16 USC 3865 - Establishment and purposes

Collapse to view only § 3865. Establishment and purposes

§ 3865. Establishment and purposes
§ 3865a. Definitions
§ 3865b. Agricultural land easements
§ 3865c. Wetland reserve easements
§ 3865d. Administration

§ 3865. Establishment and purposes

(a) Establishment

(b) Purposes

The purposes of the program are to—

(1) combine the purposes and coordinate the functions of the wetlands reserve program established under section 3837 1

1 See References in Text note below.

of this title, the grassland reserve program established under section 3838n 1 of this title, and the farmland protection program established under section 3838i 1 of this title, as such sections were in effect on the day before February 7, 2014;

(2) restore, protect, and enhance wetlands on eligible land;

(3) protect the agricultural use and future viability, and related conservation values, of eligible land by limiting nonagricultural uses of that land that negatively affect the agricultural uses and conservation values; and

(4) protect grazing uses and related conservation values by restoring or conserving eligible land.

(Pub. L. 99–198, title XII, § 1265, as added Pub. L. 113–79, title II, § 2301(a), Feb. 7, 2014, 128 Stat. 731; amended Pub. L. 115–334, title II, § 2601, Dec. 20, 2018, 132 Stat. 4585.)

§ 3865a. DefinitionsIn this subchapter:

(1) Agricultural land easementThe term “agricultural land easement” means an easement or other interest in eligible land that—

(A) is conveyed for the purpose of protecting natural resources and the agricultural nature of the land; and

(B) permits the landowner the right to continue agricultural production and related uses.

(2) Buy-protect-sell transaction

(A) In generalThe term “buy-protect-sell transaction” means a legal arrangement—

(i) between an eligible entity and the Secretary relating to land that an eligible entity owns or is going to purchase prior to acquisition of an agricultural land easement;

(ii) under which the eligible entity certifies to the Secretary that the eligible entity shall—(I)(aa) hold an agricultural land easement on that land, but transfer ownership of the land to a farmer or rancher that is not an eligible entity prior to or on acquisition of the agricultural land easement; or(bb) hold an agricultural land easement on that land, but transfer ownership of the land to a farmer or rancher that is not an eligible entity in a timely manner and, subject to subparagraph (B), not later than 3 years after the date of acquisition of the agricultural land easement; and(II) make an initial sale of the land subject to the agricultural land easement to a farmer or rancher at not more than agricultural value, plus any reasonable holding and transaction costs incurred by the eligible entity, as determined by the Secretary; and

(iii) under which the Secretary shall be reimbursed for the entirety of the Federal share of the cost of the agricultural land easement by the eligible entity if the eligible entity fails to transfer ownership under item (aa) or (bb), as applicable, of clause (ii)(I).

(B) Time extension

(3) Eligible entityThe term “eligible entity” means—

(A) an agency of State or local government or an Indian tribe (including a farmland protection board or land resource council established under State law); or

(B) an organization that is—

(i) organized for, and at all times since the formation of the organization has been operated principally for, 1 or more of the conservation purposes specified in clause (i), (ii), (iii), or (iv) of section 170(h)(4)(A) of title 26;

(ii) an organization described in section 501(c)(3) of title 26 that is exempt from taxation under section 501(a) of title 26; or

(iii) described in—(I) paragraph (1) or (2) of section 509(a) of title 26; or(II)section 509(a)(3) of title 26 and is controlled by an organization described in section 509(a)(2) of title 26.

(4) Eligible landThe term “eligible land” means private or tribal land that is—

(A) in the case of an agricultural land easement, agricultural land, including land on a farm or ranch—

(i) that is subject to—(I) a pending offer for purchase of an agricultural land easement from an eligible entity; or(II) a buy-protect-sell transaction;

(ii)(I) that has prime, unique, or other productive soil;(II) that contains historical or archaeological resources;(III) the enrollment of which would protect grazing uses and related conservation values by restoring and conserving land; or(IV) the protection of which will further a State or local policy consistent with the purposes of the program; and

