Office of the Secretary, USDA § 12.2

PART 12—HIGHLY ERODIBLE LAND (b) Purpose. The purpose of the provi- CONSERVATION AND WETLAND sions of this part are to remove certain CONSERVATION incentives for persons to produce agri- cultural commodities on highly erod- Subpart A—General Provisions ible land or converted wetland and to thereby— Sec. (1) Reduce soil loss due to wind and 12.1 General. water erosion; 12.2 Definitions. 12.3 Applicability. (2) Protect the Nation’s long-term ca- 12.4 Determination of ineligibility. pability to produce food and fiber; 12.5 Exemption. (3) Reduce sedimentation and im- 12.6 Administration. prove water quality; and 12.7 Certification of compliance. (4) Assist in preserving the values, 12.8 Affiliated persons. 12.9 Landlords and tenants. acreage, and functions of the Nation’s 12.10 Scheme or device. wetlands. 12.11 Action based upon advice or action of [61 FR 47025, Sept. 6, 1996, as amended at 76 USDA. FR 82077, Dec. 30, 2011] 12.12 Appeals. 12.13 Special Federal crop insurance pre- mium subsidy provisions. § 12.2 Definitions. (a) General. The following definitions Subpart B—Highly Erodible Land shall be applicable for the purposes of Conservation this part: 12.20 NRCS responsibilities regarding high- Agricultural commodity means any ly erodible land. crop planted and produced by annual 12.21 Identification of highly erodible lands tilling of the soil, including tilling by criteria. one-trip planters, or sugarcane. 12.22 Highly erodible field determination criteria. Approved insurance provider means a 12.23 Conservation plans and conservation private insurance company that has systems. been approved and reinsured by FCIC to provide insurance coverage to per- Subpart C—Wetland Conservation sons participating in programs author- 12.30 NRCS responsibilities regarding wet- ized by the Federal Crop Insurance Act, lands. as amended (7 U.S.C. 1501–1524). 12.31 Wetland identification procedures. Best drained condition means the hy- 12.32 Converted wetland identification cri- drologic conditions with respect to teria. depth, duration, frequency, and timing 12.33 Use of wetland and converted wetland. of soil saturation or inundation result- AUTHORITY: 16 U.S.C. 3801, 3811–12, 3812a, ing from drainage manipulations that 3813–3814, and 3821–3824. occurred prior to December 23, 1985, SOURCE: 61 FR 47025, Sept. 6, 1996, unless and that exist during the wet portion otherwise noted. of the growing season during normal climatic conditions. Subpart A—General Provisions CCC means the Commodity Credit Corporation, a wholly-owned govern- § 12.1 General. ment corporation within USDA orga- (a) Scope. This part sets forth the nized under the provisions of 15 U.S.C. terms and conditions under which a 714 et seq. person who produces an agricultural Conservation District (CD) means a commodity on highly erodible land or subdivision of a State or local govern- designates such land for conservation ment organized pursuant to the appli- use, plants an agricultural commodity cable law to develop and implement on a converted wetland, or converts a soil and water conservation activities wetland shall be determined to be in- or programs. eligible for certain benefits provided by Conservation plan means the docu- the United States Department of Agri- ment that— culture (USDA) and agencies and in- (1) Applies to highly erodible crop- strumentalities of USDA. land;

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(2) Describes the conservation system Enhancement actions include new ca- applicable to the highly erodible crop- pabilities, management options, struc- land and describes the decisions of the tures, or other actions to influence one person with respect to location, land or several functions and values. use, tillage systems, and conservation Erodibility index means a numerical treatment measures and schedules; and value that expresses the potential (3) Is approved by the local soil con- erodibility of a soil in relation to its servation district in consultation with soil loss tolerance value without con- the local committees established under sideration of applied conservation section 8(b)(5) of the Soil Conservation practices or management. and Domestic Allotment Act (16 U.S.C. FCIC means the Federal Crop Insur- 590h(b)(5)) and the Natural Resources ance Corporation, a wholly owned cor- Conservation Service (NRCS) for pur- poration within USDA whose programs poses of compliance with this part. are administered by RMA. Conservation system means a combina- FSA means the Farm Service Agency, tion of one or more conservation meas- an agency of USDA which is generally ures or management practices that responsible for administering com- are— modity production adjustment and cer- (1) Based on local resource condi- tain conservation programs of USDA. tions, available conservation tech- Field means a part of a farm that is nology, and the standards and guide- separated from the balance of the farm lines contained in the NRCS field office by permanent boundaries such as technical guides (available from NRCS fences, roads, permanent waterways, or State offices); and other similar features. At the option of (2) Designed for purposes of this part the owner or operator of the farm, to achieve, in a cost-effective and tech- croplines may also be used to delineate nically practicable manner, a substan- a field if farming practices make it tial reduction in soil erosion or a sub- probable that the croplines are not sub- stantial improvement in soil condi- ject to change. Any highly erodible tions on a field or group of fields con- land on which an agricultural com- taining highly erodible cropland when modity is produced after December 23, compared to the level of erosion or soil 1985, and is not exempt under § 12.5(a), conditions that existed before the ap- shall be considered part of the field in plication of the conservation measures which the land was included on Decem- and management practices. ber 23, 1985, unless, to carry out this Conservation use or set aside means title, the owner and FSA agree to mod- cropland that is designated as con- ify the boundaries of the field. servation-use acreage, set aside, or Highly erodible land means land that other similar designation for the pur- has an erodibility index of 8 or more. pose of fulfilling provisions under any Hydric soils means soils that, in an acreage-limitation or land-diversion undrained condition, are saturated, program administered by the Secretary flooded, or ponded long enough during of Agriculture requiring that the pro- a growing season to develop an anaer- ducer devote a specified acreage to con- obic condition that supports the servation or other non-crop production growth and regeneration of uses. hydrophytic vegetation. Creation of a wetland means the devel- Hydrophytic vegetation means plants opment of the hydrologic, geochemical, growing in water or in a substrate that and biological components necessary is at least periodically deficient in oxy- to support and maintain a wetland gen during a growing season as a result where a wetland did not previously of excessive water content. exist. Any wetland established on a Landlord means a person who rents or non-hydric soil will be considered a leases farmland to another person. created wetland. Local FSA office means the county of- Department means the United States fice of the Farm Service Agency serv- Department of Agriculture (USDA). ing the county or a combination of Enhancement of a wetland means the counties in the area in which a person’s alteration of an existing wetland to in- land is located for administrative pur- crease its specific functions and values. poses.

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NIFA means the National Institute of Restoration of a wetland means the re- Food and Agriculture, an agency of establishment of wetland conditions, USDA which is generally responsible including hydrologic condition or na- for coordinating the information and tive hydrophytic vegetation, to an area educational programs of USDA. where a wetland had previously ex- Normal climatic conditions means the isted. normal range of hydrologic inputs on a RMA means the Risk Management site as determined by the bounds pro- Agency, an agency within USDA that vided in the Climate Analysis for Wet- administers the programs of the FCIC lands Tables or methods posted in the through which Federally reinsured Field Office Technical Guide. crop insurance is provided to American NRCS means the Natural Resources farmers and ranchers. Conservation Service, an agency within USDA which is generally responsible Secretary means the Secretary of for providing technical assistance in USDA. matters of natural resources conserva- Sharecropper means a person who per- tion and for administering certain con- forms work in connection with the pro- servation programs of USDA. duction of a crop under the supervision Operator means the person who is in of the operator and who receives a general control of the farming oper- share of such crop for such labor. ations on the farm during the crop Soil map unit means an area of the year. landscape shown on a soil map which Owner means a person who is deter- consists of one or more soils. mined to have legal ownership of farm- State means each of the 50 states, the land and shall include a person who is District of Columbia, the Common- purchasing farmland under contract. wealth of Puerto Rico, Guam, the Vir- Person means an individual, partner- gin Islands of the United States, Amer- ship, association, corporation, coopera- ican Samoa, the Commonwealth of the tive, estate, trust, joint venture, joint Northern Mariana Islands, or the Trust operation, or other business enterprise Territory of the Pacific Islands. or other legal entity and, whenever ap- means a person usually called plicable, a State, a political subdivi- Tenant sion of a State, or any agency thereof, a ‘‘cash tenant’’, ‘‘fixed-rent tenant’’, and such person’s affiliates as provided or ‘‘standing rent tenant’’ who rents in § 12.8 of this part. land from another for a fixed amount Playa means a usually dry and nearly of cash or a fixed amount of a com- level lake plain that occupies the low- modity to be paid as rent; or a person est parts of closed depressions (basins). (other than a sharecropper) usually Temporary inundation occurs pri- called a ‘‘share tenant’’ who rents land marily in response to precipitation- from another person and pays as rent a runoff events. Playas may or may not share of the crops or proceeds there- be characterized by high water table from. A tenant shall not be considered and saline conditions. They occur pri- the farm operator unless the tenant is marily in the Southern Great Plains. determined to be the operator pursuant Pocosin means a wet area on nearly to this part and 7 CFR part 718. level interstream divides in the Atlan- Wetland, except when such term is a tic Coastal Plain. Soils are generally part of the term ‘‘converted wetland’’, organic but may include some areas of means land that— high organic mineral soils. (1) Has predominance of hydric soils; Pothole means a closed depression, (2) Is inundated or saturated by sur- generally circular, elliptical, or linear face or groundwater at a frequency and in shape, occurring in glacial outwash plains, moraines, till plains, and gla- duration sufficient to support a preva- cial lake plains. lence of hydrophytic vegetation typi- Reinsurance year means a 1-year pe- cally adapted for life in saturated soil riod beginning July 1 and ending on conditions; and June 30 of the following year, identified by reference to the year containing June.

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(3) Under normal circumstances does lated and used to produce an agricul- support a prevalence of such vegeta- tural commodity at least once before tion, except that this term does not in- December 23, 1985, and on December 23, clude lands in Alaska identified as hav- 1985, did not support woody vegetation, ing a high potential for agricultural de- and met the following hydrologic cri- velopment and a predominance of per- teria: mafrost soils. (i) If not a playa, pocosin, or pothole, Wetland delineation means outlining experienced inundation for 15 consecu- the boundaries of a wetland determina- tive days or more during the growing tion on aerial photography, digital im- season or 10 percent of the growing sea- agery, other graphic representation of son, whichever is less, in most years (50 the area, or on the land. percent chance or more), which req- Wetland determination means a deci- uisite inundation is determined sion regarding whether or not an area through: is a wetland, including identification of (A) Observation of wetland hydrology wetland type and size. A wetland deter- indicators as identified in the local mination may include identification of NRCS Field Office Technical Guide; an area as one of the following types of (B) Procedures identified in State wetland— Off-Site Methods for wetland identi- (1) is an area that Artificial wetland fication set forth in the local NRCS was formerly non-wetland, but now Field Office Technical Guide; or meets wetland criteria due to human (C) The use of analytic techniques, activities, such as: (i) An artificial lake or pond created such as the use of drainage equations by excavating or diking land that is or the evaluation of monitoring data. not a wetland to collect and retain (ii) If a playa, pocosin, or pothole ex- water that is used primarily for live- perienced ponding for 7 or more con- stock, fish production, irrigation, wild- secutive days during the growing sea- life, fire control, flood control, cran- son in most years (50-percent chance of berry growing, or rice production, or as more) or saturation for 14 or more con- a settling pond; or secutive days during the growing sea- (ii) A wetland that is temporarily or son in most years (50-percent chance or incidentally created as a result of adja- more). Wetlands which are found to cent development activity; support wetland hydrology through (2) Commenced-conversion wetland is a Step 1 of the wetland determination wetland, farmed wetland, farmed-wet- process in § 12.30(c)(7) and application land pasture, or a converted wetland on of the procedures described in § 12.31(c) which conversion began, but was not will be determined to meet the req- completed, prior to December 23, 1985. uisite criteria. (3) Converted wetland is a wetland (5) Farmed-wetland pasture is a wet- that has been drained, dredged, filled, land that prior to December 23, 1985, leveled, or otherwise manipulated (in- was manipulated and managed for pas- cluding the removal of woody vegeta- ture or hayland, was not used to tion or any activity that results in im- produce an agricultural commodity at pairing or reducing the flow and cir- least once before December 23, 1985, and culation of water) for the purpose of or on December 23, 1985, experienced inun- to have the effect of making possible dation or ponding for 7 or more con- the production of an agricultural com- secutive days during the growing sea- modity without further application of son in most years (50-percent chance or the manipulations described herein if: more) or saturation for 14 or more con- (i) Such production would not have secutive days during the growing sea- been possible but for such action, and son in most years (50-percent chance or (ii) Before such action such land was more). Wetlands which are found to wetland, farmed wetland, or farmed- support wetland hydrology through wetland pasture and was neither highly step 1 of the wetland determination erodible land nor highly erodible crop- process in § 12.30(c)(7) and application land; of the procedures described in § 12.31(c) (4) Farmed wetland is a wetland that will be determined to meet the req- prior to December 23, 1985, was manipu- uisite criteria.

