514.10  Wetlands (W)

A.  Definition and Criteria

Areas assigned the Food Security Act label of Wetland (W) are areas that meet the criteria for the three wetland factors and typically have not been manipulated by altering hydrology and/or removing woody vegetation, including stumps.  Wetland includes areas that have been abandoned, as described in Section 514.33.  The wetland delineation tools described in the Appendix are used to assess the three wetland factors.  Wetland factors are described in Section 514.3. 

B.  Wetlands Farmed Under Natural Conditions

(1)  Wetlands may be planted to produce an agricultural commodity after December 23, 1985, without jeopardizing USDA benefits, as long as all of the following requirements are met:

(i)  Production is possible as a result of a natural condition, such as drought, or normal seasonal hydrologic conditions.

(ii)  Hydrology is not manipulated.

(iii)  Woody vegetation is not removed.

(iv)  Normal tillage does not fill, level, drain, or otherwise cause conversion of the wetland.  (7 CFR Section 12.5(b)(3))

(2)  Removal of herbaceous vegetation is not considered manipulation.  Grading, land-leveling, or land-clearing is considered manipulation.  Shearing stumps flush with the ground constitutes removal and, as it makes the site cropable, will result in conversion.

(3)  Destruction of herbaceous hydrophytic vegetation resulting from the production of an agricultural commodity is not considered altering or destroying a natural wetland characteristic if both of the following apply:

(i)  Such vegetation is able to return following cessation of the condition that made production of the agricultural commodity crop possible.

(ii)  The destruction was the result of crop production activities that are common in the area.

(4)  Removal of woody vegetation is not considered farming under natural conditions, even if this practice is temporarily enhanced by drought or other natural conditions, since such removal would destroy natural wetland characteristics for an extended period of time.

(5)  Where hydric soils have been used for production of an agricultural commodity, and the effect of the drainage or other altering activity is not clearly discernible, NRCS will compare the site with other sites containing the same hydric soils in a natural condition to determine if the hydric soils can or cannot be used to produce an agricultural commodity under natural conditions. If the soil on the comparison site could not produce an agricultural commodity under natural conditions, the subject wetland will be considered to be converted wetland.  (7 CFR Section 12.32(a)(1))

C.  Restrictions

(1)  Any manipulation to wetlands that results in a conversion (an activity that is for the purpose, or makes possible production of an agricultural commodity) may result in non-compliance with the WC provisions.  Activities that do not constitute conversion under the Act may be controlled by other Federal, State, or local regulations.   

(2)  Drainage structures that were constructed through a wetland (W) before December 23, 1985, which have been maintained by the participant, and which serve as an outlet for drainage systems of Prior Converted Cropland (PC), Farmed Wetland (FW), or Farmed Wetland Pasture and Hayland (FWP) may be maintained to the extent of the scope and effect of the drainage as it existed on December 23, 1985, but may not be expanded, increased, or improved.  These include structures operated and maintained as drainage outlets.  See Part 516, Subpart B, Scope and Effect Determination, for policy and procedures to use in calculating the scope and effect of the original drainage.

(3)  Participants should be advised to avoid impacts to wetlands during drainage maintenance activities.  If drainage maintenance converts a wetland in violation of the WC provisions, the participant may need to restore the wetland or mitigate the loss of wetland acres and functions in order to remain eligible for USDA program benefits.  (See NFSAM Part 515, Subpart B, Mitigation Exemption.)

(4)  In cases where the original scope and effect is in question, documentation of the following may be of value:

(i)  Any existing wetland easements.

(ii)  Evaluation of the drainage system as it currently exists, with sufficient detail to evaluate factors affecting drainage of PC, FW, or FWP.

(iii)  The scope and effect of the drainage system that existed on December 23, 1985.

(iv)  Proposed drainage system maintenance activities, including structures and designs.

(v)  Proposed dates of implementation and completion.

(5)  Cropping and mechanical harvesting of hay within the wetlands affected by maintenance will be allowed to the extent that it was possible to conduct those activities prior to the maintenance of drainage capacity.  Placement in the wetland of excavated material associated with the maintenance activities may constitute a conversion under the Act. 

(6)  Wetlands manipulated beyond the scope and effect of the drainage as it existed on December 23, 1985, will be labeled Converted Wetlands (CW or CW+year) or Manipulated Wetlands (WX).  Other pre-existing wetland labels will remain as previously determined.

514.11  Manipulated Wetlands (WX)

A.  Definition 

(1)  Wetlands that have been manipulated as described in Section 514.10 beyond the scope of allowable maintenance will be labeled as Manipulated Wetlands (WX) if both of the following conditions are met:

(i)  The manipulation was not for the purpose of producing an agricultural commodity (See agricultural commodity definition NFSAM Part 514, Section 514.2 (A)).

(ii)  The manipulation did not make production of an agricultural commodity possible. 

