final guidance under subsection (o) and every 5
years thereafter. Each program submission after the
initial submission following the date of the enact-
ment of the Clean Water Amendments of 1995 shall
include a demonstration of reasonable further
progress toward the goal of attaining water quality
standards by not later than December 31, 2009, in-
cluding documentation of the degree to which the
State has achieved the interim goals and milestones
contained in the previous program submission. Such
demonstration shall take into account the adequacy
of Federal funding under this section.’’.
(d) APPROVAL AND DISAPPROVAL OF REPORTS AND
MANAGEMENT PROGRAMS.—
(1) DEADLINE.—Section 319(d)(1) is amended
by inserting ‘‘or revised report’’ after ‘‘any report’’.
(2) 
DISAPPROVAL.—Section 
319(d)(2) 
is
amended—
(A) in subparagraph (D) by striking ‘‘are
not adequate’’ and all that follows before the
semicolon and inserting the following: ‘‘will not
result in reasonable progress toward the attain-
ment of applicable water quality standards
under section 303 as expeditiously as possible
but not later than December 31, 2009’’; and
(B) in the text following subparagraph (D)
by striking ‘‘3 months’’ and inserting ‘‘6
months’’.
(3) FAILURE
TO
SUBMIT
REPORT.—Section
319(d)(3) is amended—
(A) in paragraph (1) by striking ‘‘the re-
port’’ and inserting ‘‘a report or revised re-
port’’;
(B) by striking ‘‘30 months’’ and inserting
‘‘18 months’’; and
(C) by striking ‘‘of the enactment of this
section’’ and inserting ‘‘on which such report is
required to be submitted under subsection (a)’’.
(4) FAILURE OF STATE TO SUBMIT MANAGE-
MENT
PROGRAM.—Section 319(d) is amended by
adding at the end the following:
‘‘(4) FAILURE OF STATE TO SUBMIT MANAGE-
MENT PROGRAM.—If a State fails to submit a man-
agement program or revised management program
under subsection (b) or the Administrator does not
approve such management program, the Adminis-
trator shall prepare and implement a management
program for controlling pollution added from
nonpoint sources to the navigable waters within the
State and improving the quality of such waters in
accordance with subsection (b). If the Administrator
intends to disapprove a program submitted by a
State, the Administrator shall first notify the Gov-
ernor of the State in writing of the modifications
necessary to meet the requirements of this section.
The Administrator shall provide adequate public no-
tice and an opportunity for a public hearing for all
interested parties. If, after taking into account the
level of funding actually provided as compared with
the level authorized under subsection (j), the Admin-
istrator determines that a State has failed to dem-
onstrate reasonable further progress toward the at-
tainment of water quality standards as required, the
State shall revise its program within 12 months of
that determination in a manner sufficient to achieve
attainment of applicable water quality standards by
the deadline established by this Act. If a State fails
to make such a program revision or the Adminis-
trator does not approve such a revision, the Admin-
istrator shall prepare and implement a nonpoint
source management program for the State.’’.
(e) TECHNICAL
ASSISTANCE.—Section 319(f) is
amended by inserting ‘‘and implementation of’’ after ‘‘de-
veloping’’.
(f) GRANT PROGRAM.—
(1) IN GENERAL.—Section 319(h)(1) is amend-
ed—
(A) by amending the paragraph heading to
read as follows: ‘‘GRANTS FOR PREPARATION
AND IMPLEMENTATION OF REPORTS AND MAN-
AGEMENT PROGRAMS.—’’;
(B) by striking ‘‘for which a report submit-
ted under subsection (a) and a management
program submitted under subsection (b) is ap-
proved under this section’’;
(C) by striking ‘‘the Administrator shall
make grants’’ and inserting ‘‘the Administrator
may make grants under this subsection’’;
(D) by striking ‘‘under this subsection to
such State’’ and inserting ‘‘to such State’’;
(E) by striking ‘‘implementing such man-
agement program’’ and inserting ‘‘preparing a
report under subsection (a) and in preparing
and implementing a management program
under subsection (b)’’;
(F) by inserting after the first sentence the
following: ‘‘Grants for implementation of such
management program may be made only after
such report and management program are ap-
proved under this section.’’; and
(G) by adding at the end the following:
‘‘The Administrator is authorized to provide
funds to a State if necessary to implement an
approved portion of a State program or to im-
plement a component of a federally established
program.’’.
(2) FEDERAL
SHARE.—Section 319(h)(3) is
amended—
(A) by striking ‘‘management program im-
plemented’’ and inserting ‘‘report prepared and
management program prepared and imple-
mented’’;
(B) by striking ‘‘60 percent’’ and inserting
‘‘75 percent’’;
(C) by striking ‘‘implementing such man-
agement program’’ and inserting ‘‘preparing
such report and preparing and implementing
such management program’’; and
(D) by inserting ‘‘of program implementa-
tion’’ after ‘‘non-Federal share’’.
(3) LIMITATION ON GRANT AMOUNTS.—Section
319(h)(4) is amended—
(A) by inserting before the first sentence
the following: ‘‘The Administrator shall estab-
lish, after consulting with the States, maximum
and minimum grants for any fiscal year to pro-
mote equity between States and effective
nonpoint source management.’’; and
(B) by adding at the end the following:
‘‘The minimum percentage of funds allocated to
each State shall be 0.5 percent of the amount
appropriated.’’.
(4) ALLOCATION
OF
GRANT
FUNDS.—Para-
graph (5) of section 319(h) is amended to read as
follows:
‘‘(5) ALLOCATION OF GRANT FUNDS.—Grants
under this section shall be allocated to States with
approved programs in a fair and equitable manner
and be based upon rules and regulations promul-
gated by the Administrator which shall take into ac-
count the extent and nature of the nonpoint sources
of pollution in each State and other relevant fac-
tors.’’.
(5) LIMITATION
ON
USE
OF
FUNDS.—Para-
graph (7) of section 319(h) is amended to read as
follows:
‘‘(7) LIMITATION ON USE OF FUNDS.—A State
may not use more than 70 percent of amounts from
grants made available to the State pursuant to this
section for—
‘‘(A) providing financial assistance with re-
spect to those activities whose principal purpose
is protecting and improving water quality;
‘‘(B) assistance related to the cost of pre-
paring or implementing the State management
program;
‘‘(C) providing incentive grants to individ-
uals to implement a site-specific water quality
plan in amounts not to exceed 75 percent of the
cost of the project from all Federal sources; and
‘‘(D) land acquisition or conservation ease-
ments consistent with a site-specific water qual-
ity plan.’’.
(6) COMPLIANCE
WITH
STATE
MANAGEMENT
PROGRAM.—Paragraph (8) of section 319(h) is
amended to read as follows:
‘‘(8) COMPLIANCE WITH STATE MANAGEMENT
PROGRAM.—In any fiscal year for which the Admin-
istrator determines that a State has not made satis-
factory progress in the preceding fiscal year in meet-
ing the schedule specified for such State under sub-
section (b)(2)(C), the Administrator is authorized to
withhold grants pursuant to this section in whole or
in part to the State after adequate written notice is
provided to the Governor of the State.’’.
(7) ALLOTMENT
STUDY.—Section 319(h) is
amended by adding at the end the following:
‘‘(13) ALLOTMENT STUDY.—
‘‘(A) STUDY.—The Administrator, in con-
sultation with the States, shall conduct a study
of whether the allocation of funds under para-
graph (5) appropriately reflects the costs of
nonpoint source control measures for different
nonpoint source categories and subcategories
and of options for better reflecting such costs in
the allotment of funds.
‘‘(B) REPORT.—Not later than 5 years
after the date of the enactment of the Clean
Water Amendments of 1995, the Administrator
shall transmit to Congress a report on the re-
sults of the study conducted under this sub-
section, together with recommendations.’’.
(g) GRANTS
FOR PROTECTING GROUND WATER
QUALITY.—Section 319(i)(3) is amended by striking
‘‘$150,000’’ and inserting ‘‘$500,000’’.
(h) AUTHORIZATION OF APPROPRIATIONS.—Section
319(j) is amended—
(1) by striking ‘‘and’’ before ‘‘$130,000,000’’;
(2) by inserting after ‘‘1991’’ the following: ‘‘,
such sums as may be necessary for each of fiscal
years 1992 through 1995, $100,000,000 for fiscal
year 1996, $150,000,000 for fiscal year 1997,
$200,000,000 for fiscal year 1998, $250,000,000 for
fiscal year 1999, and $300,000,000 for fiscal year
2000’’; and
(3) by striking ‘‘$7,500,000’’ and inserting
‘‘$25,000,000’’.
(i) REPORTS OF THE ADMINISTRATOR.—
(1) BIENNIAL REPORTS.—Section 319(m)(1) is
amended—
(A) in the paragraph heading by striking
‘‘ANNUAL’’ and inserting ‘‘BIENNIAL’’; and
(B) by striking ‘‘1998, and each January
1’’ and inserting ‘‘1995, and biennially’’.
(2) CONTENTS.—Section 319(m)(2) is amend-
ed—
(A) by striking the paragraph heading and
all that follows before ‘‘at a minimum’’ and in-
serting ‘‘CONTENTS.—Each report submitted
under paragraph (1),’’;
(B) in subparagraph (A) by striking ‘‘best
management practices’’ and inserting ‘‘meas-
ures’’; and
(C) in subparagraph (B) by striking ‘‘best
management practices’’ and inserting ‘‘the
measures provided by States under subsection
(b)’’.
(j) SET ASIDE FOR ADMINISTRATIVE PERSONNEL.—
Section 319(n) is amended by striking ‘‘less’’ and insert-
ing ‘‘more’’.
(k) GUIDANCE ON MODEL MANAGEMENT PRACTICES
AND MEASURES.—Section 319 is amended by adding at
the end the following:
‘‘(o) GUIDANCE
ON MODEL MANAGEMENT PRAC-
TICES AND MEASURES.—
‘‘(1) IN GENERAL.—The Administrator, in con-
sultation with appropriate Federal and State depart-
ments and agencies, and after providing notice and
opportunity for public comment, shall publish guid-
ance to identify model management practices and
measures which may be undertaken, at the discre-
tion of the State or appropriate entity, under a man-
agement program established pursuant to this sec-
tion.
‘‘(2) PUBLICATION.—The Administrator shall
publish proposed guidance under this subsection not
later than 6 months after the date of the enactment
of this subsection and shall publish final guidance
under this subsection not later than 18 months after
such date of enactment. The Administrator shall pe-
riodically review and revise the final guidance at
least once every 3 years after its publication.
