[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 851 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 851

To amend the Federal Water Pollution Control Act to reform the wetlands 
              regulatory program, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                 May 25 (legislative day, May 15), 1995

Mr. Johnston (for himself, Mr. Faircloth, Mr. Breaux, Mr. Pressler, Mr. 
 Dorgan, Mr. Lott, Mr. Dole, Mr. Murkowski, and Mr. Heflin) 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 reform the wetlands 
              regulatory program, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Wetlands 
Regulatory Reform Act of 1995''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and declaration of policies and goals.
Sec. 3. Permits for activities in waters of the United States.
        ``Sec. 404. Permits for activities in waters of the 
            United States.
                ``(a) Definitions.
                ``(b) Request for determination of 
                    jurisdiction.
                ``(c) Procedures for issuance of individual 
                    permits.
                ``(d) Exempt activities.
                ``(e) Delineation procedures.
                ``(f) Wetland classification.
                ``(g) Permit determinations.
                ``(h) General permits.
                ``(i) Alaska Native and State of Alaska lands.
                ``(j) Interagency cooperation.
                ``(k) Compliance.
                ``(l) Violations.
                ``(m) Administrative appeals.
                ``(n) Mitigation banks.
                ``(o) Restoration of wetlands.
                ``(p) State permit programs.
                ``(q) Availability of information to the 
                    public.
                ``(r) Certification.
                ``(s) State authority to control activities.
                ``(t) Balanced implementation.''.
Sec. 4. Transition provisions.
Sec. 5. Technical and conforming amendments.
SEC. 2. FINDINGS AND DECLARATION OF POLICIES AND GOALS.

    (a) Findings.--Congress finds that--
            (1) wetland serves important environmental and natural 
        resource functions, such as providing--
                    (A) essential nesting and feeding habitat for 
                waterfowl, other wildlife, and many rare and endangered 
                species;
                    (B) fisheries habitat;
                    (C) the enhancement of water quality; and
                    (D) natural flood control;
            (2) because of government policies, such as the policies 
        contained in chapter 5 of title 32 of the Revised Statutes 
        (commonly known as the ``Homestead Acts'') (43 U.S.C. 161 et 
        seq.) (repealed by section 702 of the Federal Land Policy and 
        Management Act of 1976 (Public Law 94-579; 90 Stat. 2787)), 
        much of the wetland resources of the United States have 
        sustained significant degradation, resulting in the need for 
        effective programs to limit the loss of environmentally 
        significant wetlands and to provide, where and when 
        appropriate, for long-term restoration and enhancement of the 
        wetland resources base;
            (3) the rate of wetland losses has been significantly 
        reduced since the enactment of subtitle C of title XII of the 
        Food Security Act of 1985 (16 U.S.C. 3821 et seq.); and
            (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 wetland areas, 
        an effective wetland conservation and management program must 
        reflect a balanced approach that conserves and enhances 
        environmentally significant wetland functions while--
                    (A) respecting private property rights;
                    (B) recognizing the need for essential public 
                infrastructure, such as highways, utilities, ports, 
                airports, sewer systems, and public water supply 
                systems, and the need to preserve strong local tax 
                bases; and
                    (C) providing the opportunity for sustained 
                economic growth.
    (b) Declaration of Policies and Goals.--Section 101(a) of the 
Federal Water Pollution Control Act (33 U.S.C. 1251(a)) is amended--
            (1) in paragraph (6), by striking ``and'' at the end;
            (2) in paragraph (7), by striking the period at the end and 
        inserting a semicolon; and
            (3) by adding at the end the following:
            ``(8) it is the national policy that the Federal permitting 
        program for wetlands and other waters of the United States 
        under section 404 shall be implemented to protect 
        environmentally significant wetlands while avoiding significant 
        diminishment of the use and value of private property; and
            ``(9) it is the national policy to--
                    ``(A) achieve wetland conservation without undue 
                adverse economic impacts on local, regional, and 
                private economic interests;
                    ``(B) encourage the conservation and restoration of 
                wetland functions where appropriate; and
                    ``(C) implement the regulatory program authorized 
                under section 404 to ensure that landowners are not 
                denied the reasonable use of their property.''.
SEC. 3. PERMITS FOR ACTIVITIES IN WATERS OF THE UNITED STATES.

    Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) is amended to read as follows:

         ``permits for activity in waters of the united states

    ``Sec. 404. (a) Definitions.--In this section:
            ``(1) Activity in waters of the united states.--The term 
        `activity in waters of the United States' means--
                    ``(A) the discharge of dredged or fill material 
                into waters of the United States; or
                    ``(B) the drainage, channelization, and excavation 
                of waters of the United States that would have the 
                effect of significantly degrading any waters of the 
                United States.
            ``(2) Agricultural land.--The term `agricultural land' 
        means cropland, pastureland, native pasture, rangeland, an 
        orchard, a vineyard, nonindustrial forest land, an area that 
        supports a wetland crop (including cranberries, taro, 
        watercress, or rice), and any other land used to produce or 
        support the production of an annual or perennial crop, 
        aquaculture product, nursery product, or wetland crop or the 
        production of livestock.
            ``(3) Alaska native.--The term `Alaska Native' has the 
        meaning provided for `Native' in section 3 of the Alaska Native 
        Claims Settlement Act (43 U.S.C. 1602).
            ``(4) Alaska native corporation.--The term `Alaska Native 
        Corporation' has the meaning provided for `Native Corporation' 
        in section 3 of the Alaska Native Claims Settlement Act (43 
        U.S.C. 1602).
            ``(5) Alaska native village.--The term `Alaska Native 
        village' has the meaning provided for `Native village' in 
        section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 
        1602).
            ``(6) Creation.--The term `creation', with respect to 
        wetland, means an activity that brings wetland into existence 
        at a site where wetland did not exist immediately prior to the 
        activity.
            ``(7) Director.--The term `Director' means the Director of 
        the United States Fish and Wildlife Service.
            ``(8) Economic base land.--The term `economic base land' 
        means--
                    ``(A) land conveyed to, selected by, or owned by an 
                Alaska Native Corporation under the Alaska Native 
                Claims Settlement Act (43 U.S.C. 1601 et seq.) or the 
                Act entitled `An Act authorizing the Secretary of the 
                Interior to allot homesteads to the natives of Alaska', 
                approved May 17, 1906 (34 Stat. 197, chapter 2469); and
                    ``(B) land conveyed to, selected by, or owned by 
                the State of Alaska under the Act entitled `An Act to 
                provide for the admission of the State of Alaska into 
                the Union', approved July 7, 1958 (commonly known as 
                the `Alaska Statehood Act') (Public Law 85-508; 72 
                Stat. 339).
            ``(9) Enhancement.--The term `enhancement', with respect to 
        wetland, means an activity that increases any of the wetland 
        functions of a wetland in existence prior to the date of 
        enhancement.
            ``(10) Growing season.--The term `growing season' means the 
        period between the average date of the last frost in spring and 
        the average date of the first frost in autumn, which dates 
        shall be determined as the 32-degree, 50-percent probability 
        dates published by the National Climatic Data Center of the 
        National Oceanic and Atmospheric Administration.
            ``(11) Incidentally created.--The term `incidentally 
        created', with respect to wetland, refers to wetland that is 
        the unintended result of an alteration of hydrology caused by 
        human activity.
            ``(12) Linear utility facility.--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.
            ``(13) Maintenance.--The term `maintenance', with respect 
        to wetland, means an activity undertaken to ensure continuation 
        of wetland or the accomplishment of a project goal after a 
        wetland restoration, creation, or enhancement project has been 
        completed, including water level manipulation and control of 
        nonnative plant species.
            ``(14) Mitigation bank.--The term `mitigation bank' means a 
        wetland restoration, creation, enhancement, or preservation 
        project undertaken by a private or public entity for the 
        purpose of providing mitigation compensation credits to offset 
        wetland losses authorized by the terms of permits allowing 
        activities in waters of the United States.
            ``(15) Normal farming, silviculture, aquaculture, or 
        ranching activity.--The term `normal farming, silviculture, 
        aquaculture, or ranching activity' means a normal farming, 
        silviculture, aquaculture, or ranching practice identified by 
        the Secretary of Agriculture, acting through the Chief of the 
        Natural Resources Conservation Service (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 identification) and 
        such other practices as may be identified in consultation with 
        the affected industry or community.
            ``(16) Prior converted cropland.--The term `prior converted 
        cropland' means agricultural land that was, before December 23, 
        1985--
                    ``(A) manipulated (by drainage or other physical 
                alteration to remove excess water from the land); or
                    ``(B) used for the production of--
                            ``(i) any annual or perennial agricultural 
                        crop (including forage or hay), aquaculture 
                        product, nursery product, or wetland crop; or
                            ``(ii) livestock.