(iii) that is—(I) cropland;(II) rangeland;(III) grassland or land that contains forbs, or shrubland for which grazing is the predominant use;(IV) located in an area that has been historically dominated by grassland, forbs, or shrubs and could provide habitat for animal or plant populations of significant ecological value;(V) pastureland; or(VI) nonindustrial private forest land that contributes to the economic viability of an offered parcel or serves as a buffer to protect such land from development;

(B) in the case of a wetland reserve easement, a wetland or related area, including—

(i) farmed or converted wetlands, together with adjacent land that is functionally dependent on that land, if the Secretary determines it—(I) is likely to be successfully restored in a cost-effective manner; and(II) will maximize the wildlife benefits and wetland functions and values;

(ii) cropland or grassland that was used for agricultural production prior to flooding from the natural overflow of—(I) a closed basin lake and adjacent land that is functionally dependent upon it, if the State or other entity is willing to provide 50 percent share of the cost of an easement; or(II) a pothole and adjacent land that is functionally dependent on it;

(iii) farmed wetlands and adjoining lands that—(I) are enrolled in the conservation reserve program;(II) have the highest wetland functions and values, as determined by the Secretary; and(III) are likely to return to production after they leave the conservation reserve program;

(iv) riparian areas that link wetlands that are protected by easements or some other device that achieves the same purpose as an easement; or

(v) other wetlands of an owner that would not otherwise be eligible, if the Secretary determines that the inclusion of such wetlands in a wetland reserve easement would significantly add to the functional value of the easement; or

(C) in the case of either an agricultural land easement or a wetland reserve easement, other land that is incidental to land described in subparagraph (A) or (B), if the Secretary determines that it is necessary for the efficient administration of an easement under the program.

(5) Monitoring report

(6) Program

(7) Wetland reserve easementThe term “wetland reserve easement” means a reserved interest in eligible land that—

(A) is defined and delineated in a deed; and

(B) stipulates—

(i) the rights, title, and interests in land conveyed to the Secretary; and

(ii) the rights, title, and interests in land that are reserved to the landowner.

(Pub. L. 99–198, title XII, § 1265A, as added Pub. L. 113–79, title II, § 2301(a), Feb. 7, 2014, 128 Stat. 732; amended Pub. L. 115–334, title II, § 2602, Dec. 20, 2018, 132 Stat. 4585.)

§ 3865b. Agricultural land easements

(a) Availability of assistanceThe Secretary shall facilitate and provide funding for—

(1) the purchase by eligible entities of agricultural land easements in eligible land;

(2) technical assistance to implement the program, including technical assistance for the development of a conservation plan under subsection (b)(4)(C)(iv); and

(3) buy-protect-sell transactions.

(b) Cost-share assistance

(1) In general

(2) Scope of assistance available

(A) Federal shareAn agreement described in paragraph (4) shall provide for a Federal share determined by the Secretary of an amount not to exceed 50 percent of the fair market value of the agricultural land easement, as determined by the Secretary using—

(i) the Uniform Standards of Professional Appraisal Practice;

(ii) an areawide market analysis or survey; or

(iii) another industry-approved method.

(B) Non-federal share

(i) In general

(ii) Grasslands exception

(iii) Permissible formsThe non-Federal share provided by an eligible entity under this subparagraph may comprise—(I) cash resources;(II) a charitable donation or qualified conservation contribution (as defined in section 170(h) of title 26) from the private landowner from which the agricultural land easement will be purchased;(III) costs associated with securing a deed to the agricultural land easement, including the cost of appraisal, survey, inspection, and title; and(IV) other costs, as determined by the Secretary.

(3) Evaluation and ranking of applications

(A) Criteria

(B) ConsiderationsIn establishing the criteria, the Secretary shall emphasize support for—

(i) protecting agricultural uses and related conservation values of the land; and

(ii) maximizing the protection of areas devoted to agricultural use.

(C) Accounting for geographic differencesThe Secretary may adjust the criteria established under subparagraph (A) to account for geographic differences, if the adjustments—

(i) meet the purposes of the program; and

(ii) continue to maximize the benefit of the Federal investment under the program.

