II

103D CONGRESS

1ST SESSION S. 1304

To amend the Federal Water Pollution Control Act to improve the conservation of wetlands and thereby restore and maintain the physical, chemical,

and biological integrity of the Nation’s waters, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 28 (legislative day, JUNE 30), 1993

Mr. BAUCUS (for himself and Mr. CHAFEE) 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 improve the conservation of wetlands and thereby restore

and maintain the physical, chemical, and biological integrity of the Nation’s waters, 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 ‘‘Wetlands Conservation

5 and Regulatory Improvements Act’’.
2

S 1304 IS

1 SEC. 2. AMENDMENT OF FEDERAL WATER POLLUTION CON2 TROL ACT.

3 Except as otherwise expressly provided, whenever in

4 this Act an amendment or repeal is expressed in terms

5 of an amendment to, or repeal of, a section or other provi6 sion, the reference shall be considered to be made to a

7 section or other provision of the Federal Water Pollution

8 Control Act (33 U.S.C. 1251 et seq.).

9 SEC. 3. DECLARATION OF POLICIES AND GOALS.

10 Section 101(a) (33 U.S.C. 1251(a)) is amended—

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

12 (6);

13 (2) by striking the period at the end of para14 graph (7) and inserting ‘‘and’’; and

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

16 ‘‘(8) it is the national policy to achieve, through

17 regulatory and nonregulatory strategies involving all

18 levels of government—

19 ‘‘(A) the restoration of wetlands to in20 crease the quality and quantity of the wetlands

21 resource base of the United States; and

22 ‘‘(B) no overall net loss of the remaining

23 wetlands resource base of the United States.’’.

24 SEC. 4. DEFINITION AND DELINEATION OF WETLANDS.

25 (a) DEFINITIONS.—Section 502 (33 U.S.C. 1362) is

26 amended—
3

S 1304 IS

1 (1) in paragraph (7) by inserting ‘‘, including

2 wetlands’’ immediately before the period; and

3 (2) by adding at the end the following new

4 paragraph:

5 ‘‘(21) The term ‘wetlands’ means those areas that

6 are inundated or saturated by surface water or

7 ground water at a frequency and duration sufficient

8 to support, and that under normal circumstances do

9 support, a prevalence of vegetation typically adapted

10 to life in saturated soil conditions. Wetlands gen11 erally include swamps, marshes, bogs, fens, potholes,

12 playa lakes, vernal pools, and similar areas.’’.

13 (b) DELINEATION OF WETLANDS.—

14 (1) REVISIONS TO DELINEATION PROCE15 DURES.—After the date of enactment of this Act, no

16 revisions to or clarifications of the guidelines for

17 identifying and delineating wetlands areas under sec18 tion 404(a) of the Federal Water Pollution Control

19 Act (33 U.S.C. 1344(a)), as amended by this Act,

20 shall be issued until the National Academy of

21 Sciences has completed the study of wetlands au22 thorized by Public Law 102–389.

23 (2) CONTINUED USE OF 1987 MANUAL.—Until

24 the guidelines for identifying and delineating wet25 lands areas are issued pursuant to section 404(a) of
4

S 1304 IS

1 the Federal Water Pollution Control Act (33 U.S.C.

2 1344(a)), as amended by this Act, the Secretary of

3 the Army, acting through the Chief of Engineers,

4 and the Administrator of the Environmental Protec5 tion Agency shall use the January 1987, ‘‘Corps of

6 Engineers wetlands delineation manual’’ and imple7 menting guidelines to identify and delineate such

8 wetlands areas.

9 (3) DELINEATION GUIDELINES.—Section

10 404(a) (33 U.S.C. 1344(a)) is amended by inserting

11 ‘‘(1)’’ after ‘‘(a)’’ and by adding the following new

12 paragraph:

13 ‘‘(2) The Administrator in conjunction with the

14 Secretary, the Secretary of Agriculture and the Sec15 retary of the Interior shall, after field testing and

16 notice and opportunity for public review and com17 ment, issue guidelines to identify and delineate wet18 lands areas. The guidelines shall—

19 ‘‘(A) be developed in consultation with the

20 States;

21 ‘‘(B) be based on the best available sci22 entific information; and

23 ‘‘(C) take into account regional variations

24 in hydrology, soils, and vegetation.’’.
5

S 1304 IS

1 (4) DELINEATION TRAINING, CERTIFICATION

2 AND OUTREACH.—

3 (A) TRAINING OF WETLANDS DELINEA4 TORS.—The Secretary of the Army, acting

5 through the Chief of Engineers, and the Admin6 istrator of the Environmental Protection Agen7 cy shall, in consultation with the Coordinating

8 Committee establish under section 323 of the

9 Federal Water Pollution Control Act, as amend10 ed by this Act, develop materials and conduct

11 training courses for consultants and State and

12 local governments to explain the guidelines for

13 identifying and delineating wetlands areas pur14 suant to section 404(a) of the Federal Water

15 Pollution Control Act (33 U.S.C. 1344(a)), as

16 amended by this Act.

17 (B) FUNDING FOR TRAINING AND CERTIFI18 CATION PROGRAM.—Of amounts appropriated

19 for each fiscal year beginning after the date of

20 the enactment of this Act for administration of

21 section 404 of the Federal Water Pollution

22 Control Act (33 U.S.C. 1344) by the Corps of

23 Engineers, the Secretary of the Army, with the

24 Administrator, shall use such amounts as are

25 practicable to carry out the Corps of Engineers
6

S 1304 IS

1 Program for interagency wetlands delineation

2 training and the program for training and cer3 tification of Federal employees and other indi4 viduals as wetlands delineators authorized by

5 section 307(e) of the Water Resources Develop6 ment Act of 1990 (Public Law 101–640).