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(6) Not-inventoried land, is an area for and the Commonwealth of the North- which no evaluation of soils, vegeta- ern Mariana Islands. tion, or hydrology has been conducted (b) The rules in this part are applica- to determine if wetland criteria are ble to all current and future deter- met; minations on matters within the scope (7) Non-wetland is; of this part. Nothing in these rules re- (i) Land that under natural condi- lieves any person of any liability under tions does not meet wetland criteria, previous versions of these rules. or (c) Notwithstanding paragraph (b) of (ii) Is converted wetland the conver- this section, for the purpose of eligi- sion of which occurred prior to Decem- bility for Federal crop insurance pre- ber 23, 1985, and on that date, the land mium subsidy for a policy or plan of in- did not meet wetland criteria but an surance under the Federal Crop Insur- agricultural commodity was not pro- ance Act (7 U.S.C. 1501–1524), the provi- duced and the area was not managed sions of this part apply to final HEL for pasture or hay; and wetland conservation determina- tions, including all administrative ap- (8) Prior-converted cropland is a con- peals, after February 7, 2014, on mat- verted wetland where the conversion ters within the scope of this part. occurred prior to December 23, 1985, an (1) For acts or situations of non-com- agricultural commodity had been pro- pliance or failure to certify compliance duced at least once before December 23, according to this part, ineligibility for 1985, and as of December 23, 1985, the Federal crop insurance premium sub- converted wetland did not support sidies will be applied beginning with woody vegetation and did not meet the the 2016 reinsurance year for any Fed- hydrologic criteria for farmed wetland. erally reinsured policy or plan of insur- (9) Wetland, as defined above in this ance with a sales closing date on or section. after July 1, 2015. Wetland hydrology means inundation (2) [Reserved] or saturation by surface or ground- water during a growing season at a fre- [80 FR 22879, Apr. 24, 2015] quency and duration sufficient to sup- § 12.4 Determination of ineligibility. port a prevalence of hydrophytic vege- tation. (a) Actions. Except as provided in (b) Terms for FSA operations. In the §§ 12.5 or 12.13, a person shall be ineli- regulations in this part, and in all in- gible for all or a portion of USDA pro- structions, forms, and documents in gram benefits listed in this section if: (1) The person produces an agricul- connection therewith, all other words tural commodity on a field in which and phrases specifically relating to highly erodible land is predominant, or FSA operations shall, unless required designates such a field for conservation by the subject matter or the specific use; provisions of this part, have the mean- (2) The person produces an agricul- ings assigned to them in the regula- tural commodity on a wetland that was tions at part 718 of this title that gov- converted after December 23, 1985; or ern reconstitutions of farms, allot- (3) After November 28, 1990, the per- ments, and bases and any subsequent son converts a wetland by draining, amendment thereto. dredging, filling, leveling, removing [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, woody vegetation, or other means for 1996; 76 FR 4803, Jan. 27, 2011; 80 FR 22879, the purpose, or to have the effect, of Apr. 24, 2015; 83 FR 63050, Dec. 7, 2018; 85 FR making the production of an agricul- 35151, Aug. 28, 2020] tural commodity possible. (b) Highly erodible land. A person de- § 12.3 Applicability. termined to be ineligible under para- (a) The provisions of this part apply graph (a)(1) of this section may be in- to all land, including Indian tribal eligible for all program benefits listed land, in the 50 States, the District of in (d) and (e) of this section. Columbia, the Commonwealth of Puer- (c) Wetland conservation. Except as to Rico, Guam, the Virgin Islands of provided in § 12.13, a person determined the United States, American Samoa, to be ineligible under paragraph (a)(2)

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of this section is ineligible for all or a (2) A farm credit program loan made portion of the USDA program benefits or guaranteed under the Consolidated listed in paragraph (d) of this section Farm and Rural Development Act (7 for which the person otherwise would U.S.C. 1921 et seq.) or any other provi- have been eligible during the crop year sion of law administered by FSA if the of the commodity that was planted on Secretary determines that the proceeds the converted wetland. Except as pro- of such loan will be used for a purpose vided in § 12.13, a person determined to that contributes to the conversion of be ineligible under paragraph (a)(3) of wetlands that would make production this section for the conversion of a of an agricultural commodity possible wetland is ineligible for all or a portion or for a purpose that contributes to ex- of the USDA program benefits listed in cessive erosion of highly erodible land paragraph (d) of this section for which (i.e., production of an agricultural com- the person otherwise would have been modity on highly erodible land without eligible during the crop year which is a conservation plan or conservation equal to the calendar year during system as required by this part); which the violation occurred and each (3) A payment made pursuant to a subsequent crop year until the con- contract entered into under the Envi- verted wetland is restored or the loss of ronmental Quality Incentives Program wetland values, acreage, and functions under chapter 4 of subtitle D of the have been mitigated prior to the begin- Food Security Act of 1985, as amended; ning of such calendar year in accord- or a payment under any other provi- ance with § 12.5(b)(4)(i) (A) and (C) sion of Subtitle D of that Act; through (F) of this part. Ineligibility (4) A payment made under section 401 under paragraph (a)(2) of this section or 402 of the Agricultural Credit Act of may be reduced, in lieu of the loss of 1978 (16 U.S.C. 2201 or 2202); all benefits specified under paragraph (5) A payment, loan, or other assist- (d) of this section for such crop year, ance under section 3 or 8 of the Water- based on the seriousness of the viola- shed Protection and Flood Prevention tion, as determined by the FSA Deputy Act (16 U.S.C. 1003 or 1006a) and; Administrator for Farm Programs or (6) Federal crop insurance premium designee upon recommendation by the subsidies for a policy or plan of insur- FSA County Committee. Factors such ance offered under the Federal Crop In- as the information that was available surance Act (7 U.S.C. 1501–1524). to the affected person prior to the vio- (e) Programs subject to highly erodible lation, previous land use patterns, the land only. In addition to programs list- existence of previous wetland viola- ed in paragraph (d) of this section, a tions under this part or under other person determined to be ineligible Federal, State, or local wetland provi- under paragraph (a)(1) of this section sions, the wetland values, acreage, and shall be ineligible as determined by functions affected, the recovery time FSA for the following USDA program for full mitigation of the wetland val- benefits for which the person otherwise ues, acreage, and functions, and the would have been eligible during the impact that a reduction in payments crop year for which the determination would have on the person’s ability to applies: repay a USDA farm loan will be consid- (1) A farm storage facility loan made ered in making this determination. under section 4(h) of the Commodity (d) Programs subject to either highly Credit Corporation Charter Act (15 erodible land or wetland conservation. U.S.C. 714b(h)); USDA program benefits covered by a (2) A disaster payment made under determination of ineligibility under the Federal Agricultural Improvement this rule are: and Reform Act, Pub. L. 104–127, or any (1) Contract payments, marketing as- other act; and sistance loans, and any type of price (3) A payment made under section 4 support or payment made available or 5 of the Commodity Credit Corpora- under the Agricultural Act of 2014, the tion Charter Act (15 U.S.C. 714b or 714c) Commodity Credit Corporation Charter for the storage of an agricultural com- Act (15 U.S.C. 714b and 714c), or suc- modity acquired by the Commodity cessor Acts. Credit Corporation.

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(f) Determination of ineligibility. For cultural commodity is produced was the purpose of paragraph (a) of this sec- surveyed by NRCS to determine if such tion, a person shall be determined to land is highly erodible, no person shall have produced an agricultural com- be determined to be ineligible for bene- modity on a field in which highly erod- fits as provided in § 12.4 as the result of ible land is predominant or to have des- the production of an agricultural com- ignated such a field for conservation modity on any highly erodible land: use, to have produced an agricultural (i) That was planted to an agricul- commodity on converted wetland, or to tural commodity in any year 1981 have converted a wetland if: through 1985; or (1) NRCS has determined that— (ii) That was set aside, diverted, or (i) Highly erodible land is predomi- otherwise not cultivated in any such nant in such field, or crop years under a program adminis- (ii) All or a portion of the field is tered by the Secretary for any such converted wetland; and crops to reduce production of an agri- (2) FSA has determined that the per- cultural commodity. son is or was the owner or operator of (2) Compliance with a conservation plan the land, or entitled to share in the or conservation system. As further speci- crops available from the land, or in the fied in this part, no person shall be in- proceeds thereof; and eligible for the program benefits de- (3) With regard to the provisions of scribed in § 12.4 as the result of produc- paragraph (a)(1) and (a)(2) of this sec- tion of an agricultural commodity on tion, FSA has determined that the land highly erodible land or the designation is or was planted to an agricultural of such land for conservation use if commodity or was designated as con- such production or designation is in servation use during the year for which compliance with a conservation plan or the person is requesting benefits. conservation system approved under (g) Intent to participate in USDA pro- paragraph (a)(2)(i) or (a)(2)(ii) of this grams. Persons who wish to participate section. A person shall not be ineligible in any of the USDA programs described for program benefits under § 12.4 as the in paragraph (d) or (e) of this section result of the production of an agricul- are responsible for contacting the ap- tural commodity on highly erodible propriate agency of USDA well in ad- land or as the result of designation of vance of the intended participated date such land as conservation use if the so that Form AD–1026 can be com- production or designation is: pleted. This contact will help assure (i) In an area within a CD, under a that the appropriate determinations conservation system that has been ap- regarding highly erodible land or wet- proved by the CD after the CD deter- land, and conservation plans or con- mines that the conservation system is servation systems are scheduled in a in conformity with technical standards timely manner. A late contact may not set forth in the NRCS field office tech- allow sufficient time for USDA to serv- nical guide for such district; or ice the request and could result in a (ii) In an area not within a CD, under substantial delay in receiving a USDA a conservation system that has been determination of eligibility or ineligi- approved by NRCS to be adequate for bility. the production of such agricultural [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, commodity on highly erodible land or 1996; 76 FR 82077, Dec. 30, 2011; 80 FR 22880, for the designation of such land as con- Apr. 24, 2015] servation use. (3) Reliance upon NRCS determination § 12.5 Exemption. for highly erodible land. A person may (a) Exemptions regarding highly erod- be relieved from ineligibility for pro- ible land—(1) Highly erodible cropland in gram benefits as the result of the pro- production or in USDA programs during duction of an agricultural commodity 1981 through 1985 crop years. During the which was produced on highly erodible period beginning on December 23, 1985, land or for the designation of such land and ending on the later of January 1, as conservation use in reliance on a de- 1990, or the date that is two years after termination by NRCS that such land the date the cropland on which an agri- was not highly erodible land, except

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that this paragraph shall not apply to person, not later than 45 days after ob- any agricultural commodity that was serving the possible violation, informa- planted on highly erodible land, or for tion regarding actions needed to com- the designation of highly erodible land ply with the plan and this subtitle. as conservation use after NRCS deter- NRCS will provide this information in mines that such land is highly erodible lieu of reporting the observation as a land, and the person is notified of such violation, if the responsible person at- determinations. tempts to correct the deficiencies as (4) Areas of 2 acres or less. No person soon as practicable, as determined by shall be determined to be ineligible NRCS, after receiving the information, under § 12.4 for noncommercial produc- but not later than one year after re- tion of agricultural commodities on ceiving the information. If a person highly erodible land on an area of 2 does not take the required corrective acres or less if it is determined by FSA actions, the person may be determined that such production is not intended to to be ineligible for the crop year during circumvent the conservation require- which the compliance deficiencies oc- ments otherwise applicable under this curred, as well as any subsequent crop part. year. (5) Good faith. (i) No person will be- (iv) A person who meets the require- come ineligible under § 12.4 as a result ments of paragraphs (a)(5)(i) and of the failure of such person to apply a (a)(5)(ii) of this section will, in lieu of conservation system on highly erodible the loss of all benefits specified under land if all of the following apply: § 12.4(d) and (e) for such crop year, be (A) FSA determines such person has subject to a reduction in benefits by an acted in good faith and without the in- amount commensurate with the seri- tent to violate the provisions of this ousness of the violation, as determined part; by FSA. The dollar amount of the re- (B) NRCS determines that the person duction will be determined by FSA and complies with paragraph (a)(5)(ii) of may be based on the number of acres this section; and and the degree of erosion hazard for the (C) The good faith determination of area in violation, as determined by the FSA county or State committee NRCS, or upon such other factors as has been reviewed and approved by the FSA determines appropriate. applicable State Executive Director, (v) Any person whose benefits are re- with the technical concurrence of the duced in a crop year under paragraph State Conservationist; or district di- (a)(5) of this section may be eligible for rector, with the technical concurrence all of the benefits specified under of the area conservationist. § 12.4(d) and (e) for any subsequent crop (ii) A person who otherwise meets the year if, prior to the beginning of the requirements of paragraphs (a)(5)(i)(A) subsequent crop year, NRCS deter- and (a)(5)(i)(C) of this section will be mines that such person is actively ap- allowed a reasonable period of time, as plying a conservation plan according to determined by NRCS, but not to exceed the schedule specified in the plan on all one year, during which to implement highly erodible land planted to an agri- the measures and practices necessary cultural commodity or designated as to be considered actively applying the conservation use. person’s conservation plan, as deter- (6) Allowable variances. (i) Notwith- mined by USDA. If a person does not standing any other provisions of this take the required corrective actions, part, no person shall be determined to the person may be determined to be in- be ineligible for benefits as a result of eligible for the crop year during which the failure of such person to apply a such actions were to be taken, as well conservation system if NRCS deter- as any subsequent crop year. mines that— (iii) Notwithstanding the good-faith (A) The failure is technical and requirements of paragraph (a)(5)(i) of minor in nature and that such viola- this section, if NRCS observes a pos- tion has little effect on the erosion sible compliance deficiency while pro- control purposes of the conservation viding on-site technical assistance, plan applicable to the land on which NRCS will provide to the responsible the violation has occurred; or

