I
106TH CONGRESS
1ST SESSION
H. R. 1290
To amend the Federal Water Pollution Control Act relating to wetlands
mitigation banking, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 25, 1999
Mr. JONES of North Carolina (for himself, Mr. CLEMENT, Mr. SAXTON, Mr.
TAYLOR of Mississippi, Mr. BAKER, Mr. TRAFICANT, Mr. BARCIA, Mr.
TAUZIN, and Mr. ARMEY) introduced the following bill; which was re-
ferred to the Committee on Transportation and Infrastructure
A BILL
To amend the Federal Water Pollution Control Act relating
to wetlands mitigation banking, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘American Wetland
Restoration Act’’.
SEC. 2. DECLARATION OF POLICIES AND GOALS.
Section 101(a) of the Federal Water Pollution Con-
trol Act (33 U.S.C. 1251(a)) 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 a semicolon; and
(3) by adding at the end the following:
‘‘(8) it is the national policy to achieve, through
regulatory means that take into account that 75 per-
cent of the wetlands in the contiguous United States
are privately owned and that private property rights
should not be unreasonably infringed and through
nonregulatory opportunities involving all levels of
government and supported by private initiatives, the
conservation, creation, and restoration of wetlands
so as to increase the quantity and quality of the wet-
lands resource base of the contiguous United States
and to meet the interim goal of no overall net loss
for the remaining wetlands resource base of the con-
tiguous United States, while taking into account the
status and trends of the wetlands resource base in
particular regions and areas; and
‘‘(9) it is the national policy to foster wetlands
mitigation banking as a means to mitigate the un-
avoidable loss of wetlands and to do so by providing
a regulatory framework for the establishment, oper-
ation, and use of mitigation banks, making appro-
priate use of existing, successful programs for miti-
gation banking, and taking into account regional
variations in wetlands conditions, functions, and val-
ues.’’.
SEC. 3. USE OF MITIGATION BANKS.
Section 404 of the Federal Water Pollution Control
Act (33 U.S.C. 1344) is amended by adding at the end
the following:
‘‘(u) USE OF MITIGATION BANKS.—
‘‘(1) DEFINITIONS
CONTAINED
IN
FEDERAL
GUIDANCE.—Except as otherwise provided in this
subsection, a term used in this subsection shall have
the meaning given such term in the Federal Guid-
ance.
‘‘(2) OTHER DEFINITIONS.—In this subsection,
the following definitions apply:
‘‘(A) 
CHARTER.—The 
term 
‘charter’
means a mitigation banking instrument, as de-
scribed in the Federal Guidance. A charter is
an agreement between an applicant for a char-
ter and the Secretary or a State (in the case of
a State administering a program under sub-
section (h)(2)(A)) that has been developed in
consultation with the mitigation bank review
team.
‘‘(B) FEDERAL
GUIDANCE.—The term
‘Federal Guidance’ means the Federal Guidance
for the Establishment, Use and Operation of
Mitigation Banks (60 Fed. Reg. 58695 (No-
vember 28, 1995)).
‘‘(C) MAINTENANCE.—With respect to
wetlands, the term ‘maintenance’ means an ac-
tivity undertaken to ensure viability of a wet-
land or to ensure the accomplishment of a
project goal after a wetland restoration, en-
hancement, creation, or preservation project has
been completed, including hydrological manipu-
lation and control of desirable and undesirable
plant species.
‘‘(D) MITIGATION BANK.—The term ‘miti-
gation bank’ means a specified wetland resource
restoration, creation, or enhancement project or
projects (which may include the preservation of
appurtenant wetlands, uplands, or open water
resources to the extent that the wetlands, up-
lands, or open water resources increase the eco-
logical functioning of the mitigation bank) or,
in exceptional circumstances, a project or
projects consisting solely of preservation of wet-
lands that has been chartered by the Secretary
under this subsection for the purpose of pro-
viding mitigation credits to offset wetland losses
authorized by the terms of permits allowing ac-
tivities in the waters of the United States.
‘‘(E) SERVICE
AREA.—The term ‘service
area’ means the designated area, as described
in the Federal Guidance, in which a mitigation
bank may provide compensatory mitigation for
impacts to wetlands resources.
‘‘(F) WETLAND
FUNCTION.—The term
‘wetland function’ means an environmental,
hydrological, or other role that the wetland
serves, including flood water storage, flood
water conveyance, ground water discharge or
recharge, erosion control, wave attenuation,
water quality protection, scenic and aesthetic
use, food chain support, fisheries, wetland plant
habitat, aquatic habitat, and habitat for wet-
land-dependent wildlife.
‘‘(3) CHARTER OF MITIGATION BANKS.—
‘‘(A) ISSUANCE.—The Secretary, in con-
sultation with the mitigation bank review team,
may issue a mitigation bank charter to a person
who, with respect to the project or projects that
are to be included in the scope of the mitigation
banking charter, meets the following criteria:
‘‘(i) Provides reasonable assurances of
success of the proposed restoration, en-
hancement, 
creation, 
or 
preservation
project.
‘‘(ii) 
Demonstrates 
an 
adequate
source of water to support the wetland.
‘‘(iii) Demonstrates adequate legal
control, such as title, license, contract, or
option (contingent upon approval of the
charter), over the real property (including
necessary uplands, as appropriate) in the
proposed project to carry out the proposed
project.