7 (5) ASSISTING SMALL LANDOWNERS WITH WET8 LANDS DELINEATION.—

9 (A) IN GENERAL.—Of amounts appro10 priated for each fiscal year beginning after the

11 date of enactment of this Act for administration

12 of section 404 of the Federal Water Pollution

13 Control Act (33 U.S.C. 1344), the Secretary of

14 the Army, acting through the Chief of Engi15 neers, and the Administrator of the Environ16 mental Protection Agency shall use such

17 amounts as are necessary, but not to exceed a

18 combined total of $5,000,000, to assist private

19 landowners who lack the financial capacity to

20 identify or delineate wetlands in order to apply

21 for permits under that section or to avoid im22 pacts to wetlands.

23 (B) FORM OF ASSISTANCE.—The assist24 ance under subparagraph (A) shall be provided

25 in cooperation with the Director of the United
7

S 1304 IS

1 States Fish and Wildlife Service and the Chief

2 of the Soil Conservation Service and shall in3 clude—

4 (i) the delineation of wetlands bound5 aries within ninety days of a request for

6 such delineation to the maximum extent

7 practicable; and

8 (ii) technical assistance to owners of

9 wetlands in the preparation of wetlands

10 management plans for their lands to pro11 tect and restore wetlands and meet other

12 goals of the Federal Water Pollution Con13 trol Act, including protection and propaga14 tion of fish, shellfish, and wildlife, control

15 of nonpoint and point sources of pollution,

16 prevention and reduction of erosion, and

17 protection of estuaries and lakes.

18 (C) REGULATIONS.—Within one hundred

19 and eighty days after the date of enactment of

20 this Act, the Secretary and the Administrator

21 shall issue regulations defining the scope of

22 technical assistance and which landowners are

23 eligible for assistance under this paragraph.

24 (6) EDUCATION AND INFORMATION.—The Sec25 retary of the Army, acting through the Chief of En-
8

S 1304 IS

1 gineers, and the Administrator of the Environmental

2 Protection Agency shall, in cooperation with the Co3 ordinating Committee established under section 323

4 of the Federal Water Pollution Control Act (as

5 amended by this Act), prepare, update on a biannual

6 basis, and make available to the public for purchase

7 at cost—

8 (A) an indexed publication containing all

9 Federal regulations, general permits, and regu10 latory guidance letters relevant to the permit11 ting of activities pursuant to section 404 of the

12 Federal Water Pollution Control Act (33 U.S.C.

13 1344); and

14 (B) information to enable the general pub15 lic to understand the delineation of wetlands,

16 section 404 permitting requirements, wetlands

17 restoration, and other matters considered rel18 evant.

19 SEC. 5. REGULATION OF ACTIVITIES.

20 (a) DEFINITION OF FILL MATERIAL.—

21 (1) Section 404(d) (33 U.S.C. 1344(d)) is

22 amended—

23 (A) by inserting ‘‘(1)’’ after ‘‘(d)’’; and

24 (B) by adding at the end the following:
9

S 1304 IS

1 ‘‘(2) The term ‘fill material’ as used in this

2 section means any material that has the effect

3 of replacing portions of navigable waters or

4 changing the bottom elevation or configuration

5 of a water body.’’.

6 (2) Section 502(6) (33 U.S.C. 1362(6)) is

7 amended by inserting ‘‘fill material, dirt,’’ after

8 ‘‘dredged spoil,’’.

9 (b) DEFINITION OF DISCHARGE OF DREDGED OR

10 FILL MATERIAL.—Section 404(d) (33 U.S.C. 1344(d)),

11 as amended by this Act, is amended by adding at the end

12 the following:

13 ‘‘(3) The term ‘discharge of dredged or fill ma14 terial’ means any addition of dredged or fill material

15 into navigable waters and includes, without limita16 tion, any addition or redeposit of dredged or fill ma17 terials, including excavated materials, into the navi18 gable waters which is incidental to any activity, in19 cluding draining, mechanized landclearing, ditching,

20 channelization, or other excavation that has or would

21 have the effect of destroying or degrading any area

22 of navigable waters.’’.
10

S 1304 IS

1 SEC. 6. PERMIT PROCESSING IMPROVEMENTS.

2 (a) PERMIT DECISION DEADLINES.—Section 404(a)

3 (33 U.S.C. 1344(a)), as amended by this Act, is amended

4 by adding the following new paragraphs:

5 ‘‘(3) Except as provided in paragraph (4), a de6 cision with respect to an application for a permit

7 under paragraph (1) shall be made not later than

8 the ninetieth day after the date the notice of such

9 application is published under paragraph (1).

10 ‘‘(4) The Secretary’s decision with respect to an

11 application for a permit under paragraph (1) may be

12 made after the ninetieth day referred to in para13 graph (3), only if—

14 ‘‘(A) with respect to issuance of the per15 mit, the Secretary is required under the Na16 tional Environmental Policy Act of 1969, as

17 amended, to issue an environmental impact

18 statement, in which case the decision shall be

19 made within thirty days of date on which the

20 requirements of that Act are met;

21 ‘‘(B) the permit application involves an ac22 tivity that may affect any species that is listed

23 or any critical habitat that is designated under

24 the Endangered Species Act of 1973, as amend25 ed, in which case the decision shall be made
11

S 1304 IS

1 within thirty days of the date on which the re2 quirements of that Act are met;

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

4 the Departments of Agriculture, the Interior,

5 Commerce, or Transportation, the head of an6 other appropriate Federal agency, or the Gov7 ernor of the State in which the activity occurs

8 requests that the decision be made after such

9 day, in which case the decision shall be made

10 not later than the one hundred and fiftieth day

11 after the date the notice of application is pub12 lished under paragraph (1);

13 ‘‘(D) the Secretary and the permit appli14 cant determine that additional time is needed to

15 evaluate such application; or

16 ‘‘(E) the decision is precluded as a matter

17 of law or procedures required by law.’’.

18 (b) DEADLINES ON PROHIBITION OR RESTRICTION

19 OF ACTIVITIES BY ADMINISTRATOR.—Section 404(c) (33

20 U.S.C. 1344(c)) is amended by adding at the end the fol21 lowing new sentence: ‘‘The Administrator shall make any

22 determination under this subsection to prohibit or restrict

23 any discharge into navigable waters resulting from an ac24 tivity for which a permit may be issued under subsection

25 (a) not later than the one hundred and eightieth day after
12

S 1304 IS

1 the date of decision with respect to an application for such

2 a permit under subsection (a).’’.

