I
103D CONGRESS
1ST SESSION
H. R. 3465
To amend the Federal Water Pollution Control Act to improve the protection
of wetlands and thereby restore and maintain the physical, chemical,
and biological integrity of the Nation’s waters, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 8, 1993
Mr. STUDDS (for himself and Mr. DE LA GARZA) introduced the following bill;
which was referred jointly to the Committees on Merchant Marine and
Fisheries, Agriculture, and Public Works and Transportation
A BILL
To amend the Federal Water Pollution Control Act to im-
prove the protection of wetlands and thereby restore
and maintain the physical, chemical, and biological integ-
rity of the Nation’s waters, 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 ‘‘Wetlands Protection
and Management Act’’.
SEC. 2. REFERENCES.
Except as otherwise expressly provided, whenever in
this Act an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to a
section or other provision of the Federal Water Pollution
Control Act.
SEC. 3. POLICY AND FINDINGS.
(a) WETLAND POLICY.—Subsection (a) of section
101 (33 U.S.C. 1251) 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) it is the national policy to protect the
quantity and quality of the Nation’s remaining wet-
land base and restore wetlands that have been de-
graded.’’.
(b) FINDINGS.—Section 101 is further amended by
adding at the end the following new subsection:
‘‘(h) WETLANDS.—Congress finds the following:
‘‘(1) Wetlands perform a number of valuable
functions needed to restore and maintain the chemi-
cal, physical, and biological integrity of the Nation’s
waters.
‘‘(2) Wetlands serve important ecological and
natural resource functions, such as providing an es-
sential nesting and feeding habitat for waterfowl and
other wildlife (including many rare and endangered
species), providing fisheries habitat, enhancing water
quality, and providing natural flood control.
‘‘(3) Wetlands are highly sensitive to changes in
water regimes and are, therefore, susceptible to deg-
radation by fills, drainage, grading, water extrac-
tions, excavations, and other activities within their
watersheds which affect the quantity, quality, and
flow of surface and ground waters. Protection and
management of wetlands, therefore, should be inte-
grated with management of hydrologic systems.
‘‘(4) Wetland systems are difficult to evaluate,
map, plan, and restore. Efforts to protect and re-
store wetlands should be coordinated to make effi-
cient use of scarce Federal, State, and local re-
sources. States and local governments should be en-
couraged to undertake advanced planning for wet-
lands. This planning should help to integrate wet-
land protection and management with other water
resource management programs on a watershed
basis such as flood loss reduction, stormwater man-
agement, water supply, protection of fish and wild-
life habitat, and control of point and nonpoint
sources of pollution.
‘‘(5) The discharge of dredged or fill material
into wetlands can adversely affect interstate com-
merce because such discharges can destroy or dimin-
ish the utility of a wetland for purposes such as
flood control, water purification, recharging ground-
water, erosion control, and providing habitat and
food supply for fish and wildlife.
‘‘(6) Wetland functions have tremendous finan-
cial value to the United States economy both be-
cause of the natural ecological protection that wet-
lands afford and because of the importance of wet-
lands to economically important activities, such as
flood control, tourism, and commercial and rec-
reational fishing.’’.
SEC. 4. DELINEATION OF WETLANDS.
(a) GENERAL RULE.—
(1) LIMITATION ON REVISIONS TO CORPS MAN-
UAL.—After the date of the enactment of this Act,
the 1987 Corps of Engineers Wetlands Delineation
Manual may not be revised, except as provided by
this section, before the date on which the Committee
on Wetlands Characterization of the National Re-
search Council publishes its report pursuant to Pub-
lic Law 102–389.
(2) REQUIREMENTS FOR REVISION OF CORPS
MANUAL.—After the date of publication of the re-
port referred to in paragraph (1), the 1987 Corps of
Engineers Wetlands Delineation Manual may be re-
vised if—
(A) such revisions take into account the
findings and recommendations contained in
such report; and
(B) such revisions are made after field
testing and notice and opportunity for public
comment.
(3) REQUIRED USE OF CORPS MANUAL.—Until
the 1987 Corps of Engineers Wetlands Delineation
Manual is revised in accordance with this subsection
(and other than under subsection (c)), identification
and delineation of wetlands for purposes of section
404 of the Federal Water Pollution Control Act
shall be carried out through the use of such manual.