(2)  Manipulated wetlands may or may not meet wetland criteria, depending on the type and degree of manipulation.  If production is later made possible or an agricultural commodity crop is produced on the manipulated wetland, the area will be labeled a converted wetland (CW or CW+year).  Open water areas excavated in wetlands will be labeled WX unless the excavation results in conversion that makes possible production of an agricultural commodity.  In this case, the converted areas would be labeled CW or CW+year. 

(3)  Wetlands manipulated for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction where production of an agricultural commodity has not been made possible are labeled WX (7 CFR Section 12.5(b)(1)(iv)).  The intended use of the manipulated area will not be agricultural commodity production.

(4)  At times, annual cover crops are utilized in orchards, vineyards, blueberry patches, and other nonagricultural commodity crop fields.  In these cases, even though the production of an agricultural commodity is possible, the cover crop must be destroyed by mechanical or chemical means before seed heads develop.  If in any crop year, an annually tilled cover crop matures because it is not destroyed, or is harvested, the manipulated area will be labeled CW+year.  The use of nonagricultural cover crops, such as clover or other biennials, is also allowed. 

(5)  NRCS employees are encouraged to assist persons in planning agriculturally-related activities under this exemption (e.g., items 1 through 8 in Section 514.11(B), below).  Policy concerning USDA technical and financial assistance and the protection of wetlands is located in GM-190, Part 410, Subpart B, Related Environment Concerns, Section 410.26. 

B.  Examples of WX

Examples of activities that result in WX include, but are not limited to:

(i)  An open ditch is constructed through a forested wetland that removes the hydrology, but the trees are not removed and the manipulation does not make production possible.

(ii)  Piles of trees, stumps, and soil cover an area, but the area cannot be cropped without additional land-clearing activities.

(iii)  Construction of roads, buildings, or other activities that do not make production possible.

(iv)  Construction of stock watering or irrigation ponds.

(v)  Conversion for orchards, groves, or vineyards.

(vi)  Spring development.

(vii)  Construction of agricultural waste management structures.

(viii)  A non-perforated subsurface drain is constructed through a forested wetland that requires limited stump removal for installation and the manipulation does not make production of an agricultural commodity possible.

C.  Procedures for Identifying WX

Use the following procedures to identify WX:

STEP	ACTION
1	Use appropriate wetland delineation tools, as described in the Appendix, to assess site conditions. A wetland factor may be altered or removed as a result of manipulation.
2	Review aerial photographs or FSA slides to check for land use changes that may indicate wetland manipulation or conversion.
3	The area qualifies for a WX exemption if manipulation was not for the purpose of producing a commodity crop or was such that production was not made possible.

D.  Maintenance

WX can be maintained but not for the purpose of, or making possible production of, an agricultural commodity.  To ensure compliance, a participant can complete Form AD-1026, Highly Erodible Land and Wetland Conservation Certification, before conducting any hydrologic manipulation to ensure that the proposed manipulation is not for the purpose of, and does not make production of, an agricultural commodity possible on the WX or another wetland. 

514.12  Artificial Wetland (AW)

A.  Definition

(1)  An artificial wetland (AW) is land that was formerly non-wetland under natural conditions but now exhibits wetland characteristics because of the influence of human activities. (7 CFR Section 12.2)  These areas are exempt from the WC provisions of the Act and thus can be drained, removed, or otherwise manipulated without causing ineligibility for USDA program benefits.

(2)  Examples of AW include the following:

(i)  A wetland created incidentally by an irrigation delivery system or other adjacent human activity on an area that was formerly upland.

(ii)  Ponds constructed in non-wetlands (NW).  These may be labeled as AW even if all or part of these areas may be too deep to allow wetland vegetation to grow (i.e., they do not meet the hydrophytic vegetation criteria).  If a pond was constructed wholly or partially in wetlands, the portion of the pond that was constructed in wetlands is not AW.  These areas shall be labeled WX if agricultural production is not possible.

(3)  Increasing the hydrology on an existing wetland does not make the wetland an AW.  Such an area would remain wetland unless the hydroperiod is increased to the point where wetland vegetation cannot survive, in which case it would be labeled WX. 

B.  Procedure

Appropriate wetland delineation tools are used, as described in the Appendix, to assess wetland criteria.

514.20  Non-Wetlands (NW)

A.  Definition

(1)  Non-wetland (NW) is land that under normal conditions does not meet wetland criteria.

(2)  NW also includes wetlands that were converted to the extent that wetland criteria were not present on December 23, 1985, but an agricultural commodity was not produced.  For these NW areas, the wetland criteria have not returned and the area has not been abandoned.

(3)  Deepwater habitat, which does not meet wetland criteria, may be labeled NW if it is necessary to make a determination of eligibility for these areas. 

(4)  In addition to NWs, “other waters of the U.S.” as defined in Section 404 of the Clean Water Act, may occur on a tract.  Other waters include streams, lakes, ponds, rivers, and ditches that are not wetlands as defined in the Act.

(5)  Other waters are not subject to the WC provisions and are not labeled as such on certified wetland determinations.  They may be labeled NW.

