HR 5968 IH
101st CONGRESS
2d Session
 H. R. 5968
To amend the Federal Water Pollution Control Act to establish a comprehensive
program for conserving and managing wetlands in the United States, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
October 27, 1990
Mr. HAYES of Louisiana (for himself, Mr. RIDGE, Mr. THOMAS of Georgia,
Mr. TAUZIN, Mr. YOUNG of Alaska, Mr. DYSON, Mr. VALENTINE, Mr. MCCRERY,
Mr. BAKER, Mr. BATEMAN, Mr. BUNNING, Mr. HANSON, Mr. CRAIG, Mr. DENNY SMITH,
Mr. CALLAHAN, Mr. THOMAS of Wyoming, Mrs. VUCANOVICH, and Mr. SISISKY)
introduced the following bill; which was referred jointly to the Committees
on Public Works and Transportation and Merchant Marine and Fisheries
A BILL
To amend the Federal Water Pollution Control Act to establish a comprehensive
program for conserving and managing wetlands in the United States, and for
other purposes.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `Wetlands Conservation and Management Act
  of 1990'.
SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.
  (a) FINDINGS- The Congress finds that--
  (1) wetlands play an integral role in maintaining the quality of life
  through material contributions to our national economy, food supply, water
  supply and quality, flood control, and fish, wildlife and plant resources,
  and thus to the health, safety, recreation and economic well-being of
  citizens throughout the Nation;
  (2) wetlands serve important ecological and natural resource functions,
  such as providing essential nesting and feeding habitats for water
  fowl and other wildlife, including many rare and endangered species,
  the enhancement of water quality, natural flood control, recharging of
  aquifers and accumulation of sediment discharge;
  (3) the Nation's wetlands resource base has sustained significant
  degradation, resulting in the need for effective programs to limit the
  loss of ecologically significant wetlands and to provide for long-term
  restoration and enhancement of the resource base;
  (4) because 75 per centum of the Nation's wetlands are privately owned and
  because the majority of the Nation's population lives in or near wetlands
  areas, an effective wetlands conservation and management program must
  reflect a balanced approach that conserves and enhances important wetlands
  values and functions while observing private property rights and providing
  the opportunity for sustained economic growth; and
  (5) the Federal permit program established under section 404 of the Federal
  Water Pollution Control Act was not originally conceived as a wetlands
  regulatory program and is insufficient to assure that the Nation's wetlands
  resource base will be conserved and managed in a fair and environmentally
  sound manner.
  (b) PURPOSE- The purpose of this Act is to establish a new Federal wetlands
  regulatory program to--
  (1) assert Federal regulatory jurisdiction over a broad category of
  specifically identified activities that result in the degradation or loss
  of higher value wetlands;
  (2) account for variations in wetlands values or functions in determining the
  character and extent of regulation of activities occurring in wetlands areas;
  (3) provide sufficient regulatory incentives for conservation, restoration,
  or enhancement activities;
  (4) encourage conservation of resources on an ecosystem basis to the
  fullest extent practicable; and
  (5) balance public and private interests in determining the conditions
  under which economic activity in wetlands areas may occur.
SEC. 3. WETLANDS CONSERVATION AND MANAGEMENT.
  Title IV of the Federal Water Pollution Control Act (33 U.S.C. Sec. 1341
  et seq.) is amended by deleting section 404 and inserting in lieu thereof
  the following new section:
`SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WATERS OF THE UNITED STATES.
  `(a) PROHIBITED ACTIVITIES- (1) No person shall undertake an activity in
  wetlands or waters of the United States as described in paragraph (2) of
  this subsection unless such activity is undertaken pursuant to a permit
  issued by the Secretary or is otherwise authorized under this section.
  `(2) For purposes of this section an `activity in wetlands or waters of
  the United States' means:
  `(A) the discharge of dredged or fill material into waters of the United
  States including wetlands at a specific disposal site;
  `(B) the draining or excavation of wetlands; and
  `(C) the burning of vegetation at a specific site on wetlands for the
  purpose of altering the biological character of such wetlands.
  `(3) For purposes of this section,
  `(A) `wetlands' means those lands that meet the criteria for delineation
  of lands as wetlands set forth in paragraph (2) of subsection (g);
  `(B) `Secretary' means the Secretary of the Army; and
  `(C) `Director' means Director of the United States Fish and Wildlife
  Service.
  `(b) AUTHORIZED ACTIVITIES- (1) The Secretary is authorized to issue permits
  authorizing activities prohibited under subsection (a) of this section in
  accordance with the requirements of this section.
  `(2) Activities described in paragraph (2) of subsection (a) may be
  undertaken without prior authorization of the Secretary if those activities
  are authorized under subsection (e)(5) or (6) or are exempt from the
  requirements of this section under subsection (f) or other provisions of
  this section.
  `(c) WETLANDS CLASSIFICATION- (1) Any person seeking to undertake activities
  in wetlands for which authorization is required under subsection (b)
  shall make application to the Secretary identifying the site of such
  activity and requesting that the Secretary determine, in accordance with
  paragraph (3) of this subsection, the classification of the wetlands in
  which such activity is proposed to occur. The applicant may also provide
  such additional information regarding such proposed activity as may be
  necessary or appropriate for purposes of determining whether and under
  what conditions the proposed activity may be permitted to occur.