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(B) The failure is due to cir- tion plan applicable to the land on cumstances beyond the control of the which the violation occurred. person; or (b) Exemptions for wetlands and con- (C) NRCS grants a temporary vari- verted wetlands—(1) General exemptions. ance from the practices specified in the A person shall not be determined to be plan for the purpose of handling a spe- ineligible for program benefits under cific problem, including weather, pest, § 12.4 as the result of the production of and disease problems, which NRCS de- an agricultural commodity on con- termines cannot reasonably be ad- verted wetland or the conversion of dressed except through such variance. wetland if: (ii) If the person’s request for a tem- (i) The land is a prior-converted crop- porary variance involves the use of land and meets the definition of a practices or measures to address prior-converted cropland as of the date weather, pest, or disease problems, of a wetland determination by NRCS; NRCS shall make a decision on wheth- (ii) The land has been determined by er to grant the variance during the 30- NRCS to be a prior-converted cropland day period beginning on the date of re- and such determination has been cer- ceipt of the request. If NRCS fails to tified, and NRCS determines that the render a decision during the period, the wetland characteristics returned after temporary variance shall be considered the date of the wetland certification as granted unless the person seeking the a result of— variance had reason to know that the (A) The lack of maintenance of drain- variance would not be granted. In de- age, dikes, levees, or similar struc- termining whether to grant a variance tures, for natural disasters such as weather, (B) The lack of management of the pest, or disease problems, NRCS will lands containing the wetland, or consider such factors as: (C) Circumstances beyond the control (A) The percent of a stand damaged of the person; or destroyed by the event; (B) The percent of expected crop pro- (iii) The land was determined by duction compared to normal produc- NRCS to be a farmed wetland or a tion for that crop; farmed-wetland pasture and— (C) The documented invasion of non- (A) Such land meets wetland criteria native insects, weeds, or diseases for through a voluntary restoration, en- which no recognized treatment exists; hancement, or creation action after (D) Whether an event is severe or un- that determination, usual based on historical weather (B) The technical determinations re- records; and garding the baseline site conditions (E) Other specific circumstances and the restoration, enhancement, or caused by a natural event that pre- creation action have been adequately vented the implementation of con- documented by NRCS, servation practices or systems, instal- (C) The proposed conversion action is lation of structures, or planting of documented by the NRCS prior to im- cover crops. plementation, and (7) Technical and minor violations. (D) The extent of the proposed con- Notwithstanding any other provisions version is limited so that the condi- of this part, a reduction in benefits in tions will be at least equivalent to the an amount commensurate with the se- wetland values, acreage, and functions riousness of the violation, as deter- that existed at the time of implemen- mined by FSA, and consistent with tation of the voluntary wetland res- paragraph (a)(5)(iv) of this section, will toration, enhancement, or creation ac- be applied if NRCS determines that a tion; violation involving highly erodible (iv) NRCS has determined that the land that would otherwise lead to a conversion if for a purpose that does loss of benefits is both of the following: not make the production of an agricul- (i) Technical and minor in nature; tural commodity possible, such as con- and versions for fish production, trees, (ii) Has a minimal effect on the ero- vineyards, shrubs, cranberries, agricul- sion control purposes of the conserva- tural waste management structures,

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livestock ponds, fire control, or build- have been converted by the person ap- ing and road construction and no agri- plying for USDA program benefits un- cultural commodity is produced on less the person can show that the con- such land; version was caused by a third party (v) NRCS has determined that the ac- with whom the person was not associ- tions of the person with respect to the ated through a scheme or device as de- conversion of the wetland or the com- scribed under § 12.10 of this part. In this bined effect of the production of an ag- regard, activities of a water resource ricultural commodity on a wetland district, drainage district, or similar converted by the person or by someone entity will be attributed to all persons else, individually and in connection within the jurisdiction of the district with all other similar actions author- or other entity who are assessed for the ized by NRCS in the area, would have activities of the district or entity. Ac- only a minimal effect on the wetland cordingly, where a person’s wetland is functions and values of wetlands in the converted due to the actions of the dis- area; trict or entity, the person shall be con- (vi)(A) After December 23, 1985, the sidered to have caused or permitted the Army Corps of Engineers issued an in- drainage. Notwithstanding the provi- dividual permit pursuant to section 404 sions of the preceding sentences and as of the Clean Water Act, 33 U.S.C. 1344, determined by FSA to be consistent authorizing such action and the permit with the purposes of this part, the ac- required mitigation that adequately tivities of a drainage district or other replaced the values, acreage, and func- similar entity will not be attributed to tions of the wetlands converted, as de- a person to the extent that the activi- termined by NRCS, or ties of the district or entity were be- (B) After December 23, 1985, the ac- yond the control of the person and the tion is encompassed under section 404 wetland converted is not used by the of the Clean Water Act, 33 U.S.C. 1344, person for the production of an agricul- by an Army Corps of Engineers nation- tural commodity or a forage crop for wide or regional general permit and the harvest by mechanical means or miti- wetland values, acreage, and functions gation for the converted wetland oc- were adequately mitigated, as deter- curs in accordance with this part. mined by NRCS; or (2) Commenced conversion wetlands. (i) (vii) The land is determined by NRCS The purpose of a determination of a to be— commenced conversion made under (A) An artificial wetland, this paragraph is to implement the leg- (B) A wet area created by a water de- islative intent that those persons who livery system, irrigation, irrigation had actually started conversion of a system, or application of water for irri- wetland or obligated funds for conver- gation, sion prior to December 23, 1985, would (C) A nontidal drainage or irrigation be allowed to complete the conversion ditch excavated in non-wetland, or so as to avoid unnecessary economic (D) A wetland converted by actions of hardship. persons other than the person applying (ii) All persons who believed they had for USDA program benefits or any of a wetland or converted wetland for the person’s predecessors in interest which conversion began but was not after December 23, 1985, if such conver- completed prior to December 23, 1985, sion was not the result of a scheme or must have requested by September 19, device to avoid compliance with this 1988, FSA to make a determination of part. Further drainage improvement on commencement in order to be consid- such land is not permitted without loss ered exempt under this section. of eligibility for USDA program bene- (iii) Any conversion activity consid- fits, unless NRCS determines under ered by FSA to be commenced under paragraph (b)(1)(v) of this section that this section lost its exempt status if further drainage activities applied to such activity as not completed on or such land would have minimal effect before January 1, 1995. For purposes of on the wetland functions and values in this part, land on which such conver- the area. In applying this paragraph, a sion activities were completed by Jan- converted wetland shall be presumed to uary 1, 1995, shall be evaluated by the

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same standards and qualify for the (C) Is not at the expense of the fed- same exemptions as prior-converted eral government in either supporting croplands. For purposes of this part, the direct or indirect costs of the res- land on which such conversion activi- toration activity or costs associated ties were not completed by January 1, with acquiring or securing mitigation 1995, shall be evaluated by the same sites, except if conducted under a miti- standards and qualify for the same ex- gation banking program established by emptions as wetlands or farmed wet- USDA; lands, as applicable. (D) Occurs on lands in the same gen- (iv) Only those wetlands for which eral area of the local watershed as the the construction had begun, or to converted wetlands, provided that for which the contract or purchased sup- purposes of this paragraph, lands in the plies and materials related, qualified same general area of the local water- for a determination of commencement. shed may include regional mitigation However, in those circumstances where banks; the conversion of wetland did not meet (E) Is on lands for which the owner the specific requirements of this para- has granted an easement to USDA or in graph, the person could have requested the case of a mitigation bank operated a commencement of conversion deter- under a USDA program, an entity ap- mination from the FSA Deputy Admin- proved by USDA, recorded the ease- istrator for Farm Programs, upon a ment on public land records, and has showing that undue economic hardship agreed to the maintenance of the re- would have resulted because of sub- stored, created, or enhanced wetland stantial financial obligations incurred for as long as the converted wetland for prior to December 23, 1985, for the pri- which the mitigation occurred remains mary and direct purpose of converting in agricultural use or is not returned the wetland. to its original wetland classification with equivalent values, acreage, and (3) Wetlands farmed under natural con- functions; and ditions. A person shall not be deter- (F) Provides the equivalent values, mined to be ineligible for program ben- acreage, and functions that will be lost efits under § 12.4 of this part as a result as a result of the wetland conversion. of the production of an agricultural (ii) A mitigation plan is a record of commodity on a wetland on which the decisions that document the actions owner or operator of a farm or ranch necessary to compensate for the loss of uses normal cropping or ranching prac- wetland values, acreage, and functions tices to produce agricultural commod- that result from converting a wetland. ities in a manner that is consistent for The mitigation plan may be a compo- the area, where such production is pos- nent of a larger natural resources con- sible as a result of natural conditions, servation plan. such as drought, and is without action (iii) The State Conservationist, in by the producer that alters the hydrol- consultation with the State Technical ogy or removes woody vegetation. Committee, may name certain types or (4) Mitigation. (i) No person shall be classes of wetland not eligible for ex- determined to be ineligible under § 12.4 emption under paragraph (b)(4)(i) of for any action associated with the con- this section where the State Conserva- version of a wetland if the wetland val- tionist determines that mitigation will ues, acreage, and functions are ade- not achieve equivalent replacement of quately mitigated, as determined by wetland values, acreage, and functions NRCS, through the restoration of a within a reasonable time frame or for converted wetland, the enhancement of other reasons identified by the State an existing wetland, or the creation of Conservationist. Any type or class of a new wetland, if the mitigation— wetland that a State Conservationist (A) Is in accordance with a mitiga- identifies as not eligible for exemption tion plan approved by NRCS; under paragraph (b)(4)(i) of this section (B) Is in advance of, or concurrent will be published in the FEDERAL REG- with, the wetland conversion or the ISTER for inclusion in this part. production of an agricultural com- (5) Good faith violations. (i) A person modity, as applicable; who is determined under § 12.4 of this

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part to be ineligible for benefits as the vious certified wetland determination result of the production of an agricul- by NRCS. tural commodity on a wetland con- (ii) A person who may be ineligible verted after December 23, 1985, or as for program benefits as the result of the result of the conversion of a wet- the production of an agricultural com- land after November 28, 1990, may re- modity on converted wetland or for the gain eligibility for benefits if all of the conversion of a wetland may seek relief following apply: under § 12.11 of this part if such action (A) FSA determines that such person was taken in reliance on an incorrect acted in good faith and without the in- technical determination by NRCS as to tent to violate the wetland provisions the status of such land. If the error of this part; and caused the person to make a substan- (B) NRCS determines that the person tial financial investment, as deter- is implementing all practices in a miti- mined by the NRCS, for the conversion gation plan within an agreed-to period, of a wetland, the person may be re- not to exceed one year; and lieved of ineligibility for actions re- lated to that portion of the converted (C) The good faith determination of wetland for which the substantial fi- the FSA county or State committee nancial investment was expended in has been reviewed and approved by the conversion activities. The relief avail- applicable State Executive Director, able under this paragraph shall not with the technical concurrence of the apply to situations in which the person State Conservationist; or district di- knew or reasonably should have known rector, with the technical concurrence that the determination was in error be- of the area conservationist. cause the characteristics of the site (ii) In determining whether a person were such that the person should have acted in good faith under paragraph been aware that a wetland existed on (b)(5)(i)(A) of this section, the FSA the subject land, or for other reasons. shall consider such factors as wheth- (7) Responsibility to provide evidence. It er— is the responsibility of the person seek- (A) The characteristics of the site ing an exemption related to converted were such that the person should have wetlands under this section to provide been aware that a wetland existed on evidence, such as receipts, crop-history the subject land, data, drawings, plans or similar infor- (B) NRCS had informed the person mation, for purposes of determining about the existence of a wetland on the whether the conversion or other action subject land, is exempt in accordance with this sec- (C) The person did not convert the tion. wetland, but planted an agricultural commodity on converted wetland when [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996; 76 FR 82077, Dec. 30, 2011; 80 FR 22880, the person should have known that a Apr. 24, 2015] wetland previously existed on the sub- ject land, § 12.6 Administration. (D) The person has a record of vio- (a) General. In general determina- lating the wetland provisions of this tions will be made as follows: part or other Federal, State, or local (1) Except as provided in paragraph wetland provisions, or (a)(2) of this section, a determination (E) There exists other information of ineligibility for benefits in accord- that demonstrates that the person ance with the provisions of this part acted with the intent to violate the will be made by the agency of USDA to wetland provisions of this part. which the person has applied for bene- (iii) After the requirements of para- fits. All determinations required to be graph (b)(5)(i) of this section are met, made under the provisions of this part USDA may waive applying the ineligi- will be made by the agency responsible bility provisions of § 12.4. for making such determinations, as (6) Reliance upon NRCS wetland deter- provided in this section. mination. (i) A person shall not be ineli- (2) Eligibility for Federal crop insur- gible for program benefits as a result of ance premium subsidies will be based taking an action in reliance on a pre- on final determinations, including all

