[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2506 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2506

          Entitled ``Wetlands Regulatory Reform Act of 1995''.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

            October 5 (legislative day, September 12), 1994

 Mr. Johnston introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
          Entitled ``Wetlands Regulatory Reform Act of 1995''.

    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 Regulatory Reform Act of 
1995''.

SEC. 2. FINDINGS AND DECLARATION OF POLICIES AND GOALS.

    (a) Findings.--The Congress finds that--
            (1) wetlands served important ecological and natural 
        resource functions, such as providing essential nesting and 
        feeding habitat for waterfowl, other wildlife, and many rare 
        and endangered species, fisheries habitat, the enhancement of 
        water quality, and natural flood control;
            (2) much of the Nation's resource has sustained significant 
        degradation, resulting in the need for effective programs to 
        limit the loss of ecologically significant wetlands and to 
        provide for long-term restoration and enhancement of the 
        wetlands resource base; and
            (3) because 75 percent of the Nation's wetlands in the 
        lower forty-eight States are privately owned and because the 
        majority of the Nation's population lives in or near wetlands 
        areas, an effective wetlands conservation and management 
        program must reflect a balanced approach that conserves and 
        enhances ecologically significant wetlands functions while 
        respecting private property rights, recognizing the need for 
        essential public infrastructure, such as highways, utilities, 
        ports, airports, sewer system, and public water supply systems, 
        and the need to preserve strong local tax bases, and providing 
        the opportunity for sustained economic growth.
    (b) Declaration of Policies and Goals.--Section 101(a) (33 U.S.C. 
1251(a)) 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 a semicolon; and
            (3) by adding at the end the following:
            ``(8) it is the national policy that the Federal wetlands 
        permitting program under section 404 of the Federal Water 
        Pollution Control Act shall be implemented to protect 
        ecologically significant wetlands while avoiding the 
        diminishment of the use and value of privately-owned 
        property.''.

SEC. 3. BALANCED IMPLEMENTATION OF PROGRAM TO CONSERVE WETLANDS WHILE 
              PROTECTING PRIVATE PROPERTY RIGHTS.

    Section 404 (33 U.S.C. 1344) is amended by adding at the end the 
following new subsection:
    ``(u) Balanced Implementation.--
            ``(1) In implementing their responsibilities under the 
        regulatory program under this section, the Secretary and the 
        Administrator shall balance the objective of conserving 
        functioning wetlands with the objective of ensuring continued 
        economic growth, providing essential infrastructure, 
        maintaining strong State and local tax bases, and protecting 
        against the diminishment of the use and value of privately-
        owned property.
            ``(2) In carrying out this section, the Secretary and the 
        Administrator and all other Federal agencies and officials of 
        the Federal Government shall seek in all actions to minimize 
        the adverse effects of the regulatory program under this 
        section on the use and value of privately-owned property.''.

SEC. 4. DEFINITION AND DELINEATION OF WETLANDS.

