M_180_NFSAM_514_A - Subpart A – Wetland Determination and Delineation
Subpart A – Wetland Determination and Delineation
    

    

514.0 Background

A. The Food Security Act of 1985, as amended, requires NRCS to delineate, determine, and certify wetlands located on land on a farm or ranch subject to wetland conservation (WC) provisions in order to establish a producer’s eligibility for certain USDA program benefits (16 U.S.C. Section 3822, 7 CFR Section 12.30).

B. This manual provides policy pertaining to the WC provisions. Policy concerning NRCS technical and financial assistance and the protection of wetlands is located in Title 190, General Manual (GM), Part 410, Subpart B, Section 410.26. In addition, wetlands may be subject to other Federal, State, or local regulations.

C. In carrying out the provisions of the Food Security Act, NRCS may request technical assistance from the U.S. Fish and Wildlife Service (FWS) and State or local conservation agencies (7 CFR Section 12.30). By statute, only NRCS may make certified wetland determinations (16 U.S.C. Section 3821(e)).

514.1 Certification

A. Certification of Wetland Determinations

(1) Certification of a wetland determination means that the wetland determination is of sufficient quality to make a determination of ineligibility for USDA program benefits. All wetland determinations made after July 3, 1996, are considered certified determinations (7 CFR Section 12.30(c)(1)). Determinations made prior to July 3, 1996, are considered certified if they met the procedural (appeal rights) and quality mandates as provided in 7 CFR Section 12, as detailed in paragraph B.

(2) Certified wetland determinations will be made under either of the following circumstances:

(i) In response to Farm Service Agency (FSA) Form AD-1026 or NRCS-CPA-038 completed by a USDA program participant for the field(s) identified

(ii) In response to Form FSA-569, if required

(3) To identify wetlands subject to the WC provisions, NRCS uses offsite (7 CFR Section 12.6(c)(5)) and onsite (7 CFR Section 12.6(c)(6)) methods. Site visits are conducted only in following circumstances:

(i) Before withholding any USDA benefits (7 CFR Section 12.30(c)(4))

(ii) When a USDA program participant requests an onsite determination (7 CFR Section 12.6(c)(7))

(iii) When there is an appeal (7 CFR Section 12.6(c)(6))

(iv) When a USDA program participant requests a preconversion minimal effect determination (7 CFR Section 12.31(d))

(v) In response to a Form FSA-569 or a whistleblower complaint (7 CFR Section 12.30(a)(6))

(vi) In conjunction with a compliance status review

(vii) If there is inadequate information to make determinations offsite (7 CFR Section 12.6(c)(6))

(4) Methods for offsite and onsite determinations are listed in the Food Security Act wetland identification procedures, located in the exhibit in section 514.8(A).

B. Evaluation of Previously Issued Wetland Determinations

Prior to conducting a certified wetland determination, NRCS will evaluate all previously issued determinations to determine their certification status using the criteria below:

(i) All wetland determinations made on or after July 3, 1996, are considered certified determinations (7 CFR Section 12.30(c)(1)) when all of the following apply:

The determination was issued to the participant as noted on the Form NRCS-CPA-026(e), "Highly Erodible Land and Wetland Conservation Determination." For the purpose of this guidance, the NRCS-CPA-026(e) and previous versions will be referred to solely as the NRCS-CPA-026.

The NRCS-CPA-026 was signed by NRCS.

The NRCS-CPA-026 is accompanied by a wetland determination map.

(ii) For certified determinations issued on or after July 3, 1996, nonwetland (NW) and not inventoried (NI) areas were required labels according to policy, and unlabeled areas (cropland or noncropland) may not be considered NW. Unlabeled areas on a certified determination issued on or after July 3, 1996, are subject to receiving a new wetland conservation label.

(iii) All wetland determinations made after November 28, 1990, and before July 3, 1996, are considered certified if all of the following apply:

The determination was issued to the participant as noted on the NRCS-CPA-026 or SCS-CPA-026.

