126
limitation or the Secretary shall bring a civil action
in accordance with paragraph (3).
‘‘(2) NOTICE
AND
OTHER
PROCEDURAL
RE-
QUIREMENTS RELATING TO ORDERS.—A copy of any
order issued under this subsection shall be sent im-
mediately by the Secretary to the Governor of the
State in which the violation occurs and the Gov-
ernors of other affected States. The person commit-
ting the asserted violation that results in issuance of
the order shall be notified of the issuance of the
order by personal service made to the appropriate
person or corporate officer. The notice shall state
with reasonable specificity the nature of the asserted
violation and specify a time for compliance, not to
exceed 30 days, which the Secretary determines is
reasonable taking into account the seriousness of the
asserted violation and any good faith efforts to com-
ply with applicable requirements; except that if the
person receiving notice of the asserted violation dis-
putes the Secretary’s determination and so notifies
the Secretary in writing within 90 days of receipt of
the Secretary’s notice, the Secretary shall within 60
days after receiving notice of a dispute of an as-
serted violation, or within 150 days from the date of
notification of violation by the Secretary if no notice
127
of a dispute is received (or after serving notice, un-
less otherwise agreed to by the parties) prosecute a
civil action in accordance with paragraph (3) or re-
scind such order and be estopped from any further
enforcement proceedings for the same asserted viola-
tion.
‘‘(3) CIVIL ACTION ENFORCEMENT.—The Sec-
retary is authorized to commence a civil action for
appropriate relief, including a permanent or tem-
porary injunction, for any violation for which the
Secretary is authorized to issue a compliance order
under paragraph (1). Any action under this para-
graph may be brought in the district court of the
United States for the district in which the defendant
is located or resides or is doing business, and such
court shall have jurisdiction to restrain such viola-
tion and to require compliance. Notice of the com-
mencement of such action shall be given immediately
to the appropriate State.
‘‘(4) CIVIL PENALTIES.—Any person who vio-
lates any condition or limitation in a permit issued
by the Secretary under this section and any person
who violates any order issued by the Secretary under
paragraph (1) shall be subject to a civil penalty not
to exceed $25,000 per day for each violation com-
128
mencing on the day of the violation. The amount of
the penalty imposed per day shall be in proportion
to the scale or scope of the project. In determining
the amount of a civil penalty, the court shall con-
sider the seriousness of the violation or violations,
the economic benefit (if any) resulting from the vio-
lation, any history of such violations, any good-faith
efforts to comply with the applicable requirements,
the economic impact of the penalty on the violator,
and such other matters as justice may require.
‘‘(5) CRIMINAL
PENALTIES.—If any person
knowingly violates any condition or limitation in a
permit issued by the Secretary under this section or
knowingly violates an order issued by the Secretary
under paragraph (1) and has been notified of the is-
suance of such order under paragraph (2) and if
such violation has resulted in actual degradation of
the environment, such person shall be punished by
a fine of not less than $5,000 nor more than
$50,000 per day of violation, or by imprisonment for
not more than 3 years, or by both. If a conviction
of a person is for a violation committed after a first
conviction of such person under this paragraph, pun-
ishment shall be by a fine of not more than
$100,000 per day of violation, or imprisonment of
129
not more than 6 years, or by both. An action for im-
position of a criminal penalty under this paragraph
may only be brought by the Attorney General.
‘‘(l) 
STATE
AUTHORITY
TO
CONTROL
DIS-
CHARGES.—Nothing in this section shall preclude or deny
the right of any State or interstate agency to control ac-
tivities in waters within the jurisdiction of such State, in-
cluding any activity of any Federal agency, and each such
agency shall comply with such State or interstate require-
ments both substantive and procedural to control such ac-
tivities to the same extent that any person is subject to
such requirements. This section shall not be construed as
affecting or impairing the authority of the Secretary to
maintain navigation.
‘‘(m) STATE REGULATION OF WETLANDS.—(1) The
Governor of any State desiring to administer its own indi-
vidual and general permit program for activities covered
by this section within its jurisdiction may submit to the
Secretary a description of the program it proposes to es-
tablish and administer under State law or under an inter-
state compact. In addition, such State shall submit a
statement from the chief legal officer in the case of the
State or interstate agency, that the laws of such State,
or the interstate compact, as the case may be, provide ade-
quate authority to carry out the described program.
