Highly Erodible Land and Wetland Conservation
(Incorporates typographical corrections appearing in the Federal Register on
October 11, 1996)
Interim final rule with request for comments.
[From the Federal Register: September 6, 1996 (Volume 61, Number 174)
Rules and Regulations; Page 47019-47038]
[Corrections from the Federal Register: October 11, 1996 (Volume 61, Number 199)
Page 53491]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 12; RIN 0578-AA17
Highly Erodible Land and Wetland Conservation
AGENCY: Office of the Secretary, USDA.
ACTION: Interim final rule with request for comments.
SUMMARY: The United States Department of Agriculture (USDA) is issuing
an interim final rule for the Highly Erodible Land and Wetland Conservation
provisions of the Food Security Act of 1985, as amended. This interim final rule
incorporates specific changes required by the Federal Agriculture Improvement
and Reform Act of 1996 and makes other changes to improve the administration of
these provisions. USDA is seeking comments from the public which will be
considered prior to issuing a final rule.
DATES: Effective Dates: September 6, 1996.
Comments must be received by November 5, 1996.
ADDRESSES: All comments concerning this interim final rule should be
addressed to Lloyd E. Wright, Director, Conservation Ecosystems Assistance
Division, Natural Resources Conservation Service, P.O. Box 2890, Washington,
D.C. 20013-2890. Attention: HELWC. Fax: 202-720-1838.
FOR FURTHER INFORMATION CONTACT: Sandra N. Penn, Conservation
Ecosystems Assistance Division, Natural Resources Conservation Service,
202-720-1845. (E-mail: Sandra.Penn@usda.gov)
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be significant and was reviewed by the
Office of Management and Budget (OMB) under Executive Order 12866. Pursuant to
Sec. 6(a)(3) of Executive Order 12866, CCC and NRCS have conducted an economic
analysis of the potential impacts associated with this interim final rule. The
economic analysis concluded that the past ten years of experience in
implementing these provisions demonstrates that the provisions are an effective
incentive to implementing conservation practices. Changes in the 1985 Act and
the implementing regulations will help to increase that incentive by making
compliance achievable by more producers, providing more liberal technical
assistance, and increasing flexibility in farm operations that deterred some
producers from participation in USDA programs in the past. A copy of this
cost-benefit analysis is available upon request from Sandra N. Penn,
Conservation Ecosystems Assistance Division, Natural Resources Conservation
Service, P.O. Box 2890, Washington, D.C. 20013-2890.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule because USDA is
not required by 5 U.S.C. 533 or any other provision of law to publish a notice
of proposed rulemaking with respect to the subject matter of this rule.
Environmental Evaluation
It has been determined through an environmental assessment that the issuance
of this interim final rule will not have a significant impact upon the human
environment. Copies of the environmental assessment may be obtained from Sandra
N. Penn, Conservation Ecosystems Assistance Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, D.C. 20013-2890.
Paperwork Reduction Act
No substantive changes have been made in this interim final rule that affect
the record keeping requirements and estimated burdens previously reviewed and
approved under OMB control number 0560-0004.
Executive Order 12788
This interim final rule has been reviewed in accordance with Executive Order
12778. The provisions of this interim final rule are not retroactive except for
Sec. 12.5(b)(4)-(8) in relation to certain actions or determinations that
occurred after December 23, 1985, relative to the conversion of wetlands or the
production of an agricultural commodity upon a converted wetland. Furthermore,
the provisions of this final interim rule preempt State and local laws to the
extent such laws are inconsistent with this interim final rule. Before an action
may be brought in a Federal court of competent jurisdiction, the administrative
appeal rights afforded persons at CFR parts 11, 614, 780, and 1900 Subpart B of
this title, as appropriate, must be exercised and exhausted.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, Pub. L.
104-4, the effects of this rulemaking action on State, local, and tribal
governments, and the public have been assessed. This action does not compel the
expenditure of $100 million or more by any State, local, or tribal governments,
or anyone in the private sector; therefore a statement under Sec. 202 of the
Unfunded Mandates Reform Act of 1995 is not required.
Discussion of Provisions
Title XII of the Food Security Act of 1985, as amended (the 1985 Act),
encourages participants in United States Department of Agriculture (USDA)
programs to adopt land management measures by linking eligibility for USDA
program benefits to farming practices on highly erodible land and converted
wetlands. In particular, the highly erodible land provisions (HEL) of the 1985
Act provide that after December 23, 1985, a program participant is ineligible
for certain USDA program benefits for the production of an agricultural
commodity on a field in which highly erodible land is predominant. Additionally,
the wetland conservation (WC) provisions of the 1985 Act provide that after
December 23, 1985, a program participant is ineligible for certain USDA program
benefits for the production of an agricultural commodity on a converted wetland,
or after November 28, 1990, for the conversion of a wetland that makes the
production of an agriculture commodity possible. The 1985 Act, however, affords
relief to program participants who meet certain conditions identified under the
1985 Act by exempting such actions from the ineligibility provisions.
The USDA issued a final rule implementing the HEL and WC provisions of the
1985 Act on September 17, 1987. These regulations, found at 7 CFR part 12,
provided the terms of program ineligibility, described the several exemptions
from ineligibility, outlined the responsibilities of the several USDA agencies
involved in implementing the provisions, and generally established the framework
for administration of the provisions.
The Food, Agriculture, Conservation, and Trade Act of 1990 (the 1990 Act),
amended the 1985 Act and made some significant modifications to the HEL and WC
conservation provisions. These statutory changes were incorporated into part 12
through amendments issued April 23, 1991, and May 23, 1991.
The implementing regulations mirror the 1985 Act's structure by listing the
activities that will cause a person to lose program benefits, the program
benefits that are at risk, and the conditions under which these activities can
occur without losing program eligibility. The current regulations are divided
into three subparts. Subpart A describes the terms of ineligibility, USDA
programs encompassed by its terms, the list of exemptions from ineligibility,
the agency responsibilities, and the appeal provisions for persons adversely
affected by an agency determination. Subpart B describes in greater detail the
technical aspects of the highly erodible land provisions, including the criteria
for identification of highly erodible lands, criteria for highly erodible field
determinations, and requirements for the development of conservation plans and
conservation systems. Subpart C describes in greater detail the technical
aspects of the wetland conservation provisions, including the criteria for
determining a wetland, the criteria for determining a converted wetland, and the
uses of wetlands and converted wetlands that can be made without losing program
eligibility.
Since December 23, 1985, program participants have farmed in a more
sustainable manner, resulting in more soil remaining on the field and more
wetlands remaining available to wildlife and migratory fowl. Meeting the
objectives of the HEL and WC provisions, however, has been difficult for some
producers. Wherever possible, USDA helps individual program participants address
their unique resource concerns in a manner that meets the requirements of the
HEL and WC provisions. The Federal Agriculture Improvement and Reform Act (the
1996 Act), enacted April 4, 1996, made several modifications to the HEL and WC
provisions which will increase USDA's ability to meet these individual
situations in a more flexible manner.
The Federal Agriculture Improvement and Reform Act
The 1996 Act amendments to the HEL and WC provisions became effective 90 days
after the date of enactment, i.e., July 3, 1996. Accordingly, delaying
implementation of this rule would be contrary to the public interest and it has
been determined that this rule should, therefore, be effective when issued but
subject to further review based on comments submitted in response to this
interim final rule.
The 1996 Act made the following changes to the implementation of the HEL and
WC provisions:
- Adds new programs to the list of USDA program benefits covered.
- Deletes some programs from the list of USDA program benefits covered.
- Under certain conditions, allows a person who is determined to be
ineligible for USDA program benefits because of failure to apply a
conservation system up to 1 year to implement the necessary practices
without loss of benefits.
- Provides for expedited variances related to weather, pest, and disease
problems and establishes a time period to render a decision on whether to
grant those variances.
- Requires a measurement of soil erosion on a highly erodible field prior to
the implementation of a conservation system, based on estimated average
annual soil erosion rates.
- Provides for self-certification of compliance for HEL and authorizes the
Natural Resources Conservation Service (NRCS) to exclude that person from
status review on the basis of that certification of compliance.
- Provides for revision or modification of a conservation plan by a person
if the same level of treatment is maintained.
- Permits a person to use, on a field-trial basis, conservation practices
other than those currently approved if NRCS determines in advance that the
practices have a reasonable likelihood of success.
- Provides for a review, and relief to a person, by the local county
committee if applying a conservation system would cause the person undue
economic hardship.
- Requires that an employee of USDA who notices a conservation compliance
deficiency on a person's farm while providing technical assistance on other
land inform the person of the deficiency and actions necessary to come into
compliance, and allow up to 1 year for the person to fully implement
corrective action before reporting the observation as a compliance
violation.
- Requires that highly erodible land exiting the Conservation Reserve
Program not be held to a higher conservation compliance standard than
similar cropland in the same area.
- Permits a person to cease using farmed wetlands, or farmed-wetland
pastures, as identified by NRCS, for cropping or forage production, and
allows the lands to return to wetland conditions, and subsequently bring
these lands back into agricultural production after any length of time
without loss of eligibility for USDA program benefits, given certain
conditions.
- Allows flexibility in determining the programs for which a person who
violates wetland conservation provisions will become ineligible.
- Ensures that persons have the right to request and appeal a certified
wetland determination.
- Provides that a certified wetland delineation will remain in effect until
the person requests a new determination and certification.
- Ensures that wetlands that were certified as prior-converted cropland will
continue to be considered prior-converted cropland even if wetland
characteristics return as a result of lack of maintenance of the land or
other circumstances beyond the person's control provided the prior-converted
cropland continues to be used for agricultural purposes.
- Requires USDA to identify on a regional basis which categories of
activities constitute a minimal effect on wetland functions and values.
- Provides persons who convert a wetland greater flexibility to mitigate the
loss of wetland functions and values through restoration, enhancement, or
creation of wetlands.
- Allows the Farm Service Agency (FSA) to waive a person's ineligibility for
benefits if FSA believes the person acted in good faith and without intent
to violate the wetland provisions.
- Provides for a pilot program for wetland mitigation banking.
- Repeals the requirement for consultation with the Fish and Wildlife
Service (FWS).
- Provides that benefits of affiliates of a business enterprise who violate
HEL or WC provisions will be reduced in proportion to the interest held by
the affiliate in the business enterprise.
- Defines "agricultural lands" for the purpose of implementing the
January 6, 1994, interagency memorandum of agreement on Federal wetland
delineations on agricultural lands.
Public listening forums
In April 1996, USDA held nine forums to provide opportunities for public
comment in advance of this rulemaking action. These forums were held at
Sacramento, California; Longmont, Colorado; Columbus, Georgia; Springfield,
Illinois; Wyomissing, Pennsylvania; Sioux Falls, South Dakota; Abilene, Texas;
Spokane, Washington; and, Washington, D.C. More than 850 people, including 206
speakers, attended these forums. In addition, USDA accepted written comments.
The USDA considered the public comments provided at these forums in the
preparation of this interim final rule. The documents relating to these forums
are available for public inspection at Room 6029 South Building, USDA, 14th and
Independence Ave. SW, Washington, D.C. The following discussion is a brief
summary of how USDA responded to the issues generated by the comments:
USDA received seven comments related to the granting of variances for persons
who fail to meet the highly erodible land conservation requirements. Section
12.5(a)(6)(ii) addresses procedures for granting variances for weather, pest,
and disease problems, and the factors that NRCS will consider in granting those
variances.
USDA received three comments related to procedures for determining whether a
conservation system results in a substantial reduction in erosion. Section 12.23
addresses procedures for evaluating conservation systems for land with and
without cropping history.
USDA received 25 comments related to policies regarding when a violation is
in good faith. Sections 12.5(a)(5) and (b)(5) address procedures for determining
when a violation is in good faith.
USDA received 16 comments related to procedures for conducting status
reviews. Although procedures for conducting status reviews are not addressed in
the rule, the NRCS will consider these comments in preparing its internal
operating procedures.
USDA received 46 comments related to procedures on wetland mitigation; these
included the suggestion that mitigation always be in the same watershed; that
mitigation should place priority on restoration or enhancement rather than
creation of wetlands; that mitigation should be flexible; and, that mitigation
should meet the requirements of the WC provisions. Section 12.5(b)(4) sets forth
procedures to be used for wetland mitigation, and adds that the State
Conservationist may determine that mitigation for certain types or classes of
wetlands will not be considered because it is not possible to achieve equivalent
replacement of wetland functions and values within a reasonable time frame. USDA
received another 28 comments related to mitigation banking.
USDA received 68 comments related to certification of wetland determinations.
Some commenters favored reviewing all wetland determinations and correcting
errors; other commenters favored not reviewing existing wetland determinations.
Some commenters suggested that landowners should be formally notified of the
certification of wetland determinations. Some commenters suggested that NRCS
should be the lead agency for wetland determinations. Section 12.30(c) describes
the proposed approach to certification of wetland determinations. It also
specifies that a certified wetland determination will remain valid and in effect
until the person affected by the certification requests review of the
certification by NRCS.
USDA received 17 comments related to the role of FWS in carrying out the
wetland conservation provisions. Of these, four commenters expressed support for
FWS involvement and eight commenters favored decreasing the role of the FWS.
Five commenters made no specific recommendation. The 1996 Act removed the
requirement for consultation with FWS, and that requirement has been removed
from the rule. In addition, Sec. 12.30 defines the role of the FWS in carrying
out the wetland conservation provisions.
USDA received 36 comments related to prior-converted cropland issues and
abandonment of wetlands. Of these, 19 commenters expressed support for the
"once a PC, always a PC" change made by the 1996 Act; three commenters
expressed concern over that change. Section 12.33 incorporates changes made by
the 1996 Act amendments.
