‘‘(B) resume the program for the issuance
of permits under subsections (b) and (e) for all
activities with respect to which the State was is-
suing permits until such time as the Secretary
makes the determination described in para-
graph (2) and the State again has an approved
program.
‘‘(m) MISCELLANEOUS PROVISIONS.—
‘‘(1) STATE
AUTHORITY
TO
CONTROL
DIS-
CHARGES.—Nothing in this section shall preclude or
deny the right of any State or interstate agency to
control activities in waters within the jurisdiction of
such State, including any activity of any Federal
agency, and each such agency shall comply with
such State or interstate requirements both sub-
stantive and procedural to control such activities 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.
‘‘(2) AVAILABILITY TO PUBLIC.—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.
‘‘(3) PUBLICATION
IN
FEDERAL
REGISTER.—
The Secretary shall have published in the Federal
Register all memoranda of agreement, regulatory
guidance letters, and other guidance documents of
general applicability to implementation of this sec-
tion at the time they are distributed to agency re-
gional or field offices. In addition, the Secretary
shall prepare, update on a biennial basis and make
available to the public for purchase at cost—
‘‘(A) an indexed publication containing all
Federal regulations, general permits, memo-
randa of agreement, regulatory guidance letters,
and other guidance documents relevant to the
permitting of activities pursuant to this section;
and
‘‘(B) information to enable the general
public to understand the delineation of wet-
lands, the permitting requirements referred to
in subsection (e), wetlands restoration and en-
hancement, wetlands functions, available non-
regulatory programs to conserve and restore
wetlands, and other matters that the Secretary
considers relevant.
‘‘(4) COMPLIANCE.—
‘‘(A) COMPLIANCE
WITH
PERMIT.—Com-
pliance with a permit issued pursuant to this
section, including any activity carried out pur-
suant to a general permit issued under this sec-
tion, shall be deemed in compliance, for pur-
poses of sections 309 and 505, with sections
301, 307, and 403.
‘‘(B) CRANBERRY
PRODUCTION.—Activi-
ties associated with expansion, improvement, or
modification of existing cranberry production
operations shall be deemed in compliance, for
purposes of sections 309 and 505, with section
301, if—
‘‘(i) the activity does not result in the
modification of more than 10 acres of wet-
lands per operator per year and the modi-
fied wetlands (other than where dikes and
other necessary facilities are placed) re-
main as wetlands or other waters of the
United States; or
‘‘(ii) the activity is required by any
State or Federal water quality program.
‘‘(5) LIMITATION ON FEES.—Any fee charged
in connection with the delineation or classification of
wetlands, the submission or processing of an applica-
tion for a permit authorizing an activity in wetlands
or waters of the United States, or any other action
taken in compliance with the requirements of this
section (other than fines for violations under sub-
section (k)) shall not exceed the amount in effect for
such fee on February 15, 1995.
‘‘(6) BALANCED IMPLEMENTATION.—
‘‘(A) IN GENERAL.—In implementing his
or her responsibilities under the regulatory pro-
gram under this section, the Secretary shall
balance the objective of conserving functioning
wetlands with the objective of ensuring contin-
ued economic growth, providing essential infra-
structure, maintaining strong State and local
tax bases, and protecting against the diminish-
ment of the use and value of privately owned
property.
‘‘(B) MINIMIZATION OF ADVERSE EFFECTS
ON PRIVATE PROPERTY.—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 privately owned property.
‘‘(7) PROCEDURES
FOR
EMERGENCIES.—The
Secretary shall develop procedures for facilitating ac-
tions under this section that are necessary to re-
spond to emergency conditions (including flood
events and other emergency situations) which may
involve loss of life and property damage. Such proce-
dures shall address circumstances requiring expe-
dited approvals as well as circumstances requiring
no formal approval under this section.
‘‘(8) USE OF PROPERTY.—For purposes of this
section, a use of property is limited by an agency ac-
tion if a particular legal right to use that property
no longer exists because of the action.
‘‘(9) LIMITATION ON CLASSIFICATION OF CER-
TAIN
WATERS.—For purposes of this section, no
water of the United States or wetland shall be sub-
ject to this section based solely on the fact that mi-
gratory birds use or could use such water or wet-
land.