The NRCS-CPA-026 or SCS-CPA-026 was signed by NRCS (formerly known as SCS). The SCS-CPA-026 (version dated June 1991 – see exhibit at section 514.8B and later versions of the NRCS-CPA-026 contain a valid producer notification statement in block 29 and appeal rights were provided on the back of the "Person Copy." If a different version of the SCS-CPA-026 was used (other than the June 1991 version) to issue the determination, there must also be evidence that the producer was informed the determination was certified and provided appeal rights.

The determination map document meets the quality mandate "of sufficient quality to make a determination of ineligibility for program benefits" (7 CFR Section 12.30(c)(1)). "Sufficient quality" means that the map document is legible to the extent that the location of designated wetlands in relation to other ground features can be determined. For example, the map document is of sufficient quality to be able to see reference ground features such as wooded areas, field boundaries, or roads, which then can be used as a reference for determining a wetland location.

(iv) In some cases, certified determinations issued on or after November 28, 1990, contain lands that were not labeled on the wetland determination map, but were recorded with a label on the associated NRCS-CPA-026, which indicated that the label applied to some numbered (or otherwise designated) land unit. Those land units are considered certified and are not subject to a new wetland conservation label.

(v) For certified wetland determinations issued prior to July 3, 1996, unlabeled cropland areas are considered NW and are not subject to a new wetland certification (unless cropland areas are marked "determination not made" or similar). For this purpose, cropland is considered nonrangeland or nonwoodland, which has a field polygon designated on the map with an associated field number.

(vi) Wetland determinations made prior to November 28, 1990, are not considered certified.

(vii) Regardless of the date the certified determination was issued, certain lands, within or associated with a certified determination, are subject to receiving a new (or revised in the case of NI) wetland conservation label, including—

Noncropland areas without a wetland conservation label. This would include areas having a designation that is not a wetland conservation label such as "NCL" (noncropland).

Areas marked as NI, "not determined," or similar designation.

Noncropland when the NRCS-CPA-026 or map contains an explanation indicating that the "determination covers only cropland," "noncropland areas are not certified," or other description that limits the extent of the area subject to the determination or certification.

Farmed wetland or farmed wetland pasture or hayland that is determined to meet abandonment criteria.

Areas that are determined to meet converted wetland, converted wetland + year, manipulated wetlands, artificial wetland, converted wetland technical error, third-party conversion exemption, COE permit with mitigation exemption, minimal effect, mitigated wetlands, converted wetland timely assistance, or converted wetland in-lieu fee criteria.

C. Completing Determinations on New Lands That are Associated With Previously Certified Areas

When completing a certified wetland determination for lands associated with previously certified areas, the extent of the new determination is limited to only those lands receiving a new (or revised in the case of NI) wetland conservation label.

(i) NRCS will offer applicable appeal rights and only record on the map and NRCS-CPA-026 the lands subject to a new or revised label.

(ii) Note in the cover letter appeal rights are being offered only for those lands receiving a new or revised label.

(iii) A copy of any previously certified wetland determination for the subject land should be provided to the participant but not added to the NRCS-CPA-026 or map with the new determination.

D. Situations When More Than One Certified Determination Has Been Issued for the Same Tract or Area of Land

When multiple certified determinations exist for the same tract or area of land, NRCS will recognize the most recent determination as being the certified determination. However, in the process of conducting an investigation of possible noncompliance, NRCS will evaluate potential noncompliance actions utilizing the certified determination in place at the time the potential noncompliance action occurred.

E. Requirements for Job Approval Authority

(1) Certified wetland determinations must be completed by a qualified NRCS employee, as determined by the State Conservationist. Qualified employees (i.e., agency experts) must meet all of the following criteria:

(i) Have completed all the required training, including update courses

(ii) Have the appropriate job approval authority

(iii) Have demonstrated proficiency in making certified wetland determinations

(2) State Conservationists are responsible for maintaining a roster of agency experts, by training and experience, who have demonstrated the knowledge and skills necessary to conduct wetland determinations and delineations, scope and effect evaluations, functional assessments, minimal effects evaluations, mitigation planning, and mitigation easements. The roster will be filed in section III of the Field Office Technical Guide, "Legislated Programs, Job Approval Authority."