USDA received four comments stating that NRCS should withdraw from the
Interagency Memorandum of Agreement on Wetlands (MOA) with FWS, Environmental
Protection Agency (EPA), and the U.S. Army Corps of Engineers (Corps). This
comment is outside the scope of this rule, but as discussed in greater detail
below, NRCS is dedicated to continued coordination with the other Federal
agencies with wetland responsibilities. Currently, the MOA provides a useful and
available framework for this coordination.
Description of Amendments
As the summary of the forum comments indicates, the statutory changes affect
provisions throughout 7 CFR part 12. Because of these numerous changes, USDA
will republish part 12 in its entirety to help the public form opinions and
offer comments. When USDA reviews the comments received from the public, those
comments concerning new regulatory provisions will receive greater
consideration.
In addition to revisions necessary to accommodate changes in the Act, USDA
makes several changes to interpret, clarify, or specify procedures followed in
the implementation of the HEL and WC provisions. USDA invites public comment on
these changes.
Amendments to the HEL provisions
USDA finds that the following regulatory changes will improve the quality of
implementation of the HEL provisions of the 1985 Act:
- Section 12.5 (a)(6)(ii) is amended to list factors that NRCS will consider
when a landowner requests a variance related to weather, pest, or disease
problems.
- Section 12.22(c) is added to clarify that when fields are combined, the
part of the new field that was previously a highly erodible field shall
continue to be subject to the highly erodible land requirements.
- Section 12.23(a) is amended to clarify that the adequacy of a conservation
system will be evaluated according to whether it conforms to the NRCS field
office technical guide in use at the time that the plan or system is
developed or revised.
- Section 12.23(b) is added to clarify procedures to be used to evaluate the
adequacy of conservation systems for achieving substantial reduction in soil
erosion on land with and without cropping history.
- Section 12.23(c) is added to specify that conservation field trials
included in a person's conservation plan must have prior approval by NRCS
and must be documented in the person's conservation plan specifying the
limited time period during which the field trial is in effect.
- Section 12.23(j) sets forth the factors to be considered by the FSA State
Committee in determining whether to grant a person's request for relief
based on undue economic hardship in implementing a conservation system.
Amendments to the WC provisions
USDA finds that the following changes will improve the implementation of the
WC provisions of the 1985 Act (WC provisions):
Identification of wetland types: The WC provisions clearly limit the
conversion of wetlands and the planting of an agricultural commodity on a
converted wetland, yet the technical identification of when these provisions are
triggered can prove complex. Even though the 1985 Act implicitly identifies
three distinct land types (wetlands, converted wetlands, and non-wetlands), the
inherent complexity of natural systems and the diversity of land management
methods available to an agricultural producer require that greater
sophistication be used in application of broad national standards to local
conditions. Some areas of land have been planted to an agricultural commodity
but still exhibit the characteristics of a natural wetland if cropping ceases
for even a short period of time. Likewise, areas managed for hay or pasture can
exhibit the characteristics of a natural wetland if the management of the area
ceases. Some activities can permanently remove most of the water from an area
without making the production of an agricultural commodity possible while
natural events can make the production of an agricultural commodity possible
without permanently removing water from an area.
Since 1987, USDA has identified in policy the threshold characteristics that
define when: a wetland has been manipulated sufficiently to make the production
of an agricultural commodity possible; a wetland is "converted;"
conditions meet a particular exemption identified under the 1985 Act; and a
producer has expanded the drainage system beyond what existed prior to December
23, 1985. The USDA is adding definitions to Sec. 12.2 to state more precisely
the variety of wetland types found in the agricultural landscape. Section 12.5
and Sec.Sec. 12.30-12.33 are amended to describe how these wetland types relate
to particular exemptions from ineligibility. In this manner, agricultural
producers are provided the maximum flexibility to manage their lands in a manner
that will not trigger the ineligibility provisions of the 1985 Act.
Coordination with other Federal agencies: Consistent with the intent
expressed in the Manager's Report accompanying the 1996 Act amendments, the
changes made in this rule "do not supersede the wetland protection
authorities and responsibilities of the Environmental Protection Agency [EPA] or
the Corps of Engineers [the Corps] under Section 404 of the Clean Water
Act." This rule is promulgated under the authority of the 1985 Act, as
amended, and therefore does not affect the obligations of any person under other
Federal statutes, or the legal authorities of any other Federal agency
including, for example, EPA's authority to determine the geographic scope of
Clean Water Act jurisdiction. Nonetheless, NRCS, the Corps, and EPA place a high
priority on adopting procedures and policies that minimize duplication and
inconsistencies between the wetland conservation provisions of the 1985 Act and
the Clean Water Act section 404 programs. To help achieve these important policy
objectives, on January 6, 1994, four Federal agencies with wetland
responsibilities (USDA, EPA, the Department of the Interior, the Department of
the Army) entered into a Memorandum of Agreement (MOA), regarding the
delineation of wetlands for purposes of section 404 of the Clean Water Act and
the WC provisions. This MOA provides a framework for continuing coordination
between the Federal agencies regarding the administration of Federal wetland
laws. Consistent with the objectives of the MOA, the NRCS will continue to
coordinate with the other Federal agencies in the development of its policies
and procedures related to the implementation of these regulations.
More specifically, the agencies will coordinate to develop policies and
procedures for evaluating the accuracy of existing non-certified wetland
determinations made by NRCS. The necessary first step in these procedures will
be to make an assessment of the quality of previous determinations. After
completing the quality assessment, in order to provide certainty for the
agricultural community, the Federal agencies will complete the process of
validating prior determinations in an expeditious manner.
It is also the goal of the agencies to minimize duplication and
inconsistencies between the WC provisions and the Clean Water Act. The agencies
will coordinate to develop policies and procedures to minimize duplication and
inconsistencies between the WC provisions and the Clean Water Act programs
regarding other issues; in particular, conversion for non-agricultural use,
minimal effects determinations (including categorical minimal effects
exemptions), mitigation determinations, or other written agreements between
persons and NRCS, the re-establishment of agricultural use on abandoned farmed
wetlands and farmed-wetland pasture, conversions due to NRCS wetland
determination errors, and drainage maintenance. As part of this effort, the
Corps intends to develop a new Clean Water Act nationwide permit that addresses
NRCS minimal effects determinations, NRCS mitigation requirements, and modify
the existing nationwide permit that addresses voluntary wetland restoration (See
61 FR part VII (June 17, 1996)).
In the MOA, the agencies agreed to follow certain guidelines for delineating
wetlands. The MOA agencies currently use the 1987 Corps of Engineers Wetland
Delineation Manual (1987 Corps Manual) for delineating wetlands on areas where
the native vegetation is intact (i.e., non-agricultural lands) and use the
National Food Security Act Manual, Third ed. (NFSAM), for delineating wetlands
on areas where the native vegetation has been removed due to ongoing
agricultural activities (i.e., agricultural lands).
Copies of the NFSAM and the MOA are available from the NRCS, P.O. Box 2890,
Washington, D.C., 20013. Copies of the 1987 Corps Manual are available from the
National Technical Information Service (NTIS), 5285 Port Royal Road, Attn: Order
Department, Springfield, Virginia, 22171. Copies of the supplemental guidance
issued by the Corps concerning use of the 1987 Manual (i.e., the October 7,
1991, Questions and Answers, and the March 6, 1992, Clarification and
Interpretation Memorandum) may be obtained by contacting the Regulatory Branch
of the local Corps district, the EPA Wetlands Hotline at (800) 832-7828, or the
Regulatory Branch of Corps Headquarters (Office of the Chief of Engineers) at
(202) 272-0199. NRCS will publish notice in the Federal Register concerning a
change in the Federal wetland delineation criteria that may be used in
implementation of the WC provisions.
This interim final rule, however, only applies to administration of Title XII
of the 1985 Act. As discussed earlier, the four agencies have identified a need
to expand and revise the MOA to assure consistency and fairness in the
implementation of these acts. The current MOA will remain in effect until it is
amended or rescinded by the four agencies.
A goal of the Administration's 1993 Wetlands Plan is to harmonize the WC
provisions and the Clean Water Act to the extent practicable. These regulations
are modified in several ways to further the President's Wetlands Plan. In
particular, Sec. 12.5(b)(5) provides that when a person requests relief on the
basis that an action was conducted in good faith, USDA may consider whether the
person has a record of violating the wetland provisions of these regulations or
other Federal, State, or local wetland provisions.
Additionally, Sec. 12.6(e) is added to state that NRCS may accept the
assistance of other Federal agencies to carry out the wetland responsibilities
of these regulations. Sections 12.30(a) and (b) provide that NRCS will consult
with FWS at the State level to develop a process for implementation of the WC
provisions.
Section 12.30(c) describes the procedure for certification of wetland
determinations and specifies that certified wetland determinations will meet
current Federal mapping conventions. A certified wetland determination will
remain in effect unless the person affected by the certification requests a
review under certain circumstances or the wetland characteristics are changed as
a result of human activities.
Section 12.31(b)(3) is amended to provide that the determination of
prevalence of hydrophytic vegetation will be made in accordance with the current
Federal wetland delineation methodology in use at the time of the determination.
This change assures that the four agencies will utilize consistent and
up-to-date technical standards and criteria.
Summary of Rule Modifications
Based on the changes in the 1996 Act and the other considerations set forth
above, the changes to 7 CFR part 12 adopted in this notice are as follows:
Subpart A
This interim final rule adds several new definitions to Sec. 12.2. The
Department of Agriculture Reorganization Act of 1994 abolished several agencies
and established new agencies to assume Department responsibilities. Therefore,
Sec. 12.2 is amended to reflect the new agencies with responsibilities for
implementation of these regulations.
Section 12.2: This interim final rule adds new definitions for
"conservation plan," "conservation system," and
"field" as stated in the statute. It also adds several new definitions
related to types of wetlands and management actions related to wetlands that
have previously only been identified in policy. Definitions for
"prior-converted cropland," "farmed wetland,"
"farmed-wetland pasture," and "commenced-conversion wetland"
have been added. Other provisions of the rule have been amended, including Sec.
12.5 and Sec.Sec. 12.31 - .33, to incorporate these new definitions where
applicable.
The 1996 Act amendments provide that a person who converts a wetland may
remain eligible for USDA program benefits if the loss of wetland functions and
values are mitigated through the restoration, enhancement, or creation of a
wetland. Therefore, definitions for "creation",
"enhancement", and "restoration", have been added to clarify
this new flexibility.
Section 12.3: This interim final rule applies to all actions taken
after July 3, 1996, and to determinations made after, or pending on, July 3,
1996, the date on which the HEL and WC statutory amendments become effective.
This section is amended to reflect the passage of the 1996 Act and the scope of
these new provisions.
Section 12.4: Section 12.4 describes the actions that will cause a
person to lose eligibility for USDA program benefits and the program benefits
that are subject to reduction or loss. The 1996 Act treats HEL and WC
differently regarding the programs encompassed by each provision and the extent
of the sanctions if the provisions are violated. Section 12.4 deletes
applicability to some programs, such as crop insurance and obsolete programs. A
person who violates the WC provisions may lose all or only a portion of certain
USDA benefits, but a person who violates HEL could lose all of these same
benefits and additional program benefits. Section 12.4(c) is amended to include
an interpretation of which crop year's benefits are affected by a violation
decision, and sets forth the factors that FSA will consider in determining the
extent of benefits to be lost based on the seriousness of the violation.
Section 12.5: The 1996 Act amendments modify the provisions of Sec.
12.5 regarding the exemptions from ineligibility for USDA program benefits.
Section 12.5(a) addresses the exemptions that apply to HEL and Sec. 12.5(b)
addresses the exemptions that apply to WC.
Section 12.5(a)(5) specifies that HEL violations that are determined to have
been made in good-faith are eligible for graduated sanctions if they were on
land that was converted from native vegetation, i.e., rangeland or woodland, to
crop production after December 23, 1985. For good faith violations on land that
was converted from native vegetation, i.e., rangeland or woodland, to crop
production before December 23, 1985, the person will be allowed up to one year
to correct the problem before being found ineligible. After one year, if the
problem is not corrected, the ineligibility provisions of Sec. 12.4 will apply.
Section 12.5(a)(6) grants an automatic variance if within 30 days NRCS fails to
respond to a persons request for a variance because of weather, pest, or
disease. It describes criteria that NRCS will consider when determining whether
to grant a variance for a natural disaster such as weather, pest, or disease.
NRCS is especially soliciting comments on how these criteria may be specified to
ensure that variances are granted where appropriate.
Under Sec. 12.5(b), the exemptions from ineligibility relative to wetland
conservation, there exists a new exemption for land that was certified as having
been converted prior to December 23, 1985, (prior-converted croplands), but had
returned to wetland characteristics after that date. This exemption provides
that if certain requirements are met, a prior-converted cropland will not be
considered abandoned for purposes of implementation of these regulations.
Likewise, there exists another new exemption for areas that NRCS determined were
manipulated but were not completely converted prior to December 23, 1985,
(farmed wetlands and farmed-wetland pastures), but may revert to wetland status
through a voluntary restoration, enhancement, or creation action. This exemption
provides that if certain requirements are met, the area will not be considered
abandoned for purposes of implementation of these regulations.
These exemptions do not address how the Corps may treat these wetland types
for purposes of section 404 of the Clean Water Act. The Corps has a notice in 61
FR part VII (June 17, 1996) to issue, reissue, and modify the nationwide permits
for section 404 of the Clean Water Act that addresses these issues.
