[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3465 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 3465

    To amend the Federal Water Pollution Control Act to improve the 
 protection of wetlands and thereby restore and maintain the physical, 
  chemical, and biological integrity of the Nation's waters, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            November 8, 1993

 Mr. Studds (for himself and Mr. de la Garza) introduced the following 
 bill; which was referred jointly to the Committees on Merchant Marine 
    and Fisheries, Agriculture, and Public Works and Transportation

_______________________________________________________________________

                                 A BILL


 
    To amend the Federal Water Pollution Control Act to improve the 
 protection of wetlands and thereby restore and maintain the physical, 
  chemical, and biological integrity of the Nation's waters, 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. SHORT TITLE.

    This Act may be cited as the ``Wetlands Protection and Management 
Act''.

SEC. 2. REFERENCES.

    Except as otherwise expressly provided, whenever in this Act 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 Federal Water Pollution 
Control Act.

SEC. 3. POLICY AND FINDINGS.

    (a) Wetland Policy.--Subsection (a) of section 101 (33 U.S.C. 1251) 
is amended--
            (1) by striking ``and'' at the end of paragraph (6);
            (2) by striking the period at the end of paragraph (7) and 
        inserting ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(8) it is the national policy to protect the quantity and 
        quality of the Nation's remaining wetland base and restore 
        wetlands that have been degraded.''.
    (b) Findings.--Section 101 is further amended by adding at the end 
the following new subsection:
    ``(h) Wetlands.--Congress finds the following:
            ``(1) Wetlands perform a number of valuable functions 
        needed to restore and maintain the chemical, physical, and 
        biological integrity of the Nation's waters.
            ``(2) Wetlands serve important ecological and natural 
        resource functions, such as providing an essential nesting and 
        feeding habitat for waterfowl and other wildlife (including 
        many rare and endangered species), providing fisheries habitat, 
        enhancing water quality, and providing natural flood control.
            ``(3) Wetlands are highly sensitive to changes in water 
        regimes and are, therefore, susceptible to degradation by 
        fills, drainage, grading, water extractions, excavations, and 
        other activities within their watersheds which affect the 
        quantity, quality, and flow of surface and ground waters. 
        Protection and management of wetlands, therefore, should be 
        integrated with management of hydrologic systems.
            ``(4) Wetland systems are difficult to evaluate, map, plan, 
        and restore. Efforts to protect and restore wetlands should be 
        coordinated to make efficient use of scarce Federal, State, and 
        local resources. States and local governments should be 
        encouraged to undertake advanced planning for wetlands. This 
        planning should help to integrate wetland protection and 
        management with other water resource management programs on a 
        watershed basis such as flood loss reduction, stormwater 
        management, water supply, protection of fish and wildlife 
        habitat, and control of point and nonpoint sources of 
        pollution.
            ``(5) The discharge of dredged or fill material into 
        wetlands can adversely affect interstate commerce because such 
        discharges can destroy or diminish the utility of a wetland for 
        purposes such as flood control, water purification, recharging 
        groundwater, erosion control, and providing habitat and food 
        supply for fish and wildlife.
            ``(6) Wetland functions have tremendous financial value to 
        the United States economy both because of the natural 
        ecological protection that wetlands afford and because of the 
        importance of wetlands to economically important activities, 
        such as flood control, tourism, and commercial and recreational 
        fishing.''.

SEC. 4. DELINEATION OF WETLANDS.

