[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 352 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 352

    To amend the Federal Water Pollution Control Act to establish a 
 comprehensive program for conserving and managing wetlands and waters 
             of the United States, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             February 3 (legislative day, January 30), 1995

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

_______________________________________________________________________

                                 A BILL


 
    To amend the Federal Water Pollution Control Act to establish a 
 comprehensive program for conserving and managing wetlands and waters 
             of the United States, 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 ``Comprehensive Wetlands Conservation 
and Management Act of 1995''.

SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

    (a) Findings.--Congress finds that--
            (1) wetlands play an integral role in maintaining high 
        quality of life through material contributions to the national 
        economy, food supply, water supply and quality, flood control, 
        and fish, wildlife, and plant resources, and to the health, 
        safety, recreation, and economic well-being of citizens 
        throughout the United States;
            (2) wetlands serve 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;
            (3) much of the wetlands resource of the United States has 
        sustained significant loss or degradation, resulting in the 
        need for effective programs to limit the loss and degradation 
        of ecologically significant wetlands and to provide for long-
        term restoration and enhancement of the wetlands resource base;
            (4) because 75 percent of the wetlands in the lower 48 
        States is privately owned and because the majority of the 
        population of the United States lives in or near wetlands, an 
        effective wetlands conservation and management program must 
        reflect a balanced approach that conserves and enhances 
        important wetlands functions and values while observing private 
        property rights, recognizing the need for essential public 
        infrastructure, such as highways, ports, airports, sewer 
        systems, and public water supply systems, and providing the 
        opportunity for sustained economic growth; and
            (5) the Federal permit program established under section 
        404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) 
        was not originally conceived as a wetlands regulatory program 
        and is insufficient to ensure that the wetlands resource base 
        of the United States will be conserved and managed in a fair 
        and environmentally sound manner.
    (b) Purpose.--The purpose of this Act is to establish a new Federal 
regulatory program for activities in wetlands and waters of the United 
States to--
            (1) assert Federal regulatory jurisdiction over a broad 
        category of specifically identified activities that result in 
        the loss or degradation of wetlands and waters of the United 
        States;
            (2) account for variations in wetlands functions or values 
        in determining the character and extent of regulation of 
        activities occurring in wetlands;
            (3) provide sufficient regulatory incentives for 
        conservation, restoration, or enhancement activities;
            (4) encourage conservation of resources on an ecosystem 
        basis to the fullest extent practicable; and
            (5) balance public and private interests in determining the 
        conditions under which activity in wetlands and waters of the 
        United States may occur.

SEC. 3. WETLANDS CONSERVATION AND MANAGEMENT.

    Title IV of the Federal Water Pollution Control Act (33 U.S.C. 1341 
et seq.) is amended by striking section 404 and inserting the following 
new section:

``SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WATERS OF THE UNITED 
              STATES.

