I

104TH CONGRESS

2D SESSION H. R. 3692

To promote the restoration, conservation, and enhancement of wetlands

through the establishment of a responsible wetlands mitigation banking

program.

IN THE HOUSE OF REPRESENTATIVES

JUNE 20, 1996

Mr. JONES introduced the following bill; which was referred to the Committee

on Transportation and Infrastructure

A BILL

To promote the restoration, conservation, and enhancement

of wetlands through the establishment of a responsible

wetlands mitigation banking program.

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 Restoration

5 and Improvement Act of 1996’’.

6 SEC. 2. FINDINGS AND DECLARATION OF POLICIES AND

7 GOALS.

8 (a) FINDINGS.—Congress finds that—
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1 (1) half of the Nation’s wetlands have been de2 stroyed through a failure to understand and appre3 ciate the important environmental, hydrological, and

4 social functions which wetlands serve, including—

5 (A) essential nesting and feeding habitat

6 for waterfowl and other wildlife, including many

7 rare and endangered species;

8 (B) fish and shellfish habitat;

9 (C) water storage, including natural flood

10 and drought control and aquifer recharge;

11 (D) the enhancement of water quality;

12 (E) the provision of recreational, edu13 cational, and research opportunities; and

14 (F) opportunities for aesthetic apprecia15 tion;

16 (2) much of the Nation’s valuable wetlands

17 have been significantly degraded, thus necessitating

18 that activities that destroy wetlands adhere to a

19 strict mitigation policy that involves sequentially

20 avoiding impacts, minimizing impacts, and com21 pensating for unavoidable impacts;

22 (3) where impacts are unavoidable, wetlands

23 mitigation banking restores, enhances, and in excep24 tional cases, preserves and creates ecologically sig-
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1 nificant wetlands and provides for long-term restora2 tion and enhancement of these vital resources;

3 (4) wetlands mitigation banking is not only con4 sistent with the important Federal goal of no net

5 loss of wetlands resources but, when conducted with6 in the parameters of a thoughtfully designed regu7 latory program, contains the procedural safeguards

8 necessary to greatly increase the overall number and

9 quality of wetland resources;

10 (5) wetlands mitigation banks can be particu11 larly effective in restoring, enhancing, creating, and

12 preserving the valuable environmental functions of

13 wetlands;

14 (6) mitigation banks often provide greater flexi15 bility, reliability, and effectiveness in meeting mitiga16 tion requirements than on-site mitigation can and

17 often have significant environmental advantages over

18 haphazardly placed individual mitigation projects,

19 such as—

20 (A) maintaining the integrity of a larger

21 aquatic ecosystem by consolidating compen22 satory mitigation into a single large parcel;

23 (B) bringing together financial resources,

24 planning, and scientific expertise not practicable
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1 to bring to many project-specific compensatory

2 mitigation proposals;

3 (C) reducing permit processing times and

4 providing more cost-effective compensatory

5 mitigation opportunities for projects that qual6 ify;

7 (D) improving regulatory oversight by fo8 cusing regulatory agency resources more effec9 tively; and

10 (E) contributing towards attainment of the

11 goal of no net loss of the Nation’s wetlands by

12 providing opportunities to compensate for au13 thorized impacts when mitigation might not

14 otherwise be required, appropriate, or prac15 ticable;

16 (7) wetlands mitigation banking shows consid17 erable promise for preventing and reversing the con18 tinuing net loss of wetlands while accommodating

19 desirable economic and community growth and, if

20 implemented on a widespread basis, may result in

21 further progress toward restoring past losses of criti22 cal wetlands;

23 (8) the absence of Federal enabling legislation

24 impedes the widespread and effective use of wetlands

25 mitigation banking, while encouraging needless regu-
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1 latory delay, financial uncertainty, and unproductive

2 litigation; and

3 (9) the adoption of Federal enabling legislation

4 providing for binding Federal standards governing

5 wetlands mitigation banking will foster economic

6 growth and environmental protection by providing

7 the public, the regulated community, State and local

8 governments, and potential investors reasonable as9 surance about the technical capabilities, financial

10 soundness and integrity, and overall performance of

11 large-scale wetlands mitigation banks and about the

12 environmental acceptability of desirable projects re13 lying on such banks to mitigate their unavoidable

14 adverse effects on wetlands.