3 (c) ADMINISTRATIVE APPEAL OF PERMIT DECI4 SIONS.—

5 (1) IN GENERAL.—Section 404(a) (33 U.S.C.

6 1344(a)), as amended by this Act, is amended by

7 adding at the end the following new paragraph:

8 ‘‘(5) The Secretary shall, after notice and an

9 opportunity for public comment, issue rules estab10 lishing procedures under which—

11 ‘‘(A) an applicant for a permit under para12 graph (1) or any person who participated in the

13 public comment process regarding such permit

14 application may appeal a decision under this

15 subsection with respect to such a permit; and

16 ‘‘(B) an appeal shall be heard and decided

17 by an official other than the person who made

18 the decision with respect to such a permit.’’.

19 (2) DEADLINE FOR ISSUANCE OF RULES.—The

20 Secretary shall issue rules under section 404(a)(5)

21 (33 U.S.C. 1344(a)(5)), as amended by this Act, by

22 not later than one hundred eighty days after the

23 date of the enactment of this Act.
13

S 1304 IS

1 SEC 7. GENERAL PERMIT IMPROVEMENTS.

2 Section 404(e) (33 U.S.C. 1344(e)) is amended to

3 read as follows:

4 ‘‘(e)(1) IN GENERAL.—In carrying out the functions

5 of the Secretary under this section relating to the dis6 charge of dredged or fill material, the Secretary may, after

7 notice and opportunity for a public hearing, issue general

8 permits.

9 ‘‘(2) CATEGORIES OF ACTIVITIES.—General permits

10 may be issued on a State, regional, or nationwide basis

11 for any category of activities involving discharges of

12 dredged or fill material if the Secretary determines that

13 the activities in such category are similar in nature, will

14 cause only minimal adverse environmental effects when

15 performed separately, and will have only a minimal cumu16 lative adverse effect on the environment.

17 ‘‘(3) STATE AND LOCAL PROGRAMS.—

18 ‘‘(A) IN GENERAL.—A general permit may be

19 issued for an existing State, tribal, regional or local

20 regulatory program to avoid unnecessary duplication

21 of requirements by Federal, State, tribal, regional,

22 and local programs if the general permit—

23 ‘‘(i) requires that the State, tribal, re24 gional, or local regulatory program has jurisdic25 tion over the activities and waters within the

26 scope of the general permit;
14

S 1304 IS

1 ‘‘(ii) provides adequate safeguards to en2 sure that the State, tribal, regional, or local

3 regulatory program will have no more than

4 minimal cumulative impacts on the environment

5 and will provide at least the same degree of

6 protection for the navigable waters as that pro7 vided by this section;

8 ‘‘(iii) provides at least the same oppor9 tunity for public review, comment, and hearings

10 as that provided by this section; and

11 ‘‘(iv) includes provisions to provide an op12 portunity for the Secretary, the Administrator,

13 the Secretary of the Interior (acting through

14 the Director of the United States Fish and

15 Wildlife Service), and the Secretary of Com16 merce (acting through the Administrator of the

17 National Oceanic and Atmospheric Administra18 tion) to review permit decisions submitted to

19 the State, tribal, regional, or local regulatory

20 agency to ensure that the requirements of this

21 subsection are met.

22 ‘‘(B) After December 31, 1996, a general per23 mit shall not be issued or remain in effect for a local

24 or regional regulatory program unless the program

25 is part of a wetlands and watershed management
15

S 1304 IS

1 plan approved under section 322, and the respon2 sible unit of government has the legal authority and

3 scientific monitoring capability to issue, monitor,

4 and enforce permits in compliance with the require5 ments of the plan and the terms and conditions of

6 the general permit.

7 ‘‘(4) SWAMPBUSTER.—A general permit may be is8 sued for discharges of dredged or fill material associated

9 with activities found by the Secretary of Agriculture, in

10 consultation with the Secretary of the Interior acting

11 through the Director of the United States Fish and Wild12 life Service, to be exempted from the ineligibility provi13 sions of section 1222 of the Food Security Act of 1985

14 (16 U.S.C. 3822) pursuant to section 1222 (f) and (h)

15 of that Act if the general permit—

16 ‘‘(A) provides adequate safeguards to ensure

17 that the activities exempted will have no more than

18 minimal individual and cumulative impacts on the

19 environment; and

20 ‘‘(B) includes provisions to provide an oppor21 tunity for the Secretary and the Administrator to re22 view determinations by the Secretary of Agriculture

23 to ensure that the terms and conditions of the gen24 eral permit and the requirements of this subsection

25 are met.
16

S 1304 IS

1 ‘‘(5) REQUIREMENTS APPLICABLE TO GENERAL PER2 MITS.—

3 ‘‘(A) No general permit issued under this sub4 section shall be for a period of more than five years

5 after the date of its issuance and such general per6 mit may be revoked or modified by the Secretary if,

7 after notice and opportunity to request a public

8 hearing, the Secretary determines that the activities

9 authorized by such general permit have an adverse

10 impact on the environment or such activities are

11 more appropriately authorized by individual permits

12 or a State, Tribal or local government has failed to

13 adequately monitor and control the individual and

14 cumulative adverse effects of activities authorized by

15 State, Tribal, regional or local program general per16 mits issued under paragraph (3).

17 ‘‘(B) Any general permit issued under this sub18 section shall—

19 ‘‘(i) be based on the guidelines developed

20 pursuant to subsection (b)(1); and

21 ‘‘(ii) set forth requirements and standards

22 which shall apply to any activity authorized by

23 such permit, including specific enforceable re24 quirements and standards for mitigation of ad-
17

S 1304 IS

1 verse impacts to wetlands and other navigable

2 waters.’’.

