Collapse to view only § 3821. Program ineligibility

§ 3821. Program ineligibility
(a) Production on converted wetlandExcept as provided in this subchapter and notwithstanding any other provision of law, any person who in any crop year produces an agricultural commodity on converted wetland, as determined by the Secretary, shall be—
(1) in violation of this section; and
(2) ineligible for loans or payments in an amount determined by the Secretary to be proportionate to the severity of the violation.
(b) Ineligibility for certain loans and paymentsIf a person is determined to have committed a violation under subsection (a) during a crop year, the Secretary shall determine which of, and the amount of, the following loans and payments for which the person shall be ineligible:
(1) Contract payments under a production flexibility contract, marketing assistance loans, and any type of price support or payment made available under the Agricultural Market Transition Act [7 U.S.C. 7201 et seq.], the Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.), or any other Act.
(2) A loan made or guaranteed under the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) or any other provision of law administered by the Consolidated Farm Service Agency,1
1 See Change of Name note below.
if the Secretary determines that the proceeds of the loan will be used for a purpose that will contribute to conversion of a wetland (other than as provided in this subchapter) to produce an agricultural commodity.
(3) During the crop year:
(A)
(B) A payment under any other provision of subchapter IV.
(C) A payment under section 2201 or 2202 of this title.
(D) A payment, loan, or other assistance under section 1003 or 1006a of this title.
(c) Ineligibility for crop insurance premium assistance
(1) Requirements
(A) In general

If a person is determined to have committed a violation under subsection (a) or (d) during a crop year, the person shall be ineligible to receive any payment of any portion of premium paid by the Federal Crop Insurance Corporation for a plan or policy of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.) pursuant to this subsection.

(B) ApplicabilityIneligibility under this subsection shall—
(i) only apply to reinsurance years subsequent to the date of a final determination of a violation, including all administrative appeals; and
(ii) not apply to the existing reinsurance year or any reinsurance year prior to the date of the final determination.
(2) Conversions
(A) In general

Notwithstanding paragraph (1), ineligibility for crop insurance premium assistance shall apply in accordance with this paragraph.

(B) New conversionsIn the case of a wetland that the Secretary determines was converted after February 7, 2014
(i) the person shall be ineligible to receive crop insurance premium subsidies in subsequent reinsurance years unless the Secretary determines that an exemption pursuant to section 3822 of this title applies; or
(ii) for any violation that the Secretary determines impacts less than 5 acres of an entire farm, the person may pay a contribution in an amount equal to 150 percent of the cost of mitigation, as determined by the Secretary, to the fund described in section 3841(f) of this title for wetland restoration in lieu of ineligibility to receive crop insurance premium assistance.
(C) Prior conversions

In the case of a wetland that the Secretary determines was converted prior to February 7, 2014, ineligibility under this subsection shall not apply.

(D) Conversions and new policies or plans of insuranceIn the case of an agricultural commodity for which an individual policy or plan of insurance is available for the first time to the person after February 7, 2014
(i) ineligibility shall apply only to conversions that take place after the date on which the policy or plan of insurance first becomes available to the person; and
(ii) the person shall take such steps as the Secretary determines appropriate to mitigate any prior conversion in a timely manner but not to exceed 2 reinsurance years.
(3) Limitations
(A) Mitigation required

Except as otherwise provided in this paragraph, a person subject to a final determination, including all administrative appeals, of a violation described in subsection (d) shall have 1 reinsurance year to initiate a mitigation plan to remedy the violation, as determined by the Secretary, before becoming ineligible under this subsection in the following reinsurance year to receive any payment of any portion of the premium paid by the Federal Crop Insurance Corporation for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.).

(B) Persons covered for the first time

Notwithstanding the requirements of paragraph (1), in the case of a person that is subject to this subsection for the first time solely due to the amendment made by section 2611(b) of the Agricultural Act of 2014, the person shall have 2 reinsurance years after the reinsurance year in which a final determination is made, including all administrative appeals, of a violation described in this subsection to take such steps as the Secretary determines appropriate to remedy or mitigate the violation in accordance with this subsection.

(C) Good faith

If the Secretary determines that a person subject to a final determination, including all administrative appeals, of a violation described in this subsection acted in good faith and without intent to commit a violation described in this subsection as described in section 3822(h) of this title, the person shall have 2 reinsurance years to take such steps as the Secretary determines appropriate to remedy or mitigate the violation in accordance with this subsection.

(D) Tenant relief
(i) In generalIf a tenant is determined to be ineligible for payments and other benefits under this subsection, the Secretary may limit the ineligibility only to the farm that is the basis for the ineligibility determination if the tenant has established, to the satisfaction of the Secretary that—(I) the tenant has made a good faith effort to meet the requirements of this section, including enlisting the assistance of the Secretary to obtain a reasonable plan for restoration or mitigation for the farm;(II) the landlord on the farm refuses to comply with the plan on the farm; and(III) the Secretary determines that the lack of compliance is not a part of a scheme or device to avoid the compliance.
(ii) Report

The Secretary shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate an annual report concerning the ineligibility determinations limited during the previous 12-month period under this subparagraph.

(E) Certificate of compliance
(i) In general

Beginning with the first full reinsurance year immediately following February 7, 2014, all persons seeking eligibility for the payment of a portion of the premium paid by the Federal Crop Insurance Corporation for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.) shall provide certification of compliance with this section as determined by the Secretary.

