II

104TH CONGRESS

1ST SESSION S. 851

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

regulatory program, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 25 (legislative day, MAY 15), 1995

Mr. JOHNSTON (for himself, Mr. FAIRCLOTH, Mr. BREAUX, Mr. PRESSLER,

Mr. DORGAN, Mr. LOTT, Mr. DOLE, Mr. MURKOWSKI, and Mr. HEFLIN)

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 reform

the wetlands regulatory program, 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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Wetlands Regulatory Reform Act of 1995’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and declaration of policies and goals.

Sec. 3. Permits for activities in waters of the United States.
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‘‘Sec. 404. Permits for activities in waters of the United States.

‘‘(a) Definitions.

‘‘(b) Request for determination of jurisdiction.

‘‘(c) Procedures for issuance of individual permits.

‘‘(d) Exempt activities.

‘‘(e) Delineation procedures.

‘‘(f) Wetland classification.

‘‘(g) Permit determinations.

‘‘(h) General permits.

‘‘(i) Alaska Native and State of Alaska lands.

‘‘(j) Interagency cooperation.

‘‘(k) Compliance.

‘‘(l) Violations.

‘‘(m) Administrative appeals.

‘‘(n) Mitigation banks.

‘‘(o) Restoration of wetlands.

‘‘(p) State permit programs.

‘‘(q) Availability of information to the public.

‘‘(r) Certification.

‘‘(s) State authority to control activities.

‘‘(t) Balanced implementation.’’.

Sec. 4. Transition provisions.

Sec. 5. Technical and conforming amendments.

1 SEC. 2. FINDINGS AND DECLARATION OF POLICIES AND

2 GOALS.

3 (a) FINDINGS.—Congress finds that—

4 (1) wetland serves important environmental and

5 natural resource functions, such as providing—

6 (A) essential nesting and feeding habitat

7 for waterfowl, other wildlife, and many rare and

8 endangered species;

9 (B) fisheries habitat;

10 (C) the enhancement of water quality; and

11 (D) natural flood control;

12 (2) because of government policies, such as the

13 policies contained in chapter 5 of title 32 of the Re14 vised Statutes (commonly known as the ‘‘Homestead
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1 Acts’’) (43 U.S.C. 161 et seq.) (repealed by section

2 702 of the Federal Land Policy and Management

3 Act of 1976 (Public Law 94–579; 90 Stat. 2787)),

4 much of the wetland resources of the United States

5 have sustained significant degradation, resulting in

6 the need for effective programs to limit the loss of

7 environmentally significant wetlands and to provide,

8 where and when appropriate, for long-term restora9 tion and enhancement of the wetland resources base;

10 (3) the rate of wetland losses has been signifi11 cantly reduced since the enactment of subtitle C of

12 title XII of the Food Security Act of 1985 (16

13 U.S.C. 3821 et seq.); and

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

15 lower 48 States is privately owned and because the

16 majority of the population of the United States lives

17 in or near wetland areas, an effective wetland con18 servation and management program must reflect a

19 balanced approach that conserves and enhances envi20 ronmentally significant wetland functions while—

21 (A) respecting private property rights;

22 (B) recognizing the need for essential pub23 lic infrastructure, such as highways, utilities,

24 ports, airports, sewer systems, and public water
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1 supply systems, and the need to preserve strong

2 local tax bases; and

3 (C) providing the opportunity for sustained

4 economic growth.

5 (b) DECLARATION OF POLICIES AND GOALS.—Sec6 tion 101(a) of the Federal Water Pollution Control Act

7 (33 U.S.C. 1251(a)) is amended—

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

9 end;

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

11 the end and inserting a semicolon; and

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

13 ‘‘(8) it is the national policy that the Federal

14 permitting program for wetlands and other waters of

15 the United States under section 404 shall be imple16 mented to protect environmentally significant wet17 lands while avoiding significant diminishment of the

18 use and value of private property; and

19 ‘‘(9) it is the national policy to—

20 ‘‘(A) achieve wetland conservation without

21 undue adverse economic impacts on local, re22 gional, and private economic interests;

23 ‘‘(B) encourage the conservation and res24 toration of wetland functions where appro25 priate; and
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1 ‘‘(C) implement the regulatory program

2 authorized under section 404 to ensure that

3 landowners are not denied the reasonable use of

4 their property.’’.

5 SEC. 3. PERMITS FOR ACTIVITIES IN WATERS OF THE

6 UNITED STATES.

7 Section 404 of the Federal Water Pollution Control

8 Act (33 U.S.C. 1344) is amended to read as follows:

9 ‘‘PERMITS FOR ACTIVITY IN WATERS OF THE UNITED

10 STATES

11 ‘‘SEC. 404. (a) DEFINITIONS.—In this section:

12 ‘‘(1) ACTIVITY IN WATERS OF THE UNITED

13 STATES.—The term ‘activity in waters of the United

14 States’ means—

15 ‘‘(A) the discharge of dredged or fill mate16 rial into waters of the United States; or

17 ‘‘(B) the drainage, channelization, and ex18 cavation of waters of the United States that

19 would have the effect of significantly degrading

20 any waters of the United States.

21 ‘‘(2) AGRICULTURAL LAND.—The term ‘agricul22 tural land’ means cropland, pastureland, native pas23 ture, rangeland, an orchard, a vineyard,

24 nonindustrial forest land, an area that supports a

25 wetland crop (including cranberries, taro, water26 cress, or rice), and any other land used to produce
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1 or support the production of an annual or perennial

2 crop, aquaculture product, nursery product, or wet3 land crop or the production of livestock.

4 ‘‘(3) ALASKA NATIVE.—The term ‘Alaska Na5 tive’ has the meaning provided for ‘Native’ in section

6 3 of the Alaska Native Claims Settlement Act (43

7 U.S.C. 1602).

8 ‘‘(4) ALASKA NATIVE CORPORATION.—The term

9 ‘Alaska Native Corporation’ has the meaning pro10 vided for ‘Native Corporation’ in section 3 of the

11 Alaska Native Claims Settlement Act (43 U.S.C.

12 1602).

13 ‘‘(5) ALASKA NATIVE VILLAGE.—The term

14 ‘Alaska Native village’ has the meaning provided for

15 ‘Native village’ in section 3 of the Alaska Native

16 Claims Settlement Act (43 U.S.C. 1602).

17 ‘‘(6) CREATION.—The term ‘creation’, with re18 spect to wetland, means an activity that brings wet19 land into existence at a site where wetland did not

20 exist immediately prior to the activity.

21 ‘‘(7) DIRECTOR.—The term ‘Director’ means

22 the Director of the United States Fish and Wildlife

23 Service.

24 ‘‘(8) ECONOMIC BASE LAND.—The term ‘eco25 nomic base land’ means—
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1 ‘‘(A) land conveyed to, selected by, or

2 owned by an Alaska Native Corporation under

3 the Alaska Native Claims Settlement Act (43

4 U.S.C. 1601 et seq.) or the Act entitled ‘An Act

5 authorizing the Secretary of the Interior to allot

6 homesteads to the natives of Alaska’, approved

7 May 17, 1906 (34 Stat. 197, chapter 2469);

8 and

9 ‘‘(B) land conveyed to, selected by, or

10 owned by the State of Alaska under the Act en11 titled ‘An Act to provide for the admission of

12 the State of Alaska into the Union’, approved

13 July 7, 1958 (commonly known as the ‘Alaska

14 Statehood Act’) (Public Law 85–508; 72 Stat.

15 339).

16 ‘‘(9) ENHANCEMENT.—The term ‘enhance17 ment’, with respect to wetland, means an activity

18 that increases any of the wetland functions of a wet19 land in existence prior to the date of enhancement.

20 ‘‘(10) GROWING SEASON.—The term ‘growing

21 season’ means the period between the average date

22 of the last frost in spring and the average date of

23 the first frost in autumn, which dates shall be deter24 mined as the 32-degree, 50-percent probability dates

25 published by the National Climatic Data Center of
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1 the National Oceanic and Atmospheric Administra2 tion.

3 ‘‘(11) INCIDENTALLY CREATED.—The term ‘in4 cidentally created’, with respect to wetland, refers to

5 wetland that is the unintended result of an alter6 ation of hydrology caused by human activity.

7 ‘‘(12) LINEAR UTILITY FACILITY.—The term

8 ‘linear utility facility’ means a continuous convey9 ance, such as a pipeline, cable, line, or wire, used for

10 the transmission, gathering, or distribution of elec11 tric power, natural gas, oil, or water.

12 ‘‘(13) MAINTENANCE.—The term ‘mainte13 nance’, with respect to wetland, means an activity

14 undertaken to ensure continuation of wetland or the

15 accomplishment of a project goal after a wetland

16 restoration, creation, or enhancement project has

17 been completed, including water level manipulation

18 and control of nonnative plant species.

19 ‘‘(14) MITIGATION BANK.—The term ‘mitiga20 tion bank’ means a wetland restoration, creation, en21 hancement, or preservation project undertaken by a

22 private or public entity for the purpose of providing

23 mitigation compensation credits to offset wetland

24 losses authorized by the terms of permits allowing

25 activities in waters of the United States.
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1 ‘‘(15) NORMAL FARMING, SILVICULTURE, AQUA2 CULTURE, OR RANCHING ACTIVITY.—The term ‘nor3 mal farming, silviculture, aquaculture, or ranching

4 activity’ means a normal farming, silviculture, aqua5 culture, or ranching practice identified by the Sec6 retary of Agriculture, acting through the Chief of

7 the Natural Resources Conservation Service (in con8 sultation with the Cooperative State Research, Edu9 cation, and Extension Service for each State, the

10 land-grant university system, and the agricultural

11 colleges of the State), taking into account any exist12 ing practice (as of the date of identification) and

13 such other practices as may be identified in con14 sultation with the affected industry or community.

15 ‘‘(16) PRIOR CONVERTED CROPLAND.—The

16 term ‘prior converted cropland’ means agricultural

17 land that was, before December 23, 1985—

18 ‘‘(A) manipulated (by drainage or other

19 physical alteration to remove excess water from

20 the land); or

21 ‘‘(B) used for the production of—

22 ‘‘(i) any annual or perennial agricul23 tural crop (including forage or hay), aqua24 culture product, nursery product, or wet25 land crop; or
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1 ‘‘(ii) livestock.

2 ‘‘(17) RESTORATION.—The term ‘restoration’,

3 with respect to wetland, means an activity under4 taken to return wetland or former wetland from a

5 disturbed or altered condition with lesser wetland

6 acreage or fewer wetland functions to a previous

7 condition with greater wetland acreage or wetland

8 functions.