B.  Procedure for Identifying NWs

Appropriate wetland delineation tools are used, as described in the Appendix, to assess wetland criteria. 

514.30  Prior Converted Cropland (PC)

A.  Definition

(1)  Prior converted cropland (PC) is a converted wetland where the conversion occurred before December 23, 1985; an agricultural commodity had been produced at least once before December 23, 1985; and as of December 23, 1985, the area was capable of producing an agricultural commodity (i.e., did not support woody vegetation and was sufficiently drained to support production of an agricultural commodity).  The conversion could include draining, dredging, filling, leveling, or otherwise manipulating (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) the wetland area.  In addition, PC meets the following hydrologic criteria:

(i)  If the area is not a pothole, playa, or pocosin, inundation is less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years (50 percent chance or more). 

(ii)  If the area is a pothole, playa, or pocosin, inundation is less than 7 consecutive days and saturation is less than 14 consecutive days during the growing season in most years (50 percent chance or more).

Note:  Reference (7 CFR Section 12.2) 

(2)  The presence and extent of pothole, playa, and pocosin wetlands in each State will be determined by the State Conservationist with advice from the State Technical Committee.

B.  Supporting Documentation

(1)  The NRCS Engineering Field Handbook (EFH), Chapter 19, “Hydrology Tools for Wetland Determination;” the 1987 COE Manual; and the approved State mapping conventions are used to determine if the area is inundated for the requisite time.  Site conditions must be thoroughly documented, using information such as:

(i)  Aerial photographs and FSA slides.

(ii)  Flood frequency studies.

(iii)  Interviews with the person and other knowledgeable residents of the area.

(iv)  Field indicators of surface water such as water marks, drift lines, and drowned or stressed crops.

(v)  Stream gauge data.

(2)  FSA records may be used to determine current or prior cropping history.  In the absence of FSA records, any determination of cropping history should be based on aerial photography, crop expense or receipt records, grain elevator records specific to tract and field, or other suitable documentation that can be tied to the specific field and/or tract under review.

C.  Drainage Maintenance and Improvement

Drainage systems or other hydrologic manipulations on PCs may be maintained or improved after December 23, 1985, without loss of eligibility for USDA program benefits.  USDA program participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.

D.  Procedures for Identifying PCs

Aerial photographs, crop records, and other resources are consulted to determine if the area―   

(i)  Has hydric soils.

(ii)  Was converted for production of an agricultural commodity before December 23, 1985.

(iii)  Was capable of producing an agricultural commodity (i.e., did not support woody vegetation and was sufficiently drained to support production of an agricultural commodity) as of December 23, 1985.

(iv)  Fails to meet hydrologic criterion of Farmed Wetland (FW).

514.31  Farmed Wetlands (FW)

A.  Definition

(1)  FWs are wetlands that were drained, dredged, filled, leveled, or otherwise manipulated and used for producing an agricultural commodity before December 23, 1985, and that meet all of the following criteria:

(i)  If the area is not a pothole, playa or pocosin, it is inundated for at least 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years (50 percent chance or more).

(ii)  If the area is a pothole, playa, or pocosin, it is inundated for at least 7 consecutive days or saturated for at least 14 consecutive days during the growing season in most years (50 percent chance or more).

(iii)  Production was made possible or enhanced by the manipulation.

(iv)  The area has not been abandoned (Section 514.33).

Note:  Reference ( 7 CFR Section 12.2 ) 

(2)  The presence and extent of pothole, playa, and pocosin wetlands in each State will be determined by the State Conservationist with advice from the State Technical Committee.

B.  Supporting Documentation

(1)  EFH, Chapter 19, “Hydrology Tools for Wetland Determination;” the 1987 COE Manual; and the approved State mapping conventions are used to determine if the area is inundated for the requisite time.  Site conditions must be thoroughly documented, using information such as:

(i)  Aerial photographs and FSA slides.

(ii)  Flood frequency studies.

(iii)  Interviews with the person and other knowledgeable residents of the area.

(iv)  Field indicators of surface water such as water marks, drift lines, and drowned or stressed crops.

(v)  Stream gauge data.

(2)  FSA records may be used to determine current or prior cropping history.  In the absence of FSA records, any determination of cropping history should be based on aerial photography, crop expense or receipt records, grain elevator records specific to tract and field, or other suitable documentation that can be tied to the specific field and/or tract under review.

C.  Drainage Maintenance and Improvement

(1)  FWs may be maintained and used to produce agricultural commodities or other crops without a loss of eligibility for USDA program benefits.  However, any additional hydrologic manipulation after December 23, 1985, that does not meet the definition of maintenance (Section 516.10) may result in non-compliance of the WC provisions.  ( 7 CFR Section 12.32(b) )  USDA program participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.

(2)  If a participant wants to restore wetland characteristics to FW areas and, at the same time, prevent the areas from being considered abandoned, the participant must document hydrologic and vegetative baseline conditions with NRCS before restoring wetland characteristics.  (7 CFR Section 12.5(b)(1)(iii)).

