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eries habitat, the enhancement of water quality, and
natural flood control;
(3) much of the Nation’s resource has sustained
significant degradation, resulting in the need for ef-
fective programs to limit the loss of ecologically sig-
nificant wetlands and to provide for long-term res-
toration and enhancement of the wetlands resource
base;
(4) most of the loss of wetlands in coastal Lou-
isiana is not attributable to human activity;
(5) because 75 percent of the Nation’s wetlands
in the lower 48 States are privately owned and be-
cause the majority of the Nation’s population lives
in or near wetlands areas, an effective wetlands con-
servation and management program must reflect a
balanced approach that conserves and enhances im-
portant wetlands values and functions while observ-
ing private property rights, recognizing the need for
essential public infrastructure, such as highways,
ports, airports, pipelines, sewer systems, and public
water supply systems, and providing the opportunity
for sustained economic growth;
(6) while wetlands provide many varied eco-
nomic and environmental benefits, they also present
health risks in some instances where they act as
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breeding grounds for insects that are carriers of
human and animal diseases;
(7) the Federal permit program established
under section 404 of the Federal Water Pollution
Control Act was not originally conceived as a wet-
lands regulatory program and is insufficient to en-
sure that the Nation’s wetlands resource base will be
conserved and managed in a fair and environ-
mentally sound manner; and
(8) navigational dredging plays a vital role in
the Nation’s economy and, while adequate safe-
guards for aquatic resources must be maintained, it
is essential that the regulatory process be stream-
lined.
(b) PURPOSE.—The purpose of this title is to estab-
lish a new Federal regulatory program for certain wet-
lands and waters of the United States—
(1) to assert Federal regulatory jurisdiction
over a broad category of specifically identified activi-
ties that result in the degradation or loss of wet-
lands;
(2) to provide that each Federal agency, officer,
and employee exercise Federal authority under sec-
tion 404 of the Federal Water Pollution Control Act
to ensure that agency action under such section will
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not limit the use of privately owned property so as
to diminish its value;
(3) to account for variations in wetlands func-
tions in determining the character and extent of reg-
ulation of activities occurring in wetlands areas;
(4) to provide sufficient regulatory incentives
for conservation, restoration, or enhancement activi-
ties;
(5) to encourage conservation of resources on a
watershed basis to the fullest extent practicable;
(6) to protect public safety and balance public
and private interests in determining the conditions
under which activity in wetlands areas may occur;
and
(7) to streamline the regulatory mechanisms re-
lating to navigational dredging in the Nation’s wa-
ters.
SEC. 803. WETLANDS CONSERVATION AND MANAGEMENT.
Title IV (33 U.S.C. 1341 et seq.) is further amended
by striking section 404 and inserting the following new
section:
‘‘SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WA-
TERS OF THE UNITED STATES.
‘‘(a) PROHIBITED ACTIVITIES.—No person shall un-
dertake an activity in wetlands or waters of the United
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States unless such activity is undertaken pursuant to a
permit issued by the Secretary or is otherwise authorized
under this section.
‘‘(b) AUTHORIZED ACTIVITIES.—
‘‘(1) PERMITS.—The Secretary is authorized to
issue permits authorizing an activity in wetlands or
waters of the United States in accordance with the
requirements of this section.
‘‘(2) NONPERMIT ACTIVITIES.—An activity in
wetlands or waters of the United States may be un-
dertaken without a permit from the Secretary if that
activity is authorized under subsection (e)(6) or
(e)(8) or is exempt from the requirements of this
section under subsection (f) or other provisions of
this section.
‘‘(c) WETLANDS CLASSIFICATION.—
‘‘(1) REGULATIONS; APPLICATIONS.—
‘‘(A) DEADLINE FOR ISSUANCE OF REGU-
LATIONS.—Not later than 1 year after the date
of the enactment of the Comprehensive Wet-
lands Conservation and Management Act of
1995, the Secretary, in consultation with the
States, shall issue regulations to classify wet-
lands as type A, type B, or type C wetlands de-
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pending on the relative ecological significance of
the wetlands.
‘‘(B) APPLICATION
REQUIREMENT.—Any
person seeking to undertake activities in wet-
lands or waters of the United States for which
a permit is required under this section shall
make application to the Secretary identifying
the site of such activity and requesting that the
Secretary determine, in accordance with para-
graph (3) of this subsection, the classification
of the wetlands in which such activity is pro-
posed to occur. The applicant may also provide
such additional information regarding such pro-
posed activity as may be necessary or appro-
priate for purposes of determining the classi-
fication of such wetlands or whether and under
what conditions the proposed activity may be
permitted to occur.
‘‘(2) DEADLINES FOR CLASSIFICATIONS.—
‘‘(A) GENERAL RULE.—Except as provided
in subparagraph (B) of this paragraph, within
90 days following the receipt of an application
under paragraph (1), the Secretary shall pro-
vide notice to the applicant of the classification
of the wetlands that are the subject of such ap-
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plication and shall state in writing the basis for
such classification. The classification of the wet-
lands that are the subject of the application
shall be determined by the Secretary in accord-
ance with the requirements for classification of
wetlands under paragraph (3) and subsection
(i).
‘‘(B) RULE
FOR
ADVANCE
CLASSIFICA-
TIONS.—In the case of an application proposing
activities located in wetlands that are the sub-
ject of an advance classification under sub-
section (h), the Secretary shall provide notice to
the applicant of such classification within thirty
days following the receipt of such application,
and shall provide an opportunity for review of
such classification under paragraph (5) and
subsection (i).