9 ‘‘(18) SECRETARY.—The term ‘Secretary’

10 means the Secretary of the Army, acting through

11 the Chief of Engineers of the Army Corps of Engi12 neers.

13 ‘‘(19) STATE WITH SUBSTANTIAL CONSERVED

14 WETLANDS.—The term ‘State with substantial con15 served wetlands’ means a State that contains at

16 least 15 acres of wetland located in the National

17 Park System, National Wildlife Refuge System, Na18 tional Wilderness Preservation System, Wild and

19 Scenic River System, or another similar Federal con20 servation system for each acre of wetland filled,

21 drained, or otherwise converted within the State

22 (based on the wetland loss statistics reported in the

23 1990 United States Fish and Wildlife Service report

24 to Congress entitled ‘Wetlands Losses in the United

25 States: 1780’s to 1980’s’).
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1 ‘‘(20) TEMPORARY.—The term ‘temporary’,

2 with respect to an impact on wetland, means the dis3 turbance or alteration of wetland caused by an activ4 ity under a circumstance in which, not later than 3

5 years after the commencement of the activity, the

6 wetland—

7 ‘‘(A) is returned to the condition in exist8 ence prior to the commencement of the activity;

9 or

10 ‘‘(B) displays a condition sufficient to en11 sure that without further human action, the

12 wetland will return to the condition in existence

13 prior to the commencement of the activity.

14 ‘‘(21) WATERS OF THE UNITED STATES.—The

15 term ‘waters of the United States’ includes wetland

16 but does not include—

17 ‘‘(A) a nontidal drainage or irrigation ditch

18 located in upland;

19 ‘‘(B) an artificially irrigated area that

20 would revert to upland if the irrigation ceased;

21 ‘‘(C) an artificial lake or pond created by

22 excavating or diking upland to collect and re23 tain water for the primary purpose of stock wa24 tering, irrigation, wildlife, fire control, cran-
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1 berry growing, or rice growing, or as a settling

2 pond;

3 ‘‘(D) an artificial reflecting or swimming

4 pool or other small ornamental body of water

5 created by excavating or diking upland to retain

6 water for primarily aesthetic reasons;

7 ‘‘(E) a waterfilled depression created in

8 upland incidental to construction activity or a

9 pit excavated in upland for the purpose of ob10 taining fill, sand, gravel, aggregates, or min11 erals, unless the construction or excavation op12 eration is abandoned and the resulting body of

13 water otherwise constitutes waters of the

14 United States;

15 ‘‘(F) an artificial stormwater detention

16 area or artificial sewage treatment area that is

17 not a modification of waters of the United

18 States;

19 ‘‘(G) prior converted cropland;

20 ‘‘(H) a confined dredged material disposal

21 area located in upland;

‘‘(I) isolated waters that are less than 1 22 ⁄2

23 acre in size; and

24 ‘‘(J) a nontidal, nonwetland river, stream,

25 creek, or other linear drainageway or portion of
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1 a linear drainageway that has an average an2 nual flow rate of less than 5 cubic feet per sec3 ond, except that the Secretary shall have the

4 discretion to declare such a nontidal,

5 nonwetland river, stream, creek, or other linear

6 drainageway or portion of a linear drainageway,

7 on a case-by-case basis, to be waters of the

8 United States based on concerns for the aquatic

9 environment.

10 ‘‘(22) WETLAND.—The term ‘wetland’ means

11 waters of the United States delineated as wetland

12 under subsection (e).

13 ‘‘(23) WETLAND FUNCTION.—The term ‘wet14 land function’ means a role that wetland serves, in15 cluding flood water storage, flood water conveyance,

16 ground water discharge, erosion control, wave at17 tenuation, water quality protection, scenic and aes18 thetic use, food chain support, fisheries, wetland

19 plant habitat, aquatic habitat, and habitat for wet20 land-dependent wildlife.

21 ‘‘(b) REQUEST FOR DETERMINATION OF JURISDIC22 TION.—

23 ‘‘(1) DETERMINATION BY THE SECRETARY.—

24 ‘‘(A) IN GENERAL.—A person who holds

25 an ownership interest in property, or who has
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1 written authorization from such a person, may

2 submit a request to the Secretary identifying

3 the property and requesting the Secretary to

4 make 1 or more of the following determinations

5 with respect to the property:

6 ‘‘(i) Whether the property contains

7 waters of the United States.

8 ‘‘(ii) If the property contains waters

9 of the United States, whether any portion

10 of the waters is wetland under subsection

11 (e).

12 ‘‘(iii) If any portion of the waters is

13 wetland under subsection (e), the classi14 fication or classifications of the wetland

15 under subsection (f).

16 ‘‘(B) PROVISION OF INFORMATION.—The

17 person shall provide such additional information

18 as may be necessary to make each determina19 tion requested under subparagraph (A).

20 ‘‘(C) DETERMINATION AND NOTIFICATION

21 BY THE SECRETARY.—Not later than 90 days

22 after receipt of a request under subparagraph

23 (A), the Secretary shall notify the person sub24 mitting the request of each determination made
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1 by the Secretary and provide a written expla2 nation for each determination.

3 ‘‘(2) DETERMINATION BY CERTIFIED NON-FED4 ERAL PERSON.—

5 ‘‘(A) CERTIFICATION.—Not later than 1

6 year after the date of enactment of the Wet7 lands Regulatory Reform Act of 1995, the Sec8 retary shall establish a program under which

9 persons other than employees of the Federal

10 Government may be certified, on the basis of

11 criteria established by the Secretary, to make

12 the determinations with respect to property de13 scribed in paragraph (1)(A).

14 ‘‘(B) DETERMINATION.—

15 ‘‘(i) IN GENERAL.—A person who

16 holds an ownership interest in property, or

17 who has written authorization from such a

18 person, may—

19 ‘‘(I) obtain the services of a per20 son certified under subparagraph (A)

21 to make 1 or more of the determina22 tions described in paragraph (1)(A)

23 with respect to the property; and

24 ‘‘(II) submit written documenta25 tion of each determination and the
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1 basis for each determination to the

2 Secretary.

3 ‘‘(ii) SUBMISSION TO THE SEC4 RETARY.—Each determination submitted

5 under clause (i) shall be binding on the

6 Secretary, effective 60 days after the date

7 of the submission, unless the Secretary—

8 ‘‘(I) notifies the person submit9 ting the documentation not later than

10 30 days after the date of submission

11 that the Secretary disapproves the de12 termination; and

13 ‘‘(II) issues a determination in

14 accordance with paragraph (1)(C) not

15 later than 60 days after the date of

16 notice under subclause (I).

17 ‘‘(c) PROCEDURES FOR ISSUANCE OF INDIVIDUAL

18 PERMITS.—

19 ‘‘(1) APPLICATIONS.—A person seeking to carry

20 out an activity in waters of the United States at a

21 site shall submit an application for a permit to the

22 Secretary in such form and containing such informa23 tion as the Secretary may require. Not later than 15

24 days after the Secretary receives the application, the

25 Secretary shall request from the applicant any addi-
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1 tional information necessary to complete the applica2 tion.

3 ‘‘(2) NOTICE AND OPPORTUNITY FOR HEAR4 ING.—Not later than 15 days after the date on

5 which an applicant submits all information required

6 to complete an application for a permit under para7 graph (1), the Secretary shall provide public notice

8 that the application has been submitted. Prior to the

9 issuance of the permit, the Secretary shall provide

10 opportunity, to the extent appropriate, for public

11 comment and public hearings on the issuance of the

12 permit.

13 ‘‘(3) ACTION BY THE SECRETARY.—

14 ‘‘(A) PERMIT ISSUANCE.—

15 ‘‘(i) WETLANDS.—If the Secretary de16 termines that—

17 ‘‘(I) the site specified in the ap18 plication contains waters of the

19 United States;

20 ‘‘(II) the activity for which the

21 permit is applied is an activity in wa22 ters of the United States;

23 ‘‘(III) the activity is not exempt

24 from the requirement for a permit

25 under subsection (d); and
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1 ‘‘(IV) any portion of the waters

2 is wetland under subsection (e);

3 the Secretary shall determine the classi4 fication or classifications of the wetland

5 under subsection (f) and whether to issue

6 a permit under this section in accordance

7 with subsection (g).

8 ‘‘(ii) WATERS OTHER THAN WET9 LANDS.—If the Secretary determines

10 that—

11 ‘‘(I) the site specified in the ap12 plication contains waters of the

13 United States;

14 ‘‘(II) the activity for which the

15 permit is applied is an activity in wa16 ters of the United States;

17 ‘‘(III) the activity is not exempt

18 from the requirement for a permit

19 under subsection (d); and

20 ‘‘(IV) no portion of the waters is

21 wetland under subsection (e);

22 the Secretary shall determine whether to

23 issue a permit under subsection (g)(2).

24 ‘‘(B) DETERMINATION THAT NO PERMIT IS

25 REQUIRED.—If the Secretary determines that—
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1 ‘‘(i) the site specified in the applica2 tion does not contain waters of the United

3 States;

4 ‘‘(ii) the activity for which the permit

5 is applied is not an activity in waters of

6 the United States; or

7 ‘‘(iii) the activity is exempt from the

8 requirement for a permit under subsection

9 (d);

10 the Secretary shall issue a decision that a per11 mit under this section is not required for the

12 activity described in the application.

13 ‘‘(C) PROVISION OF INFORMATION TO AP14 PLICANT.—In issuing a decision with respect to

15 a permit application under subparagraph (A) or

16 (B), the Secretary shall—

17 ‘‘(i) if the Secretary determines that a

18 permit is required, provide a copy of the

19 permit to the applicant; and

20 ‘‘(ii) notify the applicant of each de21 termination made by the Secretary and

22 provide a written explanation for each de23 termination.

24 ‘‘(4) DATE OF DECISION BY SECRETARY.—Ex25 cept as provided in paragraph (5), the Secretary
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1 shall issue a decision with respect to an application

2 for a permit submitted under paragraph (1) not

3 later than 90 days after the completed application is

4 submitted.