    (a) General Rule.--
            (1) Limitation on revisions to corps manual.--After the 
        date of the enactment of this Act, the 1987 Corps of Engineers 
        Wetlands Delineation Manual may not be revised, except as 
        provided by this section, before the date on which the 
        Committee on Wetlands Characterization of the National Research 
        Council publishes its report pursuant to Public Law 102-389.
            (2) Requirements for revision of corps manual.--After the 
        date of publication of the report referred to in paragraph (1), 
        the 1987 Corps of Engineers Wetlands Delineation Manual may be 
        revised if--
                    (A) such revisions take into account the findings 
                and recommendations contained in such report; and
                    (B) such revisions are made after field testing and 
                notice and opportunity for public comment.
            (3) Required use of corps manual.--Until the 1987 Corps of 
        Engineers Wetlands Delineation Manual is revised in accordance 
        with this subsection (and other than under subsection (c)), 
        identification and delineation of wetlands for purposes of 
        section 404 of the Federal Water Pollution Control Act shall be 
        carried out through the use of such manual.
    (b) Delineation of Wetlands on Agricultural Lands.--
            (1) Memorandum of agreement.--
                    (A) Issuance.--Not later than 180 days after the 
                date of the enactment of this Act, and after notice and 
                opportunity for public comment, the Chief of the Soil 
                Conservation Service, the Administrator of the 
                Environmental Protection Agency, the Secretary of the 
                Army, and the Secretary of the Interior shall jointly 
                issue a memorandum of agreement which sets forth 
                procedures for identifying and delineating wetlands on 
                agricultural lands for purposes of section 404(a) of 
                the Federal Water Pollution Control Act.
                    (B) Requirements.--The agreement to be issued under 
                subparagraph (A) shall ensure that--
                            (i) agency and field staff of the Soil 
                        Conservation Service are properly trained by 
                        the Secretary of the Army;
                            (ii) standard wetland delineation methods 
                        are utilized by the Soil Conservation Service; 
                        and
                            (iii) appropriate programmatic level review 
                        is conducted by the Administrator of the 
                        Environmental Protection Agency and the 
                        Secretary of the Army.
                    (C) Procedures.--Procedures set forth in the 
                agreement to be issued under subparagraph (A) shall 
                provide for the use of the 1987 Corps of Engineers 
                Wetlands Delineation Manual in conjunction with the 
                National Food Security Act Manual of the Soil 
                Conservation Service until such date as the 1987 Corps 
                of Engineers manual is revised in accordance with this 
                section.
            (2) Role of soil conservation service.--After the date of 
        issuance of the memorandum of agreement under paragraph (1), 
        and in accordance with the procedures set forth in such 
        memorandum, the Chief of the Soil Conservation Service, in 
        consultation with the Director of the United States Fish and 
        Wildlife Service, shall carry out identification and 
        delineation of wetlands on agricultural lands for purposes of 
        section 404(a) of the Federal Water Pollution Control Act.
            (3) Additional responsibilities.--The Administrator of the 
        Environmental Protection Agency, in consultation with the 
        Secretary of the Army, the Chief of the Soil Conservation 
        Service, and the Director of the United States Fish and 
        Wildlife Service, shall issue regulations to authorize the 
        Chief of the Soil Conservation Service to carry out, for the 
        purposes of section 404(a) of the Federal Water Pollution 
        Control Act, identification and delineation of wetlands on non-
        agricultural lands which are contiguous to or contained within 
        agricultural lands in order to simplify and streamline the 
        permitting process.
            (4) Limitation on statutory construction.--Nothing in this 
        subsection shall be construed to limit the authority of the 
        Administrator of the Environmental Protection Agency to 
        prohibit the specification of any defined area as a disposal 
        site pursuant to section 404(c) of the Federal Water Pollution 
        Control Act.
            (5) Agricultural lands defined.--For the purposes of this 
        subsection, the term ``agricultural lands'' means cropland, 
        pastureland, haylands, rangelands, orchards, vineyards, 
        production nurseries, and any other land that is intensively 
        used or managed for agricultural purposes such that the natural 
        vegetation cannot be relied on for delineation purposes.
    (c) Regional Wetland Variations.--The Administrator of the 
Environmental Protection Agency, in cooperation with the Secretary of 
the Army, the Chief of the Soil Conservation Service, the Director of 
the United States Fish and Wildlife Service, and the States, is 
authorized to issue rules to make such revisions to the 1987 Corps of 
Engineers Wetlands Delineation Manual as may be necessary to address 
regional variations in plants and soils and technical procedures 
pertaining to wetland hydrology, soils, and vegetation. Notwithstanding 
paragraph (1), such revisions may be made and instituted before the 
Committee on Wetlands Characterization of the National Research Council 
publishes its report pursuant to Public Law 102-389. Such revisions 
shall not be considered to be part of any other manual unless 
specifically incorporated into the manual.

SEC. 5. WETLANDS CONSERVATION, MANAGEMENT, AND RESTORATION.

    (a) Funding for State Wetlands Conservation Plans.--Paragraph (3) 
of section 104(b) (33 U.S.C. 1254(b)) is amended by inserting before 
the semicolon ``and for the development and implementation of State 
wetlands conservation plans under section 321''.
    (b) Wetlands Conservation, Management and Restoration.--Title III 
(33 U.S.C. 1311 et seq.) is amended by adding at the end the following 
new section:

``SEC. 321. STATE WETLANDS CONSERVATION PLANS.

