16 U.S.C. § 3822 — Delineation of wetlands; exemptions

Page 2352 TITLE 16—CONSERVATION § 3822 of 1989 and similar provisions enacted after Aug. 14, 1989. Subsec. (a)(3). Pub. L. 101–624, § 1421(b)(3)–(5), added par. (3). Subsec. (b). Pub. L. 101–624, § 1421(b)(6), added subsec. (b). Statutory Notes and Related Subsidiaries CHANGE OF NAME Consolidated Farm Service Agency effectively re- named Farm Service Agency by the amendments made to section 6932 of Title 7, Agriculture, by Pub. L. 115–334, title XII, § 12404(a), Dec. 20, 2018, 132 Stat. 4974. EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–127, title III, § 326, Apr. 4, 1996, 110 Stat. 992, provided that: ‘‘This subtitle [subtitle C (§§ 321–326) of title III of Pub. L. 104–127, enacting section 3823 of this title, amending this section and section 3822 of this title, and repealing former section 3823 of this title] and the amendments made by this subtitle shall become ef- fective 90 days after the date of enactment of this Act [Apr. 4, 1996].’’ SHORT TITLE Pub. L. 99–198, title XII, subtitle C, Dec. 23, 1985, 99 Stat. 1507, which is classified generally to this sub- chapter, is popularly known as the swampbuster provi- sions. § 3822. Delineation of wetlands; exemptions (a) Delineation by Secretary (1) In general Subject to subsection (b) and paragraph (6), the Secretary shall delineate, determine, and certify all wetlands located on subject land on a farm. (2) Wetland delineation maps The Secretary shall delineate wetlands on wetland delineation maps. On the request of a person, the Secretary shall make a reasonable effort to make an on-site wetland determina- tion prior to delineation. (3) Certification On providing notice to affected persons, the Secretary shall— (A) certify whether a map is sufficient for the purpose of making a determination of in- eligibility for program benefits under sec- tion 3821 of this title; and (B) provide an opportunity to appeal the certification prior to the certification be- coming final. (4) Duration of certification A final certification made under paragraph (3) shall remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certifi- cation by the Secretary. (5) Review of mapping on appeal In the case of an appeal of the Secretary’s certification, the Secretary shall review and certify the accuracy of the mapping of all land subject to the appeal to ensure that the sub- ject land has been accurately delineated. Prior to rendering a decision on the appeal, the Sec- retary shall conduct an on-site inspection of the subject land on a farm. (6) Reliance on prior certified delineation No person shall be adversely affected be- cause of having taken an action based on a previous certified wetland delineation by the Secretary. The delineation shall not be subject to a subsequent wetland certification or delin- eation by the Secretary, unless requested by the person under paragraph (4). (b) Exemptions No person shall become ineligible under sec- tion 3821 of this title for program loans or pay- ments under the following circumstances: (1) As the result of the production of an agri- cultural commodity on the following lands: (A) A converted wetland if the conversion of the wetland was commenced before De- cember 23, 1985. (B) Land that is a nontidal drainage or ir- rigation ditch excavated in upland. (C) A wet area created by a water delivery system, irrigation, irrigation system, or ap- plication of water for irrigation. (D) A wetland on which the owner or oper- ator of a farm or ranch uses normal cropping or ranching practices to produce an agricul- tural commodity in a manner that is con- sistent 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 wa- tering, fish production, irrigation, wildlife, fire control, flood control, cranberry grow- ing, or rice production, or as a settling pond. (F) A wetland that is temporarily or inci- dentally created as a result of adjacent de- velopment 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 re- turned 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 deter- mined by the Natural Resources Conserva- tion Service to have been manipulated for the production of an agricultural com- modity or forage prior to December 23, 1985, and was returned to wetland condi- tions through a voluntary restoration, en- hancement, or creation action subsequent to that determination; (ii) technical determinations regarding the prior site conditions and the restora- tion, 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 Con- servation Service prior to implementation; and Page 2353 TITLE 16—CONSERVATION § 3822 (iv) the extent of the