5 ‘‘(5) EXTENSION.—The decision of the Sec6 retary with respect to an application for a permit

7 under paragraph (1) may be issued after the date

8 specified in paragraph (4) only if—

9 ‘‘(A) with respect to issuance of the per10 mit, the Secretary is required under the Na11 tional Environmental Policy Act of 1969 (42

12 U.S.C. 4321 et seq.) to issue an environmental

13 impact statement, in which case the decision

14 shall be issued not later than 30 days after the

15 date on which the requirements of the Act are

16 met;

17 ‘‘(B) the permit application involves an ac18 tivity that may affect a species that is listed or

19 proposed for listing as endangered or threat20 ened or critical habitat that is designated or

21 proposed for designation under the Endangered

22 Species Act of 1973 (16 U.S.C. 1531 et seq.),

23 in which case the decision shall be issued not

24 later than 30 days after the date on which the

25 requirements of the Act are met, as determined
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1 by the Secretary of the Interior or the Sec2 retary of Commerce, as appropriate;

3 ‘‘(C) the Administrator, the Secretary of

4 Agriculture, the Secretary of the Interior, the

5 Secretary of Commerce, the Secretary of Trans6 portation, or the head of any other appropriate

7 Federal agency makes a request (stating 1 or

8 more reasons that additional time is needed)

9 that the Secretary grant an extension beyond

10 the date specified in paragraph (4), and the

11 Secretary grants the request in writing, in

12 which case the decision shall be issued not later

13 than 150 days after the completed application

14 is submitted;

15 ‘‘(D) the applicant for the permit requests

16 additional time for evaluation of the application,

17 in which case the decision shall be issued not

18 later than 30 days after the date the applicant

19 submits a written request for a decision; or

20 ‘‘(E) the issuance of the decision is pre21 cluded as a matter of law (including procedures

22 required by law other than this section).

23 ‘‘(6) FAILURE BY THE SECRETARY TO ISSUE A

24 DECISION.—If the Secretary fails to issue a decision

25 with respect to an application for a permit by the
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1 applicable date required under paragraph (4) or (5),

2 the permit shall be deemed granted.

3 ‘‘(7) IMPLEMENTING REGULATIONS.—

4 ‘‘(A) IN GENERAL.—Not later than 1 year

5 after the date of enactment of the Wetlands

6 Regulatory Reform Act of 1995, the Secretary

7 shall issue regulations to carry out this sub8 section.

9 ‘‘(B) STANDARDS TO BE INCLUDED.—

10 ‘‘(i) WETLANDS.—Subject to subpara11 graph (C), the regulations issued under

12 subparagraph (A) shall include standards

13 for the issuance of permits for activities in

14 waters of the United States that are wet15 land under subsection (g)(1). The stand16 ards shall include standards for compen17 satory mitigation that allow for—

18 ‘‘(I) enhancement or restoration

19 of degraded wetland;

20 ‘‘(II) creation of wetland if condi21 tions are imposed to ensure the suc22 cess of the creation of the wetland;

23 ‘‘(III) preservation or donation of

24 high quality wetland if the preserva-
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1 tion or donation results in demon2 strable benefit to the watershed;

3 ‘‘(IV) compensation through con4 tribution to a mitigation banking pro5 gram established under subsection

6 (n);

7 ‘‘(V) offsite compensatory mitiga8 tion if the mitigation contributes to

9 the restoration, enhancement, or cre10 ation of significant wetland functions

11 on a watershed basis and is balanced

12 with the effects that the proposed ac13 tivity will have on the specified site,

14 except that any offsite compensatory

15 mitigation shall, to the maximum ex16 tent practicable, be within the water17 shed within which the proposed activ18 ity is to occur, unless it would be con19 sistent with a State wetland manage20 ment plan to conduct mitigation out21 side the watershed;

22 ‘‘(VI) contribution of in-kind in23 trinsic environmental value acceptable

24 to the Secretary and otherwise au25 thorized by law;
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1 ‘‘(VII) in areas subject to coastal

2 wetland loss, construction of coastal

3 protection and enhancement projects;

4 ‘‘(VIII) contribution of resources

5 of more than 1 permittee toward a

6 single mitigation project; and

7 ‘‘(IX) other mitigation measures

8 determined by the Secretary to be ap9 propriate in the public interest and

10 consistent with this Act.

11 ‘‘(ii) WATERS OTHER THAN WET12 LANDS.—Subject to subparagraph (C), the

13 regulations issued under subparagraph (A)

14 shall include standards for the issuance of

15 permits for activities in waters of the

16 United States that are not wetland under

17 subsection (g)(2).

18 ‘‘(C) DETERMINATION OF APPROPRIATE

19 MITIGATION.—The Secretary shall have the dis20 cretion to determine what mitigation is appro21 priate for each permitted activity in waters of

22 the United States.

23 ‘‘(8) CONSULTATION WITH THE ADMINIS24 TRATOR.—In determining whether to issue a permit

25 under this subsection, the Secretary shall consult
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1 with the Administrator regarding whether an activ2 ity in waters of the United States at a specified site

3 would have an unacceptable adverse impact on water

4 quality, municipal water supplies, shellfish beds or

5 fishery areas (including spawning and breeding

6 areas), or wetland-dependent wildlife.

7 ‘‘(d) EXEMPT ACTIVITIES.—

8 ‘‘(1) IN GENERAL.—An activity in waters of the

9 United States shall be exempt from the requirement

10 for a permit under this section or section 301(a) or

11 402 (except to the extent that the sections relate to

12 compliance with effluent standards or prohibitions

13 under section 307), if the activity—

14 ‘‘(A) results from a normal farming,

15 silviculture, aquaculture, or ranching activity,

16 such as haying, grazing, plowing, seeding, cul17 tivating, minor drainage, burning of vegetation

18 in connection with the activity, harvesting for

19 production of a food, fiber, or forest product, or

20 an upland soil and water conservation practice;

21 ‘‘(B) is for the purpose of maintenance, in22 cluding emergency reconstruction of a recently

23 damaged, serviceable structure, such as a dike,

24 dam, levee, groin, riprap, breakwater, flood con25 trol channel or other engineered flood control
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1 facility, water conveyance, linear utility facility,

2 causeway, bridge abutment or approach, or

3 transportation structure;

4 ‘‘(C) is for the purpose of—

5 ‘‘(i) construction or maintenance of a

6 farm, stock, or aquaculture pond or an ir7 rigation canal or ditch; or

8 ‘‘(ii) maintenance of a drainage ditch

9 or spreading area for ground water re10 charge;

11 ‘‘(D) is for the purpose of construction of

12 a temporary sedimentation basin on a construc13 tion site if the facility being constructed on the

14 site itself does not involve an activity in waters

15 of the United States;

16 ‘‘(E) is for the purpose of construction or

17 maintenance of a farm road or forest road, tem18 porary road for moving mining equipment, ac19 cess road for a linear utility facility, railroad

20 line of up to 10 miles in length, or access road

21 to, or within, a drinking water treatment plant,

22 if the road or railroad line is constructed and

23 maintained, in accordance with best manage24 ment practices, to ensure that—
27

•S 851 IS

1 ‘‘(i) flow and circulation patterns and

2 chemical and biological characteristics of

3 the waters of the United States are not im4 paired;

5 ‘‘(ii) the reach of the waters of the

6 United States is not reduced; and

7 ‘‘(iii) any adverse impact on the

8 aquatic environment is minimized;

9 ‘‘(F) results from an activity with respect

10 to which a State has a program approved by

11 the Administrator under section 208(b)(4) that

12 meets the requirements of subparagraphs (B)

13 and (C) of section 208(b)(4);

14 ‘‘(G) is undertaken in connection with a

15 marsh management and conservation program

16 in a coastal county, parish, or borough, if the

17 program has been approved by the Governor of

18 the State or the designee of the Governor;

19 ‘‘(H) is for the placement of a structural

20 member for a pile-supported structure, such as

21 a pier or dock, or for a linear project such as

22 a bridge, transmission or distribution line foot23 ing, powerline structure, or elevated or other

24 walkway;
28

•S 851 IS

1 ‘‘(I) is for the placement of a piling in wa2 ters of the United States in a circumstance that

3 involves—

4 ‘‘(i) a linear project described in sub5 paragraph (H); or

6 ‘‘(ii) a structure such as a pier, boat7 house, wharf, marina, lighthouse, or indi8 vidual house built on stilts solely to reduce

9 the potential of flooding;

10 ‘‘(J) is for the clearing of vegetation—

11 ‘‘(i) within a right-of-way associated

12 with the development and maintenance of

13 a linear utility facility; or

14 ‘‘(ii) from a reservoir used primarily

15 for storage of drinking water if the con16 struction of the reservoir was permitted

17 under this section, or if the construction of

18 the reservoir predates the requirement for

19 the permit;

20 ‘‘(K) is undertaken on land or involves ac21 tivities solely within a coastal zone of a State

22 that are excluded from regulation under the

23 State coastal zone management program ap24 proved under the Coastal Zone Management

25 Act of 1972 (16 U.S.C. 1451 et seq.);
29

•S 851 IS

1 ‘‘(L) is undertaken in incidentally created

2 wetland that has exhibited wetland functions

3 for less than 5 years;

4 ‘‘(M) results from an aggregate or clay

5 mining activity in wetland that is conducted

6 under a Federal or State permit that requires—

7 ‘‘(i) that reclamation of the affected

8 wetland be completed within 5 years after

9 the commencement of the activity; and

10 ‘‘(ii) that the wetland be reclaimed to

11 a condition capable of supporting wetland

12 functions that are substantially equivalent

13 to the wetland functions supported by the

14 wetland at the time of commencement of

15 the activity;

16 ‘‘(N) is for the purpose of preserving or

17 enhancing aviation safety or is undertaken in

18 order to prevent an airport hazard, if the activ19 ity does not include a significant expansion of

20 an airport facility;

21 ‘‘(O) is for the construction or mainte22 nance of a log transfer facility associated with

23 a log transportation activity;

24 ‘‘(P) is for the construction of a mine

25 tailings impoundment utilized for a treatment
30

•S 851 IS

1 facility, if the construction does not involve the

2 disturbance of Class A wetland classified under

3 subsection (f)(2)(A);

4 ‘‘(Q) is for the construction of an ice pad

5 or ice road or for the purpose of snow storage

6 or removal; or

7 ‘‘(R) is part of a single and complete

project disturbing less than 1 8 ⁄2 acre of Class B

9 wetland classified under subsection (f)(2)(B).

10 ‘‘(2) AUTHORIZED FEDERAL PROJECTS.—An

11 activity in waters of the United States as part of the

12 construction of a Federal project specifically author13 ized by Congress shall not be prohibited by or other14 wise subject to the requirement for a permit under

15 this section, a State permit program approved under

16 this section, or section 301(a) or 402 (except to the

17 extent that the sections relate to compliance with ef18 fluent standards or prohibitions under section 307),

19 if—

20 ‘‘(A) information on the effects of the ac21 tivity, including consideration of the regulations

22 issued under subsection (c)(7), is included in an

23 environmental impact statement for the project

24 under the National Environmental Policy Act of

25 1969 (42 U.S.C. 4321 et seq.); and
31

•S 851 IS

1 ‘‘(B) the environmental impact statement

2 has been submitted to Congress before the ac3 tivity is carried out in connection with the con4 struction of the project and prior to authoriza5 tion of the project or an appropriation of funds

6 for the construction.

