[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1474 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 1474
To amend the Federal Water Pollution Control Act relating to wetlands
mitigation banking, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 4, 2001
Mr. Jones of North Carolina (for himself, Mr. Clement, Mr. Baker, Mr.
Taylor of Mississippi, Mr. Boehlert, Mr. Shows, Mr. Tauzin, Mrs. Cubin,
Mr. Gutknecht, Mr. Brady of Texas, Mr. Herger, Mr. English, Mr. Otter,
Mr. Hansen, Mr. Armey, Mr. Rehberg, and Mr. Barcia) introduced the
following bill; which was referred to the Committee on Transportation
and Infrastructure
_______________________________________________________________________
A BILL
To amend the Federal Water Pollution Control Act relating to wetlands
mitigation banking, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Wetland Restoration Act''.
SEC. 2. DECLARATION OF POLICIES AND GOALS.
Section 101(a) of the Federal Water Pollution Control Act (33
U.S.C. 1251(a)) is amended--
(1) by striking ``and'' at the end of paragraph (6);
(2) by striking the period at the end of paragraph (7) and
inserting a semicolon; and
(3) by adding at the end the following:
``(8) it is the national policy to conserve, create, and
restore wetlands so as to increase the quantity and quality of
the wetlands resource base of the contiguous United States and
to meet the interim goal of no overall net loss for the
remaining wetlands resource base of the contiguous United
States while taking into account the status and trends of the
wetlands resource base in particular regions and area and to
achieve such goals through regulatory means that take into
account that 75 percent of the wetlands in the contiguous
United States are privately owned and that private property
rights should not be unreasonably infringed and through
nonregulatory opportunities involving all levels of government
and supported by private initiatives; and
``(9) it is the national policy to foster wetlands
mitigation banking as a means to mitigate the unavoidable loss
of wetlands and to do so by providing a regulatory framework
for the establishment, operation, and use of mitigation banks,
making appropriate use of existing, successful programs for
mitigation banking, and taking into account regional variations
in wetlands conditions, functions, and values.''.
SEC. 3. USE OF MITIGATION BANKS.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended by adding at the end the following:
``(u) Use of Mitigation Banks.--
``(1) Definitions contained in federal guidance.--Except as
otherwise provided in this subsection, a term used in this
subsection shall have the meaning given such term in the
Federal Guidance.
``(2) Other definitions.--In this subsection, the following
definitions apply:
``(A) Charter.--The term `charter' means a
mitigation banking instrument, as described in the
Federal Guidance. A charter is an agreement between an
applicant for a charter and the Secretary or a State
(in the case of a State administering a program under
subsection (h)(2)(A)) that has been developed in
consultation with the mitigation bank review team.
``(B) Federal guidance.--The term `Federal
Guidance' means the Federal Guidance for the
Establishment, Use and Operation of Mitigation Banks
(60 Fed. Reg. 58695 (November 28, 1995)).
``(C) Maintenance.--With respect to wetlands, the
term `maintenance' means an activity undertaken to
ensure viability of a wetland or to ensure the
accomplishment of a project goal after a wetland
restoration, enhancement, creation, or preservation
project has been completed, including hydrological
manipulation and control of desirable and undesirable
plant species.
``(D) Mitigation bank.--The term `mitigation bank'
means a specified wetland resource restoration,
creation, or enhancement project or projects (which may
include the preservation of appurtenant wetlands,
uplands, or open water resources to the extent that the
wetlands, uplands, or open water resources increase the
ecological functioning of the mitigation bank) or, in
exceptional circumstances, a project or projects
consisting solely of preservation of wetlands that has
been chartered by the Secretary under this subsection
for the purpose of providing mitigation credits to offset wetland
losses authorized by the terms of permits allowing activities in the
waters of the United States.
``(E) Service area.--The term `service area' means
the designated area, as described in the Federal
Guidance, in which a mitigation bank may provide
compensatory mitigation for impacts to wetlands
resources.
