[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 49 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                 S. 49

   To amend the wetlands regulatory program under the Federal Water 
Pollution Control Act to provide credit for the low wetlands loss rate 
in Alaska and recognize the significant extent of wetlands conservation 
 in Alaska, to protect Alaskan property owners, and to ease the burden 
   on overly regulated Alaskan cities, boroughs, municipalities, and 
                               villages.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 19, 1999

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

_______________________________________________________________________

                                 A BILL


 
   To amend the wetlands regulatory program under the Federal Water 
Pollution Control Act to provide credit for the low wetlands loss rate 
in Alaska and recognize the significant extent of wetlands conservation 
 in Alaska, to protect Alaskan property owners, and to ease the burden 
   on overly regulated Alaskan cities, boroughs, municipalities, and 
                               villages.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Alaska Wetlands Conservation Act''.

SEC. 2. FINDINGS.

    The Congress finds that--
            (1) according to the United States Fish and Wildlife 
        Service, approximately 170,200,000 acres of wetlands existed in 
        Alaska in the 1780s and approximately 170,000,000 acres of 
        wetlands exist now, representing a loss of less than one-tenth 
        of 1 percent through human and natural processes;
            (2) according to the United States Fish and Wildlife 
        Service more than 221,000,000 acres of wetlands existed at the 
        time of Colonial America in the area that is now the contiguous 
        United States and that 117,000,000 of those acres, roughly 53 
        percent, have been filled, drained, or otherwise removed from 
        wetland status;
            (3) Alaska contains more wetlands than all of the other 
        States combined;
            (4) 88 percent of Alaska's wetlands are publicly owned, 
        while only 26 percent of the wetlands in the 48 contiguous 
        States are publicly owned;
            (5) approximately 98 percent of all Alaskan communities, 
        including 200 of the 209 remote villages in Alaska, are located 
        in or adjacent to wetlands;
            (6) approximately 62 percent of all federally designated 
        wilderness lands, 70 percent of all Federal park lands, and 90 
        percent of all Federal refuge lands are located in Alaska, thus 
        providing protection against use or degradation to 
        approximately 60,000,000 acres of wetlands in Alaska;
            (7) 104,000,000 acres of land were granted to the State of 
        Alaska at statehood for purposes of economic development;
            (8) approximately 43,000,000 acres of land were granted to 
        Alaska Natives through regional and village corporations and 
        Native allotments for their use and between 45 percent and 100 
        percent of each Native corporation's land is categorized as 
        wetlands;
            (9) development of basic community infrastructure in 
        Alaska, where approximately 75 percent of the nonmountainous 
        areas are wetlands, is often delayed and sometimes prevented by 
        the existing wetlands regulatory program, with minimal 
        identifiable environmental benefit;
            (10) the 1899 Rivers and Harbors Act formerly regulated 
        disposition of dredge spoils in navigable waters, which did not 
        include wetlands, to keep navigable waters free of impairments;
            (11) the 1972 Federal Water Pollution Control Act, more 
        commonly known as the Clean Water Act, formed the basis for a 
        broad expansion of Federal jurisdiction over wetlands by 
        modifying the definition of ``navigable waters'' to include all 
        ``waters of the United States'';
            (12) in 1975, a United States district court ordered the 
        Army Corps of Engineers to publish revised regulations 
        concerning the program to implement section 404 of the Clean 
        Water Act, which expanded the scope of the program to include 
        the discharge of dredged and fill material into wetlands;
            (13) the wetlands regulatory program was expanded yet again 
        by regulatory action to include isolated wetlands (wetlands 
        that are not adjacent to navigable waters), and such an 
        expansion formed the basis for burdensome intrusions on the 
        property rights of Alaskans, Alaskan Native Corporations, and 
the State of Alaska;
            (14) expansion of the wetlands regulatory program in this 
        manner is beyond what the Congress intended when it passed the 
        Clean Water Act and has placed unnecessary economic and 
        administrative burdens on private property owners, small 
        businesses, city governments, State governments, farmers, 
        ranchers, and others, while providing negligible environmental 
        benefits;
            (15) for Alaska, a State with substantial conserved 
        wetlands and less than 1 percent private, noncorporate land 
        ownership, the burdens of the current wetlands regulatory 
        program unnecessarily inhibit reasonable community growth and 
        environmentally benign resource development;
            (16) Alaska villages, municipalities, boroughs, city 
        governments, and Native organizations are increasingly 
        frustrated with the constraints of the wetlands regulatory 
        program because it interferes with the location of community 
        centers, airports, sanitation systems, roads, schools, 
        industrial areas, and other critical community infrastructure;
            (17) policies intended to achieve ``no net loss'' of 
        wetlands reflect a response to the 53 percent loss of the 
        wetlands base in the 48 contiguous States, and do not take into 
        account the large percentage of conserved wetlands in Alaska; 
        and
            (18) individual landowners in Alaska have lost up to 97 
        percent of their property value and Alaskan communities have 
        lost a significant portion of their tax base due to wetlands 
        regulations.