    (a) Section 404 is amended by adding at the end the following new 
subsection:
    ``(v) Definitions.--For purposes of this section, the term--
            ``(1) `wetlands' means those areas that are inundated or 
        saturated by surface or groundwater at a frequency and duration 
        sufficient to support, and that under normal circumstances do 
        support, a prevalence of vegetation typically adapted for life 
        in saturated soil conditions. Wetlands generally include 
        swamps, marshes, bogs, fens, potholes, playa lakes, vernal 
        pools, and similar areas;
            ``(2) `Secretary' means the Secretary of the Army, acting 
        through the Chief of Engineers; and
            ``(3) `Administrator' means the Administrator of the 
        Environmental Protection Agency.''.
    (b) Section 404(a) (33 U.S.C. 1344(a)) is amended--
            (1) by inserting ``(1)'' after ``(b)'';
            (2) by redesignating paragraphs (1) and (2) as 
        subparagraphs (A) and (B);
            (3) by striking ``clause (1)'' and inserting in lieu 
        thereof ``subparagraph (A)''; and
            (4) by adding at the end the following new paragraphs:
            ``(2) Revisions to delineation procedures.--
                    ``(A) In general.--After the date of enactment of 
                this Act, no revisions to or clarifications of the 
                guidelines for identifying and delineating wetlands 
                areas under this subsection shall be issued until the 
                National Academy of Sciences has completed the study of 
                wetlands authorized by the Department of Veterans 
                Affairs and Housing and Urban Development, and 
                Independent Agencies Appropriations Act, 1993 (Public 
                Law 102-389).
                    ``(B) Revisions.--Within 18 months of the 
                completion of the study required under subparagraph 
                (A), the Administrator shall review the results of the 
                study and, in consultation with the Secretary, the 
                Secretary of Agriculture, the Secretary of the 
                Interior, and the States, revise the guidelines 
                referenced in subparagraph (A) in accordance with 
                subparagraph (E), and as is otherwise necessary.
                    ``(C) Promulgation of regulations.--Revision of the 
                guidelines referenced in subparagraph (A), along with 
                those portions of the guidelines that the Administrator 
                does not propose to revise, shall, after public notice 
                and opportunity for comment, be issued (in accordance 
                with section 553 of title 5 of the United States Code 
                and as otherwise required under this section) as final 
                rules and regulations. In carrying out the provisions 
                of this subparagraph, public hearings shall be held in 
                geographic areas of the Nation that contain significant 
                areas of wetlands.
                    ``(D) Notwithstanding subparagraph (C), regulations 
                adopted pursuant to this paragraph shall be submitted 
                to the relevant authorizing committees of the House of 
                Representatives and the Senate and shall not become 
                effective until the 181st day after such submission.
                    ``(E) The regulations promulgated pursuant to this 
                paragraph shall provide that, except in the limited 
                instances identified in the Corps of Engineers Wetlands 
                Delineation Manual issued in January 1987 (Technical 
                Report Y-87-1) and implementing guidelines, in order to 
                make a positive wetland delineation determination, 
                clear evidence of wetlands hydrology, hydrophytic 
                vegetation, and hydric soil must be found to be present 
                during the period in which the delineation is made.
            ``(3) Continued use of 1987 manual.--
                    ``(A) In general.--Until such regulations are 
                promulgated, the Secretary, acting through the Chief of 
                Engineers, shall use the Corps of Engineers Wetlands 
                Delineation Manual issued in January 1987 (Technical 
                Report Y-87-1) and implementing guidelines to identify 
                and delineate wetlands areas.
            ``(4) Agricultural lands.--
                    ``(A) In general.--For purposes of this section, 
                wetlands located on agricultural lands and associated 
                non-agricultural lands shall be delineated by the 
                Secretary of Agriculture in accordance with section 
                1222(j) of the Food Security Act of 1985 (16 U.S.C. 
                3822(j)).
                    ``(B) Consistency.--Any area of agricultural land 
                or any activities related to the land determined to be 
                exempt from the requirements 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) Definition.--For purposes of this section, 
                the term `agricultural lands' means cropland, 
                pastureland, native pasture, rangeland, orchards, 
                vineyards, nonindustrial forest land, and any other 
                land used to produce or support the production of an 
                annual or perennial crop of a commodity, aquaculture 
                product, nursery product, or livestock.''

SEC. 5. WETLANDS CLASSIFICATIONS.

    Section 404(d) (33 U.S.C. 1344(d)) is amended by striking all 
therein and by inserting in lieu thereof the following:
    ``(d) Wetlands Classification.--(1) The Administrator, with the 
assistance of the Secretary, and in consultation with the Secretary of 
the Department of Agriculture, the Secretary of the Department of the 
Interior, and the States, shall undertake a project to classify 
wetlands in the United States. Such classification project shall be 
completed not later than ten years after the date of enactment of this 
Act. In undertaking such project, priority shall be given to requests 
for classification under paragraph (4).
    ``(2) In conducting the project under this section, the 
classification of wetlands shall be based upon the best reasonably 
obtainable scientific information, including the results of the 
National Academy of Sciences study of wetlands authorized by the 
Departments of Veterans Affairs and Housing and Urban Development, and 
Independent Agencies Appropriations Act, 1993 (Public Law 102-389). 
Wetlands shall be classified as either Class A, Class B, or Class C, 
depending on their relative ecological significance, taking into 
account regional variations in hydrology, soils, and vegetation, as 
follows--
            ``(A) Class A wetlands are those wetlands--
                    ``(i) which serve critical wetlands functions, 
                including the provision of critical habitat for a 
                concentration of avian, aquatic, or wetland-dependent 
                wildlife;
                    ``(ii) which 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 classification as 
                Class A wetlands lands containing prairie pothole 
                features, playa lakes, or vernal pools if such lands 
                otherwise meet the requirements for Class A 
                classification under this paragraph;
                    ``(iii) for which there exists a scarcity of 
                functioning wetlands within the watershed or aquatic 
                ecosystem such that the discharge of dredged or fill 
                material into such wetlands would seriously jeopardize 
                the availability of the wetlands functions identified 
                in clause (i); and
                    ``(iv) for which there is no overriding public 
                interest in the use of such wetlands for purposes other 
                than those served by wetlands;
            ``(B) Class B wetlands are those wetlands that provide 
        habitat for a significant population of avian, aquatic, or 
        wetland-dependent wildlife, or provide other significant 
        wetlands functions, including significant enhancement or 
        protection of water quality, or significant natural flood 
        control; and
            ``(C) Class C wetlands are those wetlands that--
                    ``(i) serve marginal wetlands functions that exist 
                in such abundance that regulation of activities in such 
                wetlands is not necessary to conserve important 
                wetlands functions;
                    ``(ii) are within industrial complexes or other 
                intensely developed areas that do not serve significant 
                wetlands functions as a result of such location; or
                    ``(iii) are located behind legally constituted, 
                man-made structures or natural formations, 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.
    ``(3) In conducting the classification project under this section, 
there shall be a public hearing in each county, parish, or borough of a 
State before completion of wetlands classification in such county, 
parish, or borough. Promptly after completion of wetlands 
classification in a county, parish, or borough, a map or maps 
indicating the classification of such wetlands shall be made available 
to the public in the building within the county, parish, or borough 
that contains property records, and shall be filed with such property 
records, and notice of same shall be published in the Federal Register 
and in publications of wide circulation in such county, parish, or 
borough.
    ``(4) Until the classification process has been completed with 
respect to wetlands within a particular county, parish, or borough, any 
person seeking a classification of such wetlands may file a request 
with the Secretary, identifying the site of the wetlands and requesting 
the Secretary to determine the classification of such wetlands. The 
requestor shall provide such additional information as may be necessary 
for purposes of determining the classification of such wetlands.
    ``(5) Within 90 days following receipt of a request for 
classification under paragraph (4), the Secretary shall notify the 
requestor of the classification of the wetlands that are the subject of 
such request and shall state in writing the basis for such 
classification. The classification of the wetlands that are the subject 
of the request shall be determined by the Secretary in accordance with 
this subsection and the regulations promulgated pursuant thereto.
    ``(6) Not later than 1 year after the date of enactment of this 
Act, the Administrator, with the assistance of the Secretary, shall 
issue regulations implementing this subsection. Until such regulations 
are issued, the Secretary shall classify wetlands in response to a 
request for classification under paragraph (4), or as part of the 
permitting process pursuant to subsection (a).''.

