat for wetland-de23 pendent wildlife.

24 ‘‘(3) CHARTER OF MITIGATION BANKS.—
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1 ‘‘(A) ISSUANCE.—The Secretary, in con2 sultation with the mitigation bank review team,

3 may issue a charter to a person that, with re4 spect to the wetland project or projects that are

5 to be included in the scope of the charter, meets

6 the following criteria:

7 ‘‘(i) ASSURANCES.—The person pro8 vides reasonable assurances of success of

9 the proposed restoration, enhancement,

10 creation, or preservation project.

11 ‘‘(ii) WATER SOURCE.—The person

12 demonstrates an adequate source of water

13 to support the wetland.

14 ‘‘(iii) LEGAL CONTROL.—The person

15 demonstrates adequate legal control to

16 carry out the proposed project, such as a

17 title, license, contract, or option (contin18 gent on approval of the charter), over the

19 real property (including necessary upland,

20 as appropriate) comprising the proposed

21 project.

22 ‘‘(iv) FINANCIAL ASSURANCES.—

23 ‘‘(I) IN GENERAL.—The person

24 demonstrates adequate financial as25 surances to carry out the proposed
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1 project, including the design, oper2 ations, and maintenance plan and re3 medial measures.

4 ‘‘(II) FORM.—A financial assur5 ance referred to in subclause (I) may

6 be in the form of—

7 ‘‘(aa) a performance bond;

8 ‘‘(bb) an irrevocable trust;

9 ‘‘(cc) an escrow account;

10 ‘‘(dd) casualty insurance;

11 ‘‘(ee) a letter of credit;

12 ‘‘(ff) a legislatively-enacted

13 dedicated fund for government

14 operated banks; or

15 ‘‘(gg) another instrument

16 approved by the Secretary.

17 ‘‘(III) AUTHORITY OF SEC18 RETARY.—A financial assurance dem19 onstrated by a person under subclause

20 (I) shall entitle the Secretary to draw

21 on the assurance in the event of—

22 ‘‘(aa) a substantial failure to

23 perform the work provided in the

24 charter; or
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1 ‘‘(bb) in any case in which

2 mitigation credits based on work

3 referred to in item (aa) have al4 ready been used or sold, a sub5 stantial failure of the mitigation

6 bank to perform as expected in

7 the application.

8 ‘‘(IV) TIMING.—A financial as9 surance described in subclause (I)

10 shall be in place before the withdrawal

11 by the person of credits.

12 ‘‘(v) PLAN.—The person demonstrates

13 an adequate design, operation, and mainte14 nance plan to ensure continued viability of

15 the proposed project after completion of

16 construction of the project.

17 ‘‘(vi) LEGAL PROTECTION.—

18 ‘‘(I) IN GENERAL.—The person

19 demonstrates adequate legal protec20 tion, such as easements, covenants

21 running with the land, or other appro22 priate, legally binding undertakings,

23 to ensure permanent protection of the

24 wetland in the mitigation bank that is

25 used as the basis for selling credits.
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1 ‘‘(II) TIMING.—Legal protection

2 described in subclause (I) shall be in

3 place at the time at which the credits

4 are withdrawn.

5 ‘‘(B) APPLICATION AND PROCEDURE.—

6 ‘‘(i) IN GENERAL.—An applicant for a

7 charter shall submit to the Secretary an

8 application and supporting materials

9 signed by a responsible official acting on

10 behalf of the applicant as certification of

11 the accuracy of the information contained

12 in the application and materials.

13 ‘‘(ii) INCLUSIONS.—The application

14 shall include, at a minimum, information

15 concerning the criteria described in sub16 paragraph (A).

17 ‘‘(iii) NOTICE OF COMPLETION STA18 TUS.—Not later than 30 days after the

19 date on which an application under this

20 subparagraph is filed, the Secretary

21 shall—

22 ‘‘(I) advise the applicant as to

23 whether the application is complete;

24 and
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1 ‘‘(II) if the application is incom2 plete, advise the applicant, in writing,

3 of any additional materials that must

4 be submitted to complete the applica5 tion.

6 ‘‘(iv) COMMENTS ON APPLICATION.—

7 ‘‘(I) IN GENERAL.—On receipt of

8 a completed application, the Secretary

9 shall submit, to the affected State and

10 the heads of appropriate Federal

11 agencies, a copy of the completed

12 charter application.

13 ‘‘(II) COMMENT PERIOD.—

14 ‘‘(aa) IN GENERAL.—Not

15 later than 60 days after the date

16 of receipt of a completed applica17 tion under subclause (I), an af18 fected State and the heads of

19 Federal agencies that received

20 the application may file written

21 comments concerning the applica22 tion.

