16 U.S.C. § 3865c — Wetland reserve easements

Page 2433 TITLE 16—CONSERVATION § 3865c to agricultural land easements that the eligible entity has acquired under the program or any predecessor program. (C) Review and revision (i) Review The Secretary shall conduct a review of eligible entities certified under subpara- graph (A) every three years to ensure that such entities are meeting the criteria es- tablished under subparagraph (B). (ii) Revocation If the Secretary finds that a certified eli- gible 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 eli- gible entity, if, after the specified period of time, the certified eligible entity does not meet such criteria. (c) Method of enrollment The Secretary shall enroll eligible land under this section through the use of— (1) permanent easements; or (2) easements for the maximum duration al- lowed under applicable State laws. (d) Technical assistance The Secretary may provide technical assist- ance, if requested, to assist in compliance with the terms and conditions of easements. (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.) Editorial Notes AMENDMENTS 2018—Subsec. (a)(2). Pub. L. 115–334, § 2603(a)(2), sub- stituted ‘‘technical assistance to implement the pro- gram, including technical assistance for the develop- ment of a conservation plan under subsection (b)(4)(C)(iv); and’’ for ‘‘technical assistance to provide for the conservation of natural resources pursuant to an agricultural land easement plan.’’ Subsec. (a)(3). Pub. L. 115–334, § 2603(a)(1), (3), added par. (3). Subsec. (b)(2)(B)(ii), (iii). Pub. L. 115–334, § 2603(b)(1)(A), added cls. (ii) and (iii) and struck out former cl. (ii). Prior to amendment, text of cl. (ii) read as follows: ‘‘An eligible entity may include as part of its share under clause (i) a charitable donation or qualified conservation contribution (as defined by sec- tion 170(h) of title 26) from the private landowner if the eligible entity contributes its own cash resources in an amount that is at least 50 percent of the amount con- tributed by the Secretary.’’ Subsec. (b)(2)(C). Pub. L. 115–334, § 2603(b)(1)(B), struck out subpar. (C) which related to exception to Federal and non-Federal share requirements in the case of grassland of special environmental significance and for projects of special significance. Subsec. (b)(3)(C) to (E). Pub. L. 115–334, § 2603(b)(2), added subpars. (C) and (D) and redesignated former sub- par. (C) as (E). Subsec. (b)(4)(C)(iii), (iv). Pub. L. 115–334, § 2603(b)(3)(A), added cls. (iii) and (iv) and struck out former cls. (iii) and (iv) which read as follows: ‘‘(iii) include a right of enforcement for the Sec- retary, that may be used only if the terms of the ease- ment are not enforced by the holder of the easement; ‘‘(iv) subject the land in which an interest is pur- chased to an agricultural land easement plan that— ‘‘(I) describes the activities which promote the long-term viability of the land to meet the purposes for which the easement was acquired; ‘‘(II) requires the management of grasslands ac- cording to a grasslands management plan; and ‘‘(III) includes a conservation plan, where appro- priate, and requires, at the option of the Secretary, the conversion of highly erodible cropland to less in- tensive uses; and’’. Subsec. (b)(4)(D) to (F). Pub. L. 115–334, § 2603(b)(3)(B), (C), added subpar. (D) and redesignated former subpars. (D) and (E) as (E) and (F), respectively. Subsec. (b)(5)(A)(iv). Pub. L. 115–334, § 2603(b)(4)(A), added cl. (iv). Subsec. (b)(5)(B). Pub. L. 115–334, § 2603(b)(4)(B), sub- stituted ‘‘eligible entity—’’ for ‘‘entity’’, inserted cl. (i) designation before ‘‘will maintain’’, redesignated former cls. (i) to (iii) as subcls. (I) to (III), respectively, of cl. (i) and subcls. (I) to (III) of former cl. (iii) as items (aa) to (cc), respectively, of subcl. (III), realigned margins, and added cl. (ii). Subsec. (d). Pub. L. 115–334, § 2603(b)(5), added subsec. (d) and struck out former subsec. (d). Prior to amend- ment, text read as follows: ‘‘The Secretary may provide technical assistance, if requested, to assist in— ‘‘(1) compliance with the terms and conditions of easements; and ‘‘(2) implementation of an agricultural land ease- ment plan.’’ § 3865c. Wetland reserve easements (a) Availability of assistance The Secretary shall provide assistance to own- ers of eligible land to restore, protect, and en- hance wetlands through— (1) wetland reserve easements and related wetland reserve easement plans; and (2) technical assistance. (b) Easements (1) Method of enrollment The Secretary shall enroll eligible land under this section through the use of— (A) 30-year easements; (B) permanent easements; (C) easements for the maximum duration allowed under applicable State laws; or (D) as an option for Indian tribes only, 30- year contracts. (2) Limitations (A) Ineligible land The 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 wet- lands where the conversion was not com- menced prior to December 23, 1985. (B) Changes in ownership No wetland reserve easement shall be cre- ated on land that has changed ownership during the preceding 24-month period un- less— (i) the new ownership was acquired by will or succession as a result of the death of the previous owner; Page 2434 TITLE 16—CONSERVATION § 3865c (ii)(I) the ownership change occurred be- cause 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 The Secretary shall establish evaluation and ranking criteria