SEC. 6. ACTIVITIES REGULATED.

    Section 404(a) (33 U.S.C. 1344(a)) is amended--
            (1) by striking ``(a) The Secretary'' and inserting the 
        following:
    ``(a) In General.--
            ``(1) Issuance of permits.--The Secretary'';
            (2) by adding at the end the following new paragraph:
            ``(2) For purposes of this section, the discharge of 
        dredged or fill material into waters of the United States 
        includes the draining, channelization, and excavation of 
        wetlands.''.

SEC. 7. PERMIT METHODOLOGY.

    Section 404(a) (33 U.S.C. 1344(a)) is further amended by adding at 
the end the following new paragraphs:
            ``(3)(A) The Secretary shall determine whether to issue a 
        permit for the discharge of dredged or fill material into 
        wetlands classified pursuant to subsection (d) as Class A 
        wetlands based on a sequential analysis that seeks to--
                    ``(i) avoid adverse effects on such wetlands,
                    ``(ii) minimize such adverse effects that cannot be 
                avoided, and
                    ``(iii) mitigate any adverse effects that cannot be 
                avoided and that remain after minimization.
        Any permit authorizing the discharge of dredged or fill 
        material in Class A wetlands may contain such terms and 
        conditions concerning mitigation that the Secretary deems 
        appropriate to prevent the unacceptable loss or degradation of 
        Class A wetlands.
            ``(B) The Secretary shall determine whether to issue a 
        permit to authorize discharges of dredged or fill material in 
        wetlands classified pursuant to subsection (d) as Class B 
        wetlands pursuant to a public interest review. Such public 
        interest review shall balance the reasonably foreseeable 
        benefits and detriments resulting from issuance of the permit, 
        based on such factors as economic growth, the need for fish and 
        wildlife habitat, water supply and conservation, water quality, 
        infrastructure needs, energy needs, mineral needs, food 
        production, recreation, and considerations of private property 
        ownership. The Secretary may condition such permit as necessary 
        to ensure that the watershed or aquatic ecosystem of which such 
        wetlands are a part does not suffer significant loss or 
        degradation of wetlands functions.
            ``(C) No permit from the Secretary shall be required with 
        respect to the discharge of dredged or fill material on 
        wetlands classified pursuant to subsection (d) as Class C 
        wetlands. A State may require a permit with respect to 
        discharges in Class C wetlands if such State deems it 
        appropriate, along with such terms and conditions as such State 
        may impose.''.

SEC. 8. REQUIRE CONSULTATION BETWEEN EPA AND THE CORPS; REPEAL 
              AUTHORITY OF EPA TO VETO CORPS PERMITTING DECISIONS.