The 1996 Act provides that certain wetland conversion activities that were
conducted pursuant to a permit issued under section 404 of the Clean Water Act
may be exempt from ineligibility under the WC provisions, if the conversion
activity was adequately mitigated for purposes of these provisions. This rule
provides that a person who received an individual permit under section 404 of
the Clean Water Act after December 23, 1985, and met certain sequencing
requirements, is exempt from the ineligibility provisions of these regulations.
This rule, however, provides that a person whose conversion activity is
encompassed by a nationwide or regional general permit issued pursuant to
section 404 of the Clean Water Act may or may not be exempt under these
regulations. USDA will evaluate whether any mitigation was required, and whether
the wetland functions and values lost by the conversion activity were adequately
replaced before USDA decides whether the conversion activity is exempt from
ineligibility under these regulations.
The regulations that existed prior to this interim final rule described a
detailed procedure by which a person could receive a commenced conversion
determination from FSA. Persons who believed that they qualified for such a
determination had to request one from FSA by
September 19, 1988. The purpose of the determination was to minimize any
unnecessary economic hardship to someone who had incurred substantial financial
obligations related to the conversion of a wetland prior to December 23, 1985,
but had not actually converted the wetland by that date. Any person who received
a commenced-conversion wetland determination had to complete the conversion
activity by January 1, 1995, to retain the exemption status. Because the
commenced conversion determination had to be received by 1988 and the conversion
had to be completed by the end of 1994, the references in the rule related to
the process to obtain a determination have been removed. If a person completed
conversion activity by January 1, 1995, the land will qualify for the same
exemptions from ineligibility as prior-converted cropland. If, however, a person
did not complete the conversion activity by that date, the land will be subject
to the same requirements under this rule as farmed wetlands.
The 1996 Act provides that a person may remain eligible for an action
resulting in the conversion of a wetland if the wetland functions and values are
adequately mitigated through the restoration of a converted wetland, the
enhancement of an existing wetland, or the creation of a new wetland. Section
12.5(b)(4) provides that this exemption applies if the mitigation is completed
in accordance with several requirements, including that the person implement a
mitigation plan approved by NRCS. The mitigation plan may be a single document
or it may be a component of a larger conservation plan created voluntarily by
the program participant. The requirements for this exemption are similar to the
requirements for restoration of a converted wetland under the current
regulations, such as the granting of an easement to USDA, recording an easement
on the public land records, and that such mitigation not be at the expense of
the Federal government.
The 1996 Act provides that USDA may expend Federal funds for the
establishment of a pilot program for mitigation banking. USDA has not yet
decided whether it will establish such a pilot program or what the particulars
of such a program would be. During the public comment period, USDA is especially
soliciting comments from the public regarding this subject.
The 1996 Act removes the requirement for graduated sanctions if the FSA
determines that a wetland violation was committed in good faith. Central to the
determination about whether a person acted in good faith is the knowledge
available to the person concerning the existence of a wetland on the subject
land. This knowledge can either be direct, such as information received from
NRCS in the form of a wetland determination, or can be inferred from a person's
past experience with violating wetland laws or regulations. This interim final
rule provides that if a person is considered to have acted in good faith and the
person agrees to implement a mitigation plan, then USDA may waive applying the
ineligibility provisions of Sec. 12.4.
Section 12.6: Section 12.6 concerns the respective responsibilities of
USDA agencies; the new responsibilities created by the 1996 Act have been added.
Section 12.6(b) is amended to specify that FSA is responsible for determining
the extent of reduction in benefits for wetland violations based on the
seriousness of the violation, and for determining whether a person should
receive relief because application of a conservation system would result in
undue economic hardship. Section 12.6(c) is amended to reflect that NRCS is
responsible for providing information to FSA relating to the seriousness of a
violation.
In response to the need to coordinate with the MOA agencies regarding wetland
determinations, a new paragraph has been added to Sec. 12.6. New paragraph (f)
provides that NRCS may accept the assistance of the MOA agencies in implementing
these regulations. This paragraph also confirms that NRCS will continue to seek
the coordination of the other agencies on wetland matters to increase the
public's understanding of the importance of wetland functions and values and the
objectives of the WC provisions and the Clean Water Act.
Section 12.7: Section 12.7 addresses certification by a program
participant that such participant is in compliance with the HEL and WC
provisions. Section 12.7 is amended to allow a person to certify application of
practices in a plan or measurement of residue required by a plan.
Section 12.8: Section 12.8 is amended to revise the definition of
affiliated persons for the purpose of determining whose benefits may be affected
by a decision and to what extent. In particular, Sec. 12.8(b) is amended to
provide that spouses who provide sufficient evidence of separate operations
shall not be considered affiliates, and partnerships, trusts, and joint ventures
are not considered affiliates if the interest is held indirectly through another
business enterprise. Section 12.8(d) limits the reduction in payments for
partnerships, joint ventures, trusts, or other enterprises to the extent of
interest held by the person responsible for the violation. Section 12.8(e)
states that limitations on affiliations if action has been taken to avoid
payment reductions for partnerships, joint ventures, trusts, or the application
of the sanctions provided for in the regulations.
Subpart B
Section 12.21: Section 12.21 is amended to include a reference to
publication of soil loss equations at 7 CFR part 610.
Section 12.22: Section 12.22 is amended to allow combining HEL and
non-HEL fields, but the requirements of these regulations continue to apply to
the previous HEL portion only.
Section 12.23: Section 12.23 is amended to specify that: conservation
systems shall be technically and economically feasible (based on local resource
conditions and available technology), cost effective, and shall not cause undue
economic hardship; the standard for determining whether a plan provides a
substantial reduction in erosion is the estimated annual level of erosion
compared to the level before the system is applied; for new land brought into
production, in no case will the required conservation system permit a
substantial increase in erosion; procedures for conducting field trials as
on-farm research; and procedures and criteria used by FSA when a person requests
relief based on undue economic hardship.
Subpart C
Subpart C addresses the technical responsibilities of NRCS and the technical
criteria used to make the necessary determinations for wetland conservation
under these regulations.
Section 12.30: Section 12.30 is amended to reflect that NRCS will
continue to work with the Corps, EPA, and FWS to improve the quality of wetland
determinations and other processes that affect the implementation of the WC
provisions.
The 1996 Act repealed the requirement for consultation with FWS, thus
allowing the Secretary to determine under what circumstances FWS should be
utilized in the implementation of the WC provisions. Section 12.30 is amended to
reflect that NRCS will develop a process at the State level, in coordination
with FWS, for implementing the WC provisions and review such implementation on
an annual basis. The technical expertise of FWS may be utilized whenever NRCS
determines that such expertise is needed to address adequately the requirements
of the WC provisions or to enhance the quality of implementation.
Under the new mitigation flexibility provided by the 1996 Act, the expertise
of FWS will be valuable for conducting wetland functional assessments associated
with minimal effects determinations and formulation of mitigation plans. The
State-level process is intended, in part, to identify any geographic or
programmatic areas where NRCS may need additional technical expertise to assess
biological impacts of proposed wetland conversions.
Section 12.30 is also amended to address the process for certification
of wetland determinations for the implementation of the WC provisions of the
1985 Act. If NRCS certified a wetland determination prior to July 3, 1996, the
certification will remain valid. Upon request, a person may obtain certification
of a wetland determination. A certified wetland determination means that the
determination is of sufficient quality to make a determination of ineligibility
for program benefits under these regulations. As indicated above, NRCS will
continue to work with the other MOA agencies to coordinate the identification
and certification of wetlands for the purposes of these regulations and for the
Clean Water Act. The agencies recognize the importance of providing certainty
for the agricultural community as to the status of their wetland determinations
which have not been certified. The Federal agencies are therefore considering
establishing a specific time frame for completing the evaluation of existing
wetland determinations. During this time frame, an evaluation would be made as
to the accuracy of wetland determinations within a given geographic area or of a
specific type of wetland. Based on the evaluation, landowners would be notified
whether their current wetland determinations are acceptable for both the WC
provisions and the Clean Water Act. USDA is especially seeking comments
regarding implementation of this process
Section 12.31: Section 12.31 is amended to reflect that NRCS will
utilize the 1987 Corps Manual for determining the prevalence of hydrophytic
vegetation. Section 12.31 is also amended to add the criteria for determining
"categorical minimal effect exemptions." If NRCS identifies any
categories of conversion activities and conditions which would only have a
minimal effect on wetland functions and values, then such activities and
conditions will be placed on a list of "categorical minimal effect
exemptions" and such conversion activities and conditions will be
considered exempt from the ineligibility provisions of these regulations. NRCS
will incorporate such activities and conditions in the provisions of these
regulations. USDA is especially seeking comments regarding implementation of
this new exemption. For purposes of the Clean Water Act, the Corps intends to
address this provision as part of its re-issuance of the Clean Water Act section
404 nationwide permits (See 61 FR part VII (June 17, 1996)).
Sections 12.32 and 12.33: Sections 12.32 and 12.33 have been amended
to incorporate the definitions for farmed wetland, farmed-wetland pasture,
commenced-conversion wetland, and prior-converted cropland, where appropriate.
Section 12.33: Section 12.33 has also been amended to modify the
conditions under which NRCS will consider a particular site to be abandoned for
purposes of these regulations. A person who wishes to allow a particular site to
revert to wetland conditions should contact NRCS to ascertain what documentation
is necessary to prevent such land from being considered abandoned for purposes
of the WC provisions of these regulations. For purposes of the Clean Water Act,
the Corps intends to address this provision as part of its re-issuance of the
Clean Water Act section 404 nationwide permits (See 61 FR part VII (June 17,
1996)).
The amendments to part 12 do not affect the recordkeeping requirements and
estimated burdens previously reviewed and approved under Office of Management
and Budget control number 0560-0004.
List of Subjects in 7 CFR part 12
Administrative practices and procedures, Soil Conservation, Wetlands.
Accordingly, Title 7 of the Code of Federal Regulations is
amended by revising Part 12 as follows:
PART 12--HIGHLY ERODIBLE LAND AND WETLAND CONSERVATION
Subpart A--General Provisions
Sec.
12.1 General.
12.2 Definitions.
12.3 Applicability.
12.4 Determination of ineligibility.
12.5 Exemptions.
12.6 Administration.
12.7 Certification of compliance.
12.8 Affiliated persons.
12.9 Landlords and tenants.
12.10 Scheme or device.
12.11 Action based upon advice or action of USDA.
12.12 Appeals.
Subpart B--Highly Erodible Land Conservation
12.20 NRCS responsibilities regarding highly erodible land.
12.21 Identification of highly erodible lands criteria.
12.22 Highly erodible field determination criteria.
12.23 Conservation plans and conservation systems.
Subpart C--Wetland Conservation
12.30 NRCS responsibilities regarding wetlands.
12.31 On-site wetland identification criteria.
12.32 Converted wetland identification criteria.
12.33 Use of wetland and converted wetland.
12.34 Paperwork Reduction Act assigned number.
Authority: 16 U.S.C. 3801 et seq.
Subpart A--General Provisions
Sec. 12.1 General.
(a) Scope. This part sets forth the terms and conditions under which a
person who produces an agricultural commodity on highly erodible land or
designates such land for conservation use, plants an agricultural commodity on a
converted wetland, or converts a wetland shall be determined to be ineligible
for certain benefits provided by the United States Department of Agriculture
(USDA) and agencies and instrumentalities of USDA.
(b) Purpose. The purpose of the provisions of this part are to remove
certain incentives for persons to produce agricultural commodities on highly
erodible land or converted wetland and to thereby--
(1) Reduce soil loss due to wind and water erosion;
(2) Protect the Nation's long-term capability to produce food and fiber;
(3) Reduce sedimentation and improve water quality; and
(4) Assist in preserving the functions and values of the Nation's wetlands.
Sec. 12.2 Definitions.
(a) General. The following definitions shall be applicable for the
purposes of this part:
Agricultural commodity means any crop planted and produced by annual
tilling of the soil, including tilling by one-trip planters, or sugarcane.
CCC means the Commodity Credit Corporation, a wholly-owned government
corporation within USDA organized under the provisions of 15 U.S.C. 714 et seq.
Conservation District (CD) means a subdivision of a State or local
government organized pursuant to the applicable law to develop and implement
soil and water conservation activities or programs.
Conservation plan means the document that--
(1) Applies to highly erodible cropland;
(2) Describes the conservation system applicable to the highly erodible
cropland and describes the decisions of the person with respect to location,
land use, tillage systems, and conservation treatment measures and schedules;
and
(3) Is approved by the local soil conservation district in consultation with
the local committees established under section 8(b)(5) of the Soil Conservation
and Domestic Allotment Act (16 U.S.C. 590h(b)(5)) and the Natural Resources
Conservation Service (NRCS) for purposes of compliance with this part.
Conservation system means a combination of one or more conservation
measures or management practices that are--
(1) Based on local resource conditions, available conservation technology,
and the standards and guidelines contained in the NRCS field office technical
guides (available from NRCS State offices); and
(2) Designed for purposes of this part to achieve, in a cost-effective and
technically practicable manner, a substantial reduction in soil erosion or a
substantial improvement in soil conditions on a field or group of fields
containing highly erodible cropland when compared to the level of erosion or
soil conditions that existed before the application of the conservation measures
and management practices.
Conservation use or set aside means cropland that is designated as
conservation-use acreage, set aside, or other similar designation for the
purpose of fulfilling provisions under any acreage-limitation or land-diversion
program administered by the Secretary of Agriculture requiring that the producer
devote a specified acreage to conservation or other non-crop production uses.
