Part 510 — General Information Related to WC Provisions

1. Part 510 — General InformationRelated to WC Provisions

2. Statutory Authority • Public Law 99-198, Title XII, The Food Security Act of 1985. • Public Law 101-624, Title XII, The Food, Agriculture, Conservation, and Trade Act of 1990. • Public Law 104-127, Title III, The Federal Agriculture Improvement and Reform Act of 1996. • Public Law 107-171, Title II, The Farm Security and Rural Investment Act of 2002. Codified in 16 U.S.C. 3801 through 3824.

3. Regulations (Rule) • 7 CFR Part 12 • Required by statute • Rulemaking procedures of the Administrative Procedures Act • Public Comment

4. Why should you care? • Statute and rule give NRCS the authority to make decisions affecting producers • Required 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.

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

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

7. 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 wetland

8. Program Benefits Covered by Swampbuster • Agricultural Credit Act payments • Watershed Protection and Flood Prevention Act payments, loans or other assistance • Disaster 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.

9. Program Benefits Covered by Swampbuster • Title XII Conservation Program payments • Conservation Reserve Program (CRP) • Conservation Security Program (CSP) • Environmental Quality Incentives Program (EQIP) • Farm & Ranch Land Protection Program (FRPP) • Grassland Reserve Program (GRP) • Wetlands Reserve Program (WRP) • Wildlife Habitat Incentives Program (WHIP)

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

11. Form AD-1026 • Self-certification • “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 representative • Failure to provide access results in immediate ineligibility

12. Form AD-1026

13. Form AD-1026

14. CPA-038

15. Communicating with the Landowner • Provide 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 landowner • Improves their understanding of the conservation compliance provisions • Reduces the numbers of appeals

16. 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.

17. 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.

18. Definitions • Converted 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

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

20. In other words... • For 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 Act • Covered by NRCS Wetland Protection Policy, Clean Water Act, other state and local laws

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

22. NRCS WC Responsibilities • Determine, delineate and certify wetlands on lands subject to the WC provisions; • 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 is exempt under the Act.

23. 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-569 • Timeframes for Completion of Determinations • FSA loan applicants, NRCS will send a preliminary determination within 15 calendar days of the receipt of the AD-1026. • All other determinations will be made as soon as possible (Allows waiting for conditions to be suitable – time of year when hydrology is apparent.)

24. 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. • 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 obtained

25. Executive Order 11990 • Signed 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”.

26. Executive Order 11990 • 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 190-410

27. GM 190-410.26 • 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 11990 and NRCS’ wetland technical assistance policy.

28. NRCS PolicyGM 190, Subpart B, Part 410.26 • Specific policy: • Do EE to determine practicable alternatives • If practicable alternative selected, then provide assistance (avoid or minimize harm) • If no practicable alternative exists to avoid/minimize impacts, then mitigation required in order to convert wetland (can still provide assistance) • If client will not choose practicable alternative or agree to mitigation advise about CWA and FSA and do not provide technical assistance for activity