            ``(17) Restoration.--The term `restoration', with respect 
        to wetland, means an activity undertaken to return wetland or 
        former wetland from a disturbed or altered condition with 
        lesser wetland acreage or fewer wetland functions to a previous 
        condition with greater wetland acreage or wetland functions.
            ``(18) Secretary.--The term `Secretary' means the Secretary 
        of the Army, acting through the Chief of Engineers of the Army 
        Corps of Engineers.
            ``(19) State with substantial conserved wetlands.--The term 
        `State with substantial conserved wetlands' means a State that 
        contains at least 15 acres of wetland located in the National 
        Park System, National Wildlife Refuge System, National 
        Wilderness Preservation System, Wild and Scenic River System, 
        or another similar Federal conservation system for each acre of 
        wetland filled, drained, or otherwise converted within the 
        State (based on the wetland loss statistics reported in the 
        1990 United States Fish and Wildlife Service report to Congress 
        entitled `Wetlands Losses in the United States: 1780's to 
        1980's').
            ``(20) Temporary.--The term `temporary', with respect to an 
        impact on wetland, means the disturbance or alteration of 
        wetland caused by an activity under a circumstance in which, 
        not later than 3 years after the commencement of the activity, 
        the wetland--
                    ``(A) is returned to the condition in existence 
                prior to the commencement of the activity; or
                    ``(B) displays a condition sufficient to ensure 
                that without further human action, the wetland will 
                return to the condition in existence prior to the 
                commencement of the activity.
            ``(21) Waters of the united states.--The term `waters of 
        the United States' includes wetland but does not include--
                    ``(A) a nontidal drainage or irrigation ditch 
                located in upland;
                    ``(B) an artificially irrigated area that would 
                revert to upland if the irrigation ceased;
                    ``(C) an artificial lake or pond created by 
                excavating or diking upland to collect and retain water 
                for the primary purpose of stock watering, irrigation, 
                wildlife, fire control, cranberry growing, or rice 
                growing, or as a settling pond;
                    ``(D) an artificial reflecting or swimming pool or 
                other small ornamental body of water created by 
                excavating or diking upland to retain water for 
                primarily aesthetic reasons;
                    ``(E) a waterfilled depression created in upland 
                incidental to construction activity or a pit excavated 
                in upland for the purpose of obtaining fill, sand, 
                gravel, aggregates, or minerals, unless the 
                construction or excavation operation is abandoned and 
                the resulting body of water otherwise constitutes 
                waters of the United States;
                    ``(F) an artificial stormwater detention area or 
                artificial sewage treatment area that is not a 
                modification of waters of the United States;
                    ``(G) prior converted cropland;
                    ``(H) a confined dredged material disposal area 
                located in upland;
                    ``(I) isolated waters that are less than \1/2\ acre 
                in size; and
                    ``(J) a nontidal, nonwetland river, stream, creek, 
                or other linear drainageway or portion of a linear 
                drainageway that has an average annual flow rate of 
                less than 5 cubic feet per second, except that the 
                Secretary shall have the discretion to declare such a 
                nontidal, nonwetland river, stream, creek, or other 
                linear drainageway or portion of a linear drainageway, 
                on a case-by-case basis, to be waters of the United 
                States based on concerns for the aquatic environment.
            ``(22) Wetland.--The term `wetland' means waters of the 
        United States delineated as wetland under subsection (e).
            ``(23) Wetland function.--The term `wetland function' means 
        a role that wetland serves, including flood water storage, 
        flood water conveyance, ground water discharge, erosion 
        control, wave attenuation, water quality protection, scenic and 
        aesthetic use, food chain support, fisheries, wetland plant 
        habitat, aquatic habitat, and habitat for wetland-dependent 
        wildlife.
    ``(b) Request for Determination of Jurisdiction.--
            ``(1) Determination by the secretary.--
                    ``(A) In general.--A person who holds an ownership 
                interest in property, or who has
                 written authorization from such a person, may submit a 
request to the Secretary identifying the property and requesting the 
Secretary to make 1 or more of the following determinations with 
respect to the property:
                            ``(i) Whether the property contains waters 
                        of the United States.
                            ``(ii) If the property contains waters of 
                        the United States, whether any portion of the 
                        waters is wetland under subsection (e).
                            ``(iii) If any portion of the waters is 
                        wetland under subsection (e), the 
                        classification or classifications of the 
                        wetland under subsection (f).
                    ``(B) Provision of information.--The person shall 
                provide such additional information as may be necessary 
                to make each determination requested under subparagraph 
                (A).
                    ``(C) Determination and notification by the 
                secretary.--Not later than 90 days after receipt of a 
                request under subparagraph (A), the Secretary shall 
                notify the person submitting the request of each 
                determination made by the Secretary and provide a 
                written explanation for each determination.
            ``(2) Determination by certified non-federal person.--
                    ``(A) Certification.--Not later than 1 year after 
                the date of enactment of the Wetlands Regulatory Reform 
                Act of 1995, the Secretary shall establish a program 
                under which persons other than employees of the Federal 
                Government may be certified, on the basis of criteria 
                established by the Secretary, to make the 
                determinations with respect to property described in 
                paragraph (1)(A).
                    ``(B) Determination.--
                            ``(i) In general.--A person who holds an 
                        ownership interest in property, or who has 
                        written authorization from such a person, may--
                                    ``(I) obtain the services of a 
                                person certified under subparagraph (A) 
                                to make 1 or more of the determinations 
                                described in paragraph (1)(A) with 
                                respect to the property; and
                                    ``(II) submit written documentation 
                                of each determination and the basis for 
                                each determination to the Secretary.
                            ``(ii) Submission to the secretary.--Each 
                        determination submitted under clause (i) shall 
                        be binding on the Secretary, effective 60 days 
                        after the date of the submission, unless the 
                        Secretary--
                                    ``(I) notifies the person 
                                submitting the documentation not later 
                                than 30 days after the date of 
                                submission that the Secretary 
                                disapproves the determination; and
                                    ``(II) issues a determination in 
                                accordance with paragraph (1)(C) not 
                                later than 60 days after the date of 
                                notice under subclause (I).
    ``(c) Procedures for Issuance of Individual Permits.--
            ``(1) Applications.--A person seeking to carry out an 
        activity in waters of the United States at a site shall submit 
        an application for a permit to the Secretary in such form and 
        containing such information as the Secretary may require. Not 
        later than 15 days after the Secretary receives the 
        application, the Secretary shall request from the applicant any 
        additional information necessary to complete the application.
            ``(2) Notice and opportunity for hearing.--Not later than 
        15 days after the date on which an applicant submits all 
        information required to complete an application for a permit 
        under paragraph (1), the Secretary shall provide public notice 
        that the application has been submitted. Prior to the issuance 
        of the permit, the Secretary shall provide opportunity, to the 
        extent appropriate, for public comment and public hearings on 
        the issuance of the permit.
            ``(3) Action by the secretary.--
                    ``(A) Permit issuance.--
                            ``(i) Wetlands.--If the Secretary 
                        determines that--
                                    ``(I) the site specified in the 
                                application contains waters of the 
                                United States;
                                    ``(II) the activity for which the 
                                permit is applied is an activity in 
                                waters of the United States;
                                    ``(III) the activity is not exempt 
                                from the requirement for a permit under 
                                subsection (d); and
                                    ``(IV) any portion of the waters is 
                                wetland under subsection (e);
                        the Secretary shall determine the 
                        classification or classifications of the 
                        wetland under subsection (f) and whether to 
                        issue a permit under this section in accordance 
                        with subsection (g).
                            ``(ii) Waters other than wetlands.--If the 
                        Secretary determines that--
                                    ``(I) the site specified in the 
                                application contains waters of the 
                                United States;
                                    ``(II) the activity for which the 
                                permit is applied is an activity in 
                                waters of the United States;
                                    ``(III) the activity is not exempt 
                                from the requirement for a permit under 
                                subsection (d); and
                                    ``(IV) no portion of the waters is 
                                wetland under subsection (e);
                        the Secretary shall determine whether to issue 
                        a permit under subsection (g)(2).
                    ``(B) Determination that no permit is required.--If 
                the Secretary determines that--
                            ``(i) the site specified in the application 
                        does not contain waters of the United States;
                            ``(ii) the activity for which the permit is 
                        applied is not an activity in waters of the 
                        United States; or
                            ``(iii) the activity is exempt from the 
                        requirement for a permit under subsection (d);
                the Secretary shall issue a decision that a permit 
                under this section is not required for the activity 
                described in the application.