15 (b) DECLARATION OF POLICIES AND GOALS.—Sec16 tion 101(a) of the Federal Water Pollution Control Act

17 (33 U.S.C. 1251(a)) is amended—

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

19 (6);

20 (2) by striking the period at the end of para21 graph (7) and inserting a semicolon; and

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

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

24 regulatory and nonregulatory opportunities involving

25 all levels of government and supported by private
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1 initiatives, the conservation and restoration of wet2 lands to increase the quantity and quality of the

3 wetlands resource base of the United States and the

4 policy of no overall net loss for the remaining wet5 lands resource base of the United States; and

6 ‘‘(9) it is the national policy to foster wetlands

7 mitigation banking as a means to mitigate the loss

8 of wetlands and to do so by providing a stable, prac9 tical, and workable regulatory framework for the use

10 of mitigation banking, making appropriate use of ex11 isting, successful State programs for mitigation

12 banking, and taking into account regional variations

13 in wetlands conditions.’’.

14 SEC. 3. USE OF MITIGATION BANKS.

15 Section 404 of the Federal Water Pollution Control

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

17 the following:

18 ‘‘(u) USE OF MITIGATION BANKS.—

19 ‘‘(1) DEFINITIONS.—In this subsection, the fol20 lowing definitions apply:

21 ‘‘(A) CREATION.—The term ‘creation’, as

22 used with respect to wetlands, means an activ23 ity that brings a wetland resource into existence

24 at a site where wetlands did not exist imme25 diately prior to the activity.
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1 ‘‘(B) CREDIT.—The term ‘credit’ means a

2 unit of measure that represents the accrual or

3 attainment of wetland functions at a mitigation

4 bank.

5 ‘‘(C) DEBIT.—The term ‘debit’ means the

6 loss of wetland functions at an impact or

7 project site. Such losses shall be evaluated

8 using the same scientific criteria as are applied

9 to evaluate wetlands functions for credit pur10 poses.

11 ‘‘(D) ENHANCEMENT.—The term ‘en12 hancement’ means an activity that increases

13 any of the wetland functions of a wetland in ex14 istence prior to the date of enhancement.

15 ‘‘(E) LINEAR UTILITY FACILITY.—The

16 term ‘linear utility facility’ means a road, rail17 road, pipeline (including gathering or distribu18 tion lines), cable, line (including transmission

19 lines) and wire, and appurtenant support equip20 ment such as towers, poles, pumping equip21 ment, switches, signals, signs, and substations.

22 ‘‘(F) MAINTENANCE.—The term ‘mainte23 nance’, as used with respect to wetlands, means

24 an activity undertaken to ensure continuation of

25 a wetland or the accomplishment of a project
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1 goal after a wetland restoration, enhancement,

2 creation, or preservation project has been com3 pleted, including hydrological manipulation and

4 control of normative plant species.

5 ‘‘(G) MITIGATION BANK.—The term ‘miti6 gation bank’ means a person, chartered by the

7 Secretary under this subsection, to conduct a

8 specified wetland resource restoration, enhance9 ment or, in exceptional circumstances, creation

10 and preservation project or projects identified

11 in its charter, each project undertaken for the

12 purpose of providing mitigation credits to offset

13 wetland losses authorized by the terms of per14 mits allowing activities in the waters of the

15 United States.

16 ‘‘(H) PRESERVATION.—The term ‘preser17 vation’ means the protection of ecologically im18 portant wetlands in perpetuity through the im19 plementation of appropriate legal and physical

20 mechanisms and may include protection of up21 land areas adjacent to wetlands as necessary to

22 ensure protection or enhancement of the aquat23 ic ecosystem.

24 ‘‘(I) RESTORATION.—The term ‘restora25 tion’ means an activity undertaken to return
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1 wetlands, former wetlands, or other aquatic re2 sources from a disturbed or altered condition

3 with lesser wetland acreage or fewer wetland

4 functions to a previous condition with greater

5 wetland acreage or wetland functions.

6 ‘‘(J) SERVICE AREA.—The term ‘service

7 area’, as used with respect to a mitigation

8 bank, means the designated area, typically a

9 watershed or hydrologic unit within a State (or

10 watershed crossing State lines), wherein the

11 bank can reasonably be expected to provide ap12 propriate compensation for impacts to wetlands

13 resources.