    Section 404(c) (33 U.S.C. 1344(c)) is amended to read as follows: 
``The Secretary shall consult with the Administrator regarding whether 
the discharge of such material at the specified disposal site would 
have an unacceptable adverse effect on municipal water supplies, 
shellfish beds and fishery areas (including spawning and breeding 
areas), wildlife, or recreational areas.''.

SEC. 9. EXTENSIONS OF TIME AND THE CONSEQUENCES OF FAILURE BY THE 
              SECRETARY TO MAKE A DECISION.

    Section 404(a) (33 U.S.C. 1334(a) is further amended--
            (1) by adding at the end of paragraph (1) (as so 
        designated) the following new sentence: ``The Secretary shall 
        request from the applicant any additional information to 
        complete the application not later than 60 days after the 
        Secretary receives the application.''; and
            (2) by adding at the end the following new paragraphs:
            ``(3) Date of decision by secretary.--Execpt as provided in 
        paragraph (4), the Secretary shall make a decision with respect 
        to an application for a permit submitted under paragraph (1) 
        not later than 90 days after the completed application is 
        submitted.
            ``(4) Extension.--The decision of the Secretary with 
        respect to an application for a permit under paragraph (1) may 
        be made after the date specified in paragraph (3) only if--
                    ``(A) with respect to issuance of the permit, the 
                Secretary is required under the National Environmental 
                Policy Act of 1969 (42 U.S.C. 4321 et seq.) to issue an 
                environmental impact statement, in which case the 
                decision shall be made not later than 30 days after the 
                date on which the requirements of such Act are met;
                    ``(B) the permit application involves an activity 
                that may affect any species that is listed or proposed 
                for listing or any critical habitat that is designated 
                or proposed for designation under the Endangered 
                Species Act of 1973 (16 U.S.C. 1531 et seq.), in which 
                case the decision shall be made not later than 30 days 
                after the date on which the requirements of such Act 
                are met, as determined by the Secretary of the 
                Interior, or the Secretary of Commerce, whomever is 
                appropriate;
                    ``(C) the Administrator, the Secretary of 
                Agriculture, the Secretary of the Interior, the 
                Secretary of Commerce, or the Secretary of 
                Transportation, the head of any other appropriate 
                Federal agency, or the Governor of the State in which 
                the activity occurs requests that the Secretary of the 
                Army or the Secretary of Agriculture, as the case may 
                be, grant an extension beyond the date specified in 
                paragraph (3) and such Secretary grants such request in 
                writing, in which case the decision shall be made not 
                later than 150 days after the complete application is 
                submitted;
                    ``(D) the Secretary and the applicant for the 
                permit determine that additional time is needed to 
                evaluate the application; or
                    ``(E) the decision is precluded as a matter of law 
                or procedures required by law.
            ``(5) Consequences of failure by the secretary to make a 
        decision.--If the Secretary fails to make a decision by the 
        date specified in paragraph (3) or (4), as the case may be, the 
        permit shall be deemed granted.''.

SEC. 10. GENERAL PERMIT IMPROVEMENTS.

    Section 404(e) (33 U.S.C. 1344(e)) is amended--
            (1) by adding after ``minimal'' in the first place it 
        appears, ``or temporary''; and
            (2) by adding at the end the following new paragraphs:
            ``(3) State programs.--Upon the request of a State, 
        regional, local, or Tribal governmental body with an existing 
        wetlands regulatory program, the Secretary shall issue a 
        general permit for such program if the non-Federal regulatory 
        program--
                    ``(A) has jurisdiction over the activities and 
                water within the scope of the requested general permit;
                    ``(B) provides adequate safeguards to ensure that 
                it 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 the opportunity 
                provided by this section; and
                    ``(D) provides an opportunity for the Secretary, in 
                cooperation with 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 
                conduct periodic reviews of permit decisions made under 
                the non-Federal program in order to ensure that the 
                requirements of this subsection are met.
        The provisions of this paragraph shall not apply to general 
        permits issued by the Secretary for linear utility facilities, 
        and such linear utility facilities shall continue to be 
        regulated by the Secretary.
            ``(4) Consistency with swampbuster.--A general permit may 
        be issued for discharges of dredged or fill material associated 
        with activities found by the Secretary of Agriculture, in 
        consultation with the Secretary of the Interior acting through 
        the Director of the United States Fish and Wildlife Service, to 
        be exempted from the ineligibility provisions of section 1221 
        of the Food Security Act of 1985 (16 U.S.C. 3821) pursuant to 
        subsections (f) and (h) of section 1222 of such Act (16 U.S.C. 
        3822) if the general permit--
                    ``(A) provides adequate safeguards to ensure that 
                the activities exempted will have no more than minimal 
                individual and cumulative impacts on the environment; 
                and
                    ``(B) includes provisions to provide an opportunity 
                for the Secretary and the Administrator to conduct 
                periodic reviews of permit decisions made by the 
                Secretary of Agriculture to ensure that the terms and 
                conditions of the general permit and the requirements 
                of this subsection are met.
            ``(5) Grants for state, regional, local and tribal 
        programs.--The Secretary and the Administrator may make a grant 
        to a State, Tribal, regional, or local governmental body for 
        the operation of a regulatory program with respect to which a 
        general permit has been issued pursuant to this subsection. The 
        aggregate amount of such grants may not exceed the amount made 
        available by appropriations to the Secretary or the 
        Administrator to carry out this section with respect to State, 
        Tribal, regional, or local governmental bodies.''.