‘‘(3) CLASSIFICATION SYSTEM.—Upon applica-
tion under this subsection, the Secretary shall—
‘‘(A) classify as type A wetlands those wet-
lands that are of critical significance to the
long-term conservation of the aquatic environ-
ment of which such wetlands are a part and
which meet the following requirements:
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‘‘(i) such wetlands serve critical wet-
lands functions, including the provision of
critical habitat for a concentration of
avian, aquatic, or wetland dependent wild-
life;
‘‘(ii) such wetlands consist of or may
be a portion of ten or more contiguous
acres and have an inlet or outlet for relief
of water flow; except that this requirement
shall not operate to preclude the classifica-
tion as type A wetlands lands containing
prairie pothole features, playa lakes, or
vernal pools if such lands otherwise meet
the requirements for type A classification
under this paragraph based on verifiable,
objective science;
‘‘(iii) there exists a scarcity within the
watershed or aquatic environment of iden-
tified functions served by such wetlands
such that the use of such wetlands for an
activity in wetlands or waters of the Unit-
ed States would seriously jeopardize the
availability of these identified wetlands
functions; and
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‘‘(iv) there is unlikely to be an over-
riding public interest in the use of such
wetlands for purposes other than conserva-
tion;
‘‘(B) classify as type B wetlands those wet-
lands that provide habitat for a significant pop-
ulation of wetland dependent wildlife or provide
other significant wetlands functions, including
significant enhancement or protection of water
quality or significant natural flood control; and
‘‘(C) classify as type C wetlands all wet-
lands that—
‘‘(i) serve limited wetlands functions;
‘‘(ii) serve marginal wetlands func-
tions but which exist in such abundance
that regulation of activities in such wet-
lands is not necessary for conserving im-
portant wetlands functions;
‘‘(iii) are fastlands; or
‘‘(iv) are wetlands within industrial,
commercial, or residential complexes or
other intensely developed areas that do not
serve significant wetlands functions as a
result of such location.
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‘‘(4) REQUEST FOR DETERMINATION OF JURIS-
DICTION.—
‘‘(A) IN GENERAL.—A person who holds
an ownership interest in property, or who has
written authorization from such a person, may
submit a request to the Secretary identifying
the property and requesting the Secretary to
make one or more of the following determina-
tions with respect to the property:
‘‘(i) Whether the property contains
waters of the United States.
‘‘(ii) If the determination under clause
(i) is made, whether any portion of the wa-
ters meets the requirements for delineation
as wetland under subsection (g).
‘‘(iii) If the determination under
clause (ii) is made, the classification of
each wetland on the property under this
subsection.
‘‘(B) PROVISION
OF
INFORMATION.—The
person shall provide such additional information
as may be necessary to make each determina-
tion requested under subparagraph (A).
‘‘(C) DETERMINATION AND NOTIFICATION
BY THE SECRETARY.—Not later than 90 days
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after receipt of a request under subparagraph
(A), the Secretary shall—
‘‘(i) notify the person submitting the
request of each determination made by the
Secretary pursuant to the request; and
‘‘(ii) provide written documentation of
each determination and the basis for each
determination.
‘‘(D) AUTHORITY TO SEEK IMMEDIATE RE-
VIEW.—Any person authorized under this para-
graph to request a jurisdictional determination
may seek immediate judicial review of any such
jurisdictional determination or may proceed
under subsection (i).
‘‘(5) DE
NOVO
DETERMINATION
AFTER
AD-
VANCE CLASSIFICATION.—Within 30 days of receipt
of notice of an advance classification by the Sec-
retary under paragraph (2)(B) of this subsection, an
applicant may request the Secretary to make a de
novo determination of the classification of wetlands
that are the subject of such notice.
‘‘(d) RIGHT TO COMPENSATION.—
‘‘(1) IN GENERAL.—The Federal Government
shall compensate an owner of property whose use of
any portion of that property has been limited by an
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agency action under this section that diminishes the
fair market value of that portion by 20 percent or
more. The amount of the compensation shall equal
the diminution in value that resulted from the agen-
cy action. If the diminution in value of a portion of
that property is greater than 50 percent, at the op-
tion of the owner, the Federal Government shall buy
that portion of the property for its fair market
value.
‘‘(2) DURATION
OF
LIMITATION
ON
USE.—
Property with respect to which compensation has
been paid under this section shall not thereafter be
used contrary to the limitation imposed by the agen-
cy action, even if that action is later rescinded or
otherwise vitiated. However, if that action is later
rescinded or otherwise vitiated, and the owner elects
to refund the amount of the compensation, adjusted
for inflation, to the Treasury of the United States,
the property may be so used.
‘‘(3) EFFECT OF STATE LAW.—If a use is a
nuisance as defined by the law of a State or is al-
ready prohibited under a local zoning ordinance, no
compensation shall be made under this section with
respect to a limitation on that use.
‘‘(4) EXCEPTIONS.—
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‘‘(A) PREVENTION OF HAZARD TO HEALTH
OR
SAFETY
OR
DAMAGE
TO
SPECIFIC
PROP-
ERTY.—No compensation shall be made under
this section with respect to an agency action the
primary purpose of which is to prevent an iden-
tifiable—
‘‘(i) hazard to public health or safety;
or
‘‘(ii) damage to specific property other
than the property whose use is limited.
‘‘(B) NAVIGATION SERVITUDE.—No com-
pensation shall be made under this section with
respect to an agency action pursuant to the
Federal navigation servitude, as defined by the
courts of the United States, except to the ex-
tent such servitude is interpreted to apply to
wetlands.
‘‘(5) PROCEDURE.—
‘‘(A) REQUEST
OF
OWNER.—An owner
seeking compensation under this section shall
make a written request for compensation to the
agency whose agency action resulted in the limi-
tation. No such request may be made later than
180 days after the owner receives actual notice
of that agency action.