130
‘‘(2) Not later than 1 year after the date of the re-
ceipt by the Secretary of a program and statement submit-
ted by any State under paragraph (1), the Secretary shall
determine whether such State has the following authority
with respect to the issuance of permits pursuant to such
program:
‘‘(A) to issue permits which—
‘‘(i) apply, and assure compliance with,
any applicable requirements of this section; and
‘‘(ii) can be terminated or modified for
cause, including—
‘‘(I) violation of any condition of the
permit;
‘‘(II) obtaining a permit by misrepre-
sentation, or failure to disclose fully all rel-
evant facts; or
‘‘(III) change in any condition that
requires either a temporary or permanent
reduction or elimination of the permitted
activity;
‘‘(B) to issue permits which apply, and ensure
compliance with, all applicable requirements of sec-
tion 308 of this Act or to inspect, monitor, enter,
and require reports to at least the same extent as
required in section 308 of this Act;
131
‘‘(C) to ensure that the public, and any other
State the waters of which may be affected, receive
notice of each application for a permit and to pro-
vide an opportunity for public hearing before a rul-
ing on each such application;
‘‘(D) to ensure that the Secretary receives no-
tice of each application for a permit and that, prior
to any action by the State, both the applicant for
the permit and the State have received from the Sec-
retary information with respect to any advance clas-
sification applicable to wetlands that are the sub-
ject of such application;
‘‘(E) to ensure that any State (other than the
permitting State) whose waters may be affected by
the issuance of a permit may submit written rec-
ommendation to the permitting State with respect to
any permit application and, if any part of such writ-
ten recommendations are not accepted by the per-
mitting State, that the permitting State will notify
such affected State (and the Secretary) in writing of
its failure to so accept such recommendations to-
gether with its reasons for doing so; and
‘‘(F) to abate violations of the permit or the
permit program, including civil and criminal pen-
alties and other ways and means of enforcement.
132
‘‘(3) If, with respect to a State program submitted
under paragraph (1) of this section, the Secretary deter-
mines that the State—
‘‘(A) has the authority set forth in paragraph
(2), the Secretary shall approve the program and so
notify such State and suspend the issuance of per-
mits under subsection (b) for activities with respect
to which a permit may be issued pursuant to the
State program; or
‘‘(B) does not have the authority set forth in
paragraph (2) of this subsection, the Secretary shall
so notify such State and provide a description of the
revisions or modifications necessary so that the
State may resubmit the program for a determination
by the Secretary under this subsection.
‘‘(4) If the Secretary fails to make a determination
with respect to any program submitted by a State under
this subsection within 1 year after the date of receipt of
such program, the program shall be deemed approved pur-
suant to paragraph (3)(A) and the Secretary shall so no-
tify the State and suspend the issuance of permits under
subsection (b) for activities with respect to which a permit
may be issued by the State.
‘‘(5) After the Secretary approves a State permit pro-
gram under paragraph (3)(A) or (4), the Secretary shall
133
transfer any applications for permits pending before the
Secretary for activities with respect to which a permit may
be issued pursuant to the State program to the State for
appropriate action.
‘‘(6) Upon notification from a State with a permit
program approved under this subsection that such State
intends to administer and enforce the terms and condi-
tions of a general permit issued by the Secretary under
subsection (e) with respect to activities in the State to
which such general permit applies, the Secretary shall sus-
pend the administration and enforcement of such general
permit with respect to such activities.
‘‘(7) Whenever the Secretary determines after public
hearing that a State is not administering a program ap-
proved under paragraph (3)(A) in accordance with this
section, the Secretary shall notify the State and, if appro-
priate corrective action is not taken within a reasonable
time, not to exceed 90 days after the date of the receipt
of such notification, the Secretary shall—
‘‘(A) withdraw approval of the program until
the Secretary determines such corrective action has
been taken; and
‘‘(B) resume the program for the issuance of
permits under subsections (b) and (e) for all activi-
ties with respect to which the State was issuing per-
134
mits until such time as the Secretary makes the de-
termination described in paragraph (2) and the
State again has an approved program.