‘‘(3) MODEL
MANAGEMENT
PRACTICES
AND
MEASURES DEFINED.—For the purposes of this sub-
section, the term ‘model management practices and
measures’ means economically achievable measures
for the control of the addition of pollutants from
nonpoint sources of pollution which reflect the great-
est degree of pollutant reduction achievable through
the application of the best available nonpoint pollu-
tion control practices, technologies, processes, siting
criteria, operating methods, or other alternatives.
(l) INADEQUATE FUNDING.—Section 319 is amended
by adding at the end the following:
‘‘(p) INADEQUATE FUNDING.—For each fiscal year
beginning after the date of the enactment of this sub-
section for which the total of amounts appropriated to
carry out this section are less than the total of amounts
authorized to be appropriated pursuant to subsection (j),
the deadline for compliance with any requirement of this
section, including any deadline relating to assessment re-
ports or State program implementation or monitoring ef-
forts, shall be postponed by 1 year.’’.
(m) COASTAL NONPOINT POLLUTION CONTROL PRO-
GRAMS.—Section 6217(a)(1) of the Omnibus Budget Rec-
onciliation Act of 1990 (16 U.S.C. 1455b(a)(1)) is amend-
ed by inserting before the period at the end of the 1st
sentence the following: ‘‘; except that a State that submits
a management program to the Secretary for approval
under section 306 of the Coastal Zone Management Act
of 1972 after the date of issuance of final guidance under
subsection (g) of this section shall not be required to sub-
mit a Coastal Nonpoint Pollution Control Program for ap-
proval pursuant to this subsection before the expiration
of the 30-month period beginning on the date on which
the Secretary approves such management program.’’.
SEC. 309. NATIONAL ESTUARY PROGRAM.
(a) TECHNICAL AMENDMENT.—Section 320(a)(2)(B)
(33 U.S.C. 1330(a)(2)(B)) is amended to read as follows:
‘‘(B) PRIORITY CONSIDERATION.—The Ad-
ministrator shall give priority consideration
under this section to Long Island Sound, New
York and Connecticut; Narragansett Bay,
Rhode Island; Buzzards Bay, Massachusetts;
Massachusetts Bay, Massachusetts (including
Cape Cod Bay and Boston Harbor); Puget
Sound, Washington; New York-New Jersey
Harbor, New York and New Jersey; Delaware
Bay, Delaware and New Jersey; Delaware In-
land Bays, Delaware; Albemarle Sound, North
Carolina; Sarasota Bay, Florida; San Francisco
Bay, California; Santa Monica Bay, California;
Galveston Bay, Texas; Barataria-Terrebonne
Bay estuary complex, Louisiana; Indian River
Lagoon, Florida; and Peconic Bay, New York.’’.
(b) 
GRANTS.—Section 
320(g)(2) 
(33 
U.S.C.
1330(g)(2)) is amended by inserting ‘‘and implementation
monitoring’’ after ‘‘development’’.
SEC. 310. STATE WATERSHED MANAGEMENT PROGRAMS.
(a) ESTABLISHMENT.—Title III (33 U.S.C. 1311–
1330) is amended by adding at the end the following:
‘‘SEC. 321. STATE WATERSHED MANAGEMENT PROGRAMS.
‘‘(a) DEFINITIONS.—In this section, the following
definitions apply:
‘‘(1) 
ECOSYSTEM.—The 
term 
‘ecosystem’
means a community of plants and animals (including
humans) and the environment (including surface
water, the ground water with which it interacts, and
riparian areas) upon which the community depends.
‘‘(2) ENVIRONMENTAL GOALS.—The term ‘envi-
ronmental goals’ means the goals and more detailed
objectives specified by States or State-designated re-
sponsible entities to protect, restore, and maintain
water resources and aquatic ecosystems within a wa-
tershed, including applicable water quality standards
and wetlands protection goals established under this
Act.
‘‘(3) STATE.—The term ‘State’ means any
State, territory, or Indian tribe described in section
518(e).
‘‘(b) 
STATE
WATERSHED
MANAGEMENT
PRO-
GRAM.—
‘‘(1) SUBMISSION
OF
PROGRAM
TO
ADMINIS-
TRATOR.—A State, at any time, may submit a wa-
tershed management program to the Administrator
for approval.
‘‘(2) APPROVAL.—If the Administrator does not
disapprove a State watershed management program
within 180 days of its submittal or 240 days of a
request for a public hearing pursuant to paragraph
(3) with respect to the program, whichever is later,
such program shall be deemed approved for the pur-
poses of this section. The Administrator shall ap-
prove the program if the program includes, at a
minimum, the following elements:
‘‘(A) The identification of the State agency
with primary responsibility for overseeing and
approving watershed management plans in gen-
eral.
‘‘(B) The description of any responsible
entities (including any appropriate State agency
or substate agency) to be utilized in implement-
ing the program and a description of their re-
sponsibilities.
‘‘(C) A description of the scope of the pro-
gram. In establishing the scope of the program,
the State may address one or more watersheds
concurrently or sequentially. The scope of the
State program may expand over time with re-
spect to the watersheds and issues to be ad-
dressed under the program.
‘‘(D) Provisions for carrying out an analy-
sis, consistent with the established scope of the
program, of the problems within each watershed
covered under the program.
‘‘(E) An identification of watershed man-
agement units for which management plans will
be developed, taking into consideration those
waters where water quality is threatened or im-
paired or otherwise in need of special protec-
tion. A watershed management unit identified
under the program may include waters and as-
sociated land areas in more than 1 State if the
Governors of the States affected jointly des-
ignate the watershed management unit and may
include waters and associated lands managed or
owned by the Federal Government.
‘‘(F) A description of the activities re-
quired of responsible entities (as specified under
subsection (f)(1)) and a description of the wa-
tershed plan approval process of the State.
‘‘(G) Documentation of the public partici-
pation in development of the program and de-
scription of the procedures that will be used for
public participation in the development and im-
plementation of watershed plans.
‘‘(H) The identification of statewide envi-
ronmental goals that will be pursued in each
watershed, including, at a minimum, attainment
of State water quality standards and the objec-
tives of this Act, and, as appropriate, other
State objectives.
‘‘(3) DISAPPROVAL PROCESS.—If the Adminis-
trator intends to disapprove a program of a State
submitted under this subsection, the Administrator
shall by a written notification advise the State of the
intent to disapprove and the reasons for disapproval.
If, within 30 days of receipt of such notice, a State
so requests, the Administrator shall conduct a public
hearing in the State on the intent to disapprove and
the reasons for such disapproval. A State may re-
submit a revised program that addresses the reasons
contained in the notification. If a State requests a
public hearing, the Administrator shall conduct the
hearing in that State and issue a final determination
within 240 days of receipt of the State watershed
management program submittal.
‘‘(4) MODIFICATION OF PROGRAM.—Each State
with a watershed management program that has
been approved by the Administrator under this sec-
tion may, at any time, modify the watershed man-
agement program. Any such modification shall be
submitted to the Administrator and shall remain in
effect unless and until the Administrator determines
that the modified program no longer meets the re-
quirements of this section. In such event, the provi-
sions of paragraph (3) shall apply.
‘‘(5) STATUS REPORTS.—Each State with a wa-
tershed management program that has been ap-
proved by the Administrator pursuant to this sub-
section shall, not later than 1 year after the date of
approval, and annually thereafter, submit to the Ad-
ministrator an annual watershed program summary
status report that includes descriptions of any modi-
fications to the program. The status report shall in-
clude a listing of requests made for watershed plan
development and a listing of plans prepared and
submitted by local or regional entities and the ac-
tions taken by the State on such plans including the
reasons for those actions. A State may use the re-
port to satisfy any reporting requirements under sec-
tions 106, 314, 319, 320, and 604(b).
‘‘(c) WATERSHED AREA IN 2 OR MORE STATES.—
If a watershed management unit is designated to include
land areas in more than 1 State, the Governors of States
having jurisdiction over any lands within the watershed
management unit shall jointly determine the responsible
entity or entities.
‘‘(d) ELIGIBLE
WATERSHED
MANAGEMENT
AND
PLANNING ACTIVITIES.—In addition to activities eligible
to receive assistance under other sections of this Act as
of the date of the enactment of this subsection, the follow-
ing watershed management activities conducted by or on
behalf of the States pursuant to a watershed management
program that is approved by the Administrator under this
section shall be considered to be eligible to receive assist-
ance under sections 205(j), 319(h), 320, and 604(b):
‘‘(1) Characterizing the waters and land uses.
‘‘(2) Identifying and evaluating problems within
the watershed.
‘‘(3) Selecting short-term and long-term goals
for watershed management.
‘‘(4) Developing and implementing measures
and practices to meet identified goals.
‘‘(5) Identifying and coordinating projects and
activities necessary to restore or maintain water
quality or other related environmental objectives
within the watershed.
‘‘(6) Identifying the appropriate institutional
arrangements to carry out a watershed management
plan that has been approved or adopted by the State
under this section.
‘‘(7) Updating the plan.
‘‘(8) Conducting training and public participa-
tion activities.
‘‘(9) Any other activity considered appropriate
by the Administrator.
‘‘(e) PUBLIC PARTICIPATION.—Each State shall es-
tablish procedures to encourage the public to participate
in its program and in developing and implementing com-
prehensive watershed management plans under this sec-
tion. A State watershed management program shall in-
clude a process for public involvement in watershed man-
agement, to the maximum extent practicable, including the
formation and participation of public advisory groups dur-
ing State watershed program development. States must
provide adequate public notice and an opportunity to com-
ment on the State watershed program prior to submittal
of the program to the Administrator for approval.