    ``(a) Development and Implementation Assistance.--Subject to the 
requirements of this section, the Administrator is authorized to make 
grants to States to assist in the development and implementation of 
State wetlands conservation plans.
    ``(b) Contents of Plans.--To qualify for assistance under 
subsection (a), a State wetlands conservation plan shall generally 
include--
            ``(1) management strategies and policies for achieving 
        within the State the goal under section 101(a)(8);
            ``(2) an inventory of wetlands resources in the State;
            ``(3) a description of the major causes of wetlands loss 
        and degradation in the State, including an estimate of 
        historical wetlands losses;
            ``(4) a description of State and local government programs 
        applying to wetlands resources in the State;
            ``(5) identification of sites in the State with wetlands 
        restoration potential;
            ``(6) identification of riparian areas in the State with 
        restoration potential;
            ``(7) a schedule for implementing the elements of the plan;
            ``(8) a mechanism for monitoring achievement of the stated 
        goals of the plan; and
            ``(9) involvement of local public and private agencies and 
        organizations which have expertise in wetlands conservation or 
        land use planning or development.''.

SEC. 6. PERMITTING REQUIREMENTS.

    Subsection (d) of section 404 (33 U.S.C. 1344) is amended to read 
as follows:
    ``(d) Permitting Requirements.--
            ``(1) No net loss of wetland functions and values.--In 
        issuing each permit under this section, the Secretary shall 
        ensure, to the maximum extent practicable, that there is no net 
        loss of the acreage, functions, and values of wetlands.
            ``(2) Mitigation requirements.--All conditions contained in 
        permits issued pursuant to this section shall be enforceable. 
        Conditions requiring the mitigation of wetland losses shall be 
        monitored in order to ensure compliance and determine 
        effectiveness.
            ``(3) Deadline for issuance of permits to assist small 
        landowners.--
                    ``(A) In general.--On or before the 60th day 
                following the date on which the Secretary publishes 
                notice of a completed application under paragraph (1) 
                for a permit for a minor discharge into wetlands, the 
                Secretary shall make a determination on whether to 
                issue or deny such permit and transmit to the applicant 
                written notice of such determination. Except as 
                provided by subparagraph (B), if the Secretary does not 
                transmit such written notice on or before such 60th day 
                such application shall be deemed approved and the 
                Secretary shall transmit to the applicant written 
                notice of such approval.
                    ``(B) Exceptions.--The Secretary may make a 
                determination on whether to issue or deny a permit for 
                a minor discharge into wetlands after the 60th day 
                referred to in subparagraph (A) only if on or before 
                such 60th day--
                            ``(i) the Secretary provides to the 
                        applicant written notice that the application 
                        is subject to further review because the 
                        Secretary has determined based on available 
                        information that issuance of the permit may 
                        pose a significant risk to the environment;
                            ``(ii) the Secretary provides to the 
                        applicant, based upon a determination by the 
                        Secretary or upon request of the Secretary of 
                        the Interior, the Secretary of Commerce, or the 
                        Administrator, written notice that additional 
                        time is needed to process the application in 
                        order to provide for compliance with other 
                        Federal laws; or
                            ``(iii) the applicant transmits to the 
                        Secretary a written request for additional 
                        time.
                    ``(C) Minor discharge into wetlands defined.--For 
                the purposes of this paragraph, the term `minor 
                discharge into wetlands' means a discharge of dredged 
                or fill material into wetlands which--
                            ``(i) does not affect more than 1 acre of 
                        wetlands;
                            ``(ii) is performed by a private 
                        individual; and
                            ``(iii) is not part of a plan, proposal, or 
                        project to affect additional wetlands.
                    ``(D) Regulations.--Not later than 6 months after 
                the date of the enactment of this paragraph, and after 
                notice and opportunity for public comment, the 
                Secretary shall issue regulations to carry out this 
                paragraph.
            ``(4) Processing fees.--
                    ``(A) In general.--The Secretary shall establish 
                and collect fees for processing permit applications 
                under this section.
                    ``(B) Amounts.--In establishing fees under 
                subparagraph (A), the Secretary shall seek to collect a 
                total of $10,000,000 per fiscal year from such fees. No 
                fee for an application for an individual permit to 
                conduct a non-commercial activity shall exceed $20.00.
                    ``(C) Small landowners assistance account.--There 
                is established in the Treasury of the United States an 
                account to be known as the `Small Landowners Assistance 
                Account'. The amounts from fees collected pursuant to 
                this paragraph shall be deposited into such account and 
                shall be available to the Secretary without further 
                appropriation for providing technical assistance to 
                private landowners with inadequate financial resources 
                in complying with the requirements of this section. 
                Such technical assistance may include identification 
                and delineation of wetlands, preparation of permit 
                applications, and guidance on methods to avoid and 
                mitigate against adverse impacts to wetlands.''.

SEC. 7. GENERAL PERMITS.