                    ``(C) Provision of information to applicant.--In 
                issuing a decision with respect to a permit application 
                under subparagraph (A) or (B), the Secretary shall--
                            ``(i) if the Secretary determines that a 
                        permit is required, provide a copy of the 
                        permit to the applicant; and
                            ``(ii) notify the applicant of each 
                        determination made by the Secretary and provide 
                        a written explanation for each determination.
            ``(4) Date of decision by secretary.--Except as provided in 
        paragraph (5), the Secretary shall issue 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.
            ``(5) Extension.--The decision of the Secretary with 
        respect to an application for a permit under paragraph (1) may 
        be issued after the date specified in paragraph (4) 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 issued not later than 30 days after 
                the date on which the requirements of the Act are met;
                    ``(B) the permit application involves an activity 
                that may affect a species that is listed or proposed 
                for listing as endangered or threatened or 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 
                issued not later than 30 days after the date on which 
                the requirements of the Act are met, as determined by 
                the Secretary of the Interior or the Secretary of 
                Commerce, as appropriate;
                    ``(C) the Administrator, the Secretary of 
                Agriculture, the Secretary of the Interior, the 
                Secretary of Commerce, the Secretary of Transportation, 
                or the head of any other appropriate Federal agency 
                makes a request (stating 1 or more reasons that 
                additional time is needed) that the Secretary grant an 
                extension beyond the date specified in paragraph (4), 
                and the Secretary grants the request in writing, in 
                which case the decision shall be issued not later than 
                150 days after the completed application is submitted;
                    ``(D) the applicant for the permit requests 
                additional time for evaluation of the application, in 
                which case the decision shall be issued not later than 
                30 days after the date the applicant submits a written 
                request for a decision; or
                    ``(E) the issuance of the decision is precluded as 
                a matter of law (including procedures required by law 
                other than this section).
            ``(6) Failure by the secretary to issue a decision.--If the 
        Secretary fails to issue a decision with respect to an 
        application for a permit by the applicable date required under 
        paragraph (4) or (5), the permit shall be deemed granted.
            ``(7) Implementing regulations.--
                    ``(A) In general.--Not later than 1 year after the 
                date of enactment of the Wetlands Regulatory Reform Act 
                of 1995, the Secretary shall issue regulations to carry 
                out this subsection.
                    ``(B) Standards to be included.--
                            ``(i) Wetlands.--Subject to subparagraph 
                        (C), the regulations issued under subparagraph 
                        (A) shall include standards for the issuance of 
                        permits for activities in waters of the United 
                        States that are wetland under subsection 
                        (g)(1). The standards shall include standards 
                        for compensatory mitigation that allow for--
                                    ``(I) enhancement or restoration of 
                                degraded wetland;
                                    ``(II) creation of wetland if 
                                conditions are imposed to ensure the 
                                success of the creation of the wetland;
                                    ``(III) preservation or donation of 
                                high quality wetland if the 
                                preservation or donation results in 
                                demonstrable benefit to the watershed;
                                    ``(IV) compensation through 
                                contribution to a mitigation banking 
                                program established under subsection 
                                (n);
                                    ``(V) offsite compensatory 
                                mitigation if the mitigation 
                                contributes to the restoration, 
                                enhancement, or creation of significant 
                                wetland functions on a watershed basis 
                                and is balanced with the effects that 
                                the proposed activity will have on the 
                                specified site, except that any offsite 
                                compensatory mitigation shall, to the 
                                maximum extent practicable, be within 
                                the watershed within which the proposed 
                                activity is to occur, unless it would 
                                be consistent with a State wetland 
                                management plan to conduct mitigation 
                                outside the watershed;
                                    ``(VI) contribution of in-kind 
                                intrinsic environmental value 
                                acceptable to the Secretary and 
                                otherwise authorized by law;
                                    ``(VII) in areas subject to coastal 
                                wetland loss, construction of coastal 
                                protection and enhancement projects;
                                    ``(VIII) contribution of resources 
                                of more than 1 permittee toward a 
                                single mitigation project; and
                                    ``(IX) other mitigation measures 
                                determined by the Secretary to be 
                                appropriate in the public interest and 
                                consistent with this Act.
                            ``(ii) Waters other than wetlands.--Subject 
                        to subparagraph (C), the regulations issued 
                        under subparagraph (A) shall include standards 
                        for the issuance of permits for activities in 
                        waters of the United States that are not 
                        wetland under subsection (g)(2).
                    ``(C) Determination of appropriate mitigation.--The 
                Secretary shall have the discretion to determine what 
                mitigation is appropriate for each permitted activity 
                in waters of the United States.
            ``(8) Consultation with the administrator.--In determining 
        whether to issue a permit under this subsection, the Secretary 
        shall consult with the Administrator regarding whether an 
        activity in waters of the United States at a specified site 
        would have an unacceptable adverse impact on water quality, 
        municipal water supplies, shellfish beds or fishery areas 
        (including spawning and breeding areas), or wetland-dependent 
        wildlife.
    ``(d) Exempt Activities.--
            ``(1) In general.--An activity in waters of the United 
        States shall be exempt from the requirement for a permit under 
        this section or section 301(a) or 402 (except to the extent 
        that the sections relate to compliance with effluent standards 
        or prohibitions under section 307), if the activity--
                    ``(A) results from a normal farming, silviculture, 
                aquaculture, or ranching activity, such as haying, 
                grazing, plowing, seeding, cultivating, minor drainage, 
                burning of vegetation in connection with the activity, 
                harvesting for production of a food, fiber, or forest 
                product, or an upland soil and water conservation 
                practice;
                    ``(B) is for the purpose of maintenance, including 
                emergency reconstruction of a recently damaged, 
                serviceable structure, such as a dike, dam, levee, 
                groin, riprap, breakwater, flood control channel or 
                other engineered flood control facility, water 
                conveyance, linear utility facility, causeway, bridge 
                abutment or approach, or transportation structure;
                    ``(C) is for the purpose of--
                            ``(i) construction or maintenance of a 
                        farm, stock, or aquaculture pond or an 
                        irrigation canal or ditch; or
                            ``(ii) maintenance of a drainage ditch or 
                        spreading area for ground water recharge;
                    ``(D) is for the purpose of construction of a 
                temporary sedimentation basin on a construction site if 
                the facility being constructed on the site itself does 
                not involve an activity in waters of the United States;
                    ``(E) is for the purpose of construction or 
                maintenance of a farm road or forest road, temporary 
                road for moving mining equipment, access road for a 
                linear utility facility, railroad line of up to 10 
                miles in length, or access road to, or within, a 
                drinking water treatment plant, if the road or railroad 
                line is constructed and maintained, in accordance with 
                best management practices, to ensure that--
                            ``(i) flow and circulation patterns and 
                        chemical and biological characteristics of the 
                        waters of the United States are not impaired;
                            ``(ii) the reach of the waters of the 
                        United States is not reduced; and
                            ``(iii) any adverse impact on the aquatic 
                        environment is minimized;
                    ``(F) results from an 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 section 
                208(b)(4);
                    ``(G) is undertaken in connection with a marsh 
                management and conservation program in a coastal 
                county, parish, or borough, if the program has been 
                approved by the Governor of the State or the designee 
                of the Governor;
                    ``(H) is for the placement of a structural member 
                for a pile-supported structure, such as a pier or dock, 
                or for a linear project such as a bridge, transmission 
                or distribution line footing, powerline structure, or 
                elevated or other walkway;
                    ``(I) is for the placement of a piling in waters of 
                the United States in a circumstance that involves--
                            ``(i) a linear project described in 
                        subparagraph (H); or
                            ``(ii) a structure such as a pier, 
                        boathouse, wharf, marina, lighthouse, or 
                        individual house built on stilts solely to 
                        reduce the potential of flooding;
                    ``(J) is for the clearing of vegetation--
                            ``(i) within a right-of-way associated with 
                        the development and maintenance of a linear 
                        utility facility; or
                            ``(ii) from a reservoir used primarily for 
                        storage of drinking water if the construction 
                        of the reservoir was permitted under this 
                        section, or if the construction of the 
                        reservoir predates the requirement for the 
                        permit;
                    ``(K) is undertaken on land or involves activities 
                solely 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.);
                    ``(L) is undertaken in incidentally created wetland 
                that has exhibited wetland functions for less than 5 
                years;
                    ``(M) results from an aggregate or clay mining 
                activity in wetland that is conducted under a Federal 
                or State permit that requires--
                            ``(i) that reclamation of the affected 
                        wetland be completed within 5 years after the 
                        commencement of the activity; and
                            ``(ii) that the wetland be reclaimed to a 
                        condition capable of supporting wetland 
                        functions that are substantially equivalent to 
                        the wetland functions supported by the wetland 
                        at the time of commencement of the activity;
                    ``(N) is for the purpose of preserving or enhancing 
                aviation safety or is undertaken in order to prevent an 
                airport hazard, if the activity does not include a 
                significant expansion of an airport facility;
                    ``(O) is for the construction or maintenance of a 
                log transfer facility associated with a log 
                transportation activity;
                    ``(P) is for the construction of a mine tailings 
                impoundment utilized for a treatment facility, if the 
                construction does not involve the disturbance of Class 
                A wetland classified under subsection (f)(2)(A);
                    ``(Q) is for the construction of an ice pad or ice 
                road or for the purpose of snow storage or removal; or
                    ``(R) is part of a single and complete project 
                disturbing less than \1/2\ acre of Class B wetland 
                classified under subsection (f)(2)(B).
