§ 3822. Delineation of wetlands; exemptions

Footnotes

1. 1 See References in Text note below.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1985

   Food Security Act of 1985

   Pub. L. 99–198 title XII § 1222 · 99 Stat. 1354

   Enacted · 16 U.S.C. § 3822

   Pub. L. 99–198, title XII, § 1222, Dec. 23, 1985, 99 Stat. 1508

   Source evidence

   Code source credit
   Pub. L. 99–198, title XII, § 1222, Dec. 23, 1985, 99 Stat. 1508

   Enacted provision · exact public law section
   Sec. 1222. exemptions (a) No person shall become ineligible under section 1221 for program loans, payments, and benefits as the result of the production of a crop of an agricultural commodity on— (1) converted wetland if the conversion of such wetland was commenced before the date of enactment of this Act; (2) an artificial lake, pond, or wetland created by excavating or diking non-wetland 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; (3) a wet area created by a water delivery system, irrigation, irrigation system, or application of water for irrigation; or (4) wetland on which production of an agricultural commodity is possible as a result of a natural condition, such as drought, and without action by the producer that destroys a natural wetland characteristic. (b) Section 1221 shall not apply to a loan described in section 1221 made before the date of enactment of this Act. (c) The Secretary may exempt a person from section 1221 for any action associated with the production of an agricultural commodity on converted wetland if the effect of such action, individually and in connection with all other similar actions authorized by the Secretary in the area, on the hydrological and biological aspect of wetland is minimal.

2. 1990

   Conservation Program Improvements Act

   Pub. L. 101–624 title XIV § 1422 · 104 Stat. 3359

   1. Amended · 16 U.S.C. § 3822

      Pub. L. 101–624 amended section generally

   2. Substituted · 16 U.S.C. § 3822

      Pub. L. 101–624 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

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   SEC. 1422. DELINEATION OF WETLAND; EXEMPTIONS. Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended to read as follows: “SEC. 1222. 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 1221 and shall, in accordance with section 1243, 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 the date of enactment of the Food, Agriculture, Conservation, and Trade Act of 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 the enactment of this subsection 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 Regulations. 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 1221 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 subtitle unless the Secretary has conducted an on-site visit of the subject land. “(d) Prior Loans.— Section 1221 shall not apply to a loan described in section 1221 made before December 23, 1985. “(e) Nonwetlands.— The Secretary shall exempt from the ineligibility provisions of section 1221 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 1221 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 the date of enactment of this section, 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 1243, 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 1221 for program loans, payments, and benefits as the result of the conversion of a wetland subsequent to the date of enactment of this subsection, 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 1221 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 1221. “(2) Graduated sanctions.— If the Secretary determines that a person who has violated the provisions of section 1221 meets the requirements of paragraph (1), the Secretary shall, in lieu of applying the ineligibility provisions in section 1221, reduce by not less than $750 nor more than $10,000, depending on the seriousness of the violation, program benefits described in section 1221 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 the date of enactment of this section. “(i) Restoration.— Any person who is determined to be ineligible for program benefits under section 1221 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.”.

3. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(a) · 110 Stat. 888

   1. Added · 16 U.S.C. § 3822(a)

      Pub. L. 104–127, § 322(a), added subsec. (a)

   2. Struck · 16 U.S.C. § 3822(a)

      Pub. L. 104–127, § 322(a), struck out heading and text of former subsec. (a). Text consisted of pars. (1) to (4) relating to delineation of wetlands

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (a) Delineation of Wetlands.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by striking subsection (a) and inserting the following: “(a) Delineation by the Secretary.— “(1) In general.— Subject 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 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 1221; 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).”.

4. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(b) · 110 Stat. 888

   1. Added · 16 U.S.C. § 3822(b)

      Pub. L. 104–127, § 322(b), added subsec. (b)

   2. Struck · 16 U.S.C. § 3822(b)

      Pub. L. 104–127, § 322(b), 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

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (b) Exemptions.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by striking subsection (b) and inserting the following: “(b) Exemptions.— No person shall become ineligible under section 1221 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.”.

5. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(c) · 110 Stat. 888

   1. Added · 16 U.S.C. § 3822(d)

      Pub. L. 104–127, § 322(c), added subsec. (d)

   2. Struck · 16 U.S.C. § 3822(d)

      Pub. L. 104–127, § 322(c), 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.”

   Source evidence

   Code amendment note
   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: “Section 3821 of this title shall not apply to a loan described in section 3821 of this title made before December 23, 1985.”

