328
year after the date of receipt of the program, the
program shall be treated as being approved pursuant
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) TRANSFER
OF
PENDING
APPLICATIONS
FOR PERMITS.—If the Secretary approves a State
permit program under paragraph (3)(A) or (4), the
Secretary shall transfer any applications for permits
pending before the Secretary for activities with re-
spect to which a permit may be issued pursuant to
the State program to the State for appropriate ac-
tion.
‘‘(6) GENERAL
PERMITS.—Upon notification
from a State with a permit program approved under
this subsection that such State intends to administer
and enforce the terms and conditions 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 suspend
the administration and enforcement of such general
permit with respect to such activities.
‘‘(7) REVIEW BY SECRETARY.—Every 5 years
after approval of a State administered program
329
under paragraph (3)(A), the Secretary shall review
the program to determine whether it is being admin-
istered in accordance with this section. If, on the
basis of such review, the Secretary finds that a State
is not administering its program in accordance with
this section or if the Secretary determines based on
clear and convincing evidence after a public hearing
that a State is not administering its program in ac-
cordance with this section and that substantial ad-
verse impacts to wetlands or waters of the United
States are imminent, the Secretary shall notify the
State and, if appropriate corrective action is not
taken within a reasonable time, not to exceed 90
days after the date of the receipt of such notifica-
tion, 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
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.
330
‘‘(8) TREATMENT OF EXISTING PROGRAMS.—
Any State which has received approval to administer
a program pursuant to this subsection before the
date of the enactment of the Comprehensive Wet-
lands Conservation and Management Act of 1995
shall not be required to reapply for approval and
shall be permitted to continue administering such
program in a manner consistent with the provisions
of this section. Upon receipt of a request from the
Governor of such State, the Secretary, with the con-
currence of the Governor, shall amend the 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.
331
‘‘(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-
332
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
333
‘‘(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
334
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) TRANSITION RULES.—
‘‘(A) PERMIT REQUIRED.—After the effec-
tive date of this section under section 806 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
335
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.—
‘‘(i) PETITION.—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 peti-
tion, after such effective date, the Sec-
retary for reevaluation of any decision
made before such effective date concerning
(I) a determination of regulatory jurisdic-
tion under this section, or (II) any condi-
tion imposed under the permit. Upon re-
ceipt of a petition for reevaluation, the
Secretary shall conduct the reevaluation in
336
accordance with the provisions of this sec-
tion.
‘‘(ii) MODIFICATION
OF
PERMIT.—If
the Secretary finds that the provisions of
this section apply with respect to activities
and lands which are subject to the permit,
the Secretary shall modify, revoke, sus-
pend, cancel, or continue the permit as ap-
propriate in accordance with the provisions
of this section; except that no compensa-
tion shall be awarded under this section to
any person as a result of reevaluation pur-
suant to this subparagraph and, if the per-
mit covers activities in type A wetlands,
the permit shall continue in effect without
modification.
‘‘(iii) PROCEDURE.—The reevaluation
shall be carried out in accordance with
time limits set forth in subsection (e)(5)
and shall be subject to administrative ap-
peal under subsection (i).
‘‘(D) PREVIOUSLY DENIED PERMITS.—No
permit shall be issued under this section, no ex-
emption shall be available under subsection (f),
and no exception shall be available under sub-
337
section (g)(1)(B), for any activity for which a
permit has previously been denied by the Sec-
retary on more than one occasion unless such
activity—
‘‘(i) has been approved by the affected
State, county, and local government within
the boundaries of which the activity is pro-
posed;
‘‘(ii) in the case of unincorporated
land, has been approved by all local gov-
ernments within 1 mile of the proposed ac-
tivity; and
‘‘(iii) would result in a net improve-
ment to water quality at the site of such
activity.
‘‘(10) CERTIFICATION.—Notwithstanding any
other provision of this Act, the Administrator shall
not, either directly or indirectly, impose any require-
ment or condition in a certification required under
section 401 that the Secretary determines is incon-
sistent with the provisions of this section.
‘‘(11) DEFINITIONS.—In this section the follow-
ing definitions apply:
‘‘(A) ACTIVITY IN WETLANDS OR WATERS
OF THE UNITED STATES.—The term ‘activity in
338
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-
339
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