‘‘(iv) Demonstrates adequate financial
assurances to carry out the proposed
project, including the design, operations,
and maintenance plan and remedial meas-
ures. Such financial assurances may be in
the form of performance bonds, irrevocable
trusts, escrow accounts, casualty insur-
ance, letters of credit, legislatively-enacted
dedicated funds for government operated
banks, or other approved instruments.
Such financial assurances shall entitle the
Secretary to draw upon the assurances in
the event of a substantial failure to per-
form the work provided in the mitigation
bank charter, or a substantial failure of
the mitigation bank to perform as expected
in the application, in any case in which
mitigation credits based on such work have
already been used or sold. Such financial
assurances shall be in place prior to the
withdrawal of credits.
‘‘(v) Demonstrates an adequate de-
sign, operations, and maintenance plan to
ensure continued viability of the proposed
project after completion of construction of
the project.
‘‘(vi) Demonstrates adequate legal
protection, such as easements, covenants
running with the land, or other appro-
priate, legally binding undertakings, to en-
sure permanent protection of the wetlands
in the mitigation bank that are used as the
basis for selling credits. Such legal protec-
tions shall be in place at the time that the
credits are withdrawn.
‘‘(B) APPLICATION AND PROCEDURE.—An
applicant for a mitigation bank charter shall
submit to the Secretary an application and sup-
porting materials signed by a responsible offi-
cial acting on behalf of the applicant certifying
the accuracy of the information contained in
the application and materials. The application
shall include, at a minimum, information on the
criteria contained in subparagraph (A). The
Secretary shall advise the applicant, not later
than 30 days after the date of filing, of whether
the application is complete and advise the appli-
cant, in writing at that time, of any additional
materials that must be submitted in order to
complete the application. The Secretary shall
also transmit a copy of the complete charter ap-
plication to the affected State, and to the heads
of appropriate Federal agencies, each of which
shall have 60 days, to run concurrently, to file
written comments, which shall be part of the
record. If no comments are filed before the last
day of such 60-day period, the Secretary may
presume that the entities do not object to the
charter.
‘‘(C) MITIGATION BANK REVIEW TEAM.—
The mitigation bank review team, as defined in
the Federal Guidance, shall be responsible for
reviewing charter applications, reaching con-
sensus on the terms of the charter, and coordi-
nating, as necessary, to ensure effective imple-
mentation of the terms of the charter. The Sec-
retary or the State (in the case of a State ad-
ministering 
a 
program 
under 
subsection
(h)(2)(A)) shall be the chair of the mitigation
bank review team and have the responsibility
for making final decisions regarding the terms
of the charter if consensus cannot be reached
within the timeframes provided by this sub-
section.
‘‘(D) COORDINATION.—To the extent pos-
sible, the Secretary shall coordinate the proc-
essing of a mitigation bank charter application
under this subsection with the processing of ap-
plications by such applicant for other permits
required under this section, in order that deter-
minations with respect to such permits may be
made concurrently with the final decision on the
bank charter.
‘‘(E) NOTICE.—
‘‘(i) PUBLICATION.—The Secretary
shall publish notice of the charter applica-
tion in the Federal Register and in a news-
paper of general circulation in the pro-
posed service area in which the mitigation
bank is to operate (including the county in
which the project is to be located), and
shall make copies of the charter application
and supporting materials available for pub-
lic review at appropriate convenient loca-
tions in the service area.
‘‘(ii) CONTENTS.—The notice shall de-
scribe the project or projects provided in
the charter application, explain where sup-
porting materials may be reviewed, and
provide 30 days for the submission of com-
ments on the compliance of the proposed
application in accordance with this sub-
section. Upon request, the time for com-
ment may be extended once for 30 days.
‘‘(iii) PERMIT
REQUIREMENTS.—In
any case in which a permit is required
under this section to construct a mitigation
bank, the notice and opportunity for public
comment provided in accordance with the
application for the permit may satisfy the
requirements of this paragraph for public
notice and comment.
‘‘(F) 
DECISION
DEADLINE.—The 
Sec-
retary, in consultation with the mitigation bank
review team, shall decide whether to issue a
mitigation banking charter not later than 90
days after the date of filing of a completed
charter application.
‘‘(G) EXTENSION OF DEADLINE.—If addi-
tional time is needed to file comments, to pro-
vide for a hearing, to provide for further review
of comments, or to provide for a reply to ad-
verse comments, the Secretary may extend the
time for review once for 90 days.
‘‘(H) DETERMINATION.—After a review of
public comments and any reply by the appli-
cant, the Secretary may, in accordance with
subparagraph (A) and after appropriate coordi-
nation and consultation, issue the charter, deny
the charter, or issue the charter with modifica-
tions. The Secretary’s decision shall be based
on the entire public record.
‘‘(I) AMENDMENTS.—Additional projects
may be added to a mitigation bank charter by
amendment. Amendment applications shall be
processed in the same manner as charter appli-
cations, but the Secretary may treat the facts
established in support of the charter and con-
firmed by the most recent report required under
subparagraph (J) as established for the purpose
of the amendment application process.
‘‘(J) PERIODIC
REPORTS.—Persons hold-
ing a mitigation bank charter shall report to
the Secretary in accordance with the charter
and on a periodic basis, as determined by the
Secretary. The report shall include—
‘‘(i) information demonstrating the
success of the proposed restoration, en-
hancement, 
creation, 
or 
preservation
project;
‘‘(ii) a demonstration of a continued
compliance with financial assurance re-
quirements;
‘‘(iii) a demonstration of a continued,
adequate, long-term source of water to
support the wetland;
‘‘(iv) a progress report in accom-
plishing the construction and design, oper-