(b) DELINEATION OF WETLANDS ON AGRICULTURAL
LANDS.—
(1) MEMORANDUM OF AGREEMENT.—
(A) ISSUANCE.—Not later than 180 days
after the date of the enactment of this Act, and
after notice and opportunity for public com-
ment, the Chief of the Soil Conservation Serv-
ice, the Administrator of the Environmental
Protection Agency, the Secretary of the Army,
and the Secretary of the Interior shall jointly
issue a memorandum of agreement which sets
forth procedures for identifying and delineating
wetlands on agricultural lands for purposes of
section 404(a) of the Federal Water Pollution
Control Act.
(B) REQUIREMENTS.—The agreement to
be issued under subparagraph (A) shall ensure
that—
(i) agency and field staff of the Soil
Conservation Service are properly trained
by the Secretary of the Army;
(ii) 
standard 
wetland 
delineation
methods are utilized by the Soil Conserva-
tion Service; and
(iii) appropriate programmatic level
review is conducted by the Administrator
of the Environmental Protection Agency
and the Secretary of the Army.
(C) PROCEDURES.—Procedures set forth
in the agreement to be issued under subpara-
graph (A) shall provide for the use of the 1987
Corps of Engineers Wetlands Delineation Man-
ual in conjunction with the National Food Se-
curity Act Manual of the Soil Conservation
Service until such date as the 1987 Corps of
Engineers manual is revised in accordance with
this section.
(2) ROLE OF SOIL CONSERVATION SERVICE.—
After the date of issuance of the memorandum of
agreement under paragraph (1), and in accordance
with the procedures set forth in such memorandum,
the Chief of the Soil Conservation Service, in con-
sultation with the Director of the United States Fish
and Wildlife Service, shall carry out identification
and delineation of wetlands on agricultural lands for
purposes of section 404(a) of the Federal Water Pol-
lution Control Act.
(3) ADDITIONAL RESPONSIBILITIES.—The Ad-
ministrator of the Environmental Protection Agency,
in consultation with the Secretary of the Army, the
Chief of the Soil Conservation Service, and the Di-
rector of the United States Fish and Wildlife Serv-
ice, shall issue regulations to authorize the Chief of
the Soil Conservation Service to carry out, for the
purposes of section 404(a) of the Federal Water Pol-
lution Control Act, identification and delineation of
wetlands on non-agricultural lands which are contig-
uous to or contained within agricultural lands in
order to simplify and streamline the permitting proc-
ess.
(4) LIMITATION
ON
STATUTORY
CONSTRUC-
TION.—Nothing in this subsection shall be construed
to limit the authority of the Administrator of the
Environmental Protection Agency to prohibit the
specification of any defined area as a disposal site
pursuant to section 404(c) of the Federal Water
Pollution Control Act.
(5) AGRICULTURAL LANDS DEFINED.—For the
purposes of this subsection, the term ‘‘agricultural
lands’’ means cropland, pastureland, haylands,
rangelands, orchards, vineyards, production nurs-
eries, and any other land that is intensively used or
managed for agricultural purposes such that the
natural vegetation cannot be relied on for delineation
purposes.
(c) REGIONAL WETLAND VARIATIONS.—The Admin-
istrator of the Environmental Protection Agency, in co-
operation with the Secretary of the Army, the Chief of
the Soil Conservation Service, the Director of the United
States Fish and Wildlife Service, and the States, is au-
thorized to issue rules to make such revisions to the 1987
Corps of Engineers Wetlands Delineation Manual as may
be necessary to address regional variations in plants and
soils and technical procedures pertaining to wetland hy-
drology, soils, and vegetation. Notwithstanding paragraph
(1), such revisions may be made and instituted before the
Committee on Wetlands Characterization of the National
Research Council publishes its report pursuant to Public
Law 102–389. Such revisions shall not be considered to
be part of any other manual unless specifically incor-
porated into the manual.
SEC. 5. WETLANDS CONSERVATION, MANAGEMENT, AND
RESTORATION.
(a) FUNDING FOR STATE WETLANDS CONSERVATION
PLANS.—Paragraph (3) of section 104(b) (33 U.S.C.