  `(2) Within thirty days following the receipt of an application under
  paragraph (1), the Secretary shall provide notice to the applicant of the
  classification of the wetlands that are the subject of such application. If
  such wetlands are subject to an advance classification under paragraph (h),
  the Secretary shall advise the applicant of such advance classification
  and provide an opportunity for modification of such classification under
  paragraph (4) of this subsection. If such wetlands are not subject to
  an advance classification under paragraph (h), the classification of the
  wetlands that are the subject of the application shall be determined by
  the Secretary in accordance with the requirements for classification of
  wetlands under paragraph (3).
  `(3) Upon application under this subsection, the Secretary shall--
  `(A) classify as Type A wetlands those wetlands that are of critical
  significance to the long-term conservation of the ecosystem of which such
  wetlands are a part and which meet the following requirements:
  `(i) such wetlands serve critical wetlands functions, including the
  provision of critical habitat for a substantial concentration of avian,
  aquatic, or terrestrial wildlife species;
  `(ii) such wetlands consist of ten or more contiguous acres and have an
  inlet or outlet for relief of water flow: Provided, That this requirement
  shall not operate to preclude the classification as Type A wetlands lands
  containing prairie pothole features, if such lands otherwise meet the
  requirements for Type A classification under this paragraph;
  `(iii) such wetlands may not be altered or disturbed without an unacceptable
  loss of wetlands functions and values;
  `(iv) there exists a scarcity within the watershed or aquatic ecosystem
  of identified ecological functions served by such wetlands such that the
  use of such wetlands for activities described in subsection (a) would
  seriously jeopardize the availability of these identified wetlands functions;
  `(v) there is no overriding public interest in the use of such wetlands
  for purposes other than conservation; and
  `(vi) the nature and scope of wetlands functions are such that minimization
  and compensation are not feasible means for conserving wetlands values
  and functions;
  `(B) classify as Type B wetlands those wetlands that provide habitat for a
  significant population of avian, aquatic or terrestrial wildlife, or provide
  other ecologically significant wetlands functions including significant
  enhancement or protection of water quality, significant natural flood
  control, significant recharging of aquifers or significant accumulation
  of discharge sediment; and
  `(C) classify as Type C wetlands all wetlands that--
  `(i) serve limited or de minimus wetlands ecological functions; or
  `(ii) serve some wetlands ecological functions but which exist in such
  abundance that regulation of activities in such wetlands is not necessary
  for conserving important wetlands values and functions.
Type C wetlands may include, but are not limited to, isolated wetlands and
wetlands located in industrial complexes or other intensely developed areas
that do not serve ecologically significant wetlands functions as a result
of such location.
  `(4)(A) In the case of an application to undertake activities in wetlands
  that are the subject of an advance classification as Type A, B or C wetlands
  pursuant to subsection (h), the Secretary shall, within thirty days of
  receipt of an application under this subsection, notify the applicant of
  such advance classification and advise the applicant of his right to seek
  a modification of such classification pursuant to this paragraph.
  `(B) Within thirty days of receipt of notice by the Secretary under
  subparagraph (A) of this paragraph, an applicant may request the Secretary
  to make a de novo determination of the classification of wetlands that
  are the subject of such notice. Such de novo determination shall be made
  by the Secretary in consultation with the Director. The Secretary may
  modify an advance classification made by the Director if he determines,
  upon examination of all relevant information submitted by the applicant
  or otherwise available to the Secretary (including, if appropriate, an
  on-the-ground-examination), that--
  `(i) the lands involved do not meet the standards and criteria for
  delineating wetlands set forth in paragraph (2) of subsection (g);
  `(ii) the weight of relevant information does not support the application
  of the advance classification to the specific wetlands involved; or
  `(iii) the factual basis for such advance classification is no longer valid:
  Provided, however, That such change in factual circumstances has not been
  caused by activities undertaken without authorization by the Secretary as
  may have been required under this section.
  `(d) COMPENSATION FOR LANDOWNERS- (1) Any person (including a State or
  political subdivision thereof) who owns an interest in lands that have
  been classified as Type A wetlands by the Secretary under subsection (c)
  or by the Director under subsection (h) may, within thirty days of receipt
  of actual notice of such classification (or within thirty days following
  a de novo determination of such classification), notify the Secretary and
  the Director that he is electing to seek compensation for the fair market
  value of such interests in lands, in accordance with the requirements of
  this section. Fair market value may include reasonable attorneys fees and
  shall be calculated without regard to any diminution in values resulting
  from the applicability of this section.
  `(2) Immediately upon receipt by the Secretary and the Director of
  notification of election to seek compensation under paragraph (1), the
  Director shall enter into good faith negotiations with the owner for
  purposes of determining the value of the interests in lands that have
  been classified as Type A wetlands. Within three months after receipt of
  the notice of election by the landowner under paragraph (1), the Director
  shall make an offer of reasonable compensation to the owner.
  `(3) Within one year of the date an offer for compensation is made under
  paragraph (2), the owner shall, in his discretion--
  `(A) accept such offer of compensation;
  `(B) file a claim for determination of value of compensation with the
  United States Claims Court; or
  `(C) advise the Director and the Secretary that he elects not to receive
  compensation for the taking of land under this subsection. Failure to provide
  notice in accordance with this paragraph shall be deemed an election not
  to receive compensation under this subsection.
  `(4) Upon acceptance of an offer for compensation or the filing of a
  claim for compensation under paragraph (3), the classification as Type A
  wetlands of the wetlands that are the subject of such offer or claim shall
  be binding upon the owner and any successor in interest, and the title to
  such lands shall pass to the United States. The classification of such
  lands as Type A wetlands under this paragraph shall constitute a taking
  by the United States of the owner's interests in such lands and shall be
  compensable under the provisions of this subsection.