D.  Procedures for Identifying FW

(1)  Aerial photographs, crop records, and other resources must be consulted to determine if the area―

(i)  Has hydric soils.

(ii)  Was converted for production of an agricultural commodity prior to December 23, 1985, and an agricultural commodity was produced at least one year before December 23, 1985.

(iii)  Was capable of production of a commodity crop as of December 23, 1985.

(iv)  As of December 23, 1985, met the hydrologic criterion of FW.

(v)  Was not abandoned after December 23, 1985.

(vi)  Did not meet the converted wetland criteria (manipulated since December 23, 1985, beyond the scope and effect of any prior manipulation).

(2)  If the FW site meets abandonment criteria, without the abandonment being part of an approved plan (documented baseline conditions), the area should be labeled W unless other manipulation has occurred to the extent that it is a converted wetland. 

514.32  Farmed Wetland Pasture or Hayland (FWP)

A.  Definition

A farmed wetland pasture or hayland (FWP) is a wetland that was drained, dredged, filled, leveled, or otherwise manipulated and used for pasture or hayland (includes native pasture or hayland) as of December 23, 1985, and meets both of the following criteria:

(i)  The area is inundated for at least 7 consecutive days during the growing season or saturated for at least 14 consecutive days during the growing season in most years (50 percent chance or more); and

(ii)  The area has not been abandoned (Section 514.33).

Note:  Reference (7 CFR Section 12.2)

B.  Supporting Documentation

EFH, Chapter 19, “Hydrology Tools for Wetland Determination;” the 1987 COE Manual; and the approved State mapping conventions are used to determine if the area is inundated for the requisite time.  Site conditions must be thoroughly documented, using information such as:

(i)  Aerial photographs and FSA slides.

(ii)  Flood frequency studies.

(iii)  Interviews with the person and other knowledgeable residents of the area.

(iv)  Field indicators of surface water such as water marks, drift lines, and drowned or stressed crops.

(v)  Stream gauge data.

C.  Maintenance

(1)  FWP can be maintained and used to produce forage crops or other crops without loss of eligibility for USDA benefits.  However, additional hydrologic manipulation after December 23, 1985, that does not meet the definition of maintenance (Section 516.10) may result in non-compliance with the WC provisions.  (7 CFR Section 12.32(b)) USDA program participants should exercise caution when maintaining drainage systems so that neighboring wetlands are not inadvertently drained.

(2)  If a participant wants to restore wetland characteristics to FWP areas and, at the same time, prevent the areas from being considered abandoned, the participant must document hydrologic and vegetative baseline conditions with NRCS before restoring wetland characteristics.  (7 CFR Section 12.5(b)(1)(iii))

D.  Procedures for Identifying FWP

(1)  Aerial photographs, crop records, and other resources are consulted to determine if the area―

(i)  Has hydric soils.

(ii)  Was converted for production of a pasture and/or hayland use prior to December 23, 1985.

(iii)  Had not produced an agricultural commodity at least one year before December 23, 1985.

(iv)  As of December 23, 1985, met the hydrologic criterion of FWP.

(v)  Was not abandoned after December 23, 1985. 

(vi)  Did not meet the converted wetland criterion (manipulated since December 23, 1985, beyond the scope and effect of any prior manipulation).

(2)  If the FWP site meets abandonment criteria, without the abandonment being part of an approved plan (documented baseline conditions), the area should be labeled W unless other manipulation has occurred to the extent that it is a converted wetland. 

514.33  Abandonment

A.  Description

(1)  Abandonment is the cessation for five consecutive years of management or maintenance operations related to the production of agricultural commodities or forage on areas labeled FW or FWP.  (7 CFR Section 12.33)  FW and FWP areas that are determined to be abandoned will be labeled W.  An area will not be considered abandoned when either of the following occurs:

(i)  It is enrolled in a conservation set-aside program or a State or Federal wetland restoration program, other than USDA perpetual easements such as the Wetland Reserve Program (WRP).  Hydrologic and vegetative baseline conditions and restoration activities must be documented before the site is enrolled.  Restoration is defined in Section 515.10.

(ii)  NRCS documented hydrologic and vegetative baseline conditions and restoration activities before active maintenance and management ceased.  A certified wetland determination conducted by NRCS can be used to verify baseline conditions.  Documentation of baseline conditions should include a scope and effect determination of drainage systems to help ensure that the landowner returns the wetland to the water regime that existed before the wetland restoration.  See Part 516 for more information.

(2)  PC land will not be considered abandoned under the Food Security Act. (7 CFR Section 12.33 (c)) 

(3)  Areas labeled CW or CW+year are not subject to abandonment.  If restored/mitigated on-site, CW and CW+year areas will revert to the label that applied before the conversion.

(4)  This definition of abandonment is applicable only for compliance with the Food Security Act.  Regulations governing the Clean Water Act may provide different or additional criteria for abandonment, particularly with regard to PC areas.  Participants who are planning to abandon PC areas should be advised to discuss their plans with the COE before proceeding. 

