TITLE VIII--WETLANDS CONSERVATION AND MANAGEMENT

SEC. 803. WETLANDS CONSERVATION AND MANAGEMENT.

Title IV (33 U.S.C. 1341 et seq.) is further amended by striking Section 404 and inserting the following new section:

"SEC. 404. PERMITS FOR ACTIVITIES IN WETLANDS OR WATERS OF THE UNITED STATES.

"(a) Prohibited Activities.--No person shall undertake an activity in wetlands or waters of the United States unless such activity is undertaken pursuant to a permit issued by the Secretary or is otherwise authorized under this section.

"(b) Authorized Activities.--

"(1) Permits.--The Secretary is authorized to issue permits authorizing an activity in wetlands or waters of the United States in accordance with the requirements of this section.

"(2) Nonpermit activities.--An activity in wetlands or waters of the United States may be undertaken without a permit from the Secretary if that activity is authorized under subsection (e)(6) or (e)(8) or is exempt from the requirements of this section under subsection (f) or other provisions of this section.

(c) Wetlands Classification.--

(1) Regulations; applications.--

(A) Deadline for issuance of regulations.--Not later than 1 year after the date of the enactment of the Comprehensive Wetlands Conservation and Management Act of 1995, the Secretary, in consultation with the States, shall issue regulations to classify wetlands as type A, type B, or type C wetlands depending on the relative ecological significance of the wetlands.

"(B) Application requirement.--Any person seeking to undertake activities in wetlands or waters of the United States for which a permit is required under this section 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 the classification of such wetlands or whether and under what conditions the proposed activity may be permitted to occur.

"(2) Deadlines for classifications.--

"(A) General rule.--Except as provided in subparagraph (B) of this paragraph, within 90 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 and shall state in writing the basis for such classification. 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) and subsection (i).

"(B) Rule for advance classifications.--In the case of an application proposing activities located in wetlands that are the subject of an advance classification under subsection (h), the Secretary shall provide notice to the applicant of such classification within thirty days following the receipt of such application, and shall provide an opportunity for review of such classification under paragraph (5) and subsection (i).

"(3) Classification system.--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 aquatic environment 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 concentration of avian, aquatic, or wetland dependent wildlife;

"(ii) such wetlands consist of or may be a portion of ten or more contiguous acres and have an inlet or outlet for relief of water flow; except that this requirement shall not operate to preclude the classification as type A wetlands lands containing prairie pothole features, playa lakes, or vernal pools if such lands otherwise meet the requirements for type A classification under this paragraph based on verifiable, objective science;

"(iii) there exists a scarcity within the watershed or aquatic environment of identified functions served by such wetlands such that the use of such wetlands for an activity in wetlands or waters of the United States would seriously jeopardize the availability of these identified wetlands functions; and

"(iv) there is unlikely to be an overriding public interest in the use of such wetlands for purposes other than conservation;

"(B) classify as type B wetlands those wetlands that provide habitat for a significant population of wetland dependent wildlife or provide other significant wetlands functions, including significant enhancement or protection of water quality or significant natural flood control; and

"(C) classify as type C wetlands all wetlands that--

"(i) serve limited wetlands functions;

"(ii) serve marginal wetlands functions but which exist in such abundance that regulation of activities in such wetlands is not necessary for conserving important wetlands functions;

"(iii) are fastlands; or

"(iv) are wetlands within industrial, commercial, or residential complexes or other intensely developed areas that do not serve significant wetlands functions as a result of such location.

"(4) [Reserved]

"(5) [Reserved]

"(d) "(d) Right to Compensation.--

"(1) In general.--The Federal Government shall compensate an owner of property whose use of any portion of that property has been limited by an agency action under this section that diminishes the fair market value of that portion by 20 percent or more. The amount of the compensation shall equal the diminution in value that resulted from the agency action. If the diminution in value of a portion of that property is greater than 50 percent, at the option of the owner, the Federal Government shall buy that portion of the property for its fair market value.

"(2) Duration of limitation on use.--Property with respect to which compensation has been paid under this section shall not thereafter be used contrary to the limitation imposed by the agency action, even if that action is later rescinded or otherwise vitiated. However, if that action is later rescinded or otherwise vitiated, and the owner elects to refund the amount of the compensation, adjusted for inflation, to the Treasury of the United States, the property may be so used.

