NEW REGULATIONS GOVERN AGRICULTURAL LANDS BY MARK MATTHIES Jones & Stokes For farmers and people trying to develop projects on agricultural land, complying with wetland regulations can be frustrating. Recent changes make it even more important to understand current regulations and the roles of government agencies that implement them. These changes are embedded in the recently adopted Wetland Identification Procedures for Washington. Four of the major areas which have been changed are: New roles of two federal agencies, the Natural Resources Conservation Service (NRCS) and the U.S. Army Corps of Engineers, make it important for project applicants to coordinate with these agencies early on. Regulations require the use of one of two wetland delineation manuals, depending on the specific situation. Project applicants should be aware of the differences. Agencies have new roles in determining wetlands and drawing boundaries. Some wetland determinations on agricultural lands made by the NRCS prior to the regulatory changes may no longer be acceptable to the agencies. Using existing published information, such as maps and aerial photographs, is one way to reduce the cost of wetland work but may not be acceptable in all cases. New agency roles Recent developments in wetland regulations have addressed roles for federal and state agencies with wetland regulation and management responsibilities. Methods for delineating wetlands on agricultural lands have been identified by the Natural Resources Conservation Service or NRCS (formerly the Soil Conservation Service), U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, and U.S. Fish and Wildlife Service. In January 1994, these four federal agencies signed a Memorandum of Agreement (MOA) that makes the NRCS the lead agency for wetland delineations on agricultural lands for purposes of both the Clean Water Act and the Food Security Act. Later that year, these agencies and the state Department of Ecology and Department of Fish and Wildlife published the Wetland Identification Procedures (WIP) for Washington state. The intent of the WIP is to: Identify NRCS's responsibility for delineating wetlands on agricultural lands and develop effective coordination among federal agencies with wetland regulation responsibilities. Identify the level of accuracy needed for wetland determinations depending on whether agricultural land is to remain in agriculture or whether a land-use conversion (i.e., development) is proposed. Provide more certainty for farmers about what land management practices are allowed on the different kinds of wetlands on agricultural lands. Identify off-site and on-site wetland mapping procedures. Agricultural lands as originally defined in the 1994 MOA included lands where natural vegetation had been removed to produce food and fiber. Examples included cropland, hayland, pastureland, orchards, vineyards and areas that support wetland crops such as cranberries and blueberries. Conservation provisions in the 1996 federal farm bill greatly expand the definition of agricultural lands to include not only cropland and pastureland, but also rangeland, native pastureland, other land used for livestock production, and tree farms. With this change the NRCS is now responsible for wetland determinations on many rural lands formerly under the responsibility of the Corps. Under the expanded definition of agricultural land, the NRCS is now responsible for wetland delineations (or verifying consultants' delineations) on agricultural lands. In addition the NRCS, if requested by the landowner, is responsible for delineations on non-agricultural lands for farmers participating in the "Swampbusters" farm program. Under the WIP, the new role for the NRCS is as the lead agency for delineations when agricultural lands are being converted to other land uses such as development, roads, and utility lines. Project applicants should coordinate with the Corps and NRCS to determine firsthand which agency will be responsible for the wetland verification and to ensure the federal wetland permitting process is not delayed for new projects. The Corps is still the responsible agency for administering all other provisions of the Clean Water Act such as Section 404 permitting. The Corps and Environmental Protection Agency will retain responsibility for wetland delineations for non-USDA participants on non-agricultural lands. Setting boundaries The method used to determine wetland boundaries has grown out of the past two decades of wetland regulation. To promote good water quality, Congress passed the Federal Water Pollution Control Act Amendment of 1972. Section 404 of the Act established a permit program to regulate discharges of dredged or fill material into waters of the United States. The Clean Water Act of 1977 further revised the Corps' regulatory authority over waters of the United States to include rivers, streams, lakes, and wetlands. The term "wetlands" is defined at the federal level as "those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." For wetlands regulated by the Corps, the wetland boundary must be determined according to the presence or absence of three environmental characteristics: wetland vegetation, wetland hydrology, and wetland soils. The 1987 Corps of Engineers Wetland Delineation Manual describes these characteristics. Wetland regulations for agricultural lands include a different delineation manual. The 1985 Food Security Act and the 1990 Food, Agricultural, Conservation, and Trade Act describe the types of wetlands found on agricultural lands (farmed wetlands, converted wetlands, prior converted cropland, artificial wetland, and abandoned wetlands). The Wetland Conservation (Swampbusters) provision of the Food Security Act identifies what agricultural activities are allowable in wetlands without loss of USDA benefits to farmers whose lands include wetlands. Under the Food Security Act, wetland determinations on agricultural lands are made using the National Food Security Act Manual (NFSAM) third edition. These determinations are important since Swampbusters identifies whether hydrologic maintenance or improvements (e.g., drains, ditches, levees, diversions, etc.) are allowed depending on the wetland type. Depending upon which manual is used (Corps or NFSAM), the same wetland may have slightly different wetland boundaries. There are exceptions to when the NFSAM is used. The NRCS uses the 1987 Corps manual to delineate wetlands on agricultural lands when the following conditions occur: On wetlands where natural vegetation occurs in small narrow bands immediately adjacent to, or in pockets interspersed among, agricultural lands. When the NRCS or Corps determines a high level of accuracy is needed in locating the wetland boundary. High levels of boundary accuracy are needed on agricultural lands when land-conversion projects are proposed that would be subject to provisions of Section 404 of the Clean Water Act. On rangelands on a request basis and not as a comprehensive inventory. Under WIP, the NRCS is also reviewing previous determinations of Food Security Act wetland categories on agricultural lands. Since the Act was enacted in 1985, the NRCS has been responsible for determining wetland categories as described earlier. However, these past wetland determinations made by the NRCS prior to implementation of the WIP may no longer be valid. Therefore, projects that are relying on previous NRCS wetland determinations for Clean Water Act Section 404 purposes are not suitable and will not be accepted by the Corps. On site vs. off site The agencies recognize that off-site mapping may be appropriate where agricultural land use will not change and wetlands can be readily and accurately identified using remote sensing techniques. For example, successive years of aerial photographs can be used to identify long-term cropping history to help make determinations for prior converted cropland. Off-site mapping procedures include the use of already published information such as National Wetland Inventory Maps, USGS quad sheets, aerial photography, soil surveys, stream gauge data and precipitation records. A field visit may be required to verify cropping history, vegetation, soil and hydrologic conditions. In most situations, however, on-site procedures will be required to finalize Food Security Act determinations and Clean Water Act permitting. On-site wetland mapping procedures are identified in the NFSAM and the 1987 Corps Manual. The purpose of the interagency MOA and WIP is to provide landowners with a process for wetland determinations that is acceptable for the administration of both the Food Security Act and the Clean Water Act. Although two manuals exist to delineate wetlands, the MOA and WIP identify agency responsibility and appropriate use of the wetland delineation manuals. Since the distribution of the MOA, the NRCS has trained approximately 2,000 field personnel across the country to use the 1987 Corps manual and help implement this plan. Wetland delineations on agricultural lands in Washington can be carried out by NRCS employees or consultants trained in using the appropriate manual. Mark Matthies is a wetland biologist with Jones & Stokes Associates, an environmental consulting and natural resource planning firm with offices in Washington, California and Arizona.