  `(5) A taking under this subsection shall be deemed to be a taking of surface
  interests in lands only, Provided, however, That if the Secretary determines
  that the exploration for or development of oil and gas or mineral interests
  is not compatible with conservation of the surface interests in lands that
  have been classified as Type A wetlands located above or adjacent to such
  oil and gas or mineral interests, the Secretary may classify such oil and
  gas or mineral interests as Type A wetlands and notify the owner of such
  interests that he may elect to receive compensation for such interests
  under paragraph (a), and Provided, further, That the failure to provide
  reasonable access to oil and gas or mineral interests located beneath or
  adjacent to surface interests of Type A wetlands shall be deemed a taking
  of such oil and gas or mineral interests.
  `(6) The United States Claims Court shall have jurisdiction--
  `(A) to determine the value of interests taken and the fair compensation
  required under this subsection and the Constitution of the United States;
  `(B) in case of oil and gas or mineral interests, to require the United
  States to provide reasonable access in, across or through lands that may
  be the subject of a taking under this subsection, solely for the purpose
  of undertaking exploration activity necessary to determine the value of
  the interests taken; and
  `(C) to provide other equitable remedies deemed appropriate.
  `(7) Any judgment rendered under subsection (6) may be executed, at the
  election of the landowner, no later than two years after the date such
  judgment is rendered. The landowner may, prior to the execution of such
  judgment, enter into an agreement with the United States for satisfaction of
  such judgment through a crediting of tax benefits, acquisition of interests
  in oil, gas or minerals, an exchange of interests in lands with the United
  States or other means of compensation.
  `(8) The remedies for taking of interests in lands under this subsection
  shall not be construed to preempt, alter or limit the availability of other
  remedies for the taking of interests in lands under the Constitution of
  the United States or State law.
  `(9) Interests in lands acquired by the United States under this subsection
  shall be managed by the United States Fish and Wildlife Service as a part
  of the National Wildlife Refuge System unless otherwise provided by the
  Director or by Act of Congress.
  `(10) No action taken pursuant to this subsection shall constitute a taking
  of rights to the use of water and in no event shall regulatory action under
  this provision be construed to alter or supersede requirements governing
  use of water applicable under local law.
  `(e) REQUIREMENTS APPLICABLE TO PERMITTED ACTIVITY- (1) IN GENERAL- Following
  the determination of wetlands classification pursuant to subsection (c), and
  after compliance with the requirements of subsection (d) if applicable, the
  Secretary may issue or deny permits for authorization to undertake activities
  in wetlands, in accordance with the requirements of this subsection.
  `(2) TYPE A WETLANDS- The Secretary shall deny a permit authorizing
  activities in Type A wetlands unless he determines that--
  `(A) such an activity can be undertaken with de minimus alteration or
  surface disturbance;
  `(B) there are overriding public interest concerns that require use of
  the lands for purposes other than conservation, including but not limited to:
  `(i) the likelihood that efforts to mitigate adverse impacts through
  avoidance and minimization will protect critical wetlands values and
  functions; or
  `(ii) the lack of practical and feasible means for accomplishing the
  project purpose at an alternative location; or
  `(C) the proposed use of the land, taking into account all proposed
  mitigation, will result in overall environmental benefits including,
  but not limited to, the prevention of coastal erosion.
Any permit issued authorizing activities in Type A wetlands may contain such
terms and conditions concerning mitigation (including but not limited to those
applicable under paragraph (3) for  Type B wetlands) that the Secretary deems
appropriate to prevent the unacceptable loss or degradation of Type A wetlands.
  `(3) TYPE B WETLANDS- (A) The Secretary may issue a permit authorizing
  activities in Type B wetlands subject to such terms and conditions, if any,
  as he finds are necessary to ensure that the watershed or aquatic ecosystem
  of which such wetlands are a part does not suffer an unacceptable loss or
  degradation of wetlands values and functions. In determining whether or
  not specific terms and conditions are necessary to avoid an unacceptable
  loss of wetlands values and functions, consideration should be given to--
  `(i) the quality and quantity of ecologically significant functions served
  by the areas to be affected;
  `(ii) the opportunities to reduce impacts through cost effective design
  to avoid or minimize use of wetlands areas;
  `(iii) the costs of mitigation requirements and the social, economic and
  other environmental or recreational benefits associated with the proposed
  activity;
  `(iv) the availability of compensation, measured by acre or function, to
  reduce the overall loss or degradation of wetlands values and functions; and
  `(v) the benefit, measured by acre or function, that may occur through
  mitigation efforts including restoring, preserving, enhancing or creating
  wetlands values and functions.
  `(B) In considering an application for activities on Type B wetlands,
  the Secretary may require alternative site analyses for individual permit
  applications involving the alteration or permanent surface disturbance of
  ten or more contiguous acres of wetlands, Provided, however, That there
  shall be a rebuttable presumption that the project purpose as defined by
  the applicant shall be binding upon the Secretary, and Provided, further,
  That the definition of project purpose for projects sponsored by public
  agencies shall be binding upon the Secretary, subject to the authority
  of the Secretary to impose mitigation requirements to minimize impacts
  on wetlands values and functions, including cost effective redesign of
  projects to avoid wetlands areas.
  `(C) Except as otherwise provided in this section, requirements for
  mitigation shall be imposed when the Secretary finds that activities
  undertaken under this section will result in the permanent loss or
  degradation of Type B wetlands. When determining mitigation requirements
  in any specific case, the Secretary shall take into consideration the type
  of wetlands affected, the character of the impact on ecological functions,
  whether any adverse effects on wetlands are of a permanent or temporary
  nature, and the reasonable cost of such mitigation.
