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‘‘(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 activi-
ties within a State’s coastal zone which are excluded
from regulation under a State coastal zone manage-
ment 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 wetlands
have exhibited wetlands functions and values for
more than 5 years in which case activities under-
taken in such wetlands shall be subject to the re-
quirements of this section;
‘‘(L) are part of expanding an ongoing farming
operation involving the water dependent, obligate
crop Vaccinium macrocarpin, so long as such expan-
sion does not occur in type A wetlands, does not re-
sult in the conversion of more than 10 acres of wet-
lands per operator per year, and the converted wet-
lands (other than where dikes and other necessary
facilities are placed) remain as wetlands or other wa-
ters of the United States;
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‘‘(M) are for the purpose of preserving and en-
hancing aviation safety or are undertaken in order
to prevent an airport hazard; or
‘‘(N) result from aggregate or clay mining ac-
tivities in wetlands conducted pursuant to a State
or Federal permit that requires the reclamation of
such affected wetlands.
Conditions of reclamation shall include that for any site,
such reclamation shall be completed within 5 years of the
commencement of activities at such site and that upon
completion of such reclamation, such wetlands shall sup-
port wetlands functions and values equivalent to the func-
tions and values supported by such wetlands at the time
of commencement of such activities.
‘‘(2) Any State or political subdivision thereof acting
pursuant to State authorization may develop a land man-
agement plan with respect to lands that include identified
wetlands. The State or local government agency may sub-
mit any such plan to the Secretary for review and ap-
proval. The Secretary shall, within 60 days, notify in writ-
ing the designated State or local official of approval or
disapproval of any such plan. The Secretary shall approve
any plan that is consistent with the objectives and policies
of this section. No person shall be entitled to judicial re-
view of the decision of the Secretary to approve or dis-
116
approve a land management plan under this paragraph.
Nothing in this paragraph shall be construed to alter,
limit, or supersede the authority 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)
The Secretary is authorized and directed to establish
standards, by rule in accordance with subsection (j), that
shall govern the delineation of lands as ‘wetlands’ for pur-
poses of this section. Such rules shall be established after
consultation with other agencies of the United States, in-
cluding the United States Fish and Wildlife Service, the
Environmental Protection Agency, and the United States
Natural Resources Conservation Service, and shall be
binding on all Federal agencies in connection with the ad-
ministration or implementation of any provision of this
section. The standards for delineation of wetlands and any
decision of the Secretary, the Director, or any other Fed-
eral officer or agency made in connection with the admin-
istration of this section shall comply with the requirements
for delineation of wetlands set forth in paragraph (2) of
this subsection.
‘‘(2)(A) The standards established by rule or applied
in any case for purposes of this section shall ensure that
lands are delineated as wetlands only if such lands are
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found to be ‘wetlands’ under section 502 of this Act; ex-
cept that such standards may not—
‘‘(i) result in the delineation of lands as wet-
lands unless clear evidence of wetlands hydrology,
hydrophytic vegetation, and hydric soil are found to
be present during the period in which such delinea-
tion is made, which delineation shall be conducted
during the growing season unless otherwise re-
quested by the applicant;
‘‘(ii) result in the classification of vegetation as
hydrophytic if such vegetation is equally adapted to
dry or wet soil conditions or is more typically adapt-
ed to dry soil conditions than to wet soil conditions;
‘‘(iii) result in the classification of lands as wet-
lands unless some obligate wetlands vegetation is
found to be present during the period of delineation;
except that if such vegetation has been removed for
the purpose of evading jurisdiction under this sec-
tion, this clause shall not apply;
‘‘(iv) result in the conclusion that wetlands hy-
drology is present unless water is found to be
present at the surface of such lands for at least 21
consecutive days during the growing season in which
such delineation is made and for 21 consecutive days
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in the growing seasons in a majority of the years for
which records are available; and
‘‘(v) result in the classification of lands as wet-
lands that are temporarily or incidentally created as
a result of adjacent development activity.
‘‘(B) In addition to the requirements of subparagraph
(A), any standards established by rule or applied to delin-
eate wetlands for purposes of this section shall provide
that ‘normal circumstances’ shall be determined on the
basis of the factual circumstances in existence at the time
a classification is made under subsection (h) or at the time
of application under subsection (e), whichever is applica-
ble, if such circumstances have not been altered by an ac-
tivity prohibited under this section.
‘‘(3) No more than 20 percent of any county, parish,
or borough shall be classified as type A wetlands; except
that, type A wetlands in Federal or State ownership (in-
cluding type A wetlands in units of the National Wildlife
Refuge System, the National Park System, and lands held
in conservation easements) shall be included in calculating
the percent of type A wetlands in a county, parish, or bor-
ough.
‘‘(4)(A) For purposes of this section, wetlands located
on agricultural lands and associated nonagricultural lands
shall be delineated by the Secretary of Agriculture in ac-
119
cordance with section 1222(j) of the Food Security Act
of 1985 (16 U.S.C. 3822(j)).
‘‘(B) Any area of agricultural land or any activities
related to the land determined to be exempt from the re-
quirements of subtitle C of title XII of the Food Security
Act of 1985 (16 U.S.C. 3821 et seq.) shall also be exempt
from the requirements of this section for such period of
time as those lands are used as agricultural lands.
‘‘(C) For purposes of this section, the term ‘agricul-
tural lands’ means cropland, pastureland, native pasture,
rangeland, orchards, vineyards, nonindustrial forest land,
and any other land used to produce or support the produc-
tion of an annual or perennial crop of a commodity, aqua-
culture product, nursery product, or livestock.
