Delineation of wetlands; exemptions

16 U.S.C. § 3822
in effect
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(a) Delineation by Secretary(1) In generalSubject 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 mapsThe 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 determination prior to delineation. (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 certificationA 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 certification by the Secretary. (5) Review of mapping on appealIn 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 subject land has been accurately delineated. Prior to rendering a decision on the appeal, the Secretary shall conduct an on-site inspection of the subject land on a farm. (6) Reliance on prior certified delineationNo person shall be adversely affected because 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 delineation by the Secretary, unless requested by the person under paragraph (4). (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 (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. (c) On-site inspection requirement(1) In generalNo program loans, payments, or benefits shall be withheld from a person under this subchapter unless the Secretary has conducted an on-site visit of the subject land, which, except as provided in paragraph (2), shall be conducted in the presence of the affected person. (2) ExceptionThe Secretary may conduct an on-site visit under paragraph (1) without the affected person present if the Secretary has made a reasonable effort to include the presence of the affected person at the on-site visit. (d) Identification of minimal effect exemptionsFor 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 ineligibility provisions of section 3821 of this title. The Secretary shall ensure that employees of the Department of Agriculture who administer this subchapter receive appropriate training to properly apply the minimal effect exemptions determined by the Secretary. (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; (C) not at the expense of the Federal Government; (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) Mitigation appealsA person shall be afforded the right to appeal, under section 3843 11 See References in Text note below. 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 describedThe Secretary may waive a person’s ineligibility under section 3821 of this title for program loans, payments, and benefits as the result of the conversion of a wetland subsequent to November 28, 1990, or the production of an agricultural commodity on a converted wetland, if the Secretary determines that the person has acted in good faith and without intent to violate this subchapter. (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 complianceThe Secretary shall provide a person who the Secretary determines has acted in good faith and without intent to violate this subchapter with a reasonable period, but not to exceed 1 year, during which to implement the measures and practices necessary to be considered to be actively restoring the subject wetland. (i) RestorationAny 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 beginning of such subsequent crop year, the person has fully restored the characteristics of the converted wetland to its prior wetland state 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. (j) Determinations; restoration and mitigation plans; monitoring activitiesTechnical determinations, the development of restoration and mitigation plans, and monitoring activities under this section shall be made by the Natural Resources Conservation Service. (k) Mitigation banking(1) Mitigation banking program(A) In generalUsing authorities available to the Secretary, the Secretary shall operate a program or work with third parties to establish mitigation banks to assist persons in complying with the provisions of this section while mitigating any loss of wetland values and functions. (B) Authorization of appropriationsThere 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) ApplicabilitySubsection (f)(2)(C) shall not apply to this subsection. (3) Policy and criteriaThe Secretary shall develop the appropriate policy and criteria that will allow willing persons 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.

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