  `(D) In accordance with subsection (i), the Secretary shall issue rules
  governing requirements for mitigation for activities occurring in Type B
  wetlands that allow for--
  `(i) minimization of impacts through project design, including avoidance
  of specific wetlands impacts where economically practicable and consistent
  with the project's purpose, provisions for compensatory mitigation, if any,
  and the public interest;
  `(ii) preservation or donation of Type A or higher value Type B wetlands
  as mitigation for activities that alter or degrade such wetlands;
  `(iii) the enhancement or restoration of degraded wetlands as compensation
  for wetlands lost or degraded through permitted activity;
  `(iv) compensation through contribution to a mitigation banking program
  established for a State pursuant to subparagraph (F);
  `(v) offsite compensatory mitigation, if such mitigation contributes to
  the restoration, enhancement or creation of significant wetlands values
  on an ecosystem basis;
  `(vi) the contribution of in-kind value acceptable to the Secretary and
  otherwise authorized by law;
  `(vii) in areas subject to coastal erosion, the construction of coastal
  protection and enhancement projects; or
  `(viii) other mitigation measures determined by the Secretary to be
  appropriate in the public interest and consistent with the requirements
  and purposes of this Act.
  `(E) Notwithstanding the provisions of subparagraph (C), the Secretary
  may determine not to impose requirements for compensatory mitigation if
  he finds that--
  `(i) the adverse impacts of a permitted activity are de minimus;
  `(ii) the failure to impose compensatory mitigation requirements is
  compatible with maintaining wetlands functions and values and no practicable
  and reasonable means of mitigation is available;
  `(iii) there is an abundance of similar significant wetlands functions
  and values in or near the area in which the proposed activity is to occur
  that will continue to serve the functions lost or degraded as a result of
  such activity, taking into account the specific effect of such proposed
  activity and the cumulative effects of similar activity in the area;
  `(iv) the Secretary determines that the temporary character of the impacts
  and the use of minimization techniques make compensation unnecessary to
  protect ecologically significant wetlands values; or
  `(v) a waiver from requirements for compensatory mitigation is necessary
  to prevent special hardship.
  `(F) MITIGATION BANKING- The Secretary, in consultation with the Director,
  shall establish a mitigation banking program in each State which, after
  approval by the Secretary, will be available to the Secretary as a means
  for ensuring compensation for loss and degradation of wetlands functions
  and values in such State in accordance with the requirements of this
  paragraph. The primary objective of such programs shall be to provide for
  the restoration, enhancement, or, where feasible, creation of ecologically
  significant wetlands on an ecosystem basis. Such programs shall--
  `(i) provide a preference for larger scale projects, unless the Secretary
  determines that a smaller project will contribute substantially to the
  conservation, enhancement or restoration of ecologically significant
  wetlands values and functions;
  `(ii) authorize mitigation banks sponsored either by private entities or
  public entities;
  `(iii) provide models for crediting of contributions to the bank in land,
  cash or in-kind contributions, so that persons unable to sponsor specific
  banking projects can contribute to a State or privately maintained bank;
  `(iv) have sufficient requirements to ensure effective maintenance and
  supervision for at least a twenty-five-year period;
  `(v) authorize the imposition of bonding requirements on private entities
  operating such banks;
  `(vi) limit activities in banked wetlands to recreational or ecological
  activities, unless the Secretary or State finds that other uses are
  consistent with maintaining or gaining ecologically significant wetlands
  values and functions; and
  `(vii) authorize a credit to be provided on an acre-for-acre or
  value-for-value basis for Type A and B wetlands that are permanently
  protected in national conservation units, in States that have used less
  than 25 per centum of their State's wetlands for development purposes.
  `(4)(A) In the case of any application for authorization to undertake
  activities in wetlands that are not eligible for treatment on an expedited
  basis pursuant to paragraph (5) of this section, final action by the
  Secretary shall occur within six months following the date such application
  is filed, unless--
  `(i) the Secretary and the applicant agree that such final action shall
  occur within a shorter or longer period of time;
  `(ii) the Secretary determines that an additional, specified period of
  time is necessary to permit the Secretary to comply with other applicable
  Federal law; or
  `(iii) the Secretary, within thirty days from the date such application is
  received, notifies the applicant that such application does not contain all
  information reasonably necessary to allow the Secretary to consider such
  application, in which case, the provisions of subparagraph (B) shall apply.
  `(B) Upon the receipt of a request for additional information under paragraph
  (A)(iii), the applicant shall supply any reasonably necessary additional
  information and shall advise the Secretary that the applicant believes
  that the application contains all reasonably necessary information and is
  therefore complete. The Secretary may, in his discretion--
  `(i) within thirty days of the receipt of notice of the applicant that the
  application is complete, determine that the application does not contain
  all reasonably necessary additional information and, on that basis, deny
  the application without prejudice to resubmission; or
  `(ii) review the application and take final action within six months from
  the date that the applicant provides notification to the Secretary that
  its application is complete.
  `(5) TYPE C WETLANDS- (A) Activities in wetlands that have been classified
  as Type C wetlands by the Secretary or the Director may be undertaken
  without authorization pursuant to subsection (b) of this section.
