Title: A bill to amend the Federal Water Pollution Control Act to allow preservation leasing as a form of compensatory mitigation for discharges of dredged or fill material affecting Indian land, and for other purposes.
Policy area: Environmental Protection

Summary:
This bill amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to allow a permittee under the Act to satisfy compensatory mitigation requirements for discharging dredged or fill material into the waters of the United States (permitted activity) by entering into a preservation lease with an Indian tribe whose wetlands are affected.
A preservation lease is an agreement under which a permittee leases wetlands or other aquatic sites on Indian land for the sole purpose of preserving the wetlands or other aquatic sites in an undisturbed state during the term of the lease to mitigate for a permitted activity. The term of the lease may not be less than the life of the permitted activity and must be adjusted to account for the cessation of the impacts caused by such activity.
If a permittee enters into a preservation lease and subsequently ceases to maintain the permitted activity, or seeks to abandon the permitted activity without a good faith transfer, the permittee must obtain a permit modification from the U.S. Army Corps of Engineers, which may require restoration and rehabilitation of the area.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1288 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                S. 1288

To amend the Federal Water Pollution Control Act to allow preservation 
leasing as a form of compensatory mitigation for discharges of dredged 
    or fill material affecting Indian land, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 25, 2017

 Mr. Sullivan (for himself and Ms. Murkowski) introduced the following 
bill; which was read twice and referred to the Committee on Environment 
                            and Public Works

_______________________________________________________________________

                                 A BILL


 
To amend the Federal Water Pollution Control Act to allow preservation 
leasing as a form of compensatory mitigation for discharges of dredged 
    or fill material affecting Indian land, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PRESERVATION LEASING OF INDIAN LAND.

    (a) In General.--Section 404 of the Federal Water Pollution Control 
Act (33 U.S.C. 1344) is amended by adding at the end the following:
    ``(u) Preservation Leasing of Indian Land.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Indian land.--The term `Indian land' means 
                land owned by, operated by, or otherwise belonging to 
                an Indian tribe.
                    ``(B) Indian tribe.--The term `Indian tribe' has 
                the meaning given the term in section 4 of the Indian 
                Self-Determination and Education Assistance Act (25 
                U.S.C. 5304).
                    ``(C) Permitted activity.--The term `permitted 
                activity' means a discharge of dredged or fill material 
                for which a permit is issued under this section.
                    ``(D) Permittee.--The term `permittee' means a 
                person that is issued a permit under this section.
                    ``(E) Preservation lease.--The term `preservation 
                lease' means an agreement under which a permittee 
                leases wetlands or other aquatic sites on Indian land 
                for the sole purpose of preserving the wetlands or 
                other aquatic sites in an undisturbed state during the 
                term of the lease to mitigate for a permitted activity.
            ``(2) Preservation leasing of indian land.--The Secretary 
        shall allow a permittee to satisfy compensatory mitigation 
        requirements for a permitted activity by entering into a 
        preservation lease with an Indian tribe, if the permitted 
        activity affects wetlands that are located in the same 
        watershed as the Indian land to be leased.
            ``(3) Term.--In order to satisfy compensatory mitigation 
        requirements, the term of a preservation lease--
                    ``(A) shall be not less than the life of the 
                permitted activity; and
                    ``(B) shall be adjusted to account for the 
                cessation, in whole or in part, of the impacts caused 
                by the permitted activity.
            ``(4) Situations in which a permittee ceases to maintain 
        permitted activity.--
                    ``(A) Permit modifications.--If a permittee enters 
                into a preservation lease with an Indian tribe under 
                this subsection and subsequently ceases to maintain the 
                permitted activity or seeks to abandon the permitted 
                activity without a good faith transfer the permittee 
                shall obtain a permit modification from the Secretary, 
                which may require restoration and rehabilitation of the 
                area.
                    ``(B) Consultation with an indian tribe.--Before 
                making a determination under subparagraph (A) as to 
                whether, and to what degree, restoration and 
                rehabilitation are required, the Secretary shall 
                consult, and fully consider, the position of the Indian 
                tribe that is a party to any preservation lease 
                relating to the permitted activity.
                    ``(C) Restoration and rehabilitation plans.--
                            ``(i) In general.--If the Secretary 
                        determines under subparagraph (A) that 
                        restoration and rehabilitation are required, 
                        the Secretary may require the permittee to 
                        submit to the Secretary and the Indian tribe a 
                        plan for conducting the restoration and 
                        rehabilitation.
                            ``(ii) Contents.--A restoration and 
                        rehabilitation plan submitted under clause (i) 
                        shall include, at a minimum, goals and 
                        objectives, performance standards, and plans 
                        for site treatment, reporting, remedial work, 
                        and monitoring to ensure that performance 
                        standards are met.
                    ``(D) Reversion of land.--After activities 
                conducted under a restoration and rehabilitation plan 
                submitted under subparagraph (C)(i) have been completed 
                and the hydrological functions and fish and wildlife 
                habitat of the area impacted by the permitted activity 
                have been restored pursuant to the restoration and 
                rehabilitation plan, the land subject to the lease 
                shall revert back to the Indian tribe without 
                restriction.''.
    (b) Applicability.--The amendment made by subsection (a) shall 
apply to permits issued under section 404 of the Federal Water 
Pollution Control Act (33 U.S.C. 1344) after the date of enactment of 
this Act.
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