proposed conver- sion is limited so that the conditions will be at least equivalent to the wetland func- tions and values that existed prior to im- plementation of the voluntary wetland restoration, enhancement, or creation ac- tion. (2) For the conversion of the following: (A) An artificial lake or pond created by excavating or diking land that is not a wet- land to collect and retain water and that is used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice pro- duction, or as a settling pond. (B) A wetland that is temporarily or inci- dentally created as a result of adjacent de- velopment activity. (C) A wetland on which the owner or oper- ator of a farm or ranch uses normal cropping or ranching practices to produce an agricul- tural commodity in a manner that is con- sistent 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 De- cember 23, 1985), but that the Secretary de- termines 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 re- turned to wetland conditions through a voluntary restoration, enhancement, or creation action subsequent to that deter- mination; (ii) technical determinations regarding the prior site conditions and the restora- tion, 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 Con- servation Service prior to implementation; and (iv) the extent of the proposed conver- sion is limited so that the conditions will be at least equivalent to the wetland func- tions and values that existed prior to im- plementation of the voluntary wetland restoration, enhancement, or creation ac- tion. (c) On-site inspection requirement (1) In general No program loans, payments, or benefits shall be withheld from a person under this sub- chapter unless the Secretary has conducted an on-site visit of the subject land, which, except as provided in paragraph (2), shall be con- ducted in the presence of the affected person. (2) Exception The Secretary may conduct an on-site visit under paragraph (1) without the affected per- son present if the Secretary has made a rea- sonable effort to include the presence of the affected person at the on-site visit. (d) Identification of minimal effect exemptions For purposes of applying the minimal effect exemption under subsection (f)(1), the Secretary shall identify by regulation categorical minimal effect exemptions on a regional basis to assist persons in avoiding a violation of the ineligi- bility provisions of section 3821 of this title. The Secretary shall ensure that employees of the De- partment of Agriculture who administer this subchapter receive appropriate training to prop- erly apply the minimal effect exemptions deter- mined by the Secretary. (e) Nonwetlands The Secretary shall exempt from the ineligi- bility 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 du- ration 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; mitigation The Secretary shall exempt a person from the ineligibility provisions of section 3821 of this title for any action associated with the produc- tion of an agricultural commodity on a con- verted 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 connec- tion with all other similar actions authorized by the Secretary in the area, will have a mini- mal 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 wet- land, or the creation of a new wetland, and the restoration, enhancement, or creation is— (A) in accordance with a wetland conserva- tion plan; (B) in advance of, or concurrent with, the action; (C) not at the expense of the Federal Gov- ernment; (D) in the case of enhancement or restora- tion of wetlands, on not greater than a 1-for- 1 acreage basis unless more acreage is need- ed to provide equivalent functions and val- Page 2354 TITLE 16—CONSERVATION § 3822 1 See References in Text note below. ues that will be lost as a result of the wet- land 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 func- tions 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 wet- land; and (G) with respect to the restored, enhanced, or created wetland, made subject to an ease- ment that— (i) is recorded on public land records; (ii) remains in force for as long as the converted wetland for which the restora- tion, enhancement, or creation to be miti- gated remains in agricultural use or is not returned to its original wetland classifica- tion with equivalent functions and values; and (iii) prohibits making alterations to the restored, enhanced, or created wetland that lower the wetland’s functions and val- ues. (3) The wetland was converted after Decem- ber 23, 1985, but before November 28, 1990, and the wetland values, acreage, and functions are mitigated by