subpart c - wetlands reserve program

16 USC 3837 - Wetlands reserve program

(a) Establishment and purposes

(1) Establishment
The Secretary shall establish a wetlands reserve program to assist owners of eligible lands in restoring and protecting wetlands.

(2) Purposes
The purposes of the wetlands reserve program are to restore, protect, or enhance wetlands on private or tribal lands that are eligible under subsections (c) and (d).

(b) Enrollment conditions

(1) Maximum enrollment
The total number of acres enrolled in the wetlands reserve program shall not exceed 3,041,200 acres.

(2) Methods of enrollment
Subject to paragraph (3), the Secretary shall enroll acreage into the wetlands reserve program through the use of permanent easements, 30-year easements, restoration cost share agreements, or any combination of those options.

(3) Acreage owned by Indian tribes
In the case of acreage owned by an Indian tribe, the Secretary shall enroll acreage into the wetlands reserve program through the use of

(A) a 30-year contract (the value of which shall be equivalent to the value of a 30-year easement);

(B) restoration cost-share agreements; or

(c) Eligibility
For purposes of enrolling land in the wetland reserve established under this subpart during the 1991 through 2012 fiscal years, private or tribal land shall be eligible to be placed into such reserve if the Secretary, in consultation with the Secretary of the Interior at the local level, determines that

(1) such land maximizes wildlife benefits and wetland values and functions;

(2) such land is

(A) farmed wetland or converted wetland, together with the adjacent land that is functionally dependent on the wetlands, except that converted wetland with respect to which the conversion was not commenced prior to December 23, 1985, shall not be eligible to be enrolled in the program under this section; or

(B) cropland or grassland that was used for agricultural production prior to flooding from the natural overflow of a closed basin lake or pothole, as determined by the Secretary, together (where practicable) with the adjacent land that is functionally dependent on the cropland or grassland; and

(3) the likelihood of the successful restoration of such land and the resultant wetland values merit inclusion of such land in the program taking into consideration the cost of such restoration.

(d) Other eligible land
The Secretary may include in the wetland reserve established under this subpart, together with land that is eligible under subsection (c) of this section, land that maximizes wildlife benefits and that is

(1) farmed wetland and adjoining lands, enrolled in the conservation reserve, with the highest wetland functions and values, and that are likely to return to production after they leave the conservation reserve;

(2) other wetland of an owner that would not otherwise be eligible if the Secretary determines that the inclusion of such wetland in such easement would significantly add to the functional value of the easement; or

(3) riparian areas that link wetlands that are protected by easements or some other device or circumstance that achieves the same purpose as an easement.

(e) Ineligible land
The Secretary may not acquire easements on

(1) land that contains timber stands established under the conservation reserve under subpart B; or

(2) pasture land established to trees under the conservation reserve under subpart B.

(f) Termination of existing contract
The Secretary may terminate or modify an existing contract entered into under section 3831 (a) of this title if eligible land that is subject to such contract is transferred into the program established by this subpart.

16 USC 3837a - Easements and agreements

(a) In general
To be eligible to place land into the wetland reserve under this subpart, the owner of such land shall enter into an agreement with the Secretary

(1) to grant an easement on such land to the Secretary;

(2) to implement a wetland easement conservation plan as provided for in this section;

(3) to create and record an appropriate deed restriction in accordance with applicable State law to reflect the easement agreed to under this subpart with respect to such lands; and

(4) to provide a written statement of consent to such easement signed by those holding a security interest in the land.

(b) Terms of easement
An owner granting an easement under subsection (a) of this section shall be required to provide for the restoration and protection of the functional values of wetland pursuant to a wetland easement conservation plan that

(1) permits

(A) repairs, improvements, and inspections on such land that are necessary to maintain existing public drainage systems if such land is subsequently restored to the condition required by the terms of the easement; and

(B) landowners to control public access on the easement areas while identifying access routes to be used for wetland restoration activities and management and easement monitoring;

(2) prohibits

(A) the alteration of wildlife habitat and other natural features of such land, unless specifically permitted by the plan;

(B) the spraying of such land with chemicals or the mowing of such land, except where such spraying or mowing is permitted by the plan or is necessary

(i) to comply with Federal or State noxious weed control laws;

(ii) to comply with a Federal or State emergency pest treatment program; or

(iii) to meet habitat needs of specific wildlife species; and

(C) any activities to be carried out on such participating landowners or successors land that is immediately adjacent to, and functionally related to, the land that is subject to the easement if such activities will alter, degrade, or otherwise diminish the functional value of the eligible land; and

(D) the adoption of any other practice that would tend to defeat the purposes of this subpart, as determined by the Secretary;

(3) provides for the efficient and effective restoration of the functional values of wetlands; and

(4) includes such additional provisions as the Secretary determines are desirable to carry out this subpart or to facilitate the practical administration thereof.