            ``(2) Authorized federal projects.--An activity in waters 
        of the United States as part of the construction of a Federal 
        project specifically authorized by Congress shall not be 
        prohibited by or otherwise subject to the requirement for a 
        permit under this section, a State permit program approved 
        under this section, or section 301(a) or 402 (except to the 
        extent that the sections relate to compliance with effluent 
        standards or prohibitions under section 307), if--
                    ``(A) information on the effects of the activity, 
                including consideration of the regulations issued under 
                subsection (c)(7), is included in an environmental 
                impact statement for the project under the National 
                Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
                seq.); and
                    ``(B) the environmental impact statement has been 
                submitted to Congress before the activity is carried 
                out in connection with the construction of the project 
                and prior to authorization of the project or an 
                appropriation of funds for the construction.
    ``(e) Delineation Procedures.--
            ``(1) Revisions to delineation procedures for wetlands.--
                    ``(A) Regulations.--Not later than 1 year after the 
                date of enactment of the Wetlands Regulatory Reform Act 
                of 1995, the Secretary, after notice and opportunity 
                for public comment, shall issue regulations for the 
                delineation of wetlands. In developing the regulations, 
                the Secretary shall consider the study of wetlands 
                conducted by the National Academy of Sciences under the 
                Departments of Veterans Affairs and Housing and Urban 
                Development, and Independent Agencies Appropriations 
                Act, 1993 (Public Law 102-389).
                    ``(B) Criteria for delineation of wetlands.--The 
                regulations issued under subparagraph (A) shall provide 
                that waters of the United States shall be delineated as 
                wetland if--
                            ``(i) the Secretary finds clear evidence 
                        that the waters have wetland 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;
                            ``(ii) in the case of--
                                    ``(I) nontidal wetland, water is on 
                                or above the surface of the ground for 
                                at least 21 consecutive days during the 
                                growing season in a year of normal 
                                rainfall; or
                                    ``(II) tidal wetland, the waters 
                                are subject to predictable tidal 
                                influence; and
                            ``(iii) the wetland was not temporarily or 
                        incidentally created as a result of adjacent 
                        development activity.
                    ``(C) Hydrophytic vegetation.--For the purpose of 
                subparagraph (B)(i), waters of the United States--
                            ``(i) shall be considered to exhibit clear 
                        evidence of hydrophytic vegetation if obligate 
                        wetland vegetation is found to be present 
                        during the period of delineation (except that 
                        if the vegetation is removed for the purpose of 
                        evading the applicability of a requirement of 
                        this section, this clause shall not apply); and
                            ``(ii) shall not be considered to exhibit 
                        clear evidence of hydrophytic vegetation based 
                        solely on vegetation that is equally adapted to 
                        dry or wet soil conditions, or is more 
                        typically adapted to dry soil conditions than 
                        to wet soil conditions.
            ``(2) Continued use of 1987 manual.--Until regulations are 
        issued under paragraph (1)(A), the Secretary 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 wetland areas, except that 
        the Secretary shall modify the guidelines to make the 
        guidelines consistent with paragraph (1).
            ``(3) Agricultural land.--
                    ``(A) In general.--For the purpose of this section, 
                wetland located on agricultural land and associated 
                nonagricultural land shall be delineated solely 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 activity that is related to agricultural 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 be exempt from this 
                section for such period of time as the land is used as 
                agricultural land.
    ``(f) Wetland Classification.--
            ``(1) Criteria.--Not later than 1 year after the date of 
        enactment of the Wetlands Regulatory Reform Act of 1995, the 
        Secretary shall issue regulations to classify wetlands as Class 
        A, Class B, or Class C wetlands, depending on the relative 
        environmental significance of the wetlands, and taking into 
        account regional variations in hydrology, soils, and 
        vegetation.
            ``(2) Classification.--Under the criteria, the Secretary, 
        in connection with consideration of a permit application under 
        subsection (c)(1) or at the request of a person under 
        subsection (b), shall classify--
                    ``(A) as Class A wetland, wetland that is of 
                critical significance to the long-term conservation of 
                the aquatic system of which the wetland is a part if--
                            ``(i) the wetland serves critical wetland 
                        functions, including the provision of critical 
                        habitat for a concentration of wetland-
                        dependent wildlife;
                            ``(ii)(I) the wetland--
                                    ``(aa) consists of (or is a portion 
                                of) 10 or more contiguous acres of 
                                wetland of any classification; and
                                    ``(bb) has a defined surface outlet 
                                for relief of water flow; or
                            ``(II) the wetland--
                                    ``(aa) contains a prairie pothole 
                                feature, playa lake, or vernal pool; 
                                and
                                    ``(bb) consists of or is a portion 
                                of 1 or more contiguous acres of 
                                wetland of any classification; and
                            ``(iii) there exists a scarcity of 
                        functioning wetland within the watershed or 
                        aquatic system such that an activity in waters 
                        of the United States carried out in the wetland 
                        would seriously jeopardize the availability of 
                        critical wetland functions identified under 
                        clause (i);
                    ``(B) as Class B wetland, wetland that provides 
                habitat for a significant population of wetland-
                dependent wildlife, or provides other significant 
                wetland functions, including significant enhancement or 
                protection of water quality, or significant natural 
                flood control; and
                    ``(C) as Class C wetland, wetland that is not 
                classified as Class A or Class B wetland, such as 
                wetland that--
                            ``(i) serves marginal wetland functions but 
                        exists in such abundance that regulation of 
                        activity in the wetland is not necessary to 
                        conserve important wetland functions;
                            ``(ii) is within an industrial, commercial, 
                        or residential complex or other intensely 
                        developed area, so that the wetland does not 
                        serve significant wetland functions; or
                            ``(iii) is located behind a legally 
                        constructed manmade structure or natural 
                        formation, such as a levee constructed and 
                        maintained to permit the utilization of the 
                        land for commercial, industrial, agricultural, 
                        or residential purposes consistent with local 
                        land use planning requirements.
    ``(g) Permit Determinations.--
            ``(1) Wetlands.--
                    ``(A) Class a wetland.--
                            ``(i) In general.--The Secretary shall 
                        determine whether to issue a permit for an 
                        activity in waters of the United States 
                        classified under subsection (f) as Class A 
                        wetland based on whether the activity is in the 
                        public interest and on a sequential analysis 
                        that seeks, to the maximum extent practicable, 
                        to--
                                    ``(I) avoid adverse impact on the 
                                wetland;
                                    ``(II) minimize such adverse impact 
                                as cannot be avoided; and
                                    ``(III) replace on a 1-to-1 basis 
                                any loss of wetland functions that 
                                cannot be avoided or minimized.
                            ``(ii) Water-dependent activities.--
                                    ``(I) In general.--In carrying out 
                                clause (i)(I) with respect to a water-
                                dependent activity described in 
                                subclause (II), the Secretary may not 
                                presume that an alternative site in an 
                                area that is not waters of the United 
                                States is available.
                                    ``(II) Water-dependent activity.--A 
                                water-dependent activity referred to in 
                                subclause (I) is an activity that 
                                requires access or proximity to, or 
                                siting within, waters of the United 
                                States to fulfill the basic purpose of 
                                the activity.
                            ``(iii) Mitigation.--
                                    ``(I) In general.--Subject to 
                                subclause (II), a permit issued under 
                                clause (i) shall contain such terms and 
                                conditions concerning mitigation as the 
                                Secretary considers to be appropriate 
                                to meet the requirement of clause 
                                (i)(III) and prevent any unacceptable 
                                loss or degradation of Class A wetland.
                                    ``(II) Mining reclamation 
                                activities.--The mitigation 
                                requirements of this section shall be 
                                deemed met with respect to an activity 
                                in Class A wetland if the activity is 
                                carried out in accordance with a State-
                                approved reclamation plan or permit 
                                that requires recontouring and 
                                revegetation following mining, and the 
                                recontouring and revegetation results 
                                in overall environmental benefits.