3 SEC. 8. COORDINATION AND CLARIFICATION OF PROGRAM

4 CONCERNING AGRICULTURAL ACTIVITIES.

5 (a) COORDINATION WITH AGRICULTURAL PRO6 GRAMS.—Section 404(q) (33 U.S.C. 1344(q)) is amended

7 by inserting ‘‘(1)’’ after ‘‘(q)’’ and by adding the following

8 new paragraph:

9 ‘‘(2) Not later than one hundred and eighty

10 days after the date of enactment of this subsection,

11 the Secretary, the Administrator, the Secretary of

12 the Interior, and the Secretary of Agriculture shall

13 enter into agreements to develop consistent criteria

14 and procedures for making technical determinations

15 under subtitle C of title XII of the Food Security

16 Act of 1985 (16 U.S.C. 3821 et seq.) and this sec17 tion concerning wetlands located on agricultural

18 lands, including but not limited to the delineation of

19 wetlands and prior converted croplands and to pro20 vide information and education concerning these cri21 teria and procedures.’’.

22 (b) EXEMPTION FOR PRIOR CONVERTED CROP23 LAND.—Section 404(f) (33 U.S.C. 1344(f)) is amended by

24 adding the following new paragraph:
18

S 1304 IS

1 ‘‘(3)(A) Areas determined in accordance with

2 subparagraph (B) to be prior converted cropland

3 shall not be considered to be navigable waters.

4 ‘‘(B) The Secretary, the Administrator, the

5 Secretary of Agriculture, and the Secretary of the

6 Interior shall promulgate regulations, after notice

7 and opportunity for public review and comment, for

8 identifying areas that meet the description under

9 subparagraph (A) for administering the programs

10 established under this section and subtitle C of title

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

12 3821 et seq.).’’.

13 (c) OTHER EXEMPT WATERS AND AREAS.—Section

14 404(f) (33 U.S.C. 1344(f)), as amended by this Act, is

15 amended by adding the following new paragraph:

16 ‘‘(4)(A) For purposes of this section, the follow17 ing shall not be considered to be navigable waters—

18 ‘‘(i) nontidal drainage and irrigation

19 ditches excavated in uplands;

20 ‘‘(ii) artificially irrigated areas which

21 would revert to uplands if the irrigation ceased;

22 ‘‘(iii) artificial lakes or ponds created by

23 excavating or diking uplands to collect and re24 tain water, and which are used exclusively for

25 stock watering, irrigation, or rice growing;
19

S 1304 IS

1 ‘‘(iv) artificial reflecting or swimming pools

2 or other small ornamental bodies of water cre3 ated by excavating or diking uplands to retain

4 water for primarily aesthetic reasons;

5 ‘‘(v) water-filled depressions created in up6 lands incidental to construction activity and pits

7 excavated in uplands for the purpose of obtain8 ing fill, sand, or gravel, unless and until the

9 construction or excavation operation is aban10 doned and the resulting body of water meets

11 the definition of waters of the United States;

12 and

13 ‘‘(vi) artificial stormwater detention areas

14 and artificial sewage treatment areas that are

15 not modifications of navigable waters.’’.

16 (d) EXEMPTED ACTIVITIES.—Section 404(f)(1) (33

17 U.S.C. 1344(f)(1)) is amended to read as follows:

18 ‘‘(f)(1) Except as provided in paragraph (2), the dis19 charge of dredged or fill material into navigable waters—

20 ‘‘(A) from normal farming, silviculture, and

21 ranching activities, such as haying, grazing, plowing,

22 seeding, cultivating, minor drainage, harvesting for

23 the production of food, fiber, and forest products, or

24 upland soil and water conservation practices;
20

S 1304 IS

1 ‘‘(B) for the purpose of maintenance, including

2 emergency reconstruction of recently damaged parts,

3 of currently serviceable structures such as dikes,

4 dams, levees, groins, riprap, breakwaters, causeways,

5 bridge abutments or approaches, and transportation

6 structures;

7 ‘‘(C) for the purpose of construction or mainte8 nance of farm or stock ponds or irrigation ditches,

9 or the maintenance of drainage ditches;

10 ‘‘(D) for the purpose of construction of tem11 porary sedimentation basins on a construction site

12 which does not involve a discharge of fill into navi13 gable waters;

14 ‘‘(E) for the purpose of construction or mainte15 nance of farm roads or forest roads, or temporary

16 roads for moving mining equipment, where such

17 roads are constructed and maintained, in accordance

18 with best management practices, to assure that flow

19 and circulation patterns and chemical and biological

20 characteristics of the navigable waters are not im21 paired, that the reach of the navigable waters is not

22 reduced, and that any adverse effect on the aquatic

23 environment will otherwise be minimized; or

24 ‘‘(F) resulting from any activity with respect to

25 which a State has an approved program under sec-
21

S 1304 IS

1 tion 208(b)(4) which meets the requirements of sub2 paragraphs (B) and (C) of such section,

3 is not prohibited by or otherwise subject to regulation

4 under this section or section 301(a) or 402 of this Act

5 (except for effluent standards or prohibitions under sec6 tion 307).’’.

7 (e) COOPERATION WITH SECRETARY OF AGRI8 CULTURE.—Section 404(f) (33 U.S.C. 1344(f)), as

9 amended by this Act, is amended by adding the following

10 new paragraph:

11 ‘‘(5) In carrying out this subsection, the Sec12 retary and the Administrator shall coordinate their

13 efforts with the Secretary of Agriculture.’’.

14 SEC. 9. MITIGATION BANKS.

15 Section 404 (33 U.S.C. 1344) is amended by adding

16 at the end thereof the following new section:

17 ‘‘(u) MITIGATION BANKS.—

18 ‘‘(1) ESTABLISHMENT.—

19 ‘‘(A) IN GENERAL.—Not later than one

20 year after the date of the enactment of the

21 Wetlands Conservation and Regulatory Im22 provements Act of 1993, the Secretary and the

23 Administrator shall jointly issue rules, after no24 tice and opportunity for public review and com-
22

S 1304 IS

1 ment, for establishment, use, maintenance and

2 oversight of mitigation banks.