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administrative appeals, made by NRCS (vii) Whether the conversion of a wet- and FSA. Neither RMA, FCIC, ap- land was caused by a third party under proved insurance providers, or any em- § 12.5(b)(1)(vii)(D); ployee, agent, or contractors thereof, (viii) Whether certain violations were will make any determination regarding made in good faith under §§ 12.5(a)(5) or compliance with the highly erodible 12.5(b)(5); land or wetland provisions of this part, (ix) The determination of the amount unless specifically provided for in of reduction in benefits based on the § 12.13. seriousness of the violation, based on (b) Administration by FSA. (1) The pro- technical information provided by visions of this part which are applica- NRCS; ble to FSA will be administered under (x) The determination of whether the the general supervision of the Adminis- application of the producer’s conserva- trator, FSA, and shall be carried out in tion plan or system would impose an the field in part by State FSA commit- undue economic hardship on the pro- tees and county FSA committees ducer; and (COC). (xi) Whether the proceeds of a farm (2) The FSA Deputy Administrator loan made, insured, or guaranteed by for Farm Programs may determine any FSA will be used for a purpose that question arising under the provisions will contribute to excessive erosion of of this part which are applicable to highly erodible land or to the conver- FSA and may reverse or modify any de- sion of wetland. termination of eligibility with respect (4) A representative number of farms to programs administered by FSA selected in accordance with instruc- made by a State FSA committee or tions issued by the Deputy Adminis- COC or any other FSA office or FSA of- trator shall be inspected by an author- ficial (except the Administrator) in ized representative of FSA to deter- connection with the provisions of this mine compliance with any requirement part. specified in this part as a prerequisite (3) FSA shall make the following de- for obtaining program benefits. terminations which are required to be (5) FSA may consult with U.S. Fish made in accordance with this part: and Wildlife Service on third-party de- (i) Whether a person produced an ag- terminations. ricultural commodity on a particular (c) Administration by NRCS. (1) The field as determined under § 12.5(a)(1); provisions of this part that are applica- (ii) The establishment of field bound- ble to NRCS shall be administered aries; under the general supervision of the (iii) Whether land was planted to an Associate Chief for Conservation, and agricultural commodity in any of the shall be carried out in the field by the years, 1981 through 1985, for the pur- regional conservationist, state con- poses of § 12.5(a)(1); servationist, area conservationist, and (iv) Whether land was set aside, di- district conservationist or other NRCS verted, or otherwise not cultivated representative. under a program administered by the (2) An NRCS representative shall Secretary for any crop to reduce pro- make the following determinations duction of an agricultural commodity which are required to be made in ac- under §§ 12.4(g) and 12.5(a)(1); cordance with this part: (v) Whether for the purposes of § 12.9, (i) Whether land is highly erodible or the production of an agricultural com- has a wetland type or a converted wet- modity on highly erodible land or con- land identified in accordance with the verted wetland by a landlord’s tenant provisions of this part; or sharecropper is required under the (ii) Whether highly erodible land is terms and conditions of the agreement predominant on a particular field between the landlord and such tenant under § 12.22; or sharecropper; (iii) Whether the conservation plan (vi) Whether the conversion of a par- that a person is applying is based on ticular wetland was commenced before the local NRCS field office technical December 23, 1985, for the purposes of guide and is approved by— § 12.5(b)(3); (A) The CD and NRCS, or

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(B) NRCS; tion of the provisions of this part as is (iv) Whether the conservation system determined to be necessary. that a person is using has been ap- (4) A person may obtain a highly proved by the CD under § 12.5(a)(2) or, erodible land or a wetland scope-and- in an area not within a CD, a conserva- effect determination by making a writ- tion system approved by NRCS to be ten request on Form AD–1026. The de- adequate for the production of an agri- termination will be made in writing, cultural commodity on highly erodible and a copy will be provided to the per- land; son. (v) Whether the actions of a person(s) (5) A determination of whether or not with respect to the conversion of a wet- an area meets the highly erodible land land or production of an agricultural criteria or whether wetland criteria, commodity on converted wetland identified in accordance with the cur- would have only a minimal effect on rent Federal wetland delineation meth- the functions and values of wetlands in odology in use at the time of the deter- the area; mination and that are consistent with (vi) Whether an approved conserva- current mapping conventions, may be tion plan is being applied on highly made by the NRCS representative erodible fields in accordance with the based upon existing records or other in- schedule specified therein or whether a formation and without the need for an failure to apply the plan is technical on-site determination. This determina- and minor in nature, due to cir- tion will be made by the NRCS rep- cumstances beyond the control of the resentative as soon as possible fol- person, or whether a temporary vari- lowing a request for such a determina- ance form the requirements of the plan tion. should be granted; (6) An on-site determination as to (vii) Whether an approved conserva- whether an area meets the applicable tion system is being used on a highly criteria shall be made by an NRCS rep- erodible field; resentative if the person has disagreed (viii) Whether the conversion of a wetland is for the purpose or has the with the determination made under effect of making the production of an paragraph (c)(5) of this section, or if agricultural commodity possible; adequate information is not otherwise (ix) Whether a farmed wetland or available to an NRCS representative on farmed-wetland pasture is abandoned; which to make an off-site determina- (x) Whether the planting of an agri- tion. cultural commodity on a wetland is (7) An on-site determination, where possible under natural conditions; applicable, will be made by the NRCS (xi) Whether maintenance of existing representative as soon as possible fol- drainage of a wetland described in lowing a request for such a determina- § 12.33 exceeds the scope and effect of tion, but only when site conditions are the original drainage; favorable for the evaluation of soils, (xii) Whether a plan for the mitiga- hydrology, or vegetation. tion of a converted wetland will be ap- (8) With regard to wetland deter- proved and whether the mitigation of a minations, if an area is continuously converted wetland is accomplished ac- inundated or saturated for long periods cording to the approved mitigation of time during the growing season to plan; such an extent that access by foot to (xiii) Whether all technical informa- make a determination of predominance tion relating to the determination of a of hydric soils or prevalence of violation and severity of a violation hydrophytic vegetation is not feasible, has been provided to FSA for making the area will be determined to be a payment-reduction determinations; wetland. and (9) Persons who are adversely af- (xiv) Whether or not a commenced- fected by a determination made under conversion activity was completed by this section and believe that the re- January 1, 1995. quirements of this part were improp- (3) NRCS may provide such other erly applied may appeal, under § 12.12 of technical assistance for implementa- this part, any determination by NRCS.

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(10) NRCS will operate a program or (g) Approved insurance providers. No work with third parties to establish approved insurance provider or any em- mitigation banks to assist persons in ployee, agent, or contractor of an ap- complying with §§ 12.4(c) and 12.5(b)(4). proved insurance provider will: Persons will be able to access mitiga- (1) Make any determination of eligi- tion banks established or approved bility regarding compliance with the through this program without requir- highly erodible land or wetland provi- ing the Secretary to hold an easement sions of this part; or in a mitigation bank. (2) Be responsible or liable for a per- (d) Administration by NIFA. The NIFA son’s eligibility for Federal crop insur- shall coordinate the related informa- ance premium subsidy under this part, tion and education program for USDA except in cases of fraud, misrepresenta- concerning implementation of this tion, or scheme and device by the ap- rule. proved insurance provider or any em- (e) Assistance of other Federal agencies. ployee, agent, or contractor thereof. If NRCS determines, through agree- [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, ment or otherwise, that the purposes of 1996; 76 FR 4804, Jan. 27, 2011; 80 FR 22880, this part would be furthered by the as- Apr. 24, 2015] sistance of other Federal agencies with wetland responsibilities, NRCS may ac- § 12.7 Certification of compliance. cept such assistance and adopt any or (a) Self-certification. In order for a all such actions by these agencies as an person to be determined to be eligible action by an NRCS representative for any of the benefits specified in under this part. § 12.4: (f) Administration by RMA. The provi- (1) It must be determined by USDA sions of this part that are applicable to whether any field in which the person RMA will be administered under the applying for the benefits has an inter- general supervision of the Adminis- est and intends to produce an agricul- trator, RMA. tural commodity contains highly erod- (1) Eligibility for Federal crop insur- ible land; ance premium subsidies will be based (2) The person applying for or receiv- on the person’s: ing the benefits must certify in writing (i) Accurate and timely filing of a on Form AD–1026 that such person will certification of compliance (Form AD– not produce an agricultural commodity 1026 or successor form) with the con- on highly erodible land, or designate servation compliance provisions; and such land for conservation use; or plant (ii) Compliance with the conserva- an agricultural commodity on a con- tion compliance provisions. verted wetland; or convert a wetland to (2) Ineligibility for Federal crop in- make possible the production of an ag- surance premium subsidies due to vio- ricultural commodity during the crop lations of the conservation compliance year in which the person is seeking provisions will be based on final deter- such benefits, unless such actions are minations, including all administrative exempt, under §§ 12.5 or 12.13 from the appeals, made by NRCS and FSA as provisions of § 12.4 of this part; provided in this part. (3) A person may certify application (3) Neither RMA nor FCIC will make of practices required by the person’s any determination of eligibility re- conservation plan. NRCS shall permit a garding compliance with the highly person who makes such a certification erodible land or wetland provisions in with respect to a conservation plan to this part, unless specifically provided revise the conservation plan in any for in § 12.13. manner, if the same level of conserva- (4) RMA will provide the applicable tion treatment provided for by the con- information regarding determinations servation system under the person’s made by NRCS and FSA to the appro- conservation plan is maintained. NRCS priate approved insurance providers to may not revise the person’s conserva- ensure those determinations affecting tion plan without the concurrence of Federal crop insurance premium sub- the person; sidy eligibility are implemented ac- (4) The person applying for a FSA di- cording to this part. rect or guaranteed farm credit program

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loan must certify that such person (3) Any trust in which the individual, shall not use the proceeds of the loan business enterprise, or any person list- for a purpose that will contribute to ed in paragraph (b)(1) is a beneficiary excessive erosion on highly erodible or has a financial interest, unless such land or to conversion of wetlands for interest is held indirectly through an- the purpose, or to have the effect, of other business enterprise. making the production of an agricul- (c) Affiliated persons of an entity. If tural commodity possible; and the person who has requested benefits (5) The person applying for the bene- from USDA is a corporation, partner- fits must authorize and provide rep- ship, or other joint venture, the affili- resentatives of USDA access to all land ated persons are any participant or in which such person has an interest stockholder therein of the corporation, for the purpose of verifying any such partnership, or other joint venture, ex- certification. cept for persons who have an indirect (b) Availability to other agencies. Each interest through another business en- agency of USDA shall make all certifi- terprise in such corporation, partner- cations of compliance received by such ship, or other joint venture or persons agency and the results of investiga- with a 20 percent or less share in a cor- tions concerning such certifications of poration. compliance available to other agencies. (d) Limitation. Any reduction in pay- (c) Compliance. A certification made ments which results only from the ap- in accordance with this section does plication of the affiliation provisions of not relieve any person from compliance this section to a partnership, joint ven- with provisions of this part. ture, trust, or other enterprise shall be (d) Timely filing. In order for a person limited to the extent of interest held in to be determined eligible for Federal such partnership, joint venture, trust, crop insurance premium subsidies for a or other enterprise by the person or policy or plan of insurance under the business enterprise that committed the Federal Crop Insurance Act (7 U.S.C. violation. However, for violations for 1501–1524), the person must have Form which the business enterprise is consid- AD–1026 or successor form on file with ered directly responsible under the pro- FSA, as specified in § 12.13. visions of this part, the business enter- [61 FR 47025, Sept. 6, 1996, as amended at 80 prise shall be subject to a full loss of FR 22880, Apr. 24, 2015] benefits, including those instances in which the business enterprise has an § 12.8 Affiliated persons. interest in the land where the violation (a) Ineligibility of affiliated persons. In- occurred or where the business enter- eligibility of an individual or entity prise had an interest in the crops pro- under this part for benefits shall also duced on the land. be an ineligibility for benefits for ‘‘af- (e) Avoidance of this part. Limitations filiated persons’’ as defined in this sec- on affiliation shall not apply as needed tion. to correct for any action that would (b) Affiliated persons of an individual. otherwise tend to defeat the purposes If the person requesting benefits is an of this part. individual, the affiliated persons are: (1) The spouse and minor child of § 12.9 Landlords and tenants. such person or guardian of such child; (a) Landlord eligibility. Landlord eligi- except that spouses who establish to bility will include the following: the satisfaction of the COC that oper- (1) Except as provided in paragraph ations of the husband and wife are (a)(2) of this section, the ineligibility maintained separately and independ- of a tenant or sharecropper for: ently shall not be considered affiliates; (i) Program benefits (as specified in (2) Any partnership, joint venture, or § 12.4) except as provided in paragraph other enterprise in which the person or (a)(1)(ii) of this section will not cause a any person listed in paragraphs (b)(1) landlord to be ineligible for USDA pro- has an ownership interest or financial gram benefits accruing with respect to interest; unless such interest is held in- land other than those in which the ten- directly through another business en- ant or sharecropper has an interest; terprise; or and

