Part 510 — Part 510 — General InformationGeneral Information

Related to WC Related to WC ProvisionsProvisions

Statutory AuthorityStatutory Authority

• Public Law 99-198, Title XII, The Food Security Public Law 99-198, Title XII, The Food Security Act of 1985.Act of 1985.

• Public Law 101-624, Title XII, The Food, Public Law 101-624, Title XII, The Food, Agriculture, Conservation, and Trade Act of Agriculture, Conservation, and Trade Act of 1990.1990.

• Public Law 104-127, Title III, The Federal Public Law 104-127, Title III, The Federal Agriculture Improvement and Reform Act of Agriculture Improvement and Reform Act of 1996.1996.

• Public Law 107-171, Title II, The Farm Public Law 107-171, Title II, The Farm Security and Rural Investment Act of 2002.Security and Rural Investment Act of 2002.

Codified in 16 U.S.C. 3801 through 3824.Codified in 16 U.S.C. 3801 through 3824.

Regulations (Rule)Regulations (Rule)

• 7 CFR Part 127 CFR Part 12

• Required by statuteRequired by statute

• Rulemaking procedures of the Rulemaking procedures of the Administrative Procedures ActAdministrative Procedures Act

• Public CommentPublic Comment

Why should you care?Why should you care?

• Statute and rule give NRCS the Statute and rule give NRCS the authority to make decisions affecting authority to make decisions affecting producersproducers

• Required documentationRequired documentation– The technical criteria for wetland, HEL, The technical criteria for wetland, HEL,

and other technical determinations.and other technical determinations.– Whether an activity violates the Whether an activity violates the

conservation provisions of the Act.conservation provisions of the Act.– Whether the violation qualifies for an Whether the violation qualifies for an

exemption from the provisions. exemption from the provisions.

Objectives of WC Objectives of WC ProvisionsProvisions

• Remove certain incentives for persons Remove certain incentives for persons who convert wetlands to make who convert wetlands to make possible the production of agricultural possible the production of agricultural commoditiescommodities

• Reduce nonpoint source pollutionReduce nonpoint source pollution• Reduce sedimentation and improve Reduce sedimentation and improve

water qualitywater quality• Assist in preserving the functions and Assist in preserving the functions and

values of the Nation's wetlandsvalues of the Nation's wetlands

Program Benefits Covered Program Benefits Covered by Swampbusterby Swampbuster

• Contract payments received Contract payments received under production flexibility (or under production flexibility (or successor) contracts, marketing successor) contracts, marketing assistance loans, and any type of assistance loans, and any type of price support or paymentprice support or payment

Program Benefits Covered Program Benefits Covered by Swampbusterby Swampbuster

• Loans made, insured, or guaranteed Loans made, insured, or guaranteed by the Farm Service Agency (FSA), if by the Farm Service Agency (FSA), if it is determined that the proceeds of it is determined that the proceeds of such loan will be used for a purpose such loan will be used for a purpose that will contribute to conversion of that will contribute to conversion of a wetlanda wetland

Program Benefits Covered Program Benefits Covered by Swampbusterby Swampbuster

• Agricultural Credit Act payments Agricultural Credit Act payments • Watershed Protection and Flood Watershed Protection and Flood

Prevention Act payments, loans or Prevention Act payments, loans or other assistanceother assistance

• Disaster payments - sometimes Disaster payments - sometimes – Depends on the specific disaster assistance Depends on the specific disaster assistance

legislation. Farm Bill does not condition legislation. Farm Bill does not condition receipt of USDA disaster relief benefits on receipt of USDA disaster relief benefits on compliance with the WC provisions. compliance with the WC provisions.

Program Benefits Covered Program Benefits Covered by Swampbusterby Swampbuster

• Title XII Conservation Program paymentsTitle XII Conservation Program payments– Conservation Reserve Program (CRP)Conservation Reserve Program (CRP)– Conservation Security Program (CSP)Conservation Security Program (CSP)– Environmental Quality Incentives Program Environmental Quality Incentives Program

(EQIP)(EQIP)– Farm & Ranch Land Protection Program Farm & Ranch Land Protection Program

(FRPP)(FRPP)– Grassland Reserve Program (GRP)Grassland Reserve Program (GRP)– Wetlands Reserve Program (WRP)Wetlands Reserve Program (WRP)– Wildlife Habitat Incentives Program (WHIP)Wildlife Habitat Incentives Program (WHIP)