``(F) Wetland function.--The term `wetland
function' means an environmental, hydrological, or
other role that the wetland serves, including flood
water storage, flood water conveyance, ground water
discharge or recharge, 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.
``(3) Charter of mitigation banks.--
``(A) Issuance.--The Secretary, in consultation
with the mitigation bank review team, may issue a
mitigation bank charter to a person who, with respect
to the project or projects that are to be included in the scope of the
mitigation banking charter, meets the following criteria:
``(i) Provides reasonable assurances of
success of the proposed restoration,
enhancement, creation, or preservation project.
``(ii) Demonstrates an adequate source of
water to support the wetland.
``(iii) Demonstrates adequate legal
control, such as title, license, contract, or
option (contingent upon approval of the
charter), over the real property (including
necessary uplands, as appropriate) in the
proposed project to carry out the proposed
project.
``(iv) Demonstrates adequate financial
assurances to carry out the proposed project,
including the design, operations, and
maintenance plan and remedial measures. Such
financial assurances may be in the form of
performance bonds, irrevocable trusts, escrow
accounts, casualty insurance, letters of
credit, legislatively-enacted dedicated funds
for government operated banks, or other
approved instruments. Such financial assurances
shall entitle the Secretary to draw upon the
assurances in the event of a substantial
failure to perform the work provided in the
mitigation bank charter, or a substantial
failure of the mitigation bank to perform as
expected in the application, in any case in
which mitigation credits based on such work
have already been used or sold. Such financial
assurances shall be in place prior to the
withdrawal of credits.
``(v) Demonstrates an adequate design,
operations, and maintenance plan to ensure
continued viability of the proposed project
after completion of construction of the
project.
``(vi) Demonstrates adequate legal
protection, such as easements, covenants
running with the land, or other appropriate,
legally binding undertakings, to ensure
permanent protection of the wetlands in the
mitigation bank that are used as the basis for
selling credits. Such legal protections shall
be in place at the time that the credits are
withdrawn.
``(B) Application and procedure.--An applicant for
a mitigation bank charter shall submit to the Secretary
an application and supporting materials signed by a
responsible official acting on behalf of the applicant
certifying the accuracy of the information contained in
the application and materials. The application shall
include, at a minimum, information on the criteria
contained in subparagraph (A). The Secretary shall
advise the applicant, not later than 30 days after the
date of filing, of whether the application is complete
and advise the applicant, in writing at that time, of
any additional materials that must be submitted in
order to complete the application. The Secretary shall
also transmit a copy of the complete charter
application to the affected State, and to the heads of
appropriate Federal agencies, each of which shall have
60 days, to run concurrently, to file written comments,
which shall be part of the record. If no comments are
filed before the last day of such 60-day period, the
Secretary may presume that the entities do not object
to the charter.
``(C) Mitigation bank review team.--The mitigation
bank review team, as defined in the Federal Guidance,
shall be responsible for reviewing charter
applications, reaching consensus on the terms of the
charter, and coordinating, as necessary, to ensure
effective implementation of the terms of the charter.
The Secretary or the State (in the case of a State
administering a program under subsection (h)(2)(A))
shall be the chair of the mitigation bank review team
and have the responsibility for making final decisions
regarding the terms of the charter if consensus cannot
be reached within the timeframes provided by this
subsection.
``(D) Coordination.--To the extent possible, the
Secretary shall coordinate the processing of a
mitigation bank charter application under this
subsection with the processing of applications by such
applicant for other permits required under this
section, in order that determinations with respect to
such permits may be made concurrently with the final
decision on the bank charter.
``(E) Notice.--
``(i) Publication.--The Secretary shall
publish notice of the charter application in
the Federal Register and in a newspaper of
general circulation in the proposed service
area in which the mitigation bank is to operate
(including the county in which the project is
to be located), and shall make copies of the
charter application and supporting materials
available for public review at appropriate
convenient locations in the service area.