Creation of a wetland means the development of the hydrologic,
geochemical, and biological components necessary to support and maintain a
wetland where a wetland did not previously exist. Any wetland established on a
non-hydric soil will be considered a created wetland.
CSREES means the Cooperative State Research, Education, and Extension
Service, an agency of USDA which is generally responsible for coordinating the
information and educational programs of USDA.
Department means the United States Department of Agriculture (USDA).
Enhancement of a wetland means the alteration of an existing wetland
to increase its specific functions and values. Enhancement actions include new
capabilities, management options, structures, or other actions to influence one
or several functions and values.
Erodibility index means a numerical value that expresses the potential
erodibility of a soil in relation to its soil loss tolerance value without
consideration of applied conservation practices or management.
FSA means the Farm Service Agency, an agency of USDA which is
generally responsible for administering commodity production adjustment and
certain conservation programs of USDA.
Field means a part of a farm that is separated from the balance of the
farm by permanent boundaries such as fences, roads, permanent waterways, or
other similar features. At the option of the owner or operator of the farm,
croplines may also be used to delineate a field if farming practices make it
probable that the croplines are not subject to change. Any highly erodible land
on which an agricultural commodity is produced after December 23, 1985, and is
not exempt under Sec. 12.5(a), shall be considered part of the field in which
the land was included on December 23, 1985, unless, to carry out this title, the
owner and FSA agree to modify the boundaries of the field.
Highly erodible land means land that has an erodibility index of 8 or
more.
Hydric soils means soils that, in an undrained condition, are
saturated, flooded, or ponded long enough during a growing season to develop an
anaerobic condition that supports the growth and regeneration of hydrophytic
vegetation.
Hydrophytic vegetation means plants growing in water or in a substrate
that is at least periodically deficient in oxygen during a growing season as a
result of excessive water content.
Landlord means a person who rents or leases farmland to another
person.
Local FSA office means the county office of the Farm Service Agency
serving the county or a combination of counties in the area in which a person's
land is located for administrative purposes.
NRCS means the Natural Resources Conservation Service, an agency
within USDA which is generally responsible for providing technical assistance in
matters of natural resources conservation and for administering certain
conservation programs of USDA.
Operator means the person who is in general control of the farming
operations on the farm during the crop year.
Owner means a person who is determined to have legal ownership of
farmland and shall include a person who is purchasing farmland under contract.
Person means an individual, partnership, association, corporation,
cooperative, estate, trust, joint venture, joint operation, or other business
enterprise or other legal entity and, whenever applicable, a State, a political
subdivision of a State, or any agency thereof, and such person's affiliates as
provided in Sec. 12.8 of this part.
Restoration of a wetland means the re-establishment of wetland
conditions, including hydrologic condition or native hydrophytic vegetation, to
an area where a wetland had previously existed.
Secretary means the Secretary of USDA.
Sharecropper means a person who performs work in connection with the
production of a crop under the supervision of the operator and who receives a
share of such crop for such labor.
Soil map unit means an area of the landscape shown on a soil map which
consists of one or more soils.
State means each of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United States,
American Samoa, the Commonwealth of the Northern Mariana Islands, or the Trust
Territory of the Pacific Islands.
Tenant means a person usually called a "cash tenant",
"fixed-rent tenant", or "standing rent tenant" who rents
land from another for a fixed amount of cash or a fixed amount of a commodity to
be paid as rent; or a person (other than a sharecropper) usually called a
"share tenant" who rents land from another person and pays as rent a
share of the crops or proceeds therefrom. A tenant shall not be considered the
farm operator unless the tenant is determined to be the operator pursuant to
this part and 7 CFR part 718.
Wetland, except when such term is a part of the term "converted
wetland", means land that--
(1) Has a predominance of hydric soils;
(2) Is 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; and
(3) Under normal circumstances does support a prevalence of such vegetation,
except that this term does not include lands in Alaska identified as having a
high potential for agricultural development and a predominance of permafrost
soils.
Wetland determination means a decision regarding whether or not an
area is a wetland, including identification of wetland type and size. A wetland
determination may include identification of an area as one of the following
types of wetland--
(1) Artificial wetland is an area that was formerly non-wetland, but now
meets wetland criteria due to human activities, such as:
(i) An artificial lake or pond created by excavating or diking land that is
not a wetland to collect and retain water that is used primarily for livestock,
fish production, irrigation, wildlife, fire control, flood control, cranberry
growing, or rice production, or as a settling pond; or
(ii) A wetland that is temporarily or incidentally created as a result of
adjacent development activity;
(2) Commenced-conversion wetland is a wetland, farmed wetland,
farmed-wetland pasture, or a converted wetland on which conversion began, but
was not completed, prior to December 23, 1985.
(3) Converted wetland is a wetland that has been drained, dredged,
filled, leveled, or otherwise manipulated (including the removal of woody
vegetation or any activity that results in impairing or reducing the flow and
circulation of water) for the purpose of or to have the effect of making
possible the production of an agricultural commodity without further application
of the manipulations described herein if:
(i) Such production would not have been possible but for such action, and
(ii) Before such action such land was wetland, farmed wetland, or
farmed-wetland pasture and was neither highly erodible land nor highly erodible
cropland;
(4) Farmed wetland is a wetland that prior to December 23, 1985, was
manipulated and used to produce an agricultural commodity, and on December 23,
1985, did not support woody vegetation and met the following hydrologic
criteria:
(i) Is inundated for 15 consecutive days or more during the growing season or
10 percent of the growing season, whichever is less, in most years (50 percent
chance or more), or
(ii) If a pothole, playa, or pocosin, is ponded for 7 or more consecutive
days during the growing season in most years (50 percent chance or more) or is
saturated for 14 or more consecutive days during the growing season in most
years (50 percent chance or more);
(5) Farmed-wetland pasture is wetland that was manipulated and managed
for pasture or hayland prior to December 23, 1985, and on December 23, 1985, met
the following hydrologic criteria:
(i) Inundated or ponded for 7 or more consecutive days during the growing
season in most years (50 percent chance or more), or
(ii) Saturated for 14 or more consecutive days during the growing season in
most years (50 percent chance or more);
(6) Not-inventoried land, is an area for which no evaluation of soils,
vegetation, or hydrology has been conducted to determine if wetland criteria are
met;
(7) Non-wetland is:
(I) Land that under natural conditions does not meet wetland criteria, or
(ii) Is converted wetland the conversion of which occurred prior to December
23, 1985, and on that date, the land did not meet wetland criteria but an
agricultural commodity was not produced and the area was not managed for pasture
or hay;
(8) Prior-converted cropland is a converted wetland where the
conversion occurred prior to December 23, 1985, an agricultural commodity had
been produced at least once before December 23, 1985, and as of December 23,
1985, the converted wetland did not support woody vegetation and met the
following hydrologic criteria:
(i) Inundation was less than 15 consecutive days during the growing season or
10 percent of the growing season, whichever is less, in most years (50 percent
chance or more); and
(ii) If a pothole, playa or pocosin, ponding was less than 7 consecutive days
during the growing season in most years (50 percent chance or more) and
saturation was less than 14 consecutive days during the growing season most
years (50 percent chance or more); or
(9) Wetland, as defined above in this section.
Wetland delineation means outlining the boundaries of a wetland
determination on aerial photography, digital imagery, other graphic
representation of the area, or on the land.
(b) Terms for FSA operations. In the regulations in this part, and in all
instructions, forms, and documents in connection therewith, all other words and
phrases specifically relating to FSA operations shall, unless required by the
subject matter or the specific provisions of this part, have the meanings
assigned to them in the regulations at part 718 of this title that govern
reconstitutions of farms, allotments, and bases and any subsequent amendment
thereto.
Sec. 12.3 Applicability.
(a) Geographic scope. The provisions of this part shall apply to all
land, including Indian tribal land, in the fifty States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands of the
United States, American Samoa, the Commonwealth of the Northern Mariana Islands,
and the Federated States of Micronesia, the Republic of Palau, and the Republic
of the Marshall Islands.
(b) Effective date. The provisions of this part apply to all actions
taken after July 3, 1996, and to determinations made after or pending on July 3,
1996, except to the extent that
Sec. 12.5(a)(5) and 12.5(b)(4) through (b)(8) specify retroactive application
to December 23, 1985, and November 28, 1990, for certain actions and
determinations regarding wetlands and converted wetlands. Actions taken and
determinations made prior to July 3, 1996, are subject to regulations set forth
in this part as of July 2, 1996, except as otherwise provided in this part.
Further, to the extent that a person may be eligible for an exemption for an
action taken before July 3, 1996, the action is subject to the provisions of
this part.
Sec. 12.4 Determination of ineligibility.
(a) Actions. Except as provided in Sec. 12.5, a person shall be
ineligible for all or a portion of USDA program benefits listed in this section
if:
(1) The person produces an agricultural commodity on a field in which highly
erodible land is predominant, or designates such a field for conservation use;
(2) The person produces an agricultural commodity on wetland that was
converted after December 23, 1985; or
(3) After November 28, 1990, the person converts a wetland by draining,
dredging, filling, leveling, removing woody vegetation, or other means for the
purpose, or to have the effect, of making the production of an agricultural
commodity possible.
(b) Highly erodible land. A person determined to be ineligible under
paragraph (a)(1) of this section may be ineligible for all program benefits
listed in (d) and (e) of this section.
(c) Wetland conservation. A person determined to be ineligible under
paragraph (a)(2) of this section shall be ineligible for all or a portion of the
USDA program benefits listed in paragraph (d) of this section for which the
person otherwise would have been eligible during the crop year of the commodity
that was planted on the converted wetland. A person determined to be ineligible
under paragraph (a)(3) of this section for the conversion of a wetland shall be
ineligible for all or a portion of the USDA program benefits listed in paragraph
(d) of this section for which the person otherwise would have been eligible
during the crop year which is equal to the calendar year during which the
violation occurred and each subsequent crop year until the converted wetland is
restored or the loss of wetland functions and values have been mitigated prior
to the beginning of such calendar year in accordance with Sec. 12.5(b)(4)(i)(A)
and (C) through (F) of this part. Ineligibility under paragraph (a)(2) or (a)(3)
of this section may be reduced, in lieu of the loss of all benefits specified
under paragraph (d) of this section for such crop year, based on the seriousness
of the violation, as determined by the FSA Deputy Administrator for Farm
Programs or designee upon recommendation by the FSA County Committee. Factors
such as the information that was available to the affected person prior to the
violation, previous land use patterns, the existence of previous wetland
violations under this part or under other Federal, State, or local wetland
provisions, the wetland functions and values affected, the recovery time for
full mitigation of the wetland functions and values, and the impact that a
reduction in payments would have on the person's ability to repay a USDA farm
loan shall be considered in making this determination.
(d) Programs subject to either highly erodible land or wetland
conservation. USDA program benefits covered by a determination of
ineligibility under this rule are:
(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, the Commodity Credit Corporation Charter
Act (15 U.S.C. 714 et seq.), or any other Act;
(2) A farm credit program 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 FSA if the Secretary determines that the proceeds of such loan
will be used for a purpose that contributes to the conversion of wetlands that
would make production of an agricultural commodity possible or for a purpose
that contributes to excessive erosion of highly erodible land (i.e., production
of an agricultural commodity or highly erodible land without a conservation plan
or conservation system as required by this part);
(3) A payment made pursuant to a contract entered into under the
Environmental Quality Incentives Program under chapter 4 of subtitle D of the
Food Security Act of 1985, as amended; or a payment under any other provision of
Subtitle D of that Act;
(4) A payment made under section 401 or 402 of the Agricultural Credit Act of
1978 (16 U.S.C. 2201 or 2202);
(5) A payment, loan, or other assistance under section 3 or 8 of the
Watershed Protection and Flood Prevention Act (16 U.S.C. 1003 or 1006a).
(e) Programs subject to highly erodible land only. In addition to
programs listed in paragraph (d) of this section, a person determined to be
ineligible under paragraph (a)(1) of this section shall be ineligible as
determined by FSA for the following USDA program benefits for which the person
otherwise would have been eligible during the crop year for which the
determination applies:
(1) A farm storage facility loan made under section 4(h) of the Commodity
Credit Corporation Charter Act (15 U.S.C. 714b(h));
(2) A disaster payment made under the Federal Agriculture Improvement and
Reform Act, Pub. L. 104-127, or any other act; and
(3) A payment made under section 4 or 5 of the Commodity Credit Corporation
Charter Act (15 U.S.C. 714b or 714c) for the storage of an agricultural
commodity acquired by the Commodity Credit Corporation.
(f) Prior loans. The provisions of paragraphs (a), (b), and (c) of
this section do not apply to any loan described in paragraphs (d) or (e) of this
section that was made prior to December 23, 1985.
(g) Determination of ineligibility. For the purposes of paragraph (a)
of this section, a person shall be determined to have produced an agricultural
commodity on a field in which highly erodible land is predominant or to have
designated such a field for conservation use, to have produced an agricultural
commodity on converted wetland, or to have converted a wetland if:
(1) NRCS has determined that--
(i) Highly erodible land is predominant in such field, or
(ii) All or a portion of the field is converted wetland; and
(2) FSA has determined that the person is or was the owner or operator of the
land, or entitled to share in the crops available from the land, or in the
proceeds thereof; and
(3) With regard to the provisions of paragraphs (a)(1) and (a)(2) of this
section, FSA has determined that the land is or was planted to an agricultural
commodity or was designated as conservation use during the year for which the
person is requesting benefits.