23 ‘‘(bb) RECORD.—Written

24 comments filed under item (aa)

25 shall be part of the record.
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1 ‘‘(cc) NO COMMENTS.—If no

2 comments are filed before the

3 last day of the period described

4 in item (aa), the Secretary may

5 presume that the affected State

6 and Federal agencies do not ob7 ject to the charter.

8 ‘‘(C) MITIGATION BANK REVIEW TEAM.—

9 ‘‘(i) IN GENERAL.—The mitigation

10 bank review team shall be responsible

11 for—

12 ‘‘(I) reviewing charter applica13 tions;

14 ‘‘(II) reaching consensus on the

15 terms of each charter; and

16 ‘‘(III) coordinating, as necessary,

17 to ensure effective implementation of

18 the terms of each charter.

19 ‘‘(ii) CHAIRPERSON.—The Secretary

20 (or the State, in the case of a State admin21 istering a program under subsection

22 (h)(2)(A)) shall—

23 ‘‘(I) serve as Chairperson of the

24 mitigation bank review team; and
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1 ‘‘(II) assume responsibility for

2 making final decisions regarding the

3 terms of the charter if consensus can4 not be reached within the timeframes

5 provided by this subsection.

6 ‘‘(D) COORDINATION.—To the maximum

7 extent practicable, the Secretary shall coordi8 nate the processing of a charter application

9 under this subsection with the processing of ap10 plications from the same applicant for other

11 permits required under this section to allow de12 terminations with respect to the permits to be

13 made concurrently with the final decision on the

14 charter.

15 ‘‘(E) NOTICE.—

16 ‘‘(i) PUBLICATION.—The Secretary

17 shall—

18 ‘‘(I) publish notice of each char19 ter application in—

20 ‘‘(aa) the Federal Register;

21 and

22 ‘‘(bb) a newspaper of gen23 eral circulation in the proposed

24 service area in which the mitiga25 tion bank is to operate (including
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1 the county in which the project is

2 to be located); and

3 ‘‘(II) make copies of the charter

4 application and supporting materials

5 available for public review at appro6 priate convenient locations in the serv7 ice area.

8 ‘‘(ii) CONTENTS.—The notice pub9 lished under clause (i)(I) shall—

10 ‘‘(I) contain a description of each

11 project provided in the charter appli12 cation;

13 ‘‘(II) contain an explanation of

14 where supporting materials may be re15 viewed; and

16 ‘‘(III) provide a 30-day period

17 (which may be extended once for an

18 additional 30 days, on the request)

19 during which comments on the com20 pliance of the proposed application

21 may be submitted in accordance with

22 this subsection.

23 ‘‘(iii) PERMIT REQUIREMENTS.—In

24 any case in which a permit under this sec25 tion is required to construct a mitigation
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1 bank, the notice and opportunity for public

2 comment provided in accordance with the

3 application for the permit shall satisfy the

4 public notice and comment requirements of

5 this paragraph.

6 ‘‘(F) DECISION DEADLINE.—Not later

7 than 90 days after the date on which a com8 pleted charter application is filed, the Secretary,

9 in consultation with the mitigation bank review

10 team, shall decide whether to issue a charter.

11 ‘‘(G) EXTENSION OF DEADLINE.—If addi12 tional time is needed to file comments or pro13 vide for a hearing, further review of comments,

14 or a reply to adverse comments, the Secretary

15 may extend once, for 90 days, the period of re16 view described in subparagraph (F).

17 ‘‘(H) DETERMINATION.—

18 ‘‘(i) IN GENERAL.—After a review of

19 public comments and receipt of any reply

20 from the applicant, the Secretary may, in

21 accordance with subparagraph (A) and

22 after appropriate coordination and

23 consultation—

24 ‘‘(I) issue the charter;

25 ‘‘(II) deny the charter; or
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1 ‘‘(III) issue the charter with

2 modifications.

3 ‘‘(ii) BASIS.—A decision of the Sec4 retary under clause (i) shall be based on

5 the public record of the application for the

6 charter.

7 ‘‘(I) AMENDMENTS.—

8 ‘‘(i) IN GENERAL.—An additional

9 project may be added to a charter by

10 amendment.

11 ‘‘(ii) PROCESSING.—An application

12 for an amendment to a charter shall be

13 processed in the same manner as a charter

14 application, except that the Secretary may

15 treat any facts established in support of

16 the original charter that are confirmed by

17 the most recent report required under sub18 paragraph (J) as established for the pur19 pose of the amendment application process.

