244
graph (3) of this subsection, the classification of
the wetlands in which such activity is proposed
to occur. The applicant may also provide such
additional information regarding such proposed
activity as may be necessary or appropriate for
purposes of determining the classification of such
wetlands or whether and under what conditions
the proposed activity may be permitted to occur.
‘‘(2) DEADLINES FOR CLASSIFICATIONS.—
‘‘(A) GENERAL RULE.—Except as provided
in subparagraph (B) of this paragraph, within
90 days following the receipt of an application
under paragraph (1), the Secretary shall provide
notice to the applicant of the classification of the
wetlands that are the subject of such application
and shall state in writing the basis for such clas-
sification. The classification of the wetlands that
are the subject of the application shall be deter-
mined by the Secretary in accordance with the
requirements for classification of wetlands under
paragraph (3) and subsection (i).
‘‘(B) RULE
FOR
ADVANCE
CLASSIFICA-
TIONS.—In the case of an application proposing
activities located in wetlands that are the subject
of an advance classification under subsection (h),
245
the Secretary shall provide notice to the appli-
cant of such classification within thirty days fol-
lowing the receipt of such application, and shall
provide an opportunity for review of such classi-
fication under paragraph (5) and subsection (i).
‘‘(3) CLASSIFICATION
SYSTEM.—Upon applica-
tion under this subsection, the Secretary shall—
‘‘(A) classify as type A wetlands those wet-
lands that are of critical significance to the long-
term conservation of the aquatic environment of
which such wetlands are a part and which meet
the following requirements:
‘‘(i) such wetlands serve critical wet-
lands functions, including the provision of
critical habitat for a concentration of
avian, aquatic, or wetland dependent wild-
life;
‘‘(ii) such wetlands consist of or may
be a portion of ten or more contiguous acres
and have an inlet or outlet for relief of
water flow; except that this requirement
shall not operate to preclude the classifica-
tion as type A wetlands lands containing
prairie pothole features, playa lakes, or ver-
nal pools if such lands otherwise meet the
246
requirements for type A classification under
this paragraph;
‘‘(iii) there exists a scarcity within the
watershed or aquatic environment of identi-
fied functions served by such wetlands such
that the use of such wetlands for an activity
in wetlands or waters of the United States
would seriously jeopardize the availability
of these identified wetlands functions; and
‘‘(iv) there is unlikely to be an over-
riding public interest in the use of such wet-
lands for purposes other than conservation;
‘‘(B) classify as type B wetlands those wet-
lands that provide habitat for a significant pop-
ulation of wetland dependent wildlife or provide
other significant wetlands functions, including
significant enhancement or protection of water
quality or significant natural flood control; and
‘‘(C) classify as type C wetlands all wet-
lands that—
‘‘(i) serve limited wetlands functions;
‘‘(ii) serve marginal wetlands functions
but which exist in such abundance that reg-
ulation of activities in such wetlands is not
247
necessary for conserving important wetlands
functions;
‘‘(iii) are prior converted cropland;
‘‘(iv) are fastlands; or
‘‘(v) are wetlands within industrial,
commercial, or residential complexes or
other intensely developed areas that do not
serve significant wetlands functions as a re-
sult of such location.
‘‘(4) REQUEST FOR DETERMINATION OF JURIS-
DICTION.—
‘‘(A) IN GENERAL.—A person who holds an
ownership interest in property, or who has writ-
ten authorization from such a person, may sub-
mit a request to the Secretary identifying the
property and requesting the Secretary to make
one or more of the following determinations with
respect to the property:
‘‘(i) Whether the property contains wa-
ters of the United States.
‘‘(ii) If the determination under clause
(i) is made, whether any portion of the wa-
ters meets the requirements for delineation
as wetland under subsection (g).
248
‘‘(iii) If the determination under
clause (ii) is made, the classification of each
wetland on the property under this sub-
section.
‘‘(B) PROVISION
OF
INFORMATION.—The
person shall provide such additional information
as may be necessary to make each determination
requested under subparagraph (A).
‘‘(C) DETERMINATION AND NOTIFICATION BY
THE SECRETARY.—Not later than 90 days after
receipt of a request under subparagraph (A), the
Secretary shall—
‘‘(i) notify the person submitting the
request of each determination made by the
Secretary pursuant to the request; and
‘‘(ii) provide written documentation of
each determination and the basis for each
determination.
‘‘(D) AUTHORITY TO SEEK IMMEDIATE RE-
VIEW.—Any person authorized under this para-
graph to request a jurisdictional determination
may seek immediate judicial review of any such
jurisdictional determination or may proceed
under subsection (i).
251
such servitude is interpreted to apply to wet-
lands.
‘‘(5) PROCEDURE.—
‘‘(A) REQUEST OF OWNER.—An owner seek-
ing compensation under this section shall make
a written request for compensation to the agency
whose agency action resulted in the limitation.
No such request may be made later than 180
days after the owner receives actual notice of
that agency action.
‘‘(B) NEGOTIATIONS.—The agency may bar-
gain with that owner to establish the amount of
the compensation. If the agency and the owner
agree to such an amount, the agency shall
promptly pay the owner the amount agreed
upon.
‘‘(C) CHOICE OF REMEDIES.—If, not later
than 180 days after the written request is made,
the parties do not come to an agreement as to the
right to and amount of compensation, the owner
may choose to take the matter to binding arbi-
tration or seek compensation in a civil action.
‘‘(D) ARBITRATION.—The procedures that
govern the arbitration shall, as nearly as prac-
ticable, be those established under title 9, United
254
shall be construed to limit any right to com-
pensation that exists under the Constitution,
laws of the United States, or laws of any State.
‘‘(B) EFFECT
OF
PAYMENT.—Payment of
compensation under this section (other than
when the property is bought by the Federal Gov-
ernment at the option of the owner) shall not
confer any rights on the Federal Government
other than the limitation on use resulting from
the agency action.
‘‘(9) TREATMENT OF CERTAIN ACTIONS.—A dim-
inution in value under this subsection shall apply to
surface interests in lands only or water rights allo-
cated under State law; except that—
‘‘(A) if the Secretary determines that the ex-
ploration for or development of oil and gas or
mineral interests is not compatible with limita-
tions on use related to the surface interests in
lands that have been classified as type A or type
B wetlands located above such oil and gas or
mineral interests (or located adjacent to such oil
and gas or mineral interests where such adjacent
lands are necessary to provide reasonable access
to such interests), the Secretary shall notify the
owner of such interests that the owner may elect
255
to receive compensation for such interests under
paragraph (1); and
‘‘(B) the failure to provide reasonable access
to oil and gas or mineral interests located be-
neath or adjacent to surface interests of type A
or type B wetlands shall be deemed a diminution
in value of such oil and gas or mineral interests.