(h) Intent to participate in USDA programs. Persons who wish to
participate in any of the USDA programs described in paragraph (d) or (e) of
this section are responsible for contacting the appropriate agency of USDA well
in advance of the intended participation date so that Form AD-1026 can be
completed. This contact will help assure that the appropriate determinations
regarding highly erodible land or wetland, and conservation plans or
conservation systems are scheduled in a timely manner. A late contact may not
allow sufficient time for USDA to service the request and could result in a
substantial delay in receiving a USDA determination of eligibility or
ineligibility.
Sec. 12.5 Exemptions.
(a) Exemptions regarding highly erodible land.
(1) Highly erodible cropland in production or in USDA programs during 1981
through 1985 crop years. During the period beginning on December 23, 1985, and
ending on the later of January 1, 1990, or the date that is two years after the
date the cropland on which an agricultural commodity is produced was surveyed by
NRCS to determine if such land is highly erodible, no person shall be determined
to be ineligible for benefits as provided in Sec. 12.4 as the result of the
production of an agricultural commodity on any highly erodible land:
(i) That was planted to an agricultural commodity in any year 1981 through
1985; or
(ii) That was set aside, diverted, or otherwise not cultivated in any such
crop years under a program administered by the Secretary for any such crops to
reduce production of an agricultural commodity.
(2) Compliance with a conservation plan or conservation system. As
further specified in this part, no person shall be ineligible for the program
benefits described in Sec. 12.4 as the result of production of an agricultural
commodity on highly erodible land or the designation of such land for
conservation use if such production or designation is in compliance with a
conservation plan or conservation system approved under paragraphs (a)(2)(i) or
(a)(2)(ii) of this section. A person shall not be ineligible for program
benefits under Sec. 12.4 as the result of the production of an agricultural
commodity on highly erodible land or as the result of designation of such land
as conservation use if the production or designation is:
(i) In an area within a CD, under a conservation system that has been
approved by the CD after the CD determines that the conservation system is in
conformity with technical standards set forth in the NRCS field office technical
guide for such district; or
(ii) In an area not within a CD, under a conservation system that has been
approved by NRCS to be adequate for the production of such agricultural
commodity on highly erodible land or for the designation of such land as
conservation use.
(3) Reliance upon NRCS determination for highly erodible land. A
person may be relieved from ineligibility for program benefits as the result of
the production of an agricultural commodity which was produced on highly
erodible land or for the designation of such land as conservation use in
reliance on a determination by NRCS that such land was not highly erodible land,
except that this paragraph shall not apply to any agricultural commodity that
was planted on highly erodible land, or for the designation of highly erodible
land as conservation use after NRCS determines that such land is highly erodible
land, and the person is notified of such determinations.
(4) Areas of 2 acres or less. No person shall be determined to be
ineligible under Sec. 12.4 for noncommercial production of agricultural
commodities on highly erodible land on an area of 2 acres or less if it is
determined by FSA that such production is not intended to circumvent the
conservation requirements otherwise applicable under this part.
(5) Good faith.
(i) No person shall become ineligible under Sec. 12.4 as a result of the
failure of such person to apply a conservation system on highly erodible land
that was converted from native vegetation, i.e. rangeland or woodland, to crop
production before December 23, 1985, if FSA determines such person has acted in
good faith and without the intent to violate the provisions of this part and if
NRCS determines that the person complies with paragraph (a)(5)(ii) of this
section.
(ii) A person who is determined to meet the requirements of paragraph
(a)(5)(i) of this section shall be allowed a reasonable period of time, as
determined by NRCS, but not to exceed one year, during which to implement the
measures and practices necessary to be considered applying the person's
conservation plan. If a person does not take the required corrective actions,
the person may be determined to be ineligible for the crop year during which
such actions were to be taken as well as any subsequent crop years.
Notwithstanding the good-faith requirements of paragraph (a)(5)(i) of this
section, if NRCS observes a possible compliance deficiency while providing
on-site technical assistance, NRCS shall provide to the responsible person, not
later than 45 days after observing the possible violation, information regarding
actions needed to comply with the plan and this subtitle. NRCS shall provide
this information in lieu of reporting the observation as a violation, if the
responsible person attempts to correct the deficiencies as soon as practicable,
as determined by NRCS, after receiving the information, and if the person takes
corrective action as directed by NRCS not later than one year after receiving
the information. If a person does not take the required corrective actions, the
person may be determined to be ineligible for the crop year during which the
compliance deficiencies occurred as well as any subsequent crop years.
(iii) No person shall become ineligible under Sec. 12.4 as a result of
failure to apply a conservation system with respect to highly erodible cropland
that was converted from native vegetation, i.e., rangeland or woodland, to crop
production after December 23, 1985, if such person has acted in good faith and
without an intent to violate the provisions of this part. The person shall, in
lieu of the loss of all benefits specified under Sec. 12.4(d) and (e) for such
crop year, be subject to a reduction in benefits of not less than $500 nor more
than $5,000 depending upon the seriousness of the violation, as determined by
FSA. The dollar amount of the reduction will be determined by FSA and may be
based on the number of acres and the degree of erosion hazard for the area in
violation, as determined by NRCS, or upon such other factors as FSA deems
appropriate.
(iv) Any person whose benefits are reduced in a crop year under paragraph
(a)(5) of this section may be eligible for all of the benefits specified under
Sec. 12.4(d) and (e) for any subsequent crop year if NRCS determines that such
person is applying a conservation plan according to the schedule set forth in
the plan on all highly erodible land planted to an agricultural commodity or
designated as conservation use.
(6) Allowable variances.
(i) Notwithstanding any other provisions of this part, no person shall be
determined to be ineligible for benefits as a result of the failure of such
person to apply a conservation system if NRCS determines that--
(A) The failure is technical and minor in nature and that such violation has
little effect on the erosion control purposes of the conservation plan
applicable to the land on which the violation has occurred; or
(B) The failure is due to circumstances beyond the control of the person; or
(C) NRCS grants a temporary variance from the practices specified in the plan
for the purpose of handling a specific problem, including weather, pest, and
disease problems, which NRCS determines cannot reasonably be addressed except
through such variance.
(ii) If the person's request for a temporary variance involves the use of
practices or measures to address weather, pest, or disease problems, NRCS shall
make a decision on whether to grant the variance during the 30-day period
beginning on the date of receipt of the request. If NRCS fails to render a
decision during the period, the temporary variance shall be considered granted
unless the person seeking the variance had reason to know that the variance
would not be granted. In determining whether to grant a variance for natural
disasters such as weather, pest, or disease problems, NRCS will consider such
factors as:
(A) The percent of a stand damaged or destroyed by the event;
(B) The percent of expected crop production compared to normal production for
that crop;
(C) The documented invasion of non-native insects, weeds, or diseases for
which no recognized treatment exists;
(D) Whether an event is severe or unusual based on historical weather
records; and
(E) Other specific circumstances caused by a natural event that prevented the
implementation of conservation practices or systems, installation of structures,
or planting of cover crops.
(b) Exemptions for wetlands and converted wetlands.
(1) General exemptions. A person shall not be determined to be
ineligible for program benefits under Sec. 12.4 as the result of the production
of an agricultural commodity on converted wetland or the conversion of wetland
if:
(i) The land is a prior-converted cropland and meets the definition of a
prior-converted cropland as of the date of a wetland determination by NRCS;
(ii) The land has been determined by NRCS to be a prior-converted cropland
and such determination has been certified, and NRCS determines that the wetland
characteristics returned after the date of the wetland certification as a result
of--
(A) The lack of maintenance of drainage, dikes, levees, or similar
structures,
(B) The lack of management of the lands containing the wetland, or
(C) Circumstances beyond the control of the person;
(iii) The land was determined by NRCS to be a farmed wetland or a
farmed-wetland pasture and--
(A) Such land meets wetland criteria through a voluntary restoration,
enhancement, or creation action after that determination,
(B) The technical determinations regarding the baseline site conditions and
the restoration, enhancement, or creation action have been adequately documented
by NRCS,
(C) The proposed conversion action is documented by the NRCS prior to
implementation, and
(D) 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 at
the time of implementation of the voluntary wetland restoration, enhancement, or
creation action;
(iv) NRCS has determined that the conversion is for a purpose that does not
make the production of an agricultural commodity possible, such as conversions
for fish production, trees, vineyards, shrubs, cranberries, agricultural waste
management structures, livestock ponds, fire control, or building and road
construction and no agricultural commodity is produced on such land;
(v) NRCS has determined that the actions of the person with respect to the
conversion of the wetland or the combined effect of the production of an
agricultural commodity on a wetland converted by the person or by someone else,
individually and in connection with all other similar actions authorized by NRCS
in the area, would have only a minimal effect on the wetland functions and
values of wetlands in the area;
(vi) (A) After December 23, 1985, the Army Corps of Engineers issued an
individual permit pursuant to section 404 of the Clean Water Act, 33 U.S.C.
1344, authorizing such action and the permit required mitigation that adequately
replaced the functions and values of the wetlands converted, as determined by
NRCS, or
(B) After December 23, 1985, the action is encompassed under section 404 of
the Clean Water Act, 33 U.S.C. 1344, by an Army Corps of Engineers nationwide or
regional general permit and the wetland functions and values were adequately
mitigated, as determined by NRCS; or
(vii) The land is determined by NRCS to be--
(A) An artificial wetland,
(B) A wet area created by a water delivery system, irrigation, irrigation
system, or application of water for irrigation,
(C) A nontidal drainage or irrigation ditch excavated in non-wetland, or
(D) A wetland converted by actions of persons other than the person applying
for USDA program benefits or any of the person's predecessors in interest after
December 23, 1985, if such conversion was not the result of a scheme or device
to avoid compliance with this part. Further drainage improvement on such land is
not permitted without loss of eligibility for USDA program benefits, unless NRCS
determines under paragraph (b)(1)(v) of this section that further drainage
activities applied to such land would have minimal effect on the wetland
functions and values in the area. In applying this paragraph, a converted
wetland shall be presumed to have been converted by the person applying for USDA
program benefits unless the person can show that the conversion was caused by a
third party with whom the person was not associated through a scheme or device
as described under Sec. 12.10 of this part. In this regard, activities of a
water resource district, drainage district, or similar entity will be attributed
to all persons within the jurisdiction of the district or other entity who are
assessed for the activities of the district or entity. Accordingly, where a
person's wetland is converted due to the actions of the district or entity, the
person shall be considered to have caused or permitted the drainage.
Notwithstanding the provisions of the preceding sentences and as determined by
FSA to be consistent with the purposes of this part, the activities of a
drainage district or other similar entity will not be attributed to a person to
the extent that the activities of the district or entity were beyond the control
of the person and the wetland converted is not used by the person for the
production of an agricultural commodity or a forage crop for harvest by
mechanical means or mitigation for the converted wetland occurs in accordance
with this part.
(2) Commenced conversion wetlands.
(i) The purpose of a determination of a commenced conversion made under this
paragraph is to implement the legislative intent that those persons who had
actually started conversion of a wetland or obligated funds for conversion prior
to December 23, 1985, would be allowed to complete the conversion so as to avoid
unnecessary economic hardship.
(ii) All persons who believed they had a wetland or converted wetland for
which conversion began but was not completed prior to December 23, 1985, must
have requested by September 19, 1988, FSA to make a determination of
commencement in order to be considered exempt under this section.
(iii) Any conversion activity considered by FSA to be commenced under this
section lost its exempt status if such activity was not completed on or before
January 1, 1995. For purposes of this part, land on which such conversion
activities were completed by January 1, 1995, shall be evaluated by the same
standards and qualify for the same exemptions as prior-converted croplands. For
purposes of this part, land on which such conversion activities were not
completed by January 1, 1995, shall be evaluated by the same standards and
qualify for the same exemptions as wetlands or farmed wetlands, as applicable.
(iv) Only those wetlands for which the construction had begun, or to which
the contract or purchased supplies and materials related, qualified for a
determination of commencement. However, in those circumstances where the
conversion of wetland did not meet the specific requirements of this paragraph,
the person could have requested a commencement of conversion determination from
the FSA Deputy Administrator for Farm Programs, upon a showing that undue
economic hardship would have resulted because of substantial financial
obligations incurred prior to December 23, 1985, for the primary and direct
purpose of converting the wetland.
(3) Wetlands farmed under natural conditions. A person shall not be
determined to be ineligible for program benefits under Sec. 12.4 of this part as
a result of the production of an agricultural commodity on a wetland on which
the owner or operator of a farm or ranch uses normal cropping or ranching
practices to produce agricultural commodities in a manner that is consistent for
the area, where such production is possible as a result of natural conditions,
such as drought, and is without action by the producer that alters the hydrology
or removes woody vegetation.
(4) Mitigation.
(i) No person shall be determined to be ineligible under Sec. 12.4 for any
action associated with the conversion of a wetland if the wetland functions and
values are adequately mitigated, as determined by NRCS, through the restoration
of a converted wetland, the enhancement of an existing wetland, or the creation
of a new wetland, if the mitigation--
(A) Is in accordance with a mitigation plan approved by NRCS;
(B) Is in advance of, or concurrent with, the wetland conversion or the
production of an agricultural commodity, as applicable;
(C) Is not at the expense of the federal government in either supporting the
direct or indirect costs of the restoration activity or costs associated with
acquiring or securing mitigation sites, except if conducted under a mitigation
banking pilot program established by USDA;
(D) Occurs on lands in the same general area of the local watershed as the
converted wetlands, provided that for purposes of this paragraph, lands in the
same general area of the local watershed may include regional mitigation banks;
(E) Is on lands for which the owner has granted an easement to USDA, recorded
the easement on public land records, and has agreed to the maintenance of the
restored, created, or enhanced wetland for as long as the converted wetland for
which the mitigation occurred remains in agricultural use or is not returned to
its original wetland classification with equivalent functions and values; and
(F) Provides the equivalent functions and values that will be lost as a
result of the wetland conversion.