SEC. 11. EXEMPT ACTIVITIES.

    (a) Paragraph (1) of section 404(f) (33 U.S.C. 1344(f)(1)) is 
amended to read as follows:
    ``(f)(1) Exempt Activities.--Except as provided in paragraph (2) of 
this subsection, the discharge of dredged or fill material is exempted 
from regulation under this section, section 301(a) and 402 of this Act 
(except for effluent standards or prohibitions under section 307) if it 
is--
            ``(A) from normal farming, silviculture, and ranching 
        activities, such as haying, grazing, plowing, seeding, 
        cultivating, minor drainage, harvesting for production of food, 
        fiber, and forest products, or upland soil and water 
        conservation practices;
            ``(B) for the purpose of maintaining, including emergency 
        reconstruction of recently damaged parts, of currently 
        serviceable structures such as dikes, dams, levees, groins, 
        riprap, breakwaters, water conveyances, linear utility 
        facilities, causeways, bridge abutments or approaches, and 
        transportation structures;
            ``(C) for the purpose of constructing or maintaining farm 
        or stock ponds or irrigation ditches, or the maintenance of 
        drainage ditches or spreading areas for groundwater recharge;
            ``(D) for the purpose of constructing temporary 
        sedimentation basins on a construction site that does not 
        involve a discharge of fill material into navigable waters;
            ``(E) for the purpose of constructing or maintaining farm 
        roads or forest roads, or temporary roads for moving mining 
        equipment, or access roads for linear utility facilities, or 
        access roads to, or within, drinking water treatment plants, if 
        the roads are constructed and maintained, in accordance with 
        best management practices, to ensure that--
                    ``(i) flow and circulation patterns and chemical 
                and biological characteristics of the navigable waters 
                are not impaired;
                    ``(ii) the reach of the navigable waters is not 
                reduced; and
                    ``(iii) any adverse effect on the aquatic 
                environment will otherwise be minimized;
            ``(F) resulting from any activity with respect to which a 
        State has a program approved by the Administrator under section 
        208(b)(4) that meets the requirements of subparagraphs (B) and 
        (C) of such section;
            ``(G) undertaken in connection with a marsh management and 
        conservation program in a coastal county, parish, or borough, 
        where such program has been approved by the Governor of the 
        State or the designee of the Governor;
            ``(H) into tightly sealed forms or cells where the material 
        will be used as a structural member for standard pile supported 
        structures, such as piers and docks, and for linear projects 
        such as bridges, transmission and distribution line footings, 
        and walkways;
            ``(I) for the placement of pilings in waters of the United 
        States in circumstances involving linear projects such as 
        bridges, elevated walkways, or powerline structures, or that 
        involve structures such as piers, boathouses, wharves, marinas, 
        lighthouses and individual houses built on stilts solely to 
        reduce the potential of flooding;
            ``(J) for the clearing of vegetation (i) within rights-of-
        way associated with the development and maintenance of linear 
        utility projects, including electric power transmission and 
        distribution lines, petroleum product and naturals gas 
        pipelines, and water and sewer lines, or (ii) from reservoirs 
        used primarily for storage of drinking water where the 
        construction of the reservoirs was authorized pursuant to this 
        section, or where the construction of reservoirs predates the 
        requirement for the authorization;
            ``(K) 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 `wetlands' under subsection (d) 
        of this section;
            ``(L) undertaken on lands or involve activities within a 
        State's coastal zone which are 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.);
            ``(M) undertaken in incidentally-created wetlands that have 
        exhibited wetlands functions for less than 5 years;
            ``(N) part of expanding an ongoing farming operation 
        involving the water-dependent, obligate crop Vaccinium 
        macrocarpin, so long as such expansion does not occur in Class 
        A wetlands, does not result of in the conversion of more than 
        ten acres of wetlands per operator per year, and the converted 
        wetlands (other than where dikes and other necessary facilities 
        are placed) remain as wetlands or other waters of the United 
        States;
            ``(O) from aggregate or clay mining activities in wetlands 
        if such activities are conducted pursuant to a State or Federal 
        permit that requires (i) that reclamation of such affected 
        wetlands to be completed within five years of the commencement 
        of such activities, and (ii) that such wetlands be reclaimed to 
        a condition capable of supporting wetlands functions 
        substantially equivalent to the functions supported by such 
        wetlands at the time of commencement of such activities; or
            ``(P) for the purpose of preserving and enhancing aviation 
        safety or undertaken in order to prevent an airport hazard.''.
    (b) Exempted Areas.--Section 404(f) is further amended by adding at 
the end the following new paragraph:
            ``(3) Exempted areas.--For purposes of this section, the 
        following shall not be considered to be navigable waters--
                    ``(A) nontidal drainage and irrigation ditches 
                excavated in uplands;
                    ``(B) artificially irrigated areas which would 
                revert to uplands if the irrigation ceased;
                    ``(C) artificial lakes or ponds created by 
                excavating or diking uplands to collect and retain 
                water, and that are used primarily for stock watering, 
                irrigation, agricultural settling ponds, fire control, 
                cranberry growing, or rice growing;
                    ``(D) artificial reflecting or swimming pools or 
                other small ornamental bodies of water created by 
                excavating or diking uplands to retain water for 
                primarily aesthetic reasons;
                    ``(E) waterfilled depressions created in uplands 
                incidental to construction activity and pits excavated 
                in uplands 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;
                    ``(F) artificial stormwater detention areas and 
                artificial sewage treatment areas that are not 
                modifications of navigable waters;
                    ``(G) prior converted croplands; and
                    ``(H) confined dredged material disposal areas 
                constructed in uplands.''.