‘‘(10) JURISDICTION.—The arbitrator or court
under paragraph (5)(D) or (5)(E) of this subsection,
as the case may be, shall have jurisdiction, in the case
of oil and gas or mineral interests, to require the
United States to provide reasonable access in, across,
or through lands that may be the subject of a diminu-
tion in value under this subsection solely for the pur-
pose of undertaking activity necessary to determine
the value of the interests diminished and to provide
other equitable remedies deemed appropriate.
‘‘(11) LIMITATIONS
ON
STATUTORY
CONSTRUC-
TION.—No action under this subsection shall be con-
strued—
‘‘(A) to impose any obligation on any State
or political subdivision thereof to compensate
any person, even in the event that the Secretary
has approved a land management plan under
256
subsection (f)(2) or an individual and general
permit program under subsection (l); or
‘‘(B) to alter or supersede requirements gov-
erning use of water applicable under State law.
‘‘(e) REQUIREMENTS APPLICABLE TO PERMITTED AC-
TIVITY.—
‘‘(1) ISSUANCE OR DENIAL OF PERMITS.—Fol-
lowing the determination of wetlands classification
pursuant to subsection (c) if applicable, and after
compliance with the requirements of subsection (d) if
applicable, the Secretary may issue or deny permits
for authorization to undertake activities in wetlands
or waters of the United States in accordance with the
requirements of this subsection.
‘‘(2) TYPE A WETLANDS.—
‘‘(A) SEQUENTIAL
ANALYSIS.—The Sec-
retary shall determine whether to issue a permit
for an activity in waters of the United States
classified under subsection (c) as type A wet-
lands based on a sequential analysis that seeks,
to the maximum extent practicable, to—
‘‘(i) avoid adverse impact on the wet-
lands;
257
‘‘(ii) minimize such adverse impact on
wetlands functions that cannot be avoided;
and
‘‘(iii) compensate for any loss of wet-
land functions that cannot be avoided or
minimized.
‘‘(B) 
MITIGATION
TERMS
AND
CONDI-
TIONS.—Any permit issued authorizing activities
in type A wetlands may contain such terms and
conditions concerning mitigation (including
those applicable under paragraph (3) for type B
wetlands) that the Secretary deems appropriate
to prevent the unacceptable loss or degradation of
type A wetlands. The Secretary shall deem the
mitigation requirement of this section to be met
with respect to activities in type A wetlands if
such activities (i) are carried out in accordance
with a State-approved reclamation plan or per-
mit which requires recontouring and revegetation
following mining, and (ii) will result in overall
environmental benefits being achieved.
‘‘(3) TYPE B WETLANDS.—
‘‘(A) GENERAL RULE.—The Secretary may
issue a permit authorizing activities in type B
wetlands if the Secretary finds that issuance of
258
the permit is in the public interest, balancing the
reasonably foreseeable benefits and detriments re-
sulting from the issuance of the permit. The per-
mit shall be subject to such terms and conditions
as the Secretary finds are necessary to carry out
the purposes of the Comprehensive Wetlands Con-
servation and Management Act of 1995. In deter-
mining whether or not to issue the permit and
whether or not specific terms and conditions are
necessary to avoid a significant loss of wetlands
functions, the Secretary shall consider the follow-
ing factors:
‘‘(i) The quality and quantity of sig-
nificant functions served by the areas to be
affected.
‘‘(ii) The opportunities to reduce im-
pacts through cost effective design to mini-
mize use of wetlands areas.
‘‘(iii) The costs of mitigation require-
ments and the social, recreational, and eco-
nomic benefits associated with the proposed
activity, including local, regional, or na-
tional needs for improved or expanded in-
frastructure, minerals, energy, food produc-
tion, or recreation.
259
‘‘(iv) The ability of the permittee to
mitigate wetlands loss or degradation as
measured by wetlands functions.
‘‘(v) The environmental benefit, meas-
ured by wetlands functions, that may occur
through mitigation efforts, including restor-
ing, preserving, enhancing, or creating wet-
lands values and functions.
‘‘(vi) The marginal impact of the pro-
posed activity on the watershed of which
such wetlands are a part.
‘‘(vii) Whether the impact on the wet-
lands is temporary or permanent.
‘‘(B) DETERMINATION
OF
PROJECT
PUR-
POSE.—In considering an application for activi-
ties on type B wetlands, there shall be a rebutta-
ble presumption that the project purpose as de-
fined by the applicant shall be binding upon the
Secretary. The definition of project purpose for
projects sponsored by public agencies shall be
binding upon the Secretary, subject to the au-
thority of the Secretary to impose mitigation re-
quirements to minimize impacts on wetlands
values and functions, including cost effective re-
design of projects on the proposed project site.
260
‘‘(C) MITIGATION REQUIREMENTS.—Except
as otherwise provided in this section, require-
ments for mitigation shall be imposed when the
Secretary finds that activities undertaken under
this section will result in the loss or degradation
of type B wetlands functions where such loss or
degradation is not a temporary or incidental
impact. When determining mitigation require-
ments in any specific case, the Secretary shall
take into consideration the type of wetlands af-
fected, the character of the impact on wetland
functions, whether any adverse effects on wet-
lands are of a permanent or temporary nature,
and the cost effectiveness of such mitigation and
shall seek to minimize the costs of such mitiga-
tion. Such mitigation requirement shall be cal-
culated based upon the specific impact of a par-
ticular project. The Secretary shall deem the
mitigation requirement of this section to be met
with respect to activities in type B wetlands if
such activities (i) are carried out in accordance
with a State-approved reclamation plan or per-
mit which requires recontouring and revegetation
following mining, and (ii) will result in overall
environmental benefits being achieved.
262
imposed that have a reasonable likelihood of
being successful;
‘‘(v) compensation through contribu-
tion to a mitigation bank program estab-
lished pursuant to paragraph (4);
‘‘(vi) offsite compensatory mitigation if
such mitigation contributes to the restora-
tion, enhancement or creation of significant
wetlands functions on a watershed basis
and is balanced with the effects that the
proposed activity will have on the specific
site; except that offsite compensatory miti-
gation, if any, shall be required only within
the State within which the proposed activ-
ity is to occur, and shall, to the extent prac-
ticable, be within the watershed within
which the proposed activity is to occur, un-
less otherwise consistent with a State wet-
lands management plan;
‘‘(vii) contribution of in-kind value ac-
ceptable to the Secretary and otherwise au-
thorized by law;
‘‘(viii) in areas subject to wetlands
loss, the construction of coastal protection
and enhancement projects;
263
‘‘(ix) contribution of resources of more
than one permittee toward a single mitiga-
tion project; and
‘‘(x) other mitigation measures, includ-
ing contributions of other than in-kind
value referred to in clause (vii), determined
by the Secretary to be appropriate in the
public interest and consistent with the re-
quirements and purposes of this Act.
