16 USC 3822 - Delineation of wetlands; exemptions

Collapse to view only § 3822. Delineation of wetlands; exemptions

§ 3821. Program ineligibility
§ 3822. Delineation of wetlands; exemptions
§ 3823. Affiliated persons
§ 3824. Fairness of compliance

§ 3821. Program ineligibility

(a) Production on converted wetlandExcept as provided in this subchapter and notwithstanding any other provision of law, any person who in any crop year produces an agricultural commodity on converted wetland, as determined by the Secretary, shall be—

(1) in violation of this section; and

(2) ineligible for loans or payments in an amount determined by the Secretary to be proportionate to the severity of the violation.

(b) Ineligibility for certain loans and paymentsIf a person is determined to have committed a violation under subsection (a) during a crop year, the Secretary shall determine which of, and the amount of, the following loans and payments for which the person shall be ineligible:

(1) Contract payments under a production flexibility contract, marketing assistance loans, and any type of price support or payment made available under the Agricultural Market Transition Act [7 U.S.C. 7201 et seq.], the Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.), or any other Act.

(2) A loan made or guaranteed under the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) or any other provision of law administered by the Consolidated Farm Service Agency,1

1 See Change of Name note below.

if the Secretary determines that the proceeds of the loan will be used for a purpose that will contribute to conversion of a wetland (other than as provided in this subchapter) to produce an agricultural commodity.

(3) During the crop year:

(A) A payment made pursuant to a contract entered into under the environmental quality incentives program under subpart A of part IV of subchapter IV.

(B) A payment under any other provision of subchapter IV.

(D) A payment, loan, or other assistance under section 1003 or 1006a of this title.

(1) Requirements

(A) In general

(B) ApplicabilityIneligibility under this subsection shall—

(i) only apply to reinsurance years subsequent to the date of a final determination of a violation, including all administrative appeals; and

(ii) not apply to the existing reinsurance year or any reinsurance year prior to the date of the final determination.

(2) Conversions

(A) In general

(B) New conversionsIn the case of a wetland that the Secretary determines was converted after February 7, 2014—

(i) the person shall be ineligible to receive crop insurance premium subsidies in subsequent reinsurance years unless the Secretary determines that an exemption pursuant to section 3822 of this title applies; or

(ii) for any violation that the Secretary determines impacts less than 5 acres of an entire farm, the person may pay a contribution in an amount equal to 150 percent of the cost of mitigation, as determined by the Secretary, to the fund described in section 3841(f) of this title for wetland restoration in lieu of ineligibility to receive crop insurance premium assistance.

(D) Conversions and new policies or plans of insuranceIn the case of an agricultural commodity for which an individual policy or plan of insurance is available for the first time to the person after February 7, 2014—

(i) ineligibility shall apply only to conversions that take place after the date on which the policy or plan of insurance first becomes available to the person; and

(ii) the person shall take such steps as the Secretary determines appropriate to mitigate any prior conversion in a timely manner but not to exceed 2 reinsurance years.

(3) Limitations

(A) Mitigation required

(B) Persons covered for the first time

(D) Tenant relief

(i) In generalIf a tenant is determined to be ineligible for payments and other benefits under this subsection, the Secretary may limit the ineligibility only to the farm that is the basis for the ineligibility determination if the tenant has established, to the satisfaction of the Secretary that—(I) the tenant has made a good faith effort to meet the requirements of this section, including enlisting the assistance of the Secretary to obtain a reasonable plan for restoration or mitigation for the farm;(II) the landlord on the farm refuses to comply with the plan on the farm; and(III) the Secretary determines that the lack of compliance is not a part of a scheme or device to avoid the compliance.

(ii) Report

(E) Certificate of compliance

(i) In general

(ii) Timely evaluationThe Secretary shall evaluate the certification in a timely manner and—(I) a person who has properly complied with certification shall be held harmless with regard to eligibility during the period of evaluation; and(II) if the Secretary fails to evaluate the certification in a timely manner and the person is subsequently found to be in violation of this subsection, ineligibility shall not apply to the person for that violation.

