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Wetland Policy and Procedures Overview

Wetland Policy/Procedures Overview


Wetland Protection Policy (GM-190.26)

Executive Order 11990 requires that NRCS “take action to minimize the destruction, loss, or degradation of wetlands and to preserve and enhance the beneficial functions of wetlands when ‘providing federally undertaken, financed or assisted construction and improvements.’” Often called the “NEPA Rule,” the Wetland Protection Policy requires NRCS to avoid, minimize or mitigate, in that order, damage to wetlands as a condition of providing technical and financial assistance to landowners. All of our assistance is subject to this policy, independent of the 1985 Food Security Act and Section 404 of the Clean Water Act. NRCS is not required to mitigate for loss of irrigation-induced wetlands although we should still attempt to protect important functions and values associated with all wetlands. These functions and values are identified as a part of our Environmental Evaluation which is documented on the CPA-52 form. Certified wetland determinations/delineations are not required for compliance with the Wetland Protection Policy. However, wetlands are identified using the same jurisdictional criteria used for wetland determinations under the 1985 Food Security Act. A wetland functional assessment, either HGM if available or the Montana Department of Transportation (MDT) assessment, can be used to determine if the effects of the proposed action on wetland functions are minimal or if mitigation of lost functions will be required as a condition for receiving federal assistance..

Section 404, Clean Water Act

Section 404 is a water quality protection mechanism; not specifically a wetland protection law. It governs the placement of dredged or fill material into wetlands and other waters of the United States. Our NRCS responsibility is limited to informing landowners that a “404” permit may be required for a given action. We will not provide final designs or authorize project implementation until all required permits are in the landowner’s hand. The U.S. Army Corps of Engineers (COE) administers Section 404 and makes required wetland determinations/delineations for this purpose.

Note: Wetlands that have no surface water connection to “waters of the United States” do not fall under Section 404 jurisdiction. If there is any question about this, contact the COE for advice on how to proceed.

Food Security Act Wetland Conservation Provision (“Swampbuster”)

Swampbuster makes eligibility for USDA Farm Program benefits contingent on wetland conservation. It only applies if commodity crop production is made possible by the wetland manipulation. Whenever Swampbuster applies, a certified wetland determination is required. The certified wetland determination is triggered by a signed AD-1026 or when a potential wetland violation has been reported on a form 569. I f a landowner requests assistance with an activity that involves wetland alteration, make sure you have him/her indicate that intent on a signed AD-1026 and follow up with a certified wetland determination before providing technical or financial assistance. Trained NRCS Wetland Specialists complete the certified wetland determination, delineate the wetland boundary on the appropriate aerial photography (FSA), complete the CPA-026 and assure that the DC, FSA and landowner receive copies. Either the Wetland Specialist or DC sends a letter to the landowner informing him/her of the results of the determination/delineation and of her/his appeal rights.

Examples of actions that make commodity crop production possible include drainage, filling, removal of stems and stumps of woody vegetation and leveling. Livestock spring developments most often do not make production possible. If located at the toe of a slope adjacent to relatively level ground, they may make production possible and therefore would be subject to the Swampbuster provision of the Food Security Act.

General Conservation Planning Assistance Involving Wetlands

NRCS frequently assists private landowners with wetland activities that do not involve any proposed adverse manipulation of wetland hydrology and do not make commodity crop production possible. They may, in fact, involve restoration and improvement of wetland functions and values. Examples include planning for WRP and WHIP contracts which involve wetland restoration, enhancement and creation. In these situations, certified wetland determinations are not required. There is no indication of wetland hydrology manipulation on an AD-1026, nor a report of a potential wetland violation. Therefore, a CPA-026 is not completed in this case. Document the results of the resource inventory, including wetland determinations, in the Con-6 Notes and other planning documents such as trip reports, and so forth.

Note: Section 404 permits may still be required for wetland restoration, enhancement and creation activities.

Summary

  1. All NRCS technical and financial assistance is subject to our Wetland Protection Policy. Certified wetland determinations/delineations are not required unless NRCS has received a signed AD-1026 indicating intent to modify a wetland or a “569” indicating a potential wetland violation. (If the producer requests assistance that involves manipulation of a wetland, make sure you have her/him sign a “1026” before providing assistance if Swampbuster could apply). Avoid – Minimize – Mitigate for lost wetland functions associated with NRCS assistance except for those associated with irrigation-induced wetlands. Use an approved wetland functional assessment to assist with planning to minimize and/or mitigate for wetland impacts.
  2. Certified wetland determinations/delineations are required when a signed AD-1026 is received indicating intent to alter a wetland or an AD-569 is received reporting a potential wetland violation. Minimal Effects, Mitigation, Farmed Wetland, Farmed Wetland Pasture, WX, CWNA and other exemptions are available, when appropriate, to maintain eligibility for USDA Farm Program benefits when dealing with wetland conversions.
  3. Certified wetland determinations/delineations are reported on a CPA-026. Non-certified determinations are not.
  4. Wetland determinations associated with planning and implementation activities that do not adversely modify hydrology are not certified. They do not require an AD-1026 and are not reported on a CPA-026. These non-certified determinations are done in response to an internal agency need such as planning for WRP or WHIP and adverse manipulation of wetland hydrology is not a possibility.
  5. When conducting any wetland determination/delineation, attempt to collect adequate data so that a certified determination could be completed later without an additional field visit. This data could be used to assist the producer with a “404” application or to complete a certified determination if the producer decides to implement an action that would degrade the wetland and make commodity crop production possible..