‘‘(n) AVAILABILITY FOR PUBLIC INFORMATION.—A
copy of each permit application and each permit issued
under this section shall be available to the public. Such
permit application or portion thereof shall further be avail-
able on request for the purpose of reproduction.
‘‘(o) TREATMENT
OF
COMPLIANCE.—Compliance
with a permit issued pursuant to this section, including
any activity carried out pursuant to a general permit is-
sued under this section, shall be deemed in compliance,
for purposes of sections 309 and 505, with sections 301,
307, and 403.
‘‘(p) TRANSITION RULES.—After the effective date of
this section under section 806 of the Comprehensive Wet-
lands Conservation and Management Act of 1995, no per-
mit for any activity described in subsection (a) may be
issued except in accordance with this section. Any permit
for an activity described in subsection (a) issued under
this section prior to such effective date shall be deemed
to be a permit under this section and shall continue in
force and effect for the term of the permit unless revoked,
modified, or suspended in accordance with this section.
Any application for a permit for such an activity pending
135
under this section on such effective date shall be deemed
to be an application for a permit under this section.
‘‘(q) LIMITATION ON FEES.—Any fee charged in con-
nection with the delineation or classification of wetlands,
an application for a permit authorizing an activity de-
scribed in subsection (a), or any other action taken in
compliance with the requirements of this section (other
than fines for violations under subsection (k)) shall not
exceed the amount in effect for such fee on January 1,
1990.
‘‘(r) BALANCED IMPLEMENTATION.—(1) In imple-
menting their responsibilities under the regulatory pro-
gram under this section, the Secretary shall balance the
objective of conserving functioning wetlands with the ob-
jective of ensuring continued economic growth, providing
essential infrastructure, maintaining strong State and
local tax bases, and protecting against the diminishment
of the use and value of privately owned property.
‘‘(2) In carrying out this section, the Secretary and
the heads of all other Federal agencies shall seek in all
actions to minimize the adverse effects of the regulatory
program under this section on the use and value of pri-
vately owned property.’’.
136
SEC. 804. DEFINITIONS.
Section 502 of the Federal Water Pollution Control
Act (33 U.S.C. 1362) is amended by adding at the end
thereof the following new paragraphs:
‘‘(21) The term ‘wetlands’ means lands which have
a predominance of hydric soils and which are inundated
by surface water at a frequency and duration sufficient
to support, and that under normal circumstances do sup-
port, a prevalence of vegetation typically adapted for life
in saturated soil conditions. Wetlands generally include
swamps, marshes, bogs, and similar areas.
‘‘(22) The term ‘creation of wetlands’ means an activ-
ity that brings a wetland into existence at a site where
it did not formerly occur for the purpose of compensation.
‘‘(23) The term ‘enhancement of wetlands’ means any
activity that increases the value of one or more functions
in existing wetlands.
‘‘(24) The term ‘fastlands’ means lands located be-
hind permitted man-made structures, such as levees con-
structed and maintained to permit the utilization of such
lands for commercial, industrial or residential purposes
consistent with local land use planning requirements.
‘‘(25) The term ‘wetlands functions’ means the roles
wetlands serve which are of value including flood water
storage, flood water conveyance, ground water discharge,
erosion control, wave attenuation, water quality protec-
137
tion, scenic and aesthetic use, food chain support, fish-
eries, wetlands plant habitat, aquatic habitat, and habitat
for wetland dependent wildlife.
‘‘(26) The term ‘growing season’ means, for each
plant hardiness zone, the period between the average date
of last frost in spring and the average date of first frost
in autumn.
‘‘(27) The term ‘incidentally created wetlands’ means
lands that exhibit wetlands characteristics sufficient to
meet the criteria for delineation of wetlands, where one
or more of such characteristics is the unintended result
of human induced alterations of hydrology.
‘‘(28) The term ‘maintenance’ when used in reference
to wetlands means activities undertaken to assure continu-
ation of a wetland or the accomplishment of project goals
after a restoration or creation project has been technically
completed, including water level manipulations and control
of nonnative plant species.