‘‘(E) LIMITATIONS ON REQUIRING MITIGA-
TION.—Notwithstanding the provisions of sub-
paragraph (C), the Secretary may determine not
to impose requirements for compensatory mitiga-
tion if the Secretary finds that—
‘‘(i) the adverse impacts of a permitted
activity are limited;
‘‘(ii) the failure to impose compen-
satory mitigation requirements is compat-
ible with maintaining wetlands functions;
‘‘(iii) no practicable and reasonable
means of mitigation are available;
‘‘(iv) there is an abundance of similar
significant wetlands functions and values in
or near the area in which the proposed ac-
tivity is to occur that will continue to serve
264
the functions lost or degraded as a result of
such activity, taking into account the im-
pacts of such proposed activity and the cu-
mulative impacts of similar activity in the
area;
‘‘(v) the temporary character of the im-
pacts and the use of minimization tech-
niques make compensatory mitigation un-
necessary to protect significant wetlands
values; or
‘‘(vi) a waiver from requirements for
compensatory mitigation is necessary to
prevent special hardship.
‘‘(4) MITIGATION BANKS.—
‘‘(A) ESTABLISHMENT.—Not later than 6
months after the date of the enactment of this
subparagraph, after providing notice and oppor-
tunity for public review and comment, the Sec-
retary shall issue regulations for the establish-
ment, use, maintenance, and oversight of mitiga-
tion banks. The regulations shall be developed in
consultation with the heads of other appropriate
Federal agencies.
265
‘‘(B) PROVISIONS
AND
REQUIREMENTS.—
The regulations issued pursuant to subparagraph
(A) shall ensure that each mitigation bank—
‘‘(i) provides for the chemical, phys-
ical, and biological functions of wetlands or
waters of the United States which are lost
as a result of authorized adverse impacts to
wetlands or other waters of the United
States;
‘‘(ii) to the extent practicable and envi-
ronmentally desirable, provides in-kind re-
placement of lost wetlands functions and be
located in, or in proximity to, the same wa-
tershed or designated geographic area as the
affected wetlands or waters of the United
States;
‘‘(iii) be operated by a public or pri-
vate entity which has the financial capabil-
ity to meet the requirements of this para-
graph, including the deposit of a perform-
ance bond or other appropriate demonstra-
tion of financial responsibility to support
the long-term maintenance of the bank, ful-
fill responsibilities for long-term monitor-
ing, maintenance, and protection, and pro-
266
vide for the long-term security of ownership
interests of wetlands and uplands on which
projects are conducted to protect the wet-
lands functions associated with the mitiga-
tion bank;
‘‘(iv) employ consistent and scientif-
ically sound methods to determine debits by
evaluating wetlands functions, project im-
pacts, and duration of the impact at the
sites of proposed permits for authorized ac-
tivities pursuant to this section and to de-
termine credits based on wetlands functions
at the site of the mitigation bank;
‘‘(v) provide for the transfer of credits
for mitigation that has been performed and
for mitigation that shall be performed with-
in a designated time in the future, provided
that financial bonds shall be posted in suffi-
cient amount to ensure that the mitigation
will be performed in the case of default; and
‘‘(vi) provide opportunity for public
notice of and comment on proposals for the
mitigation banks; except that any process
utilized by a mitigation bank to obtain a
permit authorizing operations under this
267
section before the date of the enactment of
the Comprehensive Wetlands Conservation
and Management Act of 1995 satisfies the
requirement for such public notice and com-
ment.
‘‘(5) PROCEDURES AND DEADLINES FOR FINAL
ACTION.—
‘‘(A) OPPORTUNITY
FOR
PUBLIC
COM-
MENT.—Not later than 15 days after receipt of
a complete application for a permit under this
section, together with information necessary to
consider such application, the Secretary shall
publish notice that the application has been re-
ceived and shall provide opportunity for public
comment and, to the extent appropriate, oppor-
tunity for a public hearing on the issuance of the
permit.
‘‘(B) GENERAL PROCEDURES.—In the case
of any application for authorization to under-
take activities in wetlands or waters of the Unit-
ed States that are not eligible for treatment on
an expedited basis pursuant to paragraph (8),
final action by the Secretary shall occur within
90 days following the date such application is
filed, unless—
268
‘‘(i) the Secretary and the applicant
agree that such final action shall occur
within a longer period of time;
‘‘(ii) the Secretary determines that an
additional, specified period of time is nec-
essary to permit the Secretary to comply
with other applicable Federal law; except
that if the Secretary is required under the
National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.) to prepare an envi-
ronmental impact statement, with respect to
the application, the final action shall occur
not later than 45 days following the date
such statement is filed; or
‘‘(iii) the Secretary, within 15 days
from the date such application is received,
notifies the applicant that such application
does not contain all information necessary
to allow the Secretary to consider such ap-
plication and identifies any necessary addi-
tional information, in which case, the pro-
visions of subparagraph (C) shall apply.
‘‘(C) SPECIAL RULE WHEN ADDITIONAL IN-
FORMATION IS REQUIRED.—Upon the receipt of
a request for additional information under sub-
269
paragraph (B)(iii), the applicant shall supply
such additional information and shall advise the
Secretary that the application contains all re-
quested information and is therefore complete.
The Secretary may—
‘‘(i) within 30 days of the receipt of
notice of the applicant that the application
is complete, determine that the application
does not contain all requested additional in-
formation and, on that basis, deny the ap-
plication without prejudice to resubmission;
or
‘‘(ii) within 90 days from the date that
the applicant provides notification to the
Secretary that the application is complete,
review the application and take final ac-
tion.
‘‘(D) EFFECT
OF
NOT
MEETING
DEAD-
LINE.—If the Secretary fails to take final action
on an application under this paragraph within
90 days from the date that the applicant pro-
vides notification to the Secretary that such ap-
plication is complete, a permit shall be presumed
to be granted authorizing the activities proposed
in such application under such terms and condi-
270
tions as are stated in such completed applica-
tion.
‘‘(6) TYPE C WETLANDS.—Activities in wetlands
that have been classified as type C wetlands by the
Secretary may be undertaken without authorization
required under subsection (a) of this section.
‘‘(7) STATES
WITH
SUBSTANTIAL
CONSERVED
WETLANDS.—
‘‘(A) IN GENERAL.—With respect to type A
and type B wetlands in States with substantial
conserved wetlands areas, at the option of the
permit applicant, the Secretary shall issue per-
mits authorizing activities in such wetlands pur-
suant to this paragraph. Final action on issu-
ance of such permits shall be in accordance with
the procedures and deadlines of paragraph (5).