the producer through the re- quirements 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) Mitigation appeals A person shall be afforded the right to appeal, under section 3843 1 of this title, the imposition of a mitigation agreement requiring greater than one-to-one acreage mitigation to which the person is subject. (h) Good faith exemption (1) Exemption described The Secretary may waive a person’s ineligi- bility under section 3821 of this title for pro- gram loans, payments, and benefits as the re- sult of the conversion of a wetland subsequent to November 28, 1990, or the production of an agricultural commodity on a converted wet- land, if the Secretary determines that the per- son has acted in good faith and without intent to violate this subchapter. (2) Eligible reviewers A determination of the Secretary, or a des- ignee of the Secretary, under paragraph (1) shall be reviewed by the applicable— (A) State Executive Director, with the technical concurrence of the State Conserva- tionist; or (B) district director, with the technical concurrence of the area conservationist. (3) Period for compliance The Secretary shall provide a person who the Secretary determines has acted in good faith and without intent to violate this sub- chapter with a reasonable period, but not to exceed 1 year, during which to implement the measures and practices necessary to be consid- ered to be actively restoring the subject wet- land. (i) Restoration Any person who is determined to be ineligible for program benefits under section 3821 of this title for any crop year shall not be ineligible for such program benefits under such section for any subsequent crop year if, prior to the begin- ning of such subsequent crop year, the person has fully restored the characteristics of the con- verted wetland to its prior wetland state or has otherwise mitigated for the loss of wetland val- ues, as determined by the Secretary, through the restoration, enhancement, or creation of wetland values in the same general area of the local watershed as the converted wetland. (j) Determinations; restoration and mitigation plans; monitoring activities Technical determinations, the development of restoration and mitigation plans, and moni- toring activities under this section shall be made by the Natural Resources Conservation Service. (k) Mitigation banking (1) Mitigation banking program (A) In general Using authorities available to the Sec- retary, the Secretary shall operate a pro- gram or work with third parties to establish mitigation banks to assist persons in com- plying with the provisions of this section while mitigating any loss of wetland values and functions. (B) Authorization of appropriations There is authorized to be appropriated to the Secretary to carry out this paragraph $5,000,000 for each of fiscal years 2019 through 2023. (2) Applicability Subsection (f)(2)(C) shall not apply to this subsection. (3) Policy and criteria The Secretary shall develop the appropriate policy and criteria that will allow willing per- sons to access existing mitigation banks, under this section or any other authority, that will serve the purposes of this section without requiring the Secretary to hold an easement, in whole or in part, in a mitigation bank. (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.) Editorial Notes REFERENCES IN TEXT Section 3843 of this title, referred to in subsec. (g), was omitted and a new section 3843 was added in the Page 2355 TITLE 16—CONSERVATION § 3830 general amendment of subchapter V of this chapter by Pub. L. 104–127, title III, § 341, Apr. 4, 1996, 110 Stat. 1008. The new section 3843, which did not relate to appeal procedures, was subsequently repealed by Pub. L. 113–79, title II, § 2710(a), Feb. 7, 2014, 128 Stat. 770. CODIFICATION Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246. AMENDMENTS 2018—Subsec. (c). Pub. L. 115–334, § 2102, designated ex- isting provisions as par. (1), inserted heading, inserted ‘‘, which, except as provided in paragraph (2), shall be conducted in the presence of the affected person’’ be- fore period at end, and added par. (2). Subsec. (j). Pub. L. 115–334, § 2821(b), substituted ‘‘Nat- ural Resources Conservation Service’’ for ‘‘National Resources Conservation Service’’. Subsec. (k)(1)(B). Pub. L. 115–334, § 2103, amended sub- par. (B) generally. Prior to amendment, text read as follows: ‘‘Of the funds of the Commodity Credit Cor- poration, the Secretary shall use $10,000,000, to remain available until expended, to carry out this paragraph.’’ 