§3822. Delineation of wetlands; exemptions
(a) Delineation of wetlands
(1) Wetland delineation maps
The Secretary shall delineate wetlands on wetland delineation maps. The Secretary shall make a reasonable effort to make an on-site wetland determination whenever requested by an owner or operator, prior to such delineation.
(2) Certification
Upon providing notice to affected owners or operators, the Secretary shall certify each such map as sufficient for the purpose of making determinations of ineligibility for program benefits under section 3821 of this title and shall, in accordance with section 3843 of this title, provide an opportunity to appeal such delineations to the Secretary prior to making such certification final. In the case of an appeal, the Secretary shall review and certify the accuracy of the mapping of all lands subject to the appeal mapped prior to November 28, 1990, for the purpose of wetland delineations to ensure that wetland on such lands has been accurately delineated. Prior to rendering a decision on any such appeal, the Secretary shall conduct an on-site inspection of the subject land. The Secretary shall not be required to provide an opportunity for an appeal of delineations completed prior to November 28, 1990, that are not changed, and for which an appeal had already occurred and, in connection with such previous appeal, an on-site determination had been conducted.
(3) Public list
The Secretary shall maintain a public listing of all such certifications that have been completed.
(4) Periodic review and update
The Secretary shall provide by regulation a process for the periodic review and update of such wetland delineations as the Secretary deems appropriate. No person shall be adversely affected because of having taken an action based on a previous determination by the Secretary.
(b) Exemptions
No person shall become ineligible under section 3821 of this title for program loans, payments, and benefits-
(1) as the result of the production of an agricultural commodity on-
(A) converted wetland if the conversion of such wetland was commenced before December 23, 1985;
(B) an artificial lake, pond, or wetland created by excavating or diking nonwetland to collect and retain water for purposes such as water for livestock, fish production, irrigation (including subsurface irrigation), a settling basin, cooling, rice production, or flood control;
(C) a wet area created by a water delivery system, irrigation, irrigation system, or application of water for irrigation; or
(D) 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 such 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; or
(2) for the conversion of-
(A) an artificial lake, pond, or wetland created by excavating or diking nonwetland to collect and retain water for purposes such as water for livestock, fish production, irrigation (including subsurface irrigation), a settling basin, cooling, rice production, or flood control; or
(B) a wet area created by a water delivery system, irrigation, irrigation system, or the application of water for irrigation.
(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) Prior loans
Section 3821 of this title shall not apply to a loan described in section 3821 of this title made before December 23, 1985.
(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, as determined by the Secretary-
(1) such 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 wetland, including the value to waterfowl and wildlife;
(2) such wetland has been frequently cropped prior to the date of such action and the wetland values, acreage, and functions are mitigated by the producer through the restoration of a converted wetland, the conversion of which occurred or was commenced prior to December 23, 1985, where such restoration is-
(A) in accordance with a restoration plan;
(B) in advance of, or concurrent with, such action;
(C) not at the expense of the Federal Government;
(D) on not greater than a one-for-one acreage basis unless more acreage is needed to provide equivalent functions and values that will be lost as a result of such wetland conversion to be mitigated;
(E) on lands in the same general area of the local watershed as the converted wetland; and
(F) with respect to such restored wetland, made subject to an easement to be recorded on public land records, and which shall remain in force for as long as the converted wetland for which the restoration is to mitigate remains in agricultural use or is not returned to its original wetland classification with equivalent functions and values, and which easement prohibits making alterations to such restored wetland that lower the restored wetland's functions and values; or
(3) such wetland was converted subsequent to December 23, 1985, but prior to November 28, 1990, and the wetland values, acreage, and functions are mitigated by the producer through the restoration of a converted wetland, the conversion of which occurred or was commenced prior to December 23, 1985, if such restoration meets the requirements of subparagraphs (A), (B), (C), (D), (E), and (F) of paragraph (2).
(g) Mitigation appeals
A producer shall be afforded the right to appeal, under section 3843 of this title, the imposition of a mitigation agreement requiring greater than one-to-one acreage mitigation to which the producer is subject.
(h) Good faith exemption; graduated sanctions
(1) Good faith exemption
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 subsequent to December 23, 1985, may be reduced under paragraph (2) if-
(A) such person is actively restoring the wetland under an agreement entered into with the Secretary to fully restore the characteristics of the converted wetland to its prior wetland state, or such person has previously restored the characteristics of the converted wetland to its prior wetland state as determined by the Secretary; and
(B) the Secretary determines that-
(i) the person has not otherwise violated the provisions of section 3821 of this title in the previous 10-year period on a farm; and
(ii) such person converted a wetland, or produced an agricultural commodity on a converted wetland, in good faith and without the intent to violate the provisions of section 3821 of this title.
(2) Graduated sanctions
If the Secretary determines that a person who has violated the provisions of section 3821 of this title meets the requirements of paragraph (1), the Secretary shall, in lieu of applying the ineligibility provisions in section 3821 of this title, reduce by not less than $750 nor more than $10,000, depending on the seriousness of the violation, program benefits described in section 3821 of this title that such person would otherwise be eligible to receive in a crop year.
(3) Relief
The relief allowed by this subsection shall include the restoration of benefits withheld for violations that occurred prior to November 28, 1990.
(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.
(j) Determinations; restoration and mitigation plans; reporting; monitoring activities
(1) Determinations; plans
Technical determinations and the development of restoration and mitigation plans under this section shall be made through the agreement of the local representative of the Soil Conservation Service and a representative of the Fish and Wildlife Service. If agreement cannot be reached at the local level under the preceding sentence, such determinations shall be referred to the State Conservationist, who in making a determination under this paragraph, shall consult with the Fish and Wildlife Service.
(2) Report of determinations
The State Conservationist and a representative of the Fish and Wildlife Service shall report to their respective national offices concerning all determinations made under paragraph (1) at the State level as a result of an agreement not being reached at the local level.
(3) Monitoring activities
The Secretary shall conduct such monitoring activities as are necessary to ensure the success and effectiveness of the wetland restorations undertaken pursuant to this section.
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References in Text
November 28, 1990, referred to in subsec. (a)(2) before "that are not changed", was in the original "the enactment of this subsection", and was translated as meaning the date of enactment of
November 28, 1990, referred to in subsecs. (f)(3) and (h)(3), was in the original "the date of enactment of this section", and was translated as meaning the date of enactment of
Amendments
1990-
Section Referred to in Other Sections
This section is referred to in sections 3821, 3823 of this title.