B.  Determination of Abandonment for FW and FWP

(1)  Areas labeled FW – In order to demonstrate that the area has not been abandoned, the participant must be able to document that the site has been maintained such that an annually tilled crop can be produced on it and that drainage structures have been maintained to function at or near their as-built capacity.  See Scope and Effect procedures in Part 516. 

(2)  Areas labeled FWP – In order to demonstrate that the area has not been abandoned, all drainage structures must be maintained to function at or near their as-built capacity, and the participant must have controlled woody vegetation. 

(3)  When making a determination of abandonment, the following types of records can be used:

(i)  Commodity crop production records, for FW.

(ii)  Aerial photographs, including color slides and color infrared photography, to determine the status of hydrology manipulations and cropping.

(iii)  Drainage district or other drainage records to assess maintenance of drainage structures.

C.  Manipulation on Land Considered Abandoned

(1)  Drainage systems may not be reinstalled or maintained if the land has been abandoned and wetland criteria are met.  Such land will be identified as W and any maintenance or manipulation of existing systems that results in conversion will cause the area to be labeled CW or CW+year.

(2)  Maintenance of drainage outlets for PC, FW, or FWP through the area considered abandoned is allowed, as described in Section 514.10(C).

514.40  Converted Wetlands (CW or CW+Year)

A.  Definition

(1)  A converted wetland is an area that was formerly wetland (e.g., W, FW, FWP, WX) and meets both of the following criteria:

(i)  After December 23, 1985, has been drained, dredged, filled, leveled, or otherwise manipulated (including the removal of woody vegetation or any activity that results in impairing or reducing the flow and circulation of water) for the purpose, or to have the effect of making the production of, an agricultural commodity possible. 

(ii)  Such production would not have been possible but for such action.

Note:  Reference (7 CFR Section 12.2)

(2)  For the purpose of the Food Security Act, the term “conversion” constitutes activities that have the purpose or effect of making production of an agricultural commodity possible or of increasing production.  Wetlands that have been manipulated but that do not meet this requirement would be labeled WX.

(3)  Wetland conversion activities will be assessed to determine if any exemptions to the Act apply to the conversion.

B.  Examples of Manipulation That Convert Wetlands

This table provides examples of manipulations that are considered conversion if conducted to make agricultural commodity production possible.

Type	Actions that may Cause Conversion of Wetlands
New Construction, grading, land leveling	Construction of open ditches or subsurface drains into or outlets through wetlands.  New construction of a diversion that decreases flow of water to a wetland. Construction of dugouts, or other ponds, dikes, etc., in wetlands resulting in fill being placed in a wetland, or that impact wetland hydrology. Removal of micro-topographic features and deep ripping to remove restrictive layers.
Woody Vegetation Removal	Woody vegetation, including stumps, removed after December 23, 1985, if for the purpose of, or to made production of an agricultural commodity possible.
Hydrologic Manipulation	Any manipulation of the hydrology by means of on-site or offsite activities that exceed the original scope and effect of hydrologic manipulations that occurred before December 23, 1985.  For FW, this includes manipulating the hydrology such that production is made more possible (increased yields, increased frequency of cropping, increased diversity of crops).

C.  Examples of Manipulation That Are Not Considered Conversion

This table contains examples of actions not considered manipulation and manipulation that is not considered conversion. 

Type	Action not Considered Manipulation	Manipulation not Considered Conversion
Woody Vegetation Removal	Removal of woody vegetation without removal of stumps, such that the area cannot be cropped.	·   Removal of woody vegetation, including stumps, from an area so small that production on the area is not possible, such as clearing a fence line in a manner that will not permit the use of normal farming equipment on the cleared area. ·    Removal of seedlings (5 years or less of growth) by mowing or normal plowing.
Herbaceous Vegetation Removal	Removal of herbaceous vegetation.
Tillage	Normal tillage practices and operations with tillage equipment accepted as normal in the local area.  Tilling does not include redistribution of surface material in a manner that converts wetland areas, mechanized land-clearing, or deep ripping in wetland areas.

D.  Date of Conversion

(1)  When the Act was signed in 1985, it stated that persons shall be ineligible for USDA benefits if an agricultural commodity is planted on wetland that was converted after December 23, 1985.  (7 CFR Section 12.4(a)(2)) 

(2)  Revisions to the Act in 1990 stated that persons shall be ineligible for USDA benefits if they convert wetlands after November 28, 1990, to the extent that production of an agricultural commodity is possible.  (7 CFR Section12.4(a)(3))  For this reason, NRCS must determine whether a wetland was converted before or after November 28, 1990.  Non-exempted conversions made after December 23, 1985, but before November 28, 1990, will be labeled CW.  Non-exempted conversions made after November 28, 1990, will be labeled CW+year (the year the conversion occurred).

(3)  An area will also be labeled CW if the conversion occurred after December 23, 1985, and is the result of activity by a county, drainage district, or similar entity.  (Section 514.42(C)).  Production of agricultural commodities or forage for mechanical harvest or additional manipulation on these areas will result in ineligibility for USDA programs.