SEC. 12. STATE PROGRAMS.

    (a) Standards for State Delegation.--Subsection (h)(2) of section 
404 (33 U.S.C. 1344(h)(2)) is amended by adding the following at the 
end: ``The Administrator shall approve a State program submitted under 
subsection (g)(1) that is developed to meet the particular needs and 
circumstances of such State, provided that the level of wetlands 
protection provided by the State program is substantially similar to 
the protection provided by this section.''
    (b) Federal Oversight of State Programs.--Subsection (i) of section 
404 (33 U.S.C. 1344(i)) is amended by adding the following at the end: 
``Not later than 5 years after the date of the approval of a State 
program, and every 5 years thereafter, in order to ensure that the 
requirements of this section are met, the Administrator, in cooperation 
with the Secretary and the Secretary of the Interior (acting through 
the Director of the United States Fish and Wildlife Service), shall 
conduct a periodic review of permit decisions made by a State that 
carries out a program that is approved by the Administrator under 
subsection (h)(2). The Secretary and the Administrator may make a grant 
to a State for the operation of a program that is approved by the 
Administrator pursuant to subsection (h)(2). The aggregate amount of 
such grants may not exceed the amount that is made available by 
appropriations to the Secretary or the Administrator to carry out this 
section with respect to State programs.''.
    (c) The last four sentences of section 404(j) (33 U.S.C. 1344(j)) 
are hereby repealed.

SEC. 13. MITIGATION BANKS.

    Section 404 (33 U.S.C. 1344) is amended by adding at the end the 
following new subsection:
    ``(w) Mitigation Banks.--
            ``(1) Establishment.--
                    ``(A) In general.--Not later than 1 year after the 
                date of enactment of this subsection, after providing 
                notice and opportunity for public review and comment, 
                the Secretary shall issue regulations for the 
                establishment, use, maintenance, and oversight of 
                mitigation banks. The regulations shall be developed in 
                consultation with the Administrator and the Secretary 
                of the Interior, acting through the Director of the 
                United States Fish and Wildlife Service.
                    ``(B) Provisions and requirements.--The regulations 
                issued pursuant to subparagraph (A) shall ensure that 
                mitigation banks--
                            ``(i) comply with the guidelines 
                        established under subsection (b)(1);
                            ``(ii) to the extent practicable and 
                        environmentally desirable, provide in-kind 
                        replacement of lost wetlands functions, and be 
                        located in, or in proximity to, the same 
                        watershed as the affected wetlands;
                            ``(iii) 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, specify 
                        responsibilities for long-term monitoring, 
                        maintenance, and protection, and provide for 
                        the long-term security of ownership interests 
                        of wetlands and uplands on which projects are 
                        conducted to protect the wetlands functions 
                        associated with the mitigation banks;
                            ``(iv) employ consistent and scientifically 
                        sound methods to determine debits by evaluating 
                        wetlands functions, project impacts, and 
                        duration of the impact at the sites of proposed 
                        permits for discharges of dredged or fill 
                        material pursuant to this section, and to 
                        determine credits based on wetlands functions 
                        at the sites of mitigation banks;
                            ``(v) provide for the transfer of credits 
                        for mitigation that has been performed and for 
                        mitigation that shall be performed within a 
                        designated time in the future, provided that 
                        financial bonds shall be posted in sufficient 
                        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 
                        mitigation banks: Provided, That the process 
                        utilized by a mitigation bank to obtain a 
                        permit under this section satisfies the 
                        requirement for such public notice and comment.
            ``(2) Mitigation bank defined.--As used in this section, 
        the term `mitigation bank' means a wetlands restoration, 
        creation, enhancement, or preservation project undertaken by 
        one or more parties, including private and public entities, 
        expressly for the purpose of providing mitigation compensation 
        credits to offset wetlands losses authorized by the terms of 
        permits allowing discharges of dredged or fill material into 
        the navigable waters.''.