(3) In accordance with part 518 of this manual, State Conservationists will carry out appropriate quality control reviews of certified wetland determinations.

F. Effective Period of Certifications

(1) All certified wetland determinations, conditions, and exemptions remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certification (16 U.S.C. Section 3822 (a)(4)).

(2) A person may request review of a final certified wetland determination 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 (7 CFR Section 12.30(c)(6) and 16 U.S.C. Section 3822(a)(4)). A person must make all requests for review in writing, stating what the natural event was and to what extent that event altered the topography or hydrology, or, where NRCS error is cited as the reason for review, the participant must state what the error is and how it affects the final certified wetland determination validity.

G. Appeals of Certified Wetland Determinations

(1) Before finalizing a certified wetland determination, NRCS will notify the person affected by the certification and provide an opportunity to appeal it. NRCS will certify the wetland determination as final 30 days after providing the person notice of certification or, if an appeal is filed with USDA, after the administrative appeal procedures are exhausted or discontinued by the affected person (see Title 440, Conservation Program Manual (CPM), Part 510, for NRCS policies regarding appeals; NRCS appeal procedures are contained in 7 CFR Part 614). All requests for appeals, including those requests made at the preliminary technical determination stage, must be made in writing by the actual participants affected by the certified wetland determination.

(2) In the case of an appeal, NRCS must review and certify the accuracy of the determination for all lands subject to the appeal to ensure that it is accurate. Before a decision is rendered on the appeal, NRCS will conduct an onsite investigation of the subject land.

H. Preparing the Certified Wetland Determination and Delineation

(1) NRCS will delineate all wetlands subject to the WC provisions by outlining the boundaries of the wetland on aerial photography, digital imagery, or other graphic representation. If possible, NRCS will use the Global Positioning System (GPS) to digitally map the wetland boundary in the field and to import that data onto digital orthophotoquadrangle maps (DOQ) or other Geographic Information System (GIS) digital photographic imagery. Refer to part 514, subparts B through E, of this manual to determine the appropriate labels to apply to the delineated wetland types.

(2) The complete boundaries and size of all fields that were delineated and identified must be shown on the map, including areas identified as NW. The label and acreage information from the map will be used to prepare NRCS-CPA-026. A copy of the NRCS-CPA-026e, along with the delineation map, will be provided to the USDA program participant and FSA and retained in the participant’s NRCS case file.

I. Duration of Ineligibility

(1) Persons who plant an agricultural commodity on a nonexempt wetland converted between December 23, 1985, and November 28, 1990, are ineligible for USDA benefits for any year in which an agricultural commodity crop is planted or until the functions, values, and acreage of the converted wetland are mitigated (7 CFR Section 12.4(a)(2)).

(2) Persons who convert wetlands for the purpose of, or in such a way as to make the production of an agricultural commodity possible after November 28, 1990, remain ineligible for USDA benefits until the functions, values, and acreage of the converted wetland are mitigated (7 CFR Section 12.4(a)(3)). Ineligibility will remain with the person even if the person is no longer associated with the land. Subsequent owners and operators will not be in violation as long as the converted wetland is not planted to an agricultural commodity and the new owner or operator was not affiliated with the conversion action (7 CFR Section 12.4(g)).

(3) Exemption for Wetland Conversions Completed Before February 7, 2014

No person will be ineligible for Federal crop insurance premium subsidies for a policy or plan of insurance under the Federal Crop Insurance Act (7 U.S.C. Sections 1501–1524) for—

Converting a wetland if the wetland conversion was completed, as determined by NRCS, before February 7, 2014.

Planting or producing an agricultural commodity on a converted wetland if wetland conversion was completed, as determined by NRCS, before February 7, 2014.

(4) There is an exemption for wetland conversion when a policy or plan of insurance is available to a person for the first time.