7 ‘‘(e) DELINEATION PROCEDURES.—

8 ‘‘(1) REVISIONS TO DELINEATION PROCEDURES

9 FOR WETLANDS.—

10 ‘‘(A) REGULATIONS.—Not later than 1

11 year after the date of enactment of the Wet12 lands Regulatory Reform Act of 1995, the Sec13 retary, after notice and opportunity for public

14 comment, shall issue regulations for the delin15 eation of wetlands. In developing the regula16 tions, the Secretary shall consider the study of

17 wetlands conducted by the National Academy of

18 Sciences under the Departments of Veterans

19 Affairs and Housing and Urban Development,

20 and Independent Agencies Appropriations Act,

21 1993 (Public Law 102–389).

22 ‘‘(B) CRITERIA FOR DELINEATION OF

23 WETLANDS.—The regulations issued under sub24 paragraph (A) shall provide that waters of the
32

•S 851 IS

1 United States shall be delineated as wetland

2 if—

3 ‘‘(i) the Secretary finds clear evidence

4 that the waters have wetland hydrology,

5 hydrophytic vegetation, and hydric soil

6 during the period in which the delineation

7 (to be conducted during the growing sea8 son unless otherwise requested by the ap9 plicant) is made;

10 ‘‘(ii) in the case of—

11 ‘‘(I) nontidal wetland, water is on

12 or above the surface of the ground for

13 at least 21 consecutive days during

14 the growing season in a year of nor15 mal rainfall; or

16 ‘‘(II) tidal wetland, the waters

17 are subject to predictable tidal influ18 ence; and

19 ‘‘(iii) the wetland was not temporarily

20 or incidentally created as a result of adja21 cent development activity.

22 ‘‘(C) HYDROPHYTIC VEGETATION.—For

23 the purpose of subparagraph (B)(i), waters of

24 the United States—
33

•S 851 IS

1 ‘‘(i) shall be considered to exhibit

2 clear evidence of hydrophytic vegetation if

3 obligate wetland vegetation is found to be

4 present during the period of delineation

5 (except that if the vegetation is removed

6 for the purpose of evading the applicability

7 of a requirement of this section, this clause

8 shall not apply); and

9 ‘‘(ii) shall not be considered to exhibit

10 clear evidence of hydrophytic vegetation

11 based solely on vegetation that is equally

12 adapted to dry or wet soil conditions, or is

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

15 ‘‘(2) CONTINUED USE OF 1987 MANUAL.—Until

16 regulations are issued under paragraph (1)(A), the

17 Secretary shall use the Corps of Engineers Wetlands

18 Delineation Manual issued in January 1987 (Tech19 nical Report Y–87–1) and implementing guidelines

20 to identify and delineate wetland areas, except that

21 the Secretary shall modify the guidelines to make

22 the guidelines consistent with paragraph (1).

23 ‘‘(3) AGRICULTURAL LAND.—

24 ‘‘(A) IN GENERAL.—For the purpose of

25 this section, wetland located on agricultural
34

•S 851 IS

1 land and associated nonagricultural land shall

2 be delineated solely by the Secretary of Agri3 culture in accordance with section 1222(j) of

4 the Food Security Act of 1985 (16 U.S.C.

5 3822(j)).

6 ‘‘(B) CONSISTENCY.—Any area of agricul7 tural land or any activity that is related to agri8 cultural land determined to be exempt from the

9 requirements of subtitle C of title XII of the

10 Food Security Act of 1985 (16 U.S.C. 3821 et

11 seq.) shall be exempt from this section for such

12 period of time as the land is used as agricul13 tural land.

14 ‘‘(f) WETLAND CLASSIFICATION.—

15 ‘‘(1) CRITERIA.—Not later than 1 year after

16 the date of enactment of the Wetlands Regulatory

17 Reform Act of 1995, the Secretary shall issue regu18 lations to classify wetlands as Class A, Class B, or

19 Class C wetlands, depending on the relative environ20 mental significance of the wetlands, and taking into

21 account regional variations in hydrology, soils, and

22 vegetation.

23 ‘‘(2) CLASSIFICATION.—Under the criteria, the

24 Secretary, in connection with consideration of a per25 mit application under subsection (c)(1) or at the re-
35

•S 851 IS

1 quest of a person under subsection (b), shall clas2 sify—

3 ‘‘(A) as Class A wetland, wetland that is of

4 critical significance to the long-term conserva5 tion of the aquatic system of which the wetland

6 is a part if—

7 ‘‘(i) the wetland serves critical wet8 land functions, including the provision of

9 critical habitat for a concentration of wet10 land-dependent wildlife;

11 ‘‘(ii)(I) the wetland—

12 ‘‘(aa) consists of (or is a portion

13 of) 10 or more contiguous acres of

14 wetland of any classification; and

15 ‘‘(bb) has a defined surface outlet

16 for relief of water flow; or

17 ‘‘(II) the wetland—

18 ‘‘(aa) contains a prairie pothole

19 feature, playa lake, or vernal pool;

20 and

21 ‘‘(bb) consists of or is a portion

22 of 1 or more contiguous acres of wet23 land of any classification; and

24 ‘‘(iii) there exists a scarcity of func25 tioning wetland within the watershed or
36

•S 851 IS

1 aquatic system such that an activity in wa2 ters of the United States carried out in the

3 wetland would seriously jeopardize the

4 availability of critical wetland functions

5 identified under clause (i);

6 ‘‘(B) as Class B wetland, wetland that pro7 vides habitat for a significant population of wet8 land-dependent wildlife, or provides other sig9 nificant wetland functions, including significant

10 enhancement or protection of water quality, or

11 significant natural flood control; and

12 ‘‘(C) as Class C wetland, wetland that is

13 not classified as Class A or Class B wetland,

14 such as wetland that—

15 ‘‘(i) serves marginal wetland functions

16 but exists in such abundance that regula17 tion of activity in the wetland is not nec18 essary to conserve important wetland func19 tions;

20 ‘‘(ii) is within an industrial, commer21 cial, or residential complex or other in22 tensely developed area, so that the wetland

23 does not serve significant wetland func24 tions; or
37

•S 851 IS

1 ‘‘(iii) is located behind a legally con2 structed manmade structure or natural

3 formation, such as a levee constructed and

4 maintained to permit the utilization of the

5 land for commercial, industrial, agricul6 tural, or residential purposes consistent

7 with local land use planning requirements.

8 ‘‘(g) PERMIT DETERMINATIONS.—

9 ‘‘(1) WETLANDS.—

10 ‘‘(A) CLASS A WETLAND.—

11 ‘‘(i) IN GENERAL.—The Secretary

12 shall determine whether to issue a permit

13 for an activity in waters of the United

14 States classified under subsection (f) as

15 Class A wetland based on whether the ac16 tivity is in the public interest and on a se17 quential analysis that seeks, to the maxi18 mum extent practicable, to—

19 ‘‘(I) avoid adverse impact on the

20 wetland;

21 ‘‘(II) minimize such adverse im22 pact as cannot be avoided; and

23 ‘‘(III) replace on a 1-to-1 basis

24 any loss of wetland functions that

25 cannot be avoided or minimized.
38

•S 851 IS

1 ‘‘(ii) WATER-DEPENDENT ACTIVI2 TIES.—

3 ‘‘(I) IN GENERAL.—In carrying

4 out clause (i)(I) with respect to a

5 water-dependent activity described in

6 subclause (II), the Secretary may not

7 presume that an alternative site in an

8 area that is not waters of the United

9 States is available.

10 ‘‘(II) WATER-DEPENDENT ACTIV11 ITY.—A water-dependent activity re12 ferred to in subclause (I) is an activ13 ity that requires access or proximity

14 to, or siting within, waters of the

15 United States to fulfill the basic pur16 pose of the activity.

17 ‘‘(iii) MITIGATION.—

18 ‘‘(I) IN GENERAL.—Subject to

19 subclause (II), a permit issued under

20 clause (i) shall contain such terms

21 and conditions concerning mitigation

22 as the Secretary considers to be ap23 propriate to meet the requirement of

24 clause (i)(III) and prevent any unac-
39

•S 851 IS

1 ceptable loss or degradation of Class

2 A wetland.

3 ‘‘(II) MINING RECLAMATION AC4 TIVITIES.—The mitigation require5 ments of this section shall be deemed

6 met with respect to an activity in

7 Class A wetland if the activity is car8 ried out in accordance with a State9 approved reclamation plan or permit

10 that requires recontouring and

11 revegetation following mining, and the

12 recontouring and revegetation results

13 in overall environmental benefits.

14 ‘‘(B) CLASS B WETLAND.—

15 ‘‘(i) IN GENERAL.—The Secretary

16 shall determine whether to issue a permit

17 to authorize an activity in waters of the

18 United States classified under subsection

19 (f) as Class B wetland after conducting a

20 public interest review that balances the

21 reasonably foreseeable benefits and det22 riments resulting from the issuance of the

23 permit (including proposed mitigation), in24 cluding such factors as—

25 ‘‘(I) economic growth;
40

•S 851 IS

1 ‘‘(II) the need for habitat for

2 wetland-dependent wildlife;

3 ‘‘(III) water supply and conserva4 tion;

5 ‘‘(IV) water quality;

6 ‘‘(V) infrastructure needs;

7 ‘‘(VI) energy needs;

8 ‘‘(VII) mineral needs;

9 ‘‘(VIII) food production;

10 ‘‘(IX) recreation; and

11 ‘‘(X) considerations of private

12 property ownership.

13 ‘‘(ii) CONDITIONS ON PERMIT.—The

14 Secretary shall impose conditions on a per15 mit issued under clause (i) as necessary to

16 ensure that the watershed or aquatic sys17 tem of which the wetland is a part does

18 not suffer significant loss or degradation of

19 wetland functions, except that the Sec20 retary may not require replacement of wet21 land functions on a greater than 1-to-1

22 basis.

23 ‘‘(C) CLASS C WETLAND.—No permit from

24 the Secretary shall be required with respect to
41

•S 851 IS

1 an activity in waters of the United States clas2 sified under subsection (f) as Class C wetland.