1254(b)) is amended by inserting before the semicolon
‘‘and for the development and implementation of State
wetlands conservation plans under section 321’’.
(b) WETLANDS CONSERVATION, MANAGEMENT AND
RESTORATION.—Title III (33 U.S.C. 1311 et seq.) is
amended by adding at the end the following new section:
‘‘SEC. 321. STATE WETLANDS CONSERVATION PLANS.
‘‘(a) DEVELOPMENT AND IMPLEMENTATION ASSIST-
ANCE.—Subject to the requirements of this section, the
Administrator is authorized to make grants to States to
assist in the development and implementation of State
wetlands conservation plans.
‘‘(b) CONTENTS OF PLANS.—To qualify for assist-
ance under subsection (a), a State wetlands conservation
plan shall generally include—
‘‘(1) management strategies and policies for
achieving within the State the goal under section
101(a)(8);
‘‘(2) an inventory of wetlands resources in the
State;
‘‘(3) a description of the major causes of wet-
lands loss and degradation in the State, including an
estimate of historical wetlands losses;
‘‘(4) a description of State and local govern-
ment programs applying to wetlands resources in the
State;
‘‘(5) identification of sites in the State with
wetlands restoration potential;
‘‘(6) identification of riparian areas in the State
with restoration potential;
‘‘(7) a schedule for implementing the elements
of the plan;
‘‘(8) a mechanism for monitoring achievement
of the stated goals of the plan; and
‘‘(9) involvement of local public and private
agencies and organizations which have expertise in
wetlands conservation or land use planning or devel-
opment.’’.
SEC. 6. PERMITTING REQUIREMENTS.
Subsection (d) of section 404 (33 U.S.C. 1344) is
amended to read as follows:
‘‘(d) PERMITTING REQUIREMENTS.—
‘‘(1) NO NET LOSS OF WETLAND FUNCTIONS
AND VALUES.—In issuing each permit under this
section, the Secretary shall ensure, to the maximum
extent practicable, that there is no net loss of the
acreage, functions, and values of wetlands.
‘‘(2) MITIGATION REQUIREMENTS.—All condi-
tions contained in permits issued pursuant to this
section shall be enforceable. Conditions requiring the
mitigation of wetland losses shall be monitored in
order to ensure compliance and determine effective-
ness.
‘‘(3) DEADLINE FOR ISSUANCE OF PERMITS TO
ASSIST SMALL LANDOWNERS.—
‘‘(A) IN GENERAL.—On or before the 60th
day following the date on which the Secretary
publishes notice of a completed application
under paragraph (1) for a permit for a minor
discharge into wetlands, the Secretary shall
make a determination on whether to issue or
deny such permit and transmit to the applicant
written notice of such determination. Except as
provided by subparagraph (B), if the Secretary
does not transmit such written notice on or be-
fore such 60th day such application shall be
deemed approved and the Secretary shall trans-
mit to the applicant written notice of such ap-
proval.
‘‘(B) EXCEPTIONS.—The Secretary may
make a determination on whether to issue or
deny a permit for a minor discharge into wet-
lands after the 60th day referred to in subpara-
graph (A) only if on or before such 60th day—
‘‘(i) the Secretary provides to the ap-
plicant written notice that the application
is subject to further review because the
Secretary has determined based on avail-
able information that issuance of the per-
mit may pose a significant risk to the envi-
ronment;
‘‘(ii) the Secretary provides to the ap-
plicant, based upon a determination by the
Secretary or upon request of the Secretary
of the Interior, the Secretary of Commerce,
or the Administrator, written notice that
additional time is needed to process the ap-
plication in order to provide for compliance
with other Federal laws; or
‘‘(iii) the applicant transmits to the
Secretary a written request for additional
time.
‘‘(C) MINOR DISCHARGE INTO WETLANDS
DEFINED.—For the purposes of this paragraph,
the term ‘minor discharge into wetlands’ means
a discharge of dredged or fill material into wet-
lands which—
‘‘(i) does not affect more than 1 acre
of wetlands;
‘‘(ii) is performed by a private individ-
ual; and
‘‘(iii) is not part of a plan, proposal,
or project to affect additional wetlands.
‘‘(D) REGULATIONS.—Not later than 6
months after the date of the enactment of this
paragraph, and after notice and opportunity for
public comment, the Secretary shall issue regu-
lations to carry out this paragraph.