14 ‘‘(K) WETLAND FUNCTION.—The term

15 ‘wetland function’ means an environmental or

16 hydrological role that the wetland serves, in17 cluding flood water storage, flood water convey18 ance, ground water discharge or recharge, ero19 sion control, wave attenuation, water quality

20 protection, scenic and aesthetic use, food chain

21 support, fisheries, wetland plant habitat, aquat22 ic habitat, and habitat for wetland-dependent

23 wildlife.

24 ‘‘(2) CHARTER OF MITIGATION BANKS.—
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1 ‘‘(A) ISSUANCE.—The Secretary shall issue

2 a mitigation bank charter to a person whose ap3 plication satisfies the criteria set forth in this

4 subsection.

5 ‘‘(B) APPLICATION.—An applicant for a

6 mitigation bank charter shall submit an appli7 cation and supporting materials signed by a re8 sponsible official acting on behalf of the appli9 cant certifying the accuracy of the information

10 contained in the application and materials. The

11 application shall show, at a minimum, the fol12 lowing:

13 ‘‘(i) The proposed restoration, en14 hancement, creation, or preservation

15 project or projects which are proposed to

16 be included in the scope of the mitigation

17 banking charter.

18 ‘‘(ii) The proposed service area for

19 each proposed restoration, enhancement,

20 creation, or preservation project. The geo21 graphic designation of the service area

22 should be based upon the cataloging unit

23 of the ‘Hydrologic Unit Map of the United

24 States’ (United States Geological Survey

25 1980). Each such service area shall be
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1 within a single State, unless the watershed

2 or hydrologic unit in which the service area

3 is located crosses State lines, in which case

4 the service area shall be within the same

5 watershed. If the watershed crosses State

6 lines, the Secretary is strongly encouraged

7 to resolve any interstate disagreement.

8 ‘‘(iii) Reliable assurances of an ade9 quate source of water to support the wet10 land.

11 ‘‘(iv) Adequate legal control over the

12 real property (including necessary uplands)

13 in the proposed project to carry out the

14 proposed work.

15 ‘‘(v) Adequate financial assurances to

16 carry out the proposed project, including

17 the operation and maintenance plan. Such

18 financial assurances shall be in the form of

19 irrevocable letters of credit, performance

20 bonds, surety bonds, trust funds, corporate

21 guarantees by guarantors which meet fi22 nancial criteria set by regulations issued by

23 the Secretary, or a combination of such in24 struments and other financial undertak25 ings. Such financial assurances shall enti-
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1 tle the Secretary to draw upon them in the

2 event of a substantial failure to perform

3 the work provided in the mitigation bank

4 charter where mitigation credits based on

5 such work have already been used or sold.

6 ‘‘(vi) An adequate operations and

7 maintenance plan to assure continued via8 bility of the proposed project after comple9 tion of construction of the project.

10 ‘‘(vii) Adequate legal protection, in11 cluding easements, covenants running with

12 land, or other appropriate, legally binding

13 undertakings, to assure permanent protec14 tion of the wetlands in the mitigation bank

15 that are used as the basis for selling cred16 its. Such legal protections shall be in place

17 at the time that the credits are withdrawn.

18 ‘‘(C) ANNUAL REPORTS.—Persons holding

19 a mitigation bank charter shall report annually

20 to the Secretary. The report shall include—

21 ‘‘(i) an independent audit of the fi22 nancial assurances on which the charter is

23 based and a demonstration of continued

24 compliance with financial assurance re25 quirements;
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1 ‘‘(ii) a demonstration of a continued

2 adequate long-term source of water to sup3 port the wetland;

4 ‘‘(iii) a progress report in accomplish5 ing the construction and operation and

6 maintenance plan provided in the charter;

7 and

8 ‘‘(iv) a reconciliation of the number of

9 credits sold during the previous years, the

10 number of credits remaining, and any

11 credits added in accordance with the re12 quirements of this subsection and imple13 menting regulations.