20 ‘‘(J) PERIODIC REPORTS.—

21 ‘‘(i) IN GENERAL.—A person holding

22 a charter shall submit to the Secretary re23 ports in accordance with the charter, on a

24 periodic basis to be determined by the Sec25 retary.
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1 ‘‘(ii) INCLUSIONS.—A report sub2 mitted under clause (i) shall include—

3 ‘‘(I) information demonstrating

4 the success of the proposed restora5 tion, enhancement, creation, or pres6 ervation project;

7 ‘‘(II) a demonstration of contin8 ued compliance with financial assur9 ance requirements;

10 ‘‘(III) a demonstration of a con11 tinued, adequate, long-term source of

12 water to support the wetland that is

13 the subject of the charter;

14 ‘‘(IV) a report on progress ac15 complishing the construction and de16 sign, operations, and maintenance

17 plan provided in the charter;

18 ‘‘(V) a reconciliation of the num19 ber of credits sold during the period

20 since the date of the last report under

21 this subparagraph, the number of

22 credits remaining, and any change in

23 the number of credits available in ac24 cordance with this subsection; and
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1 ‘‘(VI) information in satisfaction

2 of any other reporting requirement of

3 the charter.

4 ‘‘(K) RESPONSIBILITY FOR MITIGATION

5 BANK SUCCESS.—Subject to the charter, a per6 son holding the charter shall be responsible for

7 ensuring the success of the restoration, en8 hancement, creation, and preservation activities

9 specified in the charter.

10 ‘‘(L) REVOCATION.—A charter—

11 ‘‘(i) shall be revoked by the Secretary

12 for—

13 ‘‘(I) a criminal conviction of the

14 person holding the charter for making

15 material false statements in the char16 ter application or any annual report;

17 and

18 ‘‘(II) a substantial violation of

19 law (other than a violation described

20 in clause (I)) that demonstrates that

21 the holder of the charter is unfit to

22 operate the mitigation bank;

23 ‘‘(ii) may be revoked by the Secretary

24 for—
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1 ‘‘(I) a substantial failure of the

2 mitigation bank to perform as ex3 pected in the charter; or

4 ‘‘(II) a substantial failure to

5 comply with the terms of the charter,

6 including financial assurances or crit7 ical operating requirements; and

8 ‘‘(iii) may be revoked under clause (i)

9 or (ii) only after an opportunity for a pub10 lic hearing.

11 ‘‘(M) STANDARDS AND CRITERIA FOR SUC12 CESS.—The Secretary, in consultation with the

13 Administrator, shall establish standards and

14 criteria for the success of mitigation banks

15 under this subsection.

16 ‘‘(4) CREDITS AND DEBITS.—

17 ‘‘(A) NUMBER OF CREDITS.—

18 ‘‘(i) IN GENERAL.—The number of

19 credits to which a chartered mitigation

20 bank is entitled for wetland restoration,

21 enhancement, creation, and preservation

22 shall be based on the methodology con23 tained in the charter, consistent with the

24 approach identified in the Federal Guid25 ance.
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1 ‘‘(ii) LIMITED CREDITS.—A limited

2 credit may be granted, consistent with the

3 Federal Guidance, for the inclusion of up4 land, open water, or preserved wetland

5 areas within a mitigation bank if the up6 land, open water, and preserved wetland

7 areas within the mitigation bank increase

8 the overall ecological functioning of the

9 bank.

10 ‘‘(B) CREDITS BASED SOLELY ON PRESER11 VATION.—

12 ‘‘(i) IN GENERAL.—The number of

13 credits based solely on preservation should

14 be based on the functions that would be

15 lost or degraded if the wetland were not

16 preserved (including the timing of the loss

17 or degradation) in accordance with the

18 Federal Guidance.

19 ‘‘(ii) DETERMINATION.—In any case

20 in which the Secretary determines that

21 preservation of wetland is appropriate as

22 the sole basis for providing mitigation

23 credits, the Secretary shall make a deter24 mination that the wetland—
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1 ‘‘(I) performs physical or biologi2 cal functions, the preservation of

3 which is important to the region in

4 which the wetland is located; and

5 ‘‘(II) is under a demonstrable

6 threat of loss or substantial degrada7 tion due to activities that might not

8 otherwise be expected to be restricted

9 and that are not the consequence of

10 actions under the control of the holder

11 of the charter for the mitigation bank.

12 ‘‘(C) OFFERING OF CREDITS FOR SALE.—

13 ‘‘(i) IN GENERAL.—On receipt of a

14 charter, a mitigation bank may offer miti15 gation credits for sale in accordance with

16 the charter.

17 ‘‘(ii) NUMBER.—The number of cred18 its that a mitigation bank may offer for

19 sale shall not exceed the number to which

20 the mitigation bank is entitled under the

21 charter.

22 ‘‘(iii) LIMITED CREDITS.—As specifi23 cally approved under the charter, and con24 sistent with the Federal Guidance, limited

25 credits may be sold before restoration, en-
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1 hancement, creation, or preservation activi2 ties have been initiated if—

3 ‘‘(I) adequate financial and legal

4 assurances described in paragraph

5 (3)(A) are in place to carry out the

6 proposed project;

7 ‘‘(II) the likelihood of success of

8 the mitigation bank is high; and

9 ‘‘(III) a construction schedule

10 has been approved.