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‘‘(B) NEGOTIATIONS.—The agency may
bargain with that owner to establish the
amount of the compensation. If the agency and
the owner agree to such an amount, the agency
shall promptly pay the owner the amount
agreed upon.
‘‘(C) CHOICE OF REMEDIES.—If, not later
than 180 days after the written request is
made, the parties do not come to an agreement
as to the right to and amount of compensation,
the owner may choose to take the matter to
binding arbitration or seek compensation in a
civil action.
‘‘(D) ARBITRATION.—The procedures that
govern the arbitration shall, as nearly as prac-
ticable, be those established under title 9, Unit-
ed States Code, for arbitration proceedings to
which that title applies. An award made in such
arbitration shall include a reasonable attorney’s
fee and other arbitration costs (including ap-
praisal fees). The agency shall promptly pay
any award made to the owner.
‘‘(E) CIVIL ACTION.—An owner who does
not choose arbitration, or who does not receive
prompt payment when required by this section,
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may obtain appropriate relief in a civil action
against the agency. An owner who prevails in a
civil action under this section shall be entitled
to, and the agency shall be liable for, a reason-
able attorney’s fee and other litigation costs (in-
cluding appraisal fees). The court shall award
interest on the amount of any compensation
from the time of the limitation.
‘‘(F) SOURCE
OF
PAYMENTS.—Any pay-
ment made under this section to an owner and
any judgment obtained by an owner in a civil
action under this section shall, notwithstanding
any other provision of law, be made from the
annual appropriation of the agency whose ac-
tion occasioned the payment or judgment. If the
agency action resulted from a requirement im-
posed by another agency, then the agency mak-
ing the payment or satisfying the judgment
may seek partial or complete reimbursement
from the appropriated funds of the other agen-
cy. For this purpose the head of the agency
concerned may transfer or reprogram any ap-
propriated funds available to the agency. If in-
sufficient funds exist for the payment or to sat-
isfy the judgment, it shall be the duty of the
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head of the agency to seek the appropriation
of such funds for the next fiscal year.
‘‘(6) LIMITATION.—Notwithstanding any other
provision of law, any obligation of the United States
to make any payment under this section shall be
subject to the availability of appropriations.
‘‘(7) DUTY OF NOTICE TO OWNERS.—Whenever
an agency takes an agency action limiting the use of
private property, the agency shall give appropriate
notice to the owners of that property directly af-
fected explaining their rights under this section and
the procedures for obtaining any compensation that
may be due to them under this section.
‘‘(8) RULES OF CONSTRUCTION.—
‘‘(A) EFFECT ON CONSTITUTIONAL RIGHT
TO
COMPENSATION.—Nothing in this section
shall be construed to limit any right to com-
pensation that exists under the Constitution,
laws of the United States, or laws of any State.
‘‘(B) EFFECT OF PAYMENT.—Payment of
compensation under this section (other than
when the property is bought by the Federal
Government at the option of the owner) shall
not confer any rights on the Federal Govern-
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ment other than the limitation on use resulting
from the agency action.
‘‘(9) TREATMENT
OF
CERTAIN
ACTIONS.—A
diminution in value under this subsection shall apply
to surface interests in lands only or water rights al-
located under State law; except that—
‘‘(A) if the Secretary determines that the
exploration for or development of oil and gas or
mineral interests is not compatible with limita-
tions on use related to the surface interests in
lands that have been classified as type A or
type B wetlands located above such oil and gas
or mineral interests (or located adjacent to such
oil and gas or mineral interests where such ad-
jacent lands are necessary to provide reasonable
access to such interests), the Secretary shall no-
tify the owner of such interests that the owner
may elect to receive compensation for such in-
terests under paragraph (1); and
‘‘(B) the failure to provide reasonable ac-
cess to oil and gas or mineral interests located
beneath or adjacent to surface interests of type
A or type B wetlands shall be deemed a diminu-
tion in value of such oil and gas or mineral in-
terests.
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‘‘(10) JURISDICTION.—The arbitrator or court
under paragraph (5)(D) or (5)(E) of this subsection,
as the case may be, shall have jurisdiction, in the
case of oil and gas or mineral interests, to require
the United States to provide reasonable access in,
across, or through lands that may be the subject of
a diminution in value under this subsection solely for
the purpose of undertaking activity necessary to de-
termine the value of the interests diminished and to
provide other equitable remedies deemed appro-
priate.
‘‘(11) LIMITATIONS ON STATUTORY CONSTRUC-
TION.—No action under this subsection shall be con-
strued—
‘‘(A) to impose any obligation on any State
or political subdivision thereof to compensate
any person, even in the event that the Secretary
has approved a land management plan under
subsection (f)(2) or an individual and general
permit program under subsection (l); or
‘‘(B) to alter or supersede requirements
governing use of water applicable under State
law.
‘‘(e) REQUIREMENTS APPLICABLE
TO PERMITTED
ACTIVITY.—
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‘‘(1) ISSUANCE OR DENIAL OF PERMITS.—Fol-
lowing the determination of wetlands classification
pursuant to subsection (c) if applicable, and after
compliance with the requirements of subsection (d)
if applicable, the Secretary may issue or deny per-
mits for authorization to undertake activities in wet-
lands or waters of the United States in accordance
with the requirements of this subsection.