(D) Priority

(E) Bidding down

(4) Agreements with eligible entities

(A) In general

(B) Length of agreementsAn agreement shall be for a term that is—

(i) in the case of an eligible entity certified under the process described in paragraph (5), a minimum of five years; and

(ii) for all other eligible entities, at least three, but not more than five years.

(C) Minimum terms and conditionsAn eligible entity shall be authorized to use its own terms and conditions for agricultural land easements so long as the Secretary determines such terms and conditions—

(i) are consistent with the purposes of the program;

(ii) permit effective enforcement of the conservation purposes of such easements;

(iii) include a right of enforcement for the Secretary that—(I) may be used only if the terms and conditions of the easement are not enforced by the eligible entity; and(II) does not extend to a right of inspection unless—(aa)(AA) the holder of the easement fails to provide monitoring reports in a timely manner; or(BB) the Secretary has a reasonable and articulable belief that the terms and conditions of the easement have been violated; and(bb) prior to the inspection, the Secretary notifies the eligible entity and the landowner of the inspection and provides a reasonable opportunity for the eligible entity and the landowner to participate in the inspection;

(iv) include a conservation plan only for any portion of the land subject to the agricultural land easement that is highly erodible cropland; and

(v) include a limit on the impervious surfaces to be allowed that is consistent with the agricultural activities to be conducted.

(D) Additional permitted terms and conditionsAn eligible entity may include terms and conditions for an agricultural land easement that—

(i) are intended to keep the land subject to the agricultural land easement under the ownership of a farmer or rancher, as determined by the Secretary;

(ii) allow subsurface mineral development on the land subject to the agricultural land easement and in accordance with applicable State law if, as determined by the Secretary—(I) the subsurface mineral development—(aa) has a limited and localized impact;(bb) does not harm the agricultural use and conservation values of the land subject to the easement;(cc) does not materially alter or affect the existing topography;(dd) shall comply with a subsurface mineral development plan that—(AA) includes a plan for the remediation of impacts to the agricultural use and conservation values of the land subject to the easement; and(BB) is approved by the Secretary prior to the initiation of mineral development activity;(ee) is not accomplished by any surface mining method;(ff) is within the impervious surface limits of the easement under subparagraph (C)(v); and(gg) uses practices and technologies that minimize the duration and intensity of impacts to the agricultural use and conservation values of the land subject to the easement; and(II) each area impacted by the subsurface mineral development shall be reclaimed and restored by the holder of the mineral rights at cessation of operation; and

(iii) include other relevant activities relating to the agricultural land easement, as determined by the Secretary.

(E) Substitution of qualified projects

(F) Effect of violationIf a violation occurs of a term or condition of an agreement under this subsection—

(i) the Secretary may terminate the agreement; and

(ii) the Secretary may require the eligible entity to refund all or part of any payments received by the entity under the program, with interest on the payments as determined appropriate by the Secretary.

(5) Certification of eligible entities

(A) Certification processThe Secretary shall establish a process under which the Secretary may—

(i) directly certify eligible entities that meet established criteria;

(ii) enter into long-term agreements with certified eligible entities;

(iii) accept proposals for cost-share assistance for the purchase of agricultural land easements throughout the duration of such agreements; and

(iv) allow a certified eligible entity to use its own terms and conditions, notwithstanding paragraph (4)(C), as long as the terms and conditions are consistent with the purposes of the program.

(B) Certification criteriaIn order to be certified, an eligible entity shall demonstrate to the Secretary that the eligible entity—

(i) will maintain, at a minimum, for the duration of the agreement—(I) a plan for administering easements that is consistent with the purpose of the program;(II) the capacity and resources to monitor and enforce agricultural land easements; and(III) policies and procedures to ensure—(aa) the long-term integrity of agricultural land easements on eligible land;(bb) timely completion of acquisitions of such easements; and(cc) timely and complete evaluation and reporting to the Secretary on the use of funds provided under the program;

(ii) has—(I) been accredited by the Land Trust Accreditation Commission, or by an equivalent accrediting body, as determined by the Secretary;(II) acquired not fewer than 10 agricultural land easements under the program or any predecessor program; and(III) successfully met the responsibilities of the eligible entity under the applicable agreements with the Secretary, as determined by the Secretary, relating to agricultural land easements that the eligible entity has acquired under the program or any predecessor program; or

(iii) is a State department of agriculture or other State agency with statutory authority for farm and ranchland protection that has—(I) acquired not fewer than 10 agricultural land easements under the program or any predecessor program; and(II) successfully met the responsibilities of the eligible entity under the applicable agreements with the Secretary, as determined by the Secretary, relating to agricultural land easements that the eligible entity has acquired under the program or any predecessor program.