(iii) Equitable contribution(I) In generalIf a person fails to notify the Secretary as required and is subsequently found to be in violation of this subsection, the Secretary shall—(aa) determine the amount of an equitable contribution to conservation by the person for the violation; and(bb) deposit the contribution in the fund described in section 3841(f) of this title.(II) Limitation

(4) Duties of the Secretary

(A) In general

(B) Responsibility

(d) Wetland conversion

(1) In general

(2) Duty of the Secretary

(e) Prior loans

(f) Wetland

(Pub. L. 99–198, title XII, § 1221, Dec. 23, 1985, 99 Stat. 1507; Pub. L. 101–624, title XIV, § 1421(b), Nov. 28, 1990, 104 Stat. 3572; Pub. L. 102–237, title II, § 204(3), Dec. 13, 1991, 105 Stat. 1855; Pub. L. 102–552, title III, § 308(a), Oct. 28, 1992, 106 Stat. 4116; Pub. L. 104–127, title III, § 321, Apr. 4, 1996, 110 Stat. 986; Pub. L. 107–171, title II, § 2002(b), May 13, 2002, 116 Stat. 233; Pub. L. 113–79, title II, § 2611(b), Feb. 7, 2014, 128 Stat. 763; Pub. L. 115–334, title II, §§ 2101, 2301(d)(1)(B), Dec. 20, 2018, 132 Stat. 4530, 4553.)

§ 3822. Delineation of wetlands; exemptions

(a) Delineation by Secretary

(1) In general

(2) Wetland delineation maps

(3) CertificationOn providing notice to affected persons, the Secretary shall—

(A) certify whether a map is sufficient for the purpose of making a determination of ineligibility for program benefits under section 3821 of this title; and

(B) provide an opportunity to appeal the certification prior to the certification becoming final.

(4) Duration of certification

(5) Review of mapping on appeal

(6) Reliance on prior certified delineation

(b) ExemptionsNo person shall become ineligible under section 3821 of this title for program loans or payments under the following circumstances:

(1) As the result of the production of an agricultural commodity on the following lands:

(A) A converted wetland if the conversion of the wetland was commenced before December 23, 1985.

(B) Land that is a nontidal drainage or irrigation ditch excavated in upland.

(C) A wet area created by a water delivery system, irrigation, irrigation system, or application of water for irrigation.

(D) A wetland on which the owner or operator of a farm or ranch uses normal cropping or ranching practices to produce an agricultural commodity in a manner that is consistent for the area where the production is possible as a result of a natural condition, such as drought, and is without action by the producer that destroys a natural wetland characteristic.

(E) Land that is an artificial lake or pond created by excavating or diking land (that is not a wetland) to collect and retain water and that is used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, or rice production, or as a settling pond.

(F) A wetland that is temporarily or incidentally created as a result of adjacent development activity.

(G) A converted wetland if the original conversion of the wetland was commenced before December 23, 1985, and the Secretary determines the wetland characteristics returned after that date as a result of—

(i) the lack of maintenance of drainage, dikes, levees, or similar structures;

(ii) a lack of management of the lands containing the wetland; or

(iii) circumstances beyond the control of the person.

(H) A converted wetland, if—

(i) the converted wetland was determined by the Natural Resources Conservation Service to have been manipulated for the production of an agricultural commodity or forage prior to December 23, 1985, and was returned to wetland conditions through a voluntary restoration, enhancement, or creation action subsequent to that determination;

(ii) technical determinations regarding the prior site conditions and the restoration, enhancement, or creation action have been adequately documented by the Natural Resources Conservation Service;

(iii) the proposed conversion action is approved by the Natural Resources Conservation Service prior to implementation; and

(iv) the extent of the proposed conversion is limited so that the conditions will be at least equivalent to the wetland functions and values that existed prior to implementation of the voluntary wetland restoration, enhancement, or creation action.

(2) For the conversion of the following:

(A) An artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water and that is used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond.

(B) A wetland that is temporarily or incidentally created as a result of adjacent development activity.

(C) A wetland on which the owner or operator of a farm or ranch uses normal cropping or ranching practices to produce an agricultural commodity in a manner that is consistent for the area where the production is possible as a result of a natural condition, such as drought, and is without action by the producer that destroys a natural wetland characteristic.

(D) A wetland previously identified as a converted wetland (if the original conversion of the wetland was commenced before December 23, 1985), but that the Secretary determines returned to wetland status after that date as a result of—

(i) the lack of maintenance of drainage, dikes, levees, or similar structures;

(ii) a lack of management of the lands containing the wetland; or

(iii) circumstances beyond the control of the person.

(E) A wetland, if—

(i) the wetland was determined by the Natural Resources Conservation Service to have been manipulated for the production of an agricultural commodity or forage prior to December 23, 1985, and was returned to wetland conditions through a voluntary restoration, enhancement, or creation action subsequent to that determination;

(ii) technical determinations regarding the prior site conditions and the restoration, enhancement, or creation action have been adequately documented by the Natural Resources Conservation Service;

(iii) the proposed conversion action is approved by the Natural Resources Conservation Service prior to implementation; and

(1) In general

(2) Exception

(d) Identification of minimal effect exemptions

(e) NonwetlandsThe Secretary shall exempt from the ineligibility provisions of section 3821 of this title any action by a person upon lands in any case in which the Secretary determines that any one of the following does not apply with respect to such lands:

(1) Such lands have a predominance of hydric soils.