‘‘(2) TYPE A WETLANDS.—
‘‘(A) ANALYSIS.—The Secretary shall de-
termine whether to issue a permit for an activ-
ity in waters of the United States classified
under subsection (c) as type A wetlands based
on—
‘‘(i) a sequential analysis that seeks,
to the maximum extent practicable, to—
‘‘(I) avoid adverse impact on the
wetlands;
‘‘(II) minimize such adverse im-
pact on wetlands functions that can-
not be avoided; and
‘‘(III) compensate for any loss of
wetland functions that cannot be
avoided or minimized; and
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‘‘(ii) the public interest analysis de-
scribed in paragraph (3).
‘‘(B) WATER DEPENDENT ACTIVITY.—For
purposes of subparagraph (A)(i)(I), if an activ-
ity is water dependent, an alternative in an area
that is not wetlands or waters of the United
States shall not be presumed to be available. A
water dependent activity is an activity that re-
quires access or proximity to or siting within
the wetlands or waters of the United States in
question to fulfill its basic purpose.
‘‘(C–) MITIGATION
TERMS
AND
CONDI-
TIONS.—Any permit issued authorizing activi-
ties in type A wetlands may contain such terms
and conditions concerning mitigation (including
those applicable under paragraph (3) for type B
wetlands) that the Secretary deems appropriate
to prevent the unacceptable loss or degradation
of type A wetlands. The Secretary shall deem
the mitigation requirement of this section to be
met with respect to activities in type A wetlands
if such activities (i) are carried out in accord-
ance with a State-approved reclamation plan or
permit 
which 
requires 
recontouring 
and
revegetation following mining, and (ii) will re-
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sult in overall environmental benefits being
achieved.
‘‘(3) TYPE B WETLANDS.—
‘‘(A) GENERAL RULE.—The Secretary may
issue a permit authorizing activities in type B
wetlands if the Secretary finds that issuance of
the permit is in the public interest, balancing
the reasonably foreseeable benefits and det-
riments resulting from the issuance of the per-
mit. The permit shall be subject to such terms
and conditions as the Secretary finds are nec-
essary to carry out the purposes of the Com-
prehensive Wetlands Conservation and Manage-
ment Act of 1995. In determining whether or
not to issue the permit and whether or not spe-
cific terms and conditions are necessary to
avoid a significant loss of wetlands functions,
the Secretary shall consider the following fac-
tors:
‘‘(i) The quality and quantity of sig-
nificant functions served by the areas to be
affected.
‘‘(ii) The opportunities to reduce im-
pacts through cost effective design to mini-
mize use of wetlands areas.
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‘‘(iii) The costs of mitigation require-
ments and the social, recreational, and eco-
nomic benefits associated with the pro-
posed activity, including local, regional, or
national needs for improved or expanded
infrastructure, minerals, energy, food pro-
duction, or recreation.
‘‘(iv) The ability of the permittee to
mitigate wetlands loss or degradation as
measured by wetlands functions.
‘‘(v) The environmental benefit, meas-
ured by wetlands functions, that may occur
through mitigation efforts, including re-
storing, preserving, enhancing, or creating
wetlands values and functions.
‘‘(vi) The marginal impact of the pro-
posed activity on the watershed of which
such wetlands are a part.
‘‘(vii) Whether the impact on the wet-
lands is temporary or permanent.
‘‘(B) DETERMINATION OF PROJECT PUR-
POSE.—In considering an application for activi-
ties on type B wetlands, there shall be a rebut-
table presumption that the project purpose as
defined by the applicant shall be binding upon
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the Secretary. The definition of project purpose
for projects sponsored by public agencies shall
be binding upon the Secretary, subject to the
authority of the Secretary to impose mitigation
requirements to minimize impacts on wetlands
values and functions, including cost effective re-
design of projects on the proposed project site.
‘‘(C) MITIGATION
REQUIREMENTS.—Ex-
cept as otherwise provided in this section, re-
quirements for mitigation shall be imposed
when the Secretary finds that activities under-
taken under this section will result in the loss
or degradation of type B wetlands functions
where such loss or degradation is not a tem-
porary or incidental impact. When determining
mitigation requirements in any specific case,
the Secretary shall take into consideration the
type of wetlands affected, the character of the
impact on wetland functions, whether any ad-
verse effects on wetlands are of a permanent or
temporary nature, and the cost effectiveness of
such mitigation and shall seek to minimize the
costs of such mitigation. Such mitigation re-
quirement shall be calculated based upon the
specific impact of a particular project. The Sec-
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retary shall deem the mitigation requirement of
this section to be met with respect to activities
in type B wetlands if such activities (i) are car-
ried out in accordance with a State-approved
reclamation plan or permit which requires
recontouring and revegetation following mining,
and (ii) will result in overall environmental ben-
efits being achieved.
‘‘(D) RULES GOVERNING MITIGATION.—In
accordance with subsection (j), the Secretary
shall issue rules governing requirements for
mitigation for activities occurring in wetlands
that allow for—
‘‘(i) minimization of impacts through
project design in the proposed project site
consistent with the project’s purpose, pro-
visions for compensatory mitigation, if any,
and other terms and conditions necessary
and appropriate in the public interest;
‘‘(ii) preservation or donation of type
A wetlands or type B wetlands (where title
has not been acquired by the United States
and no compensation under subsection (d)
for such wetlands has been provided) as
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mitigation for activities that alter or de-
grade wetlands;
‘‘(iii) enhancement or restoration of
degraded wetlands as compensation for
wetlands lost or degraded through per-
mitted activity;
‘‘(iv) creation of wetlands as com-
pensation for wetlands lost or degraded
through permitted activity if conditions are
imposed that have a reasonable likelihood
of being successful;
‘‘(v) compensation through contribu-
tion to a mitigation bank program estab-
lished pursuant to paragraph (4);
‘‘(vi) offsite compensatory mitigation
if such mitigation contributes to the res-
toration, enhancement or creation of sig-
nificant wetlands functions on a watershed
basis and is balanced with the effects that
the proposed activity will have on the spe-
cific site; except that offsite compensatory
mitigation, if any, shall be required only
within the State within which the proposed
activity is to occur, and shall, to the extent
practicable, be within the watershed within
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which the proposed activity is to occur, un-
less otherwise consistent with a State wet-
lands management plan;
‘‘(vii) contribution of in-kind value ac-
ceptable to the Secretary and otherwise au-
thorized by law;
‘‘(viii) in areas subject to wetlands
loss, the construction of coastal protection
and enhancement projects;
‘‘(ix) contribution of resources of
more than one permittee toward a single
mitigation project; and
‘‘(x) other mitigation measures, in-
cluding contributions of other than in-kind
value referred to in clause (vii), determined
by the Secretary to be appropriate in the
public interest and consistent with the re-
quirements and purposes of this Act.