14 ‘‘(D) DECISION DEADLINE.—The Sec15 retary, in consultation with the Environmental

16 Protection Agency, and Federal and State au17 thorities, as appropriate, shall decide whether to

18 issue a mitigation banking charter within 180

19 days of the filing of a completed charter appli20 cation. Prior to the issuance of implementing

21 regulations, the Secretary shall do so on the

22 basis of best professional judgment concerning

23 compliance of the charter application with the

24 requirements of this subsection.
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1 ‘‘(E) PROCEDURE WITH RESPECT TO AP2 PLICANT AND OTHER AGENCIES.—The Sec3 retary shall advise the applicant within 30 days

4 of filing whether the application is complete and

5 advise the applicant in writing at that time of

6 any additional materials which must be submit7 ted in order to complete the application. The

8 Secretary shall also transmit a copy of the com9 plete charter application to the affected State,

10 and to the Fish and Wildlife Service, the Envi11 ronmental Protection Agency, the National Re12 sources Conservation Service, and the National

13 Marine Fisheries Service, each of which shall

14 have 90 days, to run concurrently, in which to

15 file written comments, which shall be part of

16 the record. If no comments are filed within 90

17 days, these entities shall be presumed not to ob18 ject to the charter.

19 ‘‘(F) NOTICE.—

20 ‘‘(i) PUBLICATION.—The Secretary

21 shall publish notice of the charter applica22 tion in the Federal Register and in a news23 paper of general circulation in the pro24 posed service area in which the mitigation

25 bank is to operate (including the county in
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1 which the project is to be located), and

2 shall make copies of the charter application

3 and supporting materials available for pub4 lic review at appropriate convenient loca5 tions in the service area.

6 ‘‘(ii) CONTENTS.—The notice shall de7 scribe the project or projects provided in

8 the charter application, explain where sup9 porting materials may be reviewed, and

10 provide 30 days for the submission of com11 ments on the compliance of the proposed

12 application with this subsection. Upon re13 quest, the time for comment may be ex14 tended once for 30 days.

15 ‘‘(G) DETERMINATION.—After a review of

16 public comments and any reply by the applicant

17 and a determination of whether the application

18 complies with this subsection, the Secretary

19 may issue the charter, deny the charter, or

20 issue the charter with modifications. The Sec21 retary’s decision shall be based on the entire

22 public record, including all public comments.

23 ‘‘(H) PUBLIC HEARING.—Upon a showing

24 of a material contested factual issue about the

25 compliance of the proposed application with this
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1 subsection, the Secretary shall provide notice

2 and opportunity for a public hearing on the

3 record with respect to the application.

4 ‘‘(I) EXTENSION OF DEADLINE.—The Sec5 retary may extend the time for review once for

6 90 days, if additional time is needed to file

7 comments, to provide for a hearing, to provide

8 for further review of comments, or to provide

9 for a reply to adverse comments.

10 ‘‘(J) REIMBURSEMENT TO EXPEDITE RE11 VIEW.—The Secretary is authorized to accept

12 reimbursement from a charter applicant for the

13 direct salary and benefit costs of additional gov14 ernment or contract personnel necessary to ex15 pedite review of a charter application.

16 ‘‘(K) AMENDMENTS.—Additional projects

17 may be added to a mitigation bank charter by

18 amendment. Amendment applications shall be

19 processed in the same fashion as charter appli20 cations, but the Secretary may treat the facts

21 established in support of the charter and con22 firmed by the most recent annual report as es23 tablished for the purpose of the amendment ap24 plication process.
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1 ‘‘(L) STATE APPROVALS.—The Secretary

2 shall give substantial weight to State approvals

3 of mitigation bank projects if the State pro4 grams under which such projects are approved

5 require a careful review of the long-term oper6 ation and maintenance of the project, including

7 provision of an adequate long-term source of

8 water to support the wetlands and legal control

9 over the real property in question and otherwise

10 require similar conditions to those in this sec11 tion.

12 ‘‘(M) COORDINATION.—The Secretary

13 shall coordinate the processing of a mitigation

14 bank application under this subsection with the

15 processing of applications by such applicant for

16 other permits and authorities under this Act

17 and under the National Environmental Policy

18 Act of 1969 so that determinations with respect

19 to such other permits and authorities may be

20 made concurrently with the final decision on the

21 bank charter.