                    ``(B) Class b wetland.--
                            ``(i) In general.--The Secretary shall 
                        determine whether to issue a permit to 
                        authorize an activity in waters of the United 
                        States classified under subsection (f) as Class 
                        B wetland after conducting a public interest 
                        review that balances the reasonably foreseeable 
                        benefits and detriments resulting from the 
                        issuance of the permit (including proposed 
                        mitigation), including such factors as--
                                    ``(I) economic growth;
                                    ``(II) the need for habitat for 
                                wetland-dependent wildlife;
                                    ``(III) water supply and 
                                conservation;
                                    ``(IV) water quality;
                                    ``(V) infrastructure needs;
                                    ``(VI) energy needs;
                                    ``(VII) mineral needs;
                                    ``(VIII) food production;
                                    ``(IX) recreation; and
                                    ``(X) considerations of private 
                                property ownership.
                            ``(ii) Conditions on permit.--The Secretary 
                        shall impose conditions on a permit issued 
                        under clause (i) as necessary to ensure that 
                        the watershed or aquatic system of which the 
                        wetland is a part does not suffer significant 
                        loss or degradation of wetland functions, 
                        except that the Secretary may not require 
                        replacement of wetland functions on a greater 
                        than 1-to-1 basis.
                    ``(C) Class c wetland.--No permit from the 
                Secretary shall be required with respect to an activity 
                in waters of the United States classified under 
                subsection (f) as Class C wetland.
                    ``(D) States with substantial conserved wetlands.--
                Notwithstanding subparagraphs (A) and (B), in issuing a 
                permit to authorize an activity in Class A or Class B 
                wetland located in a State with substantial conserved 
                wetlands, the Secretary--
                            ``(i) may require the avoidance of adverse 
                        impact on the wetland, except that the permit 
                        applicant may not be required to establish that 
                        no upland alternative site exists; and
                            ``(ii) shall not require the replacement of 
                        wetland functions that cannot be avoided or 
                        minimized.
            ``(2) Waters other than wetlands.--The Secretary may issue 
        a permit authorizing an activity in waters of the United States 
        that are not wetland if the Secretary determines that issuance 
        of the permit is in the public interest after balancing the 
        reasonably foreseeable benefits and detriments resulting from 
        the issuance of the permit. The Secretary may impose conditions 
        on the permit as necessary to carry out the policies of this 
        Act. In determining whether to issue the permit and whether 
        conditions are necessary, the Secretary shall consider the 
        factors specified in clauses (i) and (ii) of paragraph (1)(B) 
        with respect to the waters.
    ``(h) General Permits.--
            ``(1) Issuance.--
                    ``(A) In general.--In carrying out the functions of 
                the Secretary relating to activities in waters of the 
                United States under this section, the Secretary may 
                issue a general permit on a State, regional, or 
                nationwide basis for any activities in waters of the 
                United States for which a permit would otherwise be 
                required under subsection (c), if the Secretary 
                determines that the activities will cause only minimal 
                or temporary adverse environmental impacts when 
                performed separately, and will cause only minimal 
                cumulative adverse environmental impacts.
                    ``(B) Requirements and contents.--A general permit 
                issued under subparagraph (A) shall--
                            ``(i) be based on the regulations issued 
                        under subsection (c)(7); and
                            ``(ii) specify the requirements and 
                        standards that shall apply to an activity 
                        authorized by the general permit.
            ``(2) Termination of general permits.--
                    ``(A) Period of validity.--A general permit issued 
                under paragraph (1) shall be valid for a period of not 
                more than 5 years after the date of issuance of the 
                permit.
                    ``(B) Revocation and modification.--A general 
                permit may be revoked or modified by the Secretary if 
                the Secretary determines that the activities authorized 
                by the general permit have an adverse impact on the 
                environment or that the activities are more 
                appropriately authorized by the issuance of individual 
                permits under subsection (c).
            ``(3) State programs.--
                    ``(A) In general.--Subject to subparagraph (B), on 
                the request of a State that has in effect a wetland 
                regulatory program, the Secretary shall issue a general 
                permit for the program with respect to activities in 
                waters of the United States regulated under the program 
                if the program--
                            ``(i) has jurisdiction over the activities 
                        and waters within the scope of the requested 
                        general permit;
                            ``(ii) provides adequate safeguards to 
                        ensure that the program will provide a 
                        substantially similar level of protection of 
                        waters of the United States as the protection 
                        provided by this section;
                            ``(iii) provides adequate safeguards to 
                        ensure that the program will provide a 
                        substantially similar level of protection of 
                        private property as the protection provided by 
                        this section;
                            ``(iv) provides at least the same 
                        opportunity for public review, comment, and 
                        hearings as the opportunity provided by this 
                        section; and
                            ``(v) provides an opportunity for the 
                        Secretary, in cooperation with the 
                        Administrator, to conduct periodic reviews of 
                        permit decisions issued under the program in 
                        order to ensure that the requirements of this 
                        subsection are met.
                    ``(B) Linear utility facilities.--A general permit 
                issued under this paragraph shall not authorize a non-
                Federal wetland regulatory program to issue a general 
                permit covering linear utility facilities.
            ``(4) Consistency with swampbuster.--A general permit may 
        be issued for activities in waters of the United States 
        associated with an activity that is determined by the Secretary 
        of Agriculture to be exempt from the ineligibility provisions 
        of section 1221 of the Food Security Act of 1985 (16 U.S.C. 
        3821) under subsection (f) or (h) of section 1222 of the Act 
        (16 U.S.C. 3822), if the general permit--
                    ``(A) provides adequate safeguards to ensure that 
                the exempted activity will have no more than minimal 
                individual and cumulative adverse impacts on the 
                environment; and
                    ``(B) provides an opportunity for the Secretary to 
                conduct periodic reviews of 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) States with substantial conserved wetlands.--
        Notwithstanding paragraphs (1) and (2), at the request of a 
        State with substantial conserved wetlands, the Secretary shall 
        issue a general permit for the State. The general permit shall 
        contain requirements for activities in waters of the United 
        States in the State that provide no greater level of protection 
        of waters of the United States than the requirements that would 
        otherwise be applicable under subsection (c).
    ``(i) Alaska Native and State of Alaska Lands.--
            ``(1) In general.--Subject to paragraph (2), with respect 
        to a State with substantial conserved wetlands, the Secretary 
        shall issue individual and general permits in accordance with 
        subsections (c) and (h).
            ``(2) Permit considerations.--In the case of a permit 
        issued under this section for an activity in waters of the 
        United States on economic base land, in addition to the 
        requirements of subsections (c) and (h), the Secretary shall--
                    ``(A) balance the standards and policies of this 
                Act with the obligations of the United States to allow 
                economic base land to be beneficially used to create 
                and sustain economic activity;
                    ``(B) with respect to Alaska Native land described 
                in subsection (a)(8)(A), give substantial weight to the 
                social and economic needs of Alaska Natives; and
                    ``(C) account for regional differences in the 
                abundance and value of wetland.
            ``(3) General permits.--The Secretary shall issue a general 
        permit for an activity in waters of the United States on land 
        owned by Alaska Native villages for critical infrastructure 
        (including a water or sewer system, airport, road, 
        communication site, fuel storage site, landfill, housing 
        facility, hospital, medical clinic, school, or other community 
        infrastructure in a rural Alaska Native village) without making 
        the determinations otherwise required under subsection 
        (h)(1)(A).
            ``(4) Consultation and assistance.--The Secretary shall 
        consult with and provide assistance to Alaska Natives 
        (including Alaska Native Corporations) and the State of Alaska 
        regarding the issuance and administration of policies and 
        regulations under this section.
    ``(j) Interagency Cooperation.--The Secretary shall enter into 
agreements with the Administrator, the Secretary of Agriculture, the 
Secretary of Commerce, the Secretary of the Interior, the Secretary of 
Transportation, and the heads of other appropriate Federal agencies to
 minimize, to the maximum extent practicable, duplication, needless 
paperwork, and delays in the issuance of permits under this section.
    ``(k) Compliance.--
            ``(1) Effect of compliance with a permit.--Compliance with 
        a permit issued under this section, including carrying out an 
        activity carried out under a general permit issued under 
        subsection (h), shall be deemed, for the purposes of sections 
        309 and 505, to constitute compliance with sections 301, 307, 
        and 403.