"(3) Effect of state law.--If a use is a nuisance as defined by the law of a State or is already prohibited under a local zoning ordinance, no compensation shall be made under this section with respect to a limitation on that use.

"(4) Exceptions.--

"(A) Prevention of hazard to health or safety or damage to specific property.--No compensation shall be made under this section with respect to an agency action the primary purpose of which is to prevent an identifiable--

"(i) hazard to public health or safety; or

"(ii) damage to specific property other than the property whose use is limited.

"(B) Navigation servitude.--No compensation shall be made under this section with respect to an agency action pursuant to the Federal navigation servitude, as defined by the courts of the United States, except to the extent such servitude is interpreted to apply to wetlands.

"(5) Procedure.--

"(A) Request of owner.--An owner seeking compensation under this section shall make a written request for compensation to the agency whose agency action resulted in the limitation. No such request may be made later than 180 days after the owner receives actual notice of that agency action.

"(B) Negotiations.--The agency may bargain with that owner to establish the amount of the compensation. If the agency and the owner agree to such an amount, the agency shall promptly pay the owner the amount agreed upon.

"(C) Choice of remedies.--If, not later than 180 days after the written request is made, the parties do not come to an agreement as to the right to and amount of compensation, the owner may choose to take the matter to binding arbitration or seek compensation in a civil action.

"(D) Arbitration.--The procedures that govern the arbitration shall, as nearly as practicable, be those established under title 9, United States Code, for arbitration proceedings to which that title applies. An award made in such arbitration shall include a reasonable attorney's fee and other arbitration costs (including appraisal fees). The agency shall promptly pay any award made to the owner.

"(E) Civil action.--An owner who does not choose arbitration, or who does not receive prompt payment when required by this section, may obtain appropriate relief in a civil action against the agency. An owner who prevails in a civil action under this section shall be entitled to, and the agency shall be liable for, a reasonable attorney's fee and other litigation costs (including appraisal fees). The court shall award interest on the amount of any compensation from the time of the limitation.

"(F) Source of payments.--Any payment made under this section to an owner and any judgment obtained by an owner in a civil action under this section shall, notwithstanding any other provision of law, be made from the annual appropriation of the agency whose action occasioned the payment or judgment or, if the agency action resulted from a requirement imposed by another agency, from the annual appropriation of the agency imposing the requirement.

"(6) Limitation.--Notwithstanding any other provision of law, any obligation of the United States to make any payment under this section shall be subject to the availability of appropriations.

"(e) Requirements Applicable to Permitted Activity.--

"(1) Issuance or denial of permits.--Following the determination of wetlands classification pursuant to subsection (c) if applicable, 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 or waters of the United States in accordance with the requirements of this subsection.

"(2) Type a wetlands.--

"(A) Analysis.--The Secretary shall determine whether to issue a permit for an activity in waters of the United States classified under subsection (c) as type A wetlands based on--

"(i) a sequential analysis that seeks, to the maximum extent practicable, to--

"(I) avoid adverse impact on the wetlands;

"(II) minimize such adverse impact on wetlands functions that cannot be avoided; and

"(III) compensate for any loss of wetland functions that cannot be avoided or minimized; and

"(ii) the public interest analysis described in paragraph (3).

"(B) Water dependent activity.--For purposes of subparagraph (A)(i)(I), if an activity is water dependent, an alternative in an area that is not wetlands or waters of the United States shall not be presumed to be available. A water dependent activity is an activity that requires access or proximity to or siting within the wetlands or waters of the United States in question to fulfill its basic purpose.

"(C-) Mitigation terms and conditions.--Any permit issued authorizing activities in type A wetlands may contain such terms and conditions concerning mitigation (including 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. The Secretary shall deem the mitigation requirement of this section to be met with respect to activities in type A wetlands if such activities (i) are carried out in accordance with a State-approved reclamation plan or permit which requires recontouring and revegetation following mining, and (ii) will result in overall environmental benefits being achieved.

"(3) Type b wetlands.--

"(A) General rule.--The Secretary may issue a permit authorizing activities in type B wetlands if the Secretary finds that issuance of the permit is in the public interest, balancing the reasonably foreseeable benefits and detriments resulting from the issuance of the permit. The permit shall be subject to such terms and conditions as the Secretary finds are necessary to carry out the purposes of the Comprehensive Wetlands Conservation and Management Act of 1995. In determining whether or not to issue the permit and whether or not specific terms and conditions are necessary to avoid a significant loss of wetlands functions, the Secretary shall consider the following factors:

"(i) The quality and quantity of significant functions served by the areas to be affected.