The Secretary may include conditions or require-
ments for minimization of adverse impacts to
wetlands functions when minimization is eco-
nomically practicable. No permit to which this
paragraph applies shall include conditions, re-
quirements, or standards for mitigation to com-
pensate for adverse impacts to wetlands or wa-
ters of the United States or conditions, require-
271
ments, or standards for avoidance of adverse im-
pacts to wetlands or waters of the United States.
‘‘(B) ECONOMIC BASE LANDS.—Upon appli-
cation by the owner of economic base lands in a
State with substantial conserved wetlands areas,
the Secretary shall issue individual and general
permits to owners of such lands for activities in
wetlands or waters of the United States. The Sec-
retary shall reduce the requirements of subpara-
graph (A)—
‘‘(i) to allow economic base lands to be
beneficially used to create and sustain eco-
nomic activity; and
‘‘(ii) in the case of lands owned by
Alaska Native entities, to reflect the social
and economic needs of Alaska Natives to
utilize economic base lands.
The Secretary shall consult with and provide as-
sistance to the Alaska Natives (including Alaska
Native Corporations) in promulgation and ad-
ministration of policies and regulations under
this section.
‘‘(8) GENERAL PERMITS.—
‘‘(A) GENERAL AUTHORITY.—The Secretary
may issue, by rule in accordance with subsection
272
(j), general permits on a programmatic, State,
regional, or nationwide basis for any category
of activities involving an activity in wetlands or
waters of the United States if the Secretary de-
termines that such activities are similar in na-
ture and that such activities, when performed
separately and cumulatively, will not result in
the significant loss of ecologically significant
wetlands values and functions.
‘‘(B) PROCEDURES.—Permits issued under
this paragraph shall include procedures for expe-
dited review of eligibility for such permits (if
such review is required) and may include re-
quirements for reporting and mitigation. To the
extent that a proposed activity requires a deter-
mination by the Secretary as to the eligibility to
qualify for a general permit under this sub-
section, such determination shall be made within
30 days of the date of submission of the applica-
tion for such qualification, or the application
shall be treated as being approved.
‘‘(C) 
COMPENSATORY
MITIGATION.—Re-
quirements for compensatory mitigation for gen-
eral permits may be imposed where necessary to
offset the significant loss or degradation of sig-
273
nificant wetlands functions where such loss or
degradation is not a temporary or incidental
impact. Such compensatory mitigation shall be
calculated based upon the specific impact of a
particular project.
‘‘(D) GRANDFATHER OF EXISTING GENERAL
PERMITS.—General permits in effect on day be-
fore the date of the enactment of the Comprehen-
sive Wetlands Conservation and Management
Act of 1995 shall remain in effect until otherwise
modified by the Secretary.
‘‘(E) STATES
WITH
SUBSTANTIAL
CON-
SERVED LANDS.—Upon application by a State
or local authority in a State with substantial
conserved wetlands areas, the Secretary shall
issue a general permit applicable to such author-
ity for activities in wetlands or waters of the
United States. No permit issued pursuant to this
subparagraph shall include conditions, require-
ments, or standards for mitigation to compensate
for adverse impacts to wetlands or waters of the
United States or shall include conditions, re-
quirements, or standards for avoidance of ad-
verse impacts of wetlands or waters of the United
States.
274
‘‘(9) OTHER WATERS OF THE UNITED STATES.—
The Secretary may issue a permit authorizing activi-
ties in waters of the United States (other than those
classified as type A, B, or C wetlands under this sec-
tion) if the Secretary finds that issuance of the permit
is in the public interest, balancing the reasonably
foreseeable benefits and detriments resulting from the
issuance of the permit. The permit shall be subject to
such terms and conditions as the Secretary finds are
necessary to carry out the purposes of the Comprehen-
sive Wetlands Conservation and Management Act of
1995. In determining whether or not to issue the per-
mit and whether or not specific terms and conditions
are necessary to carry out such purposes, the Sec-
retary shall consider the factors set forth in para-
graph (3)(A) as they apply to nonwetlands areas and
such other provisions of paragraph (3) as the Sec-
retary determines are appropriate to apply to
nonwetlands areas.
‘‘(f) ACTIVITIES NOT REQUIRING PERMIT.—
‘‘(1) IN GENERAL.—Activities undertaken in any
wetlands or waters of the United States are exempt
from the requirements of this section and are not pro-
hibited by or otherwise subject to regulation under
this section or section 301 or 402 of this Act (except
275
effluent standards or prohibitions under section 307
of this Act) if such activities—
‘‘(A) 
result 
from 
normal 
farming,
silviculture, aquaculture, and ranching activities
and practices, including but not limited to plow-
ing, seeding, cultivating, haying, grazing, nor-
mal maintenance activities, minor drainage,
burning of vegetation in connection with such
activities, harvesting for the production of food,
fiber, and forest products, or upland soil and
water conservation practices;
‘‘(B) are for the purpose of maintenance,
including emergency reconstruction of recently
damaged parts, of currently serviceable struc-
tures such as dikes, dams, levees, flood control
channels or other engineered flood control facili-
ties, water control structures, water supply res-
ervoirs (where such maintenance involves peri-
odic water level drawdowns) which provide water
predominantly to public drinking water systems,
groins, riprap, breakwaters, utility distribution
and transmission lines, causeways, and bridge
abutments or approaches, and transportation
structures;
276
‘‘(C) are for the purpose of construction or
maintenance of farm, stock or aquaculture
ponds, wastewater retention facilities (including
dikes and berms) that are used by concentrated
animal feeding operations, or irrigation canals
and ditches or the maintenance of drainage
ditches;
‘‘(D) are for the purpose of construction of
temporary sedimentation basins on a construc-
tion site, or the construction of any upland
dredged material disposal area, which does not
include placement of fill material into the navi-
gable waters;
‘‘(E) are for the purpose of construction or
maintenance of farm roads or forest roads, rail-
road lines of up to 10 miles in length, or tem-
porary roads for moving mining equipment, ac-
cess roads for utility distribution and trans-
mission lines if such roads or railroad lines are
constructed and maintained, in accordance with
best management practices, to assure that flow
and circulation patterns and chemical and bio-
logical characteristics of the waters are not im-
paired, that the reach of the waters is not re-
277
duced, and that any adverse effect on the aquatic
environment will be otherwise minimized;
‘‘(F) are undertaken on farmed wetlands,
except that any change in use of such land for
the purpose of undertaking activities that are not
exempt from regulation under this subsection
shall be subject to the requirements of this section
to the extent that such farmed wetlands are ‘wet-
lands’ under this section;
‘‘(G) result from any activity with respect
to which a State has an approved program
under section 208(b)(4) of this Act which meets
the requirements of subparagraphs (B) and (C)
of such section;