Participants’ Participants’ ResponsibilitiesResponsibilities

• Know and understand the Know and understand the requirements of WC provisionsrequirements of WC provisions

• Seek timely technical assistance for Seek timely technical assistance for determinations needed in order to determinations needed in order to comply comply

• Certify complianceCertify compliance• Not convert a wetland or produce an Not convert a wetland or produce an

agricultural commodity crop on a agricultural commodity crop on a converted wetlandconverted wetland

Form AD-1026Form AD-1026

• Self-certificationSelf-certification• ““Yes” answer on question 9 or 10 gets Yes” answer on question 9 or 10 gets

referred to NRCS for certified referred to NRCS for certified wetland determinationwetland determination

• Grants legal access to the land by any Grants legal access to the land by any USDA employee or representativeUSDA employee or representative

• Failure to provide access results in Failure to provide access results in immediate ineligibilityimmediate ineligibility

Form AD-1026Form AD-1026

Form AD-1026Form AD-1026

CPA-038CPA-038

Communicating with the Communicating with the LandownerLandowner

• Provide opportunity to be present Provide opportunity to be present during the site visit during the site visit

• Allows NRCS to explain the Allows NRCS to explain the procedures and requirements of the procedures and requirements of the Act and to acquire background Act and to acquire background information on the site from the information on the site from the producer and landowner producer and landowner

• Improves their understanding of the Improves their understanding of the conservation compliance provisions conservation compliance provisions

• Reduces the numbers of appealsReduces the numbers of appeals

WC RequirementsWC Requirements

•Persons who plant an Persons who plant an agricultural commodity on agricultural commodity on wetlands that were converted wetlands that were converted between December 23, 1985 between December 23, 1985 and November 28, 1990, will be and November 28, 1990, will be ineligible for program benefits ineligible for program benefits in any year an agricultural in any year an agricultural commodity is planted unless an commodity is planted unless an exemption applies.exemption applies.

WC RequirementsWC Requirements

•Persons who convert a wetland Persons who convert a wetland making production of an making production of an agricultural commodity possible agricultural commodity possible after November 28, 1990 will after November 28, 1990 will be ineligible for program be ineligible for program benefits until the functions and benefits until the functions and acreage of the wetland that was acreage of the wetland that was converted are restored or converted are restored or mitigated unless an exemption mitigated unless an exemption applies.applies.

DefinitionsDefinitions

•Converted wetlandConverted wetland – wetland that has been drained, wetland that has been drained,

dredged, filled, leveled, or dredged, filled, leveled, or otherwise manipulated (including otherwise manipulated (including any activity that results in any activity that results in impairing or reducing the flow, impairing or reducing the flow, circulation, or reach of water) for circulation, or reach of water) for the purpose or to have the effect the purpose or to have the effect of making the production of an of making the production of an agricultural commodity possibleagricultural commodity possible

DefinitionsDefinitions

•Agricultural commodityAgricultural commodity –any agricultural commodity any agricultural commodity planted and produced in a planted and produced in a State by annual tilling of the State by annual tilling of the soil, including tilling by one-soil, including tilling by one-trip planters; or sugarcanetrip planters; or sugarcane

In other words...In other words...

• For an activity to violate the WC provision, For an activity to violate the WC provision, it must involve a conversion of wetlands that it must involve a conversion of wetlands that is not exemptis not exempt

• Activities that affect wetlands, yet are not Activities that affect wetlands, yet are not for the purpose and do not make production for the purpose and do not make production of an agricultural commodity possible or of an agricultural commodity possible or result in the production of an agricultural result in the production of an agricultural commodity, are not defined as “conversions” commodity, are not defined as “conversions” under the WC provisions of the Actunder the WC provisions of the Act

• Covered by NRCS Wetland Protection Covered by NRCS Wetland Protection Policy, Clean Water Act, other state and Policy, Clean Water Act, other state and local lawslocal laws

WC ExemptionsWC Exemptions• Converted wetlands if the Converted wetlands if the

conversion was commenced before conversion was commenced before December 23, 1985;December 23, 1985;

• Artificial wetlands;Artificial wetlands;• Wetlands farmed under natural Wetlands farmed under natural

conditions;conditions;• Under certain conditions, a Under certain conditions, a

converted wetland to which converted wetland to which wetland characteristics returned.wetland characteristics returned.