2014—Subsec. (k). Pub. L. 113–79 amended subsec. (k) generally. Prior to amendment, text read as follows: ‘‘Using authorities available to the Secretary, the Sec- retary may operate a pilot program for mitigation banking of wetlands to assist persons to increase the efficiency of agricultural operations while protecting wetland functions and values. Subsection (f)(2)(C) of this section shall not apply to this subsection.’’ 2008—Subsec. (h)(2), (3). Pub. L. 110–246, § 2003, added par. (2), redesignated former par. (2) as (3), and inserted ‘‘be’’ before ‘‘actively’’. 1996—Subsec. (a). Pub. L. 104–127, § 322(a), added sub- sec. (a) and struck out heading and text of former sub- sec. (a). Text consisted of pars. (1) to (4) relating to de- lineation of wetlands. Subsec. (b). Pub. L. 104–127, § 322(b), added subsec. (b) and struck out heading and text of former subsec. (b). Text consisted of pars. (1)(A) to (D) and (2)(A) and (B) relating to exemptions. Subsec. (d). Pub. L. 104–127, § 322(c), added subsec. (d) and struck out heading and text of former subsec. (d). Text read as follows: ‘‘Section 3821 of this title shall not apply to a loan described in section 3821 of this title made before December 23, 1985.’’ Subsec. (f). Pub. L. 104–127, § 322(d), added subsec. (f) and struck out heading and text of former subsec. (f). Text consisted of pars. (1) to (3) relating to minimal ef- fect and mitigation exemptions. Subsec. (g). Pub. L. 104–127, § 322(e), which directed substitution of ‘‘person’’ for ‘‘producer’’, was executed by making the substitution in two places. Subsec. (h). Pub. L. 104–127, § 322(f), added subsec. (h) and struck out heading and text of former subsec. (h). Text consisted of pars. (1) to (3) relating to good faith exemptions to ineligibility under section 3821 of this title and graduated sanctions. Subsec. (i). Pub. L. 104–127, § 322(g), inserted before pe- riod at end ‘‘or has otherwise mitigated for the loss of wetland values, as determined by the Secretary, through the restoration, enhancement, or creation of wetland values in the same general area of the local watershed as the converted wetland’’. Subsec. (j). Pub. L. 104–127, § 322(h), added subsec. (j) and struck out heading and text of former subsec. (j). Text provided that technical determinations and the development of restoration and mitigation plans be made through agreement of local representative of Soil Conservation Service and representative of the Fish and Wildlife Service and required reporting of deter- minations and monitoring. Subsec. (k). Pub. L. 104–127, § 322(i), added subsec. (k). 1990—Pub. L. 101–624 amended section generally, sub- stituting present provisions for provisions relating to eligibility for program benefits in connection with pro- duction of crops on certain wetlands, making program ineligibility inapplicable to pre-Dec. 23, 1985, section 3821 loans, and providing for personal exemptions from program ineligibility for actions associated with pro- duction of commodities having minimal wetland effect. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–127 effective 90 days after Apr. 4, 1996, see section 326 of Pub. L. 104–127, set out as a note under section 3821 of this title. § 3823. Affiliated persons If a person is affected by a reduction in bene- fits under section 3821 of this title and the af- fected person is affiliated with other persons for the purpose of receiving the benefits, the bene- fits 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.) Editorial Notes PRIOR PROVISIONS A prior section 3823, Pub. L. 99–198, title XII, § 1223, Dec. 23, 1985, 99 Stat. 1508; Pub. L. 101–624, title XIV, § 1423, Nov. 28, 1990, 104 Stat. 3576; Pub. L. 102–237, title II, § 204(4), Dec. 13, 1991, 105 Stat. 1855, related to con- sultation with Secretary of the Interior, prior to repeal by Pub. L. 104–127, title III, §§ 323, 326, Apr. 4, 1996, 110 Stat. 992, effective 90 days after Apr. 4, 1996. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Apr. 4, 1996, see section 326 of Pub. L. 104–127, set out as an Effective Date of 1996 Amendment note under section 3821 of this title. § 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 con- sidered to be wetland for purposes of this sub- chapter. (Pub. L. 99–198, title XII, § 1224, as added Pub. L. 101–624, title XIV, § 1424, Nov. 28, 1990, 104 Stat. 3576.) SUBCHAPTER IV—AGRICULTURAL RESOURCES CONSERVATION PROGRAM PART I—COMPREHENSIVE CONSERVATION ENHANCEMENT PROGRAM SUBPART A—GENERAL PROVISIONS § 3830. Repealed. Pub. L. 113–79, title II, § 2701, Feb. 7, 2014, 128 Stat. 766 Section, Pub. L. 99–198, title XII, § 1230, as added Pub. L. 101–624, title XIV, § 1431(2), Nov. 28, 1990, 104 Stat.