‘‘(H) are consistent with a State or local
land management plan submitted to the Sec-
retary and approved pursuant to paragraph (2);
‘‘(I) are undertaken in connection with a
marsh management and conservation program
in a coastal parish in the State of Louisiana
where such program has been approved by the
Governor of such State or the designee of the
Governor;
‘‘(J) are undertaken on lands or involve ac-
tivities within a State’s coastal zone which are
278
excluded from regulation under a State coastal
zone management program approved under the
Coastal Zone Management Act of 1972 (16
U.S.C. 1451, et seq.);
‘‘(K) are undertaken in incidentally created
wetlands, unless such incidentally created wet-
lands have exhibited wetlands functions and val-
ues for more than 5 years in which case activi-
ties undertaken in such wetlands shall be subject
to the requirements of this section;
‘‘(L) are for the purpose of preserving and
enhancing aviation safety or are undertaken in
order to prevent an airport hazard;
‘‘(M) result from aggregate or clay mining
activities in wetlands conducted pursuant to a
State or Federal permit that requires the rec-
lamation of such affected wetlands if such rec-
lamation will be completed within 5 years of the
commencement of activities at the site and, upon
completion of such reclamation, the wetlands will
support wetlands functions equivalent to the
functions supported by the wetlands at the time
of commencement of such activities;
‘‘(N) are for the placement of a structural
member for a pile-supported structure, such as a
279
pier or dock, or for a linear project such as a
bridge, transmission or distribution line footing,
powerline structure, or elevated or other walk-
way;
‘‘(O) are for the placement of a piling in
waters of the United States in a circumstance
that involves—
‘‘(i) a linear project described in sub-
paragraph (N); or
‘‘(ii) a structure such as a pier, boat-
house, wharf, marina, lighthouse, or indi-
vidual house built on stilts solely to reduce
the potential of flooding;
‘‘(P) are for the clearing (including mecha-
nized clearing) of vegetation within a right-of-
way associated with the development and main-
tenance of a transmission or distribution line or
other powerline structure or for the maintenance
of water supply reservoirs which provide water
predominantly to public drinking water systems;
‘‘(Q) 
are 
undertaken 
in 
or 
affecting
waterfilled depressions created in uplands inci-
dental to construction activity, or are under-
taken in or affecting pits excavated in uplands
for the purpose of obtaining fill, sand, gravel, ag-
280
gregates, or minerals, unless and until the con-
struction or excavation operation is abandoned;
or
‘‘(R) are undertaken in a State with sub-
stantial conserved wetlands areas and—
‘‘(i) are for purposes of providing criti-
cal infrastructure, including water and
sewer systems, airports, roads, communica-
tion sites, fuel storage sites, landfills, hous-
ing, hospitals, medical clinics, schools, and
other community infrastructure;
‘‘(ii) are for construction and mainte-
nance of log transfer facilities associated
with log transportation activities;
‘‘(iii) are for construction of tailings
impoundments utilized for treatment facili-
ties (as determined by the development doc-
ument) for the mining subcategory for
which the tailings impoundment is con-
structed; or
‘‘(iv) are for construction of ice pads
and ice roads and for purposes of snow stor-
age and removal.
‘‘(2) STATE OR LOCAL MANAGEMENT PLAN.—Any
State or political subdivision thereof acting pursuant
281
to State authorization may develop a land manage-
ment plan with respect to lands that include identi-
fied wetlands. The State or local government agency
may submit any such plan to the Secretary for review
and approval. The Secretary shall, within 60 days,
notify in writing the designated State or local official
of approval or disapproval of any such plan. The Sec-
retary shall approve any plan that is consistent with
the purposes of this section. No person shall be enti-
tled to judicial review of the decision of the Secretary
to approve or disapprove a land management plan
under this paragraph. Nothing in this paragraph
shall be construed to alter, limit, or supersede the au-
thority of a State or political subdivision thereof to
establish land management plans for purposes other
than the provisions of this subsection.
‘‘(g) RULES FOR DELINEATING WETLANDS.—
‘‘(1) STANDARDS.—
‘‘(A) ISSUANCE OF RULE.—The Secretary is
authorized and directed to establish standards,
by rule in accordance with subsection (j), that
shall govern the delineation of lands as ‘wet-
lands’ for purposes of this section. Such rules
shall be established after consultation with the
heads of other appropriate Federal agencies and
284
delineate wetlands for purposes of this section
shall provide that ‘normal circumstances’ shall
be determined on the basis of the factual cir-
cumstances in existence at the time a classifica-
tion is made under subsection (h) or at the time
of application under subsection (e), whichever is
applicable, if such circumstances have not been
altered by an activity prohibited under this sec-
tion.
‘‘(2) LAND AREA CAP FOR TYPE A WETLANDS.—
No more than 20 percent of any county, parish, or
borough shall be classified as type A wetlands. Type
A wetlands in Federal or State ownership (including
type A wetlands in units of the National Wildlife Ref-
uge System, the National Park System, and lands
held in conservation easements) shall be included in
calculating the percent of type A wetlands in a coun-
ty, parish, or borough.
‘‘(3) AGRICULTURAL LANDS.—
‘‘(A) DELINEATION BY SECRETARY OF AGRI-
CULTURE.—For purposes of this section, wet-
lands located on agricultural lands and associ-
ated nonagricultural lands shall be delineated
solely by the Secretary of Agriculture in accord-
285
ance with section 1222(j) of the Food Security
Act of 1985 (16 U.S.C. 3822(j)).
‘‘(B) EXEMPTION
OF
LANDS
EXEMPTED
UNDER FOOD SECURITY ACT.—Any area of agri-
cultural land or any activities related to the
land determined to be exempt from the require-
ments of subtitle C of title XII of the Food Secu-
rity Act of 1985 (16 U.S.C. 3821 et seq.) shall
also be exempt from the requirements of this sec-
tion for such period of time as those lands are
used as agricultural lands.
‘‘(C) EFFECT OF APPEAL DETERMINATION
PURSUANT TO FOOD SECURITY ACT.—Any area
of agricultural land or any activities related to
the land determined to be exempt pursuant to an
appeal taken pursuant to subtitle C of title XII
of the Food Security Act of 1985 (16 U.S.C.
3821 et seq.) shall be exempt under this section
for such period of time as those lands are used
as agricultural lands.
‘‘(h) MAPPING
AND
PUBLIC
NOTICE
REQUIRE-
MENTS.—
‘‘(1) PROVISION OF PUBLIC NOTICE.—Not later
than 90 days after the date of the enactment of the
Comprehensive Wetlands Conservation and Manage-
286
ment Act of 1995, the Secretary shall provide the
court of each county, parish, or borough in which the
wetland subject to classification under subsection (c)
is located, a notice for posting near the property
records of the county, parish, or borough. The notice
shall—
‘‘(A) state that wetlands regulated under
this section may be located in the county, parish,
or borough;
‘‘(B) provide an explanation understand-
able to the general public of how wetlands are
delineated and classified;
‘‘(C) describe the requirements and restric-
tions of the regulatory program under this sec-
tion; and
‘‘(D) provide instructions on how to obtain
a delineation and classification of wetlands
under this section.