‘‘(10) TRANSITION RULES.—
‘‘(A) PERMIT REQUIRED.—After the effec-
tive date of this section under section 6 of the
Comprehensive 
Wetlands 
Conservation 
and
Management Act of 1995, no permit for any ac-
tivity in wetlands or waters of the United
States may be issued except in accordance with
this section. Any application for a permit for
such an activity pending under this section on
such effective date shall be deemed to be an ap-
plication for a permit under this section.
‘‘(B) PRIOR PERMITS.—Any permit for an
activity in wetlands or waters of the United
States issued under this section prior to the ef-
fective date referred to in subparagraph (A)
shall be deemed to be a permit under this sec-
tion and shall continue in force and effect for
the term of the permit unless revoked, modified,
suspended, or canceled in accordance with this
section.
‘‘(C) REEVALUATION.—Any person holding
a permit for an activity in wetlands or water of
the United States on the effective date referred
to in subparagraph (A) may petition, after such
effective date, the Secretary for reevaluation of
any decision made before such effective date
concerning (i) a determination of regulatory ju-
risdiction under this section, or (ii) any condi-
tion imposed under the permit. Upon receipt of
a petition for reevaluation, the Secretary shall
conduct the reevaluation in accordance with the
provisions of this section. If the Secretary finds
that the provisions of this section apply with re-
spect to activities and lands which are subject
to the permit, the Secretary shall modify, re-
voke, suspend, cancel, or continue the permit as
appropriate in accordance with the provisions of
this section; except that no compensation shall
be awarded under this section to any person as
a result of reevaluation pursuant to this sub-
paragraph and, if the permit covers activities in
type A wetlands, the permit shall continue in
effect without modification. The reevaluation
shall be carried out in accordance with time
limits set forth in subsection (e)(5) and shall
be subject to administrative appeal under sub-
section (i).
‘‘(11) DEFINITIONS.—In this section the follow-
ing definitions apply:
‘‘(A) ACTIVITY IN WETLANDS OR WATERS
OF THE UNITED STATES.—The term ‘activity in
wetlands or waters of the United States’
means—
‘‘(i) the discharge of dredged or fill
material into waters of the United States,
including wetlands at a specific disposal
site; or
‘‘(ii) the draining, channelization, or
excavation of wetlands.
‘‘(B) AGENCY.—The term ‘agency’ has the
meaning given that term in section 551 of title
5, United States Code.
‘‘(C) AGENCY ACTION.—The term ‘agency
action’ has the meaning given that term in sec-
tion 551 of title 5, United States Code, but also
includes the making of a grant to a public au-
thority conditioned upon an action by the recip-
ient that would constitute a limitation if done
directly by the agency.
‘‘(D) AGRICULTURAL
LAND.—The term
‘agricultural land’ means cropland, pastureland,
native pasture, rangeland, an orchard, a vine-
yard, nonindustrial forest land, an area that
supports a water dependent crop (including
cranberries, taro, watercress, or rice), and any
other land used to produce or support the pro-
duction of an annual or perennial crop (includ-
ing forage or hay), aquaculture product, nurs-
ery product, or wetland crop or the production
of livestock.
‘‘(E) CONSERVED WETLANDS.—The term
‘conserved wetlands’ means wetlands that are
located in the National Park System, National
Wildlife Refuge System, National Wilderness
System, the Wild and Scenic River System, and
other similar Federal conservation systems,
combined with wetlands located in comparable
types of conservation systems established under
State and local authority within State and local
land use systems.
‘‘(F) ECONOMIC BASE LANDS.—The term
‘economic base lands’ means lands conveyed to,
selected by, or owned by Alaska Native entities
pursuant to the Alaska Native Claims Settle-
ment Act, Public Law 92–203 or the Alaska
Native Allotment Act of 1906 (34 Stat. 197),
and lands conveyed to, selected by, or owned by
the State of Alaska pursuant to the Alaska
Statehood Act, Public Law 85–508.
‘‘(G) FAIR
MARKET
VALUE.—The term
‘fair market value’ means the most probable
price at which property would change hands, in
a competitive and open market under all condi-
tions requisite to a fair sale, between a willing
buyer and a willing seller, neither being under
any compulsion to buy or sell and both having
reasonable knowledge of relevant facts, at the
time the agency action occurs.