  `(B) The Secretary shall, by rule in accordance with subsection (i),
  authorize a person to undertake activities in wetlands that have not been
  classified as Type C wetlands if such person certifies to the Secretary
  that he in good faith believes that such lands meet the requirements for
  classification as Type C wetlands as set forth in subsection (c)(3)(C). The
  Secretary may establish requirements for reporting activities undertaken
  in Type C wetlands without prior classification.
  `(C) No requirements for alternative site analyses or mitigation of
  environmental impacts shall apply for activities undertaken in Type
  C wetlands.
  `(6) The Secretary may, by rule in accordance with subsection (i), issue
  general permits on a state, regional or nationwide basis for any category
  of activities involving activities described in section (a) of this section
  in Type B wetlands, if the Secretary determines that such activities are
  similar in nature and that such activities, when performed separately and
  cumulatively, will not result in the significant loss of ecologically
  significant wetlands values and functions. Permits issued under this
  section shall include procedures for expedited review of eligibility for
  such permits (if such review is required) and may include requirements
  for reporting and mitigation. Requirements for compensatory mitigation
  for such permits should be imposed only to the extent necessary to avoid
  permanent loss or degradation of ecologically significant wetlands values
  and functions. Nationwide, general or regional permits in effect on the
  date of enactment of this Act shall remain in effect under authority of
  this paragraph.
  `(f) ACTIVITIES NOT REQUIRING PERMIT- (1) Except as provided in paragraph
  (3) of this subsection, activities undertaken in wetlands are exempt from
  the requirements of this section and are not prohibited by or otherwise
  subject to regulation under this section or section 1311(a) or 1342 of title
  33 of the United States Code (except effluent standards or prohibitions
  under section 1317 of such title), where such activities--
  `(A) result from normal farming, silviculture, and ranching activities such
  as plowing, seeding, cultivating, minor drainage, burning of vegetation
  in connection with such activities, harvesting for the production of food,
  fiber, and forest products, or upland soil and water conservation practices;
  `(B) are for the purpose of maintenance, including emergency reconstruction
  of recently damaged parts of currently serviceable structures such as dikes,
  dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments
  or approaches, and transportation structures;
  `(C) are for the purpose of construction or maintenance of farm or stock
  ponds or irrigation ditches, or the maintenance of drainage ditches;
  `(D) are for the purpose of construction of temporary sedimentation basins
  on a construction site which does not include placement of fill material
  into the navigable waters;
  `(E) are for the purpose of construction or maintenance of farm roads or
  forest roads, or temporary roads for moving mining equipment, where such
  roads are constructed and maintained, in accordance with best management
  practices, to assure that flow and circulation patterns and chemical and
  biological characteristics of the navigable waters are not impaired, that
  the reach of the navigable waters is not reduced, and that any adverse
  effect on the aquatic environment will be otherwise minimized;
  `(F) are undertaken on farmed wetlands, Provided, That, any change in use
  of such land for the purpose of undertaking activities that are not exempt
  from regulation under this subsection shall be subject to the requirements
  of this section to the extent that such farmed wetlands are `wetlands'
  under paragraph (2) of subsection (g);
  `(G) result from any activity with respect to which a State has an approved
  program under section 1288(b)(4) of this title which meets the requirements
  of subparagraphs (B) and (C) of such section; and
  `(H) are consistent with a State or local land management plan submitted
  to the Secretary and approved pursuant to paragraph (2).
  `(2) Any State or political subdivision thereof acting pursuant to an
  express State authorization may develop a land management plan with
  respect to lands that include identified wetlands. The State or local
  government agency may submit any such plan to the Secretary for review
  and approval by the Secretary. The Secretary shall, within sixty days,
  notify in writing the designated State or local official of approval or
  disapproval of any such plan. The Secretary shall approve any plan that is
  consistent with the objectives and policies of this section. No party shall
  be entitled to judicial review of the Secretary to approve or disapprove
  a land management plan under this paragraph. Nothing in this paragraph
  shall be construed to alter, limit or supersede the authority of a State
  or political subdivision thereof to establish land management plans for
  purposes other than the provisions of this subsection.
  `(3) Any discharge of dredged or fill material into the navigable waters
  incidental to any activity having as its purpose bringing an area of the
  navigable waters into a use to which it was not previously subject, where
  the flow or circulation of navigable waters may be impaired or the reach
  of such waters be reduced, shall require a permit under this section.
  `(g) RULES FOR DELINEATING WETLANDS- (1) The Secretary is authorized and
  directed to establish standards, by rule in accordance with subsection
  (i), that shall govern the delineation of lands as `wetlands' for purposes
  of this section. Such rules may be established after consultation with
  other agencies of the United States, including the United States Fish and
  Wildlife Service, the Environmental Protection Agency and the United States
  Soil Conservation Service, and shall be binding on all Federal agencies in
  connection with the administration or implementation of any provision of
  this section. The standards for delineation of wetlands, and any decision
  of the Secretary, the Director or other Federal agency made in connection
  with the administration of this section, shall comply with the requirements
  for delineation of wetlands set forth in paragraph (2) of this section.
  `(2)(A) The standards established by rule or applied in any case for purposes
  of this section shall ensure that lands are delineated as wetlands only
  if such lands are found to be `wetlands' under section 502 of this title
  (33 U.S.C. 1362(21): Provided, however, That such standards may not--
  `(i) result in the delineation of lands as wetlands unless clear evidence
  of wetlands hydrology, hydrophytic vegetation and hydric soil are found
  to be present during the period in which such delineation is made;
  `(ii) result in the classification of vegetation as hydrophytic if such
  vegetation is more typically adapted to dry soil conditions than to wet
  soil conditions;
  `(iii) result in the classification of lands as wetlands unless some obligate
  wetlands vegetation is found to be present during the period of delineation;
  `(iv) result in the conclusion that wetlands hydrology is present unless
  water is found to be present at the surface for at least twenty-one days
  during the growing season in which such delineation is made and for
  twenty-one days in the growing seasons in a majority of the years for
  which records are available; and
  `(v) result in the classification of lands as wetlands that are temporarily
  or unintentionally created as a result of adjacent development activity.