3 ‘‘(B) PROVISIONS AND REQUIREMENTS.—

4 Rules for establishment, use, maintenance and

5 oversight of mitigation banks shall ensure that

6 mitigation banks—

7 ‘‘(i) comply with the guidelines under

8 subsection (b)(1);

9 ‘‘(ii) to the extent practicable and en10 vironmentally desirable, provide in-kind re11 placement of lost wetlands functions and

12 be located on or in proximity to the same

13 watershed as impacted wetlands;

14 ‘‘(iii) provide for the long-term secu15 rity of ownership interests of wetlands and

16 uplands on which projects are conducted to

17 protect the wetlands values associated with

18 the mitigation bank;

19 ‘‘(iv) employ consistent and scientif20 ically-sound methods to determine debits

21 by evaluating wetlands functions and

22 project impacts at the sites of proposed

23 permits for discharges of dredged or fill

24 material pursuant to this section, and

25 methods to be used to determine credits
23

S 1304 IS

1 based upon wetlands functions, values, and

2 acreages at the sites of mitigation banks;

3 ‘‘(v) base fee charges for participation

4 in the mitigation bank on the full costs of

5 replacing lost wetlands functions and acre6 age, including the costs of land acquisition,

7 wetlands establishment, management

8 measures, long-term maintenance, monitor9 ing, and protection, potential remediation

10 of project failure, and other relevant fac11 tors;

12 ‘‘(vi) shall specify responsibilities for

13 long-term monitoring, maintenance, and

14 protection; and

15 ‘‘(vii) shall provide opportunity for

16 public review of proposals for mitigation

17 banks through one or more opportunities

18 for public notice and comment.

19 ‘‘(2) DEFINITION.—As used in this subsection,

20 the term ‘mitigation bank’ means wetlands restora21 tion projects undertaken by one or more parties, in22 cluding private and public entities, expressly for the

23 purpose of providing, in advance, mitigation com24 pensation credits to fully offset reasonably foresee25 able wetlands losses from future discharges of
24

S 1304 IS

1 dredged or fill material into the navigable waters,

2 where compensatory mitigation at the project site is

3 not practicable or is not environmentally desirable.’’.

4 SEC. 10. GRANT AUTHORITY FOR RESEARCH, INVESTIGA5 TION, AND TRAINING.

6 Section 104 (33 U.S.C. 1254) is amended by adding

7 at the end the following new subsection:

8 ‘‘(v) The Secretary of the Army, acting through the

9 Chief of Engineers, is authorized to make grants to and

10 enter into cooperative agreements with State agencies,

11 interstate agencies, other public or non-profit agencies, in12 stitutions, organizations and individuals for purposes stat13 ed in paragraph (1) of subsection (a) of this section.’’.

14 SEC. 11. REPORTS AND ANALYSIS.

15 (a) EFFECTS OF PROGRAM ON WETLANDS.—Section

16 404(a) (33 U.S.C. 1344(a)), as amended by this Act, is

17 amended by adding at the end the following new para18 graph:

19 ‘‘(6)(A) The Secretary, the Administrator, and

20 the States which have a permit program approved

21 under subsection (h)(2) shall collect and make avail22 able to the Congress and the public every two years

23 information regarding the effects on navigable wa24 ters of activities conducted under permits (including
25

S 1304 IS

1 general permits) issued pursuant to this section, in2 cluding—

3 ‘‘(i) the number of permit applications that

4 were granted, withdrawn or denied;

5 ‘‘(ii) estimates of the total acreage of navi6 gable waters affected adversely by issuance of

7 individual permits;

8 ‘‘(iii) estimates of the acreage of navigable

9 waters affected by each general permit, in order

10 to determine whether the individual and cumu11 lative adverse environmental effects of activities

12 authorized by each general permit are minimal;

13 and

14 ‘‘(iv) estimates of the acreage of navigable

15 waters preserved or restored through mitigation

16 of permitted activities and the rate of compli17 ance with such mitigation requirements.

18 ‘‘(B) MONITORING.—For purposes of preparing

19 reports under this paragraph, the Secretary, the Ad20 ministrator, and the Secretary of the Interior shall

21 jointly monitor the achievement of the policy stated

22 in section 101(a)(8) under permits issued under this

23 section.’’.

24 (b) NEEDS ANALYSIS.—
26

S 1304 IS

1 (1) IN GENERAL.—Not later than ninety days

2 after the date of the enactment of this Act, the

3 Comptroller General of the United States shall sub4 mit to the Congress an analysis of the needs of the

5 Department of the Army, the Environmental Protec6 tion Agency, the United States Fish and Wildlife

7 Service, and the National Marine Fisheries Service

8 for additional personnel, administrative resources,

9 and funding to improve implementation of section

10 404 of the Federal Water Pollution Control Act (33

11 U.S.C. 1344) and to carry out the provisions of this

12 Act.

13 (2) CONTENTS.—The analysis submitted under

14 this subsection shall—

15 (A) give particular emphasis to the needs

16 of the agencies identified in paragraph (1) with

17 respect to improving and expediting wetlands

18 delineation and section 404 permitting, includ19 ing advance planning and early consultation;

20 (B) include specific recommendations re21 garding additional appropriations and staffing

22 necessary for that improvement and expedition;

23 and

24 (C) include specific recommendations con25 cerning allocation of additional appropriations
27

S 1304 IS

1 and staffing to the regional, district and field

2 offices of the agencies identified in paragraph

3 (1) according to the workload of those offices.

4 SEC. 12. WETLANDS CONSERVATION, MANAGEMENT AND

5 RESTORATION.

6 (a) FUNDING FOR STATE WETLANDS CONSERVATION

7 PLANS.—Section 104(b)(3) (33 U.S.C. 1254(b)(3)) is

8 amended by inserting immediately before the semicolon ‘‘

9 and for the development and implementation of State wet10 lands conservation plans under section 321’’.

11 (b) WETLANDS CONSERVATION, MANAGEMENT AND

12 RESTORATION.—Title III (33 U.S.C. 1311 et seq.) is

13 amended by the adding at the end the following new sec14 tions:

15 ‘‘SEC. 321. STATE WETLANDS CONSERVATION PLANS.