    ``(a) Definitions.--As used in this section:
            ``(1) Activity in wetlands or waters of the united 
        states.--The term `activity in wetlands or waters of the United 
        States' means--
                    ``(A) the discharge of dredged or fill material 
                into waters of the United States, including wetlands at 
                a specific disposal site; or
                    ``(B) the draining, channelization, or excavation 
                of wetlands.
            ``(2) Creation.--The term `creation', used with respect to 
        wetlands, means an activity that brings wetlands into 
        existence, at a site where the wetlands did not formerly occur, 
        for the purpose of compensation.
            ``(3) Director.--The term `Director', used without further 
        modification, means the Director of the United States Fish and 
        Wildlife Service.
            ``(4) Enhancement.--The term `enhancement', used with 
        respect to wetlands or waters of the United States, means an 
        activity that increases the value of a function in wetlands or 
        waters of the United States.
            ``(5) Fastlands.--The term `fastlands' means lands located 
        behind permitted manmade structures, such as lands located 
        behind a levee to permit utilization of the lands for 
        commercial, industrial, or residential purposes consistent with 
        each local land use planning requirement.
            ``(6) Growing season.--The term `growing season' means, for 
        each plant hardiness zone, the period between the average date 
        of last frost in spring and the average date of first frost in 
        autumn.
            ``(7) Incidentally created.--The term `incidentally 
        created', used with respect to wetlands, means lands that 
        otherwise meet the standards for delineation of wetlands 
        described in paragraphs (1) and (2) of subsection (g), if a 
        characteristic of the wetlands is the unintended result of a 
        human-induced alteration of hydrology.
            ``(8) Maintenance.--The term `maintenance' means an 
        activity undertaken to ensure continuation of wetlands or the 
        accomplishment of a project goal after a wetlands restoration 
        or wetlands creation project has been technically completed, 
        including water level manipulation and control of any nonnative 
        plant species.
            ``(9) Mitigation banking.--The term `mitigation banking' 
        means wetlands restoration, enhancement, preservation, or 
        creation for the purpose of providing compensation for wetlands 
        loss or degradation.
            ``(10) Normal farming, silviculture, aquaculture, or 
        ranching activity.--The term `normal farming, silviculture, 
        aquaculture, or ranching activity' means a normal ongoing 
        practice identified as a normal ongoing activity by the 
        Secretary of Agriculture (in consultation with the Cooperative 
        State Research, Education, and Extension Service for each 
        State, the land-grant university system, and the agricultural 
        colleges of the State), taking into account any existing 
        practice (as of the date of the identification) and any other 
        practice that may be identified in consultation with the 
        affected industry or community.
            ``(11) Prior converted cropland.--The term `prior converted 
        cropland' means lands that were both manipulated (by drainage 
        or other physical alteration to remove excess water from the 
        land) and cropped before December 23, 1985, to the extent that 
        the lands no longer exhibit significant wetlands functions or 
        values.
            ``(12) Restoration.--The term `restoration', used with 
        respect to wetlands, means an activity undertaken to return 
        wetlands from a disturbed or altered condition with lesser 
        wetlands acreage or fewer wetlands functions or values to a 
        previous condition with greater wetlands acreage or more 
        wetlands functions or values.
            ``(13) Secretary.--The term `Secretary', used without 
        further modification, means the Secretary of the Army.
            ``(14) Temporary.--The term `temporary', used with respect 
        to an impact, means the disturbance or alteration of wetlands 
        or waters of the United States caused by an activity under a 
        circumstance in which, not later than 3 years following the 
        commencement of the activity, the wetlands or waters--
                    ``(A) are returned to the condition in existence 
                prior to the commencement of the activity; or
                    ``(B) display a condition sufficient to ensure that 
                without further human action the wetlands or waters 
                will return to the condition in existence prior to the 
                commencement of the activity.
            ``(15) Wetlands.--The term `wetlands' means lands that meet 
        the standards for delineation of lands as wetlands set forth in 
        paragraphs (1) and (2) of subsection (g).
            ``(16) Wetlands functions.--The term `wetlands functions' 
        means the roles wetlands serve that are of value, including 
        flood water storage, flood water conveyance, ground water 
        discharge, erosion control, wave attenuation, water quality 
        protection, scenic and aesthetic use, food chain support, 
        fishery support, wetlands plant habitat support, aquatic 
        habitat support, and habitat for wetlands-dependent wildlife 
        support.
    ``(b) Authorized Activities.--
            ``(1) Permit requirement.--No person shall undertake an 
        activity in wetlands or waters of the United States unless the 
        activity is undertaken pursuant to a permit issued by the 
        Secretary, except as provided in paragraph (3).
            ``(2) Issuance of permits.--The Secretary may issue permits 
        authorizing activities in wetlands or waters of the United 
        States in accordance with the requirements of this section.
            ``(3) Activities not requiring permits.--An activity in 
        wetlands or waters of the United States may be undertaken 
        without a permit described in paragraph (2) from the Secretary 
        if the activity is authorized under paragraph (5) or (6) of 
        subsection (e), is exempt under subsection (f), or is otherwise 
        exempt under another provision of this section.
            ``(4) Application.--Any person seeking to undertake an 
        activity in wetlands or waters of the United States shall 
        submit an application to the Secretary identifying the site of 
        the activity. The applicant shall also provide such additional 
        information regarding the proposed activity as may be necessary 
        or appropriate for purposes of determining whether and under 
        what conditions the proposed activity may be permitted to 
        occur.
    ``(c) Wetlands Classification.--
            ``(1) Application.--In submitting an application under 
        subsection (b), any person seeking to undertake an activity in 
        wetlands for which a permit is required under subsection (b) 
        shall request that the Secretary determine, in accordance with 
        paragraph (3), the classification of the wetlands in which the 
        activity is proposed to occur. The applicant shall also provide 
        such information as may be necessary or appropriate for 
        determining the classification of wetlands.
            ``(2) Notice.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), not later than 90 days after the 
                receipt of an application described in paragraph (1) 
                relating to an activity in wetlands, the Secretary 
                shall provide notice to the applicant of the 
                classification of the wetlands that are the subject of 
                the application and shall state in writing the basis 
                for the classification. The classification of the 
                wetlands that are the subject of the application shall 
                be determined by the Secretary in accordance with the 
                requirements for classification of wetlands under 
                paragraphs (3), (4), and (5).
                    ``(B) Notice regarding advance classification.--In 
                the case of an application proposing an activity 
                located in wetlands that are the subject of an advance 
                classification under subsection (h), the Secretary 
                shall provide notice to the applicant of the 
                classification within 30 days following the receipt of 
                the application, and shall provide an opportunity for 
                review of the classification under paragraphs (4) and 
                (5).
            ``(3) Classification.--On receipt of an application under 
        this subsection with respect to wetlands, the Secretary shall, 
        in accordance with the standards and procedures established by 
        regulation issued under subsection (i)--
                    ``(A) classify as type A wetlands the wetlands that 
                are of critical significance to the long-term 
                conservation of the ecosystem of which the wetlands are 
                a part if--
                            ``(i) the wetlands serve critical wetlands 
                        functions and values, including the provision 
                        of critical habitat for a concentration of 
                        avian, aquatic, or wetlands-dependent wildlife;
                            ``(ii)(I) the wetlands consist of or are a 
                        portion of 10 or more contiguous acres and have 
                        an inlet or outlet for relief of water flow; or
                            ``(II) the wetlands contain a prairie 
                        pothole feature, playa lake, or vernal pool;
                            ``(iii) there exists a scarcity within the 
                        watershed or aquatic ecosystem of identified 
                        ecological functions served by the wetlands 
                        such that the use of the wetlands for an 
                        activity in wetlands or waters of the United 
                        States would seriously jeopardize the 
                        availability of the identified functions;
                            ``(iv) there is no overriding public 
                        interest in the use of the wetlands for 
                        purposes other than conservation; and
                            ``(v) the nature and scope of the wetlands 
                        functions and values of the wetlands are such 
                        that minimization and compensation are not 
                        feasible means for conserving the wetlands 
                        functions and values;
                    ``(B) classify as type B wetlands the wetlands that 
                provide habitat for a significant population of avian, 
                aquatic, or wetlands-dependent wildlife, or provide 
                other significant wetlands functions and values, 
                including significant enhancement or protection of 
                water quality in waters of the United States, or 
                significant natural flood control; and
                    ``(C) classify as type C wetlands the wetlands 
                that--
                            ``(i) serve limited wetlands functions and 
                        values;
                            ``(ii) serve marginal wetlands functions 
                        and values but that exist in such abundance 
                        that regulation of activities in the wetlands 
                        is not necessary for conserving important 
                        wetlands functions and values;
                            ``(iii) are prior converted cropland;
                            ``(iv) are fastlands; or
                            ``(v) are wetlands within industrial 
                        complexes or other intensely developed areas 
                        that do not serve significant wetlands 
                        functions and values as a result of the 
                        location of the wetlands.
            ``(4) De novo determination.--Not later than 30 days after 
        receipt of notice of an advance classification by the Secretary 
        under paragraph (2)(B), an applicant may request that the 
        Secretary make a de novo determination of the classification of 
        wetlands that are the subject of the notice. The de novo 
        determination shall be made by the Secretary in consultation 
        with the Director. The Secretary may sustain the advance 
        classification made by the Director. The Secretary may modify 
        the classification if the Secretary determines, on examination 
        of all relevant information submitted by the applicant or 
        otherwise available to the Secretary (including, if 
        appropriate, an on-the-ground examination) that--
                    ``(A) the lands involved do not meet the standards 
                for delineating wetlands set forth in paragraph (1) or 
                (2) of subsection (g);
                    ``(B) the weight of relevant information does not 
                support the determination of the advance classification 
                with respect to the specific wetlands involved;
                    ``(C) the factual basis for the advance 
                classification is no longer valid; or
                    ``(D) the limitations on uses of the specific 