‘‘(E) LIMITATIONS ON REQUIRING MITIGA-
TION.—Notwithstanding the provisions of sub-
paragraph (C), the Secretary may determine
not to impose requirements for compensatory
mitigation if the Secretary finds that—
‘‘(i) the adverse impacts of a per-
mitted activity are limited;
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‘‘(ii) the failure to impose compen-
satory mitigation requirements is compat-
ible with maintaining wetlands functions;
‘‘(iii) no practicable and reasonable
means of mitigation are available;
‘‘(iv) there is an abundance of similar
significant wetlands functions and values
in or near the area in which the proposed
activity is to occur that will continue to
serve the functions lost or degraded as a
result of such activity, taking into account
the impacts of such proposed activity and
the cumulative impacts of similar activity
in the area;
‘‘(v) the temporary character of the
impacts and the use of minimization tech-
niques make compensatory mitigation un-
necessary to protect significant wetlands
values; or
‘‘(vi) a waiver from requirements for
compensatory mitigation is necessary to
prevent special hardship.
‘‘(4) MITIGATION BANKS.—
‘‘(A) ESTABLISHMENT.—Not later than 6
months after the date of the enactment of this
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subparagraph, after providing notice and oppor-
tunity for public review and comment, the Sec-
retary shall issue regulations for the establish-
ment, use, maintenance, and oversight of miti-
gation banks. The regulations shall be devel-
oped in consultation with the heads of other ap-
propriate Federal agencies.
‘‘(B) PROVISIONS AND REQUIREMENTS.—
The regulations issued pursuant to subpara-
graph (A) shall ensure that each mitigation
bank—
‘‘(i) provides for the chemical, phys-
ical, and biological functions of wetlands or
waters of the United States which are lost
as a result of authorized adverse impacts
to wetlands or other waters of the United
States;
‘‘(ii) to the extent practicable and en-
vironmentally desirable, provides in-kind
replacement of lost wetlands functions and
be located in, or in proximity to, the same
watershed or designated geographic area
as the affected wetlands or waters of the
United States;
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‘‘(iii) be operated by a public or pri-
vate entity which has the financial capabil-
ity to meet the requirements of this para-
graph, including the deposit of a perform-
ance bond or other appropriate demonstra-
tion of financial responsibility to support
the long-term maintenance of the bank,
fulfill responsibilities for long-term mon-
itoring, maintenance, and protection, and
provide for the long-term security of own-
ership interests of wetlands and uplands
on which projects are conducted to protect
the wetlands functions associated with the
mitigation bank;
‘‘(iv) employ consistent and scientif-
ically sound methods to determine debits
by evaluating wetlands functions, project
impacts, and duration of the impact at the
sites of proposed permits for authorized
activities pursuant to this section and to
determine credits based on wetlands func-
tions at the site of the mitigation bank;
‘‘(v) provide for the transfer of credits
for mitigation that has been performed and
for mitigation that shall be performed
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within a designated time in the future,
provided that financial bonds shall be post-
ed in sufficient amount to ensure that the
mitigation will be performed in the case of
default;
‘‘(vi) provide, where appropriate, for
dual use of wetlands within the mitigation
bank, as long as the use other than provid-
ing compensatory mitigation under this
section (I) shall not interfere with the
functioning of such bank for providing
such mitigation, and (II) shall not ad-
versely impact wetlands or other waters of
the United States; and
‘‘(vii) provide opportunity for public
notice of and comment on proposals for the
mitigation banks; except that any process
utilized by a mitigation bank to obtain a
permit authorizing operations under this
section before the date of the enactment of
the Comprehensive Wetlands Conservation
and Management Act of 1995 satisfies the
requirement for such public notice and
comment.
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‘‘(5) PROCEDURES AND DEADLINES FOR FINAL
ACTION.—
‘‘(A) OPPORTUNITY
FOR
PUBLIC
COM-
MENT.—Not later than 15 days after receipt of
a complete application for a permit under this
section, together with information necessary to
consider such application, the Secretary shall
publish notice that the application has been re-
ceived and shall provide opportunity for public
comment and, to the extent appropriate, oppor-
tunity for a public hearing on the issuance of
the permit.
‘‘(B) GENERAL PROCEDURES.—In the case
of any application for authorization to under-
take activities in wetlands or waters of the
United States that are not eligible for treat-
ment on an expedited basis pursuant to para-
graph (8), final action by the Secretary shall
occur within 90 days following the date such
application is filed, unless—
‘‘(i) the Secretary and the applicant
agree that such final action shall occur
within a longer period of time;
‘‘(ii) the Secretary determines that an
additional, specified period of time is nec-
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essary to permit the Secretary to comply
with other applicable Federal law; except
that if the Secretary is required under the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) to prepare
an environmental impact statement, with
respect to the application, the final action
shall occur not later than 45 days follow-
ing the date such statement is filed; or
‘‘(iii) the Secretary, within 15 days
from the date such application is received,
notifies the applicant that such application
does not contain all information necessary
to allow the Secretary to consider such ap-
plication and identifies any necessary addi-
tional information, in which case, the pro-
visions of subparagraph (C) shall apply.