16 ‘‘(a) DEVELOPMENT AND IMPLEMENTATION ASSIST17 ANCE.—Subject to the requirements established by the

18 Administrator and this section, the Administrator is au19 thorized to make grants to States to assist in the develop20 ment and implementation of State wetlands conservation

21 plans.

22 ‘‘(b) CONTENTS OF PLANS.—To qualify for assist23 ance under subsection (a), a State wetlands conservation

24 plan shall generally include—
28

S 1304 IS

1 ‘‘(1) management strategies and policies for

2 achieving within the State the goal under section

3 101(a)(8);

4 ‘‘(2) an inventory of wetlands resources in the

5 State;

6 ‘‘(3) a description of the major causes of wet7 lands loss and degradation in the State, including an

8 estimate of historical wetlands losses;

9 ‘‘(4) a description of State and local govern10 ment programs applying to wetlands resources in the

11 State;

12 ‘‘(5) identification of sites in the State with

13 wetlands restoration potential;

14 ‘‘(6) identification of riparian areas in the State

15 with restoration potential;

16 ‘‘(7) a schedule for implementing the elements

17 of the plan;

18 ‘‘(8) a mechanism for monitoring achievement

19 of the stated goals of the plan;

20 ‘‘(9) measures to assist in the development of

21 wetlands and watershed management plans under

22 section 322; and

23 ‘‘(10) involvement of local public and private

24 agencies and organizations which have expertise in
29

S 1304 IS

1 wetlands conservation or land use planning or devel2 opment.

3 ‘‘SEC. 322. WETLANDS AND WATERSHED MANAGEMENT

4 PLANS.

5 ‘‘(a) DESIGNATION AND APPROVAL OF MANAGEMENT

6 UNITS AND ENTITIES.—

7 ‘‘(1) IN GENERAL.—The Governor of a State

8 may at any time designate wetlands and associated

9 land areas within the State as a wetlands and water10 shed management unit.

11 ‘‘(2) UNIT BOUNDARIES.—The boundaries of

12 each wetlands and watershed management unit shall

13 be identified on a map and shall be based on the

14 best available scientific information and, to the ex15 tent practicable, consistent with the hydrological

16 units identified by the United States Geological Sur17 vey of the Department of the Interior as the most

18 appropriate units for planning purposes.

19 ‘‘(3) MANAGEMENT ENTITY.—The Governor of

20 a State shall determine the entity responsible for de21 veloping and implementing a plan for each wetlands

22 and watershed management unit designated under

23 this section. The management entity may be an

24 agency of State government, a local government

25 agency, a substate regional planning organization, a
30

S 1304 IS

1 conservation district or other natural resource man2 agement district, or any other public or nonprofit

3 entity which has adequate powers to carry out the

4 responsibilities authorized by this section.

5 ‘‘(4) APPROVAL.—Each designation of a wet6 lands and watershed management unit and a cor7 responding management entity under this subsection

8 shall be submitted to the Administrator and the Sec9 retary of the Army, acting through the Chief of En10 gineers (hereinafter in this section referred to as

11 ‘Secretary’), for approval. The Administrator and

12 the Secretary shall approve the designation of a

13 management unit and entity not later than one hun14 dred and eighty days after the date of submittal, if

15 the designation meets the requirements of this sec16 tion. If the Administrator and the Secretary dis17 approve the designation, they shall notify the State

18 in writing of the reasons for disapproval. The State

19 may resubmit the designation amended to meet the

20 objections of the Administrator and the Secretary.

21 ‘‘(b) DEVELOPMENT AND APPROVAL OF A WET22 LANDS AND WATERSHED MANAGEMENT PLAN.—

23 ‘‘(1) PLAN DEVELOPMENT.—An approved man24 agement entity shall be eligible to receive funding

25 pursuant to section 106(h), 205(j), 319(e), or
31

S 1304 IS

1 604(b) (or any combination thereof) for the follow2 ing activities in the development of a wetlands and

3 watershed management plan:

4 ‘‘(A) Inventory and mapping of—

5 ‘‘(i) all navigable waters within the

6 proposed wetlands and watershed manage7 ment unit; and

8 ‘‘(ii) potential wetlands restoration

9 sites.

10 ‘‘(B) Assessment of the functions and rel11 ative value of wetlands within the wetlands and

12 watershed management unit.

13 ‘‘(C) Categorization of activities according

14 to the degree to which they have an adverse ef15 fect on navigable waters within the wetlands

16 and watershed management unit.

17 ‘‘(D) Identification and adoption of pro18 grams, policies and measures to achieve within

19 the wetlands and watershed management unit

20 the goal under section 101(a)(8).

21 ‘‘(E) Identification of potential mitigation

22 banks.

23 ‘‘(F) Identification and adoption of meas24 ures to integrate wetlands planning and man25 agement with broader water resource and land
32

S 1304 IS

1 use planning and management, including flood2 plain management, water supply, stormwater

3 management, and control of point and nonpoint

4 source pollution.

5 ‘‘(G) Identification and adoption of meas6 ures to increase consistency in Federal, State,

7 and local wetlands definitions, delineation meth8 odologies, and permitting approaches.

9 ‘‘(H) Identification and establishment of

10 management strategies for restoring wetlands

11 on a watershed basis.

12 ‘‘(2) PUBLIC PARTICIPATION.—Each State shall

13 establish procedures, including the establishment of

14 scientific and citizens’ advisory committees, to en15 courage the public to participate in developing wet16 lands and watershed management plans under this

17 section.

18 ‘‘(3) APPROVAL OF PLANS.—

19 ‘‘(A) SUBMISSION OF PLAN.—The Gov20 ernor of a State may submit to the Adminis21 trator for approval a wetlands and watershed

22 management plan developed pursuant to this

23 section.