  `(B) In addition to the requirements of subparagraph (A), any standards
  established by rule or applied to delineate wetlands for purposes of this
  section shall provide that--
  `(i) `normal circumstances' shall be determined on the basis of the
  factual circumstances in existence at the time a classification is made
  under subsection (h) or at the time of application under subsection (e),
  whichever is applicable; and,
  `(ii) where the Secretary, in delineating lands as wetlands, finds only
  limited evidence that one or more of the wetlands characteristics described
  in subparagraph (A)(i) of this paragraph is present during the period of
  delineation, the Secretary shall determine that such lands are not wetlands
  for purposes of this section, unless he finds that such wetlands, at the
  time of such delineation, are serving significant ecological functions
  typically associated with wetlands, including the provision of significant
  wildlife habitat, protection of water quality, flood control, recharging
  of aquifers, and accumulation of sediment.
  `(h) UNITED STATES FISH AND WILDLIFE SERVICE WETLANDS IDENTIFICATION AND
  CLASSIFICATION PROJECT- (1) IN GENERAL- The Director, in concurrence with
  the Chief of the Soil Conservation Service, shall undertake a project to
  identify and classify wetlands in the United States. The Director shall
  complete such project not later than ten years after the date of enactment
  of this Act.
  `(2) USE OF STANDARDS DEVELOPED BY THE SECRETARY- In conducting the project
  under this section, the Director shall identify and classify wetlands in
  accordance with standards for delineation of wetlands established by the
  Secretary under subsection (g) of this section.
  `(3) PUBLIC PARTICIPATION- In conducting the project under this section,
  the Director shall provide notice and an opportunity for a public hearing in
  each county, parish or borough of a State before completion of identification
  and classification of wetlands in such county, parish or borough.
  `(4) PUBLIC RECORDS- Promptly after completion of identification and
  classification of wetlands in a county, parish or borough under this
  section, the Director shall publish information on such identification
  and classification in the Federal Register and in publications of wide
  circulation and take other steps reasonably necessary to ensure that such
  information is available to the public.
  `(5) REPORT TO CONGRESS- The Director shall report to Congress on
  implementation of the project to be conducted under this section not later
  than two years after the date of the enactment of this Act and annually
  thereafter.
  `(6) Any classification of lands as wetlands under this section shall,
  to the fullest extent practicable, be recorded on the property records in
  the county, parish or borough in which such wetlands are located.
  `(i) ADMINISTRATIVE PROVISIONS- (1) Not later than one year after the
  date of enactment of this section, the Secretary shall, after notice and
  opportunity for comment, adopt final rules and regulations for the issuance
  of permits and as otherwise required under this section. Such rules and
  regulations shall, in accordance with this section, provide--
  `(A) standards and procedures for the classification and delineation of
  wetlands and procedures for administrative review of any such classification
  or delineation;
  `(B) standards and procedures for the review of State or local land
  management plans and State programs for the regulation of wetlands;
  `(C) for the issuance of general, nationwide or regional permits;
  `(D) standards and procedures for the individual permit applications under
  this section;
  `(E) for enforcement of this section; and,
  `(F) any other rules and regulations as the Secretary deems necessary or
  appropriate to implement the requirements of this section.
  `(2) Any judicial review of final regulations promulgated pursuant to this
  section and the Secretary's denial of any petition for the promulgation,
  amendment, or repeal of any regulation under this section shall be in
  accordance with sections 701 through 706 of title 5 of the United States
  Code, except that a petition for review of action of the Secretary in
  promulgating any regulation, or requirement under this section or denying
  any petition for the promulgation, amendment, or repeal of any regulation
  under this section may be filed only in the United States Court of Appeals
  for the District of Columbia, and such petition shall be filed within ninety
  days from the date of such promulgation or denial or after such date if
  such petition for review is based solely on grounds arising after such
  ninetieth day. Action of the Secretary with respect to which review could
  have been obtained under this subsection shall not be subject to judicial
  review in civil or criminal proceedings for enforcement.
  `(3) The Secretary shall, within ninety days of the enactment of this
  section, promulgate interim rules and regulations consistent with this
  section to take effect immediately. Notice of the interim regulations shall
  be published in the Federal Register, and such regulations shall be binding
  until the issuance of final regulations pursuant to paragraph (1): Provided,
  That, the Secretary shall provide adequate procedures for waiver of any
  provisions of such interim regulations to avoid special hardship, inequity,
  or unfair distribution of burdens, or to advance the purposes of this Act.
  `(4) Except where otherwise expressly provided in this section, the Secretary
  shall administer this Act. The Secretary or any other Federal officer
  or agency in which any function under this Act is vested or delegated is
  authorized to perform any and all acts (including appropriate enforcement
  activity), and to prescribe, issue, amend or rescind such rules or orders
  as it may find necessary or appropriate with this Act, subject to the
  requirements of this subsection.
  `(j) PERMIT VIOLATIONS- (1) IN GENERAL- Whenever, on the basis of reliable
  and substantial information and after reasonable inquiry, the Secretary
  finds that any person is or may be in violation of this section or of any
  condition or limitation, set forth in a permit issued by the Secretary
  under this section, the Secretary shall issue an order requiring such
  persons to comply with this section or with such condition or limitation,
  or the Secretary shall bring a civil action in accordance with paragraph (3).