   Enacted provision · exact public law section
   (c) Identification of Minimal Effect Exemptions.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by striking subsection (d) and inserting the following: “(d) Identification of Minimal Effect Exemptions.— 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 section 1221. The Secretary shall ensure that employees of the Department of Agriculture who administer this subtitle receive appropriate training to properly apply the minimal effect exemptions determined by the Secretary.”.

6. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(d) · 110 Stat. 888

   1. Added · 16 U.S.C. § 3822(f)

      Pub. L. 104–127, § 322(d), added subsec. (f)

   2. Struck · 16 U.S.C. § 3822(f)

      Pub. L. 104–127, § 322(d), struck out heading and text of former subsec. (f). Text consisted of pars. (1) to (3) relating to minimal effect and mitigation exemptions

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (d) Minimal Effect and Mitigation Exemptions.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by striking subsection (f) and inserting the following: “(f) Minimal Effect; Mitigation.— The Secretary shall exempt a person from the ineligibility provisions of section 1221 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 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) and the wetland values, acreage, and functions of the converted wetland were adequately mitigated for the purposes of this subtitle.”.

7. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(e) · 110 Stat. 888

   Substituted · 16 U.S.C. § 3822(g)

   Pub. L. 104–127, § 322(e), which directed substitution of “person” for “producer”, was executed by making the substitution in two places

   Source evidence

   Code amendment note
   Subsec. (g). Pub. L. 104–127, § 322(e), which directed substitution of “person” for “producer”, was executed by making the substitution in two places.

   Enacted provision · exact public law section
   (e) References to Producer.— Section 1222(g) of the Food Security Act of 1985 (16 U.S.C. 3822(g)) is amended by striking “producer” and inserting “person”.

8. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(f) · 110 Stat. 888

   1. Added · 16 U.S.C. § 3822(h)

      Pub. L. 104–127, § 322(f), added subsec. (h)

   2. Struck · 16 U.S.C. § 3822(h)

      Pub. L. 104–127, § 322(f), 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

   Source evidence

   Code amendment note
   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 3821 of this title and graduated sanctions.

   Enacted provision · exact public law section
   (f) Good Faith Exemption.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by striking subsection (h) and inserting the following: “(h) Good Faith Exemption.— “(1) Exemption described.— The Secretary may waive a person’s ineligibility under section 1221 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 subtitle. “(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 subtitle with a reasonable period, but not to exceed 1 year, during which to implement the measures and practices necessary to be considered to actively restoring the subject wetland.”.

9. 1996

   Federal Agriculture Improvement and Reform Act of 1996

   Pub. L. 104–127 § 322(g) · 110 Stat. 888

   Inserted · 16 U.S.C. § 3822(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”

   Source evidence

   Code amendment note
   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”.

   Enacted provision · exact public law section
   (g) Restoration.— Section 1222(i) of the Food Security Act of 1985 (16 U.S.C. 3822(i)) is amended by inserting before the period at the end the following: “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”.

10. 1996

    Federal Agriculture Improvement and Reform Act of 1996

    Pub. L. 104–127 § 322(h) · 110 Stat. 888

    1. Added · 16 U.S.C. § 3822(j)

       Pub. L. 104–127, § 322(h), added subsec. (j)

    2. Struck · 16 U.S.C. § 3822(j)

       Pub. L. 104–127, § 322(h), 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

    Source evidence

    Code amendment note
    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.

    Enacted provision · exact public law section
    (h) Determinations.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by striking subsection (j) and inserting the following: “(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 Resources Conservation Service.”.

11. 1996

    Federal Agriculture Improvement and Reform Act of 1996

    Pub. L. 104–127 § 322(i) · 110 Stat. 888

    Added · 16 U.S.C. § 3822(k)

    Pub. L. 104–127, § 322(i), added subsec. (k)

    Source evidence

    Code amendment note
    Subsec. (k). Pub. L. 104–127, § 322(i), added subsec. (k).

    Enacted provision · exact public law section
    (i) Mitigation Banking.— Section 1222 of the Food Security Act of 1985 (16 U.S.C. 3822) is amended by adding at the end the following: “(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) shall not apply to this subsection.”.