24 ‘‘(B) DECISION ON PLAN.—The Adminis25 trator and the Secretary shall, in consultation
33

S 1304 IS

1 with the Secretaries of the Interior, Agriculture,

2 and Commerce, and after notice and oppor3 tunity for public comment, approve or dis4 approve a wetlands and watershed management

5 plan within one hundred and eighty days of the

6 date the plan is submitted by a Governor pur7 suant to this paragraph.

8 ‘‘(C) PLAN REQUIREMENTS.—The Admin9 istrator and the Secretary shall approve a wet10 lands and watershed management plan submit11 ted pursuant to this paragraph if they deter12 mine that the plan satisfies each of the follow13 ing conditions—

14 ‘‘(i) the plan has been developed for a

15 wetlands and watershed management unit

16 designated and approved pursuant to sub17 section (a);

18 ‘‘(ii) the management entity with re19 sponsibility to carry out the plan has been

20 designated and approved pursuant to sub21 section (a) and has the legal authority and

22 financial resources to carry out the plan;

23 ‘‘(iii) the plan contains an inventory

24 and mapping of—
34

S 1304 IS

1 ‘‘(I) all navigable waters within

2 the proposed wetlands and watershed

3 management unit; and

4 ‘‘(II) potential wetlands restora5 tion sites with a description of their

6 intended functions upon completion

7 and the time required for completion;

8 ‘‘(iv) the management entity has

9 adopted programs, policies and measures

10 that will ensure achievement within the

11 watershed of the goal under section

12 101(a)(8); and

13 ‘‘(v) the plan provides that the man14 agement entity will report to the Adminis15 trator, the Secretary and the public every

16 two years on implementation of the plan

17 and on the losses and gains in functions

18 and acres of wetlands within the wetlands

19 and watershed management unit.

20 ‘‘(c) PLAN IMPLEMENTATION AND REVISION.—

21 ‘‘(1) PLANNING AND IMPLEMENTATION SCHED22 ULE.—Each wetlands and watershed management

23 plan submitted and approved under subsection (b)

24 shall include a planning and implementation sched25 ule for a period of at least ten years.
35

S 1304 IS

1 ‘‘(2) DURATION OF APPROVAL.—The approval

2 of a plan by the Administrator and the Secretary

3 shall apply for a period not to exceed ten years.

4 ‘‘(3) PLAN REVISIONS.—A revised and updated

5 plan may be submitted for approval prior to the ex6 piration of the period specified in paragraph (2) pur7 suant to the same conditions and requirements that

8 apply to any initial plan for a wetlands and water9 shed management unit that is approved pursuant to

10 subsection (b).

11 ‘‘(d) INCENTIVES FOR WETLANDS AND WATERSHED

12 MANAGEMENT PLANNING.—

13 ‘‘(1) FUNDING OF PROJECTS AND ACTIVI14 TIES.—Projects and activities identified in an ap15 proved plan as necessary for achievement within the

16 wetlands and watershed management unit of the

17 goal under section 101(a)(8), and not otherwise re18 quired by this or other Federal law, shall—

19 ‘‘(A) be eligible for funding under section

20 603(c)(1)(F);

21 ‘‘(B) be included in any needs assessment

22 conducted pursuant to section 516; and

23 ‘‘(C) be eligible for funding under section

24 604(a)(2)(C).
36

S 1304 IS

1 ‘‘(2) EXPEDITED PERMIT REVIEW.—Notwith2 standing section 404(a), a decision under that sec3 tion with respect to a completed application for a

4 permit for discharge of dredged or fill material into

5 navigable waters within a designated wetlands and

6 watershed unit and subject to an approved wetlands

7 and watershed management plan shall be made not

8 later than the sixtieth day after the date the notice

9 of such application is published under section

10 404(a)(1), unless—

11 ‘‘(A) with respect to issuance of the per12 mit, the Secretary is required under the Na13 tional Environmental Policy Act of 1969 to

14 issue an environmental impact statement;

15 ‘‘(B) the permit application involves an ac16 tivity that may affect any species that is listed

17 or any critical habitat that is designated under

18 the Endangered Species Act of 1973;

19 ‘‘(C) the Administrator, the Secretaries of

20 the Departments of Agriculture, the Interior,

21 Commerce, or Transportation, the head of an22 other appropriate Federal agency, or the Gov23 ernor of the State in which the activity occurs

24 requests that the decision be made after such

25 day, in which case the decision shall be made
37

S 1304 IS

1 not later than the ninetieth day after the date

2 the notice of application is published under sec3 tion 404(a)(1);

4 ‘‘(D) the Secretary and the permit appli5 cant determine that additional time is needed to

6 evaluate such application; or

7 ‘‘(E) the decision is precluded as a matter

8 of law or procedures required by law.

9 ‘‘(3) MITIGATION BANKS.—

10 ‘‘(A) At the request of an approved man11 agement entity, the Secretary and the Adminis12 trator shall provide assistance in establishment

13 of mitigation banks under this section and sec14 tion 404(u) by the approved management entity

15 to achieve the goal under section 101(a)(8)

16 within an approved wetlands and watershed

17 management unit and in accordance with an

18 approved wetlands and watershed management

19 plan.

20 ‘‘(B) Establishment and oversight of miti21 gation banks within an approved wetlands and

22 watershed management unit and in accordance

23 with an approved wetlands and watershed man-
38

S 1304 IS

1 agement plan shall be eligible for funding under

2 paragraph (1).

3 ‘‘(4) PROGRAMMATIC GENERAL PERMITS.—

4 After December 31, 1996, a general permit may be

5 issued or remain in effect under section 404(e)(3)

6 for a local or regional regulatory program if the pro7 gram is part of a wetlands and watershed manage8 ment plan approved under section 322.

