316
‘‘(1) FINAL REGULATIONS FOR ISSUANCE OF
PERMITS.—Not later than 1 year after the date of
the enactment of the Comprehensive Wetlands Con-
servation and Management Act of 1995, the Sec-
retary shall, after notice and opportunity for com-
ment, issue (in accordance with section 553 of title
5 of the United States Code and this section) final
regulations for implementation of this section. Such
regulations shall, in accordance with this section,
provide—
‘‘(A) standards and procedures for the
classification and delineation of wetlands and
procedures for administrative review of any
such classification or delineation;
‘‘(B) standards and procedures for the re-
view of State or local land management plans
and State programs for the regulation of wet-
lands;
‘‘(C) for the issuance of general permits,
including programmatic, State, regional, and
nationwide permits;
‘‘(D) standards and procedures for the in-
dividual permit applications under this section;
‘‘(E) for enforcement of this section;
317
‘‘(F) guidelines for the specification of
sites for the disposal of dredged or fill material
for navigational dredging;
‘‘(G) standards and procedures that, to the
maximum extent practicable and economically
feasible, require the creation of wetlands and
other environmentally beneficial uses of dredged
or fill material associated with navigational
dredging; and
‘‘(H) any other rules and regulations that
the Secretary deems necessary or appropriate to
implement the requirements of this section.
‘‘(2) NAVIGATIONAL DREDGING GUIDELINES.—
Guidelines developed under paragraph (1)(F) shall—
‘‘(A) be based upon criteria comparable to
the criteria applicable to the territorial seas, the
contiguous zone, and the oceans under section
403(c); except that, in any case in which guide-
lines based on such criteria alone would prohibit
the specification of a disposal site, the economic
impact on navigation and anchorage shall be
considered; and
‘‘(B) ensure that with respect to the issu-
ance of permits under this section—
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‘‘(i) the least costly, environmentally
acceptable disposal alternative will be se-
lected, taking into consideration cost, exist-
ing technology, short term and long term
dredging requirements, and logistics;
‘‘(ii) a disposal site will be specified
after comparing reasonably available up-
land, confined aquatic, beneficial use, and
open water disposal alternatives on the
basis of relative risk, environmental accept-
ability, economics, practicability, and cur-
rent technological feasibility;
‘‘(iii) a disposal site will be specified
after comparing the reasonably anticipated
environmental and economic benefits of
undertaking the underlying project to the
status quo; and
‘‘(iv) in comparing alternatives and
selection of a disposal site, management
measures may be considered and utilized to
limit, to the extent practicable, adverse en-
vironmental effects by employing suitable
chemical, biological, or physical techniques
to prevent unacceptable adverse impacts on
the environment.
319
‘‘(3) JUDICIAL
REVIEW
OF
FINAL
REGULA-
TIONS.—Any judicial review of final regulations is-
sued pursuant to this section and the Secretary’s de-
nial of any petition for the issuance, amendment, or
repeal of any regulation under this section shall be
in accordance with sections 701 through 706 of title
5 of the United States Code; except that a petition
for review of action of the Secretary in issuing any
regulation or requirement under this section or de-
nying any petition for the issuance, amendment, or
repeal of any regulation under this section may be
filed only in the United States Court of Appeals for
the District of Columbia, and such petition shall be
filed within 90 days from the date of such issuance
or denial or after such date if such petition for re-
view is based solely on grounds arising after such
ninetieth day. Action of the Secretary with respect
to which review could have been obtained under this
subsection shall not be subject to judicial review in
civil or criminal proceedings for enforcement.
‘‘(4) INTERIM
REGULATIONS.—The Secretary
shall, within 90 days after the date of the enactment
of the Comprehensive Wetlands Conservation and
Management Act of 1995, issue interim regulations
consistent with this section to take effect imme-
320
diately. Notice of the interim regulations shall be
published in the Federal Register, and such regula-
tions shall be binding until the issuance of final reg-
ulations pursuant to paragraph (1); except that the
Secretary shall provide adequate procedures for
waiver of any provisions of such interim regulations
to avoid special hardship, inequity, or unfair dis-
tribution of burdens or to advance the purposes
of this section.
‘‘(5) ADMINISTRATION BY SECRETARY.—Except
where otherwise expressly provided in this section,
the Secretary shall administer this section. The Sec-
retary or any other Federal officer or agency in
which any function under this section is vested or
delegated is authorized to perform any and all acts
(including appropriate enforcement activity), and to
prescribe, issue, amend, or rescind such rules or or-
ders as such officer or agency may find necessary or
appropriate with this subsection, subject to the re-
quirements of this subsection.