3 ‘‘(D) STATES WITH SUBSTANTIAL CON4 SERVED WETLANDS.—Notwithstanding sub5 paragraphs (A) and (B), in issuing a permit to

6 authorize an activity in Class A or Class B wet7 land located in a State with substantial con8 served wetlands, the Secretary—

9 ‘‘(i) may require the avoidance of ad10 verse impact on the wetland, except that

11 the permit applicant may not be required

12 to establish that no upland alternative site

13 exists; and

14 ‘‘(ii) shall not require the replacement

15 of wetland functions that cannot be avoid16 ed or minimized.

17 ‘‘(2) WATERS OTHER THAN WETLANDS.—The

18 Secretary may issue a permit authorizing an activity

19 in waters of the United States that are not wetland

20 if the Secretary determines that issuance of the per21 mit is in the public interest after balancing the rea22 sonably foreseeable benefits and detriments resulting

23 from the issuance of the permit. The Secretary may

24 impose conditions on the permit as necessary to

25 carry out the policies of this Act. In determining
42

•S 851 IS

1 whether to issue the permit and whether conditions

2 are necessary, the Secretary shall consider the fac3 tors specified in clauses (i) and (ii) of paragraph

4 (1)(B) with respect to the waters.

5 ‘‘(h) GENERAL PERMITS.—

6 ‘‘(1) ISSUANCE.—

7 ‘‘(A) IN GENERAL.—In carrying out the

8 functions of the Secretary relating to activities

9 in waters of the United States under this sec10 tion, the Secretary may issue a general permit

11 on a State, regional, or nationwide basis for any

12 activities in waters of the United States for

13 which a permit would otherwise be required

14 under subsection (c), if the Secretary deter15 mines that the activities will cause only minimal

16 or temporary adverse environmental impacts

17 when performed separately, and will cause only

18 minimal cumulative adverse environmental im19 pacts.

20 ‘‘(B) REQUIREMENTS AND CONTENTS.—A

21 general permit issued under subparagraph (A)

22 shall—

23 ‘‘(i) be based on the regulations issued

24 under subsection (c)(7); and
43

•S 851 IS

1 ‘‘(ii) specify the requirements and

2 standards that shall apply to an activity

3 authorized by the general permit.

4 ‘‘(2) TERMINATION OF GENERAL PERMITS.—

5 ‘‘(A) PERIOD OF VALIDITY.—A general

6 permit issued under paragraph (1) shall be

7 valid for a period of not more than 5 years

8 after the date of issuance of the permit.

9 ‘‘(B) REVOCATION AND MODIFICATION.—A

10 general permit may be revoked or modified by

11 the Secretary if the Secretary determines that

12 the activities authorized by the general permit

13 have an adverse impact on the environment or

14 that the activities are more appropriately au15 thorized by the issuance of individual permits

16 under subsection (c).

17 ‘‘(3) STATE PROGRAMS.—

18 ‘‘(A) IN GENERAL.—Subject to subpara19 graph (B), on the request of a State that has

20 in effect a wetland regulatory program, the Sec21 retary shall issue a general permit for the pro22 gram with respect to activities in waters of the

23 United States regulated under the program if

24 the program—
44

•S 851 IS

1 ‘‘(i) has jurisdiction over the activities

2 and waters within the scope of the re3 quested general permit;

4 ‘‘(ii) provides adequate safeguards to

5 ensure that the program will provide a

6 substantially similar level of protection of

7 waters of the United States as the protec8 tion provided by this section;

9 ‘‘(iii) provides adequate safeguards to

10 ensure that the program will provide a

11 substantially similar level of protection of

12 private property as the protection provided

13 by this section;

14 ‘‘(iv) provides at least the same oppor15 tunity for public review, comment, and

16 hearings as the opportunity provided by

17 this section; and

18 ‘‘(v) provides an opportunity for the

19 Secretary, in cooperation with the Admin20 istrator, to conduct periodic reviews of per21 mit decisions issued under the program in

22 order to ensure that the requirements of

23 this subsection are met.

24 ‘‘(B) LINEAR UTILITY FACILITIES.—A

25 general permit issued under this paragraph
45

•S 851 IS

1 shall not authorize a non-Federal wetland regu2 latory program to issue a general permit cover3 ing linear utility facilities.

4 ‘‘(4) CONSISTENCY WITH SWAMPBUSTER.—A

5 general permit may be issued for activities in waters

6 of the United States associated with an activity that

7 is determined by the Secretary of Agriculture to be

8 exempt from the ineligibility provisions of section

9 1221 of the Food Security Act of 1985 (16 U.S.C.

10 3821) under subsection (f) or (h) of section 1222 of

11 the Act (16 U.S.C. 3822), if the general permit—

12 ‘‘(A) provides adequate safeguards to en13 sure that the exempted activity will have no

14 more than minimal individual and cumulative

15 adverse impacts on the environment; and

16 ‘‘(B) provides an opportunity for the Sec17 retary to conduct periodic reviews of decisions

18 made by the Secretary of Agriculture to ensure

19 that the terms and conditions of the general

20 permit and the requirements of this subsection

21 are met.

22 ‘‘(5) STATES WITH SUBSTANTIAL CONSERVED

23 WETLANDS.—Notwithstanding paragraphs (1) and

24 (2), at the request of a State with substantial con25 served wetlands, the Secretary shall issue a general
46

•S 851 IS

1 permit for the State. The general permit shall con2 tain requirements for activities in waters of the

3 United States in the State that provide no greater

4 level of protection of waters of the United States

5 than the requirements that would otherwise be appli6 cable under subsection (c).

7 ‘‘(i) ALASKA NATIVE AND STATE OF ALASKA

8 LANDS.—

9 ‘‘(1) IN GENERAL.—Subject to paragraph (2),

10 with respect to a State with substantial conserved

11 wetlands, the Secretary shall issue individual and

12 general permits in accordance with subsections (c)

13 and (h).

14 ‘‘(2) PERMIT CONSIDERATIONS.—In the case of

15 a permit issued under this section for an activity in

16 waters of the United States on economic base land,

17 in addition to the requirements of subsections (c)

18 and (h), the Secretary shall—

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

20 this Act with the obligations of the United

21 States to allow economic base land to be bene22 ficially used to create and sustain economic ac23 tivity;

24 ‘‘(B) with respect to Alaska Native land

25 described in subsection (a)(8)(A), give substan-
47

•S 851 IS

1 tial weight to the social and economic needs of

2 Alaska Natives; and

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

4 abundance and value of wetland.

5 ‘‘(3) GENERAL PERMITS.—The Secretary shall

6 issue a general permit for an activity in waters of

7 the United States on land owned by Alaska Native

8 villages for critical infrastructure (including a water

9 or sewer system, airport, road, communication site,

10 fuel storage site, landfill, housing facility, hospital,

11 medical clinic, school, or other community infra12 structure in a rural Alaska Native village) without

13 making the determinations otherwise required under

14 subsection (h)(1)(A).

15 ‘‘(4) CONSULTATION AND ASSISTANCE.—The

16 Secretary shall consult with and provide assistance

17 to Alaska Natives (including Alaska Native Corpora18 tions) and the State of Alaska regarding the issu19 ance and administration of policies and regulations

20 under this section.

21 ‘‘(j) INTERAGENCY COOPERATION.—The Secretary

22 shall enter into agreements with the Administrator, the

23 Secretary of Agriculture, the Secretary of Commerce, the

24 Secretary of the Interior, the Secretary of Transportation,

25 and the heads of other appropriate Federal agencies to
48

•S 851 IS

1 minimize, to the maximum extent practicable, duplication,

2 needless paperwork, and delays in the issuance of permits

3 under this section.

4 ‘‘(k) COMPLIANCE.—

5 ‘‘(1) EFFECT OF COMPLIANCE WITH A PER6 MIT.—Compliance with a permit issued under this

7 section, including carrying out an activity carried

8 out under a general permit issued under subsection

9 (h), shall be deemed, for the purposes of sections

10 309 and 505, to constitute compliance with sections

11 301, 307, and 403.

12 ‘‘(2) CRANBERRY PRODUCTION.—An activity

13 associated with the expansion, enhancement, or

14 modification of a cranberry production operation

15 shall be deemed, for the purposes of sections 309

16 and 505, to constitute compliance with section 301,

17 if—

18 ‘‘(A) the activity does not result in the

19 modification of more than 10 acres of wetland

20 per operator per year, and the modified wetland

21 (other than where a dike or other necessary fa22 cility is placed) remains as waters of the United

23 States; or

24 ‘‘(B) the activity is required by a Federal

25 or State water quality program.
49

•S 851 IS

1 ‘‘(3) EFFECT OF COMPLIANCE WITH SEC2 TION.—Any activity in waters of the United States

3 that is—

4 ‘‘(A) authorized by a permit under this

5 section;

6 ‘‘(B) exempted from the requirement for a

7 permit under this section; or

8 ‘‘(C) carried out in an area not determined

9 to be waters of the United States under this

10 section;

11 shall not be considered to be a violation of this sec12 tion.

13 ‘‘(l) VIOLATIONS.—

14 ‘‘(1) UNAUTHORIZED ACTIVITIES.—The Sec15 retary shall have exclusive enforcement authority

16 with respect to an activity in waters of the United

17 States that violates section 301.

18 ‘‘(2) ENFORCEMENT BY SECRETARY.—If the

19 Secretary determines, on the basis of reliable and

20 substantial information and after reasonable inquiry,

21 that a person has or may have carried out an activ22 ity in waters of the United States in violation of sec23 tion 301(a), or is or may be in violation of this sec24 tion or a condition or limitation specified in a permit

25 issued by the Secretary under subsection (c), the
50

•S 851 IS

1 Secretary shall issue an order requiring the person

2 to comply with section 301(a), this section, or with

3 the condition or limitation in the permit.

4 ‘‘(3) ORDERS ISSUED BY SECRETARY.—

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

6 A copy of each order issued under paragraph

7 (2) shall be sent immediately by the Secretary

8 to the Governor of the State in which the viola9 tion occurred and the Governor of any other af10 fected State.

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

12 subparagraph (C), an order issued under para13 graph (2) shall—

14 ‘‘(i) be issued by personal service on

15 the appropriate person or corporate officer;

16 ‘‘(ii) state with reasonable specificity

17 why the activity is a violation and the na18 ture, the amount of acreage, and the loca19 tion of the asserted violation; and

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

21 not to exceed 30 days, that the Secretary

22 determines is reasonable (taking into ac23 count the seriousness of the asserted viola24 tion and any good faith efforts that have
51

•S 851 IS

1 been made to comply with applicable re2 quirements).