‘‘(H) LAW OF A STATE.—The term ‘law of
a State’ includes the law of a political subdivi-
sion of a State.
‘‘(I) MITIGATION BANK.—The term ‘miti-
gation bank’ means a wetlands restoration, cre-
ation, enhancement, or preservation project un-
dertaken by one or more parties, including pri-
vate and public entities, expressly for the pur-
pose of providing mitigation compensation cred-
its to offset adverse impacts to wetlands or
other waters of the United States authorized by
the terms of permits allowing discharges of
dredged or fill material into such wetlands or
waters.
‘‘(J) PROPERTY.—The term ‘property’
means land and includes the right to use or re-
ceive water.
‘‘(K) SECRETARY.—The term ‘Secretary’
means the Secretary of the Army.
‘‘(L) STATE
WITH
SUBSTANTIAL
CON-
SERVED WETLANDS AREAS.—The term ‘State
with substantial conserved wetlands areas’
means any State which—
‘‘(i) contains at least 10 areas of wet-
lands for each acre of wetlands filled,
drained, or otherwise converted within such
State (based upon wetlands loss statistics
reported in the 1990 United States Fish
and Wildlife Service Wetlands Trends re-
port to Congress entitled ‘Wetlands Losses
in the United States 1780’s to 1980’s’); or
‘‘(ii) the Secretary of the Army deter-
mines has sufficient conserved wetlands
areas to provided adequate wetlands con-
servation in such State, based on the poli-
cies set forth in this Act.
‘‘(M) WETLANDS.—The term ‘wetlands’
means those lands that meet the criteria for de-
lineation of lands as wetlands set forth in sub-
section (g).’’.
SEC. 4. DEFINITIONS.
Section 502 of the Federal Water Pollution Control
Act (33 U.S.C. 1362) is further amended—
(1) in paragraph (6)—
(A) by striking ‘‘dredged spoil,’’;
(B) by striking ‘‘or (B)’’ and inserting
‘‘(B)’’; and
(C) by inserting before the period at the
end ‘‘; and (C) dredged or fill material’’; and
(2) 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 legally constituted man-made structures or natural
formations, such as levees constructed and maintained to
permit the utilization of such lands for commercial, indus-
trial, or residential purposes consistent with local land use
planning requirements.
‘‘(25) The term ‘wetlands functions’ means the roles
wetlands serve, including flood water storage, flood water
conveyance, ground water recharge, erosion control, wave
attenuation, water quality protection, scenic and aesthetic
use, food chain support, fisheries, wetlands plant habitat,
aquatic habitat, and habitat for wetland dependent wild-
life.
‘‘(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 practices
identified as such by the Secretary of Agriculture, in con-
sultation with the Cooperative Extension Service for each
State and the land grant university system and agricul-
tural colleges of the State, taking into account 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 any
agricultural land that was manipulated (by drainage or
other physical alteration to remove excess water from the
land) or used for the production of any annual or peren-
nial agricultural crop (including forage or hay),
aquacultural product, nursery product or wetlands crop,
or the production of livestock before December 23, 1985.
‘‘(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
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. 5. TECHNICAL AND CONFORMING AMENDMENTS.
(a) VIOLATION.—Section 301(a) of the Federal
Water Pollution Control Act (33 U.S.C. 1311(a)) is
amended—
(1) by striking ‘‘402, and 404’’ and inserting
‘‘and 402’’; and
(2) by adding at the end the following: ‘‘Except
as in compliance with this section and section 404,
the undertaking of any activity in wetlands or waters
of the United States shall be unlawful.’’.
(b) FEDERAL ENFORCEMENT.—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
an activity in wetlands or waters of the United
States for which a permit is required under section
404 shall not be subject to punishment under this
subsection but shall be subject to punishment 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 an activity in wetlands or waters of the
United States for which a permit is required under
section 404 shall not be subject to a civil penalty
under this subsection but shall be subject 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 Act 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
an activity in wetlands or waters of the United
States for which a permit is required under section
404 shall not be subject to assessment of a civil pen-
alty under this subsection but shall be subject to as-
sessment 
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. 6. EFFECTIVE DATE.
This Act, including the amendments made by this
Act, shall take effect on the 90th day following the date
of the enactment of this Act.
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