‘‘(k) ENFORCEMENT.—
‘‘(1) COMPLIANCE ORDER.—Whenever, on the
basis of reliable and substantial information and
after reasonable inquiry, the Secretary finds that
any person is or may be in violation of this section
321
or of any condition or limitation set forth in a per-
mit issued by the Secretary under this section, the
Secretary shall issue an order requiring such persons
to comply with this section or with such condition or
limitation.
‘‘(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. If the person re-
ceiving the notice disputes the Secretary’s deter-
mination, the person may file an appeal as provided
in subsection (i). Within 60 days of a decision which
denies an appeal, or within 150 days from the date
322
of notification of violation by the Secretary if no ap-
peal is filed, the Secretary shall prosecute a civil ac-
tion in accordance with paragraph (3) or rescind
such order and be estopped from any further en-
forcement 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-
323
mencing on expiration of the compliance period if no
appeal is filed or on the 30th day following the date
of the denial of an appeal of such violation. The
amount of the penalty imposed per day shall be in
proportion to the scale or scope of the project. In de-
termining the amount of a civil penalty, the court
shall consider the seriousness of the violation or vio-
lations, the economic benefit (if any) resulting from
the violation, any history of such violations, any
good-faith efforts to comply with the applicable re-
quirements, the economic impact of the penalty on
the violator, and such other matters as justice may
require.
‘‘(5) CRIMINAL
PENALTIES.—If any person
knowingly and willfully violates any condition or lim-
itation in a permit issued by the Secretary under
this section or knowingly and willfully violates an
order issued by the Secretary under paragraph (1)
and has been notified of the issuance of such order
under paragraph (2) and if such violation has re-
sulted 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 vio-
lation, or by imprisonment for not more than 3
years, or by both. If a conviction of a person is for
324
a violation committed after a first conviction of such
person under this paragraph, punishment shall be by
a fine of not more than $100,000 per day of viola-
tion, or imprisonment of not more than 6 years, or
by both. An action for imposition of a criminal pen-
alty under this paragraph may only be brought by
the Attorney General.
‘‘(l) STATE REGULATION.—
‘‘(1) SUBMISSION
OF
PROPOSED
STATE
PRO-
GRAM.—The Governor of any State desiring to ad-
minister its own individual or general permit pro-
gram for some or all of the activities covered by this
section within any geographical region within its ju-
risdiction may submit to the Secretary a description
of the program it proposes to establish and admin-
ister under State law or under an interstate com-
pact. In addition, such State shall submit a state-
ment 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 adequate authority to carry out the de-
scribed program.
‘‘(2) STATE AUTHORITIES REQUIRED FOR AP-
PROVAL.—Not later than 1 year after the date of
the receipt by the Secretary of a program and state-
325
ment submitted by any State under paragraph (1),
the Secretary shall determine whether such State
has the following authority with respect to the issu-
ance 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 mis-
representation, or failure to disclose
fully all relevant 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 en-
sure compliance with, all applicable require-
ments of section 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;
326
‘‘(C) to ensure that the public, and any
other State the waters of which may be af-
fected, receive notice of each application for a
permit and to provide an opportunity for public
hearing before a ruling on each such applica-
tion;
‘‘(D) to ensure that the Secretary receives
notice of each application for a permit and that,
prior to any action by the State, both the appli-
cant for the permit and the State have received
from the Secretary information with respect to
any advance classification applicable to wet-
lands that are the subject of such application;
‘‘(E) to ensure that any State (other than
the permitting State) whose waters may be af-
fected by the issuance of a permit may submit
written recommendation to the permitting State
with respect to any permit application and, if
any part of such written recommendations are
not accepted by the permitting State, that the
permitting State will notify such affected State
(and the Secretary) in writing of its failure to
so accept such recommendations together with
its reasons for doing so; and
327
‘‘(F) to abate violations of the permit or
the permit program, including civil and criminal
penalties and other ways and means of enforce-
ment.
‘‘(3) APPROVAL; RESUBMISSION.—If, with re-
spect to a State program submitted under paragraph
(1) of this section, the Secretary determines that the
State—
‘‘(A) has the authority set forth in para-
graph (2), the Secretary shall approve the pro-
gram and so notify such State and suspend the
issuance of permits under subsection (b) for ac-
tivities 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 Sec-
retary 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) EFFECT OF FAILURE OF SECRETARY TO
MAKE TIMELY DECISION.—If the Secretary fails to
make a determination with respect to any program
submitted by a State under this subsection within 1