22 ‘‘(N) REVOCATION.—A mitigation banking

23 charter may be revoked by the Secretary at any

24 time (i) for substantial failure to comply with

25 financial assurance, long-term water source, or
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1 other critical operating requirements, (ii) for a

2 criminal conviction for making material false

3 statements in the charter application or annual

4 report, or (iii) for other substantial violations of

5 law which demonstrate the unfitness of the

6 holder of the charter to operate the mitigation

7 bank. The charter may only be revoked after an

8 opportunity for a public hearing on the record

9 within the meaning of chapter 5 of title 5,

10 United States Code.

11 ‘‘(3) CREDITS.—

12 ‘‘(A) OFFERING CREDITS FOR SALE.—

13 Upon receipt of its charter, a mitigation bank

14 may offer mitigation credits for sale. The maxi15 mum number of credits which a mitigation

16 bank may offer for sale shall not exceed the

17 number to which it is entitled based on—

18 ‘‘(i) the number of acres of wetlands

19 the bank has completed restoring, enhanc20 ing, and in exceptional circumstances, pre21 serving or creating and provided financial

22 assurance for their long-term operation

23 and maintenance; plus

24 ‘‘(ii) a limited number of the addi25 tional acres of wetlands for which the bank
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1 has provided adequate financial assurance

2 that it will—

3 ‘‘(I) create, restore, enhance, or

4 preserve, and

5 ‘‘(II) provide long-term operation

6 and maintenance if the Secretary has

7 approved the plans for such work, in8 cluding a schedule for construction

9 and there is adequate legal control

10 over the real property to carry out the

11 proposed work; minus

12 ‘‘(iii) the number of credits it has pre13 viously sold based on the acreage described

14 in clauses (i) and (ii).

15 ‘‘(B) NUMBER OF CREDITS.—The number

16 of credits to which a chartered mitigation bank

17 is entitled based on its acreage and the wet18 lands functions served by that acreage shall be

19 determined according to objective criteria set by

20 regulation or, if a completed charter application

21 is filed before regulations are issued, according

22 to objective criteria applied by the Secretary,

23 using best professional judgment as part of the

24 charter decision. The application of the objec25 tive criteria applied shall be set forth in detail
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1 in the charter decision. The Secretary shall

2 apply the same criteria to each mitigation bank

3 in the same State and to mitigation banks in

4 neighboring States which have overlapping serv5 ice areas.

6 ‘‘(C) REDUCTION OF CREDITS.—The num7 ber of mitigation credits to which a mitigation

8 bank is entitled shall not be decreased except by

9 sale or upon a showing by the Secretary, after

10 notice and opportunity for a public hearing, of

11 the bank’s failure to comply with charter condi12 tions resulting in the Secretary’s decision to

13 draw on the mitigation bank’s financial assur14 ances for the acreage on which such credits are

15 based. If the Secretary draws on the mitigation

16 bank’s financial assurances for all or part of its

17 acreage, the Secretary may suspend the sale of

18 credits based on that acreage in order to pre19 vent irreparable harm, provided that notice and

20 opportunity for a hearing to review the suspen21 sion decision is provided promptly thereafter.

22 ‘‘(D) INCREASE IN CREDITS.—The number

23 of mitigation credits to which a mitigation bank

24 is entitled may only be increased if the bank

25 makes a factual showing in its charter applica-
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1 tion, or in an amendment application, that it is

2 entitled to more credits under the objective cri3 teria set by the Secretary by regulation or used

4 by the Secretary in the exercise of best profes5 sional judgment in chartering or amending the

6 charter of another mitigation bank in the same

7 State or a neighboring State.

8 ‘‘(E) DEBITS.—If a permit issued by the

9 Secretary to conduct activities in waters of the

10 United States authorizes unavoidable impacts

11 on wetlands and relies on a mitigation bank to

12 offset such impacts, the Secretary shall use the

13 same objective criteria to determine the wet14 lands mitigation debits from such permitted ac15 tivity as is used to determine the wetlands miti16 gation credits at the relevant mitigation bank.

17 Until the issuance or regulations, however, in

18 no case shall a ratio of less than 1.5 credits for

19 every debit be allowed.

20 ‘‘(F) NO REGULATION OF PRICE.—The

21 Secretary shall not regulate the price charged

22 for the sale of mitigation credits.