(c) Restoration plans
The development of a restoration plan, including any compatible use, under this section shall be made through the local Natural Resources Conservation Service representative, in consultation with the State technical committee.

(d) Compatible uses
Wetland reserve program lands may be used for compatible economic uses, including such activities as hunting and fishing, managed timber harvest, or periodic haying or grazing, if such use is specifically permitted by the plan and consistent with the long-term protection and enhancement of the wetlands resources for which the easement was established.

(e) Type and length of easement
A conservation easement granted under this section

(1) shall be in a recordable form; and

(2) shall be for 30 years, permanent, or the maximum duration allowed under applicable State laws.

(f) Compensation

(1) Determination
Effective on the date of the enactment of the Food, Conservation, and Energy Act of 2008, the Secretary shall pay as compensation for a conservation easement acquired under this subpart the lowest of

(A) the fair market value of the land, as determined by the Secretary, using the Uniform Standards of Professional Appraisal Practices or an area-wide market analysis or survey;

(B) the amount corresponding to a geographical cap, as determined by the Secretary in regulations; or

(2) Form of payment
Compensation for an easement shall be provided by the Secretary in the form of a cash payment, in an amount determined under paragraph (1) and specified in the easement agreement.

(3) Payment schedule for easements

(A) Easements valued at $500,000 or less
For easements valued at $500,000 or less, the Secretary may provide easement payments in not more than 30 annual payments.

(B) Easements in excess of $500,000
For easements valued at more than $500,000, the Secretary may provide easement payments in at least 5, but not more than 30 annual payments, except that, if the Secretary determines it would further the purposes of the program, the Secretary may make a lump sum payment for such an easement.

(4) Restoration agreement payment limitation
Payments made to a person or legal entity, directly or indirectly, pursuant to a restoration cost-share agreement under this subpart may not exceed, in the aggregate, $50,000 per year.

(5) Enrollment procedure
Lands may be enrolled under this subpart through the submission of bids under a procedure established by the Secretary.

(g) Violation
On the violation of the terms or conditions of the easement or related agreement entered into under subsection (a) of this section, the easement shall remain in force and the Secretary may require the owner to refund all or part of any payments received by the owner under this subpart, together with interest thereon as determined appropriate by the Secretary.

(h) Wetlands reserve enhancement program

(1) Program authorized
The Secretary may enter into 1 or more agreements with a State (including a political subdivision or agency of a State), nongovernmental organization, or Indian tribe to carry out a special wetlands reserve enhancement program that the Secretary determines would advance the purposes of this subpart.

(2) Reserved rights pilot program

(A) Reservation of grazing rights
As part of the wetlands reserve enhancement program, the Secretary shall carry out a pilot program for land in which a landowner may reserve grazing rights in the warranty easement deed restriction if the Secretary determines that the reservation and use of the grazing rights

(i) is compatible with the land subject to the easement;

(ii) is consistent with the long-term wetland protection and enhancement goals for which the easement was established; and

(iii) complies with a conservation plan.

(B) Duration
The pilot program established under this paragraph shall terminate on September 30, 2012.

16 USC 3837b - Duties of owners

Under the terms of an agreement entered into under this subpart, an owner and operator of the land that is subject to an easement under this subpart shall agree to comply with the terms of the easement and related agreements and shall agree to the permanent retirement of any existing cropland base and allotment history for such land under any program administered by the Secretary.

16 USC 3837c - Duties of Secretary

(a) In general
In return for the granting of an easement by an owner under this subpart, the Secretary shall

(1) share the cost of carrying out the establishment of conservation measures and practices, and the protection of the wetland functions and values, including necessary maintenance activities, as set forth in the plan to the extent that the Secretary determines that cost sharing is appropriate and in the public interest; and

(2) provide necessary technical assistance to assist owners in complying with the terms and conditions of the easement and the plan.

(b) Cost-share and technical assistance

(1) Easements
Effective beginning October 1, 1996, in making cost-share payments under subsection (a)(1) of this section, the Secretary shall

(A) in the case of a permanent easement, pay the owner an amount that is not less than 75 percent, but not more than 100 percent, of the eligible costs; and

(B) in the case of a 30-year easement, pay the owner an amount that is not less than 50 percent, but not more than 75 percent, of the eligible costs.

(2) Restoration cost-share agreements
In making cost-share payments in connection with a restoration cost-share agreement entered into under section 3837a (h)1 of this title, the Secretary shall pay the owner an amount that is not less than 50 percent, but not more than 75 percent, of the eligible costs.