SEC. 14. ADMINISTRATIVE APPEALS PROCESS.

    Section 404 (33 U.S.C. 1344) is amended by adding at the end the 
following new subsection:
    ``(x) Administrative Appeals.--
            ``(1) In general.--Not later than 1 year after the date of 
        enactment of this subsection, the Secretary shall, after 
        providing notice and opportunity for public comment, issue 
        regulations establishing procedures pursuant to which--
                    ``(A) a landowner may appeal a determination of 
                regulatory jurisdiction under this section with respect 
                to a parcel of property;
                    ``(B) any person may appeal a determination that 
                the proposed activity is not exempt under subsection 
                (f);
                    ``(C) a landowner may appeal a determination that 
                an activity is not regulated under a general permit 
                issued under this section;
                    ``(D) an applicant for a permit under this section 
                may appeal a determination made pursuant to this 
                section to deny issuance of the permit or to impose a 
                requirement under the permit; and
                    ``(E) 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.
            ``(2) Filing deadline.--An appeal brought pursuant to this 
        subsection shall be filed not later than 30 days after the date 
        on which written notice of the decision or action that is the 
        subject of the appeal is received, or is deemed received, by 
        the party filing the appeal.
            ``(3) Decision deadline.--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) Third-party comments on appeal.--Any person who 
        participated in the public comment process concerning a 
        decision or action that is the subject of an appeal brought 
        pursuant to this subsection may file written comments with 
        respect to such appeal.
            ``(5) Official deciding appeal.--An appeal brought pursuant 
        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 determination or carried out the 
        action that is the subject of the appeal.
            ``(6) Payment or mitigation after appeal.--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 assessed under this section or section 309 until 
        after the appeal has been decided.''.

SEC. 15. MAPPING AND PUBLIC NOTICE REQUIREMENTS.

    Section 404 is amended by adding at the end the following new 
subsection:
    ``(y) Mapping and Public Notice Requirements.--
            ``(1) The Corps of Engineers shall, within 90 days after 
        the enactment of this Act, provide the court of each county, 
        parish, or borough in which Federal jurisdictional wetlands may 
        be located, a notice for posting near the property records of 
        the county, parish, or borough. Such notice shall: (i) state 
        that Federal jurisdictional wetlands may be located in the 
        county, parish, or borough, (ii) provide an understandable 
        explanation of how Federal jurisdiction over wetlands is 
        determined, (iii) describe the requirements and restrictions of 
        the wetlands regulatory program under this section, and (iv) 
        provide instructions on how to obtain a delineation and 
        classification of wetlands.
            ``(2) When the delineation or classification of a property 
        pursuant to this section becomes final, the Secretary shall 
        file a copy of the delineation, including the classification of 
        the wetland if any are present, with the records of the 
        property in the local courthouse, and the Secretary shall serve 
        a copy of the delineation determination on every property owner 
        of record and any person with a recorded mortgage or lien on 
        the property.
            ``(3) The corps and the EPA shall file notice of 
        enforcement actions taken with respect to private property in 
        the property records of such property.
            ``(4) As the National Biological Survey completes the 
        National Wetlands Inventory, the maps prepared in that 
        inventory shall be provided to the court for posting in the 
        counties, parishes, and boroughs that are covered by the 
        maps.''.

SEC. 16. REGULATORY PROGRAM FOR ALASKA.