(i) Review

(ii) RevocationIf the Secretary finds that a certified eligible entity no longer meets the criteria established under subparagraph (B), the Secretary may—(I) allow the certified eligible entity a specified period of time, at a minimum 180 days, in which to take such actions as may be necessary to meet the criteria; and(II) revoke the certification of the eligible entity, if, after the specified period of time, the certified eligible entity does not meet such criteria.

(1) permanent easements; or

(2) easements for the maximum duration allowed under applicable State laws.

(d) Technical assistance

(Pub. L. 99–198, title XII, § 1265B, as added Pub. L. 113–79, title II, § 2301(a), Feb. 7, 2014, 128 Stat. 734; amended Pub. L. 115–334, title II, § 2603, Dec. 20, 2018, 132 Stat. 4586.)

§ 3865c. Wetland reserve easements

(a) Availability of assistanceThe Secretary shall provide assistance to owners of eligible land to restore, protect, and enhance wetlands through—

(1) wetland reserve easements and related wetland reserve easement plans; and

(2) technical assistance.

(b) Easements

(1) Method of enrollmentThe Secretary shall enroll eligible land under this section through the use of—

(A) 30-year easements;

(B) permanent easements;

(D) as an option for Indian tribes only, 30-year contracts.

(2) Limitations

(A) Ineligible landThe Secretary may not acquire easements on—

(i) land established to trees under the conservation reserve program, except in cases where the Secretary determines it would further the purposes of this section; and

(ii) farmed wetlands or converted wetlands where the conversion was not commenced prior to December 23, 1985.

(B) Changes in ownershipNo wetland reserve easement shall be created on land that has changed ownership during the preceding 24-month period unless—

(i) the new ownership was acquired by will or succession as a result of the death of the previous owner;

(ii)(I) the ownership change occurred because of foreclosure on the land; and(II) immediately before the foreclosure, the owner of the land exercises a right of redemption from the mortgage holder in accordance with State law; or

(iii) the Secretary determines that the land was acquired under circumstances that give adequate assurances that such land was not acquired for the purposes of placing it in the program.

(3) Evaluation and ranking of offers

(A) Criteria

(B) ConsiderationsWhen evaluating offers from landowners, the Secretary may consider—

(i) the conservation benefits of obtaining a wetland reserve easement, including the potential environmental benefits if the land was removed from agricultural production;

(ii) the cost effectiveness of each wetland reserve easement, so as to maximize the environmental benefits per dollar expended;

(iii) whether the landowner or another person is offering to contribute financially to the cost of the wetland reserve easement to leverage Federal funds; and

(iv) such other factors as the Secretary determines are necessary to carry out the purposes of the program.

(4) AgreementTo be eligible to place eligible land into the program through a wetland reserve easement, the owner of such land shall enter into an agreement with the Secretary to—

(A) grant an easement on such land to the Secretary;

(B) authorize the implementation of a wetland reserve easement plan developed for the eligible land under subsection (f);

(C) create and record an appropriate deed restriction in accordance with applicable State law to reflect the easement agreed to;

(D) provide a written statement of consent to such easement signed by those holding a security interest in the land;

(E) comply with the terms and conditions of the easement and any related agreements; and

(F) permanently retire any existing base history for the land on which the easement has been obtained.