E.  Maintenance on CW and CW+year

Manipulation that was performed between December 23, 1985, and November 28, 1990, that caused an area to become a CW may be maintained to the scope and effect of the original manipulation.  Subsequent manipulation that exceeds the original scope and effect will cause the affected area to become a CW+year under the Act, and the person may be ineligible for USDA benefits unless an exemption applies.  Production of an agricultural commodity on the CW will also result in ineligibility for USDA program benefits for that crop year. 

F.  Labeling Converted Wetlands that are restored

If a converted wetland is restored on-site by a participant in accordance with a restoration/mitigation plan approved by NRCS, the area will revert to the label that applied before the conversion.

G.  Procedures for Identifying Converted Wetlands

The following table shall be used to identify CW or CW+Year:

STEP	ACTION
1	Appropriate wetland delineation tools are used as described in the Appendix to assess wetland criteria.
2	The1985, 1990, and/or other appropriate year aerial photographs or FSA slides are reviewed to confirm date of potential wetland conversion.  FSA receipts or other records may also be used to help determine the date.  For wetlands converted between December 23, 1985, and November 28, 1990, it is generally not essential to know the exact crop year of conversion.  For wetlands converted after November 28, 1990, the crop year must be determined using the best available data.  This information is provided to FSA to determine the years the person may be ineligible for USDA program benefits.

H.  Conservation Practices on HEL and NHEL

(1)  Wetlands converted as a result of installation of required water erosion control practices on HEL lands will not be considered converted wetlands.  Alternatives that avoid or minimize impacts to wetlands will be recommended to the person and utilized whenever possible.  These areas will keep the W label.

(2)  If a wetland will be affected by a water erosion control practice on NHEL, the NRCS representative will follow minimal effect determination procedures (NFSAM Part 515). Water conservation measures are not included with water erosion control practices for this provision; thus, a water conservation measure that diverts water from a specific wetland may result in a CW+year designation unless exempted by a minimal effect determination.

514.41  Converted Wetland Technical Error (CWTE)

A.  Definition

(1)  Converted wetland technical error (CWTE) occurs if NRCS makes a wetland determination that is incorrect and results in a person taking action that would place this person in non-compliance with WC provisions.  (7 CFR Section 12.5 (b)(6))  Failure of NRCS to make a determination does not constitute a CWTE.  CWTE cannot be used to exempt the person from actions taken while waiting for NRCS to respond to Form AD-1026.

(2)  The erroneous information from NRCS must meet each of the following criteria:

(i)  Be documented on Forms NRCS-CPA-026 or NRCS-CPA-026e.

(ii)  Have preceded the action.

(iii)  Have been directly relied upon by the person in the decision to take the action.

(3)  A CWTE can be approved only at the State level.

B.  Exception – Obvious Wetlands

CWTE does not apply to obvious wetlands.  An obvious wetland is an area that is continuously inundated or saturated for long periods of time during the growing season to such an extent that access by foot to make a determination of predominance of hydric soils or prevalence of hydrophytic vegetation is not feasible.  (7 CFR Section 12.6 (c)(8))  Additionally, wetland sites that are cropped or have had forage harvested by mechanical means less than 5 out of 10 years because of ponding, flooding, or saturation are obvious wetlands.

C.  Supporting Documentation

Documentation for the CWTE must include each of the following:

(i)  Form AD-1026 showing the person’s intent.

(ii)  Corresponding Forms CPA-026 or CPA-026e, including on-site documentation sheets.

(iii)  Date conversion was started.

(iv)  Date conversion was completed. 

(v)  Explanation of the events and circumstances leading to the error.

D.  Use and Maintenance

USDA program participants may produce an agricultural commodity on a CWTE.  Drainage systems and other hydrologic manipulations can be maintained.  However, additional manipulation after the effective date of the CWTE may result in the area being labeled CW+year.  Scope and effect of hydrologic manipulation should accompany a CWTE label.

E.  Procedures for Identifying a CWTE

The following table shall be used to identify a CWTE:

STEP	ACTION
1	Appropriate wetland delineation tools are used as described in the Appendix to assess wetland criteria.
2	The 1985, 1990, and/or other appropriate year aerial photographs or FSA slides are reviewed to confirm date of potential wetland conversion.  FSA receipts or other records may also be used to help determine the date.  Review CPA-026e and data furnished by participant.
3	The data is submitted to the State Conservationist for CWTE consideration.

514.42  Third-Party Conversion Exemption (TP)

A.  Background

(1)  A person shall not be determined to be ineligible for program benefits for production of an agricultural commodity on wetland converted after December 23, 1985, if such conversion was not the result of a scheme or device to avoid compliance and either of the following:

(i)  The wetland is converted by actions of persons unassociated or unaffiliated with the USDA program participant, or any of the person’s predecessor in interest, such as a prior landowner.