12. 2008

    Food, Conservation, and Energy Act of 2008

    Pub. L. 110–246 § 2003 · 122 Stat. 1651

    1. Added · 16 U.S.C. § 3822(h)(2); 16 U.S.C. § 3822(h)(3)

       Pub. L. 110–246, § 2003, added par. (2)

    2. Redesignated · 16 U.S.C. § 3822(h)(2); 16 U.S.C. § 3822(h)(3)

       Pub. L. 110–246, § 2003, redesignated former par. (2) as (3)

    3. Inserted · 16 U.S.C. § 3822(h)(2); 16 U.S.C. § 3822(h)(3)

       Pub. L. 110–246, § 2003, inserted “be” before “actively”

    Source evidence

    Code amendment note
    Subsec. (h)(2), (3). Pub. L. 110–246, § 2003, added par. (2), redesignated former par. (2) as (3), and inserted “be” before “actively”.

    Enacted provision · exact public law section
    SEC. 2003. REVIEW OF GOOD FAITH DETERMINATIONS RELATED TO WETLAND CONSERVATION.   Section 1222(h) of the Food Security Act of 1985 (16 U.S.C. 3822(h)) is amended— (1) by redesignating paragraph (2) as paragraph (3); (2) by inserting after paragraph (1) the following new paragraph: “(2) Eligible reviewers.— A 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.” ; and (3) in paragraph (3) (as redesignated by paragraph (1)), by inserting “be” before “actively”.

    Effective date note
    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 section 8701 of Title 7, Agriculture.

13. 2014

    Agricultural Act of 2014

    Pub. L. 113–79 title II § 2609 · 128 Stat. 649

    Amended · 16 U.S.C. § 3822(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.”

    Source evidence

    Code amendment note
    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.”

    Enacted provision · exact public law section
    SEC. 2609. WETLANDS MITIGATION.   Section 1222(k) of the Food Security Act of 1985 (16 U.S.C. 3822(k)) is amended to read as follows: “(k) Mitigation Banking.— “(1) Mitigation banking program.— “(A) In general.— 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. “(B) Funding.— 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. “(2) Applicability.— Subsection (f)(2)(C) shall not apply to this subsection. “(3) Policy and criteria.— 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.” .

14. 2018

    Agriculture Improvement Act of 2018

    Pub. L. 115–334 § 2102 · 132 Stat. 4490

    1. Amended · 16 U.S.C. § 3822(c)

       Pub. L. 115–334, § 2102, designated existing provisions as par. (1)

    2. Inserted · 16 U.S.C. § 3822(c)

       Pub. L. 115–334, § 2102, inserted heading

    3. Inserted · 16 U.S.C. § 3822(c)

       Pub. L. 115–334, § 2102, inserted “, which, except as provided in paragraph (2), shall be conducted in the presence of the affected person” before period at end

    4. Added · 16 U.S.C. § 3822(c)

       Pub. L. 115–334, § 2102, added par. (2)

    Source evidence

    Code amendment note
    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).

    Enacted provision · exact public law section
    SEC. 2102. WETLAND CONSERVATION.   Section 1222(c) of the Food Security Act of 1985 (16 U.S.C. 3822(c)) is amended— (1) by striking “No program” and inserting the following: “(1) In general.— No program” ; (2) in paragraph (1) (as so designated), by inserting “, which, except as provided in paragraph (2), shall be conducted in the presence of the affected person” before the period at the end; and (3) by adding at the end the following: “(2) Exception.— 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.” .

15. 2018

    Agriculture Improvement Act of 2018

    Pub. L. 115–334 § 2821(b) · 132 Stat. 4490

    Substituted · 16 U.S.C. § 3822(j)

    Pub. L. 115–334, § 2821(b), substituted “Natural Resources Conservation Service” for “National Resources Conservation Service”

    Source evidence

    Code amendment note
    Subsec. (j). Pub. L. 115–334, § 2821(b), substituted “Natural Resources Conservation Service” for “National Resources Conservation Service”.

    Enacted provision · exact public law section
    (b) Delineation of Wetlands; Exemptions.— Section 1222(j) of the Food Security Act of 1985 (16 U.S.C. 3822(j)) is amended by striking “National Resources Conservation Service” and inserting “Natural Resources Conservation Service”.

16. 2018

    Agriculture Improvement Act of 2018

    Pub. L. 115–334 § 2103 · 132 Stat. 4490

    Amended · 16 U.S.C. § 3822(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.”

    Source evidence

    Code amendment note
    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.”

    Enacted provision · exact public law section
    SEC. 2103. MITIGATION BANKING.   Section 1222(k)(1)(B) of the Food Security Act of 1985 (16 U.S.C. 3822(k)(1)(B)) is amended to read as follows: “(B) Authorization of appropriations.— 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.” .

28 of 28 references resolved to an enrolled provision