                wetlands involved that would be imposed by the 
                Secretary under this section would effectively preclude 
                reasonable economic use of the wetlands.
            ``(5) Appeals.--In the event that the Secretary delegates 
        authority to determine the classification of wetlands under 
        paragraphs (3) and (4), the Secretary shall, by regulation, 
        provide for a right of appeal to the Secretary or the designee 
        of the Secretary of the classification of wetlands under 
        paragraph (3) or the de novo determination of an advance 
        classification in accordance with paragraph (4).
            ``(6) Maximum percent of lands classified as type a 
        wetlands.--No more than 20 percent of any county, parish, or 
        borough shall be classified as type A wetlands. For purposes of 
        this paragraph, a county, parish, or borough includes any land 
        in the county, parish, or borough that is owned by the United 
        States or by a State, including land in a unit of the National 
        Wildlife Refuge System, land in the National Park System, and 
        land subject to a conservation easement.
    ``(d) Compensation for Landowners.--
            ``(1) Election to seek compensation.--Any person (including 
        a State or political subdivision of a State) who owns an 
        interest in lands that have been classified as type A wetlands 
        by the Secretary under subsection (c)(3)(A) or by the Director 
        under subsection (h) may, not later than 2 years after receipt 
        of actual notice of the classification (or not later than 2 
        years after a de novo determination of the classification under 
subsection (c)(4)), notify the Secretary and the Director that the 
person is electing to seek compensation for the fair market value of 
the interest in lands at the time of the classification, in accordance 
with the requirements of this section. The fair market value may 
include reasonable attorney's fees and shall be calculated without 
regard to any diminution in value resulting from the applicability of 
this section.
            ``(2) Negotiations.--Immediately on receipt by the 
        Secretary and the Director of notification of election to seek 
        compensation under paragraph (1), the Director shall enter into 
        good faith negotiations with the owner for purposes of 
        determining the value of the interest in lands that have been 
        classified as type A wetlands. Not later than 90 days after 
        receipt of the notification of election by the owner under 
        paragraph (1), the Director shall make an offer of reasonable 
        compensation to the owner.
            ``(3) Action of owner.--
                    ``(A) In general.--Not later than 6 years after the 
                date the Director makes an offer of compensation under 
                paragraph (2), the owner shall provide notice that the 
                owner, in the discretion of the owner--
                            ``(i) accepts the offer of compensation;
                            ``(ii) has filed a claim for determination 
                        of the value of the compensation described in 
                        paragraph (1) with the United States Court of 
                        Federal Claims; or
                            ``(iii) advises the Director and the 
                        Secretary that the owner elects to retain title 
                        to the wetlands and elects not to receive 
                        compensation for the taking of land under this 
                        subsection.
                    ``(B) Failure to provide notice.--Failure to 
                provide notice in accordance with this paragraph shall 
                be deemed an election to retain title to the wetlands 
                and not to receive compensation under this subsection.
            ``(4) Effect of acceptance of offer or filing of claim.--On 
        acceptance of an offer of compensation, or the filing of a 
        claim for determination of the value of compensation, under 
        paragraph (3), the classification as type A wetlands of the 
        wetlands that are the subject of the offer or claim shall be 
        binding on the owner and any successor in interest, and the 
        title to the lands shall pass to the United States. The 
        classification of the lands as type A wetlands under this 
        paragraph shall constitute a taking by the United States of the 
        interests in the lands of the owner and shall be compensable 
        under this subsection.
            ``(5) Extent of taking.--A taking under this subsection 
        shall be deemed to be a taking of surface interests in lands 
        only, with the following exceptions:
                    ``(A) Exploration or development not compatible 
                with conservation.--If the Secretary determines that 
                the exploration for or development of oil and gas or 
                mineral interests is not compatible with conservation 
                of the surface interests in lands that have been 
                classified as type A wetlands located above the oil and 
                gas or mineral interests (or located adjacent to the 
                oil and gas or mineral interests where the adjacent 
                lands are necessary to provide reasonable access to the 
                interests), the Secretary may classify the oil and gas 
                or mineral interests as type A wetlands and notify the 
                owner of the interests that the owner may elect to 
                receive compensation for the interests under paragraph 
                (1).
                    ``(B) Failure to provide reasonable access.--The 
                failure of the Secretary to provide reasonable access 
                to oil and gas or mineral interests located beneath or 
                adjacent to surface interests of type A wetlands shall 
                be deemed a taking of the oil and gas or mineral 
                interests. The Secretary shall classify the oil and gas 
                or mineral interests as type A wetlands and notify the 
                owner of the interests that the owner may elect to 
                receive compensation for the interests under paragraph 
                (1).
            ``(6) Jurisdiction.--The United States Court of Federal 
        Claims shall have jurisdiction--
                    ``(A) to determine the value of interests taken and 
                the fair compensation required under this subsection 
                and the Constitution;
                    ``(B) in the case of oil and gas or mineral 
                interests, to require the United States to provide 
                reasonable access in, across, or through lands that may 
                be the subject of a taking under this subsection solely 
                for the purpose of undertaking activity necessary to 
                determine the value of the interests taken; and
                    ``(C) to provide other equitable remedies 
                determined to be appropriate.
            ``(7) Execution of judgment.--Any judgment rendered under 
        paragraph (6) may be executed, at the election of the owner. 
        Any owner seeking to execute such a judgment shall execute the 
        judgment not later than 2 years after the date the judgment is 
        rendered. The owner may, prior to the execution of the 
        judgment, enter into an agreement with the United States for 
        satisfaction of the judgment through a crediting of a tax 
        benefit, acquisition of an interest in oil and gas or minerals, 
        an exchange of interests in lands with the United States, or 
        other means of compensation.
            ``(8) Construction.--
                    ``(A) Availability of other remedies.--The remedy 
                for a taking of an interest in lands under this 
                subsection shall not be construed to preempt, alter, or 
                limit the availability of other remedies for the taking 
                of the interest in lands under the Constitution or 
                under State law, including the taking of rights to the 
                use of water allocated under State law or the taking of 
                the interest in lands by denial of a permit under this 
                section.
                    ``(B) Taking by denial of a permit.--Any award of 
                compensation for the taking of an interest in lands by 
                denial of a permit under this section shall be based on 
                the fair market value of the interest in lands at the 
                time of the taking. The fair market value may include 
                reasonable attorney's fees and shall be calculated 
                without regard to any diminution in value resulting 
                from the applicability of this section.
            ``(9) Management.--Interests in lands acquired by the 
        United States under this subsection shall be managed by the 
        United States Fish and Wildlife Service as a part of the 
        National Wildlife Refuge System unless the Secretary of the 
        Interior, acting through the Director, makes a determination 
        otherwise, or unless otherwise provided by law.
            ``(10) Requirements governing use of water.--No action 
        taken under this subsection shall be construed to alter or 
        supersede requirements governing use of water applicable under 
        State law.
    ``(e) Requirements Applicable to Permitted Activity.--
            ``(1) Issuance or denial of permits.--Following the 
        provision of notice of wetlands classification pursuant to 
        subsection (c) if applicable, and after compliance with the 
        requirements of subsection (d) if applicable, the Secretary may 
        issue or deny a permit for authorization to undertake an 
        activity in wetlands or waters of the United States, in 
        accordance with the requirements of this subsection.
            ``(2) Type a wetlands.--
                    ``(A) In general.--The Secretary shall deny a 
                permit authorizing an activity in type A wetlands 
                unless the Secretary determines that--
                            ``(i) the activity can be undertaken with 
                        minimal alteration or surface disturbance of 
                        the wetlands; or
                            ``(ii) the proposed use of the land, taking 
                        into account all proposed mitigation, will 
                        result in overall environmental benefits, 
                        including the prevention of wetlands loss or 
                        degradation.
                    ``(B) Terms and conditions concerning mitigation.--
                Any permit issued authorizing activities in type A 
                wetlands may contain such terms and conditions 
                concerning mitigation (including terms and conditions 
                applicable under paragraph (3) for type B wetlands) as 
                the Secretary determines to be appropriate to prevent 
                the unacceptable loss or degradation of type A 
                wetlands.
            ``(3) Type b wetlands.--
                    ``(A) Considerations.--The Secretary may issue a 
                permit authorizing an activity in type B wetlands 
                subject to such terms and conditions as the Secretary 
                finds are necessary to ensure that the watershed or 
                aquatic ecosystem of which the wetlands are a part does 
                not suffer significant loss or degradation of wetlands 
                functions and values. In determining whether specific 
                terms and conditions are necessary to avoid a 
                significant loss or degradation of wetlands functions 
                and values, the Secretary shall consider the following:
                            ``(i) The quality and quantity of 
                        ecologically significant functions and values 
                        served by the areas to be affected.
                            ``(ii) The opportunities to reduce impacts 
                        through cost-effective design to avoid or 
                        minimize use of wetlands.
                            ``(iii) The costs of mitigation 
                        requirements and the social, recreational, and 
                        economic benefits associated with the proposed 
                        activity, including local, regional, or 
                        national needs for improved or expanded 
                        infrastructure.
                            ``(iv) The ability of the applicant for the 
                        permit to mitigate wetlands loss or degradation 
                        as measured by wetlands functions and values.
                            ``(v) The environmental benefit, measured 
                        by wetlands functions and values, that may 
                        occur through mitigation efforts, including 
                        restoration, preservation, enhancement, or 
                        creation of wetlands functions and values.
                            ``(vi) The marginal impact of the proposed 
                        activity on the watershed or aquatic ecosystem 
                        of which the wetlands are a part.
                    ``(B) Alternative site analyses and project 
                purposes.--In considering applications for permits with 
                respect to activities on type B wetlands, the Secretary 