11 ‘‘(D) DEBITS.—To the maximum extent

12 practicable, the Secretary shall use the same

13 methodology to quantify debits as is used to

14 quantify credits at a mitigation bank.

15 ‘‘(E) NO REGULATION OF CREDIT

16 PRICE.—The Secretary may not regulate the

17 price charged for the sale of mitigation credits.

18 ‘‘(5) SERVICE AREAS.—

19 ‘‘(A) ADDITIONAL GUIDANCE.—The Sec20 retary may provide additional guidance, con21 sistent with the Federal Guidance, on the size

22 and use of the service area (including policies

23 regarding linear utility facilities).

24 ‘‘(B) INTERSTATE AGREEMENTS.—If a

25 proposed service area or mitigation bank is lo-
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1 cated in more than 1 State, the Secretary may

2 resolve any interstate disagreement.

3 ‘‘(6) MITIGATION.—

4 ‘‘(A) IN GENERAL.—A mitigation bank ap5 proved under this subsection may, in accord6 ance with this section—

7 ‘‘(i) provide compensatory mitigation

8 for activities requiring authorization under

9 this section; or

10 ‘‘(ii) be used in satisfaction of any in11 junctive relief ordered by the Secretary,

12 the Administrator, or a court.

13 ‘‘(B) IN-KIND AND OUT-OF-KIND.—

14 ‘‘(i) IN GENERAL.—Consistent with

15 the Federal Guidance, the Secretary should

16 generally require in-kind compensation of

17 wetland impacts.

18 ‘‘(ii) LIMITED ACCEPTANCE OF OUT19 OF-KIND COMPENSATION.—Out-of-kind

20 compensation of wetland impacts may be

21 acceptable if the Secretary determines, on

22 a case-by-case basis, that the out-of-kind

23 compensation is practicable and environ24 mentally desirable.
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1 ‘‘(C) EQUIVALENT STANDARDS AND CRI2 TERIA.—

3 ‘‘(i) IN GENERAL.—Not later than 1

4 year after the date of enactment of this

5 subsection, the Secretary and the Adminis6 trator, in consultation with the heads of

7 appropriate Federal agencies, shall estab8 lish standards and criteria applicable to

9 the use of on-site mitigation, in-lieu fees,

10 and other off-site mitigation as compen11 satory mitigation that are similar to those

12 standards and criteria applicable to a miti13 gation bank under this subsection.

14 ‘‘(ii) SPECIFIC INCLUSIONS.—The

15 standards and criteria established under

16 clause (i) shall include—

17 ‘‘(I) a definition of in-lieu fees;

18 and

19 ‘‘(II) specific measures to ensure

20 that in-lieu fees are used only under

21 appropriate circumstances with ade22 quate controls.

23 ‘‘(7) REPORT TO CONGRESS.—

24 ‘‘(A) IN GENERAL.—Not later than 2 years

25 after the date of enactment of this subsection,
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1 the Secretary shall submit to Congress a report

2 on the effectiveness of wetland mitigation bank3 ing and other forms of compensatory mitigation

4 in meeting the policy and goals identified in

5 paragraphs (8) through (10) of section

6 101(a)(8).

7 ‘‘(B) FORM.—

8 ‘‘(i) DRAFT REPORT.—The report

9 under subparagraph (A) shall first be

10 issued in draft form.

11 ‘‘(ii) PUBLIC COMMENT PERIOD.—

12 During the 60-day period beginning on the

13 date on which the draft report is issued

14 under clause (i), the Secretary shall receive

15 comments from the public concerning the

16 accuracy of the information contained in

17 the draft report.

18 ‘‘(iii) FINAL REPORT.—Not later than

19 90 days after the last day of the comment

20 period described in clause (ii), the Sec21 retary shall—

22 ‘‘(I) make any necessary revi23 sions to the draft report, taking into

24 consideration any public comments re25 ceived under clause (ii); and
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1 ‘‘(II) submit to Congress the

2 final report.

3 ‘‘(8) EXISTING BANKS.—Nothing in this sub4 section requires a person operating a mitigation

5 bank in existence on the date of enactment of this

6 subsection to submit to the Secretary for that miti7 gation bank an application for a charter under this

8 subsection.

9 ‘‘(9) MITIGATION BANKING APPROVED UNDER

10 STATE PROGRAMS.—A State that operates a pro11 gram under subsection (h)(2)(A) may administer a

12 wetland mitigation banking program in accordance

13 with procedures established by State law (including

14 regulations) if the banking program is approved by

15 the Administrator as part of the approved program

16 of the State under that subsection.’’.

Æ