  `(2) ISSUANCE OF ORDERS- A copy of any order issued under this subsection
  shall be sent immediately by the Secretary to the State in which the
  violation occurs and other affected States. Any order issued under this
  subsection shall be by personal service to the appropriate person or
  corporate officer and shall state with reasonable specificity the nature
  of the asserted violation, specify a time for compliance, not to exceed
  thirty days, which the Secretary determines is reasonable, taking into
  account the seriousness of the asserted violation and any good faith
  efforts to comply with applicable requirements: Provided, however, That
  if the person receiving notice of the asserted violation disputes the
  Secretary's determination and so notifies the Secretary in writing, the
  Secretary shall within sixty days after serving notice, unless otherwise
  agreed to by the parties, prosecute a civil action in accordance with
  paragraph (3) or rescind such order and be estopped from any further
  enforcement proceedings for the same asserted violation.
  `(3) CIVIL ACTIONS- The Secretary is authorized to commence a civil action
  for appropriate relief, including a permanent or temporary injunction for
  any violation for which he is authorized to issue a compliance order under
  paragraph (1) of this subsection. Any action 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 such
  court shall have jurisdiction to restrain such violation and to require
  compliance. Notice of the commencement of such action shall be given
  immediately to the appropriate State.
  `(4) CIVIL PENALTIES- Any person who violates any condition or limitation
  in a permit issued by the Secretary under this section, and any person who
  violates any order issued by the Secretary under paragraph (1) of this
  subsection, shall be subject to a civil penalty not to exceed $25,000
  per day for each violation. In determining the amount of a civil penalty
  the court shall consider the seriousness of the violation or violations,
  the economic benefit (if any) resulting from the violation, any history
  of such violations, any good-faith efforts to comply with the applicable
  requirements, the economic impact of the penalty on the violator, and such
  other matters as justice may require.
  `(k) DISCHARGES RESULTING FROM CONSTRUCTION OF FEDERAL PROJECTS- The
  discharge of dredged or fill material and other activities in wetlands
  described in subsection (a) undertaken as part of the construction of a
  Federal project specifically authorized by Congress, whether prior to or
  on or after the date of enactment of this section, is not prohibited by
  or otherwise subject to regulation under this section, or a State program
  approved under this section, or section 301(a) or 402 of the Act (except
  for effluent standards or prohibitions under section 307), if information
  on the effects of such discharge, including consideration of the rules
  applicable pursuant to subsection (e)(1) of this section, is included in an
  environmental impact statement for such project pursuant to the National
  Environmental Policy Act of 1969 and such environmental impact statement
  has been submitted to Congress before the actual discharge of dredged
  or fill material or other activity in connection with the construction
  of such project and prior to either authorization of such project or an
  appropriation of funds for each construction.
  `(1) STATE AUTHORITY TO CONTROL DISCHARGES- Nothing in the section shall
  preclude or deny the right of any State or interstate agency to control
  the discharge of dredged or fill material in any portion of the navigable
  waters within the jurisdiction of such State, including any activity of
  any Federal agency, and each such agency shall comply with such State or
  interstate requirements both substantive and procedural to control the
  discharge of dredged or fill material to the same extent that any person
  is subject to such requirements. This section shall not be construed as
  affecting or impairing the authority of the Secretary to maintain navigation.
  `(m) STATE REGULATION OF WETLANDS- IN GENERAL- The Governor of any State
  desiring to administer its own individual and general permit program
  for activities covered by this Act within its jurisdiction may submit to
  the Secretary a description of the program it proposes to establish and
  administer under State law or under an interstate compact. In addition,
  such State shall submit a statement from the chief legal officer in the
  case of the State or interstate agency, that the laws of such State, or
  the interstate compact, as the case may be, provide adequate authority to
  carry out the described program.
  `(2) REQUIRED STATE AUTHORITY- Not later than the one hundred and twentieth
  day after the date of the receipt by the Secretary of a program and
  statement submitted by any State under paragraph (1), the Secretary shall
  determine whether such State has the following authority with respect to
  the issuance of permits pursuant to such program:
  `(A) to issue permits which--
  `(i) apply, and assure compliance with, any applicable requirements of
  this Act; and
  `(ii) can be terminated or modified for cause, including--
  `(I) violation of any condition of the permit;
  `(II) obtaining a permit by misrepresentation, or failure to disclose
  fully all relevant facts; or
  `(III) change in any condition that requires either a temporary or permanent
  reduction or elimination of the permitted activity;
  `(B) to issue permits which apply, and ensure compliance with, all applicable
  requirements of section 308 of this Act, or to inspect, monitor, enter,
  and require reports to at least the same extent as required in section
  308 of this Act;
  `(C) to ensure that the public, and any other State the waters of which may
  be affected, receive notice of each application for a permit and to provide
  an opportunity for public hearing before a ruling on each such application;
  `(D) to ensure that the Secretary receives notice of each application for a
  permit and that, prior to any action by the State, both the applicant for
  the permit and the State have received from the Secretary a determination
  of the type -of wetlands that may be affected;
  `(E) to ensure that any State (other than the permitting State), whose waters
  may be affected by the issuance of a permit may submit written recommendation
  to the permitting State with respect to any permit application and, if any
  part of such written recommendations are not accepted by the permitting
  State, that the permitting State will notify such affected State (and the
  Secretary) in writing of its failure to so accept such recommendations
  together with its reasons for doing so; and,
  `(F) to abate violations of the permit or the permit program, including
  civil and criminal penalties and other ways and means of enforcement;
  `(3) APPROVAL- If, with respect to a State program submitted under paragraph
  (1) of this section, the Secretary determines that such State--
  `(A) has the authority set forth in paragraph (2), the Secretary shall
  approve the program and so notify such State and suspend the issuance of
  permits under subsection (b) for activities with respect to which a permit
  may be issued pursuant to such State program; or
  `(B) does not have the authority set forth in paragraph (2) of this
  subsection, the Secretary shall so notify such State and provide a
  description of the revisions or modifications necessary so that such
  State may resubmit such program for a determination by the Secretary under
  this subsection.