    Subsection (e) of section 404 (33 U.S.C. 1344) is amended to read 
as follows:
    ``(e) General Permits.--
            ``(1) Issuance.--
                    ``(A) In general.--In carrying out the functions of 
                the Secretary under this section relating to the 
                discharge of dredged or fill material, the Secretary 
                may, after notice and opportunity for public hearing, 
                issue general permits.
                    ``(B) Categories of activities.--The Secretary may 
                issue general permits under this subsection on a State 
                or nationwide basis for any specifically defined 
                category of activities involving discharges of dredged 
                or fill material if the Secretary determines that the 
                activities in such category are similar in nature, will 
                cause only minimal adverse environmental effects when 
                performed separately, and will have only a minimal 
                cumulative adverse effect on the environment.
                    ``(C) Categories of waters.--The Secretary may 
                issue general permits under this subsection on a State 
                or nationwide basis for discharges of dredged or fill 
                material into any specifically defined category of 
                waters if the Secretary determines that the waters in 
                such category are similar in nature and that discharges 
                into such waters will cause only minimal adverse 
                environmental effects when performed separately and 
                will have only a minimal cumulative adverse effect on 
                the environment.
                    ``(D) Requirements and standards.--Any general 
                permit issued under this subsection shall--
                            ``(i) be based on guidelines established 
                        pursuant to subsection (b)(1);
                            ``(ii) set forth requirements and standards 
                        to minimize individual and cumulative impacts 
                        resulting from activities authorized by the 
                        general permit; and
                            ``(iii) include measures to enable the 
                        Secretary to be apprised of and to monitor 
                        activities conducted under the general permit.
            ``(2) Programmatic permits.--In order to avoid unnecessary 
        duplication of Federal and State requirements, a general permit 
        may be issued under this subsection for an existing State 
        regulatory program if the general permit--
                    ``(A) requires the State agency administering the 
                regulatory program to have jurisdiction over the 
                activities and waters within the scope of the general 
                permit;
                    ``(B) provides adequate safeguards to ensure that 
                the activities permitted under the regulatory program 
                will have no more than a minimal cumulative adverse 
                effect on the environment and that the regulatory 
                program will provide at least the same degree of 
                protection for the navigable waters as the protection 
                provided by this section;
                    ``(C) provides at least the same opportunity for 
                public review, comment, and hearings as provided by 
                this section;
                    ``(D) includes provisions to provide an opportunity 
                for the Secretary, the Administrator, the Secretary of 
                the Interior (acting through the Director of the United 
                States Fish and Wildlife Service), and the Secretary of 
                Commerce (acting through the Administrator of the 
                National Oceanic and Atmospheric Administration) to 
                review permit applications submitted to and decisions 
                made by the State agency to ensure that the 
                requirements of this subsection are met and to ensure 
                that individual permits are required under subsection 
                (a) for discharges that may have more than a minimal 
                individual or cumulative impact on the environment; and
                    ``(E) is expressly made subject to all other 
                Federal environmental laws.
            ``(3) Term.--No general permit issued under this subsection 
        shall be for a period of more than 5 years after the date of 
        its issuance and such general permit shall be revoked or 
        modified by the Secretary if, after notice and opportunity for 
        public hearing, the Secretary determines that--
                    ``(A) the activities authorized by the general 
                permit have more than a minimal adverse impact on the 
                environment;
                    ``(B) such activities are more appropriately 
                authorized by individual permits; or
                    ``(C) a State government has failed to monitor and 
                control the individual and cumulative adverse effects 
                of activities conducted under State general permits.
            ``(4) Notice for activities requiring predischarge 
        notification.--Any activity for which a general permit issued 
        under this subsection requires predischarge notification shall 
        not be considered to be authorized by the general permit before 
        the Secretary provides notice and 30 days opportunity for 
        comment to the Administrator, the Secretary of the Interior, 
        the Secretary of Commerce, and State agencies responsible for 
        water quality, coastal zone management, and fish and wildlife 
        resources which may be affected by the activity, and to the 
        public.
            ``(5) Review.--The Secretary shall conduct a review of each 
        general permit issued pursuant to this subsection for which a 
        report issued under subsection (u) contains information 
        indicating more than a minimal adverse cumulative effect on the 
        environment. Any such general permit shall, after notice and 
        opportunity for public hearing, be revoked or modified by the 
        Secretary as necessary to avoid or minimize such cumulative 
        adverse effects.
            ``(6) State regulatory program defined.--For the purposes 
        of this subsection, the term `State regulatory program' shall 
        include the regulatory program of an Indian tribe.''.

SEC. 8. EXEMPTIONS FROM PERMITTING REQUIREMENTS.