‘‘(f) APPROVED OR STATE-ADOPTED PLANS.—
‘‘(1) MINIMUM REQUIREMENT.—A State with a
watershed management program that has been ap-
proved by the Administrator under this section may
approve or adopt a watershed management plan if
the plan satisfies the following conditions:
‘‘(A) If the watershed includes waters that
are not meeting water quality standards at the
time of submission, the plan—
‘‘(i) identifies the environmental ob-
jectives of the plan, including, at a mini-
mum, State water quality standards, goals
and objectives under this Act, and any
other environmental goals the responsible
planning entity or entities consider appro-
priate;
‘‘(ii) identifies pollutants, stressors,
and sources causing the impairment of the
waters;
‘‘(iii) identifies actions that are nec-
essary to achieve the environmental objec-
tives of the plan, including source reduc-
tion of pollutants to achieve any allocated
load reductions consistent with the require-
ments of section 303(d), and the priority
for implementing the actions;
‘‘(iv) 
contains 
an 
implementation
schedule with milestones and the identi-
fication of persons responsible for imple-
menting the actions;
‘‘(v) demonstrates that water quality
standards will be attained as expeditiously
as practicable, but not later than any ap-
plicable deadline under this Act and that
all other environmental goals identified in
the watershed management plan will be at-
tained as expeditiously as practicable;
‘‘(vi) contains documentation of the
public participation in the development of
the plan and a description of the public
participation process that will be used dur-
ing the plan implementation;
‘‘(vii) specifies a process to monitor
and evaluate progress toward meeting envi-
ronmental goals; and
‘‘(viii) specifies a process to revise the
plan as necessary.
‘‘(B) For waters in the watershed attain-
ing water quality standards at the time of sub-
mission (including threatened waters), the plan
identifies the projects and activities necessary
to maintain water quality standards and attain
or maintain other environmental goals after the
date of approval or adoption of the plan.
‘‘(2) TERMS
OF
APPROVED
OR
ADOPTED
PLAN.—Each plan that is approved or adopted by a
State under this subsection shall be effective for a
period of not more than 10 years and include a plan-
ning and implementation schedule with milestones
within that period. A revised and updated plan may
be approved or adopted by the State prior to the ex-
piration of the period specified in the plan pursuant
to the same conditions and requirements that apply
to an initial plan for a watershed approved under
this subsection.
‘‘(g) GUIDANCE.—Not later than 1 year after the
date of the enactment of this section, the Administrator,
after consultation with the States, and after providing no-
tice and opportunity for public comment, shall issue guid-
ance on provisions that States may consider for inclusion
in watershed management programs and State-approved
or State-adopted watershed management plans under this
section.’’.
(b) INCENTIVES FOR WATERSHED MANAGEMENT.—
(1) POINT SOURCE PERMITS.—Section 402 (33
U.S.C. 1342) is amended by adding at the end the
following:
‘‘(q) WATERSHED MANAGEMENT.—
‘‘(1) IN
GENERAL.—Notwithstanding section
301(b)(1)(C), a permit may be issued under this sec-
tion with a limitation that does not meet applicable
water quality standards if—
‘‘(A) the receiving water is in a watershed
with a watershed management plan that has
been approved pursuant to section 321;
‘‘(B) the plan includes enforceable require-
ments under the law of a State or a political
subdivision of a State for nonpoint source pol-
lutant load reductions that, in combination with
point source requirements, will meet applicable
water quality standards under this Act before
the date of expiration of the plan; and
‘‘(C) the point source does not have a his-
tory of significant noncompliance with its efflu-
ent limitations under a permit issued under this
section, as determined by the Administrator or
a State with authority to issue permits under
this section.
‘‘(2) SYNCHRONIZED
PERMIT
TERMS.—Not-
withstanding subsection (b)(1)(B), the term of a
permit issued under this section may be extended for
a period of 5 years beyond the date of expiration of
the permit if the discharge is located in a watershed
management unit for which a watershed manage-
ment plan will be developed pursuant to section 321.
‘‘(3) 10-YEAR PERMIT TERMS.—Notwithstand-
ing subsection (b)(1)(B), the term of a permit issued
under this section may be for a fixed term not ex-
ceeding 10 years for any point source located in a
watershed management unit established under sec-
tion 322 with respect to which a plan has been ap-
proved or adopted by the State if the plan provides
for the attainment and maintenance of water quality
standards (including designated uses) in the affected
waters, unless receiving waters do not meet water
quality standards due to the point source discharge.
If necessary, a permit issued pursuant to this para-
graph may be revised at any time to meet water
quality standards.’’.
(2) NONPOINT
SOURCE
CONTROLS.—Section
319 (33 U.S.C. 1329) is amended by adding at the
end the following:
‘‘(q) WATERSHED MANAGEMENT PROGRAMS.—
‘‘(1) IN GENERAL.—If a State with a watershed
management program that has been approved by the
Administrator pursuant to section 321 makes a
showing satisfactory to the Administrator that the
State watershed and nonpoint source management
programs will provide for the protection of coastal
waters generally and also contains the necessary ele-
ments specified in paragraph (2), the State water-
shed program shall be deemed to be in compliance
with the requirements of this Act and the Coastal
Zone Act Reauthorization Amendments of 1990.
‘‘(2) NECESSARY
ELEMENTS.—The necessary
elements for State watershed and nonpoint source
management programs under paragraph (1) are as
follows:
‘‘(A) IDENTIFYING LAND USES.—The iden-
tification of, and a continuing process for iden-
tifying, land uses which, individually or cumula-
tively, may cause or contribute significantly to
a degradation of—
‘‘(i) those coastal waters where there
is a failure to attain or maintain applicable
water quality standards or protect des-
ignated uses, as determined by the State
pursuant to its water quality planning
processes; or
‘‘(ii) those coastal waters that are
threatened by reasonably foreseeable in-
creases in pollution loadings from new or
expanding sources.
‘‘(B) IDENTIFYING
CRITICAL
COASTAL
AREAS.—The identification of, and a continuing
process for identifying, critical coastal areas ad-
jacent to coastal waters referred to in subpara-
graphs (A)(i) and (A)(ii), within which any new
land uses or substantial expansion of existing
land uses shall be subject to the applicable re-
quirements of a watershed plan approved or
adopted by the State.’’.
(4) MULTIPURPOSE GRANTS.—
(A) IN GENERAL.—The Administrator may
provide assistance to a State with a watershed
management program that has been approved
by the Administrator under section 321 in the
form of a multipurpose grant that would pro-
vide for single application, work plan and re-
view, matching, oversight, and end-of-year
closeout requirements for grant funding under
sections 104(b)(3), 104(g), 106, 314(b), 319,
320, and 604(b) of the Federal Water Pollution
Control Act.
(B) TERMS.—The Administrator may at-
tach terms that shall apply for more than 1
year to grants made pursuant to this para-
graph. A State that receives a grant under this
paragraph may focus activities funded under
the provisions referred to in subparagraph (A)
on a priority basis in a manner consistent with
watershed management plans approved by the
State under section 321(f) of the Federal Water
Pollution Control Act.
(5) EXTENSION OF REVIEW PROCESS.—Section
303(c)(1) (33 U.S.C. 1313(c)(1)) is amended by in-
serting after ‘‘1972’’ the following: ‘‘or at least once
each 5-year period in the case of a State which is
implementing a watershed management program ap-
proved under section 321’’.
(6) PLANNING.—Section 604(b) (33 U.S.C.
1384(b)) is amended by adding at the end the fol-
lowing: ‘‘In any fiscal year in which a State is imple-
menting a State watershed management program
approved under section 321, the State may reserve
up to an additional 2 percent of the sums allotted
to the State for such fiscal year for development of
watershed management plans under such program if
50 percent of the amount reserved under this sen-
tence will be made available to local entities.’’.
(7) POLLUTANT TRANSFER OPPORTUNITIES.—
(A) 
POLLUTANT
TRANSFER
PILOT
PROJECTS.—As part of an approved watershed
management program, the Administrator or,
where appropriate, State or interstate agency
may allow a point source discharger to offset
the impact of its discharge of a pollutant by en-
tering into arrangements, including the pay-
ment of funds, for the implementation of
nonpoint source controls or point source con-
trols by another discharger through a pollution
reduction credits trading program established in
an approved watershed management plan under
section 321 of the Federal Water Pollution
Control Act, so long as appropriate safeguards
are included to ensure compliance with tech-
nology based controls and to protect the quality
of receiving waters.
(B) INCENTIVE
GRANTS.—The Adminis-
trator shall allocate sums made available by ap-
propriations to carry out pollution reduction
credits trading programs in selected areas
throughout the country.
(C) REPORT.—Not later than 18 months
after the date of the enactment of this Act, the
Administrator shall transmit to Congress a re-
port on the results of the program conducted
under this paragraph.
TITLE IV—PERMITS AND
LICENSES
SEC. 401. WASTE TREATMENT SYSTEMS.
Section 402(a) is amended by adding the following
new paragraph:
‘‘(6) For purposes of this section, waste treat-
ment systems, including retention ponds or lagoons
used to meet the requirements of this Act for con-
centrated animal feeding operations, are not waters
of the United States. An existing concentrated ani-
mal feeding operation that uses a natural topo-
graphic impoundment or structure on the effective
date of this Act, which is not hydrologically con-
nected to any other waters of the United States, as
a waste treatment system or wastewater retention
facility may continue to use that natural topographic
feature for waste storage regardless of its size, ca-
pacity, or previous use.’’.
SEC. 402. STORMWATER DISCHARGE PERMITS.
Section 402(p) (33 U.S.C. 1342(p)) is amended to
read as follows:
‘‘(p) MUNICIPAL
AND INDUSTRIAL STORMWATER
DISCHARGES.—
‘‘(1) GENERAL RULE.—Permits for discharges
composed entirely of stormwater are required under
this Act only for the discharges described in para-
graph (2). No permit shall be required under this
Act for any other discharge composed entirely of
stormwater. Such other discharges shall be subject
to section 319, relating to nonpoint source manage-
ment programs.
‘‘(2) DESCRIPTIONS
OF
DISCHARGES
FOR
WHICH PERMITS ARE REQUIRED.—Permits are re-
quired under this Act for the following stormwater
discharges:
‘‘(A) A discharge with respect to which a
permit has been issued under this section before
February 4, 1987.
‘‘(B) A discharge associated with any in-
dustrial activity other than—
‘‘(i) a discharge that is composed en-
tirely of stormwater that is from a con-
struction activity which disturbs less than
5 acres of total land area and is not part
of a larger common plan of development or
sale;
‘‘(ii) a discharge that is composed en-
tirely of stormwater that is from any coal
mining activity or coal mined land subject
to the requirements of title IV or title V of
the Surface Mining Control and Reclama-
tion Act of 1977 (30 U.S.C. 1201 et seq.);
or
‘‘(iii) a discharge composed entirely of
stormwater from conveyances or systems of
conveyances (including pipes, conduits,
ditches, and channels) used for collecting
and conveying precipitation runoff and
which is not contaminated by contact with,
or does not come into contact with, any
material handling equipment or activity,
industrial machinery, raw material, inter-
mediate product, finished product, byprod-
uct, or waste product located on the site of
the industrial activity.