‘‘(C) SPECIAL
RULE
WHEN
ADDITIONAL
INFORMATION IS REQUIRED.—Upon the receipt
of a request for additional information under
subparagraph (B)(iii), the applicant shall sup-
ply such additional information and shall advise
the Secretary that the application contains all
requested information and is therefore com-
plete. The Secretary may—
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‘‘(i) within 30 days of the receipt of
notice of the applicant that the application
is complete, determine that the application
does not contain all requested additional
information and, on that basis, deny the
application without prejudice to resubmis-
sion; or
‘‘(ii) within 90 days from the date
that the applicant provides notification to
the Secretary that the application is com-
plete, review the application and take final
action.
‘‘(D) EFFECT
OF
NOT
MEETING
DEAD-
LINE.—If the Secretary fails to take final ac-
tion on an application under this paragraph
within 90 days from the date that the applicant
provides notification to the Secretary that such
application is complete, a permit shall be pre-
sumed to be granted authorizing the activities
proposed in such application under such terms
and conditions as are stated in such completed
application.
‘‘(6) TYPE
C
WETLANDS.—Activities in wet-
lands that have been classified as type C wetlands
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by the Secretary may be undertaken without author-
ization required under subsection (a) of this section.
‘‘(7) STATES WITH SUBSTANTIAL CONSERVED
WETLANDS.—
‘‘(A) IN GENERAL.—With respect to type
A and type B wetlands in States with substan-
tial conserved wetlands areas, at the option of
the permit applicant, the Secretary shall issue
permits authorizing activities in such wetlands
pursuant to this paragraph. Final action on is-
suance of such permits shall be in accordance
with the procedures and deadlines of paragraph
(5). The Secretary may include conditions or
requirements for minimization of adverse im-
pacts to wetlands functions when minimization
is economically practicable. No permit to which
this paragraph applies shall include conditions,
requirements, or standards for mitigation to
compensate for adverse impacts to wetlands or
waters of the United States or conditions, re-
quirements, or standards for avoidance of ad-
verse impacts to wetlands or waters of the
United States.
‘‘(B) ECONOMIC BASE LANDS.—Upon ap-
plication by the owner of economic base lands
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in a State with substantial conserved wetlands
areas, the Secretary shall issue individual and
general permits to owners of such lands for ac-
tivities in wetlands or waters of the United
States. The Secretary shall reduce the require-
ments of subparagraph (A)—
‘‘(i) to allow economic base lands to
be beneficially used to create and sustain
economic activity; and
‘‘(ii) in the case of lands owned by
Alaska Native entities, to reflect the social
and economic needs of Alaska Natives to
utilize economic base lands.
The Secretary shall consult with and provide
assistance to the Alaska Natives (including
Alaska Native Corporations) in promulgation
and administration of policies and regulations
under this section.
‘‘(8) GENERAL PERMITS.—
‘‘(A) GENERAL
AUTHORITY.—The Sec-
retary may issue, by rule in accordance with
subsection (j), general permits on a pro-
grammatic, State, regional, or nationwide basis
for any category of activities involving an activ-
ity in wetlands or waters of the United States
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if the Secretary determines that such activities
are similar in nature and that such activities,
when performed separately and cumulatively,
will not result in the significant loss of eco-
logically significant wetlands values and func-
tions.
‘‘(B) PROCEDURES.—Permits issued under
this paragraph shall include procedures for ex-
pedited review of eligibility for such permits (if
such review is required) and may include re-
quirements for reporting and mitigation. To the
extent that a proposed activity requires a deter-
mination by the Secretary as to the eligibility to
qualify for a general permit under this sub-
section, such determination shall be made with-
in 30 days of the date of submission of the ap-
plication for such qualification, or the applica-
tion shall be treated as being approved.
‘‘(C) COMPENSATORY
MITIGATION.—Re-
quirements for compensatory mitigation for
general permits may be imposed where nec-
essary to offset the significant loss or degrada-
tion of significant wetlands functions where
such loss or degradation is not a temporary or
incidental impact. Such compensatory mitiga-
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tion shall be calculated based upon the specific
impact of a particular project.
‘‘(D) GRANDFATHER
OF
EXISTING
GEN-
ERAL PERMITS.—General permits in effect on
day before the date of the enactment of the
Comprehensive 
Wetlands 
Conservation 
and
Management Act of 1995 shall remain in effect
until otherwise modified by the Secretary.
‘‘(E) STATES
WITH
SUBSTANTIAL
CON-
SERVED LANDS.—Upon application by a State
or local authority in a State with substantial
conserved wetlands areas, the Secretary shall
issue a general permit applicable to such au-
thority for activities in wetlands or waters of
the United States. No permit issued pursuant
to this subparagraph shall include conditions,
requirements, or standards for mitigation to
compensate for adverse impacts to wetlands or
waters of the United States or shall include
conditions, requirements, or standards for
avoidance of adverse impacts of wetlands or wa-
ters of the United States.
‘‘(9) 
OTHER
WATERS
OF
THE
UNITED
STATES.—The Secretary may issue a permit author-
izing activities in waters of the United States (other
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than those classified as type A, B, or C wetlands
under this section) if the Secretary finds that issu-
ance of the permit is in the public interest, bal-
ancing the reasonably foreseeable benefits and det-
riments resulting from the issuance of the permit.
