II 114th CONGRESS 2d Session S. 2727 IN THE SENATE OF THE UNITED STATES March 17, 2016 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 State or Indian land, and for other purposes.

1. Preservation leasing of State or 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 State or 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. 450b ). (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 State or 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. (F) State land The term State land means land owned by, operated by, or otherwise belonging to a State. (2) Preservation leasing of State or Indian land The Secretary shall allow a permittee to satisfy compensatory mitigation requirements for a permitted activity by entering into a preservation lease with— (A) a State, if the permitted activity affects wetlands that are located in the same watershed as the State land to be leased; or (B) 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 a State or 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 a State or 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 State or 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 State or Indian tribe, as appropriate, 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 State or Indian tribe, as appropriate, 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.