Wetlands and Agricultural Land

1. Wetlands and Agricultural Land Jennifer McCarthy Wetland Conservation Program 202.690.1588 jennifer.mccarthy@usda.gov

2. Wetland Responsibilities • Conservation Compliance (swampbuster) • Executive Order 11990 and Technical Assistance Policy

3. Swampbuster • Ineligible for USDA program benefits if: • Produce a commodity crop on wetlands converted after December 23, 1985; or • Convert wetlands after November 28, 1990

4. Executive Order 11990 • signed by President Carter on May 24, 1977 • each agency must take action to minimize impacts to wetlands when “providing Federally undertaken, financed, or assisted construction and improvements”. • separate from the Wetland Conservation (“swampbuster”) provisions of the 1985 Food Security Act.

5. Executive Order 11990 • encompasses all NRCS technical and financial assistance activities impacting wetlands. • NRCS wetland protection policy is contained in GM 190 Part 410. • A particular wetland may not be subject the WC provisions, such as artificial wetlands or prior converted cropland, but it may still be subject to the Executive Order 11990 and NRCS’ wetland technical assistance policy.

6. Wetlands Technical Criteria vs. Labels

7. What is a wetland? Wetlands are defined[1] as lands that: • have a predominance of hydric soil; and • are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and • under normal circumstances do support a prevalence of hydrophytic vegetation. [1] 16 U.S.C. §3801 and 7 CFR §12.2

8. To identify wetlands, use Corps of Engineers’ 1987 Wetland Delineation Manual (with subsequent guidance orregional supplements)

9. The determination of whether or not subject land is wetland is based on technical criteria and is independent of assigned wetland labels. Labels are used to identify land with exemptions or restrictions under the Act. Such land may or may not have positive indicators for wetland criteria and meet the definition of wetland. Food Security Act Labels

10. Agricultural Land  12 in Pothole Farmed Wetland 12 in >12 in Water Table Farmed wetland Farmed Wetland Pasture Prior converted cropland Non-wetland or PC without wetland hydrology  14 days saturation Exempt under FSA, wetlands under 1987 Manual 7 days inundation and/or 14 days saturation 15 days inundation

11. Certifying Wetland Determinations • Certification of a wetland determination means that the wetland determination is of sufficient quality to make a determination of ineligibility for USDA program benefits. • NRCS will notify the person affected by the certification and provide an opportunity to appeal it before it becomes final. • The wetland determination and wetland delineation shall be certified as final by the NRCS 30 days after providing the person notice of certification or, if an appeal is filed with USDA, after the administrative appeal procedures are exhausted

12. Certifying Wetland Determinations • In the case of an appeal, NRCS will review and certify the accuracy of the determination 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.

13. AD-1026

14. AD-1026

15. CPA-038

16. 1994 Ag MOA – Key Points • The MOA was developed to streamline the wetland delineation process on agricultural lands, to promote consistency between the CWA and the FSA, and to provide predictability and simplification for USDA program participants. • The 1996 and 2002 FSA amendments changed the wetland conservation provisions, producing inconsistency between them and the CWA, and making the 1994 MOA obsolete and illegal for NRCS to follow.

17. 1994 Ag MOA – Key Points • USDA withdrew from the MOA on January 18, 2005 and the Corps of Engineers (COE) withdrew from it on January 24, 2005. • NRCS and the COE developed joint guidance for both agencies to use when conducting wetland determinations. This replaces the procedures in the former MOA.

18. NRCS-COE Joint Guidance • Highlights of the Joint Guidance: • NRCS will conduct wetland determinations for the purpose of implementing swampbuster provisions of the FSA, and in providing other financial and technical assistance authorized by law. • The COE will conduct wetland determinations for CWA purposes. • Both agencies will inform landowners that their wetland determinations may not apply to the other agency’s wetland programs.

19. Joint Guidance • Prior-converted cropland • Local Agreements • Expiration of wetland determinations • Investigating violations • Appeals

20. Documentation • If it’s not documented in the file, it doesn’t exist!!! • In making any decision, NRCS staff must address two essential questions: • What is the authority for this action (statutory and regulatory), and; • Is the action sufficiently documented.