NRCS WC ResponsibilitiesNRCS WC Responsibilities

• Determine, delineate and certify wetlands Determine, delineate and certify wetlands on lands subject to the WC provisions;on lands subject to the WC provisions;

• Determine if an activity is a conversion Determine if an activity is a conversion under the Act;under the Act;

• Determine if a conversion was Determine if a conversion was commenced prior to December 23, 1985;commenced prior to December 23, 1985;

• Determine if a conversion is exempt Determine if a conversion is exempt under the Act. under the Act.

When to do HELC/WC When to do HELC/WC DeterminationsDeterminations

• NRCS will complete HELC/WC determinations NRCS will complete HELC/WC determinations on tracts for which FSA has forwarded a Form on tracts for which FSA has forwarded a Form AD-1026 or FSA-569AD-1026 or FSA-569

• Timeframes for Completion of DeterminationsTimeframes for Completion of Determinations– FSA loan applicants, NRCS will send a preliminary FSA loan applicants, NRCS will send a preliminary

determination within 15 calendar days of the determination within 15 calendar days of the receipt of the AD-1026.receipt of the AD-1026.

– All other determinations will be made as soon as All other determinations will be made as soon as possible (Allows waiting for conditions to be possible (Allows waiting for conditions to be suitable – time of year when hydrology is suitable – time of year when hydrology is apparent.)apparent.)

Other Authorities Related to Other Authorities Related to WetlandsWetlands

• Determinations, delineations, or exemptions Determinations, delineations, or exemptions made by NRCS may not meet the made by NRCS may not meet the requirements of other local, state or federal requirements of other local, state or federal wetland protection laws. wetland protection laws.

• When providing technical or financial When providing technical or financial assistance that could result in the assistance that could result in the manipulation of a wetland, NRCS must inform manipulation of a wetland, NRCS must inform the participant that the activity may require the participant that the activity may require other local, state, or federal permits or other local, state, or federal permits or approval and shall not be initiated until approval and shall not be initiated until required permits are obtained. required permits are obtained.

• NRCS’ technical and financial assistance will NRCS’ technical and financial assistance will be withdrawn if required permits are not be withdrawn if required permits are not obtainedobtained

Executive Order 11990Executive Order 11990

•Signed by President Carter on Signed by President Carter on May 24, 1977May 24, 1977

•Requires that each federal Requires that each federal agency take action to minimize agency take action to minimize impacts to wetlands when impacts to wetlands when “providing federally undertaken, “providing federally undertaken, financed, or assisted construction financed, or assisted construction and improvements”. and improvements”.

Executive Order 11990Executive Order 11990

•Separate from Swampbuster.Separate from Swampbuster.–Broader in that it encompasses Broader in that it encompasses allall NRCS technical and financial NRCS technical and financial assistance activities affecting assistance activities affecting wetlands wetlands

–NRCS’ wetland technical NRCS’ wetland technical protection policyprotection policy

–General Manual General Manual GM 190-410GM 190-410

GM 190-410.26GM 190-410.26

• All NRCS programs must be All NRCS programs must be conducted in compliance with this conducted in compliance with this policy. A particular wetland that is policy. A particular wetland that is not subject to the WC provisions, not subject to the WC provisions, such as an artificial wetland or prior such as an artificial wetland or prior converted cropland, converted cropland, may still be may still be subjectsubject to the Executive Order to the Executive Order 11990 and NRCS’ wetland technical 11990 and NRCS’ wetland technical assistance policy.assistance policy.

• Specific policy:Specific policy:

1.1. Do EE to determine practicable alternativesDo EE to determine practicable alternatives

2.2. If practicable alternative selected, then If practicable alternative selected, then provide assistance (avoid or minimize harm)provide assistance (avoid or minimize harm)

3.3. If no practicable alternative exists to If no practicable alternative exists to avoid/minimize impacts, then mitigation avoid/minimize impacts, then mitigation required in order to convert wetland (can still required in order to convert wetland (can still provide assistance)provide assistance)

4.4. If client will not choose practicable If client will not choose practicable alternative or agree to mitigation advise alternative or agree to mitigation advise about CWA and FSA and do not provide about CWA and FSA and do not provide technical assistance for activitytechnical assistance for activity

NRCS PolicyNRCS PolicyGM 190, Subpart B, Part 410.26GM 190, Subpart B, Part 410.26