‘‘(C) A discharge from a municipal sepa-
rate storm sewer system serving a population of
250,000 or more.
‘‘(D) A discharge from a municipal sepa-
rate storm sewer system serving a population of
100,000 or more but less than 250,000.
‘‘(E) A discharge for which the Adminis-
trator or the State, as the case may be, deter-
mines that the stormwater discharge contrib-
utes to a violation of a water quality standard
or is a significant contributor of pollutants to
waters of the United States.
‘‘(3) PERMIT REQUIREMENTS.—
‘‘(A) INDUSTRIAL
DISCHARGES.—Permits
for discharges associated with industrial activity
shall meet all applicable provisions of this sec-
tion and section 301.
‘‘(B) MUNICIPAL
DISCHARGES.—Permits
for discharges from municipal separate storm
sewer systems—
‘‘(i) may be issued on a system- or ju-
risdiction-wide basis;
‘‘(ii) shall include a requirement to ef-
fectively 
prohibit 
non-stormwater 
dis-
charges into the municipal separate storm
sewer system;
‘‘(iii) shall require cost-effective con-
trols to reduce the discharge of pollutants
to the maximum extent practicable, includ-
ing management practices, control tech-
niques and system, design and engineering
methods, and such other provisions as the
Administrator or the State determines ap-
propriate for the control of such pollutants;
‘‘(iv) shall require reasonable progress
toward attainment of applicable water
quality standards under this Act; and
‘‘(v) that are renewed after the date
of the enactment of this clause, shall in-
clude such additional requirements for the
implementation of cost-effective controls
referred to in clause (iii) as the Adminis-
trator or the State, in the case of a State
with authority to issue permits under this
section, determines are necessary for rea-
sonable progress toward the attainment or
maintenance of applicable water quality
standards under this Act.
In determining under this subparagraph wheth-
er reasonable progress has been made toward
the attainment of applicable water quality
standards under this Act, the Administrator or
the State, as appropriate, shall take into ac-
count the receipt of Federal financial assistance
for the implementation of cost-effective controls
referred to in clause (iii).
‘‘(C) MUNICIPALLY
OWNED
INDUSTRIAL
FACILITIES.—The Administrator or the State
(in the case of a permit program approved
under section 402 of this Act) shall issue a con-
solidated permit for discharges from a storm
sewer system owned by a municipality and the
stormwater discharges from industrial sources
owned by the same municipality.
‘‘(D) GENERAL
AND
GROUP
PERMITS.—
The Administrator or the State, in the case of
a State with authority to issue permits under
this section, may, after notice and opportunity
for public hearing, issue general or group per-
mits for any discharges described in paragraph
(2) (other than discharges from municipal sepa-
rate storm sewer systems) if the Administrator
or the State determines that the discharges are
similar in nature and that application of similar
management measures will effectively reduce
pollution occurring from such discharges or if
the Administrator finds that the issuance of
general permits is otherwise appropriate.
‘‘(E) COMPLIANCE WITH WATER QUALITY
STANDARDS.—Neither the Administrator nor
the State, in the case of a State with authority
to issue permits under this section, may re-
quire, in a permit issued under this section for
discharges from a municipal separate storm
sewer system described in paragraph (2), com-
pliance with a numeric effluent limitation or an
applicable water quality standard directly before
December 31, 2009, except to the extent nec-
essary for implementation of management
measures under the regulations issued under
paragraph (5).
‘‘(4) PERMIT APPLICATION REQUIREMENTS.—
‘‘(A) INDUSTRIAL AND LARGE MUNICIPAL
DISCHARGES.—Not later than 2 years after the
date of the enactment of this subsection, the
Administrator shall establish regulations setting
forth the permit application requirements for
stormwater discharges described in paragraphs
(2)(B) and (2)(C). Applications for permits for
such discharges shall be filed no later than No-
vember 18, 1992. Not later than November 18,
1993, the Administrator or the State, as the
case may be, shall issue or deny each such per-
mit. Any such permit shall provide for compli-
ance as expeditiously as practicable, but in no
event later than 3 years after the date of issu-
ance of such permit.
‘‘(B) MEDIUM MUNICIPAL DISCHARGES.—
Not later than 4 years after the date of the en-
actment of this subsection, the Administrator
shall establish regulations setting forth the per-
mit application requirements for stormwater
discharges described in paragraph (2)(D). Ap-
plications for permits for such discharges shall
be filed no later than May 17, 1993. Not later
than May 17, 1994, the Administrator or the
State, as the case may be, shall issue or deny
each such permit. Any such permit shall provide
for compliance as expeditiously as practicable,
but in no event later than 3 years after the date
of issuance of such permit.
‘‘(5) REGULATIONS.—Not later than May 1,
1996, the Administrator, in consultation with State
and local officials, shall propose and, not later than
October 1, 1997, issue final regulations for the issu-
ance of permits for municipal separate storm sewer
system discharges described in paragraphs (2)(C)
and (2)(D). Such regulations shall include, at a min-
imum, the following:
‘‘(A) 
Methods 
to 
prohibit 
effectively
nonstormwater discharges into the municipal
separate storm sewer system of the permittee.
‘‘(B) Information on the development and
implementation of management measures to re-
duce, to the maximum extent practicable, the
discharge of pollutants from such system. In
this subsection, the term ‘cost-effective controls’
means cost-effective and economically achiev-
able management measures for the control of
the addition of pollutants from a municipal sep-
arate storm sewer system which reflect the
greatest degree of pollutant reduction achiev-
able through the application of the best avail-
able storm water control practices, technologies,
processes, operating methods, or other alter-
natives, and which may take into account the
severity of the water quality impairment, the ef-
fectiveness of alternative approaches, and the
costs of the measures. The Administrator shall
establish regionally-applicable, objective per-
formance standards for each management
measure.
‘‘(C) Requirements for development and
implementation of a municipal stormwater qual-
ity management program for implementation of
the requirements of subparagraphs (A) and
(B). The program shall be incorporated into the
permit and shall be subject to public hearing
and review before implementation.
‘‘(D) Requirements for monitoring of the
waters receiving discharges described in para-
graphs (2)(C) and (2)(D) for the purpose of de-
termining under this subsection if the require-
ments of the permit are resulting in progress
toward attaining applicable water quality stand-
ards under this Act.
The Administrator shall periodically review and re-
vise the regulations taking into account States’ as-
sessments of the effectiveness of the management
measures being implemented under such regulations.
‘‘(6) GRANTS.—
‘‘(A) IN GENERAL.—The Administrator is
authorized to make grants to the operator of
any municipal storm sewer system for which a
permit is required under this subsection for
projects for the assessment of cost-effective con-
trols, as such term is defined by paragraph
5(B).
‘‘(B) 
SELECTION
OF
GRANT
RECIPI-
ENTS.—The Administrator shall select grant re-
cipients under this paragraph in consultation
with States and local governments.
‘‘(C) FUNDING.—The Administrator is au-
thorized to use $20,000,000 per fiscal year out
of amounts appropriated pursuant to section
319(j) for making grants under this paragraph.
‘‘(D) INADEQUATE FUNDING.—If, in any
fiscal year, the total amount of grants made by
the Administrator under this paragraph totals
less than $20,000,000, the period specified in
paragraph 3(D) in which the Administrator or
the State, in the case of a State with authority
to issue permits under this section, is prohibited
from requiring, in a permit issued under this
section for discharges from a municipal sepa-
rate storm sewer system described in paragraph
(2), direct compliance with a numeric effluent
limitation or an applicable water quality stand-
ard shall be extended by 1 year.’’.
SEC. 403. COMBINED SEWER OVERFLOWS.
Section 402 (33 U.S.C. 1342) is amended by adding
at the end the following:
‘‘(r) COMBINED SEWER OVERFLOWS.—
‘‘(1) REQUIREMENT FOR PERMITS.—Each per-
mit issued pursuant to this section for a discharge
from a combined storm and sanitary sewer shall con-
form with the combined sewer overflow control policy
signed by the Administrator on April 11, 1994.
‘‘(2) TERM OF PERMIT.—Notwithstanding any
compliance schedule under section 301(b), or any
permit limitation under section 402(b)(1)(B), the
Administrator (or a State with a program approved
under subsection (b)) may issue a permit pursuant
to this section for a discharge from a combined
storm and sanitary sewer, that includes a schedule
for compliance with a long-term control plan under
the control policy referred to in paragraph (1), for
a term not to exceed 15 years. Notwithstanding the
compliance deadline specified in the preceding sen-
tence, the Administrator (or a State with a program
approved under subsection (b)) may, on request of
an owner or operator of a combined storm and sani-
tary sewer, extend the period of compliance beyond
the date specified if the Administrator (or the State)
determines that compliance by the date is not within
the economic capability of the owner or operator or
if the Administrator (or the State) determines that
an extension is otherwise appropriate.
‘‘(3) SAVINGS CLAUSE.—Any consent decree or
court order issued before the date of the enactment
of this subsection by a United States district court
establishing any deadlines, schedules, or timetables
for the construction of treatment works for control
of any discharge from a municipal combined sewer
system shall be modified to extend such deadlines,
schedules, or timetables to conform with the require-
ments of this subsection.’’.
SEC. 404. INTAKE CREDITS.
Section 402 (33 U.S.C. 1342) is further amended by
adding at the end the following:
‘‘(s) INTAKE CREDITS.—
‘‘(1) IN GENERAL.—The permit program estab-
lished by the Administrator under this section, and
any State permit program approved under this sec-
tion, including any program for implementation
under section 118(c)(2) or any program for indus-
trial users under section 307(b), shall provide that
an owner or operator of a point source subject to a
permit under this Act will not be required to remove
or reduce the level of pollutants in a discharge if
such pollutants are present in or caused by the in-
take waters for such point source.
‘‘(2) EFFLUENT LIMITATIONS.—In establishing
effluent limitations applicable to a point source in a
permit under a program specified in paragraph (1),
the permitting authority shall provide for the follow-
ing:
‘‘(A) If a point source uses intake water
containing a pollutant and the mass of such
pollutant in the discharge is not significantly
greater than the mass of such pollutant in the
intake water, such point source shall not have
a water quality-based effluent limitation for
such pollutant.