                may require alternative site analyses for individual 
                permit applications involving the alteration or 
                permanent surface disturbance of 10 or more contiguous 
                acres of wetlands. In the case of such an application, 
                there shall be a rebuttable presumption that the 
                project purpose for the activities as defined by the 
                applicant shall be binding on the Secretary. In the 
                case of such an application, the definition of project 
                purpose for the activities sponsored by a public agency 
                shall be binding on the Secretary, subject to the 
                authority of the Secretary to impose mitigation 
                requirements to minimize impacts on wetlands functions 
                and values, including cost-effective redesign of the 
                project to avoid wetlands.
                    ``(C) Requirements for mitigation.--Except as 
                otherwise provided in this section, requirements for 
                mitigation shall be imposed if the Secretary finds that 
                activities undertaken under this section will result in 
                the loss or degradation of type B wetlands functions 
                and values where the loss or degradation is not an 
                incidental or a temporary impact. When determining the 
                mitigation requirements in any specific case, the 
                Secretary shall take into consideration the 
                characteristics of the wetlands affected, the character 
                of the impact on ecological functions, whether any 
                adverse effects on wetlands are of a permanent or 
                temporary nature, and the cost-effectiveness of the 
                mitigation and shall seek to minimize the costs of the 
                mitigation.
                    ``(D) Regulations governing requirements for 
                mitigation.--The Secretary shall issue regulations 
                under subsection (i) governing requirements for 
                compensatory mitigation, for activities occurring in 
                type B wetlands, that allow for--
                            ``(i) minimization of impacts through 
                        project design for the activities, including 
                        avoidance of specific wetlands impacts where 
                        economically practicable and consistent with 
                        the project purpose, provisions for 
                        compensatory mitigation, if any, and other 
                        terms and conditions necessary and appropriate 
                        in the public interest;
                            ``(ii) preservation or donation of type A 
                        wetlands or type B wetlands (if title has not 
                        been acquired by the United States and no 
                        compensation for the taking of the wetlands has 
                        been provided) as mitigation for activities 
                        that result in loss or degradation of wetlands;
                            ``(iii) enhancement or restoration of lost 
                        or degraded wetlands as compensation for 
                        wetlands lost or degraded through permitted 
                        activity;
                            ``(iv) compensation through contribution to 
                        a mitigation banking program established for a 
                        State pursuant to subparagraph (F);
                            ``(v) offsite compensatory mitigation with 
                        respect to an activity in a wetlands, if the 
                        mitigation contributes to the restoration, 
                        enhancement, or creation of significant 
                        wetlands functions and values on a watershed or 
                        ecosystem-wide basis and is balanced with the 
                        effects that an activity proposed to be carried 
                        out under a permit will have on the specific 
                        site (except that offsite compensatory 
                        mitigation, if any, shall be required only in 
                        the State in which the proposed activity is to 
                        occur, and shall, to the extent practicable, be 
                        within the watershed or aquatic ecosystem 
                        within which the proposed activity is to occur, 
                        unless otherwise consistent with a State 
                        wetlands management plan);
                            ``(vi) contribution of in-kind value 
                        acceptable to the Secretary and otherwise 
                        authorized by law;
                            ``(vii) in areas subject to wetlands loss 
                        or degradation, construction of coastal 
                        protection and enhancement projects;
                            ``(viii) contribution of resources of more 
                        than 1 permit recipient toward a single 
                        mitigation project; and
                            ``(ix) other mitigation measures determined 
                        by the Secretary to be appropriate, in the 
                        public interest, and consistent with the 
                        requirements and purposes of this Act.
                    ``(E) Compensatory mitigation.--Notwithstanding 
                subparagraph (C), the Secretary may determine not to 
                impose requirements for compensatory mitigation, with 
                respect to an activity in a wetlands, if the Secretary 
                finds that--
                            ``(i) the adverse impacts of an activity 
                        proposed to be carried out under a permit are 
                        limited;
                            ``(ii) the failure to impose compensatory 
                        mitigation requirements is compatible with 
                        maintaining wetlands functions and values and 
                        no practicable and reasonable means of 
                        compensatory mitigation is available;
                            ``(iii) there is an abundance of similar 
                        significant wetlands functions and values in or 
                        near the area in which the proposed activity is 
                        to occur that will continue to serve the 
                        functions and values lost or degraded as a 
                        result of the activity, taking into account the 
                        impacts of the activity and the cumulative 
                        impacts of similar activity in the area;
                            ``(iv) the temporary character of the 
                        impacts and the use of minimization techniques 
                        make compensatory mitigation unnecessary to 
                        protect significant wetlands functions and 
                        values; or
                            ``(v) a waiver from requirements for 
                        compensatory mitigation is necessary to prevent 
                        special hardship.
                    ``(F) Mitigation banking program.--
                            ``(i) Establishment.--The Secretary, in 
                        consultation with the Director, shall establish 
                        a mitigation banking program in each State. The 
                        mitigation banking program shall be developed 
                        in consultation with the Director and the 
                        Governor of the State in which the wetlands 
                        covered by the mitigation banking program is 
                        located. After approval of the program by the 
                        Secretary, the Secretary may require 
                        contributions to the program as a means for 
                        ensuring compensation for loss and degradation 
                        of wetlands functions and values in the State 
                        in accordance with the requirements of this 
                        paragraph.
                            ``(ii) Primary objective.--The primary 
                        objective of the programs shall be to provide 
                        for the restoration, enhancement, or, where 
                        feasible, creation of ecologically significant 
                        wetlands on an ecosystem basis.
                            ``(iii) Functions and values.--Each program 
                        described in clause (i) shall--
                                    ``(I) provide a preference for 
                                large-scale projects for conservation, 
                                enhancement, or restoration of 
                                wetlands, unless the Secretary (or the 
                                Governor of a State that is 
                                administering a State permit program 
                                under subsection (l)) determines that a 
                                smaller project will contribute 
                                substantially to the conservation, 
                                enhancement, or restoration of 
                                ecologically significant wetlands 
                                functions and values or that the 
                                restoration of indigenous wetlands 
                                resources cannot be accomplished 
                                through large-scale projects;
                                    ``(II) authorize mitigation banks 
                                sponsored by private entities or public 
                                entities;
                                    ``(III) provide for the crediting 
                                to a State or privately maintained 
                                mitigation bank of contributions in 
                                land or cash, or in-kind contributions, 
                                so that persons unable to sponsor 
                                specific mitigation projects can 
                                contribute to the mitigation bank;
                                    ``(IV) have sufficient requirements 
                                to ensure completion, maintenance, and 
                                supervision of wetlands projects for at 
                                least a 25-year period, including 
                                requirements for bonds or other 
                                evidence of financial responsibility;
                                    ``(V) authorize the imposition of 
                                bonding requirements on private 
                                entities operating the banks;
                                    ``(VI) limit activities in or on 
                                wetlands that are part of a 
mitigation bank to uses that are consistent with maintaining or gaining 
significant wetlands functions and values; and
                                    ``(VII) authorize a credit to be 
                                provided on an acre-for-acre or value-
                                for-value basis for type A and B 
                                wetlands that are permanently protected 
                                in national conservation units in any 
                                State that has converted less than 10 
                                percent of the historic wetlands base 
                                of the State to other uses.
          ``(4) Action on applications.--
                    ``(A) Timing.--In the case of any application for 
                authorization to undertake activities in wetlands or 
                waters of the United States that are not type C 
                wetlands, final action by the Secretary shall occur not 
                later than 180 days after the date the application is 
                filed, unless--
                            ``(i) the Secretary and the applicant agree 
                        that the final action shall occur within a 
                        shorter or longer period of time;
                            ``(ii) the Secretary determines that an 
                        additional, specified period of time is 
                        necessary to permit the Secretary to comply 
                        with other applicable Federal law; or
                            ``(iii) the Secretary, not later than 15 
                        days after the date the application is 
                        received, notifies the applicant that the 
                        application does not contain all information 
                        necessary to allow the Secretary to consider 
                        the application and identifies any necessary 
                        additional information, in which case the 
                        provisions of subparagraph (B) shall apply.
                    ``(B) Additional information.--On the receipt of a 
                request for additional information under subparagraph 
                (A)(iii), the applicant shall supply the additional 
                information and shall provide notice to the Secretary 
                that the application contains all requested additional 
                information and is therefore complete. The Secretary 
                may--
                            ``(i) not later than 30 days after the 
                        receipt of notice from the applicant that the 