(i) When a policy or plan of insurance that provides coverage for an agricultural commodity is available to the person, including as a person who is a substantial beneficial interest holder, for the first time after February 7, 2014, as determined by the Risk Management Agency, ineligibility for Federal crop insurance premium subsidies for such policy or plan of insurance due to a wetland conversion violation will only apply to wetland conversions that are completed, as determined by NRCS, after the date the policy or plan of insurance first becomes available to the person.

(ii) The exemption—

Does not exempt or otherwise negate the person’s ineligibility for Federal crop insurance premium subsidies on any other policy or plan of insurance.

Applies only if the person takes steps necessary, as determined by NRCS, to mitigate all wetlands converted after February 7, 2014, in a timely manner, as determined by NRCS, but not to exceed 2 reinsurance years.

J. Coordination with the U.S. Army Corps of Engineers

Certified wetland determinations performed by NRCS are based on Food Security Act definitions, and may not be valid for USACE Clean Water Act (CWA) jurisdiction and permitting requirements. NRCS will include the following language in all wetland determinations provided to the USDA participant:

"This certified wetland determination/delineation has been conducted for the purpose of implementing the wetland conservation provisions of the Food Security Act of 1985. This determination/delineation may not be valid for identifying the extent of the USACE’s Clean Water Act jurisdiction for this site. If you intend to conduct any activity that constitutes a discharge of dredged or fill material into wetlands or other waters, you should request a jurisdictional determination from the local office of the USACE prior to starting the work."

514.2 Definitions

A. Agricultural Commodity.—An agricultural commodity is defined as any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane. (7 CFR Section 12.2)

B. Agricultural Use.—"Agricultural use" refers to land used for the production of food, fiber, or horticultural crops; used for haying or grazing; left idle in accordance with USDA program requirements; or diverted from crop production to an approved cultural practice that prevents erosion or other natural resource degradation.

C. For the Purpose of.—"For the purpose of" means actions completed that show intent to make production possible. Such actions need not actually make agricultural production possible.

D. Growing Season.—"Growing season" is the season of the year when climatic conditions are suitable for the growth and regeneration of plants.

E. Inundated.—"Inundated" means the ground is covered by water due to ponding, flowing, or flooded water.

F. Making Production Possible.—"Making production possible" means manipulation that—

(1) Allows or would allow production of an agricultural commodity where such production was not previously possible.

(2) Makes an area farmable more years than previously possible.

(3) Reduces crop stress and allows increased yields.

(4) After November 28, 1990, allows forage production or pasture and hayland use. On sites with woody vegetation, trees and stumps must be removed to constitute "making production possible."

G. Manipulation.—The alterations that are considered manipulation may result from dams, dikes, ditches, diversions, subsurface drains, pumps, terraces, or dredge and fill. These measures may alter hydrology even if installed offsite from the effected wetlands.

H. Normal Circumstances.—Refers to the soil and hydrologic conditions that are normally present, without regard to whether the vegetation has been removed. The premise for the concept of normal circumstances is that for many wetlands where the vegetation has been removed, the soil and hydrological characteristics remain to the extent that hydrophytic vegetation could return if vegetation management ceased. In the event that 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 (7 CFR Section 12.31 (b)(2)(ii)).

I. Wetlands.—Lands that have all of the following characteristics:

(1) A predominance of hydric soils

(2) Are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions

(3) Under normal circumstances support a prevalence of hydrophytic vegetation

Note: Lands in Alaska identified as having a high potential for agricultural development and a predominance of permafrost soils are not considered wetlands for purposes of the Food Security Act (7 CFR Section 12.2).

J. Wetland Delineation.—Outlining the boundaries of a wetland determination on aerial photography, digital imagery, or other graphic representation or on the land (7 CFR Section 12.2).

K. Wetland Determination.—A technical decision regarding whether or not an area is a wetland, including identification of wetland type (label) and size (acres) of each label (7 CFR Section 12.2). Wetland determinations are recorded on Form NRCS-CPA-026e.

