Part 510 — General Information Related to WC Provisions

Statutory Authority Public Law , Title XII, The Food Security Act of 1985.Public Law , Title XII, The Food Security Act of Public Law , Title XII, The Food, Agriculture, Conservation, and Trade Act of 1990.Public Law , Title XII, The Food, Agriculture, Conservation, and Trade Act of Public Law , Title III, The Federal Agriculture Improvement and Reform Act of 1996.Public Law , Title III, The Federal Agriculture Improvement and Reform Act of Public Law , Title II, The Farm Security and Rural Investment Act of 2002.Public Law , Title II, The Farm Security and Rural Investment Act of Codified in 16 U.S.C through 3824.

Regulations (Rule) 7 CFR Part 127 CFR Part 12 Required by statuteRequired by statute Rulemaking procedures of the Administrative Procedures ActRulemaking procedures of the Administrative Procedures Act Public CommentPublic Comment

Why should you care? Statute and rule give NRCS the authority to make decisions affecting producersStatute and rule give NRCS the authority to make decisions affecting producers Required documentationRequired documentation –The technical criteria for wetland, HEL, and other technical determinations. –Whether an activity violates the conservation provisions of the Act. –Whether the violation qualifies for an exemption from the provisions.

Objectives of WC Provisions Remove certain incentives for persons who convert wetlands to make possible the production of agricultural commoditiesRemove certain incentives for persons who convert wetlands to make possible the production of agricultural commodities Reduce nonpoint source pollutionReduce nonpoint source pollution Reduce sedimentation and improve water qualityReduce sedimentation and improve water quality Assist in preserving the functions and values of the Nation's wetlandsAssist in preserving the functions and values of the Nation's wetlands

Program Benefits Covered by Swampbuster Contract payments received under production flexibility (or successor) contracts, marketing assistance loans, and any type of price support or paymentContract payments received under production flexibility (or successor) contracts, marketing assistance loans, and any type of price support or payment

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

Program Benefits Covered by Swampbuster Agricultural Credit Act paymentsAgricultural Credit Act payments Watershed Protection and Flood Prevention Act payments, loans or other assistanceWatershed Protection and Flood Prevention Act payments, loans or other assistance Disaster payments - sometimesDisaster payments - sometimes –Depends on the specific disaster assistance legislation. Farm Bill does not condition receipt of USDA disaster relief benefits on compliance with the WC provisions.

Program Benefits Covered by Swampbuster Title XII Conservation Program paymentsTitle XII Conservation Program payments –Conservation Reserve Program (CRP) –Conservation Security Program (CSP) Conservation Security Program (CSP)Conservation Security Program (CSP) –Environmental Quality Incentives Program (EQIP) Environmental Quality Incentives ProgramEnvironmental Quality Incentives Program –Farm & Ranch Land Protection Program (FRPP) Farm & Ranch Land Protection ProgramFarm & Ranch Land Protection Program –Grassland Reserve Program (GRP) –Wetlands Reserve Program (WRP) Wetlands Reserve ProgramWetlands Reserve Program –Wildlife Habitat Incentives Program (WHIP) Wildlife Habitat Incentives ProgramWildlife Habitat Incentives Program

Participants’ Responsibilities Know and understand the requirements of WC provisionsKnow and understand the requirements of WC provisions Seek timely technical assistance for determinations needed in order to complySeek timely technical assistance for determinations needed in order to comply Certify complianceCertify compliance Not convert a wetland or produce an agricultural commodity crop on a converted wetlandNot convert a wetland or produce an agricultural commodity crop on a converted wetland

Form AD-1026 Self-certificationSelf-certification “Yes” answer on question 9 or 10 gets referred to NRCS for certified wetland determination“Yes” answer on question 9 or 10 gets referred to NRCS for certified wetland determination Grants legal access to the land by any USDA employee or representativeGrants legal access to the land by any USDA employee or representative Failure to provide access results in immediate ineligibilityFailure to provide access results in immediate ineligibility

Form AD-1026

CPA-038

Communicating with the Landowner Provide opportunity to be present during the site visitProvide opportunity to be present during the site visit Allows NRCS to explain the procedures and requirements of the Act and to acquire background information on the site from the producer and landownerAllows NRCS to explain the procedures and requirements of the Act and to acquire background information on the site from the producer and landowner Improves their understanding of the conservation compliance provisionsImproves their understanding of the conservation compliance provisions Reduces the numbers of appealsReduces the numbers of appeals