21. Documentation • We cannot overemphasize the importance of adequately documenting in the administrative record the basis for our decisions. • technical criteria for wetland determinations and other technical determinations • whether an activity is a conversion per the statute • whether the conversion is exempt.

22. Changes to NFSAM • Procedures, not policy • Eliminating some labels—CWNA, CWTE • Duration of Certification • Separation of wetland technical criteria and labels (e.g., PC, NW, AW) • Adding Categorical Minimal Effects

23. Technical Assistance Policy • Applies to all wetlands, even those that are not subject to swampbuster (e.g., AW, “wet” PCs) • Sequencing is required—cannot jump directly to mitigation

24. Complete an Environmental Evaluation of the Proposed Action Did the E.E. identify any impacts to wetlands (areas that meet wetland critera, including artificial wetlands, prior converted cropland, etc.)? NO Wetland Protection Policy not Applicable YES Irrigation-induced wetlands are a special case, consult wetland protection policy for specific guidance. Additionally, irrigation-induced wetlands are not subject to Swampbuster. Are the wetlands the result of irrigation runoff or another source of water that could simply be turned off by the producer? YES NO The Wetland Conservation (swampbuster) provisions of the Food Security Act of 1985 apply and allow mitigation of wetland impacts. Inform client that Clean Water Act and state/local regulatory requirements may be applicable. If NRCS is providing technical or financial assistance,continue. Is the producer a program participant who wishes to maintain eligibility for Farm Bill programs and the proposed action will allow production of a commodity crop? YES NO Inform client that E.O. 11990 requires that NRCS must go through mitigation sequencing when providing technical or financial assistance that impacts wetlands. Does the client wish to proceed with NRCS assistance? YES During the Environmental Evaluation process, have you identified practicable alternatives that will avoid impacts to the wetlands? Continue to provide technical assistance for the action, as well as mitigation planning, and inform client that you will help them……blah, blah, blah …….regulatory requirements … that will minimize impacts to wetlands? YES …that will compensate for unavoidable impacts to the wetlands? Is the client willing to proceed using the avoidance, minimization, and/or compensatory mitigation that has been identified? Cease technical assistance, inform client of FSA, CWA, and state and local regulatory requirements. NO DRAFT

25. Spring Development • Does activity make possible production of ag commodity? • YES – subject to swampbuster • NO • Does activity impact wetlands? • YES – Technical Assistance Policy applies: • Consider: Are there practicable alternatives? Can he/she avoid wetlands? Can he/she minimize impacts to wetlands? Compensation

26. Recent Court Cases Wetland Conservation Compliance

27. Horn Farms v. USDA—Feb. 2, 2005Court Cases • In 1998, Horn Farms converted 6.2 acres of wetland • The wetland had been drained prior to 1985, but wetland hydrology returned in the 1970s and by 1985 the site was vegetated with mature trees. • Plaintiff claimed statute exempts land converted at any time prior to 12/23/85, even if it reverted to wetlands prior to 12/23/85 • USDA interprets statute to say that 12/23/85 is the benchmark date, and conditions existing on that date are the basis for determining PC.

28. Horn Farms v. USDA • Federal District court found for Horn Farms, and directed USDA to resume Horn Farms’ subsidy payments. • 7th Circuit Court of Appeals overturned district court decision

29. Barthel v. USDA • The 8th Circuit Court of Appeals • NRCS must allow adjustment of the existing drainage system sufficient to return the land to the farming use and condition that existed on December 23, 1985. • This may allow the landowner to improve the capacity of existing drainage ditches or drain tiles to accommodate an increase in water coming from upslope in the watershed.

30. Barthel Decision • Landowner may improve drainage sufficiently to achieve the water regime and farming use that existed on December 23, 1985… • which reflect the operation and maintenance of the site prior to that date. • Not authorized to significantly improve the drainage or manipulation so that wetland characteristics on areas identified as wetland or farmed wetland are further degraded in a significant way.

31. Wetlands and Agricultural Land Jennifer McCarthy Wetland Conservation Program 202.690.1588 jennifer.mccarthy@usda.gov