‘‘(29) The term ‘mitigation banking’ means wetlands
restoration, enhancement, preservation or creation for the
purpose of providing compensation for wetland degrada-
tion or loss.
‘‘(30) The term ‘normal farming, silviculture, aqua-
culture and ranching activities’ means normal ongoing
practices identified as such by the Secretary of Agri-
138
culture, in consultation with the Cooperative Extension
Service for each State and the land grant university sys-
tem and agricultural colleges of the State, taking into ac-
count existing practices and such other practices as may
be identified in consultation with the affected industry or
community.
‘‘(31) The term ‘prior converted cropland’ means
land that was both manipulated (drained or otherwise
physically altered to remove excess water from the land)
and cropped before December 23, 1985, to the extent that
such land no longer exhibits significant wetlands values.
‘‘(32) The term ‘restoration’ in reference to wetlands
means an activity undertaken to return a wetland from
a disturbed or altered condition with lesser acreage or
fewer functions to a previous condition with greater wet-
lands acreage or functions.
‘‘(33) The term ‘temporary impact’ means the dis-
turbance or alteration of wetlands caused by activities
under circumstances in which, within 3 years following the
commencement of such activities, such wetlands—
‘‘(A) are returned to the conditions in existence
prior to the commencement of such activity; or
‘‘(B) display conditions sufficient to ensure,
that without further human action, such wetlands
139
will return to the conditions in existence prior to the
commencement of such activity.
‘‘(34) The term ‘airport hazard’ has the meaning
such term has under section 47102 of title 49, United
States Code.’’.
SEC. 805. TECHNICAL AND CONFORMING AMENDMENTS.
Section 309 of the Federal Water Pollution Control
Act (33 U.S.C. 1319) is amended—
(1) in subsection (a)(1) by striking ‘‘or 404’’;
(2) in subsection (a)(3) by striking ‘‘or in a
permit issued under section 404 of this title by a
State’’;
(3) in each of subsections (c)(1)(A) and
(c)(2)(A) by striking ‘‘or in a permit’’ and all that
follows through ‘‘State;’’ and inserting a semicolon;
(4) in subsection (c)(3)(A) by striking ‘‘or in a
permit’’ and all that follows through ‘‘State, and’’
and inserting ‘‘and’’;
(5) by adding at the end of subsection (c) the
following:
‘‘(8) TREATMENT OF CERTAIN VIOLATIONS.—
Any person who violates section 301 with respect to
the discharge of dredged or fill material into the
navigable waters for which a permit is required
under section 404 shall not be subject to punishment
140
under this subsection but shall be subject to punish-
ment under section 404(k)(5).’’;
(6) in subsection (d) by striking ‘‘, or in a per-
mit issued under section 404 of this Act by a
State,’’;
(7) by adding at the end of subsection (d) the
following: ‘‘Any person who violates section 301 with
respect to the discharge of dredged or fill material
into the navigable waters for which a permit is re-
quired under section 404 shall not be subject to a
civil penalty under this subsection but shall be sub-
ject to a civil penalty under section 404(k)(4).’’;
(8) in subsection (g)(1)—
(A) by striking ‘‘—’’ and all that follows
through ‘‘(A)’’;
(B) by striking ‘‘or in a permit issued
under section 404 of this title by a State, or’’;
and
(C) by striking ‘‘(B)’’ and all that follows
through ‘‘as the case may be,’’ and inserting
‘‘the Administrator’’;
(9) by adding at the end of subsection (g) the
following:
‘‘(12) TREATMENT OF CERTAIN VIOLATIONS.—
Any person who violates section 301 with respect to
141
the discharge of dredged or fill material into the
navigable waters for which a permit is required
under section 404 shall not be subject to assessment
of a civil penalty under this subsection but shall be
subject to assessment of a civil penalty under section
404(k)(4).’’; and
(10) by striking ‘‘or Secretary’’, ‘‘or the Sec-
retary’’, ‘‘or the Secretary as the case may be,’’ ‘‘or
Secretary’s’’, and ‘‘and the Secretary’’ each place
they appear.
SEC. 806. EFFECTIVE DATE.
This title, including the amendments made by this
title, shall take effect on the 90th day following the date
of the enactment of this Act.
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