‘‘(2) PROVISION
OF
DELINEATION
DETERMINA-
TIONS.—On completion under this section of a delin-
eation and classification of property that contains
wetlands or a delineation of property that contains
waters of the United States that are not wetlands, the
Secretary of Agriculture, in the case of wetlands lo-
cated on agricultural lands and associated non-
287
agricultural lands, and the Secretary, in the case of
other lands, shall—
‘‘(A) file a copy of the delineation, includ-
ing the classification of any wetland located on
the property, with the records of the property in
the local courthouse; and
‘‘(B) serve a copy of the delineation deter-
mination on every owner of the property on
record and any person with a recorded mortgage
or lien on the property.
‘‘(3) NOTICE OF ENFORCEMENT ACTIONS.—The
Secretary shall file notice of each enforcement action
under this section taken with respect to private prop-
erty with the records of the property in the local
courthouse.
‘‘(4) WETLANDS
IDENTIFICATION
AND
CLASSI-
FICATION PROJECT.—
‘‘(A) IN GENERAL.—The Secretary and the
Secretary of Agriculture shall undertake a
project to identify and classify wetlands in the
United States that are regulated under this sec-
tion. The Secretaries shall complete such project
not later than 10 years after the date of the en-
actment of the Comprehensive Wetlands Con-
servation and Management Act of 1995.
288
‘‘(B) 
APPLICABILITY
OF
DELINEATION
STANDARDS.—In conducting the project under
this section, the Secretaries shall identify and
classify wetlands in accordance with standards
for delineation of wetlands established by the
Secretaries under subsection (g).
‘‘(C) PUBLIC HEARINGS.—In conducting the
project under this section, the Secretaries shall
provide notice and an opportunity for a public
hearing in each county, parish or borough of a
State before completion of identification and
classification of wetlands in such county, parish,
or borough.
‘‘(D) PUBLICATION.—Promptly after com-
pletion of identification and classification of
wetlands in a county, parish, or borough under
this section, the Secretaries shall have published
information on such identification and classi-
fication in the Federal Register and in publica-
tions of wide circulation and take other steps
reasonably necessary to ensure that such infor-
mation is available to the public.
‘‘(E) REPORTS.—The Secretaries shall re-
port to Congress on implementation of the
project to be conducted under this section not
289
later than 2 years after the date of the enactment
of the Comprehensive Wetlands Conservation and
Management Act of 1995 and annually there-
after.
‘‘(F) RECORDATION.—Any classification of
lands as wetlands under this section shall, to the
maximum extent practicable, be recorded on the
property records in the county, parish, or bor-
ough in which such wetlands are located.
‘‘(i) ADMINISTRATIVE APPEALS.—
‘‘(1) 
REGULATIONS
ESTABLISHING
PROCE-
DURES.—Not later than 1 year after the date of the
enactment of the Comprehensive Wetlands Conserva-
tion and Management Act of 1995, the Secretary
shall, after providing notice and opportunity for pub-
lic comment, issue regulations establishing procedures
pursuant to which—
‘‘(A) a landowner may appeal a determina-
tion of regulatory jurisdiction under this section
with respect to a parcel of the landowner’s prop-
erty;
‘‘(B) a landowner may appeal a wetlands
classification under this section with respect to a
parcel of the landowner’s property;
290
‘‘(C) any person may appeal a determina-
tion that the proposed activity on the land-
owner’s property is not exempt under subsection
(f);
‘‘(D) a landowner may appeal a determina-
tion that an activity on the landowner’s prop-
erty does not qualify under a general permit is-
sued under this section;
‘‘(E) an applicant for a permit under this
section may appeal a determination made pur-
suant to this section to deny issuance of the per-
mit or to impose a requirement under the per-
mit; and
‘‘(F) a landowner or any other person re-
quired to restore or otherwise alter a parcel of
property pursuant to an order issued under this
section may appeal such order.
‘‘(2) DEADLINE FOR FILING APPEAL.—An appeal
brought pursuant to this subsection shall be filed not
later than 30 days after the date on which the deci-
sion or action on which the appeal is based occurs.
‘‘(3) DEADLINE
FOR
DECISION.—An appeal
brought pursuant to this subsection shall be decided
not later than 90 days after the date on which the ap-
peal is filed.
291
‘‘(4) PARTICIPATION IN APPEALS PROCESS.—Any
person who participated in the public comment proc-
ess concerning a decision or action that is the subject
of an appeal brought pursuant to this subsection may
participate in such appeal with respect to those issues
raised in the person’s written public comments.
‘‘(5) DECISIONMAKER.—An appeal brought pur-
suant to this subsection shall be heard and decided by
an appropriate and impartial official of the Federal
Government, other than the official who made the de-
termination or carried out the action that is the sub-
ject of the appeal.
‘‘(6) STAY OF PENALTIES AND MITIGATION.—A
landowner or any other person who has filed an ap-
peal under this subsection shall not be required to pay
a penalty or perform mitigation or restoration as-
sessed under this section or section 309 until after the
appeal has been decided.
‘‘(j) ADMINISTRATIVE PROVISIONS.—
‘‘(1) FINAL
REGULATIONS
FOR
ISSUANCE
OF
PERMITS.—Not later than 1 year after the date of the
enactment of the Comprehensive Wetlands Conserva-
tion and Management Act of 1995, the Secretary
shall, after notice and opportunity for comment, issue
(in accordance with section 553 of title 5 of the Unit-
292
ed 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 clas-
sification and delineation of wetlands and proce-
dures for administrative review of any such clas-
sification 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, in-
cluding programmatic, State, regional, and na-
tionwide permits;
‘‘(D) standards and procedures for the indi-
vidual permit applications under this section;
‘‘(E) for enforcement of this section;
‘‘(F) guidelines for the specification of sites
for the disposal of dredged or fill material for
navigational dredging; and
‘‘(G) 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—
293
‘‘(A) be based upon criteria comparable to
the criteria applicable to the territorial seas, the
contiguous zone, and the oceans under section
403(c); and
‘‘(B) ensure that with respect to the issu-
ance of permits under this section—
‘‘(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 un-
dertaking the underlying project to the sta-
tus quo; and
‘‘(iv) in comparing alternatives and se-
lection of a disposal site, management
294
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.
‘‘(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 re-
view of action of the Secretary in issuing any regula-
tion or requirement under this section or denying 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 Co-
lumbia, 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 review 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 sub-
295
ject 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 immediately.
