§ 3822. — Delineation of wetlands; exemptions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC3822]
TITLE 16--CONSERVATION
CHAPTER 58--ERODIBLE LAND AND WETLAND CONSERVATION AND RESERVE PROGRAM
SUBCHAPTER III--WETLAND CONSERVATION
Sec. 3822. Delineation of wetlands; exemptions
(a) Delineation by Secretary
(1) In general
Subject to subsection (b) of this section 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 determination 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 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
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 certification 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 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 delineation
No 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) Exemptions
No 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
No 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.
(d) Identification of minimal effect exemptions
For purposes of applying the minimal effect exemption under
subsection (f)(1) of this section, 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) Nonwetlands
The 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; mitigation
The 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 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.
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\1\ See References in Text note below.
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(h) Good faith exemption
(1) Exemption described
The 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) Period for compliance
The 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 \2\ actively restoring the subject wetland.
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\2\ So in original. Probably should be followed by ``be''.
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(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 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
activities
Technical determinations, the development of restoration and
mitigation plans, and monitoring activities under this section shall be
made by the National \3\ Resources Conservation Service.
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\3\ So in original. Probably should be ``Natural''.
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(k) Mitigation banking program
Using authorities available to the Secretary, the Secretary 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.
(Pub. L. 99-198, title XII, Sec. 1222, Dec. 23, 1985, 99 Stat. 1508;
Pub. L. 101-624, title XIV, Sec. 1422, Nov. 28, 1990, 104 Stat. 3573;
Pub. L. 104-127, title III, Sec. 322, Apr. 4, 1996, 110 Stat. 987.)
References in Text
Section 3843 of this title, referred to in subsec. (g), was omitted
and a new section 3843 was added in the general amendment of subchapter
V of this chapter by Pub. L. 104-127, title III, Sec. 341, Apr. 4, 1996,
110 Stat. 1008. The new section 3843 does not relate to appeal
procedures.
Amendments
1996--Subsec. (a). Pub. L. 104-127, Sec. 322(a), added subsec. (a)
and struck out heading and text of former subsec. (a). Text consisted of
pars. (1) to (4) relating to delineation of wetlands.
Subsec. (b). Pub. L. 104-127, Sec. 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, Sec. 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, Sec. 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 effect and mitigation exemptions.
Subsec. (g). Pub. L. 104-127, Sec. 322(e), which directed
substitution of ``person'' for ``producer'', was executed by making the
substitution in two places.
Subsec. (h). Pub. L. 104-127, Sec. 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, Sec. 322(g), inserted before period 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, Sec. 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 determinations and monitoring.
Subsec. (k). Pub. L. 104-127, Sec. 322(i), added subsec. (k).
1990--Pub. L. 101-624 amended section generally, substituting
present provisions for provisions relating to eligibility for program
benefits in connection with production 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 production of commodities
having minimal wetland effect.
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.
Section Referred to in Other Sections
This section is referred to in sections 3821, 3831 of this title.