(ii) A mitigation plan is a record of decisions that document the actions
necessary to compensate for the loss of wetland functions and values that result
from converting a wetland. The mitigation plan may be a component of a larger
natural resources conservation plan.
(iii) The State Conservationist, in consultation with the State Technical
Committee, may name certain types or classes of wetland not eligible for
exemption under paragraph (b)(4)(i) of this section where the State
Conservationist determines that mitigation will not achieve equivalent
replacement of wetland functions and values within a reasonable time frame or
for other reasons identified by the State Conservationist. Any type or class of
wetland that a State Conservationist identifies as not eligible for exemption
under paragraph (b)(4)(i) of this section will be published in the FEDERAL
REGISTER for inclusion in this part.
(5) Good Faith Violations.
(i) A person who is determined under Sec. 12.4 to be ineligible for benefits
as the result of the production of an agricultural commodity on a wetland
converted after December 23, 1985, or as the result of the conversion of a
wetland after November 28, 1990, may regain eligibility for benefits if--
(A) FSA determines that such person acted in good faith and without the
intent to violate the wetland provisions of this part, and
(B) NRCS determines that the person within an agreed to period, not to exceed
1 year, is implementing all practices in a mitigation plan.
(ii) In determining whether a person acted in good faith under paragraph
(b)(5)(i)(A) of this section, the FSA shall consider such factors as whether--
(A) The characteristics of the site were such that the person should have
been aware that a wetland existed on the subject land,
(B) NRCS had informed the person about the existence of a wetland on the
subject land,
(C) The person did not convert the wetland, but planted an agricultural
commodity on converted wetland when the person should have known that a wetland
previously existed on the subject land,
(D) The person has a record of violating the wetland provisions of this part
or other Federal, State, or local wetland provisions, or
(E) There exists other information that demonstrates that the person acted
with the intent to violate the wetland provisions of this part.
(iii) After the requirements of paragraph (b)(5)(i) of this section are met,
USDA may waive applying the ineligibility provisions of Sec. 12.4.
(6) Reliance upon NRCS wetland determination. (i) A person shall not
be ineligible for program benefits as a result of taking an action in reliance
on a previous certified wetland determination by NRCS.
(ii) A person who may be ineligible for program benefits as the result of the
production of an agricultural commodity on converted wetland or for the
conversion of a wetland may seek relief under Sec. 12.11 of this part if such
action was taken in reliance on an incorrect technical determination by NRCS as
to the status of such land. If the error caused the person to make a substantial
financial investment, as determined by the NRCS, for the conversion of a
wetland, the person may be relieved of ineligibility for actions related to that
portion of the converted wetland for which the substantial financial investment
was expended in conversion activities. The relief available under this paragraph
shall not apply to situations in which the person knew or reasonably should have
known that the determination was in error because the characteristics of the
site were such that the person should have been aware that a wetland existed on
the subject land, or for other reasons.
(7) Responsibility to provide evidence. It is the responsibility of
the person seeking an exemption related to converted wetlands under this section
to provide evidence, such as receipts, crop-history data, drawings, plans or
similar information, for purposes of determining whether the conversion or other
action is exempt in accordance with this section.
Sec. 12.6 Administration.
(a) General. A determination of ineligibility for benefits in
accordance with the provisions of this part shall be made by the agency of USDA
to which the person has applied for benefits. All determinations required to be
made under the provisions of this part shall be made by the agency responsible
for making such determinations, as provided in this section.
(b) Administration by FSA.
(1) The provisions of this part which are applicable to FSA will be
administered under the general supervision of the Administrator, FSA, and shall
be carried out in the field in part by State FSA committees and county FSA
committees (COC).
(2) The FSA Deputy Administrator for Farm Programs may determine any question
arising under the provisions of this part which are applicable to FSA and may
reverse or modify any determination of eligibility with respect to programs
administered by FSA made by a State FSA committee or COC or any other FSA office
or FSA official (except the Administrator) in connection with the provisions of
this part.
(3) FSA shall make the following determinations which are required to be made
in accordance with this part:
(i) Whether a person produced an agricultural commodity on a particular field
as determined under Sec. 12.5(a)(1);
(ii) The establishment of field boundaries;
(iii) Whether land was planted to an agricultural commodity in any of the
years, 1981 through 1985, for the purposes of Sec. 12.5(a)(1);
(iv) Whether land was set aside, diverted, or otherwise not cultivated under
a program administered by the Secretary for any crop to reduce production of an
agricultural commodity under Sec. 12.4(g) and Sec. 12.5(a)(1);
(v) Whether for the purposes of Sec. 12.9, the production of an agricultural
commodity on highly erodible land or converted wetland by a landlord's tenant or
sharecropper is required under the terms and conditions of the agreement between
the landlord and such tenant or sharecropper;
(vi) Whether the conversion of a particular wetland was commenced before
December 23, 1985, for the purposes of Sec. 12.5(b)(3);
(vii) Whether the conversion of a wetland was caused by a third party under
Sec. 12.5(b)(1)(vii)(D);
(viii) Whether certain violations were made in good faith under Sec.Sec.
12.5(a)(5) or 12.5(b)(5);
(ix) The determination of the amount of reduction in benefits based on the
seriousness of the violation, based on technical information provided by NRCS;
(x) The determination of whether the application of the producer's
conservation system would impose an undue economic hardship on the producer; and
(xi) Whether the proceeds of a farm loan made, insured, or guaranteed by FSA
will be used for a purpose that will contribute to excessive erosion of highly
erodible land or to the conversion of wetland.
(4) A representative number of farms selected in accordance with instructions
issued by the Deputy Administrator shall be inspected by an authorized
representative of FSA to determine compliance with any requirement specified in
this part as a prerequisite for obtaining program benefits.
(5) FSA may consult with U.S. Fish and Wildlife Service on third-party
determinations.
(c) Administration by NRCS.
(1) The provisions of this part that are applicable to NRCS shall be
administered under the general supervision of the Deputy Chief for Natural
Resources Conservation Programs, and shall be carried out in the field by the
regional conservationist, state conservationist, area conservationist, and
district conservationist or other NRCS representative.
(2) An NRCS representative shall make the following determinations which are
required to be made in accordance with this part:
(i) Whether land is highly erodible or has a wetland type or a converted
wetland identified in accordance with the provisions of this part;
(ii) Whether highly erodible land is predominant on a particular field under
Sec. 12.22;
(iii) Whether the conservation plan that a person is applying is based on the
local NRCS field office technical guide and is approved by--
(A) The CD and NRCS, or
(B) By NRCS;
(iv) Whether the conservation system that a person is using has been approved
by the CD under Sec. 12.5(a)(2) or, in an area not within a CD, a conservation
system approved by NRCS to be adequate for the production of an agricultural
commodity on highly erodible land;
(v) Whether the actions of a person(s) with respect to the conversion of a
wetland or production of an agricultural commodity on converted wetland would
have only a minimal effect on the functions and values of wetlands in the area;
(vi) Whether an approved conservation plan is being applied on highly
erodible fields in accordance with the schedule specified therein or whether a
failure to apply the plan is technical and minor in nature, due to circumstances
beyond the control of the person, or whether a temporary variance from the
requirements of the plan should be granted;
(vii) Whether an approved conservation system is being used on a highly
erodible field;
(viii) Whether the conversion of a wetland is for the purpose or has the
effect of making the production of an agricultural commodity possible;
(ix) Whether a farmed wetland or farmed-wetland pasture is abandoned;
(x) Whether the planting of an agricultural commodity on a wetland is
possible under natural conditions;
(xi) Whether maintenance of existing drainage of a wetland described in Sec.
12.33 exceeds the scope and effect of the original drainage;
(xii) Whether a plan for the mitigation of a converted wetland will be
approved and whether the mitigation of a converted wetland is accomplished
according to the approved mitigation plan;
(xiii) Whether all technical information relating to the determination of a
violation and severity of a violation has been provided to FSA for making
payment-reduction determinations; and
(xiv) Whether or not a commenced-conversion activity was completed by January
1, 1995.
(3) NRCS may provide such other technical assistance for implementation of
the provisions of this part as is determined to be necessary.
(4) A person may obtain a highly erodible land or a wetland scope-and-effect
determination by making a written request on Form AD-1026. The determination
will be made in writing, and a copy will be provided to the person.
(5) A determination of whether or not an area meets the highly erodible land
criteria or whether wetland criteria, identified in accordance with the current
Federal wetland delineation methodology in use at the time of the determination
and that are consistent with current mapping conventions, may be made by the
NRCS representative based upon existing records or other information and without
the need for an on-site determination. This determination will be made by the
NRCS representative as soon as possible following a request for such a
determination.
(6) An on-site determination as to whether an area meets the applicable
criteria shall be made by an NRCS representative if the person has disagreed
with the determination made under paragraph (c)(5) of this section, or if
adequate information is not otherwise available to an NRCS representative on
which to make an off-site determination.
(7) An on-site determination, where applicable, will be made by the NRCS
representative as soon as possible following a request for such a determination,
but only when site conditions are favorable for the evaluation of soils,
hydrology, or vegetation.
(8) With regard to wetland determinations, if an area is continuously
inundated or saturated for long periods of time during the growing season to
such an extent that access by foot to make a determination of predominance of
hydric soils or prevalence of hydrophytic vegetation is not feasible, the area
will be determined to be a wetland.
(9) Persons who are adversely affected by a determination made under this
section and believe that the requirements of this part were improperly applied
may appeal, under Sec. 12.12 of this part, any determination by NRCS.
(d) Administration by CSREES. The CSREES shall coordinate the related
information and education program for USDA concerning implementation of this
rule.
(e) Assistance of other Federal agencies. If NRCS determines, through
agreement or otherwise, that the purposes of this part would be furthered by the
assistance of other Federal agencies with wetland responsibilities, NRCS may
accept such assistance and adopt any or all such actions by these agencies as an
action by an NRCS representative under this part.
Sec. 12.7 Certification of compliance.
(a) Self-certification. In order for a person to be determined to be
eligible for any of the benefits specified in Sec. 12.4:
(1) It must be determined by USDA whether any field in which the person
applying for the benefits has an interest and intends to produce an agricultural
commodity contains highly erodible land;
(2) The person applying for or receiving the benefits must certify in writing
on Form AD-1026 that such person will not produce an agricultural commodity on
highly erodible land, or designate such land for conservation use; or plant an
agricultural commodity on a converted wetland; or convert a wetland to make
possible the production of an agricultural commodity during the crop year in
which the person is seeking such benefits, unless such actions are exempt, under
Sec. 12.5, from the provisions of Sec. 12.4 of this part;
(3) A person may certify application of practices required by the person's
conservation plan. NRCS shall permit a person who makes such a certification
with respect to a conservation plan to revise the conservation plan in any
manner, if the same level of conservation treatment provided for by the
conservation system under the person's conservation plan is maintained. NRCS may
not revise the person's conservation plan without the concurrence of the person;
(4) The person applying for a FSA direct or guaranteed farm credit program
loan must certify that such person shall not use the proceeds of the loan for a
purpose that will contribute to excessive erosion on highly erodible land or to
conversion of wetlands for the purpose, or to have the effect, of making the
production of an agricultural commodity possible; and
(5) The person applying for the benefits must authorize and provide
representatives of USDA access to all land in which such person has an interest
for the purpose of verifying any such certification.
(b) Availability to other agencies. Each agency of USDA shall make all
certifications of compliance received by such agency and the results of
investigations concerning such certifications of compliance available to other
agencies.
(c) Compliance. A certification made in accordance with this section
does not relieve any person from compliance with the provisions of this part.
Sec. 12.8 Affiliated persons.
(a) Ineligibility of affiliated persons. Ineligibility of an
individual or entity under this part for benefits shall also be an ineligibility
for benefits for "affiliated persons" as defined in this section.
(b) Affiliated persons of an individual. If the person requesting
benefits is an individual, the affiliated persons are:
(1) The spouse and minor child of such person or guardian of such child;
except that spouses who establish to the satisfaction of the COC that operations
of the husband and wife are maintained separately and independently shall not be
considered affiliates;
(2) Any partnership, joint venture, or other enterprise in which the person
or any person listed in paragraphs (b)(1) has an ownership interest or financial
interest; unless such interest is held indirectly through another business
enterprise; or
(3) Any trust in which the individual, business enterprise, or any person
listed in paragraph (b)(1) is a beneficiary or has a financial interest, unless
such interest is held indirectly through another business enterprise.
(c) Affiliated persons of an entity. If the person who has requested
benefits from USDA is a corporation, partnership, or other joint venture, the
affiliated persons are any participant or stockholder therein of the
corporation, partnership, or other joint venture, except for persons who have an
indirect interest through another business enterprise in such corporation,
partnership, or other joint venture or persons with a 20 percent or less share
in a corporation.
(d) Limitation. Any reduction in payments which results only from the
application of the affiliation provisions of this section to a partnership,
joint venture, trust, or other enterprise shall be limited to the extent of
interest held in such partnership, joint venture, trust, or other enterprise by
the person or business enterprise that committed the violation. However, for
violations for which the business enterprise is considered directly responsible
under the provisions of this part, the business enterprise shall be subject to a
full loss of benefits, including those instances in which the business
enterprise has an interest in the land where the violation occurred or where the
business enterprise had an interest in the crops produced on the land.