Notice of the interim regulations shall be published in
the Federal Register, and such regulations shall be
binding until the issuance of final regulations pursu-
ant to paragraph (1); except that the Secretary shall
provide adequate procedures for waiver of any provi-
sions of such interim regulations to avoid special
hardship, inequity, or unfair distribution 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 Secretary
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 ap-
propriate enforcement activity), and to prescribe,
issue, amend, or rescind such rules or orders as such
officer or agency may find necessary or appropriate
296
with this subsection, subject to the requirements 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 or of
any condition or limitation set forth in a permit is-
sued by the Secretary under this section, the Sec-
retary shall issue an order requiring such persons to
comply with this section or with such condition or
limitation.
‘‘(2) NOTICE AND OTHER PROCEDURAL REQUIRE-
MENTS RELATING TO ORDERS.—A copy of any order
issued under this subsection shall be sent immediately
by the Secretary to the Governor of the State in which
the violation occurs and the Governors of other af-
fected States. The person committing the asserted vio-
lation that results in issuance of the order shall be no-
tified 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 Sec-
retary determines is reasonable taking into account
297
the seriousness of the asserted violation and any good
faith efforts to comply with applicable requirements.
If the person receiving the notice disputes the Sec-
retary’s determination, the person may file an appeal
as provided in subsection (i). Within 60 days of a de-
cision which denies an appeal, or within 150 days
from the date of notification of violation by the Sec-
retary if no appeal is filed, the Secretary shall pros-
ecute a civil action in accordance with paragraph (3)
or rescind such order and be estopped from any fur-
ther enforcement proceedings for the same asserted
violation.
‘‘(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 violation
and to require compliance. Notice of the commence-
ment of such action shall be given immediately to the
appropriate State.
298
‘‘(4) CIVIL PENALTIES.—Any person who violates
any condition or limitation in a permit issued by the
Secretary under this section and any person who vio-
lates any order issued by the Secretary under para-
graph (1) shall be subject to a civil penalty not to ex-
ceed $25,000 per day for each violation commencing
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 determining the
amount of a civil penalty, the court shall consider the
seriousness of the violation or violations, the economic
benefit (if any) resulting from the violation, any his-
tory of such violations, any good-faith efforts to com-
ply 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 and willfully violates any condition or
limitation 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-
299
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 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, punishment shall be by a fine
of not more than $100,000 per day of violation, or
imprisonment of not more than 6 years, or by both.
An action for imposition of a criminal penalty 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 administer
under State law or under an interstate compact. In
addition, such State shall submit a statement from
the chief legal officer in the case of the State or inter-
state agency, that the laws of such State, or the inter-
300
state compact, as the case may be, provide adequate
authority to carry out the described 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 statement
submitted by any State under paragraph (1), the Sec-
retary shall determine whether such State has the fol-
lowing authority with respect to the issuance of per-
mits 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;
301
‘‘(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;
‘‘(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 provide an opportunity for public hear-
ing before a ruling on each such application;
‘‘(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
302
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
‘‘(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 respect
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 Secretary
shall so notify such State and provide a descrip-
tion of the revisions or modifications necessary
so that the State may resubmit the program for
a determination by the Secretary under this sub-
section.
303
‘‘(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
year after the date of receipt of the program, the pro-
gram shall be treated as being approved pursuant to
paragraph (3)(A) and the Secretary shall so notify
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 Sec-
retary 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 action.
‘‘(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 per-
mit 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 ad-
304
ministration 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
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 notification, the
Secretary shall—
‘‘(A) withdraw approval of the program
until the Secretary determines such corrective ac-
tion has been taken; and
‘‘(B) resume the program for the issuance of
permits under subsections (b) and (e) for all ac-
tivities with respect to which the State was issu-
305
ing permits until such time as the Secretary
makes the determination described in paragraph
(2) and the State again has an approved pro-
gram.
‘‘(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 substantive and
procedural to control such activities to the same ex-
tent that any person is subject to such requirements.
This section shall not be construed as affecting or im-
pairing 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 let-
306
ters, and other guidance documents of general appli-
cability to implementation of this section at the time
they are distributed to agency regional 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, memoranda
of agreement, regulatory guidance letters, and
other guidance documents relevant to the permit-
ting of activities pursuant to this section; and
‘‘(B) information to enable the general pub-
lic to understand the delineation of wetlands, the
permitting requirements referred to in subsection
(e), wetlands restoration and enhancement, wet-
lands functions, available nonregulatory pro-
grams to conserve and restore wetlands, and
other matters that the Secretary considers rel-
evant.
‘‘(4) COMPLIANCE.—
‘‘(A) COMPLIANCE WITH PERMIT.—Compli-
ance with a permit issued pursuant to this sec-
tion, including any activity carried out pursu-
ant to a general permit issued under this section,
shall be deemed in compliance, for purposes of
307
sections 309 and 505, with sections 301, 307,
and 403.
‘‘(B) CRANBERRY PRODUCTION.—Activities
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) remain
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 sec-
tion (other than fines for violations under subsection
308
(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 program
under this section, the Secretary shall balance
the objective of conserving functioning wetlands
with the objective of ensuring continued economic
growth, providing essential infrastructure, main-
taining strong State and local tax bases, and
protecting against the diminishment 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 min-
imize the adverse effects of the regulatory pro-
gram 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 respond
to emergency conditions (including flood events and
other emergency situations) which may involve loss of
life and property damage. Such procedures shall ad-
309
dress circumstances requiring expedited 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 subject to this
section based solely on the fact that migratory birds
use or could use such water or wetland.
‘‘(10) TRANSITION RULES.—
‘‘(A) PERMIT REQUIRED.—After the effective
date of this section under section 806 of the Com-
prehensive Wetlands Conservation and Manage-
ment Act of 1995, no permit for any activity 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 activ-
ity pending under this section on such effective
date shall be deemed to be an application for a
permit under this section.
‘‘(B) PRIOR PERMITS.—Any permit for an
activity in wetlands or waters of the United
310
States issued under this section prior to the effec-
tive date referred to in subparagraph (A) 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, sus-
pended, or canceled in accordance with this sec-
tion.
‘‘(C) REEVALUATION.—
‘‘(i) PETITION.—Any person holding a
permit for an activity in wetlands or water
of the United States on the effective date re-
ferred 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 deter-
mination of regulatory jurisdiction under
this section, or (II) any condition imposed
under the permit. Upon receipt of a petition
for reevaluation, the Secretary shall conduct
the reevaluation in accordance with the pro-
visions of this section.
‘‘(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,
311
the Secretary shall modify, revoke, suspend,
cancel, or continue the permit as appro-
priate 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 subparagraph and, if the permit cov-
ers activities in type A wetlands, the permit
shall continue in effect without modifica-
tion.