(5) Terms and conditions of easement

(A) In generalA wetland reserve easement shall include terms and conditions that—

(i) permit—(I) repairs, improvements, and inspections on the land that are necessary to maintain existing public drainage systems; and(II) owners to control public access on the easement areas while identifying access routes to be used for restoration activities and management and easement monitoring;

(ii) prohibit—(I) the alteration of wildlife habitat and other natural features of such land, unless specifically authorized by the Secretary;(II) the spraying of such land with chemicals or the mowing of such land, except where such spraying or mowing is authorized by the Secretary or is necessary—(aa) to comply with Federal or State noxious weed control laws;(bb) to comply with a Federal or State emergency pest treatment program; or(cc) to meet habitat needs of specific wildlife species;(III) any activities to be carried out on the owner’s or successor’s land that is immediately adjacent to, and functionally related to, the land that is subject to the easement if such activities will alter, degrade, or otherwise diminish the functional value of the eligible land; and(IV) the adoption of any other practice that would tend to defeat the purposes of the program, as determined by the Secretary;

(iii) provide for the efficient and effective establishment of wetland functions and values; and

(iv) include such additional provisions as the Secretary determines are desirable to carry out the program or facilitate the practical administration thereof.

(B) Violation

(i) In general

(ii) Compatible use authorizationIn evaluating and authorizing a compatible economic use under clause (i), the Secretary shall—(I) request and consider the advice of the applicable State technical committee established under section 3861(a) of this title about the 1 or more types of uses that may be authorized to be conducted on land subject to a wetland reserve easement, including the frequency, timing, and intensity of those uses;(II) consider the ability of an authorized use to facilitate the practical administration and management of that land; and(III) ensure that an authorized use furthers the functions and values for which the wetland reserve easement was established.

(D) Reservation of grazing rightsThe Secretary may include in the terms and conditions of a wetland reserve easement a provision under which the owner reserves grazing rights if—

(i) the Secretary determines that the reservation and use of the grazing rights—(I) is compatible with the land subject to the easement;(II) is consistent with the historical natural uses of the land and the long-term protection and enhancement goals for which the easement was established; and(III) complies with the wetland reserve easement plan developed for the land under subsection (f) or a grazing management plan that is consistent with the wetland reserve easement plan and has been reviewed, and modified as necessary, at least every 5 years; and

(ii) the agreement provides for a commensurate reduction in the easement payment to account for the grazing value, as determined by the Secretary.

(6) Compensation

(A) Determination

(i) Permanent easementsThe Secretary shall pay as compensation for a permanent wetland reserve easement acquired under the program an amount necessary to encourage enrollment in the program, based on the lowest of—(I) the fair market value of the land, as determined by the Secretary, using the Uniform Standards of Professional Appraisal Practice or an areawide market analysis or survey;(II) the amount corresponding to a geographical cap, as determined by the Secretary in regulations; or(III) the offer made by the landowner.

(ii) Other

(B) Form of payment

(i) Easements valued at $500,000 or less

(ii) Easements valued at more than $500,000

(1) In general

(2) PaymentsThe Secretary shall—

(A) in the case of a permanent wetland reserve easement, pay an amount that is not less than 75 percent, but not more than 100 percent, of the eligible costs, as determined by the Secretary; and

(B) in the case of a 30-year contract or 30-year wetland reserve easement, pay an amount that is not less than 50 percent, but not more than 75 percent, of the eligible costs, as determined by the Secretary.

(d) Technical assistance

(1) In general

(2) Contracts or agreements

(e) Wetland reserve enhancement option

(f) Administration

(1) Wetland reserve easement plan

(A) In generalThe Secretary shall develop a wetland reserve easement plan—

(i) for any eligible land subject to a wetland reserve easement; and

(ii) that restores, protects, enhances, manages, maintains, and monitors the eligible land subject to the wetland reserve easements acquired under this section.

(B) Practices and activities

(2) Alternative plant communitiesThe Secretary, in coordination with State technical committees established under section 3861(a) of this title and pursuant to State-specific criteria and guidelines, may authorize the establishment or restoration of a hydrologically appropriate native community or alternative naturalized vegetative community as part of a wetland reserve easement plan on land subject to a wetland reserve easement if that hydrologically appropriate native or alternative naturalized vegetative community shall—

(A) substantially support or benefit migratory waterfowl or other wetland wildlife; or

(B) meet local resource concerns or needs (including as an element of a regional, State, or local wildlife initiative or plan).

