Wetland Wednesday
September 16, 2020
About a month ago the US Army Corps of Engineers (Corps), The US Environmental Protection Agency (EPA) and the US Department of Agriculture (USDA) issued a memorandum of understanding about issues relating to implementing section 404 of the Clean Water Act (CWA) and the Food Security Act (FSA). The concern is the fact the the USDA and the EPA/Corps define wetlands differently. In short, the USDA protects wetlands from filling by farmers and the Corps/EPA regulates the filling of wetlands under the CWA. Consequently, these agencies have different missions and a very different outlook on what a wetland is.
The memo indicates that the USDA will use the FSA Manual to determine farm subsidy eligibility. The Corps/EPA will use the newly released Navigable Waters Protection Rule (NWPR) to determine Federal jurisdiction. These two approaches and vary widely and there is an effort to coordinate locally using Local Level Agreement (LLA)’s. The main goal of a LLA is to “to promote business process efficiencies in order to reduce delays in actions related to their wetland programs.”
One of the biggest topics where the Corps/EPA is different from the USDA concerns Prior Converted Cropland (PCC). The Corps/EPA look to re-regulate PCC while the USDA is concerned about long term wetland effects or impacts that me associated with farming. To try to explain this I have copied the entire PCC discussion text from the memo below. If you would like to download the entire memo you can get it HERE.
IV. PRIOR CONVERTED CROPLAND
The USDA is responsible for making determinations as to whether land is prior converted cropland for FSA purposes, whereas the Corps and EPA are responsible for determining applicability of the prior converted cropland exclusion for CWA purposes, consistent with the government’s longstanding interpretation of those agencies’ authority under the CWA. The USDA’s regulatory definition of “prior
converted cropland” and the definition established in the Navigable Waters Protection Rule (NWPR; 85 FR 22339) have different purposes and they are substantively different. A determination of the applicability of the prior converted cropland exclusion for CWA purposes does not affect the USDA’s administration of the FSA or a landowner’s/operator’s eligibility for benefits under USDA programs.
The NWPR excludes prior converted cropland from the definition of “waters of the United States” under the CWA and defines the term “prior converted cropland” for CWA purposes. The definition of “prior converted cropland” in the NWPR clarifies that the exclusion is no longer applicable when the subject cropland is abandoned and the land has reverted to wetlands, as that term is defined under the NWPR. If the prior converted cropland exclusion does not apply, the Corps and EPA are responsible for determining whether the wetlands are “adjacent wetlands” and therefore “waters of the United States,” consistent with the NWPR. For purposes of the CWA, prior converted cropland is considered abandoned if it is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. See NWPR, 85 FR 22339; 33 CFR 328.3(c)(9). Prior converted cropland may not be subject to CWA regulation even after it is abandoned because the land does not revert to wetlands or because the land reverts to wetlands but those wetlands are not “adjacent wetlands” as defined in the NWPR. However, in some instances abandoned prior converted cropland may, under normal circumstances,
meet the definition of “wetlands” under the NWPR. In all cases, the burden to prove that such wetlands are “adjacent wetlands” and therefore a “water of the United States” remains with the Corps and EPA.
When determining the extent of “waters of the United States” subject to CWA jurisdiction, the Corps and EPA will exclude waters meeting the definition of “prior converted cropland” under the NWPR. 85FR 22326. The Corps and EPA will defer to any USDA determination as to whether a parcel or tract of land is prior converted cropland when the Corps and EPA determine the applicability of the prior
converted cropland exclusion under the NWPR. Id. Once eligibility is determined based on a determination made by USDA, the Corps and EPA will evaluate the land to determine if the exclusion under the NWPR currently applies, or if the land has been abandoned, as described in the NWPR. A landowner/operator seeking eligibility for USDA loans and payments without an existing prior
converted cropland determination from USDA may seek a new determination from USDA. See 85 FRTo allow the Corps and EPA to rely on a USDA prior converted cropland determination, the landowner/operator may provide a copy of the USDA determination to the Corps and/or EPA.2 The landowner/operator would need to determine which information is relevant to submit to the Corps and/or EPA for prior converted cropland purposes. The USDA can assist the landowner/operator in determining what information may be relevant. In the absence of a USDA determination as to whether a parcel or tract of land is prior converted cropland for FSA purposes, the Corps and EPA will evaluate any relevant information or documentation provided by the landowner/operator, as well as relevant additional sources of information as appropriate, to determine whether an area meets the definition of “prior converted cropland” under the NWPR and is excluded from the definition of “waters of the United States.” In evaluating the status of such lands as prior converted cropland for purposes of applying the NWPR exclusion, the Corps and/or EPA will consult with USDA as appropriate.
