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

(a) Delineation by the Secretary.

(1) In general. Subject to subsection (b) and paragraph (6), the Secretary must identify, determine, and certify every wetland on subject land on a farm.

(2) Wetland maps. The Secretary must show the wetlands on wetland maps. If a person asks, the Secretary must make a reasonable effort to determine on site whether a wetland exists before making the map.

(3) Certification. After notifying the affected people, the Secretary must (A) certify whether a map is sufficient to determine that a person is ineligible for program benefits under section 3821, and (B) give the affected people a chance to appeal that certification before it becomes final.

(4) How long certification lasts. A final certification remains valid and effective while the area is used for agriculture, or until the affected person asks the Secretary to review it.

(5) Review of mapping on appeal. When someone appeals the Secretary’s certification, the Secretary must review and certify the accuracy of the mapping for all land covered by the appeal. This is to make sure the land was accurately identified. Before deciding the appeal, the Secretary must inspect the subject land on the farm in person.

(6) Reliance on an earlier certified delineation. A person may not be harmed because the person acted based on an earlier wetland delineation certified by the Secretary. The Secretary may not later certify or identify that delineation again unless the person asks for review under paragraph (4).

(b) Exemptions. A person does not become ineligible under section 3821 for program loans or payments in the following circumstances:

(1) Production of an agricultural commodity on specified land. The production occurs on any of these:

(A) A converted wetland whose conversion began before December 23, 1985.

(B) A nontidal drainage or irrigation ditch dug in upland.

(C) A wet area created by a water-delivery system, irrigation, an irrigation system, or applying water for irrigation.

(D) A wetland where the farm or ranch owner or operator uses normal cropping or ranching practices to produce an agricultural commodity in a way consistent with the area, when production is possible because of a natural condition such as drought, and the producer did not destroy a natural wetland characteristic.

(E) An artificial lake or pond created by digging or diking nonwetland land to collect and hold water, and used mainly for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond.

(F) A wetland temporarily or incidentally created by nearby development activity.

(G) A converted wetland whose original conversion began before December 23, 1985, if the Secretary determines that its wetland characteristics returned after that date because (i) drainage, dikes, levees, or similar structures were not maintained, (ii) the land containing the wetland was not managed, or (iii) circumstances beyond the person’s control caused the return.

(H) A converted wetland if all of these conditions apply: (i) the Natural Resources Conservation Service determined that it had been manipulated to produce an agricultural commodity or forage before December 23, 1985, and it returned to wetland conditions through a voluntary restoration, enhancement, or creation action after that determination; (ii) the Service adequately documented the technical determinations about the earlier site conditions and the action; (iii) the Service approved the proposed conversion before it began; and (iv) the proposed conversion is limited so the resulting conditions will have at least the same wetland functions and values that existed before the voluntary action.

(2) Conversion of specified land. The conversion is of any of these:

(A) A qualifying artificial lake or pond described in paragraph (1)(E).

(B) A wetland temporarily or incidentally created by nearby development activity.

(C) A wetland described in paragraph (1)(D), where normal farming or ranching practices are used because of a natural condition and the producer does not destroy a natural wetland characteristic.

(D) A wetland previously identified as a converted wetland, if the original conversion began before December 23, 1985, and the Secretary determines that it returned to wetland status after that date because of the lack of maintenance, lack of land management, or circumstances beyond the person’s control described in paragraph (1)(G).

(E) A wetland meeting all four conditions in paragraph (1)(H): the Service determined that it had been manipulated for agricultural commodity or forage production before December 23, 1985, it returned through a voluntary restoration, enhancement, or creation action, the technical information was adequately documented, the proposed conversion was approved beforehand, and the conversion is limited so the conditions will have at least equivalent wetland functions and values.

(c) On-site inspection requirement.

(1) In general. The Secretary may not withhold program loans, payments, or benefits under this subchapter unless the Secretary has visited the subject land in person. Except as provided in paragraph (2), the affected person must be present.

(2) Exception. The Secretary may make the visit without the affected person if the Secretary made a reasonable effort to include that person.