The permit shall be subject to such terms and condi-
tions as the Secretary finds are necessary to carry
out the purposes of the Comprehensive Wetlands
Conservation and Management Act of 1995. In de-
termining whether or not to issue the permit and
whether or not specific terms and conditions are nec-
essary to carry out such purposes, the Secretary
shall consider the factors set forth in paragraph
(3)(A) as they apply to nonwetlands areas and such
other provisions of paragraph (3) as the Secretary
determines are appropriate to apply to nonwetlands
areas.
‘‘(10) 
MITIGATION
OF
AGRICULTURAL
LANDS.—Any mitigation requirement approved by
the Secretary under this section for agricultural
lands shall be developed in consultataion with the
Secretary of Agriculture.
‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—
‘‘(1) IN
GENERAL.—Activities undertaken in
any wetlands or waters of the United States are ex-
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empt from the requirements of this section and are
not prohibited by or otherwise subject to regulation
under this section or section 301 or 402 of this Act
(except effluent standards or prohibitions under sec-
tion 307 of this Act) if such activities—
‘‘(A) 
result 
from 
normal 
farming,
silviculture, aquaculture, and ranching activities
and practices, including but not limited to plow-
ing, seeding, cultivating, haying, grazing, nor-
mal maintenance activities, minor drainage,
burning of vegetation in connection with such
activities, harvesting for the production of food,
fiber, and forest products, or upland soil and
water conservation practices;
‘‘(B) are for the purpose of maintenance,
including emergency reconstruction of recently
damaged parts, of currently serviceable struc-
tures such as dikes, dams, levees, flood control
channels or other engineered flood control facili-
ties, water control structures, water supply res-
ervoirs (where such maintenance involves peri-
odic water level drawdowns) which provide
water predominantly to public drinking water
systems, groins, riprap, breakwaters, utility dis-
tribution and transmission lines, causeways,
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and bridge abutments or approaches, and trans-
portation structures;
‘‘(C) are for the purpose of construction or
maintenance of farm, stock or aquaculture
ponds, wastewater retention or management fa-
cilities (including dikes and berms and related
structures) that are used by concentrated ani-
mal feeding operations or advanced treatment
municipal wastewater reuse operations, or irri-
gation canals and ditches or the maintenance of
drainage ditches;
‘‘(D) are for the purpose of construction of
temporary sedimentation basins on a construc-
tion site, or the construction of any upland
dredged material disposal area, which does not
include placement of fill material into the navi-
gable waters;
‘‘(E) are for the purpose of construction or
maintenance of farm roads or forest roads, rail-
road lines of up to 10 miles in length, or tem-
porary roads for moving mining equipment, ac-
cess roads for utility distribution and trans-
mission lines if such roads or railroad lines are
constructed and maintained, in accordance with
best management practices, to assure that flow
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and circulation patterns and chemical and bio-
logical characteristics of the waters are not im-
paired, that the reach of the waters is not re-
duced, and that any adverse effect on the
aquatic environment will be otherwise mini-
mized;
‘‘(F) are undertaken on farmed wetlands,
except that any change in use of such land for
the purpose of undertaking activities that are
not exempt from regulation under this sub-
section shall be subject to the requirements of
this section to the extent that such farmed wet-
lands are ‘wetlands’ under this section;
‘‘(G) result from any activity with respect
to which a State has an approved program
under section 208(b)(4) of this Act which meets
the requirements of subparagraphs (B) and (C)
of such section;
‘‘(H) are consistent with a State or local
land management plan submitted to the Sec-
retary and approved pursuant to paragraph (2);
‘‘(I) are undertaken in connection with a
marsh management and conservation program
in a coastal parish in the State of Louisiana
where such program has been approved by the
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Governor of such State or the designee of the
Governor;
‘‘(J) are undertaken on lands or involve
activities within a State’s coastal zone which
are excluded from regulation under a State
coastal zone management program approved
under the Coastal Zone Management Act of
1972 (16 U.S.C. 1451, et seq.);
‘‘(K) are undertaken in incidentally created
wetlands, unless such incidentally created wet-
lands have exhibited wetlands functions and val-
ues for more than 5 years in which case activi-
ties undertaken in such wetlands shall be sub-
ject to the requirements of this section;
‘‘(L) are for the purpose of preserving and
enhancing aviation safety or are undertaken in
order to prevent an airport hazard;
‘‘(M) result from aggregate or clay mining
activities in wetlands conducted pursuant to a
State or Federal permit that requires the rec-
lamation of such affected wetlands if such rec-
lamation will be completed within 5 years of the
commencement of activities at the site and,
upon completion of such reclamation, the wet-
lands will support wetlands functions equivalent
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to the functions supported by the wetlands at
the time of commencement of such activities;
‘‘(N) are for the placement of a structural
member for a pile-supported structure, such as
a pier or dock, or for a linear project such as
a bridge, transmission or distribution line foot-
ing, powerline structure, or elevated or other
walkway;
‘‘(O) are for the placement of a piling in
waters of the United States in a circumstance
that involves—
‘‘(i) a linear project described in sub-
paragraph (N); or
‘‘(ii) a structure such as a pier, boat-
house, wharf, marina, lighthouse, or indi-
vidual house built on stilts solely to reduce
the potential of flooding;
‘‘(P) are for the clearing (including mecha-
nized clearing) of vegetation within a right-of-
way associated with the development and main-
tenance of a transmission or distribution line or
other powerline structure or for the mainte-
nance of water supply reservoirs which provide
water predominantly to public drinking water
systems;
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‘‘(Q) are undertaken in or affecting
waterfilled depressions created in uplands inci-
dental to construction activity, or are under-
taken in or affecting pits excavated in uplands
for the purpose of obtaining fill, sand, gravel,
aggregates, or minerals, unless and until the
construction or excavation operation is aban-
doned;
‘‘(R) are undertaken in a State with sub-
stantial conserved wetlands areas and—
‘‘(i) are for purposes of providing crit-
ical infrastructure, including water and
sewer systems, airports, roads, communica-
tion sites, fuel storage sites, landfills, hous-
ing, hospitals, medical clinics, schools, and
other community infrastructure;
‘‘(ii) are for construction and mainte-
nance of log transfer facilities associated
with log transportation activities;
‘‘(iii) are for construction of tailings
impoundments utilized for treatment facili-
ties (as determined by the development
document) for the mining subcategory for
which the tailings impoundment is con-
structed;
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‘‘(iv) are for construction of ice pads
and ice roads and for purposes of snow
storage and removal; or
‘‘(v) result from any silvicultural ac-
tivity or practice undertaken on economic
base lands; or
‘‘(S) result from the conduct of rec-
reational hunting or shooting.