(ii)  The wetland conversion is an indirect effect of an action occurring off the tract whose purpose is other than to convert that particular wetland, such as drainage on an adjacent property, by a person other than the participant.

Note:  Reference (7 CFR Section 12.5(b)(1)(vii)(D))

(2)  FSA is responsible for determining whether the party who converts a wetland is a third party.  (7 CFR Section 12.6(b)(3)(vii))

(3)  FSA will notify NRCS when a third-party exemption is approved.  NRCS will label the converted wetland TP.  The third party will be ineligible to receive USDA benefits unless the wetland functions and values are mitigated.

B.  Use of Wetlands Converted by Third Party and Eligibility of TP

Further drainage improvement on such land is not permitted without loss of eligibility for USDA program benefits unless NRCS determines that further drainage activities applied to that land would have minimal effect on the wetland functions and values in the area.  (7 CFR Section 12.5(b)(1)(vii)(D))

C.  Conversions by Drainage Districts or Similar Entities

The regulations (7 CFR Section 12.5(b)(1)(vii)(D)) specify that activities of an entity of local government, such as a water resource district, drainage district, or local road authorities, will be attributed to all persons within the jurisdiction of the district or other entity who are assessed for the activities of the district or entity.  Accordingly, where a person’s wetland is converted due to the actions of the district or entity, the person shall be considered to have caused or permitted the drainage.  However, the activities of a drainage district or other entity will not be attributed to a person to the extent that the activities of the district or entity were beyond the control of the person, and the wetland converted is not used by the person for the production of an agricultural commodity or a forage crop for harvest by mechanical means.  Wetlands converted by a drainage district or similar entity will be labeled CW.

514.50  Background

Previous editions of the National Food Security Act Manual contained labels that will not be used for certified determinations completed after the effective date of this manual.  These labels may be shown for previous determinations and maintained in the Customer Service Toolkit. 

514.51  Commenced Conversion (CC)

A.  Definition

A Commenced Conversion (CC) wetland is a wetland, farmed wetland, farmed wetland pasture, or a converted wetland on which conversion began but was not completed before December 23, 1985.  (7 CFR Section 12.20)  A commenced conversion determination allows persons who had expended or legally committed substantial funds for the primary and direct purpose of converting wetlands before December 23, 1985, to complete the conversion without jeopardizing USDA program benefits.

B.  Criteria

(1)  A CC exemption may be granted by FSA where conversion began but was not completed before December 23, 1985, if the person filed an ASCS-492 with FSA before September 19, 1988, and either of the following applies:

(i)  Began construction activities before December 23, 1985, that would convert the wetland. 

(ii)  Expended or legally committed substantial funds before December 23, 1985, for the primary and direct purpose of converting the wetland.

(2)  To be eligible for a CC determination, the person must have pursued completion of the conversion on a regular basis since initiation of the conversion project, except for delays because of circumstances beyond the person’s control.  The CC exemption will be lost if the conversion is not completed by January 1, 1995, unless there are justifiable circumstances.  Land on which such conversion activities were not completed by January 1, 1995, shall be evaluated by the same standards and qualify for the same exemptions as wetlands or farmed wetlands, as applicable.  The CC exemption only applies to the conversion of those wetlands for which construction was begun or materials and supplies purchased.

C.  Use and Maintenance

Participants may produce an agricultural commodity on areas labeled CC.  Drainage systems and other hydrologic manipulations can be maintained.  

514.52  Converted Wetland for Non-Agricultural Purposes (CWNA)

Definition

A “converted wetland for non-agricultural purposes” (CWNA) label was utilized in previous editions to denote areas of wetlands that were converted after November 28, 1990, that would not be in violation of WC provisions if the conversion activities were for purposes other than for making agricultural production possible.

514.53  Not Inventoried (NI)

Definition

The “not inventoried” (NI) label was utilized in previous editions to denote areas on a tract on which a certified determination had not been completed.

514.60  Uses and Maintenance

A.  The following table provides a summary of the wetland types, labels, criteria, authorized uses, and authorized maintenance activities for compliance with the WC provisions of the Act.

B.  When a certified wetland determination is conducted, NRCS will apply the criteria provided in this part and label the area accordingly.  This will update the previous label, if there is one.  If there is no change in a given label, updating the label will not affect a participant’s eligibility under the Act, because the criteria for identifying wetlands and exemptions have not changed.  Labels will not be updated on areas for which a certified determination is not required. 

Note:  The paragraph reference should be used to locate additional information on the wetlands identified in this table.