‘‘(B) If a point source uses intake water
containing a pollutant and the mass of such
pollutant in the discharge is significantly great-
er than the mass of such pollutant in the intake
water, an effluent limitation for that pollutant
shall not require removal of more of the pollut-
ant than the difference between the mass of the
pollutant that would otherwise be in the dis-
charge and the mass of the pollutant in the in-
take water. Any effluent limitations that are
imposed for such pollutant shall not require the
owner or operator of the point source to treat
its effluent to levels below the background level
of the substance found in the receiving water
body.
‘‘(C) Any effluent limitations shall provide
full credit for the presence of the substance in
the intake water (or where caused by the intake
water) whether such effluent limitation is based
on an effluent guideline under section 304(b) or
a water quality standard for the receiving body
under section 303.’’.
SEC. 405. BENEFICIAL USE OF BIOSOLIDS.
Section 405(g) (33 U.S.C. 1345(g)) is amended—
(1) in the first sentence of paragraph (1)—
(A) by inserting ‘‘(also referred to as
‘biosolids’)’’ after ‘‘sewage sludge’’; and
(B) by inserting ‘‘building materials,’’ after
‘‘agricultural and horticultural uses,’’;
(2) in paragraph (1) by adding at the end the
following: ‘‘Not later than January 1, 1997, and
after providing notice and opportunity for public
comment, the Administrator shall issue guidance on
the beneficial use of sewage sludge.’’; and
(3) in paragraph (2) by striking ‘‘September
30, 1986,’’ and inserting ‘‘September 30, 1995,’’.
TITLE V—GENERAL PROVISIONS
SEC. 501. CONSULTATION WITH STATES.
Section 501 (33 U.S.C. 1361) is amended by adding
the following new subsection:
‘‘(g) The Administrator shall consult with and sub-
stantially involve State governments and their representa-
tive organizations and, to the extent that they participate
in the administration of this Act, tribal and local govern-
ments, in the Agency’s decisionmaking, priority setting,
policy and guidance development, and implementation
under this Act and such activities shall be deemed consist-
ent with the Federal Advisory Committee Act. The Admin-
istrator shall strive to enhance the capacity of State, trib-
al, and local governments to fulfill their respective roles
under this Act.’’.
SEC. 502. OIL TYPE DIFFERENTIATION.
Section 511 (33 U.S.C. 1371) is amended by adding
at the end the following:
‘‘(e) OIL TYPE DIFFERENTIATION.—In promulgating
any rule or establishing any interpretation, guideline,
standard, or criteria for oil and grease under this Act or
the Oil Pollution Act of 1990 (Public Law 101–380), the
President or head of any agency shall—
‘‘(1) differentiate animal fats and vegetable oils
from other oils, including petroleum-based oils; and
‘‘(2) consider differences in the physical, chemi-
cal, biological, or other properties and environmental
effects of animal fats and vegetable oils from those
other oils.’’.
SEC. 503. NEEDS ESTIMATE.
Section 516(b)(1) (33 U.S.C. 1375(b)(1)) is amend-
ed—
(1) in the first sentence by striking ‘‘biennially
revised’’ and inserting ‘‘quadrennially revised’’; and
(2) in the second sentence by striking ‘‘Feb-
ruary 10 of each odd numbered year’’ and inserting
‘‘December 31, 1997, and December 31 of every 4th
calendar year thereafter’’.
SEC. 504. GENERAL PROGRAM AUTHORIZATIONS.
Section 517 (33 U.S.C. 1376) is amended—
(1) by striking ‘‘and’’ before ‘‘$135,000,000’’;
and
(2) by inserting before the period at the end the
following: ‘‘, and such sums as may be necessary for
each of fiscal years 1991 through 2000.’’.
SEC. 505. ADEQUATELY FUNDED MANDATES.
Title V (33 U.S.C. 1361–1377) is amended by adding
at the end the following:
‘‘SEC. 520. ADEQUATELY FUNDED MANDATES.
‘‘(a) REQUIREMENTS PRIOR TO ISSUANCE OF REGU-
LATIONS.—Notwithstanding any other provision of law,
the Administrator shall conduct, prior to issuing any pro-
posed or final regulation or other requirement pursuant
to this Act, the following:
‘‘(1) An analysis of the direct and indirect costs
for State and local governments to implement and
comply with the requirement in the 5-year period
following implementation of the requirement.
‘‘(2) An estimate of the amounts that will be
authorized to be appropriated for providing Federal
financial assistance for implementation of and com-
pliance with the requirement for such 5-year period.
‘‘(3) An estimate of the amounts that will be
appropriated for providing such Federal financial as-
sistance for such 5-year period based on funding lev-
els adopted as part of a concurrent resolution setting
forth the congressional budget of the United States
Government.
‘‘(4) An assessment of the availability of other
sources of funding for State and local governments
to implement and comply with the requirement in
such 5-year period.
‘‘(5) An estimate of the amounts that will be
authorized to be appropriated for providing Federal
financial assistance for implementation and compli-
ance with the requirement for the fiscal year during
which the requirement is to be implemented and the
2 preceding fiscal years.
‘‘(6) An estimate of the amounts that will be
appropriated for providing such Federal financial as-
sistance for the fiscal year during which the require-
ment is to be implemented and the 2 preceding fiscal
years.
‘‘(7) A certification that the amounts that will
be appropriated for providing such Federal financial
assistance as estimated pursuant to paragraph (6)
exceed 90 percent of the costs for State and local
governments to implement and comply with the re-
quirement as determined pursuant to paragraph (1).
‘‘(b) REPORTS.—If the Administrator does not make
a certification with respect to a requirement under sub-
section (a)(7), the Administrator shall transmit to the
Committee on Transportation and Infrastructure of the
House of Representatives and the Committee on Environ-
ment and Public Works of the Senate a report explaining
the reasons for not making such certification and the like-
ly impacts of not adequately funding State and local gov-
ernmental efforts to comply with such requirement.
‘‘(c) EFFECTIVE DATE.—This section shall apply to
any proposed or final regulation or other requirement is-
sued pursuant to this Act after the date of the enactment
of this section.’’.
TITLE VI—STATE WATER POLLU-
TION CONTROL REVOLVING
FUNDS
SEC. 601. WATER USE EFFICIENCY MEASURES.
(a) GENERAL
AUTHORITY
FOR
CAPITALIZATION
GRANTS.—Section 601(a) (33 U.S.C. 1381(a)) is amend-
ed by inserting after ‘‘publicly owned’’ the following: ‘‘and
for implementation of water use efficiency measures whose
principal purpose is improving or protecting water qual-
ity’’.
(b) PROJECT
ELIGIBILITY.—Section 603(c) (33
U.S.C. 1383(c)) is amended by inserting after ‘‘section
212 of this Act)’’ the following: ‘‘and for implementation
of water use efficiency measures whose principal purpose
is improving or protecting water quality’’.
SEC. 602. GUIDANCE FOR SMALL SYSTEMS.
Section 602 (33 U.S.C. 1382) is amended by adding
at the end the following new subsection:
‘‘(c) GUIDANCE FOR SMALL SYSTEMS.—
‘‘(1) SIMPLIFIED PROCEDURES.—Not later than
1 year after the date of the enactment of this sub-
section, the Administrator shall assist the States in
establishing simplified procedures for small systems
to obtain assistance under this title.
‘‘(2) PUBLICATION
OF
MANUAL.—Not later
than 1 year after the date of the enactment of this
subsection, and after providing notice and oppor-
tunity for public comment, the Administrator shall
publish a manual to assist small systems in obtain-
ing assistance under this title and publish in the
Federal Register notice of availability of the manual.
‘‘(3) SMALL SYSTEM DEFINED.—For purposes
of this title, the term ‘small system’ means a system
for which a municipality or intermunicipal, inter-
state, or State agency seeks assistance under this
title and which serves a population of 20,000 or
less.’’.
SEC. 603. TYPES OF ASSISTANCE.
(a) EXTENDED REPAYMENT PERIOD FOR HARDSHIP
COMMUNITIES.—Section 
603(d)(1) 
(33 
U.S.C.
1383(d)(1)) is amended—
(1) in subparagraph (A) by inserting after ‘‘20
years’’ the following: ‘‘or, in the case of a disadvan-
taged community, the lesser of 30 years or the ex-
pected life of the project to be financed with the pro-
ceeds of the loan’’; and
(2) in subparagraph (B) by striking ‘‘not later
than 20 years after project completion’’ and insert-
ing ‘‘upon the expiration of the term of the loan’’.
(b) TECHNICAL
AND PLANNING ASSISTANCE
FOR
SMALL SYSTEMS.—Section 603(d) (33 U.S.C. 1383(d)) is
amended—
(1) by striking ‘‘and’’ at the end of paragraph
(6);
(2) by striking the period at the end of para-
graph (7) and inserting ‘‘; and’’; and
(3) by adding at the end the following new
paragraph:
‘‘(8) to provide to small systems technical and
planning assistance and assistance in financial man-
agement, user fee analysis, budgeting, capital im-
provement planning, facility operation and mainte-
nance, repair schedules, and other activities to im-
prove wastewater treatment plant operations; except
that such amounts shall not exceed 2 percent of all
grant awards to such fund under this title.’’.
(c) INTEREST
RATES.—Section 603 is further
amended by adding at the end the following new sub-
sections:
‘‘(i) INTEREST RATES.—In any case in which a State
makes a loan pursuant to subsection (d)(1) to a disadvan-
taged community, the State may charge a negative inter-
est rate of not to exceed 2 percent to reduce the unpaid
principal of the loan.
‘‘(j) DISADVANTAGED COMMUNITY DEFINED.—As
used in this section, the term ‘disadvantaged community’
means the service area of a publicly owned treatment
works with respect to which the average annual residential
sewage treatment charges for a user of the treatment
works meet affordability criteria established by the State
in which the treatment works is located (after providing
for public review and comment) in accordance with guide-
lines to be established by the Administrator, in coopera-
tion with the States.’’.
SEC. 604. ALLOTMENT OF FUNDS.
(a) IN
GENERAL.—Section 604(a) (33 U.S.C.
1384(a)) is amended to read as follows:
‘‘(a) FORMULA FOR FISCAL YEARS 1996–2000.—
Sums authorized to be appropriated pursuant to section
607 for each of fiscal years 1996, 1997, 1998, 1999, and
2000 shall be allotted for such year by the Administrator
not later than the 10th day which begins after the date
of the enactment of the Clean Water Amendments of
1995. Sums authorized for each such fiscal year shall be
allotted in accordance with the following table:
‘‘States:
Percentage of sums
authorized:
Alabama ...................................................................................