(e) Avoidance of this part. Limitations on affiliation shall not apply
as needed to correct for any action that would otherwise tend to defeat the
purposes of this part.
Sec. 12.9 Landlords and tenants.
(a) Landlord eligibility.
(1) Except as provided in paragraph (a)(2) of this section, the ineligibility
of a tenant or sharecropper for benefits (as determined under Sec. 12.4) shall
not cause a landlord to be ineligible for USDA program benefits accruing with
respect to land other than those in which the tenant or sharecropper has an
interest.
(2) The provisions of paragraph (a)(1) of this section shall not be
applicable to a landlord if the production of an agricultural commodity on
highly erodible land or converted wetland by the landlord's tenant or
sharecropper is required under the terms and conditions of the agreement between
the landlord and such tenant or sharecropper and such agreement was entered into
after December 23, 1985, or if the landlord has acquiesced in such activities by
the tenant or sharecropper.
(b) Tenant or renter eligibility.
(1) The ineligibility of a tenant or renter may be limited to the program
benefits listed in
Sec. 12.4(c) accruing with respect to only the farm on which the violation
occurred if:
(i) The tenant or renter shows that a good-faith effort was made to comply by
developing an approved conservation plan for the highly erodible land in a
timely manner and prior to any violation of the provisions of this part; and
(ii) The owner of such farm refuses to apply such a plan and prevents the
tenant or renter from implementing certain practices that are a part of the
approved conservation plan; and
(iii) FSA determines that the lack of compliance is not a part of a scheme or
device as described in Sec. 12.10.
(2) If relief is granted under paragraph (b)(1) of this section, the tenant
or renter must actively apply those conservation treatment measures that are
determined to be within the control of the tenant or renter.
Sec. 12.10 Scheme or device.
All or any part of the benefits listed in Sec. 12.4 otherwise due a person
from USDA may be withheld or required to be refunded if the person adopts or
participates in adopting any scheme or device designed to evade, or which has
the effect of evading, the provisions of this part. Such acts shall include, but
are not limited to, concealing from USDA any information having a bearing on the
application of the provisions of this part or submitting false information to
USDA or creating entities for the purpose of concealing the interest of a person
in a farming operation or to otherwise avoid compliance with the provisions of
this part. Such acts shall also include acquiescence in, approval of, or
assistance to acts which have the effect of, or the purpose of, circumventing
these regulations.
Sec. 12.11 Action based upon advice or action of USDA.
The provisions of part 718 of this Title, as amended, relating to performance
based upon the action or advice of a County Committee (COC) or State FSA
Committee shall be applicable to the provisions of this part. In addition, if it
is determined by the appropriate USDA agency that the action of a person which
would form the basis of any ineligibility under this part was taken by such
person in good-faith reliance on erroneous advice, information, or action of any
other authorized representative of USDA, the appropriate agency may make such
benefits available to the extent that similar relief would be allowed under 7
CFR part 718.
Sec. 12.12 Appeals.
Any person who has been or who would be denied program benefits in accordance
with
Sec. 12.4 as the result of any determination made in accordance with the
provisions of this part may obtain a review of such determination in accordance
with the administrative appeals procedures of the agency which rendered such
determination. Agency appeal procedures are contained in the Code of Federal
Regulations as follows: FSA, part 780 of this title; NRCS, part 614 of this
title; Rural Utilities Service, part 1900, subpart B of this title.
Subpart B--Highly Erodible Land Conservation
Sec. 12.20 NRCS responsibilities regarding highly erodible land.
In implementing the provisions of this part, NRCS shall, to the extent
practicable:
(a) Develop and maintain criteria for identifying highly erodible lands;
(b) Prepare and make available to the public lists of highly erodible soil
map units;
(c) Make soil surveys for purposes of identifying highly erodible land; and
(d) Provide technical guidance to conservation districts which approve
conservation plans and systems, in consultation with local county FSA
committees, for the purposes of this part.
Sec. 12.21 Identification of highly erodible lands criteria.
(a) Basis for identification as highly erodible. Soil map units and an
erodibility index will be used as the basis for identifying highly erodible
land. The erodibility index for a soil is determined by dividing the potential
average annual rate of erosion for each soil by its predetermined soil loss
tolerance (T) value. The T value represents the maximum annual rate of soil
erosion that could occur without causing a decline in long-term productivity.
The equation for measuring erosion is described below.
(1) The potential average annual rate of sheet and rill erosion is estimated
by multiplying the following factors of the Universal Soil Loss Equation (USLE):
(i) Rainfall and runoff (R);
(ii) The degree to which the soil resists water erosion (K); and
(iii) The function (LS), which includes the effects of slope length (L) and
steepness (S).
(2) The potential average annual rate of wind erosion is estimated by
multiplying the following factors of the Wind Erosion Equation (WEQ): Climatic
characterization of windspeed and surface soil moisture (C) and the degree to
which soil resists wind erosion (I).
(3) The USLE is explained in the U.S. Department of Agriculture Handbook 537,
"Predicting Rainfall Erosion Losses." The WEQ is explained in the
paper by Woodruff, N.P., and F. H. Siddaway, 1965, "A Wind Erosion
Equation," Soil Science Society of America Proceedings, Vol. 29, No. 5,
pages 602-608. Values for all the factors used in these equations are contained
in the NRCS field office technical guide and the references which are a part of
the guide. The Universal Soil Loss Equation, the Revised Universal Soil Loss
Equation, and the Wind Erosion Equation and the rules under which NRCS uses the
equations are published at part 610.11 through 610.15 of this title.
(b) Highly erodible. A soil map unit shall be determined to be highly
erodible if either the RKLS/T or the CI/T value for the map unit equals or
exceeds 8.
(c) Potentially highly erodible. Whenever a soil map unit description
contains a range of a slope length and steepness characteristics that produce a
range of LS values which result in RKLS/T quotients both above and below 8, the
soil map unit will be entered on the list of highly erodible soil map units as
"potentially highly erodible." The final determination of erodibility
for an individual field containing these soil map unit delineations will be made
by an on-site investigation.
Sec. 12.22 Highly erodible field determination criteria.
(a) Predominance. Highly erodible land shall be considered to be
predominant on a field if either:
(1) 33.33 percent or more of the total field acreage is identified as soil
map units which are highly erodible; or
(2) 50 or more acres in such field are identified as soil map units which are
highly erodible.
(b) Modification of field boundaries. A person may request the
modification of field boundaries for the purpose of excluding highly erodible
land from a field. Such a request must be submitted to, and is subject to the
approval of, FSA. FSA shall use the technical determination of NRCS in approving
this request.
(c) Impact of changing field boundaries. When field boundaries are
changed to include areas of land that were included in a field that was
previously determined to be predominately highly erodible according to paragraph
(a) of this section, such areas shall continue to be subject to the requirements
for predominately highly erodible fields, except as provided in paragraph (b) of
this section.
(d) Small areas of noncropland. Small areas of noncropland within or
adjacent to the boundaries of existing highly erodible crop fields such as
abandoned farmsteads, areas around filled or capped wells, rock piles, trees, or
brush which are converted to cropland are considered to meet the requirement of
Sec. 12.5(a)(2) if they are included in an approved conservation plan for the
entire highly erodible field.
Sec. 12.23 Conservation plans and conservation systems.
(a) Use of field office technical guide. A conservation plan or a
conservation system developed for the purposes of Sec. 12.5(a) must be based on,
and to the extent practicable conform with, the NRCS field office technical
guide in use at the time the plan is developed or revised. For highly erodible
croplands which were used to produce agricultural commodities prior to December
23, 1985, the applicable conservation systems in the field office technical
guide are designed to achieve substantial reductions in soil erosion.
Conservation systems shall be technically and economically feasible; based on
local resource conditions and available conservation technology; cost-effective;
and shall not cause undue economic hardship on the person applying the
conservation system. Any conservation plans or systems that were approved prior
to July 3, 1996, are deemed to be in compliance with this paragraph.
(b) Substantial reduction in soil erosion. For the purpose of
determining whether there is a substantial reduction in soil erosion on a field
containing highly erodible cropland which was used to produce an agricultural
commodity prior to December 23, 1985, the measurement of erosion reduction
achieved by applying a conservation plan or system shall be based on a
comparison of the estimated annual level of erosion that is expected to occur on
that portion of the field for which a conservation plan or system was developed
and is being applied, to the estimated annual level of erosion that existed on
that same portion of the field before the application of a conservation plan or
system. On a field that is converted from native vegetation after July 3, 1996,
and where any crop production will result in increased erosion, in no case will
the required conservation plan or system permit a substantial increase in
erosion.
(c) Field trials. NRCS may allow a person to include in the person's
conservation plan or a conservation system under the plan, on a field-trial
basis, practices that are not currently approved but that NRCS considers have a
reasonable likelihood of success. These trials must have prior approval by NRCS,
and must be documented in the person's conservation plan specifying the limited
time period during which the field trial is in effect. If, at the end of the
conservation field trial period, NRCS finds that the practice does not meet
conservation compliance requirements, the person will not be ineligible for USDA
program benefits during the period of the field trial.
(d) Highly erodible land previously under a Conservation Reserve Program
contract. Any person who owns or operates highly erodible land that was
under a Conservation Reserve Program contract as authorized by section 1231 of
the Food Security Act of 1985, as amended, shall have 2 years after the
expiration or termination of the contract to fully apply a conservation system
if the conservation plan for such land requires the installation of structural
measures for the production of an agricultural commodity. NRCS officials may
extend this period one additional year for circumstances beyond the control of
the person. The person shall not be required to meet a higher conservation
standard than the standard applied to other highly erodible cropland located
within the area served by the field office technical guide for the area in which
the field is located.
(e) Information regarding conservation options. NRCS, in providing
assistance to a person for the preparation or revision of a conservation plan
under this part, will provide such person with information concerning
cost-effective and applicable erosion control alternatives, crop flexibility, or
other conservation assistance options that may be available.
(f) Timely request for assistance. Persons who require NRCS assistance
for the development of a conservation plan or the installation of a conservation
system are encouraged to request this assistance well in advance of deadline
dates for compliance; otherwise the person may not be able to comply with these
provisions and maintain eligibility for USDA program benefits.
(g) Action by conservation districts. Conservation districts approve
or disapprove conservation plans or conservation systems after NRCS determines
that the plans or systems conform to the NRCS field office technical guide. If a
conservation district fails, without due cause, to act on a request for
conservation plan or conservation system approval within 45 days, or if no
conservation district exists, NRCS will approve or disapprove, as appropriate,
the conservation plan or system in question.
(h) Application of a conservation plan or system. A person is
considered to be applying a conservation plan for purposes of Sec. 12.5(a) if
the conservation system or plan being applied achieves or exceeds the
substantial reduction in soil erosion as described in paragraph (b) which the
conservation system or plan was designed to achieve. It is the responsibility of
the person to:
(1) Certify that the conservation plan or system is being applied; and
(2) Arrange for a revision of the conservation plan with NRCS, if changes are
made in land use, crop rotation or management, conservation practices, or in the
original schedule of practice installation that would affect the achievement of
substantial reduction in soil erosion in a given crop year.
(i) Appeal to FSA. Persons who are adversely affected by the
determinations made under this subpart and believe that the requirements of this
subpart were improperly applied may appeal the decision to FSA under Sec. 12.12.
(j) Undue economic hardship. After a technical determination has been
made, the FSA county committee shall, if a person asserts that the application
of the person's conservation system would impose an undue economic hardship on
the person, make a recommendation to the State FSA Committee as to whether or
not the application of the conservation system would impose an undue economic
hardship. The State FSA Committee may provide the person with a variance on the
basis of the hardship. Under this variance, and any conditions that may be
required in the variance, the person will be considered to be in compliance with
the applicable provisions of this part. The State FSA Committee will consider
relevant factors, such as the cost of installation of required conservation
practices and benefits earned through programs subject to compliance with this
part, and the person's general economic situation.
Subpart C--Wetland Conservation
Sec. 12.30 NRCS responsibilities regarding wetlands.
(a) Technical and coordination responsibilities. In carrying out the
provisions of this part, NRCS shall:
(1) Oversee the development and application of criteria to identify hydric
soils in consultation with the National Technical Committee for Hydric Soils and
make available to the public an approved county list of hydric soil map units,
which is based upon the National List of Hydric Soils;
(2) Coordinate with the U.S. Fish and Wildlife Service and others in updating
the National List of Plant Species that Occur in Wetlands;
(3) Make or approve wetland determinations, delineations and certifications,
functional assessments, mitigation plans, categorical minimal effects, and other
technical determinations relative to the implementation of the wetland
conservation provisions of this part;
(4) Develop and utilize off-site and on-site wetland identification
procedures;
(5) Assure quality of services and determinations through procedures
developed by NRCS in consultation with other Federal agencies that have wetland
responsibilities;
(6) Investigate complaints and make technical determinations regarding
potential violations;
(7) Develop a process at the state level, in coordination with the U.S. Fish
and Wildlife Service, to ensure that these provisions are carried out in a
technically defensible and timely manner, seek assistance as appropriate, and
annually review the progress being made on implementation; and
(8) Conduct reviews of implementation and provide the Army Corps of
Engineers, Environmental Protection Agency, and the U.S. Fish and Wildlife
Service an opportunity to participate in this review.
(b) Technical assistance from others. In carrying out the provisions
of this part, NRCS may request technical assistance from the U.S. Fish and
Wildlife Service, State or local agencies, conservation districts, or qualified
private entities when NRCS determines that additional staff resources or
technical expertise are needed to address adequately the requirements of this
part or to enhance the quality of implementation of this part.