(3) Technical assistance
The Secretary shall provide owners with technical assistance to assist owners in complying with the terms of easements and restoration cost-share agreements.

(1) Conservation benefits and funding considerations
When evaluating offers from landowners, the Secretary may consider

(A) the conservation benefits of obtaining an easement or other interest in the land;

(B) the cost-effectiveness of each easement or other interest in eligible land, so as to maximize the environmental benefits per dollar expended; and

(C) whether the landowner or another person is offering to contribute financially to the cost of the easement or other interest in the land to leverage Federal funds.

(2) Additional considerations
In determining the acceptability of easement offers, the Secretary may take into consideration

(A) the extent to which the purposes of the easement program would be achieved on the land;

(B) the productivity of the land; and

(d) Easement priority
In carrying out this subpart, to the extent practicable, taking into consideration costs and future agricultural and food needs, the Secretary shall give priority to obtaining permanent conservation easements before shorter term conservation easements and, in consultation with the Secretary of the Interior, shall place priority on acquiring easements based on the value of the easement for protecting and enhancing habitat for migratory birds and other wildlife.

[1] See References in Text note below.

16 USC 3837d - Payments

(a) Time of payment
The Secretary shall provide payment for obligations incurred by the Secretary under this subpart

(1) with respect to any cost sharing obligation as soon as possible after the obligation is incurred; and

(2) with respect to any annual easement payment obligation incurred by the Secretary as soon as possible after October 1 of each calendar year.

(b) Payments to others
If an owner who is entitled to a payment under this subpart dies, becomes incompetent, is otherwise unable to receive such payment, or is succeeded by another person who renders or completes the required performance, the Secretary shall make such payment, in accordance with regulations prescribed by the Secretary and without regard to any other provision of law, in such manner as the Secretary determines is fair and reasonable in light of all of the circumstances.

(1) In general
The total amount of payments that a person or legal entity may receive, directly or indirectly, under this subpart for any year may not exceed $50,000, except such limitation shall not apply with respect to payments for perpetual or 30-year easements or under 30-year contracts.

(2) Regulations
The Secretary shall issue regulations prescribing such rules as the Secretary determines necessary to ensure a fair and reasonable application of the limitation contained in this subsection.

(3) Other payments
Easement payments received by an owner shall be in addition to, and not affect, the total amount of payments that such owner is otherwise eligible to receive under this Act, the Food, Agriculture, Conservation, and Trade Act of 1990, or the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.).

(d) Exemption from automatic sequester
Notwithstanding any other provision of law, no order issued under section 902 of title 2 shall affect any payment under this subpart.

16 USC 3837e - Changes in ownership; agreement modification; termination

(a) Limitations
No easement shall be created under this subpart on land that has changed ownership during the preceding 7-year period unless

(1) the new ownership was acquired by will or succession as a result of the death of the previous owner;

(2)

(A) the ownership change occurred because of foreclosure on the land; and

(B) immediately before the foreclosure, the owner of the land exercises a right of redemption from the mortgage holder in accordance with State law; or

(3) the Secretary determines that the land was acquired under circumstances that give adequate assurances that such land was not acquired for the purposes of placing it in the program established by this subpart.

(b) Modification; termination

(1) Modification
The Secretary may modify an easement acquired from, or a related agreement with, an owner under this subpart if

(A) the current owner agrees to such modification; and

(B) the Secretary determines that such modification is desirable

(i) to carry out this subpart;

(ii) to facilitate the practical administration of this subpart; or

(iii) to achieve such other goals as the Secretary determines are appropriate and consistent with this subpart.

(2) Termination

(A) In general
The Secretary may terminate an easement created with an owner under this subpart if

(i) the current owner agrees to such termination; and

(ii) the Secretary determines that such termination would be in the public interest.

(B) Notice
At least 90 days before taking any action to terminate under paragraph (A) all easements entered into under this subpart, the Secretary shall provide written notice of such action to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate.

16 USC 3837f - Administration and funding

(a) Delegation of easement administration
The Secretary may delegate any of the easement management, monitoring, and enforcement responsibilities of the Secretary to Federal or State agencies that have the appropriate authority, expertise, and resources necessary to carry out such delegated responsibilities.

(b) Regulations
Not later than 180 days after November 28, 1990, the Secretary shall issue such regulations as are necessary to carry out this subpart.

(1) Survey
The Secretary shall conduct a survey during fiscal year 2008 and each subsequent fiscal year for the purpose of determining interest and allocations for the Prairie Pothole Region to enroll eligible land described in section 3837 (c)(2)(B) of this title.

(2) Annual adjustment
The Secretary shall make an adjustment to the allocation for an interested State for a fiscal year, based on the results of the survey conducted under paragraph (1) for the State during the previous fiscal year.