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(ii) Federal crop insurance premium (1) If all of the requirements in para- subsidies for a policy or plan of insur- graph (b)(2) of this section are met: ance under the Federal Crop Insurance (i) The ineligibility of a tenant or Act (7 U.S.C. 1501–1524) will, in lieu of sharecropper, except as provided in ineligibility for premium subsidy, re- paragraph (b)(1)(ii) of this section, may sult in a reduction in the amount of be limited to the program benefits list- premium subsidy paid by FCIC on all ed in § 12.4(b) accruing with respect to policies and plans of insurance for the only the farm on which the violation landlord. occurred; and (A) The percentage reduction will be (ii) In lieu of ineligibility for Federal determined by comparing the total crop insurance premium subsidies for number of cropland acres on the farm all policies or plans of insurance under on which the violation occurred to the the Federal Crop Insurance Act (7 total number of cropland acres on all U.S.C. 1501–1524), the premium subsidy farms in which landlord has an inter- on all policies and plans of insurance of est, as determined by FSA. the ineligible tenant or sharecropper (B) The farms and cropland acres will be reduced. used to determine the premium subsidy (A) The percentage reduction will be reduction percentage will be the farms determined by comparing the total and cropland acres of the landlord for number of cropland acres on the farm the reinsurance year in which the ten- on which the violation occurred to the ant or sharecropper is determined in- total number of cropland acres on all eligible. farms in which tenant or sharecropper has an interest, as determined by FSA. (C) The percentage reduction will be (B) The farms and cropland acres applied to all policies and plans of in- used to determine the premium subsidy surance of the landlord in the reinsur- reduction percentage will be the farms ance year subsequent to the reinsur- and cropland acres of the tenant or ance year in which the tenant or share- sharecropper for the reinsurance year cropper is determined ineligible. in which the tenant or sharecropper is (D) If the landlord and tenant or determined ineligible. sharecropper are insured under the (C) The percentage reduction will be same policy, the landlord will be ineli- applied to all policies and plans of in- gible for premium subsidy on that pol- surance of the tenant or sharecropper icy in lieu of a percentage reduction on in the reinsurance year subsequent to that policy. the reinsurance year in which the ten- (2) If the production of an agricul- ant or sharecropper is determined in- tural commodity on highly erodible eligible. land or converted wetland by the land- (D) If the landlord and tenant or lord’s tenant or sharecropper is re- sharecropper are insured under the quired under the terms and conditions same policy, the tenant or share- of the agreement between the landlord cropper will be ineligible for premium and such tenant or sharecropper and subsidy on that policy in lieu of a per- such agreement was entered into after centage reduction on that policy. December 23, 1985, or if the landlord (2) The provisions of paragraph (b)(1) has acquiesced in such activities by the of this section will not apply unless all tenant or sharecropper: the following are met: (i) The provisions of paragraph (i) The tenant or sharecropper shows (a)(1)(i) of this section will not be ap- that a good-faith effort was made to plicable to a landlord; and comply by developing an approved con- (ii) A landlord will be ineligible for servation plan for the highly erodible premium subsidy on all policies and land in a timely manner and prior to plans of insurance in the reinsurance any violation of the provisions of this year subsequent to the reinsurance part; year in which the tenant or share- (ii) The owner of such farm refuses to cropper is determined ineligible. apply such a plan and prevents the ten- (b) Tenant or sharecropper eligibility. ant or sharecropper from implementing Tenant or sharecropper eligibility will certain practices that are a part of the include the following: approved conservation plan; and

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(iii) FSA determines that the lack of any determination made in accordance compliance is not a part of a scheme or with the provisions of this part may device as described in § 12.10. obtain a review of such determination (3) If relief is granted under para- in accordance with the administrative graph (b)(1) of this section, the tenant appeals procedures of the agency which or sharecropper must actively apply rendered such determination. Agency those conservation treatment measures appeal procedures are contained in the that are determined to be within the Code of Federal Regulations as follows: control of the tenant or sharecropper. FSA, part 780 of this title; NRCS, part [61 FR 47025, Sept. 6, 1996, as amended at 80 614 of this title; Rural Utilities Service, FR 22881, Apr. 24, 2015] part 1900, subpart B of this title.

§ 12.10 Scheme or device. § 12.13 Special Federal crop insurance All or any part of the benefits listed premium subsidy provisions. in § 12.4 otherwise due a person from (a) General. The provisions and ex- USDA may be withheld or required to emptions in this section are only appli- be refunded if the person adopts or par- cable to Federal crop insurance pre- ticipates in adopting any scheme or de- mium subsidies for a policy or plan of vice designed to evade, or which has insurance under the Federal Crop In- the effect of evading, the provisions of surance Act (7 U.S.C. 1501–1524). The ex- this part. Such acts shall include, but emptions in this section are in addition are not limited to, concealing from to any that apply under § 12.5. Any con- USDA any information having a bear- flict between this section and another ing on the application of the provisions will be resolved by applying this sec- of this part or submitting false infor- tion, but only for Federal crop insur- mation to USDA or creating entities ance premium subsidies. Any exemp- for the purpose of concealing the inter- tions or relief under this section apply est of a person in a farming operation to Federal crop insurance premium or to otherwise avoid compliance with subsidies and do not apply to other the provisions of this part. Such acts benefits even for the same person for shall also include acquiescence in, ap- the same crop year or reinsurance proval of, or assistance to acts which year. Unless otherwise specified in this have the effect of, or the purpose of, section, the provisions in this section circumventing these regulations. apply to both highly erodible land and § 12.11 Action based upon advice or ac- wetlands. tion of USDA. (b) Ineligibility for failing to certify The provisions of part 718 of this compliance. Subject to paragraph (b)(2) Title, as amended, relating to perform- of this section, failing to certify com- ance based upon the action or advice of pliance as specified in § 12.7 will result a County Committee (COC) or State in ineligibility as follows: FSA Committee shall be applicable to (1) A Form AD–1026, or successor the provisions of this part. In addition, form, for the person must be filed with if it is determined by the appropriate FSA for the reinsurance year in order USDA agency that the action of a per- for the person to be eligible for any son which would form the basis of any Federal crop insurance premium sub- ineligibility under this part was taken sidies for the reinsurance year. Persons by such person in good-faith reliance will be ineligible for Federal crop in- on erroneous advice, information, or surance premium subsidy on their crop action of any other authorized rep- insurance policy if form AD–1026, or resentative of USDA, the appropriate successor form, has not been filed with agency may make such benefits avail- FSA for the reinsurance year by the able to the extent that similar relief premium billing date for their Feder- would be allowed under 7 CFR part 718. ally-reinsured crop insurance policy. (2) A person that has not filed an AD– § 12.12 Appeals. 1026 for the reinsurance year by the Any person who has been or who premium billing date may be eligible would be denied program benefits in for premium subsidy for the reinsur- accordance with § 12.4 as the result of ance year if they provide information

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necessary for the person’s filing of a sidy effective July 1, 2015, the start of Form AD–1026 if the person: the 2016 reinsurance year, and will not (i) Is unable to file a Form AD–1026 be eligible for any Federal crop insur- due to circumstances beyond the per- ance premium subsidy for any policy or son’s control, as determined by FSA; or plan of insurance during the 2016 rein- (ii) Files a Form AD–1026 in good surance year. Even if the person be- faith and FSA subsequently determines comes compliant during the 2016 rein- that additional information is needed, surance year, the person will not be eli- but the person is unable to comply due gible for Federal crop insurance pre- to circumstances beyond the control of mium subsidy until the 2017 reinsur- the person. ance year starting on July 1, 2016. (3) A person who does not have Form (2) Eligibility for Federal crop insur- AD–1026, or successor form, on file with ance premium subsidy for a policy or FSA for the reinsurance year may be plan of insurance under the Federal eligible for Federal crop insurance pre- Crop Insurance Act (7 U.S.C. 1501–1524) mium subsidy for the initial reinsur- due to a violation of the provisions of ance year if the person can dem- this part will be based on FSA and onstrate they meet RMA’s conditions NRCS final determinations, including for new to farming, new to crop insur- all administrative appeals, regarding ance, a new entity, or have not pre- compliance with the provisions of this viously been required to file form AD– part. 1026. (3) The amount of premium subsidy (c) Ineligibility for violations. If a per- for an insured person will be reduced son is ineligible due to a violation of when any person with a substantial the provisions of this part, the timing beneficial interest in the insured per- and results will be as follows: son is ineligible for premium subsidy (1) Unless an exemption in this sec- under this part. The amount of reduc- tion or § 12.5 applies, ineligibility for tion will be commensurate with the in- Federal crop insurance premium sub- eligible person’s substantial beneficial sidy for a policy or plan of insurance interest in the insured person. The in- under the Federal Crop Insurance Act eligible person’s substantial beneficial (7 U.S.C. 1501–1524) due to a violation of interest in the insured person will be the provisions of this part will: determined according to the policy (i) Not apply to the reinsurance year provisions of the insured person. in which the violation occurred or any (4) Administrative appeals include reinsurance year prior to the date of appeals made in accordance with § 12.12 the final determination of a violation, and part 11 of this title, but do not in- including all administrative appeals of clude any judicial review or appeal, or the determination, as determined by any other legal action. NRCS or FSA as applicable; and (d) Exemption to develop and comply (ii) Only apply to reinsurance years with an approved HEL conservation plan. subsequent to the date of a final deter- The following exemptions provide a mination of a violation, including all delay in the requirement to develop administrative appeals of the deter- and comply with an NRCS approved mination, as determined by NRCS or HEL conservation plan for certain per- FSA as applicable. A person who is in sons. violation of the provisions of this part, (1) Persons subject to the provisions as determined by FSA or NRCS, in a of this part regarding highly erodible reinsurance year, will, unless otherwise land, specifically those related to sec- exempted, be ineligible for any Federal tion 1211(a) of the Food Security Act of crop insurance premium subsidy begin- 1985, as amended, for the first time ning with the subsequent reinsurance solely due to amendments to that sec- year. For example, a person who is de- tion by section 2611(a) of the Agricul- termined to be in violation of the pro- tural Act of 2014 (16 U.S.C. 3811(a)(1)), visions of this part and has exhausted will have 5 reinsurance years after the all administrative appeals on June 1, date the person is determined to have 2015, (2015 reinsurance year) will, unless HEL and has exhausted all administra- otherwise exempted, be ineligible for tive appeals, if applicable, to develop Federal crop insurance premium sub- and comply with a conservation plan