‘‘(2) STATE OR LOCAL MANAGEMENT PLAN.—
Any State or political subdivision thereof acting pur-
suant to State authorization may develop a land
management plan with respect to lands that include
identified wetlands. The State or local government
agency may submit any such plan to the Secretary
for review and approval. The Secretary shall, within
60 days, notify in writing the designated State or
local official of approval or disapproval of any such
plan. The Secretary shall approve any plan that is
consistent with the purposes of this section. No per-
son shall be entitled to judicial review of the decision
of the Secretary to approve or disapprove a land
management plan under this paragraph. Nothing in
this paragraph shall be construed to alter, limit, or
supersede the authority of a State or political sub-
division thereof to establish land management plans
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for purposes other than the provisions of this sub-
section.
‘‘(g) RULES FOR DELINEATING WETLANDS.—
‘‘(1) STANDARDS.—
‘‘(A) ISSUANCE OF RULE.—The Secretary
is authorized and directed to establish stand-
ards, by rule in accordance with subsection (j),
that shall govern the delineation of lands as
‘wetlands’ for purposes of this section. Such
rules shall be established after consultation with
the heads of other appropriate Federal agencies
and shall be binding on all Federal agencies in
connection with the administration or imple-
mentation of any provision of this section. The
standards for delineation of wetlands and any
decision of the Secretary, the Secretary of Agri-
culture (in the case of agricultural lands and
associated nonagricultural lands), or any other
Federal officer or agency made in connection
with the administration of this section shall
comply with the requirements for delineation of
wetlands set forth in subparagraphs (B) and
(C).
‘‘(B) EXCEPTIONS.—The standards estab-
lished by rule or applied in any case for pur-
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poses of this section shall ensure that lands are
delineated as wetlands only if such lands are
found to be ‘wetlands’ under section 502 of this
Act; except that such standards may not—
‘‘(i) result in the delineation of lands
as wetlands unless clear evidence of wet-
lands hydrology, hydrophytic vegetation,
and hydric soil are found to be present
during the period in which such delineation
is made, which delineation shall be con-
ducted during the growing season unless
otherwise requested by the applicant;
‘‘(ii) result in the classification of
vegetation as hydrophytic if such vegeta-
tion is equally adapted to dry or wet soil
conditions or is more typically adapted to
dry soil conditions than to wet soil condi-
tions;
‘‘(iii) result in the classification of
lands as wetlands unless some obligate
wetlands vegetation is found to be present
during the period of delineation; except
that if such vegetation has been removed
for the purpose of evading jurisdiction
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under this section, this clause shall not
apply;
‘‘(iv) result in the conclusion that wet-
lands hydrology is present unless water is
found to be present at the surface of such
lands for 21 consecutive days in the grow-
ing seasons in a majority of the years for
which records are available; and
‘‘(v) result in the classification of
lands as wetlands that are temporarily or
incidentally created as a result of adjacent
development activity.
‘‘(C) NORMAL CIRCUMSTANCES.—In addi-
tion to the requirements of subparagraph (B),
any standards established by rule or applied to
delineate wetlands for purposes of this section
shall provide that ‘normal circumstances’ shall
be determined on the basis of the factual cir-
cumstances in existence at the time a classifica-
tion is made under subsection (h) or at the time
of application under subsection (e), whichever is
applicable, if such circumstances have not been
altered by an activity prohibited under this sec-
tion.
‘‘(2) AGRICULTURAL LANDS.—
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‘‘(A) DELINEATION BY SECRETARY OF AG-
RICULTURE.—For purposes of this section, wet-
lands located on agricultural lands and associ-
ated nonagricultural lands shall be delineated
solely by the Secretary of Agriculture in accord-
ance with subtitle C of title XII of the Food Se-
curity Act of 1985 (16 U.S.C. 3821 et seq.).
‘‘(B) EXEMPTION
OF
LANDS
EXEMPTED
UNDER FOOD SECURITY ACT.—Any area of ag-
ricultural land or any activities related to the
land determined to be exempt from the require-
ments of subtitle C of title XII of the Food Se-
curity Act of 1985 (16 U.S.C. 3821 et seq.)
shall also be exempt from the requirements of
this section for such period of time as those
lands are used, or a good faith effort is shown
by the owner or operator to use such lands, as
agricultural lands.
‘‘(C) EFFECT OF APPEAL DETERMINATION
PURSUANT TO FOOD SECURITY ACT.—Any area
of agricultural land or any activities related to
the land determined to be exempt pursuant to
an appeal taken pursuant to subtitle C of title
XII of the Food Security Act of 1985 (16
U.S.C. 3821 et seq.) shall be exempt under this