‘‘(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 appeal
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-
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 ac-
tivity—
‘‘(i) has been approved by the affected
State, county, and local government within
312
the boundaries of which the activity is pro-
posed;
‘‘(ii) in the case of unincorporated
land, has been approved by all local govern-
ments within 1 mile of the proposed activ-
ity; and
‘‘(iii) would result in a net improve-
ment to water quality at the site of such ac-
tivity.
‘‘(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 ma-
terial into waters of the United States, in-
cluding 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.
313
‘‘(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 recipi-
ent that would constitute a limitation if done di-
rectly by the agency.
‘‘(D) AGRICULTURAL LAND.—The term ‘ag-
ricultural 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, nursery
product, or wetland crop or the production of
livestock.
‘‘(E) CONSERVED
WETLANDS.—The term
‘conserved wetlands’ means wetlands that are lo-
cated in the National Park System, National
Wildlife Refuge System, National Wilderness
System, the Wild and Scenic River System, and
other similar Federal conservation systems, com-
bined with wetlands located in comparable types
314
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 Settlement
Act, Public Law 92–203 or the Alaska Native Al-
lotment 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 com-
petitive and open market under all conditions
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 rea-
sonable 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.
315
‘‘(I) MITIGATION BANK.—The term ‘mitiga-
tion 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 activities in such wet-
lands or waters.
‘‘(J) NAVIGATIONAL DREDGING.—The term
‘navigational dredging’ means the dredging of
ports, waterways, and inland harbors, including
berthing areas and local access channels appur-
tenant to a Federal navigation channel.
‘‘(K) 
PROPERTY.—The 
term 
‘property’
means land and includes the right to use or re-
ceive water.
‘‘(L) SECRETARY.—The term ‘Secretary’
means the Secretary of the Army.
‘‘(M) STATE
WITH
SUBSTANTIAL
CON-
SERVED
WETLANDS
AREAS.—The term ‘State
with substantial conserved wetlands areas’ means
any State which—
316
‘‘(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.
‘‘(N) 
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. 804. DEFINITIONS.
Section 502 (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
317
(2) by adding at the end thereof the following
new paragraphs:
‘‘(28) 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 sup-
port, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in satu-
rated soil conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.
‘‘(29) 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 compensatory
mitigation.
‘‘(30) The term ‘enhancement of wetlands’ means any
activity that increases the value of one or more functions
in existing wetlands.
‘‘(31) The term ‘fastlands’ means lands located behind
legally constituted man-made structures or natural forma-
tions, such as levees constructed and maintained to permit
the utilization of such lands for commercial, industrial, or
residential purposes consistent with local land use planning
requirements.
‘‘(32) The term ‘wetlands functions’ means the roles
wetlands serve, including flood water storage, flood water
conveyance, ground water recharge, erosion control, wave
318
attenuation, water quality protection, scenic and aesthetic
use, food chain support, fisheries, wetlands plant habitat,
aquatic habitat, and habitat for wetland dependent wildlife.
‘‘(33) 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.
‘‘(34) 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.
‘‘(35) 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.
‘‘(36) The term ‘mitigation banking’ means wetlands
restoration, enhancement, preservation or creation for the
purpose of providing compensation for wetland degradation
or loss.
‘‘(37) 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
319
State and the land grant university system and agricul-
tural colleges of the State, taking into account existing prac-
tices and such other practices as may be identified in con-
sultation with the affected industry or community.
‘‘(38) 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 perennial
agricultural crop (including forage or hay), aquacultural
product, nursery product or wetlands crop, or the produc-
tion of livestock before December 23, 1985.
‘‘(39) 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 wetlands
acreage or functions.
‘‘(40) The term ‘temporary impact’ means the disturb-
ance or alteration of wetlands caused by activities under
circumstances in which, within 3 years following the com-
mencement 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 re-
320
turn to the conditions in existence prior to the com-
mencement of such activity.
‘‘(41) 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.
(a) VIOLATION.—Section 301(a) (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 (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 per-
mit issued under section 404 of this Act 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’’;
321
(5) by adding at the end of subsection (c) the fol-
lowing:
‘‘(8) TREATMENT OF CERTAIN VIOLATIONS.—Any
person who violates section 301 with respect to an ac-
tivity 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 fol-
lowing: ‘‘Any person who violates section 301 with re-
spect 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 by a State, or’’; and
322
(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 fol-
lowing:
‘‘(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 penalty under
this subsection but shall be subject to assessment of a
civil penalty under section 404(k)(4).’’;
(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; and
(11) in subsection (g)(9)(B) by inserting a
comma after ‘‘Administrator’’.
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.
323
TITLE IX—NAVIGATIONAL
DREDGING
SEC. 901. REFERENCES TO ACT.
Except as otherwise expressly provided, whenever in
this title an amendment or repeal is expressed in terms of
an amendment to, or repeal of, a section or other provision,
the reference shall be considered to be made to a section or
other provision of the Marine Protection, Research, and
Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.).
SEC. 902. OCEAN DUMPING PERMITS.
(a) ISSUANCE OF PERMITS.—Section 102 (33 U.S.C.
1412) is amended—
(1) in the section heading by striking ‘‘ENVIRON-
MENTAL PROTECTION AGENCY’’; and
(2) in subsection (a)—
(A) by striking ‘‘Administrator’’ each place
it appears and inserting ‘‘Secretary’’;
(B) by striking paragraph (G) and redesig-
nating paragraphs (A), (B), (C), (D), (E), (F),
(H), and (I) as paragraphs (1) through (8), re-
spectively;
(C) in paragraph (4), as so redesignated, by
redesignating subparagraphs (i) through (iii) as
subparagraphs (A) through (C), respectively; and
324
(D) by striking the first and second sen-
tences following the indented paragraphs.
(b) CATEGORIES OF PERMITS.—Section 102(b) (33
U.S.C. 1412(b)) is amended by striking ‘‘Administrator’’
and inserting ‘‘Secretary’’.
(c) DESIGNATION
OF SITES.—Section 102(c) (33
U.S.C. 1412(c)) is amended—
(1) by striking ‘‘Administrator’’ each place it
appears and inserting ‘‘Secretary’’; and
(2) in paragraph (3) by striking ‘‘Secretary’’
each place it appears and inserting ‘‘Administrator’’.
(d) SPECIAL RULES.—Sections 102(d) and 102(e) (33
U.S.C. 1412(d) and 1412(e)) are amended by striking ‘‘Ad-
ministrator’’ each place it appears and inserting ‘‘Sec-
retary’’.
SEC. 903. DREDGED MATERIAL PERMITS.
(a) DISPOSAL SITES.—Section 103 (33 U.S.C. 1413)
is amended—
(1) in the section heading by striking ‘‘CORPS OF
ENGINEERS’’ and inserting ‘‘DREDGED
MATERIAL’’;
and
(2) in subsection (b)—
(A) by striking ‘‘by the Administrator’’ each
place it appears;