for offers from land- owners under this section to maximize the benefit of Federal investment under the pro- gram. (B) Considerations When 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 pro- duction; (ii) the cost effectiveness of each wetland reserve easement, so as to maximize the environmental benefits per dollar ex- pended; (iii) whether the landowner or another person is offering to contribute financially to the cost of the wetland reserve ease- ment to leverage Federal funds; and (iv) such other factors as the Secretary determines are necessary to carry out the purposes of the program. (C) Priority The Secretary shall give priority to ac- quiring wetland reserve easements based on the value of the wetland reserve easement for protecting and enhancing habitat for mi- gratory birds and other wildlife or improv- ing water quality. (4) Agreement To 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 wet- land 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 general A wetland reserve easement shall include terms and conditions that— (i) permit— (I) repairs, improvements, and inspec- tions on the land that are necessary to maintain existing public drainage sys- tems; and (II) owners to control public access on the easement areas while identifying ac- cess routes to be used for restoration ac- tivities 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 nec- essary— (aa) to comply with Federal or State noxious weed control laws; (bb) to comply with a Federal or State emergency pest treatment pro- gram; 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 function- ally 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 Sec- retary; (iii) provide for the efficient and effec- tive 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 On the violation of a term or condition of a wetland reserve easement, the wetland re- serve easement shall remain in force and the Secretary may require the owner to refund all or part of any payments received by the owner under the program, with interest on the payments as determined appropriate by the Secretary. (C) Compatible uses (i) In general Land subject to a wetland reserve ease- ment may be used for compatible eco- nomic uses, including such activities as hunting and fishing, managed timber har- vest, water management, or periodic haying or grazing, if such use is specifi- cally permitted by the wetland reserve easement plan developed for the land under subsection (f) and is consistent with the long-term protection and enhancement of the wetland resources for which the easement was established. Page 2435 TITLE 16—CONSERVATION § 3865c (ii) Compatible use authorization In evaluating and authorizing a compat- ible economic use under clause (i), the Sec- retary shall— (I) request and consider the advice of the applicable State technical com- mittee established under section 3861(a) of this title about the 1 or more types of uses that may be authorized to be con- ducted on land subject to a wetland re- serve easement, including the frequency, timing, and intensity of those uses; (II) consider the ability of an author- ized use to facilitate the practical ad- ministration and management of that land; and (III) ensure that an authorized use fur- thers the functions and values for which the wetland reserve easement was estab- lished. (D) Reservation of grazing rights The Secretary may include in the terms and conditions of a wetland reserve ease- ment a provision under which the owner re- serves 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 man- agement plan that is consistent with the wetland reserve easement plan and has been reviewed, and modified as nec- essary, at least every 5 years; and (ii) the agreement provides for a com- mensurate reduction in the easement pay- ment to account for the grazing value, as determined by the Secretary. (6) Compensation (A) Determination (i) Permanent easements The 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 Ap- praisal Practice or an areawide market analysis or survey; (II) the amount corresponding to a geo- graphical cap, as determined by the Sec- retary in regulations; or (III) the offer made by the landowner. (ii) Other Compensation for a 30-year contract or 30-year wetland reserve easement shall be not less than 50 percent, but not more than 75 percent, of the compensation that would be paid for a permanent wetland reserve easement. (B) Form of payment Compensation for a wetland reserve ease- ment shall be provided by the Secretary in the form of a cash payment, in an amount determined under subparagraph (A). (C) Payment schedule (i) Easements valued at $500,000 or less For wetland reserve easements valued at $500,000 or less, the Secretary may provide payments in not more than 10 annual pay- ments. (ii) Easements valued at more than $500,000 For wetland reserve easements valued at more than $500,000, the Secretary may pro- vide payments in at least 5, but not more than 10 annual payments, except that, if the Secretary determines it would further the purposes of the program, the Secretary may make a lump-sum payment for such an easement. (c) Easement restoration (1) In general The Secretary shall provide financial assist- ance to owners of eligible land to carry out the establishment of conservation measures and practices and protect wetland functions and values, including necessary maintenance activities, as set forth in a wetland reserve easement plan developed for the eligible land under