            ``(2) Cranberry production.--An activity associated with 
        the expansion, enhancement, or modification of a cranberry 
        production operation shall be deemed, for the purposes of 
        sections 309 and 505, to constitute compliance with section 
        301, if--
                    ``(A) the activity does not result in the 
                modification of more than 10 acres of wetland per 
                operator per year, and the modified wetland (other than 
                where a dike or other necessary facility is placed) 
                remains as waters of the United States; or
                    ``(B) the activity is required by a Federal or 
                State water quality program.
            ``(3) Effect of compliance with section.--Any activity in 
        waters of the United States that is--
                    ``(A) authorized by a permit under this section;
                    ``(B) exempted from the requirement for a permit 
                under this section; or
                    ``(C) carried out in an area not determined to be 
                waters of the United States under this section;
        shall not be considered to be a violation of this section.
    ``(l) Violations.--
            ``(1) Unauthorized activities.--The Secretary shall have 
        exclusive enforcement authority with respect to an activity in 
        waters of the United States that violates section 301.
            ``(2) Enforcement by secretary.--If the Secretary 
        determines, on the basis of reliable and substantial 
        information and after reasonable inquiry, that a person has or 
        may have carried out an activity in waters of the United States 
        in violation of section 301(a), or is or may be in violation of 
        this section or a condition or limitation specified in a permit 
        issued by the Secretary under subsection (c), the Secretary 
        shall issue an order requiring the person to comply with 
        section 301(a), this section, or with the condition or 
        limitation in the permit.
            ``(3) Orders issued by secretary.--
                    ``(A) Copy of order sent to states.--A copy of each 
                order issued under paragraph (2) 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), an order issued under paragraph (2) shall--
                            ``(i) be issued by personal service on the 
                        appropriate person or corporate officer;
                            ``(ii) state with reasonable specificity 
                        why the activity is a violation and the nature, 
                        the amount of acreage, and the location 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 that have been made to 
                        comply with applicable requirements).
                    ``(C) Time limit on order.--
                            ``(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, criminal, or administrative 
                                penalty action, as appropriate; or
                                    ``(II) rescind the order issued 
                                under paragraph (2).
                            ``(ii) Disputed orders.--If a person 
                        receiving service under subparagraph (B) 
                        disputes the determination described in 
                        paragraph (2) and notifies the Secretary in 
                        writing not later than 90 days after the date 
                        of 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, criminal, or administrative 
                                penalty action, as appropriate; or
                                    ``(II) rescind the order issued 
                                under paragraph (2).
                    ``(D) Estoppel.--If the Secretary rescinds an order 
                under clause (i)(II) or (ii)(II) of subparagraph (C), 
                the Secretary shall be estopped from any further 
                enforcement proceeding for the violation asserted in 
                the order.
            ``(4) 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 (2). 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 the State in which the 
        violation occurred and the Governor of any other affected 
        State.
            ``(5) Civil penalties.--
                    ``(A) In general.--A person who violates section 
                301(a) with respect to an activity in waters of the 
                United States, this section, or a condition or 
                limitation in a permit issued by the Secretary under 
                subsection (c), or who violates an order issued by the 
                Secretary under paragraph (2), may be subject to a 
                civil penalty not to exceed $1,000 for each day of 
                violation if the person is an individual or $25,000 for 
                each day of violation if the person is not an 
                individual, commencing on the day following expiration 
                of the period allowed for compliance.
                    ``(B) Determination of amount.--The amount of the 
                penalty imposed for each day shall be in proportion to 
                the scale or scope of, or the destruction or 
                degradation caused by, 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.
            ``(6) Criminal penalties.--
                    ``(A) In general.--If--
                            ``(i) a person has been notified of an 
                        order issued by the Secretary under paragraph 
                        (2) concerning a violation;
                            ``(ii) the violation consists of the 
                        knowing and intentional violation by the person 
                        of this section or a condition or limitation in 
                        a permit issued by the Secretary under 
                        subsection (c); and
                            ``(iii) the violation has resulted in 
                        actual and substantial environmental harm;
                the person shall (except as provided in subparagraph 
                (B)) be fined not less than $5,000 nor more than 
                $50,000 for each day of violation or imprisoned not 
                more than 3 years, or both.
                    ``(B) Subsequent convictions.--If a conviction of a 
                person under subparagraph (A) is for a violation 
                committed after a previous conviction of the person 
                under subparagraph (A), the person shall be fined not 
                more than $100,000 for each day of violation or 
                imprisoned not more than 6 years, or both.
                    ``(C) Bringing of action.--An action for imposition 
                of a criminal penalty under this paragraph may be 
                brought only by the Attorney General.
            ``(7) Administrative penalties.--The Secretary may assess 
        administrative penalties for an activity in waters of the 
        United States in violation of section 301(a) to the extent and 
        in the manner described in section 309(g).
            ``(8) Emergency powers.--The Secretary may exercise the 
        emergency powers described in section 504 with respect to 
        activities in waters of the United States.
    ``(m) Administrative Appeals.--
            ``(1) In general.--Not later than 1 year after the date of 
        enactment of the Wetlands Regulatory Reform Act of 1995, the 
        Secretary, after providing notice and opportunity for public 
        comment, shall issue regulations establishing procedures under 
        which--
                    ``(A) a landowner may appeal a determination that a 
                permit is required under this section with respect to a 
                parcel of land;
                    ``(B) any person may appeal a determination that a 
                proposed activity is not exempt under subsection (d);
                    ``(C) a landowner may appeal a determination that 
                an activity is not eligible for a general permit issued 
                under subsection (h);
                    ``(D) an applicant for a permit under this section 
                may appeal a determination made under this section to 
                deny issuance of the permit or to impose a requirement 
                or standard under the permit; and
                    ``(E) a landowner or any other person required to 
                restore or otherwise alter a parcel of land under an 
                order under this section may appeal the order.
            ``(2) Filing deadline.--An appeal brought under this 
        subsection shall be filed not later than 120 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 person filing the appeal.
            ``(3) Decision deadline.--An appeal brought under 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 
        under this subsection may file written comments with respect to 
        the appeal.
            ``(5) Official deciding appeal.--An appeal brought under 
        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 person who has 
        filed an appeal under this subsection shall not be required to 
        pay a penalty or perform mitigation or restoration required 
        under this section or section 309 until after the appeal has 
        been decided.
    ``(n) Mitigation Banks.--
            ``(1) Establishment.--Not later than 1 year after the date 
        of enactment of the Wetlands Regulatory Reform Act of 1995, 
        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 Director.
            ``(2) Provisions and requirements.--The regulations issued 
        under paragraph (1) shall ensure that each mitigation bank--
                    ``(A) complies with the regulations issued under 
                subsection (c)(7);
                    ``(B) to the extent practicable and environmentally 
                desirable, provides in-kind replacement of lost wetland 
                functions, and is located in, or in proximity to, the 
                same watershed as the affected wetland;
                    ``(C) is operated by an entity that has the 
                financial ability to meet the requirements of this 
                section;
                    ``(D) requires the deposit by the entity of a 
                performance bond or other appropriate demonstration of 
                financial responsibility to support the long-term 
                maintenance of the bank;
                    ``(E) specifies responsibilities for long-term 
                monitoring, maintenance, and protection of wetland;
                    ``(F) requires the entity to provide for the long-
                term security of ownership interests of wetland and 
                upland on which projects are conducted to protect the 
                wetland functions associated with the mitigation banks;
                    ``(G) employs consistent and scientifically sound 
                methods to--
                            ``(i) determine debits by evaluating the 
                        wetland functions, adverse project impacts, and 
                        the duration of each impact at each site of a 
                        proposed permit for an activity in waters of 
                        the United States under this section; and
                            ``(ii) determine credits based on wetland 
                        functions at the sites of mitigation banks;
                    ``(H) provides--
                            ``(i) for the transfer of credits for 
                        mitigation that has been performed and for 
                        mitigation that will be performed within a 
                        designated time in the future; and
                            ``(ii) for posting of financial bonds in 
                        sufficient amount to ensure that the future 
                        mitigation will be performed in the case of 
                        default; and
                    ``(I) provides opportunity for public notice of, 
                and comment on, proposals for mitigation banks and 
                applications for a permit under this section.
    ``(o) Restoration of Wetlands.--
            ``(1) Restoration projects.--The Secretary shall provide 
        appropriate regulatory relief with respect to regulations 
        issued under this section for each activity in waters of the 
        United States that has as the primary purpose to restore 
        degraded wetland, including providing a general permit or other 
        form of expedited permit processing for the activity.
            ``(2) Restoration and creation in areas not currently 
        waters of the united states.--
                    ``(A) In general.--The Secretary shall establish a 
                registry of wetland that has been created or restored 
                voluntarily in an area that, prior to the creation or 
                restoration, did not contain waters of the United 
                States and therefore was not subject to regulation 
                under this section. Wetland listed in the registry 
                shall not be considered to be waters of the United 
                States and shall not be subject to regulation under 
                this section unless the wetland is subsequently 
                accepted as mitigation for an activity in waters of the 
                United States authorized under this section.