    (a) Exemption of Discharges.--
            (1) Normal farming, silviculture, and ranching 
        activities.--Subparagraph (A) of section 404(f)(1) (33 U.S.C. 
        1344(f)(1)) is amended to read as follows:
            ``(A) from normal farming, silviculture, and ranching 
        activities, such as haying, grazing, plowing, seeding, 
        cultivating, minor drainage, maintenance, fence building and 
        maintenance, water management activities associated with 
        cranberry farming, including those which periodically change 
        the hydrologic regime of the navigable waters, harvesting for 
        the production of food, fiber, and forest products, or upland 
        soils and water conservation practices;''.
            (2) Maintenance of wastewater retention facilities.--
        Subparagraph (C) of section 404(f)(1) is amended by inserting 
        after ``irrigation ditches,'' the following: ``the maintenance, 
        including diking and berming, of wastewater retention 
        facilities that are used by concentrated animal feeding 
        operations,''.
    (b) Exemption of Areas.--Subsection (f) of section 404 is amended 
by adding at the end the following new paragraphs:
            ``(3) Exemption of areas from permitting requirements.--For 
        the purposes of this section, the following shall not be 
        considered to be navigable waters:
                    ``(A) Irrigation ditches excavated in non-waters.
                    ``(B) Artificially irrigated areas which would 
                revert to non-waters if the irrigation ceased.
                    ``(C) Artificial lakes or ponds which are created 
                by excavating or diking non-waters to collect and 
                retain water and which are used exclusively for stock 
                watering, irrigation, or rice growing.
                    ``(D) Artificial reflecting or swimming pools or 
                other small ornamental bodies of water created by 
                excavating or diking non-waters to retain water for 
                primarily aesthetic reasons.
                    ``(E) Temporary, water-filled depressions created 
                in non-waters incidental to construction activity.
                    ``(F) Pits excavated in non-waters for the purpose 
                of obtaining fill, sand, gravel, aggregates, or 
                minerals, unless and until the construction or 
                excavation operation is abandoned and the resulting 
                body of water meets the definition of navigable waters.
                    ``(G) Artificial stormwater detention areas and 
                artificial sewage treatment areas that are not 
                modifications of navigable waters.
                    ``(H) Prior converted cropland unless and until 
                such cropland is abandoned, as determined by the Chief 
                of the Soil Conservation Service pursuant to paragraph 
                (4).
                    ``(I) Confined dredged material disposal sites 
                constructed in non-waters.
            ``(4) Abandonment of prior converted cropland.--For the 
        purposes of paragraph (3)(H), abandonment of prior converted 
        cropland means the cessation of cropping, management, or 
        maintenance operations of agricultural commodities on such 
        land. Where the cessation of such cropping, management, or 
        maintenance operations has occurred, prior converted cropland 
        is considered to be abandoned unless it is shown that there was 
        no intent to abandon; provided, however, that at the end of 5 
        successive years during which there was no crop production, 
        such land shall be determined to be abandoned if the land meets 
        the wetland criteria of section 12.31 of title 7, Code of 
        Federal Regulations, as in effect on the date of the enactment 
        of this paragraph. Participation in a set-aside, diverted 
        acres, or similar program of the Department of Agriculture 
        shall not be considered to constitute abandonment.''.

SEC. 9. REPORT ON EFFECTS OF PERMIT PROGRAM; NEEDS ANALYSIS.