(c) Certification of wetland determinations and wetland delineations.
(1) Certification of a wetland determination means that the wetland
determination is of sufficient quality to make a determination of ineligibility
for program benefits under Sec. 12.4 of this part. Certification of a wetland
determination shall be completed according to delineation procedures agreed to
by the Army Corps of Engineers, the Environmental Protection Agency, the U.S.
Fish and Wildlife Service and NRCS. NRCS may certify a wetland determination
without making a field investigation. NRCS will notify the person affected by
the certification and provide an opportunity to appeal the certification prior
to the certification becoming final. All wetland determinations made after July
3, 1996, will be done on a tract basis and will be considered certified wetland
determinations. A not-inventoried designation within a certified wetland is
subject to change when the soil, hydrology, and vegetation evaluation is
completed and identified as to type of wetland or as a non-wetland. This change
from a not-inventoried designation to an approved wetland designation will be
done at the request of the landowner or during a formal investigation of a
potential violation.
(2) The wetland determination and wetland delineation shall be certified as
final by the NRCS official 30 days after providing the person notice of
certification or, if an appeal is filed with USDA, after the administrative
appeal procedures are exhausted.
(3) In the case of an appeal, NRCS will review and certify the accuracy of
the determination of all lands subject to the appeal to ensure that the subject
lands have been accurately delineated. Prior to a decision being rendered on the
appeal, NRCS will conduct an on-site investigation of the subject land.
(4) Before any benefits are withheld, an on-site investigation of a potential
wetland violation will be made by NRCS. The affected person will be provided an
opportunity to appeal the on-site determination to USDA if the on-site
determination differs from the original determination. Such action by NRCS shall
be considered a review of the prior determination and certification of the
delineation. If the prior determination was a certified wetland determination,
an appeal of the NRCS on-site determination shall be limited to the
determination that the wetland was converted in violation of this part.
(5) A copy of the information from the final certified wetland determination
and the wetland delineation shall be recorded on official USDA aerial
photography, digital imagery, or other graphic representation of the area.
(6) As long as the affected person is in compliance with the wetland
conservation provisions of this part, and as long as the area is devoted to the
use and management of the land for production of food, fiber, or horticultural
crops, a certification made under this section will remain valid and in effect
until such time as the person affected by the certification requests review of
the certification by NRCS. A person may request review of a certification only
if a natural event alters the topography or hydrology of the subject land to the
extent that the final certification is no longer a reliable indication of site
conditions, or if NRCS concurs with an affected person that an error exists in
the current wetland determination.
Sec. 12.31 On-site wetland identification criteria.
(a) Hydric soils.
(1) NRCS shall identify hydric soils through the use of published soil maps
which reflect soil surveys completed by NRCS or through the use of on-site
reviews. If a published soil map is unavailable for a given area, NRCS may use
unpublished soil maps which were made according to the specifications of the
National Cooperative Soil Survey or may conduct an on-site evaluation of the
land.
(2) NRCS shall determine whether an area of a field or other parcel of land
has a predominance of hydric soils that are inundated or saturated as follows:
(i) If a soil map unit has hydric soil as all or part of its name, that soil
map unit or portion of the map unit related to the hydric soil shall be
determined to have a predominance of hydric soils;
(ii) If a soil map unit is named for a miscellaneous area that meets the
criteria for hydric soils (i.e., riverwash, playas, beaches, or water) the soil
map unit shall be determined to have a predominance of hydric soils; or
(iii) If a soil map unit contains inclusions of hydric soils, that portion of
the soil map unit identified as hydric soil shall be determined to have a
predominance of hydric soils.
(3) List of hydric soils.
(i) Hydric soils are those soils which meet criteria set forth in the
publication "Hydric Soils of the United States 1985" which was
developed by the National Technical Committee for Hydric Soils and which is
incorporated by reference. This publication may be obtained upon request by
writing NRCS at U.S. Department of Agriculture, P.O. Box 2890, Washington, DC
20013, and is available for inspection at the Office of the Federal Register
Information Center, 800 North Capitol Street NW., Suite 700, Washington, DC
20408. Incorporation of this publication by reference was approved by the
Director of the Federal Register on June 24, 1986. The materials are
incorporated as they exist on the date of the approval and a notice of any
change in these materials will be published in the Federal Register.
(ii) An official list of hydric soil map units shall be maintained at the
local NRCS office and shall include--
(A) All soils from the National List of Hydric Soils that can be found in
that field office area, and
(B) Any soil map units or areas which the state conservationist determines to
meet such hydric soil criteria.
(iii) Any deletions of a hydric soil unit from the hydric soil map unit list
must be made according to the established procedure contained in the publication
"Hydric Soils of the United States 1985" for adding or deleting soils
from the National List of Hydric Soils.
(b) Hydrophytic vegetation. Hydrophytic vegetation consists of plants
growing in water or in a substrate that is at least periodically deficient in
oxygen during a growing season as a result of excessive water content.
(1) A plant shall be considered to be a plant species that occurs in wetland
if such plant is listed in the National List of Plant Species that Occur in
Wetlands. The publication may be obtained upon request from the U.S. Fish and
Wildlife Service at National Wetland Inventory, Monroe Bldg. Suite 101, 9720
Executive Center Drive, St. Petersburg, Florida 33702.
(2) For the purposes of the definition of "wetland" in Sec. 12.2 of
this part, land shall be determined to have a prevalence of hydrophytic
vegetation if:
(i) NRCS determines through the criteria specified in paragraph (b)(3) of
this section that under normal circumstances such land supports a prevalence of
hydrophytic vegetation. The term "normal circumstances" refers to the
soil and hydrologic conditions that are normally present, without regard to
whether the vegetation has been removed; or
(ii) In the event the vegetation on such land has been altered or removed,
NRCS will determine if a prevalence of hydrophytic vegetation typically exists
in the local area on the same hydric soil map unit under non-altered hydrologic
conditions.
(3) The determination of prevalence of hydrophytic vegetation will be made in
accordance with the current Federal wetland delineation methodology in use by
NRCS at the time of the determination.
(c) Mitigation wetlands. Notwithstanding the provisions of this
section, wetlands which are created in order to mitigate the loss of other
wetlands as a result of irrigation, recreation, municipal water, flood control,
or other similar projects shall not be considered to be artificial wetland for
the purposes of Sec. 12.5(b)(1)(vii)(A) of this part.
(d) Minimal effect determination. For the purposes of Sec.
12.5(b)(1)(v) of this part, NRCS shall determine whether the effect of any
action of a person associated with the conversion of a wetland, the conversion
of wetland and the production of an agricultural commodity on converted wetland,
or the combined effect of the production of an agricultural commodity on a
wetland converted by someone else has a minimal effect on the functions and
values of wetlands in the area. Such determination shall be based upon a
functional assessment of functions and values of the wetland under consideration
and other related wetlands in the area, and will be made through an on-site
evaluation. A request for such determination will be made prior to the beginning
of activities that would convert the wetland. If a person has converted a
wetland and then seeks a determination that the effect of such conversion on
wetland was minimal, the burden will be upon the person to demonstrate to the
satisfaction of NRCS that the effect was minimal. The production of an
agricultural commodity on any portion of a converted wetland in conformance with
a minimal-effect determination by NRCS is exempt under Sec. 12.5(b)(1)(v) of
this part. However, any additional action of a person that will change the
functions and values of a wetland for which a minimal-effect determination has
been made shall be reported to NRCS for a determination of whether the effect
continues to be minimal. The loss of a minimal effect determination will cause a
person who produces an agricultural commodity on the converted wetland after
such change in status to be ineligible, under Sec. 12.4, for certain program
benefits. In situations where the wetland functions and values are replaced by
the restoration, enhancement or creation of a wetland in accordance with a
mitigation plan approved by NRCS, the exemption provided by the determination
will be effective after NRCS determines that all practices in a mitigation plan
are being implemented.
(e) Categorical Minimal Effect Exemptions.
(1) The state conservationist, in consultation with the state technical
committee established under 16 U.S.C. 3861, shall identify any categories of
conversion activities and conditions which are routinely determined by NRCS to
have minimal effect on wetland functions and values, as described in paragraph
(d) of this section, and recommend to the Chief, NRCS, or a designee, inclusion
on a list of categorical minimal effect exemptions.
(2) The Chief, or designee, shall evaluate the conversion practices
recommended by the state conservationists in the region to ensure consistency
across State and regional lines, and to determine whether any categories of
conversion activities identified pursuant to paragraph (e)(1) of this section,
if such activities were exempt from the ineligibility provisions of Sec. 12.4,
would only have a minimal effect on wetland functions and values in a wetland
system within the region.
(3) Any categories of conversion activities which meet the criteria of
paragraph (e)(2) of this section will be published in the FEDERAL REGISTER for
inclusion in this part and shall be exempt under Sec. 12.5(b)(1)(v) of this
part.
(4) The NRCS local field office shall maintain a list of any activities and
conditions which are determined by the Chief, or designee, exempt pursuant to
this section and will provide the list to a person upon request.
Sec. 12.32 Converted wetland identification criteria.
(a) Converted wetland shall be identified by determining whether the wetland
was altered so as to meet the definition of converted wetland. In making this
determination, the following factors are to be considered:
(1) Where hydric soils have been used for production of an agricultural
commodity and the effect of the drainage or other altering activity is not
clearly discernible, NRCS will compare the site with other sites containing the
same hydric soils in a natural condition to determine if the hydric soils can or
cannot be used to produce an agricultural commodity under natural conditions. If
the soil on the comparison site could not produce an agricultural commodity
under natural conditions, the subject wetland will be considered to be converted
wetland.
(2) Where woody hydrophytic vegetation has been removed from hydric soils for
the purpose of or permitting the production of an agricultural commodity, the
area will be considered to be converted wetland.
(b) A wetland shall not be considered to be converted if:
(1) Production of an agricultural commodity on such land is possible as a
result of a natural condition, such as drought, and it is determined that the
actions of the person producing such agricultural commodity does not permanently
alter or destroy natural wetland characteristics. Destruction of herbaceous
hydrophytic vegetation, (i.e., plants other than woody shrubs or trees) as a
result of the production of an agricultural commodity shall not be considered as
altering or destroying natural wetland characteristic if such vegetation could
return following cessation of the natural condition which made production of the
agricultural commodity possible; or
(2) Such land is correctly identified as farmed wetland or farmed-wetland
pasture.
Sec. 12.33 Use of wetland and converted wetland.
(a) The provisions of Sec. 12.32(b)(2) are intended to protect remaining
functions and values of the wetlands described therein. Persons may continue to
farm such wetlands under natural conditions or as they did prior to December 23,
1985. However, no action can be taken to increase effects on the water regime
beyond that which existed on such lands on or before December 23, 1985, unless
NRCS determines the effect on losing remaining wetland values would be minimal
under Sec. 12.5(b)(1)(v). If, after December 23, 1985, changes due to human
activity occurred in the watershed and resulted in an increase in the water
regime on a person's land, the person may be allowed to adjust the existing
drainage system to accommodate the increased water regime on the condition that
the person affected by this additional water provides NRCS with appropriate
documentation of the increased water regime, the causes thereof, and the planned
changes in the existing drainage system. In order to maintain program
eligibility, a person must provide sufficient documentation and receive approval
from NRCS prior to making any changes that will have the effect of increasing
the capacity of the existing drainage systems.
(b) Unless otherwise provided in this part, the production of an agricultural
commodity on land determined by NRCS to be prior-converted cropland is exempted
by law from these regulations for the area which was converted. Maintenance or
improvement of drainage systems on prior-converted croplands are not subject to
this rule so long as the prior-converted croplands are used for the production
of food, forage, or fiber and as long as such actions do not alter the hydrology
of nearby wetlands or do not make possible the production of an agricultural
commodity on these other wetlands. Other wetlands under this section means any
natural wetland, farmed wetland, farmed-wetland pasture, or any converted
wetland that is not exempt under Sec. 12.5 of this part.
(c) Abandonment is the cessation for five consecutive years of management or
maintenance operations related to the use of a farmed wetland or a
farmed-wetland pasture. Unless the criteria for receiving an exemption under
Sec. 12.5(b)(1)(iii) are met, such land is considered to be abandoned when the
land meets the wetland criteria of Sec. 12.31. In order for documentation of
site conditions to be considered adequate under Sec. 12.5(b)(1)(iii), the
affected person must provide to NRCS available information concerning the extent
of hydrological manipulation, the extent of woody vegetation, and the history of
use. In accordance with Sec. 12.5(b)(1)(iii), participation in a USDA approved
wetland restoration, set-aside, diverted acres, or similar programs shall not be
deemed to constitute abandonment.
(d) The maintenance of the drainage capacity or any alteration or
manipulation, including the maintenance of a natural waterway operated and
maintained as a drainage outlet, that affects the circulation and flow of water
made to a farmed wetland or farmed-wetland pasture would not cause a person to
be determined to be ineligible under this part, provided that the maintenance
does not exceed the scope and effect of the original alteration or manipulation,
as determined by NRCS, and provided that the area is not abandoned. Any
resultant conversion of wetlands is to be at the minimum extent practicable, as
determined by NRCS.
Sec. 12.34 Paperwork Reduction Act assigned number.
The information collection requirements contained in this regulation (7 CFR
part 12) have been approved by the Office of Management and Budget under
provisions of 44 U.S.C. chapter 35 and have been assigned OMB Number 0560-0004.
Signed at Washington, D.C. on August 23, 1996.
Dan Glickman,
Secretary.
[FR Doc. 96-22784 Filed 9-5-96; 8:45 am]
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