subsection (f). (2) Payments The Secretary shall— (A) in the case of a permanent wetland re- serve 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 The Secretary shall assist owners in com- plying with the terms and conditions of a wet- land reserve easement. (2) Contracts or agreements The Secretary may enter into 1 or more con- tracts with private entities or agreements with a State, nongovernmental organization, or Indian tribe to carry out necessary restora- tion, enhancement, or maintenance of a wet- land reserve easement if the Secretary deter- mines that the contract or agreement will ad- vance the purposes of the program. (e) Wetland reserve enhancement option The Secretary may enter into 1 or more agree- ments with a State (including a political sub- division or agency of a State), nongovernmental organization, or Indian tribe to carry out a spe- cial wetland reserve enhancement option that the Secretary determines would advance the purposes of program. Page 2436 TITLE 16—CONSERVATION § 3865d (f) Administration (1) Wetland reserve easement plan (A) In general The Secretary shall develop a wetland re- serve easement plan— (i) for any eligible land subject to a wet- land reserve easement; and (ii) that restores, protects, enhances, manages, maintains, and monitors the eli- gible land subject to the wetland reserve easements acquired under this section. (B) Practices and activities A wetland reserve easement plan under subparagraph (A) shall include practices and activities, including repair or replacement, that are necessary to restore and maintain the enrolled land and the functions and val- ues of the wetland subject to a wetland re- serve easement. (2) Alternative plant communities The Secretary, in coordination with State technical committees established under sec- tion 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 commu- nity as part of a wetland reserve easement plan on land subject to a wetland reserve ease- ment if that hydrologically appropriate native or alternative naturalized vegetative commu- nity shall— (A) substantially support or benefit migra- tory 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 The Secretary may delegate any of the management, monitoring, and enforcement responsibilities of the Secretary under this section to other Federal or State agencies that have the appropriate authority, exper- tise, and resources necessary to carry out such delegated responsibilities, or to con- servation organizations if the Secretary de- termines the organization has similar exper- tise and resources. (B) Limitation The Secretary shall not delegate any of the monitoring or enforcement responsibil- ities under this section to conservation or- ganizations. (4) Payments (A) Timing of payments The Secretary shall provide payment for obligations incurred by the Secretary under this section— (i) with respect to any easement restora- tion obligation under subsection (c), as soon as possible after the obligation is in- curred; and (ii) with respect to any annual easement payment obligation incurred by the Sec- retary, as soon as possible after October 1 of each calendar year. (B) Payments to others If an owner who is entitled to a payment under this section dies, becomes incom- petent, is otherwise unable to receive such payment, or is succeeded by another person or entity who renders or completes the re- quired performance, the Secretary shall make such payment, in accordance with reg- ulations prescribed by the Secretary and without regard to any other provision of law, in such manner as the Secretary deter- mines is fair and reasonable in light of all of the circumstances. (g) Application The relevant provisions of this section shall also apply to a 30-year contract. (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, 132 Stat. 4589.) Editorial Notes AMENDMENTS 2018—Subsec. (b)(3)(C). Pub. L. 115–334, § 2604(1)(A), in- serted ‘‘or improving water quality’’ before period at end. Subsec. (b)(5)(C). Pub. L. 115–334, § 2604(1)(B)(i), des- ignated existing provisions as cl. (i), inserted heading, inserted ‘‘water management,’’ after ‘‘managed timber harvest,’’, and added cl. (ii). Subsec. (b)(5)(D)(i)(III). Pub. L. 115–334, § 2604(1)(B)(ii), inserted ‘‘or a grazing management plan that is con- sistent with the wetland reserve easement plan and has been reviewed, and modified as necessary, at least every 5 years’’ after ‘‘under subsection (f)’’. Subsec. (f)(1). Pub. L. 115–334, § 2604(2)(A), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: ‘‘The Secretary shall develop a wetland reserve easement plan for any eligible land subject to a wetland reserve easement, which shall in- clude practices and activities necessary to restore, pro- tect, enhance, and maintain the enrolled land.’’ Subsec. (f)(2) to (4). Pub. L. 115–334, § 2604(2)(B), (C), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. § 3865d. Administration (a) Ineligible land The 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, in- cluding an agency or a subdivision of a State, or a unit of local government; (3) land subject to an easement or deed re- striction which, as determined by the Sec- retary, 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 sub- stances, permitted or existing rights of way, infrastructure development, or adjacent land uses. (b) Priority In evaluating applications under the program, the Secretary may give priority to land that is currently enrolled in the conservation reserve