    (a) Report on Effects of Permit Program.--Section 404 (33 U.S.C. 
1344) is amended by adding at the end the following new subsection:
    ``(u) Report on Effects of Permit Program.--
            ``(1) In general.--Not later than January 1, 1996, and once 
        every 2 years thereafter, the Secretary shall transmit to 
        Congress and the Administrator a report on the effects on 
        navigable waters of activities conducted under permits 
        (including general permits) issued pursuant to this section.
            ``(2) Contents.--Each report transmitted under this 
        subsection shall include, at a minimum, for the preceding 2-
        year period--
                    ``(A) an identification of the number of permit 
                applications that were granted, withdrawn, or denied;
                    ``(B) estimates of the total acreage, functions, 
                and values of navigable waters adversely affected by 
                the issuance of individual permits under subsection 
                (a);
                    ``(C) estimates of the acreage, functions, and 
                values of navigable waters adversely affected by each 
                general permit issued under subsection (e), in order to 
                determine whether the individual and cumulative adverse 
                environmental effects of activities authorized by the 
                general permit are minimal;
                    ``(D) estimates of the acreage of navigable waters 
                preserved or restored through mitigation of permitted 
                activities, the rate of compliance with such mitigation 
                requirements, the monitoring of such compliance, and 
                estimates of success and failure rates of mitigation 
                projects;
                    ``(E) estimates of the acreage of navigable waters 
                restored through activities other than compensatory 
                mitigation; and
                    ``(F) a summary of information contained in the 
                national data base established under this subsection.
            ``(3) Consultation.--Each report transmitted under this 
        subsection shall be prepared in consultation with the 
        Administrator, the Secretary of the Interior, the Chief of the 
        Soil Conservation Service, State officials administering 
        regulatory programs for which general permits have been issued 
        under section 404(e), and State officials administering 
        individual and general permit programs approved under section 
        404(h).
            ``(4) Notice and comment.--Before transmitting any report 
        under this subsection, the Secretary shall provide notice and 
        opportunity for public comment.
            ``(5) National data base.--The Secretary shall establish a 
        national data base containing information on wetland location, 
        functions, values, and acreage, including information on 
        mitigation and restoration projects. Such information shall be 
        made available to the National Biological Survey of the 
        Department of the Interior and other interested persons.''.
    (b) Needs Analysis.--
            (1) In general.--Not later than 180 days after the date of 
        the enactment of this Act, the Comptroller General shall 
        transmit to Congress an analysis of the needs of the Department 
        of the Army, the Environmental Protection Agency, the United 
        States Fish and Wildlife Service, the Soil Conservation 
        Service, and the National Marine Fisheries Service for 
        additional personnel, administrative resources, and funding to 
        improve implementation of section 404 of the Federal Water 
        Pollution Control Act and to carry out the provisions of this 
        Act.
            (2) Contents.--The analysis submitted under this subsection 
        shall--
                    (A) give particular emphasis to the needs of the 
                agencies identified in paragraph (1) with respect to 
                improving and expediting wetlands delineation and 
                permitting under section 404 of the Federal Water 
                Pollution Control Act, including advance planning and 
                early consultation;
                    (B) include specific recommendations regarding 
                additional appropriations and staffing necessary for 
                such improvement and expedition; and
                    (C) include specific recommendations concerning 
                allocation of additional appropriations and staffing to 
                the regional, district, and field offices of the 
                agencies identified in paragraph (1) according to the 
                workload of those offices.

SEC. 10. ADMINISTRATIVE APPEALS.

    Section 404 (33 U.S.C. 1344(d)) is further amended by adding at the 
end the following new subsection:
    ``(v) Administrative Appeals.--
            ``(1) Procedures.--The Secretary shall, after notice and 
        opportunity for public comment, issue rules to establish 
        procedures to provide for administrative appeal of each of the 
        following actions under this section:
                    ``(A) A determination of regulatory jurisdiction 
                over a particular parcel of property.
                    ``(B) The issuance or denial of a permit.
                    ``(C) The imposition of an administrative penalty.
            ``(2) Persons who may initiate appeals.--Rules issued under 
        paragraph (1) shall provide that any person who is adversely 
        affected by an action described in paragraph (1) and, in the 
        case of the issuance or denial of a permit, any person who has 
        participated in the public comment process concerning the 
        permit may initiate an administrative appeal.
            ``(3) Hearing of appeals.--Rules issued under paragraph (1) 
        shall provide that any administrative appeal of an action 
        described in paragraph (1) will be heard and decided by an 
        official other than the official who took the action and will 
        be conducted at a location which is in the vicinity of the 
        parcel of property involved in the action.''.

SEC. 11. WETLANDS MITIGATION.

    Section 404 (33 U.S.C. 1344) is further amended by adding at the 
end the following new subsection:
    ``(w) Wetlands Compensatory Mitigation Guidelines.--
            ``(1) Establishment of guidelines.--The Administrator, in 
        cooperation with the Secretary, and after notice and 
        opportunity for public comment, shall establish technical 
        guidelines for the restoration, enhancement, and creation of 
        wetlands under this section. Such guidelines shall comply with, 
        and follow the scientific guidelines of, guidelines established 
        pursuant to section 404(b)(1).
            ``(2) Permit requirements.--After the date of issuance of 
        guidelines under paragraph (1), conditions contained in permits 
        issued pursuant to this section requiring mitigation of wetland 
        losses shall be established through the application of such 
        guidelines.
            ``(3) Performance bond.--Guidelines issued under paragraph 
        (1) shall provide that any permit issued pursuant to this 
        section which imposes a requirement on the permitee to carry 
        out a project to mitigate for wetlands losses will also impose 
        a requirement that the permitee issue a performance bond to 
        ensure completion and protect against the failure of such 
        mitigation project unless--
                    ``(A) such mitigation project is for the 
                restoration or enhancement of less than 5 acres of 
                wetlands and is not part of a larger mitigation 
                project; or
                    ``(B) such mitigation project is for the 
                restoration or enhancement of any amount of lands 
                identified by the Soil Conservation Service as prior 
                converted cropland.
            ``(4) Prior converted cropland.--Guidelines issued pursuant 
        to paragraph (1) shall establish a rebuttable presumption that 
        restoration of lands identified by the Soil Conservation 
        Service as prior converted cropland, if proposed as mitigation 
        for the loss of a wetland with similar characteristics and 
        within close proximity to the permitted activity, will result 
        in 1:1 replacement of similar acreage, functions, and values 
        lost as a result of the permitted activity.
            ``(5) Monitoring and evaluation.--Guidelines issued 
        pursuant to paragraph (1) shall establish standards and 
        protocols for the monitoring and evaluation of mitigation 
        projects.
            ``(6) Preference.--Guidelines issued pursuant to paragraph 
        (1) shall provide that in imposing wetland mitigation 
        requirements under permits issued pursuant to this section 
        preference will be given, in order of priority, to--
                    ``(A) in-kind restoration carried out on the site 
                of the permitted activity;
                    ``(B) in-kind restoration carried out on the same 
                water body as, and in close proximity to, the site of 
                the permitted activity; and
                    ``(C) in-kind restoration carried out within the 
                same watershed as, and in close proximity to, the site 
                of the permitted activity;
        unless the applicant can demonstrate that other compensatory 
        mitigation, including participation in mitigation banks, would 
        provide greater restoration of the functions and values lost as 
        a result of the permitted activity.''.