"(ii) The opportunities to reduce impacts through cost effective design to minimize use of wetlands areas.

"(iii) The costs of mitigation requirements and the social, recreational, and economic benefits associated with the proposed activity, including local, regional, or national needs for improved or expanded infrastructure, minerals, energy, food production, or recreation.

"(iv) The ability of the permittee to mitigate wetlands loss or degradation as measured by wetlands functions.

"(v) The environmental benefit, measured by wetlands functions, that may occur through mitigation efforts, including restoring, preserving, enhancing, or creating wetlands values and functions.

"(vi) The marginal impact of the proposed activity on the watershed of which such wetlands are a part.

"(vii) Whether the impact on the wetlands is temporary or permanent.

"(B) Determination of project purpose.--In considering an application for activities on type B wetlands, there shall be a rebuttable presumption that the project purpose as defined by the applicant shall be binding upon the Secretary. 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 on the proposed project site.

"(C) Mitigation requirements.--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 loss or degradation of type B wetlands functions where such loss or degradation is not a temporary or incidental impact. 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 wetland functions, whether any adverse effects on wetlands are of a permanent or temporary nature, and the cost effectiveness of such mitigation and shall seek to minimize the costs of such mitigation. Such mitigation requirement shall be calculated based upon the specific impact of a particular project. The Secretary shall deem the mitigation requirement of this section to be met with respect to activities in type B wetlands if such activities (i) are carried out in accordance with a State-approved reclamation plan or permit which requires recontouring and revegetation following mining, and (ii) will result in overall environmental benefits being achieved.

"(D) Rules governing mitigation.--In accordance with subsection (j), the Secretary shall issue rules governing requirements for mitigation for activities occurring in wetlands that allow for--

"(i) minimization of impacts through project design in the proposed project site consistent with the project's purpose, provisions for compensatory mitigation, if any, and other terms and conditions necessary and appropriate in the public interest;

"(ii) preservation or donation of type A wetlands or type B wetlands (where title has not been acquired by the United States and no compensation under subsection (d) for such wetlands has been provided) as mitigation for activities that alter or degrade wetlands;

"(iii) enhancement or restoration of degraded wetlands as compensation for wetlands lost or degraded through permitted activity;

"(iv) creation of wetlands as compensation for wetlands lost or degraded through permitted activity if conditions are imposed that have a reasonable likelihood of being successful;

"(v) compensation through contribution to a mitigation bank program established pursuant

to paragraph (4);

"(vi) offsite compensatory mitigation ifsuch mitigation contributes to the restoration, enhancement or creation of significant wetlands functions on a watershed basis and is balanced with the effects that the proposed activity will have on the specific site; except that offsite compensatory mitigation, if any, shall be required only within the State within which the proposed activity is to occur, and shall, to the extent practicable, be within the watershed within which the proposed activity is to occur, unless otherwise consistent with a State wetlands management plan;

"(vii) contribution of in-kind value acceptable to the Secretary and otherwise authorized by law;

"(viii) in areas subject to wetlands loss, the construction of coastal protection and enhancement projects;

"(ix) contribution of resources of more than one permittee toward a single mitigation project; and

"(x) other mitigation measures, including contributions of other than in-kind value referred to in clause (vii), determined by the Secretary to be appropriate in the public interest and consistent with the requirements and purposes of this Act.

"(E) Limitations on requiring mitigation.--Notwithstanding the provisions of subparagraph (C), the Secretary may determine not to impose requirements for compensatory mitigation if the Secretary finds that--

"(i) the adverse impacts of a permitted activity are limited;

"(ii) the failure to impose compensatory mitigation requirements is compatible with maintaining wetlands functions;

"(iii) no practicable and reasonable means of mitigation are available;

"(iv) 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 impacts of such proposed activity and the cumulative impacts of similar activity in the area;

"(v) the temporary character of the impacts and the use of minimization techniques make compensatory mitigation unnecessary to protect significant wetlands values; or

"(vi) a waiver from requirements for compensatory mitigation is necessary to prevent special hardship.

"(4) Mitigation banks.--

"(A) Establishment.--Not later than 6 months after the date of the enactment of this subparagraph, after providing notice and opportunity for public review and comment, the Secretary shall issue regulations for the establishment, use, maintenance, and oversight of mitigation banks. The regulations shall be developed in consultation with the heads of other appropriate Federal agencies.