“Agricultural purposes” under the NWPR includes land use that makes the production of an agricultural product possible, including but not limited to crop production, grazing and haying. 85 FR 22341. The NWPR also clarifies that cropland that is left idle or fallow for conservation or agricultural purposes for any period or duration of time remains in agricultural use (i.e., it is used for, or in support of, agricultural purposes), and therefore maintains the prior converted cropland exclusion. 85 FR 22341. Agricultural purposes include, but are not limited to, idling land for conservation uses (e.g., habitat; pollinator and wildlife management; and water storage, supply, and flood management); irrigation tailwater storage; crawfish farming; cranberry bogs; nutrient retention; and idling land for soil recovery following natural disasters like hurricanes and drought. The uses listed above, in addition to crop production, grazing and haying, fall within the term “agricultural purposes” and, if documented, may maintain the prior converted cropland exclusion from the definition of “waters of the United States.” Conservation practices, including those required or supported by USDA, state, and local programs (including recognized private sector programs that partner with government programs or that can provide verifiable documentation of participation) are critical to the success of agricultural systems across the country. Conservation practices and programs also are conducted “for or in support of agricultural purposes” and are appropriate to maintain the prior converted cropland exclusion from the definition of “waters of the
United States.” 85 FR 22321.
It is important to note that some progressive agricultural activities and conservation practices can be difficult to recognize. This is often true for agricultural uses that mimic natural processes and have significant environmental benefits. For example, the USDA promotes soil health practices which emphasize maintaining diverse vegetative covers on soil at all times throughout the year, even on
cropland. To some, this may give the appearance of abandoned land. For difficult-to-recognize agricultural use activities that result in instances when soil tillage is reduced or eliminated on cropland (e.g., soil health), or water is stored for re-use on a dedicated area of cropland (e.g., tailwater recovery), the Corps and EPA can rely on USDA for examples of potential documentation of agricultural use (such
as a landowner’s/operator’s conservation plan, land use certifications for specific fields with USDA Farm Service Agency, and related documentation). The USDA may assist landowners/operators with information and documentation of agricultural use and other information which may demonstrate that prior converted cropland has not been abandoned or may no longer meet all parameters of wetland criteria. In addition, various other types of documentation may be used to indicate that land is being used for or in support of “agricultural purposes” and that the prior converted cropland exclusion continues to apply to a certain field or tract of land. In making an abandonment determination, the Corps and EPA intend to work closely with the landowner/operator and USDA, as appropriate, to determine whether the land is currently or has been used for or in support of agricultural purposes at least once in the immediately preceding five years. The Corps and EPA may consider documentation from USDA and other federal or state agencies as well as other relevant sources of information.
In circumstances where the landowner/operator wants to provide the Corps or EPA direct access to their USDA records regarding a USDA prior converted cropland determination and/or information which may be useful for establishing agricultural purposes, the landowner/operator may provide the Corps or EPA with a signed consent form (see Appendix A) to allow those agencies access to the relevant information. 85 FR 22326. The landowner/operator should note that in signing the consent form they are authorizing the Corps and EPA access to their complete record with USDA.
Oh, and don’t forget none of this applies to the State of Colorado. Have a great week!