(2) Such lands are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

(3) Such lands, under normal circumstances, support a prevalence of such vegetation.

(f) Minimal effect; mitigationThe Secretary shall exempt a person from the ineligibility provisions of section 3821 of this title for any action associated with the production of an agricultural commodity on a converted wetland, or the conversion of a wetland, if 1 or more of the following conditions apply, as determined by the Secretary:

(1) The action, individually and in connection with all other similar actions authorized by the Secretary in the area, will have a minimal effect on the functional hydrological and biological value of the wetlands in the area, including the value to waterfowl and wildlife.

(2) The wetland and the wetland values, acreage, and functions are mitigated by the person through the restoration of a converted wetland, the enhancement of an existing wetland, or the creation of a new wetland, and the restoration, enhancement, or creation is—

(A) in accordance with a wetland conservation plan;

(B) in advance of, or concurrent with, the action;

(D) in the case of enhancement or restoration of wetlands, on not greater than a 1-for-1 acreage basis unless more acreage is needed to provide equivalent functions and values that will be lost as a result of the wetland conversion to be mitigated;

(E) in the case of creation of wetlands, on greater than a 1-for-1 acreage basis if more acreage is needed to provide equivalent functions and values that will be lost as a result of the wetland conversion that is mitigated;

(F) on lands in the same general area of the local watershed as the converted wetland; and

(G) with respect to the restored, enhanced, or created wetland, made subject to an easement that—

(i) is recorded on public land records;

(ii) remains in force for as long as the converted wetland for which the restoration, enhancement, or creation to be mitigated remains in agricultural use or is not returned to its original wetland classification with equivalent functions and values; and

(iii) prohibits making alterations to the restored, enhanced, or created wetland that lower the wetland’s functions and values.

(3) The wetland was converted after December 23, 1985, but before November 28, 1990, and the wetland values, acreage, and functions are mitigated by the producer through the requirements of subparagraphs (A), (B), (C), (D), (F), and (G) of paragraph (2).

(4) The action was authorized by a permit issued under section 1344 of title 33 and the wetland values, acreage, and functions of the converted wetland were adequately mitigated for the purposes of this subchapter.

(g)

(h) Good faith exemption

(1) Exemption described

(2) Eligible reviewersA determination of the Secretary, or a designee of the Secretary, under paragraph (1) shall be reviewed by the applicable—

(A) State Executive Director, with the technical concurrence of the State Conservationist; or

(B) district director, with the technical concurrence of the area conservationist.

(3) Period for compliance

(i) Restoration

(j) Determinations; restoration and mitigation plans; monitoring activities

(k) Mitigation banking

(1) Mitigation banking program

(A) In general

(B) Authorization of appropriations

(2) Applicability

(3) Policy and criteria

(Pub. L. 99–198, title XII, § 1222, Dec. 23, 1985, 99 Stat. 1508; Pub. L. 101–624, title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573; Pub. L. 104–127, title III, § 322, Apr. 4, 1996, 110 Stat. 987; Pub. L. 110–234, title II, § 2003, May 22, 2008, 122 Stat. 1028; Pub. L. 110–246, § 4(a), title II, § 2003, June 18, 2008, 122 Stat. 1664, 1756; Pub. L. 113–79, title II, § 2609, Feb. 7, 2014, 128 Stat. 761; Pub. L. 115–334, title II, §§ 2102, 2103, 2821(b), Dec. 20, 2018, 132 Stat. 4530, 4602.)

§ 3823. Affiliated persons

If a person is affected by a reduction in benefits under section 3821 of this title and the affected person is affiliated with other persons for the purpose of receiving the benefits, the benefits of each affiliated person shall be reduced under section 3821 of this title in proportion to the interest held by the affiliated person.

(Pub. L. 99–198, title XII, § 1223, as added Pub. L. 104–127, title III, § 324, Apr. 4, 1996, 110 Stat. 992.)

§ 3824. Fairness of compliance

If the actions of an unrelated person or public entity, outside the control of, and without the prior approval of, the landowner or tenant result in a change in the characteristics of cropland that would cause the land to be determined to be a wetland, the affected land shall not be considered to be wetland for purposes of this subchapter.

(Pub. L. 99–198, title XII, § 1224, as added Pub. L. 101–624, title XIV, § 1424, Nov. 28, 1990, 104 Stat. 3576.)