Name and Label	Criteria For Determination	Authorized Uses	Authorized Maintenance	Paragraph Reference
(AW) Artificial Wetland	Created wetlands on areas that were previously non-wetland.	No restrictions.	No restrictions.	Section 514.12
(CC) Commenced Conversion	Conversion began before December 23, 1985, and was approved by FSA; conversion activity was completed by January 1, 1995.	No restrictions provided activities were completed per conditions.	As stipulated in the agreement.	Section 514.51
(CPD) COE Permit w/ Mitigation	Converted wetland is exempt because the activity is authorized by a COE permit and satisfies the mitigation requirements of the Act.	Per COE permit conditions.	Per COE permit conditions.	Section 515.20
(CW) Converted Wetland	Converted after December 23, 1985, and prior to November 28, 1990.	Production of agricultural commodities or additional manipulation will cause ineligibility.	Maintenance allowed to scope and effect of original manipulation	Section 514.40
(CW) Wetland Converted by county, drainage district, or similar entity.	Converted after December 23, 1985, by drainage district or other entity and beyond a person’s direct control, but not considered third party (TP).	Production of agricultural commodities or forage for mechanical harvest or additional manipulation will cause ineligibility.	Maintenance allowed to original scope and effect of system before conversion.	Section 514.40
(CW+year) Converted wetland	Converted after November 28, 1990.	Conversion causes ineligibility, regardless of whether production of agricultural commodity occurred.	Not applicable.	Section 514.40
(CWNA)	Converted wetland for non-agricultural purposes.	Production of agricultural commodities will cause ineligibility.	No restrictions.	Section 514.52
(CWTE) Converted Wetland Technical Error	An area converted after December 23, 1985, where the conversion or production of an agricultural commodity was a consequence of an incorrect NRCS determination.	May be used for production of agricultural commodities or forage provided no manipulation is done beyond what existed as of the date of the CWTE determination.	May be maintained to the extent that existed on the date of the CWTE determination.	Section 514.41
(FW) Farmed Wetland	Manipulated and used for the production of an agricultural commodity as of December 23, 1985. If the area is not a pothole, playa, or pocosin, it is inundated for at least 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years. If the area is a pothole, playa, or pocosin, it is inundated for at least 7 consecutive days or saturated for at least 14 consecutive days during the growing season in most years. Not abandoned.	May be used for production of agricultural commodities or forage.	May be maintained to the extent that existed before December 23, 1985, if “as- built” records exist. May be maintained to the extent that existed on December 23, 1985, if no “as- built” records exist.	Section 514.31
(FWP) Farmed Wetland Pasture and Hayland	Manipulated and used for pasture or hay as of December 23, 1985. Is inundated for at least 7 consecutive days or saturated for 14 days during the growing season. Not abandoned.	May be used for production of agricultural commodities or forage.	May be maintained to the extent that existed before December 23, 1985, if “as- built” records exist. May be maintained to the extent that existed on December 23, 1985, if no “as- built” records exist.	Section 514.32
(MIW) Mitigation Exemption	Converted wetland is exempt because mitigation has occurred according to an NRCS-approved plan.	As stipulated in the mitigation agreement.	As stipulated in the mitigation agreement.	Section 515.10
(MW) Minimal Effect Exemption	Converted wetland is exempt because conversion is determined to have a minimal effect, individually and cumulatively, on the wetland functions in the watershed.	As stipulated in the minimal effect agreement, if applicable.	Only those activities stipulated in the minimal effect agreement, if applicable.	Section  515.0
(MWM) Mitigation Site	Site of wetland restoration, enhancement, or creation serving as mitigation for MIW site.	As stipulated in Mitigation Plan/Agreement.	As stipulated  in Mitigation Plan/Agreement	Section 515.10
(NI) Not Inventoried	Used when a wetland determination is not conducted.	Can determine only after a certified wetland determination is completed for the area labeled NI.	Can determine only after a certified wetland determination is completed for the area labeled NI.	Section 514.53
(NW) Nonwetland	Does not meet wetland criteria.  Also includes wetlands converted before December 23, 1985, but a commodity crop was not produced and the area does not meet wetland criteria.  The area has not been abandoned.	No restrictions.	No restrictions unless manipulation would convert adjacent wetlands.	Section 514.20
(PC) Prior Converted Cropland	Wetland converted to cropland before December 23, 1985, and as of December 23, 1985, was capable of being cropped and did not meet farmed wetland hydrology criteria.	No restrictions.	No restrictions unless manipulation would convert adjacent wetlands.	Section 514.30
(TP) Third Party Exemption	A wetland converted after December 23, 1985; by a third party who is not associated with the participant, and without the participant’s collusion, fraud, scheme, or device.  A third party does not include predecessors in interest on the tract or drainage districts or other local government entities.	May be used for production of agricultural commodities or forage.	Further drainage improvement will cause ineligibility.	Section 514.42
(W) Wetland	Meets wetland criteria. Not converted after December 23, 1985. Also, includes areas previously identified as FW or FWP, which have been abandoned.	May be farmed under natural conditions without removal of woody vegetation.	At level needed to maintain original system on FW, FWP, and PC.  Must not convert additional wetlands or exceed original scope and effect of drainage system.	Section 514.10
(WX) Wetlands that have been manipulated	Wetlands that have been manipulated but not for the purpose of or making possible production of an agricultural commodity.	Would cause ineligibility if production was later made possible.	No restrictions as long as production not made possible, including on an adjacent wetland.	Section 514.11