(3) Delegation of easement administration

(A) In general

(B) Limitation

(4) Payments

(A) Timing of paymentsThe Secretary shall provide payment for obligations incurred by the Secretary under this section—

(i) with respect to any easement restoration obligation under subsection (c), as soon as possible after the obligation is incurred; and

(ii) with respect to any annual easement payment obligation incurred by the Secretary, as soon as possible after October 1 of each calendar year.

(B) Payments to others

(g) Application

(Pub. L. 99–198, title XII, § 1265C, as added Pub. L. 113–79, title II, § 2301(a), Feb. 7, 2014, 128 Stat. 737; amended Pub. L. 115–334, title II, § 2604, Dec. 20, 2018,

§ 3865d. Administration

(a) Ineligible landThe Secretary may not use program funds for the purposes of acquiring an easement on—

(1) lands owned by an agency of the United States, other than land held in trust for Indian tribes;

(2) lands owned in fee title by a State, including an agency or a subdivision of a State, or a unit of local government;

(3) land subject to an easement or deed restriction which, as determined by the Secretary, provides similar protection as would be provided by enrollment in the program; or

(4) lands where the purposes of the program would be undermined due to on-site or off-site conditions, such as risk of hazardous substances, permitted or existing rights of way, infrastructure development, or adjacent land uses.

(b) PriorityIn evaluating applications under the program, the Secretary may give priority to land that is currently enrolled in the conservation reserve program in a contract that is set to expire within 1 year and—

(1) in the case of an agricultural land easement, is grassland that would benefit from protection under a long-term easement; and

(2) in the case of a wetland reserve easement, is a wetland or related area with the highest wetland functions and value and is likely to return to production after the land leaves the conservation reserve program.

(1) SubordinationThe Secretary may subordinate any interest in land, or portion of such interest, administered by the Secretary (including for the purposes of utilities and energy transmission services) either directly or on behalf of the Commodity Credit Corporation under the program if the Secretary determines that the subordination—

(A) increases conservation values or has a limited negative effect on conservation values;

(B) minimally affects the acreage subject to the interest in land; and

(2) Modification and exchange

(A) AuthorityThe Secretary may approve a modification or exchange of any interest in land, or portion of such interest, administered by the Secretary, either directly or on behalf of the Commodity Credit Corporation under the program if the Secretary determines that—

(i) no reasonable alternative exists and the effect on the interest in land is avoided or minimized to the extent practicable; and

(ii) the modification or exchange—(I) results in equal or increased conservation values;(II) results in equal or greater economic value to the United States;(III) is consistent with the original intent of the easement;(IV) is consistent with the purposes of the program; and(V) is in the public interest or furthers the practical administration of the program.

(B) Limitation

(3) TerminationThe Secretary may approve a termination of any interest in land, or portion of such interest, administered by the Secretary, directly or on behalf of the Commodity Credit Corporation under the program if the Secretary determines that—

(A) termination is in the interest of the Federal Government;

(B) the United States will be fully compensated for—

(i) the fair market value of the interest in land;

(ii) any costs relating to the termination; and

(iii) any damages determined appropriate by the Secretary; and

(i) address a compelling public need for which there is no practicable alternative even with avoidance and minimization; and

(ii) further the practical administration of the program.

(4) Consent

(5) Notice

(d) Land enrolled in other programs

(1) Conservation reserve program

(2) Other

(3) Agricultural land easements

(e) Compliance with certain requirementsThe Secretary may not provide assistance under this subchapter to an eligible entity or owner of eligible land unless the eligible entity or owner agrees, during the crop year for which the assistance is provided—

(1) to comply with applicable conservation requirements under subchapter II; and

(2) to comply with applicable wetland protection requirements under subchapter III.

(Pub. L. 99–198, title XII, § 1265D, as added Pub. L. 113–79, title II, § 2301(a), Feb. 7, 2014, 128 Stat. 742; amended Pub. L. 115–334, title II, § 2605, Dec. 20, 2018, 132 Stat. 4591.)