  `(4) FAILURE TO MAKE TIMELY DETERMINATION- If the Secretary fails to make
  a determination with respect to any program submitted by a State under
  this subsection within 120 days after the date of receipt of such program,
  such program shall be deemed approved pursuant to paragraph (3)(A) and the
  Secretary shall so notify such State and suspend the issuance of permits
  under subsection (b) for activities with respect to which a permit may be
  issued by such State.
  `(5) TRANSFER OF PENDING APPLICATIONS- After the Secretary approves a
  State permit program under paragraphs (3)(A) or (4), the Secretary shall
  transfer any applications  for permits pending before the Secretary for
  activities with respect to which a permit may be issued pursuant to such
  State program to such State for appropriate action.
  `(6) STATE ADMINISTRATION OF ACTIVITIES UNDER GENERAL PERMITS- Upon
  notification from a State with a permit program approved under this
  subsection that such State intends to administer and enforce the terms and
  conditions of a general permit issued by the Secretary under subsection
  (e) with respect to activities in such State to which such general permit
  applies, the Secretary shall suspend the administration and enforcement
  of such general permit with respect to such activities.
  `(7) WITHDRAWAL OF PROGRAM APPROVAL- Whenever the Secretary determines
  after public hearing that a State is not administering a program approved
  under paragraph (3)(A), in accordance with this section, the Secretary
  shall notify the State, and, if appropriate corrective action is not taken
  within a reasonable time, not to exceed ninety days after the date of the
  receipt of such notification, the Secretary shall--
  `(A) withdraw approval of such program until the Secretary determines such
  corrective action has been taken; and
  `(B) resume the program for the issuance of permits under subsections
  (b) and (e) for activities with respect to which the State was issuing
  permits until such time as the Secretary makes the determination described
  in paragraph (2) and such State again has an approved program.
  `(n) PUBLIC AVAILABILITY OF PERMIT APPLICATIONS- A copy of each permit
  application and each permit issued under this section shall be available
  to the public. Such permit application or portion thereof shall further
  be available on request for the purpose of reproduction.
  `(o) EFFECT OF COMPLIANCE WITH PERMIT- Compliance with a permit issued
  pursuant to this section, including any activity carried out pursuant to
  a general permit issued under this section, shall be deemed in compliance,
  for purposes of sections 309 and 505, with sections 301, 307, and 403.
  `(p) After the effective date of this section under section 6 of the
  Wetlands Conservation and Management Act of 1990, no permit for any
  activity described in subsection (a) may be issued except in accordance
  with this section. Any permit for an activity described in subsection (a)
  issued under this section prior to such effective date shall be deemed to
  be a permit under this section and shall continue in force and effect for
  the term of the permit unless revoked, modified, or suspended in accordance
  with this section. Any application for a permit for such an activity pending
  under 33 U.S.C. 1344 et seq. on such effective date shall be deemed to be
  an application for a permit under this section.'
SEC. 4. DEFINITIONS.
  (a) Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362)
  is amended by adding at the end thereof the following new subsection:
  `(21) WETLANDS- The term `wetlands' means lands which have a predominance
  of hydric soils and which are inundated or saturated by surface or ground
  water at a frequency and duration sufficient to support, and that under
  normal circumstances do support, a prevalence of vegetation typically
  adapted for life in saturated soil conditions. Wetlands generally include
  swamps, marshes, bogs, and similar areas.'; and
  (b) For purposes of this Act, `normal farming activities' means those normal
  ongoing practices identified as such by the Cooperative Extension Service
  for each State, in consultation with the land grant university system and
  agricultural colleges of the State, taking into account existing practices
  and such other practices as may be identified in consultation with the
  affected industry or community.
SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS.
  Section 309 of the Federal Water Pollution Control Act (33 U.S.C. 1319)
  is hereby amended--
  (a) by striking out `or 1344' in section 309(a)(1);
  (b) by striking out `or in a permit issued under section 1344 of this
  title by a State' in section 309(a)(3);
  (c) by striking out `or in a permit issued under section 1344 of this
  title by a State,' in section 309(d);
  (d) by striking out `--(A)' and `or in a permit issued under section 1344
  of this title by a State, or' in section 309(g)(1)(A);
  (e) by striking out `(B)' through `as the case may be,' and insert in lieu
  thereof `the Administrator' in section 309(g)(1); and
  (f) the words `or Secretary', `or the Secretary', `or the Secretary, as the
  case may be,' `or Secretary's', `and the Secretary' are deleted wherever
  they occur in section 309. A permit for activities in Type A wetlands may
  be denied if the Secretary determines that there is no overriding public
  need for the proposed activity.
SEC. 6. EFFECTIVE DATE.
  This Act shall be effective on the ninetieth day following the date of
  enactment.