"(B) Provisions and requirements.--The regulations issued pursuant to subparagraph (A) shall ensure that each mitigation bank--

"(i) provides for the chemical, physical, and biological functions of wetlands or waters of the United States which are lost as a result of authorized adverse impacts to wetlands or other waters of the United States;

"(ii) to the extent practicable and environmentally desirable, provides in-kind replacement of lost wetlands functions and be located in, or in proximity to, the same watershed or designated geographic area as the affected wetlands or waters of the United States;

"(iii) be operated by a public or private entity which has the financial capability to meet the requirements of this paragraph, including the deposit of a performance bond or other appropriate demonstration of financial responsibility to support the long-term maintenance of the bank, fulfill responsibilities for long-term monitoring, maintenance, and protection, and provide for the long-term security of ownership interests of wetlands and uplands on which projects are conducted to protect the wetlands functions associated with the mitigation bank;

"(iv) employ consistent and scientifically sound methods to determine debits by evaluating wetlands functions, project impacts, and duration of the impact at the sites of proposed permits for authorized activities pursuant to this section and to determine credits based on wetlands functions at the site of the mitigation bank;

"(v) provide for the transfer of credits for mitigation that has been performed and for mitigation that shall be performed within a designated time in the future, provided that financial bonds shall be posted in sufficient amount to ensure that the mitigation will be performed in the case of default;

"(vi) provide, where appropriate, for dual use of wetlands within the mitigation bank, as long as the use other than providing compensatory mitigation under this section

(I) shall not interfere with the functioning of such bank for providing such mitigation, and

(II) shall not adversely impact wetlands or other waters of the United States; and

"(vii) provide opportunity for public notice of and comment on proposals for the mitigation banks; except that any process utilized by a mitigation bank to obtain a permit authorizing operations under this section before the date of the enactment of the Comprehensive Wetlands Conservation and Management Act of 1995 satisfies the requirement for such public notice and comment.

"(5) Procedures and deadlines for final action.--

"(A) Opportunity for public comment.--Not later than 15 days after receipt of a complete application for a permit under this section, together with information necessary to consider such application, the Secretary shall publish notice that the application has been received and shall provide opportunity for public comment and, to the extent appropriate, opportunity for a public hearing on the issuance of the permit.

"(B) General procedures.--In the case of any application for authorization to undertake activities in wetlands or waters of the United States that are not eligible for treatment on an expedited basis pursuant to paragraph (8), final action by the Secretary shall occur within 90 days following the date such application is filed, unless --

"(i) the Secretary and the applicant agree that such final action shall occur within a 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; except that if the Secretary is required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to prepare an environmental impact statement, with respect to the application, the final action shall occur not later than 45 days following the date such statement is filed; or

"(iii) the Secretary, within 15 days from the date such application is received, notifies the applicant that such application does not contain all information necessary to allow the Secretary to consider such application and identifies any necessary additional information, in which case, the provisions of subparagraph (C) shall apply.

"(C) Special rule when additional information is required.--Upon the receipt of a request for additional information under subparagraph (B)(iii), the applicant shall supply such additional information and shall advise the Secretary that the application contains all requested information and is therefore complete. The Secretary may--

"(i) within 30 days of the receipt of notice of the applicant that the application is complete, determine that the application does not contain all requested additional information and, on that basis, deny the application without prejudice to resubmission; or

"(ii) within 90 days from the date that the applicant provides notification to the Secretary that the application is complete, review the application and take final action.

"(D) Effect of not meeting deadline.--If the Secretary fails to take final action on an application under this paragraph within 90 days from the date that the applicant provides notification to the Secretary that such application is complete, a permit shall be presumed to be granted authorizing the activities proposed in such application under such terms and conditions as are stated in such completed application.

"(6) Type c wetlands.--Activities in wetlands that have been classified as type C wetlands by the Secretary may be undertaken without authorization required under subsection (a) of this section.

"(7) [Reserved]

"(8) General permits.--

"(A) General authority.--The Secretary may issue, by rule in accordance with subsection (j), general permits on a programmatic, State, regional, or nationwide basis for any category of activities involving an activity in wetlands or waters of the United States 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.

