Subject to subsection (b) and paragraph (6), the Secretary shall delineate, determine, and certify all wetlands located on subject land on a farm.
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.
On providing notice to affected persons, the Secretary shall-
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.
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.
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).
No person shall become ineligible under sectionof this title for program loans or payments under the following circumstances:
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, which, except as provided in paragraph (2), shall be conducted in the presence of the affected person.
The 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.
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 ineligibility provisions of sectionof 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.
The Secretary shall exempt from the ineligibility provisions of sectionof 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:
The Secretary shall exempt a person from the ineligibility provisions of sectionof 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:
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.
The Secretary may waive a person's ineligibility under sectionof 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.
A determination of the Secretary, or a designee of the Secretary, under paragraph (1) shall be reviewed by the applicable-
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 be actively restoring the subject wetland.
Any person who is determined to be ineligible for program benefits under sectionof 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.
Technical determinations, the development of restoration and mitigation plans, and monitoring activities under this section shall be made by the Natural Resources Conservation Service.
Using 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.
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.
Subsection (f)(2)(C) shall not apply to this subsection.
The 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.
1 See References in Text note below.
16 U.S.C. § 3822
REFERENCES IN TEXTSectionof 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, §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.
CODIFICATIONPub. 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.
AMENDMENTS2018-Subsec. (c). Pub. L. 115-334, §2102, designated existing provisions as par. (1), inserted heading, inserted ", which, except as provided in paragraph (2), shall be conducted in the presence of the affected person" before period at end, and added par. (2).Subsec. (j). Pub. L. 115-334, §2821(b), substituted "Natural Resources Conservation Service" for "National Resources Conservation Service".Subsec. (k)(1)(B). Pub. L. 115-334, §2103, amended subpar. (B) generally. Prior to amendment, text read as follows: "Of the funds of the Commodity Credit Corporation, 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 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."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 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, §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: "Sectionof this title shall not apply to a loan described in section 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 effect 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 of this title and graduated sanctions.Subsec. (i). Pub. L. 104-127, §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, §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, §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.
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 sectionof 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 sectionof this title.