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
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
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.
- 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.
- 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.
- Certified wetland determinations/delineations are reported on a CPA-026.
Non-certified determinations are not.
- 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.
- 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..