"(B) Procedures.--Permits issued under this paragraph shall include procedures for expedited review of eligibility for such permits (if such review is required) and may include requirements for reporting and mitigation. To the extent that a proposed activity requires a determination by the Secretary as to the eligibility to qualify for a general permit under this subsection, such determination shall be made within 30 days of the date of submission of the application for such qualification, or the application shall be treated as being approved.

"(C) Compensatory mitigation.--Requirements for compensatory mitigation for general permits may be imposed where necessary to offset the significant loss or degradation of significant wetlands functions where such loss or degradation is not a temporary or incidental impact. Such compensatory mitigation shall be calculated based upon the specific impact of a particular project.

"(D) Grandfather of existing general permits.--General permits in effect on day before the date of the enactment of the Comprehensive Wetlands Conservation and Management Act of 1995 shall remain in effect until otherwise modified by the Secretary.

"(E) States with substantial conserved lands.--Upon application by a State or local authority in a State with substantial conserved wetlands areas, the Secretary shall issue a general permit applicable to such authority for activities in wetlands or waters of the United States. No permit issued pursuant to this subparagraph shall include conditions, requirements, or standards for mitigation to compensate for adverse impacts to wetlands or waters of the United States or shall include conditions, requirements, or standards for avoidance of adverse impacts of wetlands or waters of the United States.

"(9) Other waters of the united states.--The Secretary may issue a permit authorizing activities in waters of the United States (other than those classified as type A, B, or C wetlands under this section) if the Secretary finds that issuance of the permit is in the public interest, balancing the reasonably foreseeable benefits and detriments resulting from the issuance of the permit. The permit shall be subject to such terms and conditions as the Secretary finds are necessary to carry out the purposes of the Comprehensive Wetlands Conservation and Management Act of 1995. In determining whether or not to issue the permit and whether or not specific terms and conditions are necessary to carry out such purposes, the Secretary shall consider the factors set forth in paragraph (3)(A) as they apply to nonwetlands areas and such other provisions of paragraph (3) as the Secretary determines are appropriate to apply to nonwetlands areas.

"(10) Mitigation of agricultural lands.--Any mitigation requirement approved by the Secretary under this section for agricultural lands shall be developed in consultataion with the Secretary of Agriculture.

"(f) Activities not Requiring Permit.--

"(1) In general.--Activities undertaken in any wetlands or waters of the United States are exempt from the requirements of this section and are not prohibited by or otherwise subject to regulation under this section or section 301 or 402 of this Act (except effluent standards or prohibitions under section 307 of this Act) if such activities--

"(A) result from normal farming, silviculture, aquaculture, and ranching activities and practices, including but not limited to plowing, seeding, cultivating, haying, grazing, normal maintenance, activities, 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, flood control channels or other engineered flood control facilities, water control structures, water supply reservoirs (where such maintenance involves periodic water level drawdowns) which provide water predominantly to public drinking water systems, groins, riprap, breakwaters, utility distribution and transmission lines, causeways, and bridge abutments or approaches, and transportation structures;

"(C) are for the purpose of construction or maintenance of farm, stock or aquaculture ponds, wastewater retention or management facilities (including dikes and berms and related structures) that are used by concentrated animal feeding operations or advanced treatment municipal wastewater reuse operations, or irrigation canals and ditches or the maintenance of drainage ditches;

"(D) are for the purpose of construction of temporary sedimentation basins on a construction site, or the construction of any upland dredged material disposal area, 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, railroad lines of up to 10 miles in length, or temporary roads for moving mining equipment, access roads for utility distribution and transmission lines if such roads or railroad lines are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the waters are not impaired, that the reach of the waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized;

"(F) are undertaken on farmed wetlands, except 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 this section;

"(G) result from any activity with respect to which a State has an approved program under section 208(b)(4) of this Act which meets the requirements of subparagraphs (B) and (C) of such section;

"(H) are consistent with a State or local land management plan submitted to the Secretary and approved pursuant to paragraph (2);

"(I) are undertaken in connection with a marsh management and conservation program in a coastal parish in the State of Louisiana where such program has been approved by the Governor of such State or the designee of the Governor;

"(J) are undertaken on lands or involve activities within a State's coastal zone which are excluded from regulation under a State coastal zone management program approved under the Coastal Zone Management Act of 1972 (16 U.S.C. 1451, et seq.);

"(K) are undertaken in incidentally created wetlands, unless such incidentally created wetlands have exhibited wetlands functions and values for more than 5 years in which case activities undertaken in such wetlands shall be subject to the requirements of this section;

