[Federal Register Volume 83, Number 235 (Friday, December 7, 2018)]
[Rules and Regulations]
[Pages 63046-63052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26521]


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DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 12

[NRCS-2018-0010]
RIN 0578-AA65


Highly Erodible Land and Wetland Conservation

AGENCY: Office of the Secretary, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Department of Agriculture (USDA) is issuing an 
interim rule for the Highly Erodible Land and Wetland Conservation 
Compliance provisions of the Food Security Act of 1985, as amended. 
This rulemaking clarifies how USDA delineates, determines, and 
certifies wetlands located on subject land in a manner sufficient for 
making determinations of ineligibility for certain USDA program 
benefits. USDA is seeking comments from the public about these 
clarifications that will be considered prior to issuing a final rule.

DATES: Effective December 7, 2018. Comments must be received February 
5, 2019.

ADDRESSES: Comments should be submitted, identified by Docket Number 
NRCS-2018-0010, using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or hand-delivery: Public Comments Processing, 
Attention: National Leader for Wetland and Highly Erodible Land 
Conservation, USDA, Natural Resources Conservation Service, 1400 
Independence Avenue SW, Washington, DC 20250.
    NRCS will post all comments on http://www.regulations.gov. In 
general, personal information provided with comments will be posted. If 
your comment includes your address, phone number, email, or other 
personal identifying information (PII), your comments, including PII, 
may be available to the public. You may ask in your comment that your 
PII be withheld from public view, but this cannot be guaranteed.
    This rule also may be accessed, and comments submitted, via the 
internet.

FOR FURTHER INFORMATION CONTACT: For specific questions about this 
document, please contact Jason Outlaw at (202) 720-7838 or 
Jason.outlaw@wdc.usda.gov.

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications

Executive Order 12866

    This rule is not a ``significant regulatory action'' under 
Executive Order 12866.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because USDA is not required by 5 U.S.C. 533 or any other provisions of 
law to publish a notice of proposed rulemaking with respect to the 
subject matter of this rule.

Environmental Evaluation

    It has been determined through an environmental assessment that the 
issuance of this interim final rule will not have a significant impact 
upon the human environment. Copies of the environmental assessment may 
be obtained by contacting Karen Fullen at (503) 273-2404 or 
Karen.fullen@por.usda.gov.

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials. The 
objectives of the Executive Order are to foster an intergovernmental 
partnership and a strengthened federalism, by relying on State and 
local processes for State and local government coordination and review 
of proposed Federal Financial assistance and direct Federal 
development. This program is not subject to Executive Order 12372, 
which requires consultation with State and local officials.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule will not preempt State or local laws, 
regulations, or policies unless they present an irreconcilable conflict 
with this rule. Before any judicial action may be brought regarding the 
provisions of this rule, appeal provisions of 7 CFR parts 11, 614, and 
780 must be exhausted.

Executive Order 13132

    This rule has been reviewed under Executive Order 13132, 
``Federalism.'' The policies contained in this rule do not have any 
substantial direct effect on States, on the relationship between the 
Federal Government and the States, or

[[Page 63047]]

on the distribution of power and responsibilities among the various 
levels of government, nor does this rule impose substantial direct 
compliance costs on State and local governments; therefore, 
consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed in accordance with Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 requires Federal agencies to 
consult and coordinate with Tribes on a government-to-government basis 
on policies that have Tribal implications, including regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian Tribes, on the relationship between the Federal Government 
and Indian Tribes or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.
    USDA has assessed the impact of this rule on Indian Tribes and 
determined that this rule does not, to our knowledge, have Tribal 
implications that require Tribal consultation under Executive Order 
13175. If a Tribe requests consultation, the Natural Resources 
Conservation Service (NRCS) will work with the USDA Office of Tribal 
Relations to ensure meaningful consultation is provided.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the unfunded Mandates Reform Act of 1995, 
Public Law 104-4, the effects of this rulemaking action on State, 
local, and Tribal governments, and the public have been assessed. This 
action does not compel the expenditure of $100 million or more by any 
State, local, or Tribal governments, or anyone in the private sector; 
therefore, a statement under Section 202 of the Unfunded Mandates 
Reform Act of 1995 is not required.

Federal Assistance Programs

    This rule has a potential impact on participants for many programs 
listed in the Catalog of Federal Domestic Assistance in the Agency 
Program Index under the Department of Agriculture.

Paperwork Reduction Act

    Section 1246 of the Food Security Act of 1985 provides that 
regulations issued under Title XII are exempt from the requirements of 
the Paperwork Reduction Act (44 U.S.C. Chapter 35).

E-Government Act Compliance

    USDA is committed to complying with the E-Government Act to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