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approved by NRCS before being ineli- ued to participate in those programs gible for Federal crop insurance pre- after February 7, 2014; and mium subsidies. The additional time to (iv) Are currently in violation of the develop and comply with a conserva- provisions of this part regarding highly tion plan approved by NRCS applies erodible land. only to persons who have not pre- (e) Exemption for prior wetland conver- viously been subject to the highly erod- sions completed prior to February 7, 2014. ible land conservation provisions of No person will be ineligible for Federal this part. The additional time provided crop insurance premium subsidies for a in this paragraph does not apply to any policy or plan of insurance under the person who had any interest in any Federal Crop Insurance Act (7 U.S.C. land or crop, including an affiliated 1501–1524) for: person, that was subject to the provi- (1) Converting a wetland if the wet- sions of this part before February 7, land conversion was completed, as de- 2014. The 5 reinsurance years to develop termined by NRCS, before February 7, and comply with a conservation plan 2014; or approved by NRCS starts: (2) Planting or producing an agricul- (i) For persons who have no land with tural commodity on a converted wet- an NRCS HEL determination, the 5 re- land if the wetland conversion was insurance years begins the start of the completed, as determined by NRCS, be- reinsurance year (July 1) following the fore February 7, 2014. date NRCS makes a HEL determina- (f) Exemption for wetland conversion tion and the person exhausts all their that impacts less than 5 acres. The fol- administrative appeals; or lowing exemption is for wetland con- (ii) For persons who have any land version that impacts less than 5 acres for which an NRCS HEL determination of an entire farm: has been made and all administrative (1) In lieu of ineligibility for Federal crop insurance premium subsidies for a appeals have been exhausted, the 5 re- policy or plan of insurance under the insurance years begins the start of the Federal Crop Insurance Act (7 U.S.C. reinsurance year (July 1) following the 1501–1524) due to a wetland conversion date the person certifies compliance violation or concurrent with a planned with FSA to be eligible for USDA bene- wetland conversion occurring after fits subject to the conservation compli- February 7, 2014, a person may, if ap- ance provisions. proved by NRCS, pay a contribution to (2) Persons who meet all the fol- NRCS in an amount equal to 150 per- lowing criteria will have 2 reinsurance cent of the cost of mitigating the con- years from the start of the reinsurance verted wetland, as determined by year (July 1) following the date the NRCS. person certifies compliance with FSA (2) A person is limited to only one ex- to be eligible for USDA benefits subject emption, as determined by NRCS, de- to the conservation compliance provi- scribed in paragraph (f)(1) of this sec- sions to develop and comply with a tion per farm. conservation plan approved by NRCS (3) NRCS will not refund this pay- before being ineligible for Federal crop ment even if the person later conducts insurance premium subsidies: actions which will mitigate the earlier (i) Were subject to the provisions of conversion. this part regarding highly erodible (g) Exemption for wetland conversion land, specifically those related to sec- when a policy or plan of insurance is tion 1211(a) of the Food Security Act of available to a person for the first time. 1985 (16 U.S.C. 3811(a)(1)), as amended, The following exemption is for wetland any time before February 7, 2014; conversion when a policy or plan of in- (ii) Before February 7, 2014, stopped surance is available to the person for participating in all USDA programs the first time. subject to the provisions of this part (1) When a policy or plan of insurance regarding highly erodible land; that provides coverage for an agricul- (iii) Would have been in violation of tural commodity is available to the the provisions of this part regarding person, including as a person who is a highly erodible land had they contin- substantial beneficial interest holder,

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for the first time after February 7, 2014, ance year after the final determination as determined by RMA, ineligibility for of violation, including all administra- Federal crop insurance premium sub- tive appeals, as determined by NRCS, sidies for such policy or plan of insur- to initiate a mitigation plan to remedy ance due to a wetland conversion viola- the violation, as determined by NRCS, tion will only apply to wetland conver- before becoming ineligible for Federal sions that are completed, as deter- crop insurance premium subsidies for a mined by NRCS, after the date the pol- policy or plan of insurance under the icy or plan of insurance first becomes Federal Crop Insurance Act (7 U.S.C. available to the person. 1501–1524.). For example, if in May 2017, (2) The exemption described in para- after NRCS has determined that a per- graph (g)(1) of this section: son is in violation for converting a wet- (i) Applies only to the policy or plan land and the person has exhausted all of insurance that becomes available to administrative appeals, the person will the person for the first time after Feb- have until June 30, 2018, to initiate a ruary 7, 2014, as determined by RMA; mitigation plan to remedy the viola- (ii) Does not exempt or otherwise ne- tion before becoming ineligible for Fed- gate the person’s ineligibility for Fed- eral crop insurance premium subsidies eral crop insurance premium subsidies starting with the 2019 reinsurance year. on any other policy or plan of insur- (2) Notwithstanding paragraph (h)(1) ance; and of this section, if a person determined (iii) Applies only if the person takes to be in violation of the provisions of steps necessary, as determined by this part due to a wetland conversion NRCS, to mitigate all wetlands con- occurring after February 7, 2014, as de- verted after February 7, 2014, in a time- termined by NRCS, and is subject to ly manner, as determined by NRCS, the provisions of this part for the first but not to exceed 2 reinsurance years. time solely due to section 2611(b) of the (3) For the purposes of the paragraph Agricultural Act of 2014, such person (g)(1) of this section: will have 2 reinsurance years after the (i) A policy or plan of insurance is final determination of violation, in- considered to have been available to cluding all administrative appeals, as the person after February 7, 2014, if, determined by NRCS, to be imple- after February 7, 2014, in any county in menting all practices in a mitigation which the person had any interest in plan to remedy the violation, as deter- any acreage, including as a person who mined by NRCS, before becoming ineli- is a substantial beneficial interest gible for Federal crop insurance pre- holder: mium subsidies for a policy or plan of (A) There was a policy or plan of in- insurance under the Federal Crop In- surance available on the county actu- arial documents that provided coverage surance Act (7 U.S.C. 1501–1524). for the agricultural commodity; or (3) Administrative appeals include (B) The person obtained a written appeals made in accordance with § 12.12 agreement to insure the agricultural and part 11 of this title, but do not in- commodity in any county; and clude any judicial review or appeal, or (ii) Changing, adding, or removing any other legal action. options, endorsements, or coverage to (i) Good faith exemption. The fol- an existing policy or plan of insurance lowing is a good faith exemption for will not be considered as a policy or wetland conservation: plan of insurance being available for (1) A person determined by FSA or the first time to a person. NRCS to be in violation, including all (h) Wetland conversion mitigation ex- administrative appeals, of the provi- emption. Unless another exemption ap- sions of this part due to converting a plies, the following exemption provides wetland after February 7, 2014, or pro- additional time to mitigate wetland ducing an agricultural commodity on a conversions. wetland that was converted after Feb- (1) A person determined to be in vio- ruary 7, 2014, may regain eligibility for lation of the provisions of this part due Federal crop insurance premium sub- to a wetland conversion occurring after sidies for a policy or plan of insurance February 7, 2014, will have 1 reinsur- under the Federal Crop Insurance Act

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(7 U.S.C. 1501–1524) if all of the fol- by FCIC on all policies and plans of in- lowing criteria are met: surance for the landlord. (i) FSA determines that such person (i) The percentage reduction will be acted in good faith and without the in- determined by comparing the total tent to violate the wetland conserva- number of cropland acres on the farm tion provisions of this part; on which the violation occurred to the (ii) NRCS determines that the person total number of cropland acres on all is implementing all practices in a miti- farms in which landlord has an inter- gation plan to remedy or mitigate the est, as determined by FSA. violation within an agreed-to period, (ii) The farms and cropland acres not to exceed 2 reinsurance years; and used to determine the premium subsidy (iii) The good faith determination of reduction percentage will be the farms the FSA county or State committee and cropland acres of the landlord for has been reviewed and approved by the the reinsurance year in which the ten- applicable State Executive Director, ant or sharecropper is determined in- with the technical concurrence of the eligible. State Conservationist; or District Di- (iii) The percentage reduction will be rector, with the technical concurrence applied to all policies and plans of in- of the area conservationist. surance of the landlord in the reinsur- (2) In determining whether a person ance year subsequent to the reinsur- acted in good faith under paragraph ance year in which the tenant or share- (i)(1)(i) of this section, FSA will con- cropper is determined ineligible. sider such factors as whether: (iv) If the landlord and tenant or (i) The characteristics of the site sharecropper are insured under the were such that the person should have same policy, the landlord will be ineli- been aware that a wetland existed on gible for premium subsidy on that pol- the subject land; icy in lieu of a percentage reduction on (ii) NRCS had informed the person that policy. about the existence of a wetland on the (2) A landlord will be ineligible for subject land; the premium subsidy on all policies (iii) The person has a record of vio- and plans of insurance in the reinsur- lating the wetland provisions of this ance year subsequent to the reinsur- part or other Federal, State, or local ance year in which the tenant or share- wetland provisions; or cropper is determined ineligible if the (iv) There exists other information production of an agricultural com- that demonstrates the person acted modity on a converted wetland by the with the intent to violate the wetland landlord’s tenant or sharecropper is re- conservation provisions of this part. quired under the terms and conditions (3) After the requirements of para- of the agreement between the landlord graph (i)(1) of this section are met, and such tenant or sharecropper and FSA may waive applying the ineligi- such agreement was entered into after bility provisions of this section to February 7, 2014, or if the landlord has allow the person to implement the acquiesced in such activities by the mitigation plan approved by NRCS. tenant or sharecropper. The waiver will apply for up to two re- (3) If all the requirements in para- insurance years. graph (j)(4) of this section are met, in (j) Landlord and Tenant wetland viola- lieu of ineligibility for Federal crop in- tions relief. The following provides land- surance premium subsidies for all poli- lord and tenant relief for wetland vio- cies or plans of insurance under the lations: Federal Crop Insurance Act (7 U.S.C. (1) Except as provided in (j)(2) of this 1501–1524) for producing or planting an section, the ineligibility of a tenant or agricultural commodity on a wetland sharecropper for Federal crop insur- converted after February 7, 2014, the ance premium subsidies for a policy or premium subsidy on all policies and plan of insurance under the Federal plans of insurance of the ineligible ten- Crop Insurance Act (7 U.S.C. 1501–1524) ant or sharecropper will be reduced. will, in lieu of ineligibility for pre- (i) The percentage reduction will be mium subsidy, result in a reduction in determined by comparing the total the amount of premium subsidy paid number of cropland acres on the farm

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on which the violation occurred to the (2) A person will not be ineligible for total number of cropland acres on all Federal crop insurance premium sub- farms in which tenant or sharecropper sidies for a policy or plan of insurance has an interest, as determined by FSA. under the Federal Crop Insurance Act (ii) The farms and cropland acres (7 U.S.C. 1501–1524) if: used to determine the premium subsidy (i) NRCS fails to complete a required reduction percentage will be the farms evaluation of the person’s Form AD– and cropland acres of the tenant or 1026, or successor form in a timely sharecropper for the reinsurance year manner after all documentation has in which the tenant or sharecropper is been provided to NRCS; and determined ineligible. (ii) The person is subsequently deter- (iii) The percentage reduction will be mined to have been in violation of the applied to all policies and plans of in- provisions of this part during the time surance of the tenant or sharecropper NRCS was completing the evaluation. in the reinsurance year subsequent to (3) The relief from ineligibility pro- the reinsurance year in which the ten- vided in paragraph (k)(2) of this sec- ant or sharecropper is determined in- tion: eligible. (i) Applies only to violations that oc- (iv) If the landlord and tenant or curred prior to or during the time sharecropper are insured under the NRCS is completing the required eval- same policy, the tenant or share- uation; cropper will be ineligible for premium (ii) Does not apply to any violations subsidy on that policy in lieu of a per- that occur subsequent to NRCS com- centage reduction on that policy. pleting the evaluation; (4) The provisions of paragraph (j)(3) (iii) Does not apply if FSA or NRCS of this section will not apply unless all determines the person employed, the following are met: adopted, or participated in employing (i) The tenant or sharecropper shows or adopting a scheme or device, as pro- that a good-faith effort was made to vided in § 12.10, to evade the provisions comply by developing a plan, approved of this part or to become eligible for by NRCS, for the restoration or mitiga- the relief provided in paragraph (k)(2) tion of the converted wetland in a of this section; and timely manner and prior to any viola- (iv) Does not apply if the required tion; evaluation is delayed due to unfavor- (ii) The owner of such farm refuses to able site conditions for the evaluation apply such a plan and prevents the ten- of soils, hydrology, or vegetation. ant or sharecropper from implementing (l) Failing to notify FSA of a change. the approved plan; Requirements to pay equitable con- (iii) FSA determines the lack of com- tribution for failing to notify FSA of a pliance is not a part of a scheme or de- change are as follows. vice as described in § 12.10; and (1) A person who fails to notify FSA (iv) The tenant or sharecropper ac- of any change that could alter their tively applies the practices and meas- status as compliant with the provisions ures of the approved plan that are of this part and is subsequently deter- within their control. mined, by FSA or NRCS, to have com- (k) Evaluation of certification. NRCS mitted a violation of the wetland con- will evaluate the certification in a servation provisions of this part after timely manner. February 7, 2014, will be required to (1) A person who properly completes, pay to NRCS an equitable contribu- signs, and files Form AD–1026, or suc- tion. cessor form, with FSA certifying com- (2) The amount of equitable contribu- pliance with the provisions of this part tion will be determined by NRCS, but will be eligible for Federal crop insur- will not exceed the total amount of ance premium subsidies for a policy or Federal crop insurance premium sub- plan of insurance under the Federal sidy paid by FCIC on behalf of the per- Crop Insurance Act (7 U.S.C. 1501–1524) son for all policies and plans of insur- during the period of time such certifi- ance for all years in which the person cation is being evaluated by NRCS, if is determined to have been in viola- an evaluation is required. tion.