``(ii) Contents.--The notice shall describe
the project or projects provided in the charter
application, explain where supporting materials
may be reviewed, and provide 30 days for the
submission of comments on the compliance of the
proposed application in accordance with this
subsection. Upon request, the time for comment
may be extended once for 30 days.
``(iii) Permit requirements.--In any case
in which a permit is required under this
section to construct a mitigation bank, the notice and opportunity for
public comment provided in accordance with the application for the
permit may satisfy the requirements of this paragraph for public notice
and comment.
``(F) Decision deadline.--The Secretary, in
consultation with the mitigation bank review team,
shall decide whether to issue a mitigation banking
charter not later than 90 days after the date of filing
of a completed charter application.
``(G) Extension of deadline.--If additional time is
needed to file comments, to provide for a hearing, to
provide for further review of comments, or to provide
for a reply to adverse comments, the Secretary may
extend the time for review once for 90 days.
``(H) Determination.--After a review of public
comments and any reply by the applicant, the Secretary
may, in accordance with subparagraph (A) and after
appropriate coordination and consultation, issue the
charter, deny the charter, or issue the charter with
modifications. The Secretary's decision shall be based
on the entire public record.
``(I) Amendments.--Additional projects may be added
to a mitigation bank charter by amendment. Amendment
applications shall be processed in the same manner as
charter applications, but the Secretary may treat the
facts established in support of the charter and
confirmed by the most recent report required under
subparagraph (J) as established for the purpose of the
amendment application process.
``(J) Periodic reports.--Persons holding a
mitigation bank charter shall report to the Secretary
in accordance with the charter and on a periodic basis,
as determined by the Secretary. The report shall
include--
``(i) information demonstrating the success
of the proposed restoration, enhancement,
creation, or preservation project;
``(ii) a demonstration of a continued
compliance with financial assurance
requirements;
``(iii) a demonstration of a continued,
adequate, long-term source of water to support
the wetland;
``(iv) a progress report in accomplishing
the construction and design, operations, and
maintenance plan provided in the charter;
``(v) a reconciliation of the number of
credits sold during the previous years, the
number of credits remaining, and any change in
the number of credits made in accordance with
the requirements of this subsection; and
``(vi) any other reporting requirement
defined in the charter.
``(K) Responsibility for bank success.--Subject to
the terms of the charter, a person holding the charter
shall be responsible for ensuring the success of the
restoration, creation, enhancement, and preservation
activities.
``(L) Revocation.--A mitigation banking charter--
``(i) shall be revoked by the Secretary--
``(I) for a criminal conviction for
making material false statements in the
charter application or annual report;
and
``(II) for substantial violations
of law (other than violations described
in clause (I)) that demonstrate the
unfitness of the holder of the charter to operate the mitigation bank;
and
``(ii) may be revoked by the Secretary--
``(I) for a substantial failure of
the bank to perform as expected in the
charter; and
``(II) for a substantial failure to
comply with the terms of the charter,
including financial assurances or
critical operating requirements.
The charter may be revoked only after an opportunity
for a public hearing.
``(M) Standards and criteria for success.--The
Secretary, in consultation with the Administrator,
shall establish standards and criteria for the success
of mitigation banks under this subsection.
``(4) Credits and debits.--
``(A) Number of credits.--The number of credits to
which a chartered mitigation bank is entitled for
wetlands restoration, enhancement, and creation shall
be based on the methodology contained in the charter,
consistent with the approach identified in the Federal
Guidance. Limited credits may be granted, consistent
with the Federal Guidance, for the inclusion of
uplands, open water, and preserved wetlands areas
within a bank if the uplands, open water, and preserved
wetlands areas within the bank increase the overall
ecological functioning of the bank.