‘‘(4) PROCESSING FEES.—
‘‘(A) IN
GENERAL.—The Secretary shall
establish and collect fees for processing permit
applications under this section.
‘‘(B) 
AMOUNTS.—In 
establishing 
fees
under subparagraph (A), the Secretary shall
seek to collect a total of $10,000,000 per fiscal
year from such fees. No fee for an application
for an individual permit to conduct a non-com-
mercial activity shall exceed $20.00.
‘‘(C) SMALL LANDOWNERS ASSISTANCE AC-
COUNT.—There is established in the Treasury
of the United States an account to be known as
the ‘Small Landowners Assistance Account’.
The amounts from fees collected pursuant to
this paragraph shall be deposited into such ac-
count and shall be available to the Secretary
without further appropriation for providing
technical assistance to private landowners with
inadequate financial resources in complying
with the requirements of this section. Such
technical assistance may include identification
and delineation of wetlands, preparation of per-
mit applications, and guidance on methods to
avoid and mitigate against adverse impacts to
wetlands.’’.
Secretary determines that the waters in such
category are similar in nature and that dis-
charges into such waters will cause only mini-
mal adverse environmental effects when per-
formed separately and will have only a minimal
cumulative adverse effect on the environment.
‘‘(D) REQUIREMENTS AND STANDARDS.—
Any general permit issued under this subsection
shall—
‘‘(i) be based on guidelines established
pursuant to subsection (b)(1);
‘‘(ii) set forth requirements and
standards to minimize individual and cu-
mulative impacts resulting from activities
authorized by the general permit; and
‘‘(iii) include measures to enable the
Secretary to be apprised of and to monitor
activities conducted under the general per-
mit.
‘‘(2) PROGRAMMATIC
PERMITS.—In order to
avoid unnecessary duplication of Federal and State
requirements, a general permit may be issued under
this subsection for an existing State regulatory pro-
gram if the general permit—
‘‘(A) requires the State agency administer-
ing the regulatory program to have jurisdiction
over the activities and waters within the scope
of the general permit;
‘‘(B) provides adequate safeguards to en-
sure that the activities permitted under the reg-
ulatory program will have no more than a mini-
mal cumulative adverse effect on the environ-
ment and that the regulatory program will pro-
vide at least the same degree of protection for
the navigable waters as the protection provided
by this section;
‘‘(C) provides at least the same oppor-
tunity for public review, comment, and hearings
as provided by this section;
‘‘(D) includes provisions to provide an op-
portunity for the Secretary, the Administrator,
the Secretary of the Interior (acting through
the Director of the United States Fish and
Wildlife Service), and the Secretary of Com-
merce (acting through the Administrator of the
National Oceanic and Atmospheric Administra-
tion) to review permit applications submitted to
and decisions made by the State agency to en-
sure that the requirements of this subsection
are met and to ensure that individual permits
are required under subsection (a) for discharges
that may have more than a minimal individual
or cumulative impact on the environment; and
‘‘(E) is expressly made subject to all other
Federal environmental laws.
‘‘(3) TERM.—No general permit issued under
this subsection shall be for a period of more than 5
years after the date of its issuance and such general
permit shall be revoked or modified by the Secretary
if, after notice and opportunity for public hearing,
the Secretary determines that—
‘‘(A) the activities authorized by the gen-
eral permit have more than a minimal adverse
impact on the environment;
‘‘(B) such activities are more appropriately
authorized by individual permits; or
‘‘(C) a State government has failed to
monitor and control the individual and cumu-
lative adverse effects of activities conducted
under State general permits.
‘‘(4) 
NOTICE
FOR
ACTIVITIES
REQUIRING
PREDISCHARGE
NOTIFICATION.—Any activity for
which a general permit issued under this subsection
requires predischarge notification shall not be con-
sidered to be authorized by the general permit before
the Secretary provides notice and 30 days oppor-
tunity for comment to the Administrator, the Sec-
retary of the Interior, the Secretary of Commerce,
and State agencies responsible for water quality,
coastal zone management, and fish and wildlife re-
sources which may be affected by the activity, and
to the public.