"(L) are for the purpose of preserving and enhancing aviation safety or are undertaken in order to prevent an airport hazard;

"(M) result from aggregate or clay mining activities in wetlands conducted pursuant to a State or Federal permit that requires the reclamation of such affected wetlands if such reclamation will be completed within 5 years of the commencement of activities at the site and, upon completion of such reclamation, the wetlands will support wetlands functions equivalent to the functions supported by the wetlands at the time of commencement of such activities;

"(N) are for the placement of a structural member for a pile-supported structure, such as a pier or dock, or for a linear project such as a bridge, transmission or distribution line footing, powerline structure, or elevated or other walkway;

"(O) are for the placement of a piling in waters of the United States in a circumstance that involves--

"(i) a linear project described in subparagraph (N); or

"(ii) a structure such as a pier, boathouse, wharf, marina, lighthouse, or individual house built on stilts solely to reduce the potential of flooding;

"(P) are for the clearing (including mechanized clearing) of vegetation within a right-of-way associated with the development and maintenance of a transmission or distribution line or other powerline structure or for the maintenance of water supply reservoirs which provide water predominantly to public drinking water systems;

"(Q) are undertaken in or affecting waterfilled depressions created in uplands incidental to construction activity, or are undertaken in or affecting pits excavated in uplands for the purpose of obtaining fill, sand, gravel, aggregates, or minerals, unless and until the construction or excavation operation is abandoned;

"(R) result from the conduct of recreational hunting or shooting.

"(2) State or local management plan.--Any State or political subdivision thereof acting pursuant to 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. The Secretary shall, within 60 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 purposes of this section. No person shall be entitled to judicial review of the decision 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.

"(g) Rules for Delineating Wetlands.--

"(1) Standards.--

"(A) Issuance of rule.--The Secretary is authorized and directed to establish standards, by rule in accordance with subsection (j), that shall govern the delineation of lands as 'wetlands' for purposes of this section. Such rules shall be established after consultation with the heads of other appropriate Federal agencies 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 Secretary of Agriculture (in the case of agricultural lands and associated nonagricultural lands), or any other Federal officer or agency made in connection with the administration of this section shall comply with the requirements for delineation of wetlands set forth in subparagraphs (B) and (C).

"(B) Exceptions.--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 Act; except 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, which delineation shall be conducted during the growing season unless otherwise requested by the applicant;

"(ii) result in the classification of vegetation as hydrophytic if such vegetation is equally adapted to dry or wet soil conditions or 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; except that if such vegetation has been removed for the purpose of evading jurisdiction under this section, this clause shall not apply;

"(iv) result in the conclusion that wetlands hydrology is present unless water is found to be present at the surface of such lands for 21 consecutive 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 incidentally created as a result of adjacent development activity.

"(C) Normal circumstances.--In addition to the requirements of subparagraph (B), any standards established by rule or applied to delineate wetlands for purposes of this section shall provide that '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, if such circumstances have not been altered by an activity prohibited under this section.

"(2) Agricultural lands.--

"(A) Delineation by secretary of agriculture.--For purposes of this section, wetlands located on agricultural lands and associated nonagricultural lands shall be delineated solely by the Secretary of Agriculture in accordance with subtitle C of title XII of the Food Security Act of 1985 (16 U.S.C. 3821 et seq.).

"(B) Exemption of lands exempted under food security act.--Any area of agricultural land or any activities related to the land determined to be exempt from the requirements of subtitle C of title XII of the Food Security Act of 1985 (16 U.S.C. 3821 et seq.) shall also be exempt from the requirements of this section for such period of time as those lands are used, or a good faith effort is shown by the owner or operator to use such lands, as agricultural lands.

"(C) Effect of appeal determination pursuant to food security act.--Any area of agricultural land or any activities related to the land determined to be exempt pursuant to an appeal taken pursuant to subtitle C of title XII of the Food Security Act of 1985 (16 U.S.C. 3821 et seq.) shall be exempt under this section for such period of time as those lands are used, or a good faith effort is shown by the owner or operator to use such lands, as agricultural lands.

"(D) Delineations grandfathered.--Delineations by the Secretary of Agriculture regarding wetlands on agricultural lands and associated nonagricultural lands that have become administratively final on or before the date of enactment of the Comprehensive Wetlands Conservation and Management Act of 1995 shall not be subject to further delineation unless the owner requests a new delineation by the Secretary of Agriculture.

 

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