                    ``(B) Eligibility of wetland.--The Secretary may 
                establish requirements for determining the eligibility 
                of degraded wetland for listing in the registry prior 
                to any restoration activity. Prior converted cropland 
                shall be eligible for listing in the registry.
            ``(3) Report.--Not later than 180 days after the date of 
        enactment of the Wetlands Regulatory Reform Act of 1995, the 
        Administrator shall report to Congress on other appropriate 
        incentives, using both regulatory and nonregulatory means, to 
        encourage the restoration of wetland. In preparing the report, 
        the Secretary shall consult with the Administrator, other 
        Federal officials, and members of the public, including persons 
        whose activities are subject to regulation under this section.
    ``(p) State Permit Programs.--
            ``(1) Submission of program.--
                    ``(A) In general.--The Governor of a State desiring 
                to administer an individual and general permit program 
                for an activity in waters of the United States (other 
                than the excepted waters described in subparagraph (B)) 
                within the jurisdiction of the State shall submit to 
                the Secretary--
                            ``(i) a complete description of the program 
                        that the Governor proposes to establish and 
                        administer under State law; and
                            ``(ii) a statement from the attorney 
                        general or the chief legal officer of the State 
                        (or the attorney of the agency in the case of a 
                        State agency that has independent legal 
                        counsel) that the law of the State provides 
                        adequate authority to carry out the proposed 
                        program.
                    ``(B) Excepted waters.--The excepted waters 
                referred to in subparagraph (A)--
                            ``(i) are waters that are used, or are 
                        susceptible to use in the natural condition of 
                        the waters or after reasonable improvement to 
                        the waters, as a means to transport interstate 
                        or foreign commerce shoreward to the ordinary 
                        high water mark of the waters, including waters 
                        that are subject to the ebb and flow of the 
                        tide shoreward to the mean high water mark of 
                        the waters, or the mean higher high water mark 
                        on the west coast; and
                            ``(ii) include wetland adjacent to the 
                        waters described in clause (i).
            ``(2) Review by other agencies.--
                    ``(A) Submission.--Not later than 10 days after the 
                date of receipt of a program description and statement 
                submitted by a State under paragraph (1), the Secretary 
                shall provide copies of the description and statement 
                to the Secretary and the Director.
                    ``(B) Comments.--Not later than 90 days after the 
                date of receipt by the Secretary of the program 
                description and statement submitted by a State under 
                paragraph (1), the Administrator and the Director shall 
                submit any comments with respect to the program 
                description and statement to the Secretary in writing.
            ``(3) Determination by the secretary.--Not later than 120 
        days after the date of receipt by the Secretary of a program 
        description and statement submitted by a State under paragraph 
        (1), the Secretary shall determine, after considering any 
        comments submitted by the Administrator and the Director under 
        paragraph (2)(B), whether the State has the authority to--
                    ``(A) issue permits that--
                            ``(i) apply, and ensure compliance with, 
                        each applicable requirement of this section 
                        (including the regulations issued under 
                        subsection (c)(7)) and sections 307 and 403; 
                        and
                            ``(ii) can be terminated or modified for 
                        cause, including--
                                    ``(I) a violation of a condition of 
                                the permit;
                                    ``(II) the obtaining of a permit by 
                                misrepresentation, or a failure to 
                                disclose fully all relevant facts; or
                                    ``(III) a change in a condition 
                                that requires 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 is required under 
                section 308;
                    ``(C)(i) ensure that the public, and any other 
                State the waters of which may be affected, receive 
                notice of each application for a permit under the State 
                permit program; and
                    ``(ii) provide opportunity for public hearings 
                before a decision on the application;
                    ``(D) ensure that the Secretary receives notice and 
                a copy of each application for a permit under the State 
                permit program;
                    ``(E) ensure that--
                            ``(i) each State (other than the permitting 
                        State) in which waters may be affected by the 
                        issuance of a permit under the State permit 
                        program may submit a written recommendation to 
                        the permitting State and the Secretary with 
                        respect to any permit application; and
                            ``(ii) if any part of a written 
                        recommendation is not accepted by the 
                        permitting State, the permitting State will 
                        notify the affected State and the Secretary in 
                        writing of the decision not to accept the 
                        recommendation and the reason for the decision;
                    ``(F) ensure that no permit will be issued if, in 
                the judgment of the Secretary, after consultation with 
                the Secretary of the department in which the Coast 
                Guard is operating, the anchorage and navigation of any 
                waters of the United States would be substantially 
                impaired
                 by the activity proposed to be authorized by the 
permit;
                    ``(G) abate a violation of the permit or the permit 
                program through a civil or criminal penalty or other 
                means of enforcement; and
                    ``(H) ensure continued coordination with Federal 
                and Federal-and-State water-related planning and review 
                processes.
            ``(4) Approval or modification of program.--
                    ``(A) Approval of program.--
                            ``(i) In general.--If, with respect to a 
                        State permit program for which a description 
                        and statement are submitted under paragraph 
                        (1), the Secretary determines that the State 
                        has the authority described in paragraph (3), 
                        the Secretary shall approve the program and 
                        notify the State and the Administrator. After 
                        subsequent notification from the State that the 
                        State is administering the program, the 
                        Secretary shall suspend the issuance of permits 
                        under subsections (c) and (h) for each activity 
                        with respect to which a permit may be issued 
                        under the State permit program.
                            ``(ii) Consideration of circumstances.--The 
                        Secretary shall approve a State permit program 
                        submitted under paragraph (1) that is developed 
                        to meet the particular needs and circumstances 
                        of the State, if the level of protection of 
                        wetland and private property provided by the 
                        State permit program is substantially similar 
                        to the level of protection provided by this 
                        section.
                    ``(B) Modification of program.--If, with respect to 
                a State permit program for which a description and 
                statement are submitted under paragraph (1), the 
                Secretary determines that the State does not have the 
                authority described in paragraph (3), 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.
            ``(5) Failure of the secretary to issue a determination.--
        If, with respect to a State permit program for which a 
        description and statement are submitted under paragraph (1), 
        the Secretary fails to issue a determination within 120 days 
        after the date of receipt of the description and statement, the 
        program shall be deemed to be approved under paragraph (4)(A) 
        and the Secretary shall notify the State and the Administrator 
        of the approval. After subsequent notification from the State 
        that the State is administering the program, the Secretary 
        shall suspend the issuance of permits under subsections (c) and 
        (h) for each activity with respect to which a permit may be 
        issued under the State permit program.
            ``(6) Transfer of applications.--After a State permit 
        program under this subsection has been approved, the Secretary 
        shall, at the option of the State, 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 under the State permit program.
            ``(7) 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 (h), 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.
            ``(8) 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 (including regulations issued 
        under subsection (c)(7)), the Secretary shall notify the State. 
        If appropriate corrective action is not taken within a 
        reasonable time, not to exceed 90 days after the date of 
        receipt of the notification, the Secretary shall--
                    ``(A) withdraw approval of the program until the 
                Secretary determines that appropriate corrective action 
                has been taken;
                    ``(B) resume the program for the issuance of 
                permits under subsections (c) and (h) for all 
                activities with respect to which the State was issuing 
                permits, until such time as the Secretary makes the 
                determination described in subparagraph (A) and 
                reapproves the State permit program; and
                    ``(C) assume responsibility for any application for 
                a permit pending before the State under the State 
                permit program.
            ``(9) Periodic review.--Not later than 5 years after the 
        date of approval of a State permit program, and every 5 years 
        thereafter, in order to ensure that the requirements of this 
        section are met, the Secretary, in cooperation with the 
        Administrator and the Director, shall conduct a review of 
        permit decisions issued by the State under the State permit 
        program.
            ``(10) Provision of information by states.--
                    ``(A) In general.--Each State that is administering 
                a State permit program approved under this subsection 
                shall--
                            ``(i) submit to the Secretary a copy of 
                        each permit application received by the State 
                        and provide notice to the Secretary of each 
                        action related to the consideration of the 
                        permit application, including each permit 
                        proposed to be issued by the State; and
                            ``(ii) submit to the Secretary a copy of 
                        each proposed general permit that the State 
                        intends to issue.
                    ``(B) Provision of state information to secretary 
                and director.--Not later than 10 days after the date of 
                receipt of a permit application or proposed general 
                permit under subparagraph (A), the Secretary shall 
                provide copies of the permit application or the 
                proposed general permit to the Administrator and the 
                Director. The Administrator and the Director may 
                provide written comments on the permit application or 
                the proposed general permit to the Secretary.