‘‘(5) REVIEW.—The Secretary shall conduct a
review of each general permit issued pursuant to
this subsection for which a report issued under sub-
section (u) contains information indicating more
than a minimal adverse cumulative effect on the en-
vironment. Any such general permit shall, after no-
tice and opportunity for public hearing, be revoked
or modified by the Secretary as necessary to avoid
or minimize such cumulative adverse effects.
‘‘(6) 
STATE
REGULATORY
PROGRAM
DE-
FINED.—For the purposes of this subsection, the
term ‘State regulatory program’ shall include the
regulatory program of an Indian tribe.’’.
SEC. 8. EXEMPTIONS FROM PERMITTING REQUIREMENTS.
(a) EXEMPTION OF DISCHARGES.—
(1) NORMAL
FARMING, SILVICULTURE, AND
RANCHING ACTIVITIES.—Subparagraph (A) of sec-
tion 404(f)(1) (33 U.S.C. 1344(f)(1)) is amended to
read as follows:
‘‘(A) from normal farming, silviculture, and
ranching activities, such as haying, grazing, plowing,
seeding, cultivating, minor drainage, maintenance,
fence building and maintenance, water management
activities associated with cranberry farming, includ-
ing those which periodically change the hydrologic
regime of the navigable waters, harvesting for the
production of food, fiber, and forest products, or up-
land soils and water conservation practices;’’.
(2) MAINTENANCE
OF
WASTEWATER
RETEN-
TION
FACILITIES.—Subparagraph (C) of section
404(f)(1) is amended by inserting after ‘‘irrigation
ditches,’’ the following: ‘‘the maintenance, including
diking and berming, of wastewater retention facili-
ties that are used by concentrated animal feeding
operations,’’.
(b) EXEMPTION OF AREAS.—Subsection (f) of sec-
tion 404 is amended by adding at the end the following
new paragraphs:
‘‘(3) EXEMPTION OF AREAS FROM PERMITTING
REQUIREMENTS.—For the purposes of this section,
the following shall not be considered to be navigable
waters:
‘‘(A) Irrigation ditches excavated in non-
waters.
‘‘(B) Artificially irrigated areas which
would revert to non-waters if the irrigation
ceased.
‘‘(C) Artificial lakes or ponds which are
created by excavating or diking non-waters to
collect and retain water and which are used ex-
clusively for stock watering, irrigation, or rice
growing.
‘‘(D) Artificial reflecting or swimming
pools or other small ornamental bodies of water
created by excavating or diking non-waters to
retain water for primarily aesthetic reasons.
‘‘(E) Temporary, water-filled depressions
created in non-waters incidental to construction
activity.
‘‘(F) Pits excavated in non-waters for the
purpose of obtaining fill, sand, gravel, aggre-
gates, or minerals, unless and until the con-
struction or excavation operation is abandoned
and the resulting body of water meets the defi-
nition of navigable waters.
‘‘(G) Artificial stormwater detention areas
and artificial sewage treatment areas that are
not modifications of navigable waters.
‘‘(H) Prior converted cropland unless and
until such cropland is abandoned, as deter-
mined by the Chief of the Soil Conservation
Service pursuant to paragraph (4).
‘‘(I) Confined dredged material disposal
sites constructed in non-waters.
‘‘(4) ABANDONMENT
OF
PRIOR
CONVERTED
CROPLAND.—For the purposes of paragraph (3)(H),
abandonment of prior converted cropland means the
cessation of cropping, management, or maintenance
operations of agricultural commodities on such land.
Where the cessation of such cropping, management,
or maintenance operations has occurred, prior con-
verted cropland is considered to be abandoned unless
it is shown that there was no intent to abandon; pro-
vided, however, that at the end of 5 successive years
during which there was no crop production, such
land shall be determined to be abandoned if the land
meets the wetland criteria of section 12.31 of title
7, Code of Federal Regulations, as in effect on the
date of the enactment of this paragraph. Participa-
tion in a set-aside, diverted acres, or similar pro-
gram of the Department of Agriculture shall not be
considered to constitute abandonment.’’.
SEC. 9. REPORT ON EFFECTS OF PERMIT PROGRAM; NEEDS
ANALYSIS.