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

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

Definitions Converted wetlandConverted wetland –wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of water) for the purpose or to have the effect of making the production of an agricultural commodity possible

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

In other words... For an activity to violate the WC provision, it must involve a conversion of wetlands that is not exemptFor an activity to violate the WC provision, it must involve a conversion of wetlands that is not exempt Activities that affect wetlands, yet are not for the purpose and do not make production of an agricultural commodity possible or result in the production of an agricultural commodity, are not defined as “conversions” under the WC provisions of the ActActivities that affect wetlands, yet are not for the purpose and do not make production of an agricultural commodity possible or result in the production of an agricultural commodity, are not defined as “conversions” under the WC provisions of the Act Covered by NRCS Wetland Protection Policy, Clean Water Act, other state and local lawsCovered by NRCS Wetland Protection Policy, Clean Water Act, other state and local laws

WC Exemptions Converted wetlands if the conversion was commenced before December 23, 1985;Converted wetlands if the conversion was commenced before December 23, 1985; Artificial wetlands;Artificial wetlands; Wetlands farmed under natural conditions;Wetlands farmed under natural conditions; Under certain conditions, a converted wetland to which wetland characteristics returned.Under certain conditions, a converted wetland to which wetland characteristics returned.

NRCS WC Responsibilities Determine, delineate and certify wetlands on lands subject to the WC provisions;Determine, delineate and certify wetlands on lands subject to the WC provisions; Determine if an activity is a conversion under the Act;Determine if an activity is a conversion under the Act; Determine if a conversion was commenced prior to December 23, 1985;Determine if a conversion was commenced prior to December 23, 1985; Determine if a conversion is exempt under the Act.Determine if a conversion is exempt under the Act.

When to do HELC/WC Determinations NRCS will complete HELC/WC determinations on tracts for which FSA has forwarded a Form AD-1026 or FSA-569NRCS will complete HELC/WC determinations on tracts for which FSA has forwarded a Form AD-1026 or FSA-569 Timeframes for Completion of DeterminationsTimeframes for Completion of Determinations –FSA loan applicants, NRCS will send a preliminary determination within 15 calendar days of the receipt of the AD –All other determinations will be made as soon as possible (Allows waiting for conditions to be suitable – time of year when hydrology is apparent.)

Other Authorities Related to Wetlands Determinations, delineations, or exemptions made by NRCS may not meet the requirements of other local, state or federal wetland protection laws.Determinations, delineations, or exemptions made by NRCS may not meet the requirements of other local, state or federal wetland protection laws. When providing technical or financial assistance that could result in the manipulation of a wetland, NRCS must inform the participant that the activity may require other local, state, or federal permits or approval and shall not be initiated until required permits are obtained.When providing technical or financial assistance that could result in the manipulation of a wetland, NRCS must inform the participant that the activity may require other local, state, or federal permits or approval and shall not be initiated until required permits are obtained. NRCS’ technical and financial assistance will be withdrawn if required permits are not obtainedNRCS’ technical and financial assistance will be withdrawn if required permits are not obtained

Executive Order Signed by President Carter on May 24, 1977Signed by President Carter on May 24, 1977 Requires that each federal agency take action to minimize impacts to wetlands when “providing federally undertaken, financed, or assisted construction and improvements”.Requires that each federal agency take action to minimize impacts to wetlands when “providing federally undertaken, financed, or assisted construction and improvements”.

Executive Order Separate from Swampbuster.Separate from Swampbuster. –Broader in that it encompasses all NRCS technical and financial assistance activities affecting wetlands –NRCS’ wetland technical protection policy –General Manual GM GM GM

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

Specific policy:Specific policy: 1. Do EE to determine practicable alternatives 2. If practicable alternative selected, then provide assistance (avoid or minimize harm) 3. If no practicable alternative exists to avoid/minimize impacts, then mitigation required in order to convert wetland (can still provide assistance) 4. If client will not choose practicable alternative or agree to mitigation advise about CWA and FSA and do not provide technical assistance for activity NRCS Policy GM 190, Subpart B, Part