[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Rules and Regulations]
[Pages 47019-47038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22784]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 /
Rules and Regulations
[[Page 47019]]
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.
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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.
This rule may also be accessed, and comments submitted, via Internet.
Users can access the NRCS Federal Register homepage and submit comments
at http:/astro.itc.nrcs.usda.gov:6500.
FOR FURTHER INFORMATION CONTACT:
Sandra N. Penn, Conservation Ecosystems Assistance Division, Natural
Resources Conservation Service, 202-720-1845.
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 1890, Washington, D.C. 20013-1890.
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 provisions 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 recordkeeping 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
[[Page 47020]]
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 resources 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 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 requirements for consultation with the Fish
and Wildlife Service (FWS).
[[Page 47021]]
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 Listing 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 3summary of how USDA responded to the issues generated by the
comments:
USDA received seven comments related to the granting of variance
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 provision. 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 for 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
[[Page 47022]]
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 characteristic 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 Secs. 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 determination, or
other written agreements between persons and NRCS, the re-establishment
of agriculture 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
[[Page 47023]]
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 Secs. 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 of these same benefits and additional program
benefits. Sections 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
[[Page 47024]]
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, trust, 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
reseach; 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
[[Page 47025]]
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 reissuance 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 Onn-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.
[[Page 47026]]
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, 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
[[Page 47027]]
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 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 not 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 pocosion, is ponded for 7 or more
consecutive days during the growing season in most years (50 percent
chance of 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 (5) 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 and 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
Island 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 on 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, 1995; 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.
[[Page 47028]]
(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 to 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 Agricultural
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 purpose 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 paragraph (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 conversation 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 participated 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 conversation plans or conversation 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 Exemption.
(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 1081
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.
[[Page 47029]]
(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 paragraph (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 is who 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.
[[Page 47030]]
(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 if 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 as 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 famed 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
[[Page 47031]]
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) Responsibliity 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;
[[Page 47032]]
(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
Secs. 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) Administraiton 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 form 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
[[Page 47033]]
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 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
[[Page 47034]]
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 Secs. 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 area 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
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
[[Page 47035]]
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 of 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 service 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
[[Page 47036]]
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 provision of this part, and as long as the area is
devoted to the use and management of the land for production of food,
fiber, 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
[[Page 47037]]
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
[[Page 47038]]
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]
BILLING CODE 3410-01-M