(a) REPORT ON EFFECTS OF PERMIT PROGRAM.—
Section 404 (33 U.S.C. 1344) is amended by adding at
the end the following new subsection:
‘‘(u) REPORT ON EFFECTS OF PERMIT PROGRAM.—
‘‘(1) IN GENERAL.—Not later than January 1,
1996, and once every 2 years thereafter, the Sec-
retary shall transmit to Congress and the Adminis-
trator a report on the effects on navigable waters of
activities conducted under permits (including general
permits) issued pursuant to this section.
‘‘(2) CONTENTS.—Each report transmitted
under this subsection shall include, at a minimum,
for the preceding 2-year period—
‘‘(A) an identification of the number of
permit applications that were granted, with-
drawn, or denied;
‘‘(B) estimates of the total acreage, func-
tions, and values of navigable waters adversely
affected by the issuance of individual permits
under subsection (a);
‘‘(C) estimates of the acreage, functions,
and values of navigable waters adversely af-
fected by each general permit issued under sub-
section (e), in order to determine whether the
individual and cumulative adverse environ-
mental effects of activities authorized by the
general permit are minimal;
‘‘(D) estimates of the acreage of navigable
waters preserved or restored through mitigation
of permitted activities, the rate of compliance
with such mitigation requirements, the monitor-
ing of such compliance, and estimates of suc-
cess and failure rates of mitigation projects;
‘‘(E) estimates of the acreage of navigable
waters restored through activities other than
compensatory mitigation; and
‘‘(F) a summary of information contained
in the national data base established under this
subsection.
‘‘(3) CONSULTATION.—Each report transmitted
under this subsection shall be prepared in consulta-
tion with the Administrator, the Secretary of the In-
terior, the Chief of the Soil Conservation Service,
State officials administering regulatory programs for
which general permits have been issued under sec-
tion 404(e), and State officials administering indi-
vidual and general permit programs approved under
section 404(h).
‘‘(4) NOTICE AND COMMENT.—Before transmit-
ting any report under this subsection, the Secretary
shall provide notice and opportunity for public com-
ment.
‘‘(5) NATIONAL
DATA
BASE.—The Secretary
shall establish a national data base containing infor-
mation on wetland location, functions, values, and
acreage, including information on mitigation and
restoration projects. Such information shall be made
available to the National Biological Survey of the
Department of the Interior and other interested per-
sons.’’.
(b) NEEDS ANALYSIS.—
(1) IN
GENERAL.—Not later than 180 days
after the date of the enactment of this Act, the
Comptroller General shall transmit to Congress an
analysis of the needs of the Department of the
Army, the Environmental Protection Agency, the
United States Fish and Wildlife Service, the Soil
Conservation Service, and the National Marine Fish-
eries Service for additional personnel, administrative
resources, and funding to improve implementation of
section 404 of the Federal Water Pollution Control
Act and to carry out the provisions of this Act.
(2) CONTENTS.—The analysis submitted under
this subsection shall—
(A) give particular emphasis to the needs
of the agencies identified in paragraph (1) with
respect to improving and expediting wetlands
delineation and permitting under section 404 of
the Federal Water Pollution Control Act, in-
cluding advance planning and early consulta-
tion;
(B) include specific recommendations re-
garding additional appropriations and staffing
necessary for such improvement and expedition;
and
(C) include specific recommendations con-
cerning allocation of additional appropriations
and staffing to the regional, district, and field
offices of the agencies identified in paragraph
(1) according to the workload of those offices.
SEC. 10. ADMINISTRATIVE APPEALS.
Section 404 (33 U.S.C. 1344(d)) is further amended
by adding at the end the following new subsection:
‘‘(v) ADMINISTRATIVE APPEALS.—
‘‘(1) PROCEDURES.—The Secretary shall, after
notice and opportunity for public comment, issue
rules to establish procedures to provide for adminis-
trative appeal of each of the following actions under
this section:
‘‘(A) A determination of regulatory juris-
diction over a particular parcel of property.
‘‘(B) The issuance or denial of a permit.
‘‘(C) The imposition of an administrative
penalty.
‘‘(2) PERSONS WHO MAY INITIATE APPEALS.—
Rules issued under paragraph (1) shall provide that
any person who is adversely affected by an action
described in paragraph (1) and, in the case of the
issuance or denial of a permit, any person who has
participated in the public comment process concern-
ing the permit may initiate an administrative appeal.