‘‘(h) UNITED STATES FISH AND WILDLIFE SERVICE
WETLANDS
IDENTIFICATION
AND
CLASSIFICATION
PROJECT.—(1) The Director, in concurrence with the
Chief of the Natural Resources Conservation Service, shall
undertake a project to identify and classify wetlands in
the United States. The Director shall complete such
project not later than 10 years after the date of the enact-
ment of the Comprehensive Wetlands Conservation and
Management Act of 1995.
‘‘(2) In conducting the project under this section, the
Director shall identify and classify wetlands in accordance
120
with standards for delineation of wetlands established by
the Secretary under subsection (g) of this section.
‘‘(3) In conducting the project under this section, the
Director shall provide notice and an opportunity for a pub-
lic hearing in each county, parish or borough of a State
before completion of identification and classification of
wetlands in such county, parish, or borough.
‘‘(4) Promptly after completion of identification and
classification of wetlands in a county, parish, or borough
under this section, the Director shall publish information
on such identification and classification in the Federal
Register and in publications of wide circulation and take
other steps reasonably necessary to ensure that such infor-
mation is available to the public.
‘‘(5) The Director shall report to Congress on imple-
mentation of the project to be conducted under this section
not later than 2 years after the date of the enactment of
the Comprehensive Wetlands Conservation and Manage-
ment Act of 1995 and annually thereafter.
‘‘(6) Any classification of lands as wetlands under
this section shall, to the fullest extent practicable, be re-
corded on the property records in the county, parish, or
borough in which such wetlands are located.
‘‘(i) ADMINISTRATIVE APPEALS.—(1) Not later than
1 year after the date of the enactment of the Comprehen-
121
sive Wetlands Conservation and Management Act of 1995,
the Secretary shall, after providing notice and opportunity
for public comment, issue regulations establishing proce-
dures pursuant to which—
‘‘(A) a landowner may appeal a determination
of regulatory jurisdiction under this section with re-
spect to a parcel of property;
‘‘(B) a landowner may appeal a wetlands classi-
fication under this section with respect to a parcel
of property;
‘‘(C) any person may appeal a determination
that the proposed activity is not exempt under sub-
section (f);
‘‘(D) a landowner may appeal a determination
that an activity is not regulated under a general per-
mit issued under this section;
‘‘(E) an applicant for a permit under this sec-
tion may appeal a determination made pursuant to
this section to deny issuance of the permit or to im-
pose a requirement under the permit; and
‘‘(F) a landowner or any other person required
to restore or otherwise alter a parcel of property
pursuant to an order issued under this section may
appeal such order.
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‘‘(2) An appeal brought pursuant to this subsection
shall be filed not later than 30 days after the date on
which the decision or action on which the appeal is based
occurs.
‘‘(3) An appeal brought pursuant to this subsection
shall be decided not later than 90 days after the date on
which the appeal is filed.
‘‘(4) Any person who participated in the public com-
ment process concerning a decision or action that is the
subject of an appeal brought pursuant to this subsection
may intervene in such appeal.
‘‘(5) An appeal brought pursuant to this subsection
shall be heard and decided by an appropriate and impar-
tial official of the Federal Government, other than the offi-
cial who made the determination or carried out the action
that is the subject of the appeal.
‘‘(6) A landowner or any other person who has filed
an appeal 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) Not later
than 1 year after the date of the enactment of the Com-
prehensive Wetlands Conservation and Management Act
of 1995, the Secretary shall, after notice and opportunity
123
for comment, issue (in accordance with section 553 of title
5 of the United States Code and this section) final rules
and regulations for the issuance of permits. Such rules
and regulations shall, in accordance with this section, pro-
vide—
‘‘(A) standards and procedures for the classi-
fication and delineation of wetlands and procedures
for administrative review of any such classification
or delineation;
‘‘(B) standards and procedures for the review
of State or local land management plans and State
programs for the regulation of wetlands;
‘‘(C) for the issuance of general, nationwide, or
regional permits;
‘‘(D) standards and procedures for the individ-
ual permit applications under this section;
‘‘(E) for enforcement of this section;
‘‘(F) any other rules and regulations that the
Secretary deems necessary or appropriate to imple-
ment the requirements of this section;
‘‘(G) standards and procedures for administra-
tive appeals of actions by the Secretary denying ap-
plications for permits under subsection (b) or issuing
such permits subject to conditions; and
124
‘‘(H) requirements governing the establishment
of mitigation banks.
‘‘(2) Any judicial review of final regulations issued
pursuant to this section and the Secretary’s denial of any
petition for the issuance, amendment, or repeal of any reg-
ulation under this section shall be in accordance with sec-
tions 701 through 706 of title 5 of the United States Code;
except that a petition for review of action of the Secretary
in issuing any regulation or requirement under this section
or 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 Columbia, and such petition shall be filed within ninety
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 subject to judicial review
in civil or criminal proceedings for enforcement.
‘‘(3) The Secretary shall, within 90 days after the
date of the enactment of the Comprehensive Wetlands
Conservation and Management Act of 1995, issue interim
rules and regulations consistent with this section to take
effect immediately. Notice of the interim regulations shall
be published in the Federal Register, and such regulations
125
shall be binding until the issuance of final regulations pur-
suant to paragraph (1); except that the Secretary shall
provide adequate procedures for waiver of any provisions
of such interim regulations to avoid special hardship, in-
equity, or unfair distribution of burdens or to advance
the purposes of this section.
‘‘(4) 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 dele-
gated is authorized to perform any and all acts (including
appropriate enforcement activity), and to prescribe, issue,
amend, or rescind such rules or orders as such officer or
agency may find necessary or appropriate with this sub-
section, subject to the requirements of this subsection.
‘‘(k) VIOLATIONS.—
‘‘(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 per-
mit issued by the Secretary under this section, the
Secretary shall issue an order requiring such persons
to comply with this section or with such condition or