### §3865d. Administration

#### (a) Ineligible land

The Secretary may not use program funds for the purposes of acquiring an easement on—

(1) lands owned by an agency of the United States, other than land held in trust for Indian tribes;

(2) lands owned in fee title by a State, including an agency or a subdivision of a State, or a unit of local government;

(3) land subject to an easement or deed restriction which, as determined by the Secretary, provides similar protection as would be provided by enrollment in the program; or

(4) lands where the purposes of the program would be undermined due to on-site or off-site conditions, such as risk of hazardous substances, permitted or existing rights of way, infrastructure development, or adjacent land uses.

#### (b) Priority

In evaluating applications under the program, the Secretary may give priority to land that is currently enrolled in the conservation reserve program in a contract that is set to expire within 1 year and—

(1) in the case of an agricultural land easement, is grassland that would benefit from protection under a long-term easement; and

(2) in the case of a wetland reserve easement, is a wetland or related area with the highest wetland functions and value and is likely to return to production after the land leaves the conservation reserve program.

#### (c) Subordination, exchange, modification, and termination

#### (1) Subordination

The Secretary may subordinate any interest in land, or portion of such interest, administered by the Secretary (including for the purposes of utilities and energy transmission services) either directly or on behalf of the Commodity Credit Corporation under the program if the Secretary determines that the subordination—

(A) increases conservation values or has a limited negative effect on conservation values;

(B) minimally affects the acreage subject to the interest in land; and

(C) is in the public interest or furthers the practical administration of the program.

#### (2) Modification and exchange

#### (A) Authority

The Secretary may approve a modification or exchange of any interest in land, or portion of such interest, administered by the Secretary, either directly or on behalf of the Commodity Credit Corporation under the program if the Secretary determines that—

(i) no reasonable alternative exists and the effect on the interest in land is avoided or minimized to the extent practicable; and

(ii) the modification or exchange—

(I) results in equal or increased conservation values;

(II) results in equal or greater economic value to the United States;

(III) is consistent with the original intent of the easement;

(IV) is consistent with the purposes of the program; and

(V) is in the public interest or furthers the practical administration of the program.

#### (B) Limitation

In modifying or exchanging an interest in land, or portion of such interest, under this paragraph, the Secretary may not increase any payment to an eligible entity.

#### (3) Termination

The Secretary may approve a termination of any interest in land, or portion of such interest, administered by the Secretary, directly or on behalf of the Commodity Credit Corporation under the program if the Secretary determines that—

(A) termination is in the interest of the Federal Government;

(B) the United States will be fully compensated for—

(i) the fair market value of the interest in land;

(ii) any costs relating to the termination; and

(iii) any damages determined appropriate by the Secretary; and

(C) the termination will—

(i) address a compelling public need for which there is no practicable alternative even with avoidance and minimization; and

(ii) further the practical administration of the program.

#### (4) Consent

The Secretary shall obtain consent from the landowner and eligible entity, if applicable, for any subordination, exchange, modification, or termination of interest in land, or portion of such interest, under this subsection.

#### (5) Notice

At least 90 days before taking any termination action described in paragraph (3), 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.

#### (d) Land enrolled in other programs

#### (1) Conservation reserve program

The Secretary may terminate or modify a contract entered into under section 3831(a) of this title if eligible land that is subject to such contract is enrolled in an easement under section 3865c(b) of this title.

#### (2) Other

In accordance with the provisions of subtitle H of title II of the Agricultural Act of 2014, land enrolled in the wetlands reserve program, grassland reserve program, or farmland protection program on the day before February 7, 2014, shall be considered enrolled in the program.

#### (3) Agricultural land easements

A farmer or rancher who owns eligible land subject to an agricultural land easement may enter into a contract under subpart B of part I of subchapter IV.

#### (e) Compliance with certain requirements

The Secretary may not provide assistance under this subchapter to an eligible entity or owner of eligible land unless the eligible entity or owner agrees, during the crop year for which the assistance is provided—

(1) to comply with applicable conservation requirements under subchapter II; and

(2) to comply with applicable wetland protection requirements under subchapter III.

(Pub. L. 99–198, title XII, §1265D, as added Pub. L. 113–79, title II, §2301(a), Feb. 7, 2014, 128 Stat. 742; amended Pub. L. 115–334, title II, §2605, Dec. 20, 2018, 132 Stat. 4591.)

#### **Editorial Notes**

#### References in Text

The Agricultural Act of 2014, referred to in subsec. (d)(2), is Pub. L. 113–79, Feb. 7, 2014, 128 Stat. 649. Subtitle H (§§2701–2713) of title II of the Act amended sections 3801, 3811, and 3842 of this title, repealed sections 3830, 3831a, 3837 to 3837f, 3838h to 3838j, 3838n to 3838q, 3839 to 3839d, 3839aa–9, 3839bb–1, 3839bb–3, and 3839bb–4 of this title, and enacted provisions set out as notes under sections 3801, 3831a, 3837, 3838h, 3838n, 3839aa–9, 3839bb–1, 3839bb–4, and 3843 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 9001 of Title 7, Agriculture, and Tables.

#### Amendments

2018—Subsec. (a)(4). Pub. L. 115–334, §2605(1), substituted "permitted" for "proposed".

Subsec. (c). Pub. L. 115–334, §2605(2), added subsec. (c) and struck out former subsec. (c) which allowed the Secretary to subordinate, exchange, modify, or terminate interests in land subject to certain determination, consultation, and notice requirements.

Subsec. (d)(1). Pub. L. 115–334, §2605(3)(A), substituted "enrolled in an easement under section 3865c(b) of this title" for "transferred into the program".

Subsec. (d)(3). Pub. L. 115–334, §2605(3)(B), added par. (3).