SEC. 12. MITIGATION BANKS.

    Section 404 (33 U.S.C. 1344) is further amended by adding at the 
end the following new subsection:
    ``(x) Mitigation Banks.--
            ``(1) Establishment.--
                    ``(A) In general.--Not later than 180 days after 
                the date of the enactment of this Act, the Secretary of 
                the Interior (acting through the Director of the United 
                States Fish and Wildlife Service), in consultation with 
                the Administrator, shall issue regulations, after 
                notice and opportunity for public review and comment, 
                for the establishment, operation, monitoring, and 
                enforcement of mitigation banks.
                    ``(B) Requirements.--Regulations issued under 
                subparagraph (A) shall ensure that mitigation banks--
                            ``(i) comply with the guidelines 
                        established pursuant to subsection (b)(1);
                            ``(ii) comply with the guidelines issued 
                        under subsection (w);
                            ``(iii) to the extent practicable and 
                        environmentally desirable, provide for full 
                        replacement of the acreage, functions, and 
                        values of lost wetlands and be at sites located 
                        in close proximity to the impacted wetlands;
                            ``(iv) employ consistent and scientifically 
                        sound methods to determine debits by evaluating 
                        wetlands functions and project impacts at the 
                        sites of proposed permits for discharges of 
                        dredged or fill material pursuant to this 
                        section and to determine credits based upon 
                        wetlands acreage, functions, and values at the 
                        sites of mitigation banks;
                            ``(v) award credits only for wetlands which 
                        are successfully restored or enhanced in 
                        advance of awarding credit;
                            ``(vi) base fee charges for participation 
                        in the mitigation bank on the full costs of 
                        replacing the acreage, functions, and values of 
                        lost wetlands, including the costs of land 
                        acquisition, wetlands establishment, management 
                        measures, long-term maintenance, monitoring, 
                        and protection, potential remediation of 
                        project failure, and other relevant factors;
                            ``(vii) are established only in conjunction 
                        with a State restoration strategy that is 
                        developed, after notice and opportunity for 
                        public comment, on a statewide, regional, or 
                        watershed basis;
                            ``(viii) be operated by an entity which has 
                        the financial capability to meet the 
                        requirements of this section, including the 
                        deposit of a performance bond or other 
                        appropriate demonstration of financial 
                        responsibility to support the long-term 
                        maintenance of the bank;
                            ``(ix) specify responsibilities for long-
                        term monitoring, maintenance, and protection; 
                        and
                            ``(x) provide opportunity for public review 
                        of proposals for the establishment, siting, and 
                        operation of mitigation banks through 1 or more 
                        opportunities for public notice and comment.
            ``(2) Mitigation bank defined.--For the purposes of this 
        subsection, the term `mitigation bank' means wetlands 
        restoration or enhancement projects undertaken by one or more 
        parties, including private and public entities, expressly for 
        the purpose of providing advance mitigation to fully offset 
        reasonably foreseeable wetlands losses from future discharges 
        of dredged or fill material into the navigable waters, where 
        adverse impacts to wetlands cannot be avoided or minimized and 
        compensatory mitigation at the project site is not practicable 
        or mitigation off the project site would provide greater 
        replacement of the wetland functions and values lost as a 
        result of such discharges.
            ``(3) Nonapplicability of other laws.--Notwithstanding any 
        other provision of law, mitigation banks may be established for 
        the purposes of this section only in accordance with rules 
        issued under this subsection.''.

SEC. 13. WETLANDS DELINEATION CERTIFICATION PROGRAM AND PROGRAMS TO 
              PROVIDE TECHNICAL ASSISTANCE.