9 ‘‘(f) RESEARCH PROGRAM.—The Administrator, in

10 cooperation with the Secretary, the Secretary of the Inte11 rior and other appropriate Federal, State, and local gov12 ernment entities, shall initiate a research program of wet13 lands and watershed management. The research program

14 shall include—

15 ‘‘(1) study of the functions, values and manage16 ment needs of altered, artificial, and managed wet17 lands systems;

18 ‘‘(2) study and development of techniques and

19 methods for determining and analyzing the functions

20 and values of different types of wetlands;

21 ‘‘(3) study and development of techniques for

22 managing and restoring wetlands within a watershed

23 context;

24 ‘‘(4) study and development of techniques for

25 better coordinating and integrating wetlands protec-
39

S 1304 IS

1 tion, floodplain management, stormwater manage2 ment, point and nonpoint source pollution controls,

3 and water supply planning on a watershed basis;

4 ‘‘(5) development of criteria for identifying wet5 lands restoration sites on a watershed basis; and

6 ‘‘(6) recommendation of procedures and ecologi7 cal criteria for wetlands restoration.

8 ‘‘SEC. 323. INTERGOVERNMENTAL WETLANDS COORDINAT9 ING COMMITTEE.

10 ‘‘(a) ESTABLISHMENT.—Not later than ninety days

11 after the date of the enactment of the Wetlands Conserva12 tion and Regulatory Improvements Act of 1993, the Ad13 ministrator shall establish a committee to coordinate Fed14 eral, State, and local government wetlands policies (here15 inafter in this section referred to as the ‘Coordinating

16 Committee’).

17 ‘‘(b) FUNCTIONS.—The Coordinating Committee

18 shall—

19 ‘‘(1) assist in coordinating Federal, State, and

20 local wetlands policies;

21 ‘‘(2) make comments available to the Secretary

22 of the Army, acting through the Chief of Engineers,

23 or the Administrator regarding existing and pro24 posed regulatory, policy, program, or technical guid25 ance affecting wetlands systems;
40

S 1304 IS

1 ‘‘(3) in cooperation with the Secretary of the

2 Army, acting through the Chief of Engineers, and

3 the Administrator, assist in the review and field-test4 ing of technical and scientific methods utilized in

5 wetlands regulatory and non-regulatory program;

6 ‘‘(4) encourage the development and implemen7 tation of State wetlands conservation plans pursuant

8 to section 321;

9 ‘‘(5) encourage the development and implemen10 tation of wetlands and watershed management plans

11 pursuant to section 322; and

12 ‘‘(6) assist in the development of a national

13 strategy for the restoration of wetlands ecosystems

14 pursuant to section 324.

15 ‘‘(c) MEMBERSHIP.—The Committee shall be com16 posed of eighteen members as follows:

17 ‘‘(1) The Administrator.

18 ‘‘(2) The Secretary of the Army, acting through

19 the Chief of Engineers.

20 ‘‘(3) The Secretary of the Interior, acting

21 through the Director of the United States Fish and

22 Wildlife Service.

23 ‘‘(4) The Secretary of Agriculture, acting

24 through the Chief of the Soil Conservation Service.
41

S 1304 IS

1 ‘‘(5) The Under Secretary of Commerce for

2 Oceans and Atmosphere.

3 ‘‘(6) One individual appointed by the Adminis4 trator who shall represent the National Governor’s

5 Association.

6 ‘‘(7) One individual appointed by the Adminis7 trator who shall represent the National Association

8 of Counties.

9 ‘‘(8) One individual appointed by the Adminis10 trator who shall represent the National League of

11 Cities.

12 ‘‘(9) Ten State wetlands experts selected and

13 appointed by the Administrator from among nomina14 tions submitted by the Governors of each State.

15 ‘‘(d) TERMS.—Each member appointed pursuant to

16 paragraph (6), (7), (8), or (9) of subsection (c) shall be

17 appointed for a term of two years.

18 ‘‘(e) VACANCIES.—A vacancy in the Coordinating

19 Committee shall be filled, on or before the thirtieth day

20 after the vacancy occurs, in the manner in which the origi21 nal appointment was made.

22 ‘‘(f) PAY.—Members shall serve without pay, but may

23 receive travel expenses (including per diem in lieu of sub24 sistence) in accordance with sections 5702 and 5703 of

25 title 5, United States Code.
42

S 1304 IS

1 ‘‘(g) CO-CHAIRPERSONS.—The Administrator and

2 one member appointed pursuant to paragraph (6), (7), or

3 (8) of subsection (c) who shall be selected by such mem4 bers shall serve as co-chairpersons of the Coordinating

5 Committee.

6 ‘‘SEC. 324. NATIONAL COOPERATIVE WETLANDS RESTORA7 TION STRATEGY.

8 ‘‘(a) DEVELOPMENT.—Not later than one year after

9 the date of the enactment of the Wetlands Conservation

10 and Regulatory Improvements Act of 1993, the Adminis11 trator and the Secretary of the Army, acting through the

12 Chief of Engineers, in cooperation with the Coordinating

13 Committee established under section 323, and with oppor14 tunity for public comment and participation, shall develop

15 a National Cooperative Wetlands Restoration Strategy

16 (hereinafter referred to as the ‘Restoration Strategy’).

17 ‘‘(b) GOALS.—The goal of the Restoration Strategy

18 shall be to restore damaged and degraded wetlands and

19 riparian ecosystems consistent with the goals of this Act

20 and with the recommendations of the National Academy

21 of Sciences with regard to the restoration of aquatic

22 ecosystems.

23 ‘‘(c) FUNCTIONS.—The Restoration Strategy shall—
43

S 1304 IS

1 ‘‘(1) be designed to help coordinate and pro2 mote restoration efforts by Federal, State, regional,

3 and local governments and the private sector;

4 ‘‘(2) inventory and evaluate existing restoration

5 efforts and make suggestions for the establishment

6 of additional efforts and funding mechanisms for

7 such efforts consistent with existing Federal, State

8 and local programs and plans;

9 ‘‘(3) evaluate the role played by, and success of,

10 wetlands restoration efforts in both regulatory and

11 nonregulatory contexts;

12 ‘‘(4) evaluate current efforts to monitor restora13 tion efforts;

14 ‘‘(5) periodically report on the status of wet15 lands restoration efforts; and

16 ‘‘(6) identify regulatory and nonregulatory ob17 stacles to wetlands ecosystem restoration and rec18 ommend methods to remove such obstacles.’’.

Æ

S 1304 IS——2

S 1304 IS——3