0.7736
Alaska ......................................................................................
0.2500
Arizona .....................................................................................
1.1526
Arkansas ..................................................................................
0.3853
California .................................................................................
9.3957
Colorado ...................................................................................
0.6964
Connecticut ..............................................................................
1.3875
Delaware ..................................................................................
0.2500
District of Columbia ................................................................
0.3203
Florida .....................................................................................
3.4696
Georgia .....................................................................................
2.0334
Hawaii ......................................................................................
0.2629
Idaho ........................................................................................
0.2531
Illinois ......................................................................................
5.6615
Indiana .....................................................................................
3.1304
Iowa .........................................................................................
0.6116
Kansas .....................................................................................
0.8749
Kentucky ..................................................................................
1.3662
Louisiana .................................................................................
1.0128
Maine .......................................................................................
0.6742
Maryland ..................................................................................
1.6701
Massachusetts ..........................................................................
4.3755
Michigan ..................................................................................
3.8495
Minnesota .................................................................................
1.3275
Mississippi ................................................................................
0.6406
Missouri ...................................................................................
1.7167
Montana ...................................................................................
0.2500
Nebraska ..................................................................................
0.4008
Nevada .....................................................................................
0.2500
New Hampshire .......................................................................
0.4791
New Jersey ...............................................................................
4.7219
New Mexico ..............................................................................
0.2500
New York .................................................................................
14.7435
North Carolina .........................................................................
2.5920
North Dakota ...........................................................................
0.2500
Ohio ..........................................................................................
4.9828
‘‘States:
Percentage of sums
authorized:
Oklahoma .................................................................................
0.6273
Oregon ......................................................................................
1.2483
Pennsylvania ............................................................................
4.2431
Rhode Island ............................................................................
0.4454
South Carolina .........................................................................
0.7480
South Dakota ...........................................................................
0.2500
Tennessee .................................................................................
1.4767
Texas ........................................................................................
4.6773
Utah .........................................................................................
0.2937
Vermont ...................................................................................
0.2722
Virginia ....................................................................................
2.4794
Washington ..............................................................................
2.2096
West Virginia ...........................................................................
1.4346
Wisconsin .................................................................................
1.4261
Wyoming ..................................................................................
0.2500
Puerto Rico ..............................................................................
1.0866
Northern Marianas ..................................................................
0.0308
American Samoa ......................................................................
0.0908
Guam ........................................................................................
0.0657
Palau ........................................................................................
0.1295
Virgin Islands ..........................................................................
0.0527.’’.
(b) CONFORMING AMENDMENT.—Section 604(c)(2)
is amended by striking ‘‘title II’’ and inserting ‘‘this title’’.
SEC. 605. AUTHORIZATION OF APPROPRIATIONS.
Section 607 (33 U.S.C. 1387(a)) is amended—
(1) by striking ‘‘and’’ at the end of paragraph
(4);
(2) by striking the period at the end of para-
graph (5) and inserting a semicolon; and
(3) by adding at the end the following:
‘‘(6) such sums as may be necessary for fiscal
year 1995;
‘‘(7) $2,000,000,000 for fiscal year 1996;
‘‘(8) $2,000,000,000 for fiscal year 1997;
‘‘(9) $2,000,000,000 for fiscal year 1998;
‘‘(10) $2,000,000,000 for fiscal year 1999; and
‘‘(11) $2,000,000,000 for fiscal year 2000.’’.
TITLE VII—MISCELLANEOUS
PROVISIONS
SEC. 701. FUTURE FUNDING OPTIONS FOR INFRASTRUC-
TURE PROJECTS.
(a) STUDY.—The Administrator shall conduct a
study to identify and examine future funding options for
financing infrastructure projects under the Federal Water
Pollution Control Act.
(b) REPORT.—Not later than 1 year after the date
of the enactment of this Act, the Administrator shall
transmit to Congress a report containing the results of
the study conducted under subsection (a).
(c) AUTHORIZATION OF APPROPRIATIONS.—There is
authorized to be appropriated to carry out this section
$100,000 for fiscal year 1996.
SEC. 702. TECHNICAL AMENDMENTS.
(a) SECTION 118.—Section 118(c)(1)(A) (33 U.S.C.
1268(c)(1)(A)) is amended by striking the last comma.
(b) SECTION
120.—Section 120(d) (33 U.S.C.
1270(d)) is amended by striking ‘‘(1)’’.
(c) SECTION 204.—Section 204(a)(3) (33 U.S.C.
1284(a)(3)) is amended by striking the final period and
inserting a semicolon.
(d) SECTION 205.—Section 205 (33 U.S.C. 1285) is
amended—
(1) in subsection (c)(2) by striking ‘‘and 1985’’
and inserting ‘‘1985 , and 1986’’;
(2) in subsection (c)(2) by striking ‘‘through
1985’’ and inserting ‘‘through 1986’’;
(3) in subsection (g)(1) by striking the period
following ‘‘4 per centum’’; and
(4) in subsection (m)(1)(B) by striking ‘‘this’’
and inserting ‘‘such’’.
(e) SECTION 208.—Section 208 (33 U.S.C. 1288) is
amended—
(1) in subsection (h)(1) by striking ‘‘designed’’
and inserting ‘‘designated’’; and
(2) in subsection (j)(1) by striking ‘‘September
31, 1988’’ and inserting ‘‘September 30, 1988’’.
(f) SECTION 301.—Section 301(j)(1)(A) (33 U.S.C.
1311(j)(1)(A)) is amended by striking ‘‘that’’ the first
place it appears and inserting ‘‘than’’.
(g) SECTION
309.—Section 309(d) (33 U.S.C.
1319(d)) is amended by striking the second comma follow-
ing ‘‘Act by a State’’.
(h) SECTION 311.—Section 311 (33 U.S.C. 1321) is
amended—
(1) in subsection (b) by moving paragraph (12)
(including subparagraphs (A), (B) and (C)) 2 ems
to the right; and
(2) in subsection (h)(2) by striking ‘‘The’’ and
inserting ‘‘the’’.
(i) SECTION 404.—Section 404(s)(3) (33 U.S.C.
1344(s)(3)) is amended by striking ‘‘acton’’ and inserting
‘‘action’’.
(j) SECTION
505.—Section 505(f) (33 U.S.C.
1365(f)) is amended by striking the last comma.
(k) SECTION 516.—Section 516 (33 U.S.C. 1375) is
amended by redesignating subsection (g) as subsection (f).
(l) SECTION
518.—Section 518(f) (33 U.S.C.
1377(f)) is amended by striking ‘‘(d)’’ and inserting ‘‘(e)’’.
TITLE 
VIII—WETLANDS 
CON-
SERVATION 
AND 
MANAGE-
MENT
SEC. 801. SHORT TITLE.
This title may be cited as the ‘‘Comprehensive Wet-
lands Conservation and Management Act of 1995’’.
SEC. 802. FINDINGS AND STATEMENT OF PURPOSE.
(a) FINDINGS.—Congress finds that—
(1) wetlands play an integral role in maintain-
ing the quality of life through material contributions
to our national economy, food supply, water supply
and quality, flood control, and fish, wildlife, and
plant resources, and thus to the health, safety,
recreation and economic well-being of citizens
throughout the Nation;
(2) wetlands serve important ecological and nat-
ural resource functions, such as providing essential
nesting and feeding habitat for waterfowl, other
wildlife, and many rare and endangered species, fish-
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, sewer systems, and public water sup-
ply systems, and providing the opportunity for sus-
tained 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
breeding grounds for insects that are carriers of
human and animal diseases; and
(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.
(b) PURPOSE.—The purpose of this Act is to estab-
lish a new Federal wetlands regulatory program—
(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 account for variations in wetlands values
or functions in determining the character and extent
of regulation of activities occurring in wetlands
areas;
(3) to provide sufficient regulatory incentives
for conservation, restoration, or enhancement activi-
ties;
(4) to encourage conservation of resources on
an ecosystem basis to the fullest extent practicable;
and
(5) to protect public safety and balance public
and private interests in determining the conditions
under which activity in wetlands areas may occur.
SEC. 803. WETLANDS CONSERVATION AND MANAGEMENT.
Title IV of the Federal Water Pollution Control Act
(33 U.S.C. 1341 et seq.) is 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.—(1) No person shall
undertake an activity in wetlands or waters of the United
States as described in paragraph (2) of this subsection un-
less such activity is undertaken pursuant to a permit is-
sued by the Secretary or is otherwise authorized under
this section.
‘‘(2) For purposes of this section, the term ‘activity
in wetlands or waters of the United States’ means—
‘‘(A) the discharge of dredged or fill material
into waters of the United States, including wetlands
at a specific disposal site; or
‘‘(B) the draining, channelization, or excavation
of wetlands.
‘‘(3) For purposes of this section, the term—
‘‘(A) ‘wetlands’ means those lands that meet
the criteria for delineation of lands as wetlands set
forth in paragraph (2) of subsection (g);
‘‘(B) ‘Secretary’ means the Secretary of the
Army; and
‘‘(C) ‘Director’ means the Director of the
United States Fish and Wildlife Service.
‘‘(b) AUTHORIZED ACTIVITIES.—(1) The Secretary is
authorized to issue permits authorizing activities described
in subsection (a)(2) of this section in accordance with the
requirements of this section.
‘‘(2) Activities described in paragraph (2) of sub-
section (a) may be undertaken without a permit from the
Secretary if those activities are authorized under sub-
sections (e) (5) or (6) or are exempt from the require-
ments of this section under subsection (f) or other provi-
sions of this section.
‘‘(c) WETLANDS CLASSIFICATION.—(1) Any person
seeking to undertake activities in wetlands for which a per-
mit is required under subsection (b) shall make application
to the Secretary identifying the site of such activity and
requesting that the Secretary determine, in accordance
with paragraph (3) of this subsection, the classification
of the wetlands in which such activity is proposed to occur.
The applicant may also provide such additional informa-
tion regarding such proposed activity as may be necessary
or appropriate for purposes of determining the classifica-
tion of such wetlands or whether and under what condi-
tions the proposed activity may be permitted to occur.
‘‘(2)(A) 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 wet-
lands that are the subject of such application and shall
state in writing the basis for such classification. The clas-
sification of the wetlands that are the subject of the appli-
cation shall be determined by the Secretary in accordance
with the requirements for classification of wetlands
under paragraphs (3) and (5).