    Section 404 (33 U.S.C. 1344) is further amended by adding at the 
end the following new subsection:
    ``(y) Wetlands Delineation Certification Program.--
            ``(1) In general.--The Secretary shall establish a program 
        for training and certification of individuals as wetlands 
        delineators. Such program shall supplement, as necessary, any 
        program established pursuant to section 307(e) of the Water 
        Resources Development Act of 1990 (104 Stat. 4627).
            ``(2) Training.--As part of the program to be established 
        under paragraph (1), the Secretary shall--
                    ``(A) develop courses for certification of wetlands 
                delineators;
                    ``(B) develop courses on wetlands delineation, 
                utilization of wetlands in pollution control, 
                restoration, planning, evaluation, mitigation banking, 
                and other appropriate wetland technologies; and
                    ``(C) provide for the participation of State, 
                tribal, and local governments and individuals in such 
                courses.
            ``(3) Fees.--The Secretary shall collect fees for services 
        provided under the program to offset the costs of administering 
        the program.''.

SEC. 14. EDUCATION AND OUTREACH PROGRAM.

    Section 404 (33 U.S.C. 1344) is further amended by adding at the 
end the following new subsection:
    ``(z) Education and Outreach Program.--
            ``(1) In general.--The Secretary, the Administrator, and 
        the Chief of the Soil Conservation Service shall jointly 
        establish a program and prepare materials--
                    ``(A) to improve existing outreach and education 
                activities of the Corps of Engineers, the Department of 
                Agriculture, and the Environmental Protection Agency;
                    ``(B) to assist private individuals in complying 
                with the requirements of this section; and
                    ``(C) to inform the public of the value in 
                preserving wetlands.
            ``(2) Materials.--As part of the program to be established 
        under paragraph (1), the Secretary shall provide private 
        landowners with technical materials to assist with wetlands 
        identification, evaluation, and mitigation and with the 
        development of restoration plans.''.

SEC. 15. SECTION 404 DEFINITIONS.

    Section 404 (33 U.S.C. 1344) is further amended by adding at the 
end the following new subsection:
    ``(a)(a) Definitions.--As used in this section, the following 
definitions apply:
            ``(1) Discharge of dredged or fill material.--The term 
        `discharge of dredged or fill material' means--
                    ``(A) any addition or redeposit of dredged or fill 
                material into the navigable waters which is incidental 
                to any activity, including draining, dredging, 
                excavating, channelizing, flooding, pumping, driving of 
                pilings or placement of other obstructions, mechanized 
                land clearing, ditching, and diversion of water; and
                    ``(B) any activity specifically referred to in 
                subparagraph (A) conducted in or near the navigable 
                waters which, without adding or redepositing dredged or 
                fill material into the navigable waters, otherwise 
                impairs the flow, reach, or circulation of surface 
                water or results in a significant change in the 
                hydrologic regime, bottom contour, or configuration of 
                such waters or in the type, distribution, or diversity 
                of vegetation, fish, and wildlife that depend on such 
                waters.
            ``(2) Prior converted cropland.--The term `prior converted 
        cropland' means wetlands that were drained, dredged, filled, 
        leveled, or otherwise manipulated before December 23, 1985, for 
        the purpose of, or to have the effect of, making the production 
        of an agricultural commodity possible, and that no longer meet 
        the definition of the term `wetlands' contained in section 
        1201(a) of the Food Security Act of 1985.
            ``(3) Secretary.--The term `Secretary' means the Secretary 
        of the Army, acting through the Chief of Engineers.''.

SEC. 16. GENERAL DEFINITIONS.

    (a) Navigable Waters.--Paragraph (7) of section 502 (33 U.S.C. 
1362) is amended by inserting ``and wetlands'' before the period.
    (b) Wetlands.--Section 502 is further amended by adding at the end 
the following new paragraph:
  ``(21) The term `wetlands' means those areas that are inundated or 
saturated by surface water or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, 
a prevalence of vegetation typically adapted to life in saturated soil 
conditions. Wetlands include, but are not limited to, bogs, marshes, 
fens, pocosins, playa lakes, prairie potholes, swamps, and vernal 
pools.''.

SEC. 17. SENSE OF CONGRESS CONCERNING WETLANDS RESERVE PROGRAM.

    It is the sense of Congress that the Wetlands Reserve Program 
authorized by the Food, Agriculture, Conservation, and Trade Act of 
1990 is an effective wetlands conservation and restoration program 
which has the potential to benefit agriculturists, rural communities, 
and the Nation's wetlands resource base. Further, it is the sense of 
Congress that the Wetlands Reserve Program should be fully funded to 
achieve its acreage enrollment goals, and should be actively promoted 
by the Department of Agriculture to achieve full subscription.

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