23 ‘‘(4) STANDARDS TO BE ESTABLISHED.—

24 ‘‘(A) DEADLINES FOR REGULATIONS.—

25 Within 1 year after the date of the enactment
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1 of this subsection, the Secretary shall propose

2 regulations implementing this subsection and

3 shall promulgate such regulations not later than

4 18 months after such date of enactment.

5 ‘‘(B) CRITERIA FOR CREDITS.—Such regu6 lations shall set forth objective criteria by which

7 the number of credits to be yielded by a mitiga8 tion banking project may be determined and

9 shall take into account the wetlands functions

10 served by the wetlands restored, enhanced, cre11 ated, or preserved by such project, as well as

12 the environmental benefits served by the adja13 cent uplands included in such mitigation bank14 ing project. Such objective criteria shall also es15 tablish a preference for restoration or enhance16 ment of degraded wetlands but also provide for

17 the preservation of high quality wetlands if such

18 preservation results in a demonstrable benefit

19 to the watershed and there is a demonstrable

20 threat to the wetlands and creation of wetlands

21 where there is a high likelihood for ecological

22 success with adequate financial undertakings,

23 long-term source of water, and appropriate legal

24 control of the realty to assure their long-term

25 maintenance and viability.
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1 ‘‘(C) CRITERIA FOR SERVICE AREAS.—

2 Such regulations shall set objective criteria by

3 which mitigation bank service areas are to be

4 determined, taking into account the need to set

5 service areas at a size providing a reasonable

6 prospect of vigorous market competition among

7 large scale mitigation banks while ensuring that

8 the bank effectively mitigates for unavoidable

9 wetland impacts. Such regulations shall provide

10 that an activity in waters of the United States

11 permitted under this section which activity is a

12 linear utility facility and is otherwise partially

13 within a service area shall be eligible to pur14 chase mitigation credits from a mitigation bank

15 within the same State. Such regulations shall

16 establish a preference for using a mitigation

17 bank to mitigate an activity which is part of a

18 single and complete project which disturbs less

19 than 5 acres of wetland in a mitigation bank.

20 ‘‘(D) PREFERENCE FOR IN-KIND COM21 PENSATION.—Such regulations shall establish a

22 preference for in-kind compensation of wetland

23 impacts. Out-of-kind compensation may be ac24 ceptable only if there is clear demonstration
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1 that it is environmentally preferable to in-kind

2 compensation.

3 ‘‘(E) IMPLEMENTATION STRATEGY.—

4 ‘‘(i) DEVELOPMENT.—The Secretary

5 shall develop a State-by-State implementa6 tion strategy and report its findings and

7 conclusions to Congress and the public

8 within 1 year after the date of the enact9 ment of this subsection. Such strategy

10 shall be used, in part, to assist the Sec11 retary in proposing and promulgating reg12 ulations under this subsection.

13 ‘‘(ii) REVIEW.—In developing the

14 strategy, the Secretary shall examine the

15 progress of pending applications to estab16 lish mitigation banks under prior guidance

17 documents, identify reasons for delay of

18 any such application pending for more

19 than 6 months, and report alternatives to

20 streamline the processing of future applica21 tions.

22 ‘‘(iii) IDENTIFICATION OF WET23 LANDS.—In developing the strategy, the

24 Secretary shall seek to identify, in con25 sultation with the appropriate agency of
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1 each State, substantial acreage of degraded

2 wetlands which need significant physical

3 alteration to the current hydrology in order

4 to substantially recover their natural wet5 lands functions. Of the tracts of wetlands

6 so identified, the study shall identify those

7 where physical restoration work through

8 private mitigation banking could begin in

9 the next 3, 5, and 10 years.

10 ‘‘(iv) TRIENNIAL REPORTS TO CON11 GRESS.—Not later than 4 years after the

12 date of the enactment of this subsection,

13 and every 3 years thereafter, the Secretary

14 shall make a written report to Congress

15 about the progress of restoring the tracts

16 of degraded wetlands identified in the ini17 tial report. The progress report shall first

18 be issued in draft form, and the Secretary

19 shall receive comments from the public

20 about the accuracy of the information con21 tained in the draft progress report, for 60

22 days. The final version of the progress re23 port shall be revised after consideration of

24 the public comments and submitted to
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1 Congress not later than 90 days after the

2 close of the comment period.’’.

Æ