                        application is complete, determine that the 
                        application does not contain all requested 
                        additional information and, on the basis of the 
                        determination, deny the application without 
                        prejudice with respect to resubmission; or
                            ``(ii) not later than 180 days after the 
                        receipt of notice from the applicant that the 
                        application is complete, review the application 
                        and take final action on the application.
                    ``(C) Failure to act on application.--If the 
                Secretary fails to take final action on an application 
                as provided in subparagraph (B)(ii), on the 180th day 
                described in the subparagraph a permit shall be 
                presumed to be granted authorizing the activities 
                proposed in the application under such terms and 
                conditions as are stated in the completed application.
                    ``(D) Appeals.--Not later than 60 days after the 
                date of a decision of the Secretary denying a permit 
                requested in an application under this paragraph, the 
                applicant may appeal the decision to the Secretary of 
                Defense or the designee of the Secretary of Defense. On 
                such an appeal, the Secretary of Defense or the 
                designee shall uphold the decision of the Secretary of 
                the Army if the Secretary of the Army proves by clear 
                and convincing evidence that granting the permit 
                requested in the application would be inconsistent with 
                this section.
            ``(5) Type c wetlands.--
                    ``(A) Permit not required.--Activities in wetlands 
                that have been classified as type C wetlands under 
                subsection (c)(3)(C) by the Secretary or under 
                subsection (h) by the Director may be undertaken 
                without a permit referred to in subsection (b).
                    ``(B) Reporting requirements.--The Secretary may 
                establish requirements for reporting activities 
                undertaken in type C wetlands.
                    ``(C) Alternative site analysis and mitigation not 
                required.--No requirements for alternative site 
                analyses or mitigation of environmental impacts shall 
                apply for activities undertaken in type C wetlands.
            ``(6) National, regional, or statewide general permits.--
                    ``(A) In general.--The Secretary may, in accordance 
                with a regulation issued under subsection (i), issue 
                general permits on a national, regional, or statewide 
                basis for any category of activities in wetlands or 
                waters of the United States for which a permit would 
                otherwise be required under subsection (b), if the 
                Secretary determines that the activities in the 
                category are similar in nature and that the activities, 
                whether performed separately or cumulatively, will not 
                result in a significant loss or degradation of 
                ecologically significant wetlands functions and values 
                or of ecologically significant waters of the United 
                States. Permits issued under this paragraph shall 
                include procedures for expedited review of eligibility 
                for the permits (if the review is required) and may 
                include requirements for reporting and mitigation. The 
                Secretary may impose requirements for compensatory 
                mitigation for the permits if necessary to avoid or 
                minimize the significant loss or degradation of 
                significant wetlands functions and values where the 
                loss or degradation is not an incidental or a temporary 
                impact.
                    ``(B) Existing general permits.--General permits 
                issued on a national or regional basis for activities 
                in the wetlands or waters of the United States and in 
                effect on the date of enactment of the Comprehensive 
                Wetlands Conservation and Management Act of 1995 shall 
                remain in effect until otherwise modified by the 
                Secretary.
    ``(f) Activities Not Requiring Permit.--
            ``(1) Activities.--Except as provided in paragraph (3), 
        activities in wetlands or waters of the United States shall be 
        exempt from the requirements of this section and shall not be 
        prohibited by or otherwise subject to regulation under this 
        section or section 301 or 402 (except to the extent the 
        sections relate to compliance with effluent standards or 
        prohibitions under section 307), if the activities--
                    ``(A) result from normal farming, silviculture, 
                aquaculture, or ranching activities and practices, such 
                as plowing, seeding, cultivating, minor drainage, 
                burning of vegetation in connection with the activities 
                and practices, harvesting for the production of food, 
                fiber, or forest products, or upland soil and water 
                conservation practices;
                    ``(B) are for the purpose of maintenance, including 
                emergency reconstruction of recently damaged parts of 
                currently (as of the date of the maintenance) 
                serviceable structures, such as dikes, dams, levees, 
                water control structures, groins, riprap, breakwaters, 
                causeways, and bridge abutments or approaches, and 
                transportation structures;
                    ``(C) are for the purpose of construction or 
                maintenance of farm, stock, or aquaculture ponds or 
                irrigation canals and ditches, or the maintenance of 
                drainage ditches;
                    ``(D) are for the purpose of construction of 
                temporary sedimentation basins on a construction site 
                that does not include placement of fill material into 
                navigable waters;
                    ``(E) are for the purpose of construction or 
                maintenance of farm roads or forest roads, or temporary 
                roads for moving mining equipment, if the roads are 
                constructed and maintained, in accordance with best 
                management practices, to ensure that flow and 
                circulation patterns and chemical and biological 
                characteristics of the waters involved are not 
                impaired, that the reach of the waters is not reduced, 
                and that any adverse effect on the aquatic environment 
                will be otherwise minimized;
                    ``(F) are undertaken on farmed wetlands, except 
                that any change in use of the wetlands for the purpose 
                of undertaking activities that are not exempt from 
                regulation under this subsection shall be subject to 
                this section;
                    ``(G) result from any activity with respect to 
                which a State has an approved program for which an 
                application was submitted under section 208(b)(4) that 
                meets the requirements of subparagraphs (B) and (C) of 
                the section;
                    ``(H) are consistent with a State or local land 
                management plan submitted to the Secretary and approved 
                pursuant to paragraph (2);
                    ``(I) are undertaken in connection with a marsh 
                management and conservation program in a coastal parish 
                in Louisiana if the program has been approved by the 
                Governor of the State or the designee of the Governor;
                    ``(J) are undertaken on lands or involve activities 
                within a coastal zone of a State that are excluded from 
                regulation under the State coastal zone management 
                program approved under the Coastal Zone Management Act 
                of 1972 (16 U.S.C. 1451 et seq.);
                    ``(K) are undertaken in incidentally created 
                wetlands, unless the incidentally created wetlands have 
                exhibited wetlands functions and values for more than 5 
                years (in which case activities undertaken in the 
                wetlands shall be subject to the requirements of this 
                section);
                    ``(L) are part of expanding an ongoing farming 
                operation involving the water dependent, obligate crop, 
                Vaccinium macrocarpin, if--
                            ``(i) the expansion does not occur in type 
                        A wetlands;
                            ``(ii) the expansion does not result in the 
                        conversion of more than 10 acres of wetlands or 
                        waters of the United States per operator per 
                        year; and
                            ``(iii) the converted wetlands or waters of 
                        the United States (other than in locations 
                        where dikes and other necessary facilities are 
                        placed) remain as wetlands or other waters of 
                        the United States; or
                    ``(M) result from aggregate or clay mining 
                activities in wetlands or waters of the United States 
                conducted pursuant to a State or Federal permit that 
                requires the reclamation of the wetlands or waters of 
                the United States, if the reclamation meets conditions 
                for reclamation, including conditions that--
                            ``(i) the reclamation shall be completed 
                        within 5 years of the commencement of 
                        activities in the wetlands or waters; and
                            ``(ii) on completion of the reclamation, 
                        the wetlands or waters shall support functions 
                        (including wetlands functions, as appropriate) 
                        and values equivalent to the functions and 
                        values supported by the wetlands or waters at 
                        the time of commencement of the activities.
            ``(2) State and local land management plans.--
                    ``(A) Development and submission of plan.--Any 
                State or political subdivision of a State acting 
                pursuant to State authorization may develop a land 
                management plan with respect to lands that include 
                wetlands. A State or local government agency, acting on 
                behalf of the State or political subdivision, may 
                submit the plan to the Secretary for review and 
                approval. The Secretary shall, not later than 60 days 
                after receipt of the plan, notify a designated State or 
                local official in writing of approval or disapproval of 
                the plan.
                    ``(B) Approval.--The Secretary shall approve any 
                plan described in subparagraph (A) that is consistent 
                with the objectives of this section. No person shall be 
                entitled to judicial review of the decision of the 
                Secretary to approve or disapprove a land management 
                plan under this paragraph.
                    ``(C) Construction.--Nothing in this paragraph 
                shall be construed to alter, limit, or supersede the 
                authority of a State or political subdivision of a 
                State to establish a land management plan for purposes 
                other than the objectives of this subsection.
    ``(g) Standards for Delineating Wetlands.--
            ``(1) In general.--
                    ``(A) Establishment of standards.--The Secretary 
                shall establish standards, by regulation issued under 
                subsection (i), that shall govern the delineation of 
                lands as wetlands for purposes of this section.
                    ``(B) Consultation.--Before establishing standards 
                as described in subparagraph (A), the Secretary shall 
                consult with the heads of other departments and 
                agencies of the United States, including the Director, 
                the Administrator of the Environmental Protection 
                Agency, and the Chief of the Natural Resources 
                Conservation Service of the Department of Agriculture.
                    ``(C) Standards binding on federal agencies.--The 
                standards established as described in subparagraph (A) 
                shall bind all Federal agencies in connection with the 
                administration or implementation of this section.
            ``(2) Delineation of wetlands.--
                    ``(A) In general.--The standards established as 
                described in paragraph (1)(A) shall be issued in 
                accordance with this paragraph, and any decision of the 
                Secretary, the Director, or any other Federal officer 
                or employee, made in connection with the administration 
                of the standards, shall be made in accordance with this 