L. Wetland Inventories.—Maps that outline the location of potential wetlands and are usually developed using offsite remote sensing. Wetland inventories are not certified wetland determinations.

M. Wetland Mapping Conventions.—A set of approved procedures used to make wetland determinations and delineations on agricultural lands. Mapping conventions are developed cooperatively between USACE, the Environmental Protection Agency, the FWS, and NRCS for consistent use for CWA and FSA purposes, and are State-specific (7 CFR Section 12.6(c)(5)). See "Food Security Act Wetland Identification Procedures" in the exhibit in section 514.8A for additional wetland determination and delineation definitions.

514.3 Wetland Identification

Wetland Criteria

(1) Wetlands are identified through the confirmation of three diagnostic factors:

(i) A predominance of hydric soil

(ii) The prevalence of hydrophytic vegetation

(iii) Wetland hydrology

(2) Wetlands must meet the definition of all three wetland factors (soils, plants, and hydrology). The Food Security Act wetland identification procedures will be used to decide if a sampling unit meets the definition at the diagnostic factor level. These procedures are provided in the exhibit in section 514.8A.

514.4 Hydric Soils (7 CFR Section 12.31(a))

A. Hydric Soils Definition

Hydric soils are defined in the Food Security Act as 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 (16 U.S.C. Section 3801(a)(12)).

B. Hydric Soils Lists

(1) Lists of hydric soils are compiled from the hydric soils criteria and are published in the National List of Hydric Soils, as well as in local lists of hydric soils mapping units developed by NRCS. Hydric soils lists are used in conjunction with NRCS soil surveys to predict the location and properties of hydric soils in a given county or similar area.

(2) In addition, an official list of local hydric soils is maintained in the Soil Data Mart (Welcome to the Soil Data Mart) and includes map unit components identified as probable hydric soils based on the hydric soils criteria. The National List of Hydric Soils is an aggregation of the local hydric soils lists produced from Soil Data Mart data.

(3) Methods for hydric soil determination are provided in the Food Security Act wetland identification procedures, located in the exhibit in section 514.8A.

514.5 Hydrophytic Vegetation (7 CFR Section 12.31(b))

A. Definition

(1) Hydrophytic vegetation is defined in the Food Security Act as a plant growing in—

(i) Water.

(ii) Substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content (16 U.S.C. Section 3801(a)(13)).

(2) Methods for hydrophytic vegetation determination are provided in the Food Security Act wetland identification procedures, located in the exhibit in section 514.8A.

B. Definition of Growing Season

The regulations (7 CFR Part 12) for the WC provisions do not define the growing season. The State Conservationist, with advice from the State Technical Committee, will approve a growing season definition for Food Security Act purposes based on either of the following:

(i) Wetlands Climate Table Documentation (i.e., "WETS" tables from the NRCS National Water and Climate Center; NRCS National Water and Climate Center - Climate Products - General Information - Wetlands Documentation) methods provided for in the USACE regional supplements.

(ii) Observation of above-ground biological growth in vascular plants as described in the USACE regional supplements.

514.6 Wetland Hydrology

Definition

(1) Wetland hydrology is defined as inundation or saturation 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. (7 CFR Section 12.2)

(2) Methods for wetland hydrology determination are described in the wetland identification procedures in the exhibit in section 514.8.

514.7 Relationship of Labels to Wetland Determinations and Delineations

The determination of whether or not land is a wetland is based on a technical determination using the Food Security Act wetland identification procedures, as described in the exhibit in section 514.8A and is independent of the assignment of wetland labels. Labels are used to identify land subject to exemptions or restrictions under the Food Security Act. Such land may or may not meet the definition of wetland. Subparts B through E contain instructions for identifying and labeling wetlands to determine whether restrictions or exemptions apply to the land per the WC provisions of the Food Security Act.

514.8  Exhibits            

                A. Food Security Act Wetland Identification Procedures 

                 B. Form SCS-CPA-026, Person Copy (June 1991)

   


   

  
 

[M_180_NFSAM_514_A - Fifth Ed., Amend. 4, January 2017 - ]