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(3) A person who fails to pay the full (i) Rainfall and runoff (R); equitable contribution amount by the (ii) The degree to which the soil re- due date determined by NRCS will be sists water erosion (K); and ineligible for Federal crop insurance (iii) The function (LS), which in- premium subsidy on any policy or plan cludes the effects of slope length (L) of insurance beginning with the subse- and steepness (S). quent reinsurance year. The person (2) The potential average annual rate will be ineligible for Federal crop in- of wind erosion is estimated by multi- surance premium subsidy for the entire reinsurance year even if full payment plying the following factors of the of the equitable contribution amount is Wind Erosion Equation (WEQ): Cli- received by NRCS during the reinsur- matic characterization of windspeed ance year. and surface soil moisture (C) and the degree to which soil resists wind ero- [80 FR 22881, Apr. 24, 2015, as amended at 82 sion (I). FR 58334, Dec. 12, 2017] (3) The USLE is explained in the U.S. Subpart B—Highly Erodible Land Department of Agriculture Handbook 537, ‘‘Predicting Rainfall Erosion Conservation Losses.’’ The WEQ is explained in the § 12.20 NRCS responsibilities regard- paper by Woodruff, N.P., and F. H. ing highly erodible land. Siddaway, 1965, ‘‘A Wind Erosion Equa- In implementing the provisions of tion,’’ Soil Science Society of America this part, NRCS shall, to the extent Proceedings, Vol. 29. No. 5, pages 602– practicable: 608. Values for all the factors used in (a) Develop and maintain criteria for these equations are contained in the identifying highly erodible lands; NRCS field office technical guide and (b) Prepare and make available to the the references which are a part of the public lists of highly erodible soil map guide. The Universal Soil Loss Equa- units; tion, the Revised Universal Soil Loss (c) Make soil surveys for purposes of Equation, and the Wind Erosion Equa- identifying highly erodible land; and tion and the rules under which NRCS (d) Provide technical guidance to uses the equations are published at conservation districts which approve §§ 610.11 through 610.15 of this title. conservation plans and systems, in (b) Highly erodible. A soil map unit consultation with local county FSA shall be determined to be highly erod- committees, for the purposes of this ible if either the RKLS/T or the CI/T part. value for the map unit equals or ex- § 12.21 Identification of highly erod- ceeds 8. ible lands criteria. (c) Potentially highly erodible. When- (a) Basis for identification as highly ever a soil map unit description con- erodible. Soil map units and an tains a range of a slope length and erodibility index will be used as the steepness characteristics that produce basis for identifying highly erodible a range of LS values that result in land. The erodibility index for a soil is RKLS/T quotients both above and determined by dividing the potential below 8, the soil map unit will be en- average annual rate of erosion for each tered on the list of highly erodible soil soil by its predetermined soil loss tol- map units as ‘‘potentially highly erod- erance (T) value. The T value rep- ible.’’ The final determination of resents the maximum annual rate of erodibility for an individual field con- soil erosion that could occur without taining these soil map unit delinea- causing a decline in long-term produc- tions will be made by an on-site inves- tivity. The equation for measuring ero- tigation, or by use of Light Detection sion is described below. and Ranging or other elevation data of (1) The potential average annual rate of sheet and rill erosion is estimated by an adequate resolution to make slope multiplying the following factors of length and steepness measurements. In the Universal Soil Loss Equation any case where a person disagrees with (USLE):

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an off-site determination on poten- at the time the plan is developed or re- tially highly erodible soils, a deter- vised. For highly erodible croplands mination will be made on-site. which were used to produce agricul- [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, tural commodities prior to December 1996; 83 FR 63051, Dec. 7, 2018] 23, 1985, the applicable conservation systems in the field office technical § 12.22 Highly erodible field deter- guide are designed to achieve substan- mination criteria. tial reductions in soil erosion. Con- (a) Predominance. Highly erodible servation systems shall be technically land shall be considered to be predomi- and economically feasible; based on nant on a field if either: local resource conditions and available (1) 33.33 percent or more of the total conservation technology; cost-effec- field acreage is identified as soil map tive; and shall not cause undue eco- units which are highly erodible; or nomic hardship on the person applying (2) 50 or more acres in such field are the conservation system. Any con- identified as soil map units which are servation plans or systems that were highly erodible. approved prior to July 3, 1996, are (b) Modification of field boundaries. A deemed to be in compliance with this person may request the modification of paragraph. field boundaries for the purpose of ex- (b) Substantial reduction in soil erosion. cluding highly erodible land from a For the purpose of determining wheth- field. Such a request must be sub- er there is a substantial reduction in mitted to, and is subject to the ap- soil erosion on a field containing high- proval of, FSA. FSA shall use the tech- ly erodible cropland which was used to nical determination of NRCS in ap- produce an agricultural commodity proving this request. prior to December 23, 1985, the meas- (c) Impact of changing field boundaries. urement of erosion reduction achieved When field boundaries are changed to by applying a conservation plan or sys- include areas of land that were in- tem shall be based on a comparison of cluded in a field that was previously the estimated annual level of erosion determined to be predominately highly that is expected to occur on that por- erodible according to paragraph (a) of tion of the field for which a conserva- this section, such areas shall continue tion plan or system was developed and to be subject to the requirements for is being applied, to the estimated an- predominately highly erodible fields, nual level of erosion that existed on except as provided in paragraph (b) of that same portion of the field before this section. the application of a conservation plan (d) Small area of noncropland. Small or system. On a field that is converted areas of noncropland within or adja- from native vegetation after July 3, cent to the boundaries of existing high- 1996, and where any crop production ly erodible crop fields such as aban- will result in increased erosion, in no doned farmsteads, areas around filled case will the required conservation or capped wells, rock piles, trees, or plan or system permit a substantial in- brush which are converted to cropland crease in erosion. are considered to meet the requirement (c) Field trials. NRCS may allow a of § 12.5(a)(2) if they are included in an person to include in the person’s con- approved conservation plan for the en- servation plan or a conservation sys- tire highly erodible field. tem under the plan, on a field-trial [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, basis, practices that are not currently 1996] approved but that NRCS considers have a reasonable likelihood of success. § 12.23 Conservation plans and con- These trials must have prior approval servation systems. by NRCS, and must be documented in (a) Use of field office technical guide. A the person’s conservation plan speci- conservation plan or conservation sys- fying the limited time period during tem developed for the purposes of which the field trial is in effect. If, at § 12.5(a) must be based on, and to the the end of the conservation field trial extent practicable conform with, the period, NRCS finds that the practice NRCS field office technical guide in use does not meet conservation compliance

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requirements, the person will not be in- priate, the conservation plan or system eligible for USDA program benefits in question. during the period of the field trial. (h) Application of a conservation plan (d) Highly erodible land previously or system. A person is considered to be under a Conservation Reserve Program applying a conservation plan for pur- contract. Any person who owns or oper- poses of § 12.5(a) if the conservation ates highly erodible land that was system or plan being applied achieves under a Conservation Reserve Program or exceeds the substantial reduction in contract as authorized by section 1231 soil erosion as described in paragraph of the Food Security Act of 1985, as (b) which the conservation system or amended, shall have 2 years after the plan was designed to achieve. It is the expiration of termination of the con- responsibility of the person to: tract to fully apply a conservation sys- (1) Certify that the conservation plan tem if the conservation plan for such or system is being applied; and land requires the installation of struc- (2) Arrange for a revision of the con- tural measures for the production of an servation plan with NRCS, if changes agricultural commodity. NRCS offi- are made in land use, crop rotation or cials may extend this period one addi- tional year for circumstances beyond management, conservation practices, the control of the person. The person or in the original schedule of practice shall not be required to meet a higher installation that would affect the conservation standard than the stand- achievement of substantial reduction ard applied to other highly erodible in soil erosion in a given crop year. cropland located within the area served (i) Appeal to FSA. Persons who are ad- by the field office technical guide for versely affected by the determinations the area in which the field is located. made under this subpart and believe (e) Information regarding conservation that the requirements of this subpart options. NRCS, in providing assistance were improperly applied may appeal to a person for the preparation or revi- the decision to FSA under § 12.12. sion of a conservation plan under this (j) Undue economic hardship. After a part, will provide such person with in- technical determination has been formation concerning cost-effective made, the FSA county committee and applicable erosion control alter- shall, if a person asserts that the appli- natives, crop flexibility, or other con- cation of the person’s conservation sys- servation assistance options that may tem would impose an undue economic be available. hardship on the person, make a rec- (f) Timely request for assistance. Per- ommendation to the State FSA Com- sons who require NRCS assistance for mittee as to whether or not the appli- the development of a conservation plan cation of the conservation system or the installation of a conservation would impose an undue economic hard- system are encouraged to request this ship. The State FSA Committee may assistance well in advance of deadline provide the person with a variance on dates for compliance; otherwise the the basis of the hardship. Under this person may not be able to comply with variance, and any conditions that may these provisions and maintain eligi- be required in the variance, the person bility for USDA program benefits. will be considered to be in compliance (g) Action by conservation districts. with the applicable provisions of this Conservation districts approve or dis- part. The State FSA Committee will approve conservation plans or con- consider relevant factors, such as the servation systems after NRCS deter- cost of installation of required con- mines that the plans or systems con- servation practices and benefits earned form to the NRCS field office technical through programs subject to compli- guide. If a conservation district fails, ance with this part, and the person’s without due cause, to act on a request for conservation plan or conservation general economic situation. system approval within 45 days, or if no conservation district exists, NRCS will approve or disapprove, as appro-

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Subpart C—Wetland Conservation part or to enhance the quality of im- plementation of this part. § 12.30 NRCS responsibilities regard- (c) Certification of wetland determina- ing wetlands. tions and wetland delineations. (1) Cer- (a) Technical and coordination respon- tification of a wetland determination sibilities. In carrying out the provisions means that the wetland determination of this part, NRCS shall: is of sufficient quality to make a deter- (1) Oversee the development and ap- mination of ineligibility for program plication of criteria to identify hydric benefits under § 12.4. In order for a map soils in consultation with the National to be of sufficient quality to determine Technical Committee for Hydric Soils ineligibility for program benefits, the and make available to the public an ap- map document must be legible to the proved county list of hydric soil map extent that areas that are determined units, which is based upon the National wetland can be discerned in relation to List of Hydric Soils; other ground features. NRCS may cer- (2) Coordinate with the U.S. Fish and tify a wetland determination without Wildlife Service and others in updating making a field investigation. NRCS the National List of Plant Species that will notify the person affected by the Occur in Wetlands; certification and provide an oppor- (3) Make or approve wetland deter- tunity to appeal the certification prior minations, delineations and certifi- to the certification becoming final. All cations, functional assessments, miti- wetland determinations made after gation plans, categorical minimal ef- July 3, 1996, will be considered certified fects, and other technical determina- wetland determinations. Determina- tions relative to the implementation of tions made after November 28, 1990, and the wetland conservation provisions of before July 3, 1996, are considered cer- this part. Wetland determinations, de- tified if the determination was issued lineations and certifications will be on the June 1991 version of form NRCS– done on a tract, field, or sub-field basis; CPA–026 or SCS–CPA–026, the person (4) Develop and utilize off-site and was notified that the determination on-site wetland identification proce- had been certified, and the map docu- dures; ment was of sufficient quality to deter- (5) Assure quality of service and de- mine ineligibility for program benefits. terminations through procedures devel- If issued on a different version of the oped by NRCS in consultation with form, a determination will be consid- other Federal agencies that have wet- ered certified if there is other docu- land responsibilities; mentation that the person was notified (6) Investigate complaints and make of the certification, provided appeal technical determinations regarding po- rights, and the map document was of tential violations; sufficient quality to make the deter- (7) Develop a process at the state mination. level, in coordination with the U.S. (2) The wetland determination and Fish and Wildlife Service, to ensure wetland delineation shall be certified that these provisions are carried out in as final by the NRCS official 30 days a technically defensible and timely after providing the person notice of manner, seek assistance as appro- certification or, if an appeal is filed priate, and annually review the with USDA, after the administrative progress being made on implementa- appeal procedures are exhausted. tion; and (3) In the case of an appeal, NRCS (b) Technical assistance from others In will review and certify the accuracy of carrying out the provisions of this the determination of all lands subject part, NRCS may request technical as- to the appeal to ensure that the subject sistance from the U.S. Fish and Wild- lands have been accurately delineated. life Service, State or local agencies, Prior to a decision being rendered on conservation districts, or qualified pri- the appeal, NRCS will conduct an on- vate entities when NRCS determines site investigation of the subject land. that additional staff resources or tech- (4) Before any benefits are withheld, nical expertise are needed to address an on-site investigation of a potential adequately the requirements of this wetland violation will be made by