3 ‘‘(C) TIME LIMIT ON ORDER.—

4 ‘‘(i) IN GENERAL.—Not later than

5 150 days after the date of service under

6 subparagraph (B), the Secretary shall—

7 ‘‘(I) take such action as is nec8 essary for the prosecution of a civil,

9 criminal, or administrative penalty ac10 tion, as appropriate; or

11 ‘‘(II) rescind the order issued

12 under paragraph (2).

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

14 receiving service under subparagraph (B)

15 disputes the determination described in

16 paragraph (2) and notifies the Secretary in

17 writing not later than 90 days after the

18 date of service, the Secretary shall, not

19 later than 60 days after receiving the noti20 fication of the dispute—

21 ‘‘(I) take such action as is nec22 essary for the prosecution of a civil,

23 criminal, or administrative penalty ac24 tion, as appropriate; or
52

•S 851 IS

1 ‘‘(II) rescind the order issued

2 under paragraph (2).

3 ‘‘(D) ESTOPPEL.—If the Secretary re4 scinds an order under clause (i)(II) or (ii)(II)

5 of subparagraph (C), the Secretary shall be es6 topped from any further enforcement proceed7 ing for the violation asserted in the order.

8 ‘‘(4) CIVIL ACTIONS.—The Secretary may com9 mence a civil action for appropriate relief, including

10 a permanent or temporary injunction, for any viola11 tion for which the Secretary may issue an order

12 under paragraph (2). An action commenced under

13 this paragraph may be brought in the district court

14 of the United States for the district in which the de15 fendant is located or resides or is doing business,

16 and the court shall have jurisdiction to restrain the

17 violation and to require compliance. Notice of the

18 commencement of the action shall be given imme19 diately to the Governor of the State in which the vio20 lation occurred and the Governor of any other af21 fected State.

22 ‘‘(5) CIVIL PENALTIES.—

23 ‘‘(A) IN GENERAL.—A person who violates

24 section 301(a) with respect to an activity in wa25 ters of the United States, this section, or a con-
53

•S 851 IS

1 dition or limitation in a permit issued by the

2 Secretary under subsection (c), or who violates

3 an order issued by the Secretary under para4 graph (2), may be subject to a civil penalty not

5 to exceed $1,000 for each day of violation if the

6 person is an individual or $25,000 for each day

7 of violation if the person is not an individual,

8 commencing on the day following expiration of

9 the period allowed for compliance.

10 ‘‘(B) DETERMINATION OF AMOUNT.—The

11 amount of the penalty imposed for each day

12 shall be in proportion to the scale or scope of,

13 or the destruction or degradation caused by, the

14 violation. In determining the amount of a civil

15 penalty under this paragraph, the Secretary or

16 the court, as appropriate, shall consider the se17 riousness of the violation, the economic benefit

18 (if any) resulting from the violation, any history

19 of a previous violation, any good-faith effort to

20 comply with applicable requirements, the eco21 nomic impact of the penalty on the violator, and

22 any other matter that justice may require.

23 ‘‘(6) CRIMINAL PENALTIES.—

24 ‘‘(A) IN GENERAL.—If—
54

•S 851 IS

1 ‘‘(i) a person has been notified of an

2 order issued by the Secretary under para3 graph (2) concerning a violation;

4 ‘‘(ii) the violation consists of the

5 knowing and intentional violation by the

6 person of this section or a condition or lim7 itation in a permit issued by the Secretary

8 under subsection (c); and

9 ‘‘(iii) the violation has resulted in ac10 tual and substantial environmental harm;

11 the person shall (except as provided in subpara12 graph (B)) be fined not less than $5,000 nor

13 more than $50,000 for each day of violation or

14 imprisoned not more than 3 years, or both.

15 ‘‘(B) SUBSEQUENT CONVICTIONS.—If a

16 conviction of a person under subparagraph (A)

17 is for a violation committed after a previous

18 conviction of the person under subparagraph

19 (A), the person shall be fined not more than

20 $100,000 for each day of violation or impris21 oned not more than 6 years, or both.

22 ‘‘(C) BRINGING OF ACTION.—An action for

23 imposition of a criminal penalty under this

24 paragraph may be brought only by the Attorney

25 General.
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1 ‘‘(7) ADMINISTRATIVE PENALTIES.—The Sec2 retary may assess administrative penalties for an ac3 tivity in waters of the United States in violation of

4 section 301(a) to the extent and in the manner de5 scribed in section 309(g).

6 ‘‘(8) EMERGENCY POWERS.—The Secretary

7 may exercise the emergency powers described in sec8 tion 504 with respect to activities in waters of the

9 United States.

10 ‘‘(m) ADMINISTRATIVE APPEALS.—

11 ‘‘(1) IN GENERAL.—Not later than 1 year after

12 the date of enactment of the Wetlands Regulatory

13 Reform Act of 1995, the Secretary, after providing

14 notice and opportunity for public comment, shall

15 issue regulations establishing procedures under

16 which—

17 ‘‘(A) a landowner may appeal a determina18 tion that a permit is required under this section

19 with respect to a parcel of land;

20 ‘‘(B) any person may appeal a determina21 tion that a proposed activity is not exempt

22 under subsection (d);

23 ‘‘(C) a landowner may appeal a determina24 tion that an activity is not eligible for a general

25 permit issued under subsection (h);
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•S 851 IS

1 ‘‘(D) an applicant for a permit under this

2 section may appeal a determination made under

3 this section to deny issuance of the permit or

4 to impose a requirement or standard under the

5 permit; and

6 ‘‘(E) a landowner or any other person re7 quired to restore or otherwise alter a parcel of

8 land under an order under this section may ap9 peal the order.

10 ‘‘(2) FILING DEADLINE.—An appeal brought

11 under this subsection shall be filed not later than

12 120 days after the date on which written notice of

13 the decision or action that is the subject of the ap14 peal is received, or is deemed received, by the person

15 filing the appeal.

16 ‘‘(3) DECISION DEADLINE.—An appeal brought

17 under this subsection shall be decided not later than

18 90 days after the date on which the appeal is filed.

19 ‘‘(4) THIRD-PARTY COMMENTS ON APPEAL.—

20 Any person who participated in the public comment

21 process concerning a decision or action that is the

22 subject of an appeal brought under this subsection

23 may file written comments with respect to the ap24 peal.
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1 ‘‘(5) OFFICIAL DECIDING APPEAL.—An appeal

2 brought under this subsection shall be heard and de3 cided by an appropriate and impartial official of the

4 Federal Government, other than the official who

5 made the determination or carried out the action

6 that is the subject of the appeal.

7 ‘‘(6) PAYMENT OR MITIGATION AFTER AP8 PEAL.—A person who has filed an appeal under this

9 subsection shall not be required to pay a penalty or

10 perform mitigation or restoration required under

11 this section or section 309 until after the appeal has

12 been decided.

13 ‘‘(n) MITIGATION BANKS.—

14 ‘‘(1) ESTABLISHMENT.—Not later than 1 year

15 after the date of enactment of the Wetlands Regu16 latory Reform Act of 1995, after providing notice

17 and opportunity for public review and comment, the

18 Secretary shall issue regulations for the establish19 ment, use, maintenance, and oversight of mitigation

20 banks. The regulations shall be developed in con21 sultation with the Administrator and the Director.

22 ‘‘(2) PROVISIONS AND REQUIREMENTS.—The

23 regulations issued under paragraph (1) shall ensure

24 that each mitigation bank—
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1 ‘‘(A) complies with the regulations issued

2 under subsection (c)(7);

3 ‘‘(B) to the extent practicable and environ4 mentally desirable, provides in-kind replacement

5 of lost wetland functions, and is located in, or

6 in proximity to, the same watershed as the af7 fected wetland;

8 ‘‘(C) is operated by an entity that has the

9 financial ability to meet the requirements of

10 this section;

11 ‘‘(D) requires the deposit by the entity of

12 a performance bond or other appropriate dem13 onstration of financial responsibility to support

14 the long-term maintenance of the bank;

15 ‘‘(E) specifies responsibilities for long-term

16 monitoring, maintenance, and protection of wet17 land;

18 ‘‘(F) requires the entity to provide for the

19 long-term security of ownership interests of

20 wetland and upland on which projects are con21 ducted to protect the wetland functions associ22 ated with the mitigation banks;

23 ‘‘(G) employs consistent and scientifically

24 sound methods to—
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1 ‘‘(i) determine debits by evaluating

2 the wetland functions, adverse project im3 pacts, and the duration of each impact at

4 each site of a proposed permit for an activ5 ity in waters of the United States under

6 this section; and

7 ‘‘(ii) determine credits based on wet8 land functions at the sites of mitigation

9 banks;

10 ‘‘(H) provides—

11 ‘‘(i) for the transfer of credits for

12 mitigation that has been performed and for

13 mitigation that will be performed within a

14 designated time in the future; and

15 ‘‘(ii) for posting of financial bonds in

16 sufficient amount to ensure that the future

17 mitigation will be performed in the case of

18 default; and

19 ‘‘(I) provides opportunity for public notice

20 of, and comment on, proposals for mitigation

21 banks and applications for a permit under this

22 section.

23 ‘‘(o) RESTORATION OF WETLANDS.—

24 ‘‘(1) RESTORATION PROJECTS.—The Secretary

25 shall provide appropriate regulatory relief with re-
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1 spect to regulations issued under this section for

2 each activity in waters of the United States that has

3 as the primary purpose to restore degraded wetland,

4 including providing a general permit or other form

5 of expedited permit processing for the activity.

6 ‘‘(2) RESTORATION AND CREATION IN AREAS

7 NOT CURRENTLY WATERS OF THE UNITED

8 STATES.—

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

10 establish a registry of wetland that has been

11 created or restored voluntarily in an area that,

12 prior to the creation or restoration, did not con13 tain waters of the United States and therefore

14 was not subject to regulation under this section.

15 Wetland listed in the registry shall not be con16 sidered to be waters of the United States and

17 shall not be subject to regulation under this

18 section unless the wetland is subsequently ac19 cepted as mitigation for an activity in waters of

20 the United States authorized under this section.

21 ‘‘(B) ELIGIBILITY OF WETLAND.—The

22 Secretary may establish requirements for deter23 mining the eligibility of degraded wetland for

24 listing in the registry prior to any restoration
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1 activity. Prior converted cropland shall be eligi2 ble for listing in the registry.

3 ‘‘(3) REPORT.—Not later than 180 days after

4 the date of enactment of the Wetlands Regulatory

5 Reform Act of 1995, the Administrator shall report

6 to Congress on other appropriate incentives, using

7 both regulatory and nonregulatory means, to encour8 age the restoration of wetland. In preparing the re9 port, the Secretary shall consult with the Adminis10 trator, other Federal officials, and members of the

11 public, including persons whose activities are subject

12 to regulation under this section.