‘‘(3) HEARING
OF
APPEALS.—Rules issued
under paragraph (1) shall provide that any adminis-
trative appeal of an action described in paragraph
(1) will be heard and decided by an official other
than the official who took the action and will be con-
ducted at a location which is in the vicinity of the
parcel of property involved in the action.’’.
SEC. 11. WETLANDS MITIGATION.
Section 404 (33 U.S.C. 1344) is further amended by
adding at the end the following new subsection:
‘‘(w) 
WETLANDS
COMPENSATORY
MITIGATION
GUIDELINES.—
‘‘(1) ESTABLISHMENT
OF
GUIDELINES.—The
Administrator, in cooperation with the Secretary,
and after notice and opportunity for public com-
ment, shall establish technical guidelines for the res-
toration, enhancement, and creation of wetlands
under this section. Such guidelines shall comply
with, and follow the scientific guidelines of, guide-
lines established pursuant to section 404(b)(1).
‘‘(2) PERMIT REQUIREMENTS.—After the date
of issuance of guidelines under paragraph (1), condi-
tions contained in permits issued pursuant to this
section requiring mitigation of wetland losses shall
be established through the application of such guide-
lines.
‘‘(3) PERFORMANCE BOND.—Guidelines issued
under paragraph (1) shall provide that any permit
issued pursuant to this section which imposes a re-
quirement on the permitee to carry out a project to
mitigate for wetlands losses will also impose a re-
quirement that the permitee issue a performance
bond to ensure completion and protect against the
failure of such mitigation project unless—
‘‘(A) such mitigation project is for the res-
toration or enhancement of less than 5 acres of
wetlands and is not part of a larger mitigation
project; or
‘‘(B) such mitigation project is for the res-
toration or enhancement of any amount of
lands identified by the Soil Conservation Serv-
ice as prior converted cropland.
‘‘(4) PRIOR
CONVERTED
CROPLAND.—Guide-
lines issued pursuant to paragraph (1) shall estab-
lish a rebuttable presumption that restoration of
lands identified by the Soil Conservation Service as
prior converted cropland, if proposed as mitigation
for the loss of a wetland with similar characteristics
and within close proximity to the permitted activity,
will result in 1:1 replacement of similar acreage,
functions, and values lost as a result of the per-
mitted activity.
‘‘(5) MONITORING
AND
EVALUATION.—Guide-
lines issued pursuant to paragraph (1) shall estab-
lish standards and protocols for the monitoring and
evaluation of mitigation projects.
‘‘(6) PREFERENCE.—Guidelines issued pursu-
ant to paragraph (1) shall provide that in imposing
wetland mitigation requirements under permits is-
sued pursuant to this section preference will be
given, in order of priority, to—
‘‘(A) in-kind restoration carried out on the
site of the permitted activity;
‘‘(B) in-kind restoration carried out on the
same water body as, and in close proximity to,
the site of the permitted activity; and
‘‘(C) in-kind restoration carried out within
the same watershed as, and in close proximity
to, the site of the permitted activity;
unless the applicant can demonstrate that other
compensatory mitigation, including participation in
mitigation banks, would provide greater restoration
of the functions and values lost as a result of the
permitted activity.’’.
SEC. 12. MITIGATION BANKS.
Section 404 (33 U.S.C. 1344) is further amended by
adding at the end the following new subsection:
‘‘(x) MITIGATION BANKS.—
‘‘(1) ESTABLISHMENT.—
‘‘(A) IN
GENERAL.—Not later than 180
days after the date of the enactment of this
Act, the Secretary of the Interior (acting
through the Director of the United States Fish
and Wildlife Service), in consultation with the
Administrator, shall issue regulations, after no-
tice and opportunity for public review and com-
ment, for the establishment, operation, monitor-
ing, and enforcement of mitigation banks.