(d) Identifying minimal-effect exemptions. To apply the minimal-effect exemption in subsection (f)(1), the Secretary must identify by regulation categorical minimal-effect exemptions for each region. These exemptions help people avoid violating the ineligibility rules in section 3821. The Secretary must also ensure that Agriculture Department employees who administer this subchapter receive appropriate training to apply the Secretary’s minimal-effect exemptions correctly.

(e) Nonwetlands. The Secretary must exempt an action on land from the ineligibility rules in section 3821 if the Secretary determines that at least one of these does not apply to the land: (1) the land is mostly made up of hydric soils; (2) surface water or groundwater covers or saturates it often and long enough to support mostly hydrophytic vegetation, meaning vegetation typically adapted to saturated soil; or (3) under normal conditions, the land supports mostly that vegetation.

(f) Minimal effect and mitigation. The Secretary must exempt a person from the ineligibility rules for an action connected with producing an agricultural commodity on a converted wetland, or converting a wetland, if the Secretary determines that at least one of these applies:

(1) The action, alone and together with all other similar actions the Secretary has authorized in the area, will have a minimal effect on the wetlands’ functional hydrological and biological value, including their value to waterfowl and wildlife.

(2) The person mitigates the wetland’s values, acreage, and functions by restoring a converted wetland, enhancing an existing wetland, or creating a new wetland. The work must (A) follow a wetland conservation plan; (B) happen before or at the same time as the action; (C) not be paid for by the Federal Government; (D) for restoration or enhancement, use no more than a one-for-one acreage ratio unless more land is needed to provide equivalent functions and values; (E) for creation, use more than a one-for-one acreage ratio if more land is needed to provide equivalent functions and values; (F) be in the same general area of the local watershed as the converted wetland; and (G) place the restored, enhanced, or created wetland under an easement that (i) is recorded in public land records, (ii) remains in force while the converted wetland remains in agricultural use or lacks its original wetland classification with equivalent functions and values, and (iii) prohibits changes that reduce the replacement wetland’s functions and values.

(3) The wetland was converted after December 23, 1985, but before November 28, 1990, and the producer mitigates its values, acreage, and functions under subparagraphs (A), (B), (C), (D), (F), and (G) of paragraph (2).

(4) A permit under section 1344 of title 33 authorized the action, and the converted wetland’s values, acreage, and functions were adequately mitigated for this subchapter.

(g) Mitigation appeals. A person has the right to appeal under section 3843 the imposition of a mitigation agreement that requires more than one-to-one acreage mitigation.

(h) Good-faith exemption.

(1) Exemption. The Secretary may waive a person’s ineligibility under section 3821 for program loans, payments, and benefits resulting from a wetland converted after November 28, 1990, or from producing an agricultural commodity on a converted wetland, if the Secretary determines that the person acted in good faith and did not intend to violate this subchapter.

(2) Reviewers. The determination must 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) Time to comply. If the Secretary determines that a person acted in good faith without intending to violate this subchapter, the Secretary must give the person a reasonable time, no longer than one year, to carry out the measures and practices needed to be considered actively restoring the wetland.

(i) Restoration. A person found ineligible for program benefits for one crop year will not be ineligible for a later crop year if, before that later crop year begins, the person fully restores the converted wetland’s earlier characteristics or otherwise mitigates the lost wetland values. The Secretary must determine the restoration or mitigation, which must restore, enhance, or create wetland values in the same general area of the local watershed as the converted wetland.

(j) Determinations, plans, and monitoring. The Natural Resources Conservation Service must make the technical determinations, develop restoration and mitigation plans, and carry out monitoring under this section.

(k) Mitigation banking.

(1) Program.

(A) In general. Using the authorities available to the Secretary, the Secretary must operate a mitigation-bank program or work with third parties to establish mitigation banks. The program must help people comply with this section while offsetting losses of wetland values and functions.

(B) Funding. Congress may appropriate $5,000,000 to the Secretary for each fiscal year from 2019 through 2023 to carry out this paragraph.

(2) Applicability. The rule in subsection (f)(2)(C), which concerns Federal expense, does not apply to this subsection.

(3) Policy and criteria. The Secretary must create the policy and criteria needed to let willing people use existing mitigation banks under this section or another authority for this section’s purposes, without requiring the Secretary to hold all or part of an easement in a mitigation bank.