13 ‘‘(p) STATE PERMIT PROGRAMS.—

14 ‘‘(1) SUBMISSION OF PROGRAM.—

15 ‘‘(A) IN GENERAL.—The Governor of a

16 State desiring to administer an individual and

17 general permit program for an activity in wa18 ters of the United States (other than the ex19 cepted waters described in subparagraph (B))

20 within the jurisdiction of the State shall submit

21 to the Secretary—

22 ‘‘(i) a complete description of the pro23 gram that the Governor proposes to estab24 lish and administer under State law; and
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1 ‘‘(ii) a statement from the attorney

2 general or the chief legal officer of the

3 State (or the attorney of the agency in the

4 case of a State agency that has independ5 ent legal counsel) that the law of the State

6 provides adequate authority to carry out

7 the proposed program.

8 ‘‘(B) EXCEPTED WATERS.—The excepted

9 waters referred to in subparagraph (A)—

10 ‘‘(i) are waters that are used, or are

11 susceptible to use in the natural condition

12 of the waters or after reasonable improve13 ment to the waters, as a means to trans14 port interstate or foreign commerce shore15 ward to the ordinary high water mark of

16 the waters, including waters that are sub17 ject to the ebb and flow of the tide shore18 ward to the mean high water mark of the

19 waters, or the mean higher high water

20 mark on the west coast; and

21 ‘‘(ii) include wetland adjacent to the

22 waters described in clause (i).

23 ‘‘(2) REVIEW BY OTHER AGENCIES.—

24 ‘‘(A) SUBMISSION.—Not later than 10

25 days after the date of receipt of a program de-
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1 scription and statement submitted by a State

2 under paragraph (1), the Secretary shall pro3 vide copies of the description and statement to

4 the Secretary and the Director.

5 ‘‘(B) COMMENTS.—Not later than 90 days

6 after the date of receipt by the Secretary of the

7 program description and statement submitted

8 by a State under paragraph (1), the Adminis9 trator and the Director shall submit any com10 ments with respect to the program description

11 and statement to the Secretary in writing.

12 ‘‘(3) DETERMINATION BY THE SECRETARY.—

13 Not later than 120 days after the date of receipt by

14 the Secretary of a program description and state15 ment submitted by a State under paragraph (1), the

16 Secretary shall determine, after considering any

17 comments submitted by the Administrator and the

18 Director under paragraph (2)(B), whether the State

19 has the authority to—

20 ‘‘(A) issue permits that—

21 ‘‘(i) apply, and ensure compliance

22 with, each applicable requirement of this

23 section (including the regulations issued

24 under subsection (c)(7)) and sections 307

25 and 403; and
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1 ‘‘(ii) can be terminated or modified

2 for cause, including—

3 ‘‘(I) a violation of a condition of

4 the permit;

5 ‘‘(II) the obtaining of a permit by

6 misrepresentation, or a failure to dis7 close fully all relevant facts; or

8 ‘‘(III) a change in a condition

9 that requires a temporary or perma10 nent reduction or elimination of the

11 permitted activity;

12 ‘‘(B)(i) issue permits that apply, and en13 sure compliance with, all applicable require14 ments of section 308; or

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

16 reports to at least the same extent as is re17 quired under section 308;

18 ‘‘(C)(i) ensure that the public, and any

19 other State the waters of which may be af20 fected, receive notice of each application for a

21 permit under the State permit program; and

22 ‘‘(ii) provide opportunity for public hear23 ings before a decision on the application;
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•S 851 IS

1 ‘‘(D) ensure that the Secretary receives no2 tice and a copy of each application for a permit

3 under the State permit program;

4 ‘‘(E) ensure that—

5 ‘‘(i) each State (other than the per6 mitting State) in which waters may be af7 fected by the issuance of a permit under

8 the State permit program may submit a

9 written recommendation to the permitting

10 State and the Secretary with respect to

11 any permit application; and

12 ‘‘(ii) if any part of a written rec13 ommendation is not accepted by the per14 mitting State, the permitting State will no15 tify the affected State and the Secretary in

16 writing of the decision not to accept the

17 recommendation and the reason for the de18 cision;

19 ‘‘(F) ensure that no permit will be issued

20 if, in the judgment of the Secretary, after con21 sultation with the Secretary of the department

22 in which the Coast Guard is operating, the an23 chorage and navigation of any waters of the

24 United States would be substantially impaired
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•S 851 IS

1 by the activity proposed to be authorized by the

2 permit;

3 ‘‘(G) abate a violation of the permit or the

4 permit program through a civil or criminal pen5 alty or other means of enforcement; and

6 ‘‘(H) ensure continued coordination with

7 Federal and Federal-and-State water-related

8 planning and review processes.

9 ‘‘(4) APPROVAL OR MODIFICATION OF PRO10 GRAM.—

11 ‘‘(A) APPROVAL OF PROGRAM.—

12 ‘‘(i) IN GENERAL.—If, with respect to

13 a State permit program for which a de14 scription and statement are submitted

15 under paragraph (1), the Secretary deter16 mines that the State has the authority de17 scribed in paragraph (3), the Secretary

18 shall approve the program and notify the

19 State and the Administrator. After subse20 quent notification from the State that the

21 State is administering the program, the

22 Secretary shall suspend the issuance of

23 permits under subsections (c) and (h) for

24 each activity with respect to which a per-
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•S 851 IS

1 mit may be issued under the State permit

2 program.

3 ‘‘(ii) CONSIDERATION OF CIR4 CUMSTANCES.—The Secretary shall ap5 prove a State permit program submitted

6 under paragraph (1) that is developed to

7 meet the particular needs and cir8 cumstances of the State, if the level of pro9 tection of wetland and private property

10 provided by the State permit program is

11 substantially similar to the level of protec12 tion provided by this section.

13 ‘‘(B) MODIFICATION OF PROGRAM.—If,

14 with respect to a State permit program for

15 which a description and statement are submit16 ted under paragraph (1), the Secretary deter17 mines that the State does not have the author18 ity described in paragraph (3), the Secretary

19 shall notify the State and provide a description

20 of any revision or modification necessary so

21 that the State may resubmit the program for

22 another determination by the Secretary under

23 this subsection.

24 ‘‘(5) FAILURE OF THE SECRETARY TO ISSUE A

25 DETERMINATION.—If, with respect to a State permit
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•S 851 IS

1 program for which a description and statement are

2 submitted under paragraph (1), the Secretary fails

3 to issue a determination within 120 days after the

4 date of receipt of the description and statement, the

5 program shall be deemed to be approved under para6 graph (4)(A) and the Secretary shall notify the

7 State and the Administrator of the approval. After

8 subsequent notification from the State that the

9 State is administering the program, the Secretary

10 shall suspend the issuance of permits under sub11 sections (c) and (h) for each activity with respect to

12 which a permit may be issued under the State per13 mit program.

14 ‘‘(6) TRANSFER OF APPLICATIONS.—After a

15 State permit program under this subsection has

16 been approved, the Secretary shall, at the option of

17 the State, transfer to the State for appropriate ac18 tion any application for a permit pending before the

19 Secretary for an activity with respect to which a per20 mit may be issued under the State permit program.

21 ‘‘(7) SUSPENSION OF ENFORCEMENT.—If the

22 Secretary is notified that a State with a permit pro23 gram approved under this subsection intends to ad24 minister and enforce the terms and conditions of a

25 general permit issued by the Secretary under sub-
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•S 851 IS

1 section (h), the Secretary shall, with respect to each

2 activity in the State to which the general permit ap3 plies, suspend the administration and enforcement of

4 the general permit.

5 ‘‘(8) CORRECTIVE ACTION.—If the Secretary

6 determines after a public hearing that a State ad7 ministering a program approved under this sub8 section is not administering the program in accord9 ance with this section (including regulations issued

10 under subsection (c)(7)), the Secretary shall notify

11 the State. If appropriate corrective action is not

12 taken within a reasonable time, not to exceed 90

13 days after the date of receipt of the notification, the

14 Secretary shall—

15 ‘‘(A) withdraw approval of the program

16 until the Secretary determines that appropriate

17 corrective action has been taken;

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

19 of permits under subsections (c) and (h) for all

20 activities with respect to which the State was is21 suing permits, until such time as the Secretary

22 makes the determination described in subpara23 graph (A) and reapproves the State permit pro24 gram; and
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•S 851 IS

1 ‘‘(C) assume responsibility for any applica2 tion for a permit pending before the State

3 under the State permit program.

4 ‘‘(9) PERIODIC REVIEW.—Not later than 5

5 years after the date of approval of a State permit

6 program, and every 5 years thereafter, in order to

7 ensure that the requirements of this section are met,

8 the Secretary, in cooperation with the Administrator

9 and the Director, shall conduct a review of permit

10 decisions issued by the State under the State permit

11 program.

12 ‘‘(10) PROVISION OF INFORMATION BY

13 STATES.—

14 ‘‘(A) IN GENERAL.—Each State that is ad15 ministering a State permit program approved

16 under this subsection shall—

17 ‘‘(i) submit to the Secretary a copy of

18 each permit application received by the

19 State and provide notice to the Secretary

20 of each action related to the consideration

21 of the permit application, including each

22 permit proposed to be issued by the State;

23 and
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•S 851 IS

1 ‘‘(ii) submit to the Secretary a copy of

2 each proposed general permit that the

3 State intends to issue.

4 ‘‘(B) PROVISION OF STATE INFORMATION

5 TO SECRETARY AND DIRECTOR.—Not later than

6 10 days after the date of receipt of a permit ap7 plication or proposed general permit under sub8 paragraph (A), the Secretary shall provide cop9 ies of the permit application or the proposed

10 general permit to the Administrator and the Di11 rector. The Administrator and the Director may

12 provide written comments on the permit appli13 cation or the proposed general permit to the

14 Secretary.

15 ‘‘(C) COMMENTS FROM THE SECRETARY

16 TO STATE.—

17 ‘‘(i) SUBMISSION.—If the Secretary

18 intends to submit written comments to the

19 State with respect to a permit application

20 or proposed general permit received under

21 subparagraph (A), the Secretary shall—

22 ‘‘(I) notify the State not later

23 than 30 days after the date of receipt

24 of a copy of the application or pro25 posed general permit; and
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•S 851 IS

1 ‘‘(II) submit the written com2 ments to the State (after consider3 ation of any comments made with re4 spect to the application or the pro5 posed general permit under subpara6 graph (B)) not later than 90 days

7 after the date of receipt.