‘‘(B) In the case of an application proposing activities
located in wetlands that are the subject of an advance clas-
sification under subsection (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 paragraphs (4) and (5) of this subsection.
‘‘(3) Upon application under this subsection, the Sec-
retary shall—
‘‘(A) classify as type A wetlands those wetlands
that are of critical significance to the long-term con-
servation of the ecosystem of which such wetlands
are a part and which meet the following require-
ments—
‘‘(i) such wetlands serve critical wetlands
functions, including the provision of critical
habitat for a concentration of avian, aquatic, or
wetland dependent wildlife;
‘‘(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 classification 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;
‘‘(iii) there exists a scarcity within the wa-
tershed or aquatic ecosystem of identified eco-
logical functions served by such wetlands such
that the use of such wetlands for activities de-
scribed in subsection (a) would seriously jeop-
ardize the availability of these identified wet-
lands functions;
‘‘(iv) there is no overriding public interest
in the use of such wetlands for purposes other
than conservation; and
‘‘(v) the nature and scope of wetlands
functions are such that minimization and com-
pensation are not feasible means for conserving
wetlands values and functions;
‘‘(B) classify as type B wetlands those wetlands
that provide habitat for a significant population of
avian, aquatic or wetland dependent wildlife, or pro-
vide other significant wetlands functions including
significant enhancement or protection of water qual-
ity, or significant natural flood control; and
‘‘(C) classify as type C wetlands all wetlands
that—
‘‘(i) serve limited wetlands functions;
‘‘(ii) serve marginal wetlands functions but
which exist in such abundance that regulation
of activities in such wetlands is not necessary
for conserving important wetlands values and
functions;
‘‘(iii) are prior converted cropland;
‘‘(iv) are fastlands; or
‘‘(v) are wetlands within industrial com-
plexes or other intensely developed areas that
do not serve significant wetlands functions as a
result of such location.
‘‘(4) Within 30 days of receipt of notice of an advance
classification by the Secretary 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. Such de novo
determination shall be made by the Secretary in consulta-
tion with the Director. The Secretary may sustain an ad-
vance classification made by the Director or may modify
such classification if the Secretary determines, upon exam-
ination of all relevant information submitted by the appli-
cant or otherwise available to the Secretary (including, if
appropriate, an on-the-ground-examination), that—
‘‘(A) the lands involved do not meet the stand-
ards and criteria for delineating wetlands set forth
in paragraph (2) of subsection (g);
‘‘(B) the weight of relevant information does
not support the determination of the advance classi-
fication with respect to the specific wetlands in-
volved;
‘‘(C) the factual basis for such advance classi-
fication is no longer valid; except that such change
in factual circumstances has not been caused by ac-
tivities undertaken without authorization by the Sec-
retary as may have been required under this section;
or
‘‘(D) the limitations on uses of the specific wet-
lands involved that would be imposed by the Sec-
retary under the requirements of this section would
effectively preclude reasonable economic use of the
wetlands.
‘‘(5) In the event that the Secretary delegates author-
ity to determine the classification of wetlands under para-
graphs (3) and (4), the Secretary shall, by rule, provide
for a right of appeal to the Secretary or his designee of
the classification of wetlands under paragraph (3) or the
de novo determination of a classification under paragraph
(4).
‘‘(d) COMPENSATION FOR LANDOWNERS.—(1) Any
person (including a State or political subdivision thereof)
who owns an interest in lands that have been classified
as type A wetlands by the Secretary under subsection (c)
or by the Director under subsection (h) may, within 2
years of receipt of actual notice of such classification (or
within 2 years following a de novo determination of such
classification), notify the Secretary and the Director that
such person is electing to seek compensation for the fair
market value of such interests in lands at the time of such
classification, in accordance with the requirements of this
section. Fair market value may include reasonable attor-
neys fees and shall be calculated without regard to any
diminution in value resulting from the applicability of this
section.
‘‘(2) Immediately upon receipt by the Secretary and
the Director of notification of election to seek compensa-
tion under paragraph (1), the Director shall enter into
good faith negotiations with the owner for purposes of de-
termining the value of the interests in lands that have
been classified as type A wetlands. Within 3 months after
receipt of the notice of election by the landowner under
paragraph (1), the Director shall make an offer of reason-
able compensation to the owner.
‘‘(3) Within 6 years of the date an offer for com-
pensation is made under paragraph (2), the owner shall,
in his discretion—
‘‘(A) accept such offer of compensation;
‘‘(B) file a claim for determination of value of
compensation with the United States Court of Fed-
eral Claims; or
‘‘(C) advise the Director and the Secretary that
he elects to retain title to such wetlands and elects
not to receive compensation for the taking of land
under this subsection.
Failure to provide notice in accordance with this para-
graph shall be deemed an election not to receive compensa-
tion under this subsection.
‘‘(4) Upon acceptance of an offer for compensation
or the filing of a claim for compensation under paragraph
(3), the classification as type A wetlands of the wetlands
that are the subject of such offer or claim shall be binding
upon the owner and any successor in interest, and the title
to such lands shall pass to the United States. The classi-
fication of such lands as type A wetlands under this para-
graph shall constitute a taking by the United States of
the owner’s interests in such lands and shall be compen-
sable under the provisions of this subsection.
‘‘(5) A taking under this subsection shall be deemed
to be a taking of surface interests in lands only or water
rights allocated under State law; except that—
‘‘(A) if the Secretary determines that the explo-
ration for or development of oil and gas or mineral
interests is not compatible with conservation of the
surface interests in lands that have been classified
as type A wetlands located above such oil and gas
or mineral interests (or located adjacent to such oil
and gas or mineral interests where such adjacent
lands are necessary to provide reasonable access to
such interests), the Secretary may classify such oil
and gas or mineral interests as type A wetlands and
notify the owner of such interests that the owner
may elect to receive compensation for such interests
under paragraph (1); and
‘‘(B) the failure to provide reasonable access to
oil and gas or mineral interests located beneath or
adjacent to surface interests of type A wetlands shall
be deemed a taking of such oil and gas or mineral
interests.
‘‘(6) The United States Court of Federal Claims shall
have jurisdiction—
‘‘(A) to determine the value of interests taken
and the fair compensation required under this sub-
section and the Constitution of the United States;
‘‘(B) in 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 taking under this subsection solely for
the purpose of undertaking activity necessary to de-
termine the value of the interests taken; and
‘‘(C) to provide other equitable remedies
deemed appropriate.
‘‘(7) Any judgment rendered under paragraph (6)
may be executed, at the election of the landowner, no later
than two years after the date such judgment is rendered.
The landowner may, prior to the execution of such judg-
ment, enter into an agreement with the United States for
satisfaction of such judgment through a crediting of tax
benefits, acquisition of interests in oil and gas or minerals,
an exchange of interests in lands with the United States
or other means of compensation.
‘‘(8)(A) The remedies for taking of interests in lands
under this subsection shall not be construed to preempt,
alter, or limit the availability of other remedies for the
taking of interests in lands under the Constitution of the
United States or State law, including the taking of rights
to the use of water allocated under State law or the taking
of interest in lands by denial of a permit under this sec-
tion.
‘‘(B) Any award of compensation for the taking of
interest in lands by denial of a permit under this section
shall be based upon the fair market value of such interests
in lands at the time of such taking. Fair market value
may include reasonable attorneys fees and shall be cal-
100
culated without regard to any diminution in value result-
ing from the applicability of this section.
‘‘(9) Interests in lands acquired by the United States
under this subsection shall be managed by the United
States Fish and Wildlife Service as a part of the National
Wildlife Refuge System unless otherwise provided by the
Director or by Act of Congress.
‘‘(10) No action taken under this subsection shall be
construed to alter or supersede requirements governing
use of water applicable under State law.
‘‘(e) REQUIREMENTS APPLICABLE
TO PERMITTED
ACTIVITY.—(1) Following the determination of wetlands
classification pursuant to subsection (c), and after compli-
ance with the requirements of subsection (d) if applicable,
the Secretary may issue or deny permits for authorization
to undertake activities in wetlands, in accordance with the
requirements of this subsection.
‘‘(2) The Secretary shall deny a permit authorizing
activities in type A wetlands unless the Secretary deter-
mines that—
‘‘(A) such an activity can be undertaken with
minimal alteration or surface disturbance;
‘‘(B) there are overriding public interest con-
cerns that require use of the lands for purposes
other than conservation, including—
101
‘‘(i) the likelihood that efforts to mitigate
adverse impacts through avoidance and mini-
mization will protect, enhance, or increase criti-
cal wetlands values and functions;
‘‘(ii) the lack of practical and feasible
means for accomplishing the project purpose at
an alternative location; or
‘‘(iii) the proposed use of the land will en-
hance aviation safety or is necessary to prevent
an airport hazard; or
‘‘(C) the proposed use of the land, taking into
account all proposed mitigation, will result in overall
environmental benefits, including the prevention of
wetlands loss.
Any permit issued authorizing activities in type A wet-
lands 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.
‘‘(3)(A) The Secretary may issue a permit authoriz-
ing activities in type B wetlands subject to such terms and
conditions as the Secretary finds are necessary to ensure
that the watershed or aquatic ecosystem of which such
wetlands are a part does not suffer significant loss or deg-
102
radation of wetlands values and functions. In determining
whether or not specific terms and conditions are necessary
to avoid a significant loss of wetlands values and func-
tions, the Secretary shall consider the following:
‘‘(i) The quality and quantity of ecologically sig-
nificant functions served by the areas to be affected.
‘‘(ii) The opportunities to reduce impacts
through cost effective design to avoid or minimize
use of wetlands areas.
‘‘(iii) The costs of mitigation requirements and
the social, recreational, and economic benefits associ-
ated with the proposed activity, including local, re-
gional, or national needs for improved or expanded
infrastructure.
‘‘(iv) The ability of the permittee to mitigate
wetlands loss or degradation as measured by wet-
lands functions.
‘‘(v) The environmental benefit, measured by
wetlands functions, that may occur through mitiga-
tion efforts, including restoring, preserving, enhanc-
ing, or creating wetlands values and functions.
‘‘(vi) The marginal impact of the proposed ac-
tivity on the watershed of which such wetlands are
a part.