                    ``(C) Comments from the secretary to state.--
                            ``(i) Submission.--If the Secretary intends 
                        to submit written comments to the State with 
                        respect to a permit application or proposed 
                        general permit received under subparagraph (A), 
                        the Secretary shall--
                                    ``(I) notify the State not later 
                                than 30 days after the date of receipt 
                                of a copy of the application or 
                                proposed general permit; and
                                    ``(II) submit the written comments 
                                to the State (after consideration of 
                                any comments made with respect to the 
                                application or the proposed general 
                                permit under subparagraph (B)) not 
                                later than 90 days after the date of 
                                receipt.
                            ``(ii) Delay of permit issuance.--If the 
                        State is notified by the Secretary under clause 
                        (i), the State may not issue the proposed 
                        permit until the earlier of--
                                    ``(I) the date on which comments 
                                are received from the Secretary; or
                                    ``(II) 90 days after the date of 
                                receipt by the Secretary of a copy of 
                                the application or proposed general 
                                permit.
            ``(11) Waiver of information provision requirement.--
                    ``(A) By state.--In accordance with the guidelines 
                issued under section 304(i)(2), the Secretary may waive 
                paragraph (10) at the time of the approval of a State 
                permit program under paragraph (4)(A) for any category 
                (including any class, type, or size within the 
                category) of activity in waters of the United States 
                within the State.
                    ``(B) By categories of activities.--The Secretary 
                shall issue regulations establishing categories of 
                activities in waters of the United States that the 
                Secretary determines shall not be subject to paragraph 
                (10) in any State with a program approved under 
                paragraph (4)(A) or (5). The Secretary may distinguish 
                among classes, types, and sizes within any category of 
                the activities.
            ``(12) Regulation by an interstate agency.--For the purpose 
        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.
    ``(q) Availability of Information to the Public.--
            ``(1) Permit applications and permits.--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 be 
        available on request for the purpose of reproduction.
            ``(2) Education and information.--
                    ``(A) Publication in federal register.--The 
                Secretary shall publish in the Federal Register each 
                memorandum of agreement, regulatory guidance letter, or 
                other guidance document of general applicability that 
                is relevant to the permitting of activities under this 
                section at the same time as the memorandum, letter, or 
                other document is distributed to regional or field 
                offices of the Department of the Army.
                    ``(B) Other publications.--The Secretary shall 
                prepare, update on a biennial basis, and make available 
                to the public for purchase at cost--
                            ``(i) an indexed publication containing all 
                        Federal regulations, general permits, memoranda 
                        of agreement, regulatory guidance letters, and 
                        other guidance documents of general 
                        applicability that are relevant to the 
                        permitting of activities under this section; 
                        and
                            ``(ii) information to enable the general 
                        public to understand the delineation of 
                        wetland, the requirements for permitting 
                        described in clause (i), wetland restoration 
                        and enhancement, wetland functions, available 
                        nonregulatory programs to conserve and restore 
                        wetland, and such other matters as the 
                        Secretary considers to be relevant.
            ``(3) Mapping and public notice requirements.--
                    ``(A) Provision of public notice.--Not later than 
                90 days after the date of enactment of the Wetlands 
                Regulatory Reform Act of 1995, the Secretary shall 
                provide the court of each county, parish, or borough in 
                which wetland subject to classification under 
                subsection (f) (referred to in this paragraph as 
                `Federal jurisdictional wetland') may be located, a 
                notice for posting near the property records of the 
                county, parish, or borough. The notice shall--
                            ``(i) state that Federal jurisdictional 
                        wetland may be located in the county, parish, 
                        or borough;
                            ``(ii) provide an explanation 
                        understandable to the general public of how 
                        wetland is determined to be Federal 
                        jurisdictional wetland;
                            ``(iii) describe the requirements and 
                        restrictions of the wetland regulatory program 
                        under this section; and
                            ``(iv) provide instructions on how to 
                        obtain a delineation and classification of 
                        wetland under this section.
                    ``(B) Provision of delineation determinations.--On 
                completion of a delineation and classification of 
                property that contains wetland, or a delineation of 
                property that contains waters of the United States that 
                are not wetland, under this section, the Secretary 
                shall--
                            ``(i) file a copy of the delineation, 
                        including the classification of any wetland 
                        located on the property, with the records of 
                        the property in the local courthouse; and
                            ``(ii) serve a copy of the delineation 
                        determination on every owner of the property on 
                        record and any person with a recorded mortgage 
                        or lien on the property.
                    ``(C) Notice of enforcement actions.--The Secretary 
                and the Administrator shall file notice of each 
                enforcement action under this section taken with 
                respect to private property with the records of the 
                property.
                    ``(D) National wetlands inventory.--As the National 
                Biological Service completes the National Wetlands 
                Inventory described in section 401 of the Emergency 
                Wetlands Resources Act of 1986 (16 U.S.C. 3931), copies 
                of maps prepared as part of the inventory shall be 
                provided for posting to courts in the counties, 
                parishes, and boroughs covered by the maps.
    ``(r) Certification.--
            ``(1) In general.--Subject to paragraph (2) and 
        notwithstanding any other provision of this Act, a 
        certification under section 401 from a State or interstate 
        agency, or the Administrator, concerning compliance with 
        applicable requirements shall be required in connection with a 
        permit issued under this section only in the case of a permit 
        issued under subsection (c) that has an impact on more than 5 
        acres of waters of the United States. A certification shall not 
        be required in connection with a general permit issued under 
        subsection (h).
            ``(2) Failure to issue certification.--If the State, 
        interstate agency, or Administrator, as the case may be, fails 
        to act on a request for certification described in paragraph 
        (1) within 60 days after the date of the notice with respect to 
        the application for the permit issued under subsection (c)(2), 
        the requirement for the certification shall be deemed to be 
        waived with respect to the application.
    ``(s) State Authority To Control Activities.--Nothing in this 
section shall affect or impair the right of a State or interstate 
agency to control an activity in waters of the United States carried 
out in any portion of the waters of the United States within the 
jurisdiction of the State, including an activity by a Federal agency. 
Each Federal agency shall comply with each State or interstate 
requirement, whether substantive or procedural, to control an activity 
in waters of the United States 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.
    ``(t) Balanced Implementation.--In carrying out this section--
            ``(1) the Secretary shall balance the objective of 
        conserving functioning wetland 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 private 
        property; and
            ``(2) the Secretary, the Administrator, the heads of all 
        other Federal agencies, and other officials of the Federal 
        Government shall seek in all actions to minimize the adverse 
        impacts of the regulatory program under this section on the use 
        and value of private property.''.

SEC. 4. TRANSITION PROVISIONS.

    (a) Applicants for Permits.--A person who applied for a permit 
under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) prior to the date of enactment of this Act may reapply for the 
permit.
    (b) Permit Holders.--A person who received a permit under section 
404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) prior 
to the date of enactment of this Act may request that the Secretary 
reevaluate--
            (1) any determination made before that date under the 
        section with respect to property of the person subject to the 
        permit; or
            (2) any condition imposed under the permit.
    (c) Persons Who Obtained Determinations of Jurisdiction.--A person 
who obtained a determination from the Secretary under section 404 of 
the Federal Water Pollution Control Act (33 U.S.C. 1344) prior to the 
date of enactment of this Act with respect to property of the person 
may request that the Secretary reevaluate the determination.
    (d) Action by the Secretary.--Upon receipt of a reapplication for a 
permit under subsection (a) or a request for reevaluation under 
subsection (b) or (c), the Secretary shall make issue a decision with 
respect to the reapplication or carry out the reevaluation, as 
appropriate, in accordance with section 404 of the Federal Water 
Pollution Control Act (as amended by section 3).

SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) 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 ``the regulations issued 
under section 404(c)(7), and''.
    (b) 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 subsection (c)--
                    (A) in paragraph (1)(A), by striking ``or in a 
                permit issued under section 404 of this Act by the 
                Secretary of the Army or by a State'';
                    (B) in paragraph (2)(A), by striking ``or in a 
                permit issued under section 404 of this Act by the 
                Secretary of the Army or by a State''; and
                    (C) in the first sentence of paragraph (3)(A), by 
                striking ``or in a permit issued under section 404 of 
                this Act by the Secretary of the Army or by a State,'';
            (3) in the first sentence of subsection (d), by striking 
        ``or in a permit issued under section 404 of this Act by a 
        State,''; and
            (4) in subsection (g)--
                    (A) by striking paragraph (1) and inserting the 
                following new paragraph:
            ``(1) Violations.--If the Administrator determines, 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.
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