8 ‘‘(ii) DELAY OF PERMIT ISSUANCE.—

9 If the State is notified by the Secretary

10 under clause (i), the State may not issue

11 the proposed permit until the earlier of—

12 ‘‘(I) the date on which comments

13 are received from the Secretary; or

14 ‘‘(II) 90 days after the date of

15 receipt by the Secretary of a copy of

16 the application or proposed general

17 permit.

18 ‘‘(11) WAIVER OF INFORMATION PROVISION RE19 QUIREMENT.—

20 ‘‘(A) BY STATE.—In accordance with the

21 guidelines issued under section 304(i)(2), the

22 Secretary may waive paragraph (10) at the

23 time of the approval of a State permit program

24 under paragraph (4)(A) for any category (in25 cluding any class, type, or size within the cat-
73

•S 851 IS

1 egory) of activity in waters of the United States

2 within the State.

3 ‘‘(B) BY CATEGORIES OF ACTIVITIES.—

4 The Secretary shall issue regulations establish5 ing categories of activities in waters of the

6 United States that the Secretary determines

7 shall not be subject to paragraph (10) in any

8 State with a program approved under para9 graph (4)(A) or (5). The Secretary may distin10 guish among classes, types, and sizes within

11 any category of the activities.

12 ‘‘(12) REGULATION BY AN INTERSTATE AGEN13 CY.—For the purpose of this subsection:

14 ‘‘(A) GOVERNOR.—The term ‘Governor’ in15 cludes the head of an interstate agency.

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

17 an interstate agency.

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

19 includes an interstate compact.

20 ‘‘(q) AVAILABILITY OF INFORMATION TO THE PUB21 LIC.—

22 ‘‘(1) PERMIT APPLICATIONS AND PERMITS.—A

23 copy of each permit application submitted, and each

24 permit issued, under this section shall be available to

25 the public. Each permit application or portion of a
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•S 851 IS

1 permit application shall be available on request for

2 the purpose of reproduction.

3 ‘‘(2) EDUCATION AND INFORMATION.—

4 ‘‘(A) PUBLICATION IN FEDERAL REG5 ISTER.—The Secretary shall publish in the Fed6 eral Register each memorandum of agreement,

7 regulatory guidance letter, or other guidance

8 document of general applicability that is rel9 evant to the permitting of activities under this

10 section at the same time as the memorandum,

11 letter, or other document is distributed to re12 gional or field offices of the Department of the

13 Army.

14 ‘‘(B) OTHER PUBLICATIONS.—The Sec15 retary shall prepare, update on a biennial basis,

16 and make available to the public for purchase

17 at cost—

18 ‘‘(i) an indexed publication containing

19 all Federal regulations, general permits,

20 memoranda of agreement, regulatory guid21 ance letters, and other guidance documents

22 of general applicability that are relevant to

23 the permitting of activities under this sec24 tion; and
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1 ‘‘(ii) information to enable the general

2 public to understand the delineation of

3 wetland, the requirements for permitting

4 described in clause (i), wetland restoration

5 and enhancement, wetland functions, avail6 able nonregulatory programs to conserve

7 and restore wetland, and such other mat8 ters as the Secretary considers to be rel9 evant.

10 ‘‘(3) MAPPING AND PUBLIC NOTICE REQUIRE11 MENTS.—

12 ‘‘(A) PROVISION OF PUBLIC NOTICE.—Not

13 later than 90 days after the date of enactment

14 of the Wetlands Regulatory Reform Act of

15 1995, the Secretary shall provide the court of

16 each county, parish, or borough in which wet17 land subject to classification under subsection

18 (f) (referred to in this paragraph as ‘Federal

19 jurisdictional wetland’) may be located, a notice

20 for posting near the property records of the

21 county, parish, or borough. The notice shall—

22 ‘‘(i) state that Federal jurisdictional

23 wetland may be located in the county, par24 ish, or borough;
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•S 851 IS

1 ‘‘(ii) provide an explanation under2 standable to the general public of how wet3 land is determined to be Federal jurisdic4 tional wetland;

5 ‘‘(iii) describe the requirements and

6 restrictions of the wetland regulatory pro7 gram under this section; and

8 ‘‘(iv) provide instructions on how to

9 obtain a delineation and classification of

10 wetland under this section.

11 ‘‘(B) PROVISION OF DELINEATION DETER12 MINATIONS.—On completion of a delineation

13 and classification of property that contains wet14 land, or a delineation of property that contains

15 waters of the United States that are not wet16 land, under this section, the Secretary shall—

17 ‘‘(i) file a copy of the delineation, in18 cluding the classification of any wetland lo19 cated on the property, with the records of

20 the property in the local courthouse; and

21 ‘‘(ii) serve a copy of the delineation

22 determination on every owner of the prop23 erty on record and any person with a re24 corded mortgage or lien on the property.
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1 ‘‘(C) NOTICE OF ENFORCEMENT AC2 TIONS.—The Secretary and the Administrator

3 shall file notice of each enforcement action

4 under this section taken with respect to private

5 property with the records of the property.

6 ‘‘(D) NATIONAL WETLANDS INVENTORY.—

7 As the National Biological Service completes

8 the National Wetlands Inventory described in

9 section 401 of the Emergency Wetlands Re10 sources Act of 1986 (16 U.S.C. 3931), copies

11 of maps prepared as part of the inventory shall

12 be provided for posting to courts in the coun13 ties, parishes, and boroughs covered by the

14 maps.

15 ‘‘(r) CERTIFICATION.—

16 ‘‘(1) IN GENERAL.—Subject to paragraph (2)

17 and notwithstanding any other provision of this Act,

18 a certification under section 401 from a State or

19 interstate agency, or the Administrator, concerning

20 compliance with applicable requirements shall be re21 quired in connection with a permit issued under this

22 section only in the case of a permit issued under

23 subsection (c) that has an impact on more than 5

24 acres of waters of the United States. A certification
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•S 851 IS

1 shall not be required in connection with a general

2 permit issued under subsection (h).

3 ‘‘(2) FAILURE TO ISSUE CERTIFICATION.—If

4 the State, interstate agency, or Administrator, as

5 the case may be, fails to act on a request for certifi6 cation described in paragraph (1) within 60 days

7 after the date of the notice with respect to the appli8 cation for the permit issued under subsection (c)(2),

9 the requirement for the certification shall be deemed

10 to be waived with respect to the application.

11 ‘‘(s) STATE AUTHORITY TO CONTROL ACTIVITIES.—

12 Nothing in this section shall affect or impair the right of

13 a State or interstate agency to control an activity in wa14 ters of the United States carried out in any portion of

15 the waters of the United States within the jurisdiction of

16 the State, including an activity by a Federal agency. Each

17 Federal agency shall comply with each State or interstate

18 requirement, whether substantive or procedural, to control

19 an activity in waters of the United States to the same ex20 tent that a person is subject to the requirement. This sec21 tion shall not affect or impair the authority of the Sec22 retary to maintain navigation.

23 ‘‘(t) BALANCED IMPLEMENTATION.—In carrying out

24 this section—
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1 ‘‘(1) the Secretary shall balance the objective of

2 conserving functioning wetland with the objective of

3 ensuring continued economic growth, providing es4 sential infrastructure, maintaining strong State and

5 local tax bases, and protecting against the diminish6 ment of the use and value of private property; and

7 ‘‘(2) the Secretary, the Administrator, the

8 heads of all other Federal agencies, and other offi9 cials of the Federal Government shall seek in all ac10 tions to minimize the adverse impacts of the regu11 latory program under this section on the use and

12 value of private property.’’.

13 SEC. 4. TRANSITION PROVISIONS.

14 (a) APPLICANTS FOR PERMITS.—A person who ap15 plied for a permit under section 404 of the Federal Water

16 Pollution Control Act (33 U.S.C. 1344) prior to the date

17 of enactment of this Act may reapply for the permit.

18 (b) PERMIT HOLDERS.—A person who received a

19 permit under section 404 of the Federal Water Pollution

20 Control Act (33 U.S.C. 1344) prior to the date of enact21 ment of this Act may request that the Secretary reevalu22 ate—

23 (1) any determination made before that date

24 under the section with respect to property of the

25 person subject to the permit; or
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•S 851 IS

1 (2) any condition imposed under the permit.

2 (c) PERSONS WHO OBTAINED DETERMINATIONS OF

3 JURISDICTION.—A person who obtained a determination

4 from the Secretary under section 404 of the Federal

5 Water Pollution Control Act (33 U.S.C. 1344) prior to

6 the date of enactment of this Act with respect to property

7 of the person may request that the Secretary reevaluate

8 the determination.

9 (d) ACTION BY THE SECRETARY.—Upon receipt of

10 a reapplication for a permit under subsection (a) or a re11 quest for reevaluation under subsection (b) or (c), the Sec12 retary shall make issue a decision with respect to the

13 reapplication or carry out the reevaluation, as appropriate,

14 in accordance with section 404 of the Federal Water Pol15 lution Control Act (as amended by section 3).

16 SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.

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

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

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

20 ‘‘the regulations issued under section 404(c)(7), and’’.

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

22 amended—

23 (1) in subsection (a)—

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

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

2 permit issued under section 404 of this Act by

3 a State’’;

4 (2) in subsection (c)—

5 (A) in paragraph (1)(A), by striking ‘‘or in

6 a permit issued under section 404 of this Act

7 by the Secretary of the Army or by a State’’;

8 (B) in paragraph (2)(A), by striking ‘‘or in

9 a permit issued under section 404 of this Act

10 by the Secretary of the Army or by a State’’;

11 and

12 (C) in the first sentence of paragraph

13 (3)(A), by striking ‘‘or in a permit issued under

14 section 404 of this Act by the Secretary of the

15 Army or by a State,’’;

16 (3) in the first sentence of subsection (d), by

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

18 this Act by a State,’’; and

19 (4) in subsection (g)—

20 (A) by striking paragraph (1) and insert21 ing the following new paragraph:

22 ‘‘(1) VIOLATIONS.—If the Administrator deter23 mines, on the basis of any information available,

24 that a person has violated section 301, 302, 306,

25 307, 308, 318, or 405, or has violated any permit
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1 condition or limitation implementing any of the sec2 tions in a permit issued under section 402 by the

3 Administrator or by a State, the Administrator may,

4 after consultation with the State in which the viola5 tion occurred, assess a class I civil penalty or a class

6 II civil penalty under this subsection.’’;

7 (B) in the third sentence of paragraph

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

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

10 the Secretary,’’;

11 (D) by striking ‘‘or Secretary, as the case

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

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

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

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

16 they appear.

Æ

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