103
‘‘(B) In considering an application for activities on
type B wetlands, the Secretary may require alternative
site analyses for individual permit applications involving
the alteration or permanent surface disturbance of 10 or
more contiguous acres of wetlands. There shall be a rebut-
table presumption that the project purpose as defined by
the applicant shall be binding upon the Secretary. The def-
inition 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 re-
quirements to minimize impacts on wetlands values and
functions, including cost effective redesign of projects to
avoid wetlands areas.
‘‘(C) Except as otherwise provided in this section, re-
quirements for mitigation shall be imposed when the Sec-
retary finds that activities undertaken under this section
will result in the loss or degradation of type B wetlands
functions and values where such loss or degradation is not
a temporary or incidental impact. When determining miti-
gation requirements in any specific case, the Secretary
shall take into consideration the type of wetlands affected,
the character of the impact on ecological functions, wheth-
er any adverse effects on wetlands are of a permanent or
temporary nature, and the cost effectiveness of such miti-
104
gation and shall seek to minimize the costs of such mitiga-
tion.
‘‘(D) In accordance with subsection (j), the Secretary
shall issue rules governing requirements for mitigation for
activities occurring in type B wetlands that allow for—
‘‘(i) minimization of impacts through project
design, including avoidance of specific wetlands im-
pacts where economically practicable and consistent
with the project’s purpose, provisions for compen-
satory mitigation, if any, and other terms and condi-
tions necessary and appropriate in the public inter-
est;
‘‘(ii) preservation or donation of type A wet-
lands or type B wetlands (where title has not been
acquired by the United States and no compensation
for the taking of such wetlands has been provided)
as mitigation for activities that alter or degrade wet-
lands;
‘‘(iii) enhancement or restoration of degraded
wetlands as compensation for wetlands lost or de-
graded through permitted activity;
‘‘(iv) compensation through contribution to a
mitigation banking program established for a State
pursuant to subparagraph (F);
105
‘‘(v) offsite compensatory mitigation if such
mitigation contributes to the restoration, enhance-
ment or creation of significant wetlands values on a
watershed or ecosystem-wide basis and is balanced
with the effects that the proposed activity will have
on the specific 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 which the proposed activity is to
occur, unless otherwise consistent with a State wet-
lands management plan;
‘‘(vi) contribution of in-kind value acceptable to
the Secretary and otherwise authorized by law;
‘‘(vii) in areas subject to wetlands loss, the con-
struction of coastal protection and enhancement
projects;
‘‘(viii) contribution of resources of more than
one permittee toward a single mitigation project;
and
‘‘(ix) other mitigation measures determined by
the Secretary to be appropriate in the public interest
and consistent with the requirements and purposes
of this Act.
106
‘‘(E) Notwithstanding the provisions of subparagraph
(C), the Secretary may determine not to impose require-
ments for compensatory mitigation if the Secretary finds
that—
‘‘(i) the adverse impacts of a permitted activity
are limited;
‘‘(ii) the failure to impose compensatory mitiga-
tion requirements is compatible with maintaining
wetlands functions and values and no practicable
and reasonable means of mitigation are available;
‘‘(iii) there is an abundance of similar signifi-
cant 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;
‘‘(iv) the temporary character of the impacts
and the use of minimization techniques make com-
pensatory mitigation unnecessary to protect signifi-
cant wetlands values; or
‘‘(v) a waiver from requirements for compen-
satory mitigation is necessary to prevent special
hardship.
107
‘‘(F) The Secretary, in consultation with the Direc-
tor, shall establish a mitigation banking program in each
State. Such mitigation banking program shall be devel-
oped in consultation with the Director and the Governor
of the State in which the wetlands covered by such mitiga-
tion banking program is located and, after approval by
the Secretary, will be available to the Secretary as a means
for ensuring compensation for loss and degradation of wet-
lands functions and values in such State in accordance
with the requirements of this paragraph. The primary ob-
jective of such programs shall be to provide for the res-
toration, enhancement, or, where feasible, creation of eco-
logically significant wetlands on an ecosystem basis. Such
programs shall—
‘‘(i) provide a preference for larger scale mitiga-
tion projects, unless the Secretary (or the Governor
of a State that is administering its own permit pro-
gram under subsection (m)) determines that a small-
er project will contribute substantially to the con-
servation, enhancement or restoration of ecologically
significant wetlands values and functions or that the
restoration of indigenous wetlands resources cannot
be accomplished through large-scale projects;
‘‘(ii) authorize mitigation banks sponsored ei-
ther by private entities or public entities;
108
‘‘(iii) provide for crediting of contributions to
the mitigation bank in land, cash, or in-kind con-
tributions so that persons unable to sponsor specific
mitigation projects can contribute to a State or pri-
vately maintained mitigation bank;
‘‘(iv) have sufficient requirements to ensure
completion, maintenance and supervision for at least
a 25-year period, including requirements for bonds
or other evidence of financial responsibility;
‘‘(v) authorize the imposition of bonding re-
quirements on private entities operating such banks;
‘‘(vi) limit activities in or on wetlands that are
part of a mitigation bank to uses that are consistent
with maintaining or gaining significant wetlands val-
ues and functions; and
‘‘(vii) authorize a credit to be provided on an
acre-for-acre or value-for-value basis for type A and
B wetlands that are permanently protected in na-
tional conservation units in States that have con-
verted less than 10 percent of their State’s historic
wetlands base.
‘‘(4)(A) In the case of any application for authoriza-
tion to undertake activities in wetlands that are not eligi-
ble for treatment on an expedited basis pursuant to para-
graph (5) of this subsection, final action by the Secretary
109
shall occur within 90 days following the date such applica-
tion is filed, unless—
‘‘(i) the Secretary and the applicant agree that
such final action shall occur within a shorter or
longer period of time;
‘‘(ii) the Secretary determines that an addi-
tional, specified period of time is necessary to permit
the Secretary to comply with other applicable Fed-
eral law; or
‘‘(iii) the Secretary, within 15 days from the
date such application is received, notifies the appli-
cant that such application does not contain all infor-
mation necessary to allow the Secretary to consider
such application and identifies any necessary addi-
tional information, in which case, the provisions of
subparagraph (B) shall apply.
‘‘(B) Upon the receipt of a request for additional in-
formation under subparagraph (A)(iii), the applicant shall
supply such additional information and shall advise the
Secretary that the application contains all requested infor-
mation and is therefore complete. The Secretary may—
‘‘(i) within 30 days of the receipt of notice of
the applicant that the application is complete, deter-
mine that the application does not contain all re-
quested additional information and, on that basis,
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deny the application without prejudice to resubmis-
sion; or
‘‘(ii) within 90 days from the date that the ap-
plicant provides notification to the Secretary that
the application is complete, review the application
and take final action.
‘‘(C) If the Secretary fails to take final action on an
application under this paragraph within 90 days from the
date that the applicant provides notification to the Sec-
retary that such application is complete, a permit shall
be presumed to be granted authorizing the activities pro-
posed in such application under such terms and conditions
as are stated in such completed application.
‘‘(5)(A) Activities in wetlands that have been classi-
fied as type C wetlands by the Secretary or the Director
may be undertaken without authorization required under
subsection (b) of this section.
‘‘(B) The Secretary may establish requirements for
reporting activities undertaken in type C wetlands.
‘‘(C) No Federal requirements for alternative site
analyses or mitigation of environmental impacts shall
apply for activities undertaken in type C wetlands.
‘‘(6) The Secretary may, by rule in accordance with
subsection (j), issue general permits on a State, regional,
or nationwide basis for any category of activities involving
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activities described in section (a) of this section in wet-
lands 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 signifi-
cant loss of ecologically significant wetlands values and
functions. Permits issued under this subsection shall in-
clude procedures for expedited review of eligibility for such
permits (if such review is required) and may include re-
quirements for reporting and mitigation. Requirements for
compensatory mitigation for such permits may be imposed
where necessary to avoid or minimize the significant loss
or degradation of significant wetlands values and func-
tions where such loss or degradation is not a temporary
or incidental impact. Nationwide, general or regional per-
mits in effect on the date of the enactment of the Com-
prehensive Wetlands Conservation and Management Act
of 1995 shall remain in effect until otherwise modified by
the Secretary.
‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—(1) Ex-
cept as provided in paragraph (3) of this subsection, ac-
tivities undertaken in wetlands are exempt from the re-
quirements of this section and are not prohibited by or
otherwise subject to regulation under this section or sec-
tion 301 or 402 of this Act (except effluent standards or
112
prohibitions under section 307 of this Act), if such activi-
ties—
‘‘(A) result from normal farming, silviculture,
aquaculture, and ranching activities and practices,
such as plowing, seeding, cultivating, haying, graz-
ing, minor drainage, burning of vegetation in con-
nection with such activities, harvesting for the pro-
duction of food, fiber, and forest products, or upland
soil and water conservation practices;
‘‘(B) are for the purpose of maintenance, in-
cluding emergency reconstruction of recently dam-
aged parts of currently serviceable structures such
as dikes, dams, levees, water control structures,
groins, riprap, breakwaters, utility distribution and
transmission lines, causeways, and bridge abut-
ments or approaches, and transportation structures;
‘‘(C) are for the purpose of construction or
maintenance of farm, stock or aquaculture ponds or
irrigation canals and ditches, or the maintenance of
drainage ditches;
‘‘(D) are for the purpose of construction of
temporary sedimentation basins on a construction
site which does not include placement of fill material
into the navigable waters;
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‘‘(E) are for the purpose of construction or
maintenance of farm roads or forest roads, tem-
porary roads for moving mining equipment, or ac-
cess roads for utility distribution and transmission
lines, if such roads are constructed and maintained,
in accordance with best management practices, to
assure that flow and circulation patterns and chemi-
cal and biological characteristics of the waters are
not impaired, that the reach of the waters is not
reduced, and that any adverse effect on the aquatic
environment will be otherwise minimized;
‘‘(F) are undertaken on farmed wetlands, ex-
cept that any change in use of such land for the
purpose of undertaking activities that are not ex-
empt from regulation under this subsection shall be
subject to the requirements of this section to the ex-
tent that such farmed wetlands are ‘wetlands’ under
paragraph (2) of subsection (g);
‘‘(G) result from any activity with respect to
which a State has an approved program under sec-
tion 208(b)(4) of this Act which meets the require-
ments of subparagraphs (B) and (C) of such section;
‘‘(H) are consistent with a State or local land
management plan submitted to the Secretary and
approved pursuant to paragraph (2);