‘‘(B) REQUIREMENTS.—Regulations issued
under subparagraph (A) shall ensure that miti-
gation banks—
‘‘(i) comply with the guidelines estab-
lished pursuant to subsection (b)(1);
‘‘(ii) comply with the guidelines issued
under subsection (w);
‘‘(iii) to the extent practicable and en-
vironmentally desirable, provide for full re-
placement of the acreage, functions, and
values of lost wetlands and be at sites lo-
cated in close proximity to the impacted
wetlands;
‘‘(iv) employ consistent and scientif-
ically sound methods to determine debits
by evaluating wetlands functions and
project impacts at the sites of proposed
permits for discharges of dredged or fill
material pursuant to this section and to
determine credits based upon wetlands
acreage, functions, and values at the sites
of mitigation banks;
‘‘(v) award credits only for wetlands
which are successfully restored or en-
hanced in advance of awarding credit;
‘‘(vi) base fee charges for participa-
tion in the mitigation bank on the full
costs of replacing the acreage, functions,
and values of lost wetlands, including the
costs of land acquisition, wetlands estab-
lishment, management measures, long-term
maintenance, monitoring, and protection,
potential remediation of project failure,
and other relevant factors;
‘‘(vii) are established only in conjunc-
tion with a State restoration strategy that
is developed, after notice and opportunity
for public comment, on a statewide, re-
gional, or watershed basis;
‘‘(viii) be operated by an entity which
has the financial capability to meet the re-
quirements of this section, including the
deposit of a performance bond or other ap-
propriate demonstration of financial re-
sponsibility to support the long-term main-
tenance of the bank;
‘‘(ix) specify responsibilities for long-
term monitoring, maintenance, and protec-
tion; and
‘‘(x) provide opportunity for public re-
view of proposals for the establishment,
siting, and operation of mitigation banks
through 1 or more opportunities for public
notice and comment.
‘‘(2) MITIGATION
BANK
DEFINED.—For the
purposes of this subsection, the term ‘mitigation
bank’ means wetlands restoration or enhancement
projects undertaken by one or more parties, includ-
ing private and public entities, expressly for the pur-
pose of providing advance mitigation to fully offset
reasonably foreseeable wetlands losses from future
discharges of dredged or fill material into the navi-
gable waters, where adverse impacts to wetlands
cannot be avoided or minimized and compensatory
mitigation at the project site is not practicable or
mitigation off the project site would provide greater
replacement of the wetland functions and values lost
as a result of such discharges.
‘‘(3) NONAPPLICABILITY
OF
OTHER
LAWS.—
Notwithstanding any other provision of law, mitiga-
tion banks may be established for the purposes of
this section only in accordance with rules issued
under this subsection.’’.
SEC. 13. WETLANDS DELINEATION CERTIFICATION PRO-
GRAM AND PROGRAMS TO PROVIDE TECH-
NICAL ASSISTANCE.
Section 404 (33 U.S.C. 1344) is further amended by
adding at the end the following new subsection:
‘‘(y) WETLANDS DELINEATION CERTIFICATION PRO-
GRAM.—
‘‘(1) IN GENERAL.—The Secretary shall estab-
lish a program for training and certification of indi-
viduals as wetlands delineators. Such program shall
supplement, as necessary, any program established
pursuant to section 307(e) of the Water Resources
Development Act of 1990 (104 Stat. 4627).
‘‘(2) TRAINING.—As part of the program to be
established under paragraph (1), the Secretary
shall—
‘‘(A) develop courses for certification of
wetlands delineators;
‘‘(B) develop courses on wetlands delinea-
tion, utilization of wetlands in pollution control,
restoration, planning, evaluation, mitigation
banking, and other appropriate wetland tech-
nologies; and
‘‘(C) provide for the participation of State,
tribal, and local governments and individuals in
such courses.
‘‘(3) FEES.—The Secretary shall collect fees for
services provided under the program to offset the
costs of administering the program.’’.
SEC. 14. EDUCATION AND OUTREACH PROGRAM.
Section 404 (33 U.S.C. 1344) is further amended by
adding at the end the following new subsection:
‘‘(z) EDUCATION AND OUTREACH PROGRAM.—
‘‘(1) IN GENERAL.—The Secretary, the Admin-
istrator, and the Chief of the Soil Conservation Serv-
ice shall jointly establish a program and prepare ma-
terials—
‘‘(A) to improve existing outreach and edu-
cation activities of the Corps of Engineers, the
Department of Agriculture, and the Environ-
mental Protection Agency;
‘‘(B) to assist private individuals in com-
plying with the requirements of this section;
and