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NRCS. NRCS will make a reasonable Step 2 is delineated on the certified effort to include the affected person in wetland determination map. the on-site investigation. The affected [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, person will be provided an opportunity 1996; 76 FR 22785, Apr. 25, 2011; 83 FR 63051, to appeal the on-site determination to Dec. 7, 2018; 85 FR 53152, Aug. 28, 2020] USDA if the on-site determination dif- fers from the original determination. § 12.31 Wetland identification proce- Such action by NRCS shall be consid- dures. ered a review of the prior determina- (a) Hydric soils. (1) NRCS shall iden- tion and certification of the delinea- tify hydric soils through the use of tion. If the prior determination was a published soil maps which reflect soil certified wetland determination, an ap- surveys completed by NRCS or through peal of the NRCS on-site determination the use of on-site reviews. If a pub- shall be limited to the determination lished soil map is unavailable for a that the wetland was converted in vio- given area, NRCS may use unpublished lation of this part. soil maps which were made according (5) A copy of the information from to the specifications of the National the final certified wetland determina- Cooperative Soil Survey or may con- tion and the wetland delineation shall duct an on-site evaluation of the land. be recorded on official USDA aerial (2) NRCS shall determine whether an photography, digital imagery, or other area of a field or other parcel of land graphic representation of the area. has a predominance of hydric soils that (6) As long as the affected person is are inundated or saturated as follows: in compliance with the wetland con- (i) If a soil map unit has hydric soil servation provision of this part, and as as all or part of its name, that soil map long as the area is devoted to the use unit or portion of the map unit related and management of the land for pro- to the hydric soil shall be determined duction of food, fiber, or horticultural to have a predominance of hydric soils; crops, a certification made under this (ii) If a soil map unit is named for a section will remain valid and in effect miscellaneous area that meets the cri- until such time as the person affected teria for hydric soils (i.e., riverwash, by the certification requests review of playas, beaches, or water) the soil map the certification by NRCS. A person unit shall be determined to have a pre- may request review of a certification dominance of hydric soils; or only if a natural event alters the to- (iii) If a soil map unit contains inclu- pography or hydrology of the subject sions of hydric soils, that portion of land to the extent that the final cer- the soil map unit identified as hydric tification is no longer a reliable indica- soil shall be determined to have a pre- tion of site conditions, or if NRCS con- dominance of hydric soils. curs with an affected person that an (3) List of hydric soils. (i) Hydric soils error exists in the current wetland de- are those soils which meet criteria set termination. forth in the publication ‘‘Hydric Soils (7) The wetland determination proc- of the United States 1985’’ which was ess for wetland conservation compli- developed by the National Technical ance includes three distinct steps. In Committee for Hydric Soils and which Step 1, wetland identification, it is de- is incorporated by reference. This pub- termined if the area of interest sup- lication may be obtained upon request ports a prevalence of hydrophytic vege- by writing NRCS at U.S. Department tation, a predominance of hydric soils, of Agriculture, P.O. Box 2890, Wash- and wetland hydrology under normal ington, DC 20013, and is available for circumstances. In Step 2, determina- inspection at the National Archives tion of wetland type, it is determined if and Records Administration (NARA). any exemptions apply from § 12.5(b). For information on the availability of The findings are reflected in the as- this material at NARA, call 202–741– signment of an appropriate wetland 6030, or go to: http://www.archives.gov/ conservation compliance label. In Step federallregister/ 3, sizing of the wetland, the boundary codeloflfederallregulations/ of each wetland type determined in ibrllocations.html. Incorporation of

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this publication by reference was ap- (3) The determination of prevalence proved by the Director of the Federal of hydrophytic vegetation will be made Register on June 24, 1986. The mate- in accordance with the current Federal rials are incorporated as they exist on wetland delineation methodology in the date of the approval and a notice of use by NRCS at the time of the deter- any change in these materials will be mination. published in the FEDERAL REGISTER. (c) Wetland Hydrology. (1) Wetland (ii) An official list of hydric soil map Hydrology consists of inundation or units shall be maintained at the local saturation by surface or groundwater NRCS office and shall include— during a growing season at a frequency (A) All soils from the National List and duration sufficient to support a of Hydric Soils that can be found in prevalence of hydrophytic vegetation. that field office area, and (2) When a wetland is affected by (B) Any soil map units or areas which drainage manipulations that occurred the state conservationist determines to prior to December 23, 1985, and did not meet such hydric soil criteria. support woody vegetation on December 23, 1985, such that production of an ag- (iii) Any deletions of a hydric soil ricultural commodity on that date was unit from the hydric soil map unit list possible, wetland hydrology shall be must be made according to the estab- identified on the basis of the best- lished procedure contained in the pub- drained condition resulting from such lication ‘‘Hydric Soils of the United drainage manipulations. States 1985’’ for adding or deleting soils (3) The determination of wetland hy- from the National List of Hydric Soils. drology will be made in accordance (b) Hydrophytic vegetation. with the current Federal wetland delin- Hydrophytic vegetation consists of eation methodology in use by NRCS at plants growing in water or in a sub- the time of the determination. strate that is at least periodically defi- (4) When making a decision on wet- cient in oxygen during a growing sea- land hydrology, NRCS will utilize a son as a result of excessive water con- fixed precipitation date range of 1971– tent. 2000 for determining normal climatic (1) A plant shall be considered to be conditions. a plant species that occurs in wetland (d) Mitigation wetlands. Notwith- if such plant is listed in the National standing the provisions of this section, Wetland Plant List, or (as determined wetlands which are created in order to by NRCS) successor publication. The mitigate the loss of other wetlands as a publication may be accessed at: http:// result of irrigation, recreation, munic- rsgisias.crrel.usace.army.mil/NWPL/. ipal water, flood control, or other simi- (2) For the purposes of the definition lar projects shall not be considered to of ‘‘wetland’’ in § 12.2 of this part, land be artificial wetland for the purposes of shall be determined to have a preva- § 12.5(b)(1)(vii)(A) of this part. lence of hydrophytic vegetation if: (e)(1) Minimal effect determination. For (i) NRCS determines through the cri- the purposes of § 12.5(b)(1)(v), NRCS teria specified in paragraph (b)(3) of shall determine whether the effect of this section that under normal cir- any action of a person associated with cumstances such land supports a preva- the conversion of a wetland, the con- lence of hydrophytic vegetation. The version of wetland and the production term ‘‘normal circumstances’’ refers to of an agricultural commodity on con- the soil and hydrologic conditions that verted wetland, or the combined effect are normally present, without regard of the production of an agricultural to whether the vegetation has been re- commodity on a wetland converted by moved; or someone else has a minimal effect on (ii) In the event the vegetation on the functions and values of wetlands in such land has been altered or removed, the area. Such determination shall be NRCS will determine if a prevalence of based upon a functional assessment of hydrophytic vegetation typically exists functions and values of the subject in the local area on the same hydric wetland and other related wetlands in soil map unit under non-altered hydro- the area. The assessment of functions logic conditions. and values of the subject wetland will

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be made through an on-site evaluation. determine whether any categories of Such an assessment of related wetlands conversion activities identified pursu- in the area may be made based on a ant to paragraph (e)(1) of this section, general knowledge of wetland condi- if such activities were exempt from the tions in the area. A request for such de- ineligibility provisions of § 12.4, would termination will be made prior to the only have a minimal effect on wetland beginning of activities that would con- functions and values in a wetland sys- vert the wetland. If a person has con- tem within the region. verted a wetland and then seeks a de- (3) Any categories of conversion ac- termination that the effect of such tivities which meet the criteria of conversion on wetland was minimal, paragraph (e)(2) of this section will be the burden will be upon the person to published in the FEDERAL REGISTER for demonstrate to the satisfaction of inclusion in this part and shall be ex- NRCS that the effect was minimal. empt under § 12.5(b)(1)(v) of this part. (2) Scope of minimal-effect determina- (4) The NRCS local field office shall tion. The production of an agricultural maintain a list of any activities and commodity on any portion of a con- conditions which are determined by the verted wetland in conformance with a Chief, or designee, exempt pursuant to minimal-effect determination by NRCS this section and will provide the list to is exempt under § 12.5(b)(1)(v). However, a person upon request. any additional action of a person that [61 FR 47025, Sept. 6, 1996, as amended at 69 will change the functions and values of FR 18803, Apr. 9, 2004; 76 FR 82077, Dec. 30, a wetland for which a minimal-effect 2011; 80 FR 22885, Apr. 24, 2015; 83 FR 63052, determination has been made shall be Dec. 7, 2018; 85 FR 53152, Aug. 28, 2020] reported to NRCS for a determination of whether the effect continues to be § 12.32 Converted wetland identifica- minimal. The loss of a minimal-effect tion criteria. determination will cause a person who (a) Converted wetland shall be identi- produces an agricultural commodity on fied by determining whether the wet- the converted wetland after such land was altered so as to meet the defi- change in status to be ineligible, under nition of converted wetland. In making § 12.4, for certain program benefits. In this determination, the following fac- situations where the wetland values, tors are to be considered: acreage, and functions are replaced by (1) Where hydric soils have been used the restoration, enhancement, or cre- for production of an agricultural com- ation of a wetland in accordance with a modity and the effect of the drainage mitigation plan approved by NRCS, the or other altering activity is not clearly exemption provided by the determina- discernible, NRCS will compare the tion will be effective after NRCS deter- site with other sites containing the mines that all practices in a mitiga- same hydric soils in a natural condi- tion plan are being implemented. tion to determine if the hydric soils (f) Categorical Minimal Effect Exemp- can or cannot be used to produce an ag- tions. (1) The state conservationist, in ricultural commodity under natural consultation with the state technical conditions. If the soil on the compari- committee established under 16 U.S.C. son site could not produce an agricul- 3861, shall identify any categories of tural commodity under natural condi- conversion activities and conditions tions, the subject wetland will be con- which are routinely determined by sidered to be converted wetland. NRCS to have minimal effect on wet- (2) Where woody hydrophytic vegeta- land functions and values, as described tion has been removed from hydric in paragraph (d) of this section, and soils for the purpose of or permitting recommend to the Chief, NRCS, or a the production of an agricultural com- designee, inclusion on a list of categor- modity, the area will be considered to ical minimal effect exemptions. be converted wetland. (2) The Chief, or designee, shall (b) A wetland shall not be considered evaluate the conversion practices rec- to be converted if: ommended by the state conservation- (1) Production of an agricultural ists in the region to ensure consistency commodity on such land is possible as across State and regional lines, and to a result of a natural condition, such as

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drought, and it is determined that the tions for the area which was converted. actions of the person producing such Maintenance or improvement of drain- agricultural commodity does not per- age systems on prior-converted crop- manently alter or destroy natural wet- lands are not subject to this rule so land characteristics. Destruction of long as the prior-converted croplands herbaceous hydrophytic vegetation are used for the production of food, for- (i.e., plants other than woody shrubs or age, or fiber and as long as such ac- trees) as a result of the production of tions do not alter the hydrology of an agricultural commodity shall not be nearby wetlands or do not make pos- considered as altering or destroying sible the production of an agricultural natural wetland characteristic if such commodity on these other wetlands. vegetation could return following ces- Other wetlands under this section sation of the natural condition which means any natural wetland, farmed made production of the agricultural wetland, farmed-wetland pasture, or commodity possible; or any converted wetland that is not ex- (2) Such land is correctly identified empt under § 12.5 of this part. as farmed wetland or farmed-wetland (c) Abandonment is the cessation for pasture. five consecutive years of management or maintenance operations related to § 12.33 Use of wetland and converted the use of a farmed wetland or a wetland. farmed-wetland pasture. Unless the cri- (a) The provisions of § 12.32(b)(2) are teria for receiving an exemption under intended to protect remaining values, § 12.5(b)(1)(iii) are met, such land is acreage, and functions of the wetlands considered to be abandoned when the described therein. Persons may con- land meets the wetland criteria of tinue to farm such wetlands under nat- § 12.31. In order for documentation of ural conditions or as they did prior to site conditions to be considered ade- December 23, 1985. However, no action quate under § 12.5(b)(1)(iii), the affected can be taken to increase effects on the person must provide to NRCS available water regime beyond that which ex- information concerning the extent of isted on such lands on or before Decem- hydrological manipulation, the extent ber 23, 1985, unless NRCS determines of woody vegetation, and the history of the effect on losing remaining wetland use. In accordance with § 12.5(b)(1)(iii), values would be minimal under participation in a USDA approved wet- § 12.5(b)(1)(v). If, after December 23, land restoration, set-aside, diverted 1985, changes due to human activity oc- acres, or similar programs shall not be curred in the watershed and resulted in deemed to constitute abandonment. an increase in the water regime on a (d) The maintenance of the drainage capacity or any alteration or manipu- person’s land, the person may be al- lation, including the maintenance of a lowed to adjust the existing drainage natural waterway operated and main- system to accommodate the increased tained as a drainage outlet, that af- water regime on the condition that the fects the circulation and flow of water person affected by this additional made to a farmed wetland or farmed- water provides NRCS with appropriate wetland pasture would not cause a per- documentation of the increased water son to be determined to be ineligible regime, the causes thereof, and the under this part, provided that the planned changes in the existing drain- maintenance does not exceed the scope age system. In order to maintain pro- and effect of the original alteration or gram eligibility, a person must provide manipulation, as determined by NRCS, sufficient documentation and receive and provided that the area is not aban- approval from NRCS prior to making doned. Any resultant conversion of any changes that will have the effect of wetlands is to be at the minimum ex- increasing the capacity of the existing tent practicable, as determined by drainage systems. NRCS. (b) Unless otherwise provided in this part, the production of an agricultural [61 FR 47025, Sept. 6, 1996, as amended at 76 commodity on land determined by FR 82077, Dec. 30, 2011] NRCS to be prior-converted cropland is exempted by law from these regula- PART 13 [RESERVED] 443

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