TITLE VIII WETLANDS CONSERVATION AND MANAGEMENT
SECTION 801. SHORT TITLE. "The Comprehensive Wetlands Conservation and Management Act of 2000."
SECTION 802. FINDINGS AND STATEMENT OF PURPOSE. This section includes several findings and statements of purpose regarding, among other things, the importance of wetlands and the need for a balanced regulatory approach.
SECTION 803. WETLANDS CONSERVATION AND MANAGEMENT. The bill replaces existing Section 404 with a new comprehensive program to regulate discharges of dredged or fill material into waters of the United State (including wetlands) and draining, channelization and excavation activities in wetlands. The following paragraphs summarize subsections of the new Section 404:
(a) Prohibited Activities. The bill specifies that no person may undertake an activity in a wetland or water of the United States without a permit from the Secretary of the Army ("Secretary") unless otherwise authorized by this section ("activity" is defined elsewhere).
(b) Authorized Activities. The Bill authorizes the Secretary to issue permits in accordance with this section. No Federal permit is required for an activity occurring in a Type C wetland, or that is authorized under a general permit, or that is exempt from permit requirements by this section. No permit veto by the Environmental Protection Agency is provided for
(c) Wetlands Classification. The bill classifies jurisdictional wetlands into three categories: Type A, Type B and Type C with Type A being the most valuable in terms of performing wetlands functions and Type C being the least valuable. Type A wetlands are those which are of critical significance to the long-term conservation of the aquatic environment and which meet specified requirements. Type B wetlands are those which provide habitat for significant populations of wetland wildlife or provide other significant wetland functions. Type C wetlands include those areas which serve limited wetland functions, prior converted croplands, and areas that are within developed areas and do not serve significant wetland functions. The Secretary is required to issue regulations within one year on classification procedures.
(d) Right to Compensation. The bill requires the Federal government to compensate private property owners the value of whose property has been diminished by 20 percent or more due to limitations imposed under Section 404.
(e) Requirements Applicable to Permitted Activity. The bill addresses procedures to be followed in reviewing permit applications under this section. The procedures include application of a "sequential analysis" for Type A wetlands. This analysis requires that impacts on wetlands be avoided where possible. It includes a presumption that there is an uplands alternative to the activity in wetlands. The analysis requires that remaining impacts be minimized through project redesign and that any remaining impacts be mitigated through compensatory mitigation.
Permit applications for activities in Type B wetlands receive a "public interest" review which balances all environmental, economic and social interests. The review of activities in type B wetlands includes a rebuttable presumption that the projects purpose is as defined by the applicant. The Corps may require the minimization of impacts or mitigation through a number of methods including land or cash contributions to a mitigation bank, individual project mitigation, or some other suitable mechanism.
Activities occurring in Type C wetlands do not require a Federal permit under this section.
Permitting procedures in this subsection require a final decision on issuance of permits normally within 90 days from completion of the application of the permit is deemed granted. The provisions sets forth procedures to establish mitigation banking; procedures for general permit and procedures for activities in non-wetland areas are also included in this subsection.
(f) Activities Not Requiring Permit. The bill identifies the types of activities that do not require Section 404 permits, some of which are already exempt under existing law or are a codification or clarification of existing regulatory exemptions. Those activities include: normal farming, silviculture, aquaculture and ranching activities; maintenance and emergency reconstruction of facilities for flood control, water supply reservoirs and transportation structures; construction and maintenance of farm, stock and aquaculture ponds; wastewater retention features of certain feedlot operations, irrigation canals and drainage ditches; aviation safety features; and temporary sedimentation ponds of construction projects would be exempt as under this subsection. It also exempts such things as activities that: are carried out in wetlands that are farmed wetlands, result from a State approved management plan, are consistent with a State approved management plan or are excluded under the Coastal Zone Management Act, and are manmade incidentally created wetlands that have not demonstrated wetlands characteristics for more than five years.
(g) Rules for Delineating Wetlands. This bill sets standards for delineating wetlands. The bill builds on the definition of wetlands used by the Corps of Engineers but would require that all three criteria (hydric soils, hydrology, and vegetation) must be met and would revise the use of vegetation criteria. It also requires that in order to be considered a jurisdictional wetland, 21 days of inundation at the surface during the growing season must occur in the majority of years. The bill requires that the Secretary of Agriculture delineate wetlands on agricultural lands.
SECTION 804. DEFINITIONS. This section includes new definitions in Section 502 of the Clean Water Act such as wetlands, prior converted cropland, normal farming, mitigation banking, and wetlands functions.
email Professor Setear