``(B) Credits based solely on preservation.--The
number of credits that are based solely on preservation
should be based on the functions that would otherwise
be lost or degraded if the wetlands were not preserved,
and the timing of such loss or degradation, pursuant to
the Federal Guidance. In any case in which the
Secretary determines that preservation of wetlands is
appropriate as the sole basis for providing mitigation
credits, the Secretary shall make a determination that
the wetlands--
``(i) perform physical or biological
functions, the preservation of which is
important to the region in which the wetlands
are located; and
``(ii) are under a demonstrable threat of
loss or substantial degradation due to
activities that might not otherwise be expected
to be restricted and that are not the
consequence of actions under the control of the
bank sponsor.
``(C) Offering credits for sale.--Upon receipt of
its charter, a mitigation bank may offer mitigation
credits for sale in accordance with the charter. The
number of credits that a mitigation bank may offer for
sale shall not exceed the number to which the bank is
entitled under the charter. As specifically approved
under the charter, and consistent with the Federal
Guidance, limited credits may be sold before
restoration, enhancement, or creation activities have
begun if adequate financial and legal assurances
described in paragraph (3)(A) are in place to carry out
the proposed project, the likelihood of success of the
bank is high, and a construction schedule has been
approved.
``(D) Debits.--To the maximum extent practicable,
the Secretary shall use the same methodology to
quantify debits as is used to quantify credits at a
mitigation bank.
``(E) No regulation of credit price.--The Secretary
may not regulate the price charged for the sale of
mitigation credits.
``(5) Service areas.--
``(A) Additional guidance.--The Secretary may
provide additional guidance, consistent with the
Federal Guidance, on the size and use of the service
area, including policies regarding linear utility
facilities.
``(B) Interstate agreements.--If the proposed
service area or mitigation bank is located in more than
1 State, the Secretary is authorized to resolve any
interstate disagreement.
``(6) Mitigation.--
``(A) In general.--A mitigation bank approved under
this subsection may, in accordance with this section,
provide compensatory mitigation for activities
requiring authorization under this section or provide
required injunctive relief in an enforcement action by
the Secretary or the Administrator.
``(B) In-kind and out-of-kind.--Consistent with the
Federal Guidance, in-kind compensation of wetlands
impacts should generally be required. Out-of-kind
compensation may be acceptable if it is determined to
be practicable and environmentally desirable on a case-
by-case basis.
``(C) Equivalent standards and criteria.--Not later
than 1 year after the date of enactment of this
subsection, the Secretary and the Administrator, in
consultation with the heads of appropriate Federal
agencies, shall issue regulations establishing
standards and criteria applicable to the use of on-site
mitigation, in lieu fees, and other off-site mitigation
as compensatory mitigation that are similar to the
standards and criteria applicable to a mitigation bank
under this subsection. Such standards and criteria
shall include, consistent with this subsection, a
definition of in lieu fees and specific measures
addressing selection of wetland mitigation projects,
timing for initiation and completion of wetland
mitigation projects, and other terms to ensure that
such fees are used only under appropriate circumstances
with adequate controls.
``(7) Report to congress.--Not later than 2 years after the
date of enactment of this subsection, the Secretary shall
transmit to Congress a written report on the effectiveness of
wetlands mitigation banking and other forms of compensatory
mitigation in meeting the policy and goals identified in
section 101(a)(8). The report shall first be issued in draft
form and, in a 60-day period, the Secretary shall receive
comments from the public about the accuracy of the information
contained in the draft report. The final report shall be
revised after consideration of the public comments and
submitted to Congress not later than 90 days after the last day
of the comment period.
``(8) Existing banks.--Nothing in this subsection may be
construed to require a person operating a mitigation bank in
existence on the date of enactment of this subsection to submit
an application for a charter under this subsection to the
Secretary for approval.
``(9) Mitigation banking approved under state programs.--A
State that operates a program under subsection (h)(2)(A) may
administer a wetland mitigation banking program in accordance
with procedures established by State law or regulation if the
banking program is approved by the Administrator as a part of
the State's approved program under such subsection.''.
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