    (a) Section 404(b) (33 U.S.C. 1344(b)), as amended, is further 
amended by adding at the end the following new paragraph:
            ``(5) For permits for the discharge of dredged or fill 
        material within the State of Alaska, the guidelines issued 
        under this subsection--
                    ``(A) shall not include requirements or standards 
                for compensatory mitigation of adverse impacts, but may 
                include requirements for non-compensatory mitigation of 
                adverse impacts,
                    ``(B) shall include requirements or standards for 
                minimization of impacts, and
                    ``(C) may include standards or requirements for 
                avoidance of impacts, except that the permit applicant 
                shall not be required to establish that upland 
                alternative sites do not exist.''.
    (b) Standards for General Permits in Alas ka.--Section 404(e) (33 
U.S.C. 1344(e)), as amended by section 10, is further amended by 
inserting the following new paragraph after paragraph (5):
            ``(6) Notwithstanding the requirements of paragraphs (1) 
        and (2), the Secretary shall issue a general permit for 
        discharges of dredged and fill material in Alaska. Such general 
        permit shall contain requirements that provide a similar degree 
        of protection for navigable waters as the protection required 
        by the other provisions of subsection (b)(5).''.
    (c) Section 404 (33 U.S.C. 1344) is amended by adding at the end 
thereof:
    ``(z) Alaska Native Corporation Lands.--
            ``(1) In general.--Lands conveyed to, selected by, or owned 
        by Alaska Native Corporations pursuant to the Alaska Native 
        Claims Settlement Act, Public Law 92-203, as amended, shall be 
        `economic base lands'.''
            ``(2) Permit considerations.--Regarding permit decisions 
        for economic base lands, in addition to the requirements in 
        subsection (a) and (b), the Secretary shall--
                    ``(A) balance the standards and policies of this 
                Act against the obligations of the United States to 
                allow economic base lands to be used beneficially to 
                create and sustain economic activity;
                    ``(B) give substantial weight to the social and 
                economic needs of Alaska Natives; and
                    ``(C) account for regional differences, abundance, 
                and functions of wetlands.
            ``(3) General permits.--Regarding rural Alaska Native 
        villages as defined in section 3(c) of the Alaska Native Claims 
        Settlement Act, Public Law 92-203 (43 U.S.C. 1602(c)), the 
        Secretary shall issue general permits for disposition of dredge 
        and fill material for critical infrastructure, including water 
        and sewer systems, airports, roads, communication sites, fuel 
        storage sites, landfills, housing, hospitals, medical clinics, 
        schools, and other community infrastructure in rural Alaska 
        villages without a determination that activities authorized by 
        such a general permit cause only minimal adverse environmental 
        effects when performed separately and will have only minimal 
        cumulative adverse effects on the environment.
            ``(4) Other consideration.--The Secretary shall consult 
        with and provide assistance to Alaska Native Corporations and 
        the State of Alaska regarding promulgation and administration 
        of policies and regulations under this section.''.

SEC. 17. DEFINITIONS.

    Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 
1362) is amended by adding at the end thereof the following new 
paragraphs:
            ``(21) The term `wetlands' means those areas that are 
        inundated or saturated by surface or ground water at a 
        frequency and duration sufficient to support, and that under 
        normal circumstances do support, a prevalence of vegetation 
        typically adapted for life in saturated soil conditions. 
        Wetlands generally include swamps, marshes, bogs, fens, 
        potholes, playa lakes, vernal pools, and similar areas.
            ``(22) The term `creation of wetlands' means an activity 
        that brings a wetland into existence at a site where it did not 
        formerly exist.
            ``(23) The term `enhancement of wetlands' means any 
        activity that increases the functioning of existing wetlands.
            ``(24) The term `wetlands functions' means the roles 
        wetlands serve, including flood water storage, flood water 
        conveyance, groundwater discharge, erosion control, wave 
        attenuation, water quality protection, scenic and aesthetic 
        use, food chain support, fisheries, wetlands plant habitat, 
        aquatic habitat, and habitat for wetland-dependent wildlife.
            ``(25) 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.
            ``(26) The term `maintenance,' when referring to wetlands, 
        means activities undertaken to assure continuation of a wetland 
        or the accomplishment of project goals after a restoration or 
        creation project has been completed, including water level 
        manipulations and control of non-native plant species.
            ``(27) The term `normal farming, silviculture, aquaculture 
        and ranching activities' means normal ongoing practices 
        identified as such by the Secretary of Agriculture, in 
        consultation with the Cooperative Extension Service for each 
        State and the land grant university system and agricultural 
        colleges of the State, taking into account existing practices 
        and such other practices as may be identified in consultation 
        with the affected industry or community.
            ``(28) The term `prior converted cropland' means land that 
        was both manipulated (drained or otherwise physically altered 
        to remove excess water from the land) and cropped before 
        December 23, 1985, to the extent that such land no longer 
        exhibits significant wetlands functions.
            ``(29) The term `restoration,' when referring 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.
            ``(30) The term `temporary impact' or `temporary effect' 
        means the disturbance or alternation of wetlands caused by 
        activities under circumstances in which, within three years 
        following the commencement 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 return 
                to the conditions in existence prior to the 
                commencement of such activity.
            ``(31) The term `linear utility facility' means a 
        continuous conveyance, such as a pipeline, cable, line, or 
        wire, used for the transmission, gathering, or distribution of 
        electric power, natural gas, oil, or water.''.
                                 <all>
S 2506 IS----2
S 2506 IS----3