                paragraph.
                    ``(B) Requirements for delineation of wetlands.--
                For purposes of this section, lands shall be delineated 
                as wetlands only if--
                            ``(i) the lands are wetlands, as defined in 
                        section 502;
                            ``(ii) the Secretary finds clear evidence 
                        of wetlands hydrology, hydrophytic vegetation, 
                        and hydric soil during the period in which the 
                        delineation (to be conducted during the growing 
                        season unless otherwise requested by the 
                        applicant) is made;
                            ``(iii) the delineation does not result in 
                        the classification of vegetation as hydrophytic 
                        if the vegetation is equally adapted to dry or 
                        wet soil conditions or is more typically 
                        adapted to dry soil conditions than to wet soil 
                        conditions;
                            ``(iv) the Secretary finds some obligate 
                        wetlands vegetation present during the period 
                        of delineation (except that if the vegetation 
                        is removed for the purpose of evading a 
                        requirement of this section, this clause shall 
                        not apply);
                            ``(v) the delineation does not result in 
                        the conclusion that conditions of wetlands 
                        hydrology are present, unless the Secretary 
                        finds water present at the surface of the lands 
                        for at least 21 consecutive days during the 
                        growing season (or period requested by the 
                        applicant) in which the delineation is made and 
                        for 21 consecutive days during the growing 
                        seasons in a majority of the years for which 
                        records are available; and
                            ``(vi) the lands were not temporarily or 
                        incidentally created as a result of adjacent 
                        development activity.
                    ``(C) Normal circumstances.--For the purpose of 
                delineating wetlands under this section, a normal 
                circumstance shall be determined on the basis of the 
                factual circumstance in existence on the date a 
                classification is made under subsection (h), or on the 
                date of application under subsection (b), whichever is 
                applicable, if the circumstance has not been altered by 
                an activity prohibited under this section.
    ``(h) United States Fish and Wildlife Service Wetlands Advance 
Identification and Classification Project.--
            ``(1) In general.--The Director, after receiving the 
        concurrence of the Chief of the Natural Resources Conservation 
        Service, shall conduct a project to identify and classify 
        wetlands in the United States. The Director shall complete the 
        project not later than 10 years after the date of enactment of 
        the Comprehensive Wetlands Conservation and Management Act of 
        1995.
            ``(2) Standards for classifying wetlands.--In conducting 
        the project, the Director shall identify and classify wetlands 
        in accordance with the standards for delineation of wetlands 
        established by the Secretary as described in paragraphs (1) and 
        (2) of subsection (g).
            ``(3) Notice and hearing.--Before completion of 
        identification and classification of wetlands under paragraph 
        (1), the Director shall provide notice and an opportunity for a 
        public hearing in each county, parish, or borough that includes 
        lands subject to identification and classification.
            ``(4) Publication.--Promptly after completion of 
        identification and classification of wetlands under paragraph 
        (1), the Director shall publish information concerning the 
        identification and classification in the Federal Register and 
        in publications of wide circulation and take other steps 
        reasonably necessary to ensure that information concerning the 
        identification and classification is made available to the 
        public.
            ``(5) Recording.--The Director shall, to the fullest extent 
        practicable, record any classification of lands as wetlands 
        under paragraph (1) on the property records in the county, 
        parish, or borough in which the wetlands are located.
            ``(6) Report to congress.--Not later than 2 years after the 
        date of enactment of the Comprehensive Wetlands Conservation 
        and Management Act of 1995, and annually thereafter, the 
        Secretary of the Interior shall prepare and submit to the 
        appropriate committees of Congress a report on implementation 
        of the project conducted under this subsection.
    ``(i) Administrative Provisions.--
            ``(1) Promulgation of final regulations.--Not later than 1 
        year after the date of enactment of the Comprehensive Wetlands 
        Conservation and Management Act of 1995, the Secretary shall, 
        after notice and opportunity for public comment, issue 1 or 
        more final regulations for the issuance of permits under this 
        section. The regulations shall--
                    ``(A) establish standards and procedures for--
                            ``(i) the classification and delineation of 
                        wetlands, and procedures for administrative 
                        review of the classification or delineation of 
                        wetlands;
                            ``(ii) the review of State or local land 
                        management plans and State programs for the 
regulation of wetlands and waters of the United States;
                            ``(iii) the issuance of general permits on 
                        a national, regional, or statewide basis under 
                        this section;
                            ``(iv) the issuance of individual permit 
                        applications under this section;
                            ``(v) enforcement of this section;
                            ``(vi) administrative appeal of an action 
                        by the Secretary denying an application for a 
                        permit referred to in subsection (b), or 
                        issuing a permit referred to in subsection (b) 
                        subject to 1 or more conditions; and
                            ``(vii) any other related area that the 
                        Secretary determines necessary or appropriate 
                        to implement the requirements of this section; 
                        and
                    ``(B) establish requirements governing the 
                establishment of a mitigation bank.
            ``(2) Judicial review of a final regulation.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), any judicial review of a final 
                regulation issued pursuant to paragraph (1), and any 
                denial by the Secretary of a petition for the issuance 
                or repeal of a regulation under paragraph (1), shall be 
                conducted in accordance with sections 701 through 706 
                of title 5, United States Code.
                    ``(B) Jurisdiction of court.--
                            ``(i) Petitions for review.--A petition for 
                        review of the action of the Secretary in 
                        issuing a regulation under paragraph (1), or 
                        denying a petition for the issuance or repeal 
                        of a regulation under paragraph (1), may be 
                        filed only in the United States Court of 
                        Appeals for the District of Columbia. The 
                        petition for review may only be filed--
                                    ``(I) not later than 90 days after 
                                the date of issuance or denial; or
                                    ``(II) if the petition for review 
                                is based solely on grounds arising 
                                after the date of issuance or denial, 
                                not later than 90 days after the date 
                                the grounds arise.
                            ``(ii) Prohibition on review during 
                        enforcement proceedings.--Action by the 
                        Secretary with respect to which review could 
                        have been obtained under this paragraph shall 
                        not be subject to judicial review in civil or 
                        criminal proceedings for enforcement.
            ``(3) Interim regulations.--
                    ``(A) Promulgation of interim regulations.--Not 
                later than 90 days after the date of enactment of the 
                Comprehensive Wetlands Conservation and Management Act 
                of 1995, the Secretary shall issue interim regulations 
                consistent with paragraph (1). The interim regulations 
                shall become effective on the date of issuance. Notice 
                of the interim regulations shall be published in the 
                Federal Register. Except as provided in subparagraph 
                (B), the interim regulations shall apply until the 
                issuance of final regulations under paragraph (1).
                    ``(B) Waiver of interim regulations.--The Secretary 
                shall provide a procedure for waiving a provision of an 
                interim regulation--
                            ``(i) in a case in which the applicant 
                        demonstrates special hardship, inequity, or 
                        unfair distribution of burdens; or
                            ``(ii) in a case in which the Secretary 
                        determines that a waiver under this 
                        subparagraph would advance the purposes of this 
                        section.
            ``(4) Authority to carry out regulations.--Except as 
        otherwise expressly provided in this section, the Secretary 
        shall be responsible for carrying out this section. The 
        Secretary or any other Federal officer or employee in whom any 
        function under this section is vested or to whom any such 
        function is delegated may perform any and all acts (including 
        appropriate enforcement activity), and may prescribe, issue, 
        amend, or rescind any regulation or order the officer or 
        employee may find necessary or appropriate to prescribe, issue, 
        amend, or rescind under this section, subject to the 
        requirements of this section.
    ``(j) Violations.--
            ``(1) Enforcement by secretary.--Whenever the Secretary 
        finds, on the basis of reliable and substantial information and 
        after reasonable inquiry, that a person is or may be in 
        violation of this section or a condition or limitation set 
        forth in a permit issued by the Secretary under subsection (b), 
        the Secretary shall--
                    ``(A) issue an order requiring the person to comply 
                with this section or with the condition or limitation 
                in the permit; or
                    ``(B) bring a civil action in accordance with 
                paragraph (3).
            ``(2) Orders issued by secretary.--
                    ``(A) Copy of order sent to states.--A copy of each 
                order issued under paragraph (1) shall be sent 
                immediately by the Secretary to the Governor of the 
                State in which the violation occurred and the Governor 
                of any other affected State.
                    ``(B) Service.--Except as provided in subparagraph 
                (C), any order issued under paragraph (1) shall--
                            ``(i) be issued by personal service to the 
                        appropriate person or corporate officer;
                            ``(ii) state with reasonable specificity 
                        the nature of the asserted violation; and
                            ``(iii) specify a period for compliance, 
                        not to exceed 30 days, that the Secretary 
                        determines is reasonable (taking into account 
                        the seriousness of the asserted violation and 
                        any good faith efforts to comply with 
                        applicable requirements).
                    ``(C) Time limit on order and estoppel.--
                            ``(i) In general.--Not later than 150 days 
                        after the date of service under subparagraph 
                        (B), the Secretary shall--
                                    ``(I) take such action as is 
                                necessary for the prosecution of a 
                                civil action in accordance with 
                                paragraph (3); or
                                    ``(II) rescind the order issued 
                                under paragraph (1) and be estopped 
                                from any further enforcement proceeding 
                                for the same asserted violation.
                            ``(ii) Disputed orders.--If a person 