(ii) Timely evaluationThe Secretary shall evaluate the certification in a timely manner and—(I) a person who has properly complied with certification shall be held harmless with regard to eligibility during the period of evaluation; and(II) if the Secretary fails to evaluate the certification in a timely manner and the person is subsequently found to be in violation of this subsection, ineligibility shall not apply to the person for that violation.
(iii) Equitable contribution(I) In generalIf a person fails to notify the Secretary as required and is subsequently found to be in violation of this subsection, the Secretary shall—(aa) determine the amount of an equitable contribution to conservation by the person for the violation; and(bb) deposit the contribution in the fund described in section 3841(f) of this title.(II) Limitation

The contribution shall not exceed the total of the portion of the premium paid by the Federal Crop Insurance Corporation for a policy or plan of insurance for all years the person is determined to have been in violation subsequent to the date on which certification was first required under this subparagraph.

(4) Duties of the Secretary
(A) In general

In carrying out this subsection, the Secretary shall use existing processes and procedures for certifying compliance.

(B) Responsibility

The Secretary, acting through the agencies of the Department of Agriculture, shall be solely responsible for determining whether a producer is eligible to receive crop insurance premium subsidies in accordance with this subsection.

(C) Limitation

The Secretary shall ensure that no agent, approved insurance provider, or employee or contractor of an agency or approved insurance provider, bears responsibility or liability for the eligibility of an insured producer under this subsection, other than in cases of misrepresentation, fraud, or scheme and device.

(d) Wetland conversion
(1) In general

Except as provided in section 3822 of this title and notwithstanding any other provision of law, any person who in any crop year beginning after November 28, 1990, converts a wetland by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making the production of an agricultural commodity possible on such converted wetland shall be ineligible for those payments, loans, or programs specified in subsection (b) for that crop year and all subsequent crop years.

(2) Duty of the Secretary

No person shall become ineligible under paragraph (1) if the Secretary determines that an exemption under section 3822(b) of this title applies to that person.

(e) Prior loans

This section shall not apply to a loan described in subsection (b) made before December 23, 1985.

(f) Wetland

The Secretary shall have, and shall not delegate to any private person or entity, authority to determine whether a person has complied with this subchapter.

(Pub. L. 99–198, title XII, § 1221, Dec. 23, 1985, 99 Stat. 1507; Pub. L. 101–624, title XIV, § 1421(b), Nov. 28, 1990, 104 Stat. 3572; Pub. L. 102–237, title II, § 204(3), Dec. 13, 1991, 105 Stat. 1855; Pub. L. 102–552, title III, § 308(a), Oct. 28, 1992, 106 Stat. 4116; Pub. L. 104–127, title III, § 321, Apr. 4, 1996, 110 Stat. 986; Pub. L. 107–171, title II, § 2002(b), May 13, 2002, 116 Stat. 233; Pub. L. 113–79, title II, § 2611(b), Feb. 7, 2014, 128 Stat. 763; Pub. L. 115–334, title II, §§ 2101, 2301(d)(1)(B), Dec. 20, 2018, 132 Stat. 4530, 4553.)
§ 3822. Delineation of wetlands; exemptions
(a) Delineation by 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) CertificationOn providing notice to affected persons, the Secretary shall—
(A)
(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) ExemptionsNo 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
(1) In general

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.

(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.

(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 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) NonwetlandsThe 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; mitigationThe 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

1 See References in Text note below.
of this title, the imposition of a mitigation agreement requiring greater than one-to-one acreage mitigation to which the person is subject.

(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) Eligible reviewersA 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.
(3) 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 be actively restoring the subject wetland.

(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 Natural Resources Conservation Service.

(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) 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.

(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.

(Pub. L. 99–198, title XII, § 1222, Dec. 23, 1985, 99 Stat. 1508; Pub. L. 101–624, title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573; Pub. L. 104–127, title III, § 322, Apr. 4, 1996, 110 Stat. 987; Pub. L. 110–234, title II, § 2003, May 22, 2008, 122 Stat. 1028; Pub. L. 110–246, § 4(a), title II, § 2003, June 18, 2008, 122 Stat. 1664, 1756; Pub. L. 113–79, title II, § 2609, Feb. 7, 2014, 128 Stat. 761; Pub. L. 115–334, title II, §§ 2102, 2103, 2821(b), Dec. 20, 2018, 132 Stat. 4530, 4602.)
§ 3823. Affiliated persons

If a person is affected by a reduction in benefits under section 3821 of this title and the affected person is affiliated with other persons for the purpose of receiving the benefits, the benefits of each affiliated person shall be reduced under section 3821 of this title in proportion to the interest held by the affiliated person.

(Pub. L. 99–198, title XII, § 1223, as added Pub. L. 104–127, title III, § 324, Apr. 4, 1996, 110 Stat. 992.)
§ 3824. Fairness of compliance

If the actions of an unrelated person or public entity, outside the control of, and without the prior approval of, the landowner or tenant result in a change in the characteristics of cropland that would cause the land to be determined to be a wetland, the affected land shall not be considered to be wetland for purposes of this subchapter.

(Pub. L. 99–198, title XII, § 1224, as added Pub. L. 101–624, title XIV, § 1424, Nov. 28, 1990, 104 Stat. 3576.)