SEC. 3. AMENDMENTS TO THE FEDERAL WATER POLLUTION CONTROL ACT.

    (a) National Policy.--Section 101(a) of the Federal Water Pollution 
Control Act (33 U.S.C. 1251(a)) is amended by--
            (1) striking ``and'' at the end of paragraph (6);
            (2) striking the period at the end of paragraph (7) and 
        inserting in lieu thereof a semicolon; and
            (3) adding at the end the following new paragraphs:
            ``(8) it is the national policy to (A) achieve a balance 
        between wetlands conservation and adverse economic impacts on 
        local, regional, and private economic interests, and (B) 
        eliminate the regulatory taking of private property by the 
        regulatory program authorized under section 404;
            ``(9) it is the national policy to encourage localized 
        wetlands planning (without mandating such planning and by 
        providing funds to facilitate such planning), and to allow 
        greater flexibility for the issuance of wetlands permits in 
        States with substantial conserved wetlands; and
            ``(10) it is the national policy that compensatory 
        mitigation under section 404 for the development of wetlands in 
        a State with substantial conserved wetlands shall not be 
        required, requested, or otherwise utilized to offset impacts to 
        such wetlands.''.
    (b) Discharge Permits.--Section 404(b) of the Federal Water 
Pollution Control Act (33 U.S.C. 1344(b)) is amended by inserting after 
the period at the end the following new sentence: ``Notwithstanding the 
preceding sentence, such guidelines with respect to disposal sites in 
any State with substantial conserved wetlands--
                    ``(A) shall not require mitigation to compensate 
                for wetlands loss and adverse impacts to wetlands;
                    ``(B) may include reasonable requirements for the 
                minimization of adverse impacts to wetlands; and
                    ``(C) may include reasonable requirements for the 
                avoidance of impacts, but may not require the permit 
                applicant to establish that alternative sites do not 
                exist.''.
    (c) General Permits.--Section 404(e) of the Federal Water Pollution 
Control Act (33 U.S.C. 1344(e)) is amended by inserting at the end the 
following new paragraph:
            ``(3) Notwithstanding the requirements of paragraphs (1) 
        and (2), at the request of a State with substantial conserved 
        wetlands, the Secretary shall issue a general permit on a 
        Statewide basis for any category of activities in such State. 
        Any such permit shall apply to the discharge of dredged or fill 
        material into disposal sites that are up to, at a minimum, 10 
        acres in size, and may not contain guidelines for disposal 
        sites that are more stringent than the guidelines for such 
        sites in that State under subsection (b).''.
    (d) Nonprohibited Discharges.--Section 404(f)(1) of the Federal 
Water Pollution Control Act (33 U.S.C. 1344(f)(1)) is amended by--
            (1) striking the comma at the end of subparagraph (F) and 
        inserting in lieu thereof a semicolon; and
            (2) adding at the end the following new subparagraph:
                    ``(G) in a State with substantial conserved 
                wetlands--
                            ``(i) associated with airport safety 
                        (ground and air);
                            ``(ii) for the construction and maintenance 
                        of log transfer facilities relating to log 
                        transportation activities;
                            ``(iii) for the construction of tailings 
                        impoundments utilized for treatment facilities 
                        (as determined by the development document) for 
                        the mining subcategory for which the tailings 
                        impoundments are constructed; and
                            ``(iv) for the construction of ice pads and 
                        ice roads and for the purposes of snow storage 
                        and removal.''.
    (e) Definitions.--Section 404 of the Federal Water Pollution 
Control Act (33 U.S.C. 1344), as amended, is amended further by adding 
at the end the following new subsections:
    ``(u) Definitions.--For purposes of this section--
            ``(1) the term `conserved wetlands' means wetlands that are 
        located in the National Park System, National Wildlife Refuge 
        System, National Wilderness System, the Wild and Scenic River 
        System, and other similar Federal conservation systems, as well 
        as wetlands located in comparable types of conservation systems 
        established under State or local authority;
            ``(2) the term `economic base lands' means lands conveyed 
        to, selected by, or owned by Alaska Native entities pursuant to 
        the Alaska Native Claims Settlement Act (Public Law 92-203), as 
        amended, or the Alaska Native Allotment Act of 1906 (34 Stat. 
        197), as amended, and lands conveyed to, selected by, or owned 
        by, the State of Alaska pursuant to the Alaska Statehood Act 
        (Public Law 85-508), as amended; and
            ``(3) the term `State with substantial conserved wetlands' 
        means any State which--
                    ``(A) contains at least 15 acres of conserved 
                wetlands for each acre of wetlands filled, drained, or 
                otherwise converted within such State (based upon 
                wetlands loss statistics reported in the 1990 United 
                States Fish and Wildlife Service Wetlands Trends report 
                to Congress entitled `Wetlands Losses in the United 
                States 1780's to 1980's); or
                    ``(B) the Secretary of the Army determines has 
                sufficient conserved wetlands to provide adequate 
                wetlands conservation in such State, based on the 
                policies set forth in this Act.
    ``(v) Alaska Native and State of Alaska Land Exceptions.--
            ``(1)(A) Notwithstanding subsections (a) or (b), upon 
        application by the holder of economic base lands, the Secretary 
        shall issue a permit for the discharge of dredged or fill 
        material into the navigable waters at a disposal site on such 
        lands if such discharge complies with reasonable guidelines 
        established by the Secretary under this subsection. The 
        guidelines established by the Secretary under this subsection 
        may be no more stringent than the guidelines established under 
        subsection (b) for disposal sites in a State with substantial 
        conserved wetlands, and must take into consideration the 
        requirements of subparagraph (B).
            ``(B) In considering the requirements otherwise applicable 
        under subsections (a) and (b) for use in guidelines applicable 
        to permits issued under this paragraph, the Secretary shall--
                    ``(i) balance the standards and policies of this 
                Act against the obligations of the United States to 
                allow economic base lands to be beneficially used to 
                create and sustain economic activity;
                    ``(ii) with respect to Alaska Native lands, give 
                substantial weight to the social and economic needs of 
                Alaska Natives; and
                    ``(iii) consider the abundance and value of 
                conserved wetlands in the State in which such economic 
                base lands are found.
            ``(2) The Secretary shall issue general permits under 
        subsection (e)(1) for categories of activities on economic base 
        lands relating to the development of rural Alaska community 
        infrastructure (including water and sewer systems, airports, 
        roads, communication sites, fuel storage sites, landfills, 
        housing, hospitals, medical clinics, and schools) without 
        determining whether or not such activities will cause only 
        minimal adverse environmental effects when performed 
        separately, or whether or not such activities will have only 
        minimal cumulative adverse effects on the environment.
            ``(3) The Secretary shall consult with and provide 
        assistance to Alaska Natives (including Alaska Native 
        Corporations) and the State of Alaska regarding promulgation 
        and administration of policies and regulations under this 
        section.''.
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