                        receiving service under subparagraph (B) 
                        disputes the finding described in paragraph (1) 
                        and notifies the Secretary in writing not later 
                        than 90 days after the service, the Secretary 
                        shall, not later than 60 days after receiving 
                        the notification of the dispute--
                                    ``(I) take such action as is 
                                necessary for the prosecution of a 
                                civil action in accordance with 
                                paragraph (3); or
                                    ``(II) rescind the order and be 
                                estopped from any further enforcement 
                                proceeding for the same asserted 
                                violation.
            ``(3) Civil actions.--The Secretary may commence a civil 
        action for appropriate relief, including a permanent or 
        temporary injunction, for any violation for which the Secretary 
        may issue an order under paragraph (1). An action commenced 
        under this paragraph may be brought in the district court of 
        the United States for the district in which the defendant is 
        located or resides or is doing business, and the court shall 
        have jurisdiction to restrain the violation and to require 
        compliance. Notice of the commencement of the action shall be 
        given immediately to the Governor of any affected State.
            ``(4) Penalties.--
                    ``(A) In general.--Any person who violates this 
                section or a condition or limitation in a permit issued 
                by the Secretary under subsection (b), or who violates 
                an order issued by the Secretary under paragraph (1), 
                shall be subject to a civil penalty not to exceed 
                $25,000 per day for each violation involved, commencing 
                on the day following expiration of the period allowed 
                for compliance.
                    ``(B) Determination of amount.--The amount of the 
                penalty imposed per day shall be in proportion to the 
                scale or scope of the project that results in the 
                violation. In determining the amount of a civil penalty 
                under this paragraph, the Secretary or the court, as 
                appropriate, shall consider the seriousness of the 
                violation, the economic benefit (if any) resulting from 
                the violation, any history of a previous violation, any 
                good-faith effort to comply with applicable 
                requirements, the economic impact of the penalty on the 
                violator, and any other matter that justice may 
                require.
    ``(k) State Authority To Control Discharges.--Nothing in this 
section shall affect or impair the right of a State or interstate 
agency to control activity, including activity of a Federal agency, in 
waters of the United States within the jurisdiction of the State or 
interstate agency. Each Federal agency shall comply with a State or 
interstate requirement, whether substantive or procedural, to the same 
extent that a person is subject to the requirement. This section shall 
not affect or impair the authority of the Secretary to maintain 
navigation.
    ``(l) State Regulation of Wetlands and Waters.--
            ``(1) Application for state regulation.--The Governor of a 
        State desiring to administer an individual and general permit 
        program for an activity in wetlands or waters of the United 
        States within the jurisdiction of the State shall submit to the 
        Secretary--
                    ``(A) a description of the program proposed to be 
                established and administered under State law; and
                    ``(B) a statement from the chief legal officer of 
                the State that the State law provides adequate 
                authority to carry out the described program.
            ``(2) Determination by secretary.--Not later than 1 year 
        after the date of receipt by the Secretary of a program 
        description and statement under paragraph (1), the Secretary 
        shall determine whether the State has the authority to--
                    ``(A) issue permits that--
                            ``(i) apply, and ensure compliance with, 
                        each applicable requirement of this section; 
                        and
                            ``(ii) can be terminated or modified for 
                        cause, including--
                                    ``(I) a violation of any condition 
                                or limitation in the permit;
                                    ``(II) evidence that the permit was 
                                obtained by misrepresentation or 
                                failure to disclose fully all relevant 
                                facts; or
                                    ``(III) a change in any condition 
                                that requires either a temporary or 
                                permanent reduction or elimination of 
                                the permitted activity;
                    ``(B)(i) issue permits that apply, and ensure 
                compliance with, all applicable requirements of section 
                308; or
                    ``(ii) inspect, monitor, enter, and require reports 
                to at least the same extent as required under section 
                308;
                    ``(C) ensure that the public, and any other State 
                in which the wetlands or waters of the United States 
                may be affected by the issuance of a permit under this 
                subsection, receive notice of each application for a 
permit under this subsection and provide an opportunity for a public 
hearing before a ruling on the application;
                    ``(D) ensure that the Secretary receives notice of 
                each application for a permit under this subsection 
                and, prior to any action by the State, ensure that both 
                the applicant for the permit and the State receive from 
                the Secretary information with respect to any advance 
                classification under subsection (h) applicable to 
                wetlands or waters of the United States that are the 
                subject of the application;
                    ``(E) ensure that each State (other than the State 
                seeking to issue permits under this subsection) in 
                which the wetlands or waters of the United States may 
                be affected by the issuance of a permit under this 
                subsection may submit a written recommendation to the 
                permitting State with respect to any permit application 
                and, if any part of the written recommendation is not 
                accepted by the permitting State, ensure that the 
                permitting State will notify the affected State (and 
                the Secretary) in writing of the failure by the 
                permitting State to accept the recommendation together 
                with the reason for the failure by the permitting State 
                to accept the recommendation of the affected State; and
                    ``(F) abate a violation of the permit or the permit 
                program, through a civil or criminal penalty or other 
                means of enforcement.
            ``(3) Approval or modification of program.--
                    ``(A) Approval of program.--If, with respect to a 
                proposed State program for which a description and 
                statement were submitted under paragraph (1), the 
                Secretary determines that the State has the authority 
                set forth in paragraph (2), the Secretary shall approve 
                the program, notify the State, and suspend the issuance 
                of permits under subsection (b) for each activity with 
                respect to which a permit may be issued pursuant to the 
                State program.
                    ``(B) Modification of program.--If, with respect to 
                a proposed State program for which a description and 
                statement were submitted under paragraph (1), the 
                Secretary determines that the State does not have the 
                authority set forth in paragraph (2), the Secretary 
                shall notify the State and provide a description of any 
                revision or modification necessary so that the State 
                may resubmit the program for another determination by 
                the Secretary under this subsection.
            ``(4) Failure of secretary to make determination.--If, with 
        respect to a proposed State program for which a description and 
        statement were submitted under paragraph (1), the Secretary 
        fails to make a determination within 1 year after the date of 
        receipt of the description and statement, the proposed program 
        shall be deemed to be approved pursuant to paragraph (3)(A) on 
        the day that is 1 year after that date, the Secretary shall 
        notify the State of the approval, and the Secretary shall 
        suspend the issuance of permits under subsection (b) for each 
        activity with respect to which a permit may be issued pursuant 
        to the State program.
            ``(5) Transfer of applications.--After approval of a State 
        permit program under this subsection, the Secretary shall 
        transfer to the State for appropriate action any application 
        for a permit pending before the Secretary for an activity with 
        respect to which a permit may be issued pursuant to the State 
        program.
            ``(6) Suspension of enforcement.--If the Secretary is 
        notified that a State with a permit program approved under this 
        subsection intends to administer and enforce the terms and 
        conditions of a general permit issued by the Secretary under 
        subsection (e)(6), the Secretary shall, with respect to each 
        activity in the State to which the general permit applies, 
        suspend the administration and enforcement of the general 
        permit.
            ``(7) Corrective action.--If the Secretary determines after 
        a public hearing that a State administering a program approved 
        under this subsection is not administering the program in 
        accordance with this section, the Secretary shall notify the 
        State and, if appropriate corrective action is not taken within 
        a reasonable time (not to exceed 90 days after the date of the 
        receipt of the notification), the Secretary shall--
                    ``(A) withdraw approval of the program until the 
                Secretary determines appropriate corrective action has 
                been taken; and
                    ``(B) resume the program for the issuance of 
                permits under subsections (b) and (e)(6) for all 
                activities with respect to which the State was issuing 
                permits, until such time as the Secretary makes the 
                determination described in paragraph (2) and approves 
                the State program again.
            ``(8) Regulation by an interstate agency.--For purposes of 
        this subsection:
                    ``(A) Governor.--The term `Governor' includes the 
                head of an interstate agency.
                    ``(B) State.--The term `State' includes an 
                interstate agency.
                    ``(C) State law.--The term `State law' includes an 
                interstate compact.
    ``(m) Copies Available to Public.--A copy of each permit 
application submitted, and each permit issued, under this section shall 
be available to the public. Each permit application or portion of a 
permit application shall also be available on request for the purpose 
of reproduction.
    ``(n) Compliance With Permit Satisfies Requirements.--Compliance 
with a permit issued pursuant to this section, including carrying out 
an activity pursuant to a general permit issued under this section, 
shall be deemed, for purposes of sections 309 and 505, to be compliance 
with sections 301, 307, and 403.
    ``(o) Effective Date for Permit Provisions.--After the 90th day 
after the date of enactment of the Comprehensive Wetlands Conservation 
and Management Act of 1995, no permit for an activity in wetlands or 
waters of the United States may be issued except in accordance with 
this section. Any permit for an activity in wetlands or waters of the 
United States issued prior to the 90th day shall be deemed to be a 
permit under this section and shall continue in force and effect for 
the term of the permit unless revoked, modified, or suspended in 
accordance with this section. An application for a permit pending under 
this section on the 90th day shall be deemed to be an application for a 
permit under this section.
    ``(p) Limit on Fees.--Any fee charged in connection with--
            ``(1) the delineation or classification of wetlands;
            ``(2) an application for a permit authorizing an activity 
        in wetlands or waters of the United States; or
            ``(3) any other action taken in compliance with the 
        requirements of this section (other than a penalty for a 
        violation under subsection (j));
shall not exceed the amount of the fee in effect on January 1, 1990.''.

SEC. 4. DEFINITIONS.

    Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 
1362) is amended by adding at the end the following new paragraph:
            ``(21) Wetlands.--The term `wetlands' means lands, such as 
        swamps, marshes, bogs, and similar areas, that have a 
        predominance of hydric soils and that are inundated by surface 
        water at a frequency and duration sufficient to support, and 
        that under normal circumstances support, a prevalence of 
        vegetation typically adapted for life in saturated soil 
        conditions.''.

SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Section 119(c)(2)(E) of the Federal Water Pollution Control Act 
(33 U.S.C. 1269(c)(2)(E)) is amended by striking ``wetland'' and 
inserting ``wetlands''.
    (b) Section 208(b)(4)(B)(iii) of the Act (33 U.S.C. 
1288(b)(4)(B)(iii)) is amended by striking ``the guidelines established 
under section 404(b)(1), and'' and inserting ``section 404, and with 
the guidelines established under''.
    (c) Section 309 of the Act (33 U.S.C. 1319) is amended--
            (1) in subsection (a)--
                    (A) in the first sentence of paragraph (1), by 
                striking ``or 404''; and
                    (B) in paragraph (3), by striking ``or in a permit 
                issued under section 404 of this Act by a State'';
            (2) in the first sentence of subsection (d), by striking 
        ``or in a permit issued under section 404 of this Act by a 
        State,,''; and
            (3) in subsection (g)--
                    (A) by striking paragraph (1) and inserting the 
                following new paragraph:
            ``(1) Violations.--If the Administrator finds, on the basis 
        of any information available, that a person has violated 
        section 301, 302, 306, 307, 308, 318, or 405, or has violated 
        any permit condition or limitation implementing any of the 
        sections in a permit issued under section 402 by the 
        Administrator or by a State, the Administrator may, after 
        consultation with the State in which the violation occurred, 
        assess a class I civil penalty or a class II civil penalty 
        under this subsection.'';
                    (B) in the third sentence of paragraph (2)(B), by 
                striking ``and the Secretary'';
                    (C) in paragraph (6)(A)(iii), by striking ``, the 
                Secretary,'';
                    (D) by striking ``or Secretary, as the case may 
                be,'' and ``or the Secretary, as the case may be,'' 
                each place they appear; and
                    (E) by striking ``or Secretary'', ``or the 
                Secretary'', and ``or Secretary's'' each place they 
                appear.

SEC. 6. EFFECTIVE DATE.

    The amendments made by this Act shall become effective 90 days 
after the date of enactment of this Act.
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