Discussion of Provisions

    Title XII of the Food Security Act of 1985, as amended (the 1985 
Act), encourages participants in USDA programs to adopt land management 
measures by linking eligibility for USDA program benefits to farming 
practices on highly erodible land and wetlands. In particular, the 
highly erodible land conservation (HELC) provisions of the 1985 Act 
provide that after December 23, 1985, a program participant is 
ineligible for certain USDA program benefits for the production of an 
agricultural commodity on a field in which highly erodible land is 
predominant. Additionally, the wetland conservation (WC) provisions of 
the 1985 Act provide that after December 23, 1985, a program 
participant is ineligible for certain USDA program benefits for the 
production of an agricultural commodity on a converted wetland, or 
after November 28, 1990, for the conversion of a wetland that makes the 
production of an agriculture commodity possible. The Agricultural Act 
of 2014 amended the 1985 Act to expand the HELC/WC requirements to 
encompass crop insurance benefits, and thus, producers obtaining 
Federally reinsured crop insurance must be in compliance with an NRCS-
approved conservation plan for all highly erodible land; not plant or 
produce an agricultural commodity on a wetland converted after February 
7, 2014; and not have converted a wetland after February 7, 2014, to 
make possible the production of an agricultural commodity. The 1985 
Act, however, affords relief to program participants who meet certain 
conditions identified under the 1985 Act by exempting such actions from 
the ineligibility provisions.
    The USDA regulations implementing the HELC and WC provisions of the 
1985 Act are found at 7 CFR part 12. The regulations at 7 CFR part 12 
list actions that may result in a determination of ineligibility, the 
program benefits that are at risk, and the conditions under which these 
activities can occur without losing program eligibility. The 
regulations are divided into three subparts. Subpart A describes the 
terms of ineligibility, USDA programs encompassed by its terms, the 
list of exemptions from ineligibility, the agency responsibilities, and 
conditions that apply when persons adversely affected by an agency 
determination request an appeal. Subpart B describes in greater detail 
the technical aspects of the HELC provisions, including the technical 
criteria for identification of highly erodible lands, criteria for 
highly erodible field determinations, and requirements for the 
development of conservation plans and conservation systems. Subpart C 
describes in greater detail the technical aspects of the WC provisions, 
including the criteria for determining a wetland, the criteria for 
determining a converted wetland, and the uses of wetlands and converted 
wetlands that can be made without losing program eligibility.
    USDA policy guidance regarding implementation of the HELC and WC 
provisions is found in the current edition of the NRCS National Food 
Security Act Manual (NFSAM), including the procedures for how to 
delineate wetlands and make wetland determinations in accordance with 
Subpart C of 7 CFR part 12. This rule provides transparency to USDA 
program participants and stakeholders concerning how USDA delineates, 
determines, and certifies wetlands. It also allows program participants 
to better understand whether their actions may result in ineligibility 
for USDA program benefits. USDA requests public comment and will 
consider incorporating such public comment into its policy guidance.

Wetland Determination Criteria--Policy and Regulatory Clarifications

The Complexity of Identification of Wetlands in the Agricultural 
Landscape

    The complexity of making a wetland determination in highly altered 
agricultural landscapes requires flexibility in the approach used to 
identify wetlands. Since 1986, USDA has provided the internal agency 
policy on making HELC and WC determinations in the NFSAM. In response 
to multiple statutory changes and changes to the science, those methods 
have evolved over the decades since passage of the WC provisions. The 
regulations and internal agency policy have also been revised many 
times over this 33-year period. The purpose of this interim rule, with 
request for comment, is to codify many technical portions of the 
existing agency policy that have not undergone public review and 
comment.

Overview of Wetland Determination Procedures

    USDA developed the wetland determination procedures from the 
statutory framework for the WC provisions. In particular, section 
1201(a) of the 1985 Act defines ``wetland'' as follows:


[[Page 63048]]


    (27) The term ``wetland'', except when such term is part of the 
term ``converted wetland'', means land that--
    (A) has a predominance of hydric soils;
    (B) is inundated or saturated by surface or groundwater at a 
frequency and duration sufficient to support a prevalence of 
hydrophytic vegetation typically adapted for life in saturated soil 
conditions; and
    (C) under normal circumstances does support a prevalence of such 
vegetation. For purposes of this Act, and any other Act, this term 
shall not include lands in Alaska identified as having high 
potential for agricultural development which have a predominance of 
permafrost soils.

    Section 1201(b) of the 1985 Act requires the Secretary to develop 
``(1) criteria for the identification of hydric soils and hydrophytic 
vegetation; and (2) lists of such soils and such vegetation.''
    USDA then defined in the regulation that a wetland determination is 
``a decision regarding whether or not an area is a wetland, including 
identification of wetland type and size.'' Thus, the term wetland 
determination for the WC provisions includes a basic three-step 
process: (1) Wetland identification; (2) application of exemption 
criteria from Sec.  12.5(b) of this part, to determine the appropriate 
wetland conservation label; and (3) determination of size of each area 
delineated on the certified wetland determination map.
    Step One--Wetland Identification. During the first step of wetland 
identification, NRCS determines whether the site meets the 1985 Act's 
definition of wetland ``under normal circumstances.'' Normal 
circumstances are those conditions (vegetation, soils, and hydrology) 
that would occur in the absence of any post-1985 drainage actions, 
without regard to whether the vegetation has been removed or 
significantly altered, and during the wet portion of the growing season 
under normal climatic conditions.
    NRCS staff utilize four different sources of information when 
deciding whether an area would, under normal circumstances, meet the 
1985 Act definition of wetland, including 7 CFR part 12, the 1987 Corps 
of Engineers Wetland Delineation Manual (Corps Manual), the regional 
supplements to the Corps Manual, and the Food Security Act Wetland 
Identification Procedures (FSA Procedures) located in the NFSAM, Part 
514. The FSA Procedures are not stand-alone procedures, but rather, 
they supplement the Corps methods when identifying wetlands for Food 
Security Act purposes. The Corps Manual provides for three levels:
     A Level 1 determination is the use of only off-site 
resources to confirm the presence or absence of a prevalence of 
hydrophytic vegetation, a predominance of hydric soil, and the 
occurrence of wetland hydrology. Each of the three factors is assessed 
independently of the others. In some States, NRCS augments the Corps 
Level 1 methods with State Off-Site Methods (SOSM), tailored to unique 
wetland identification challenges in the State. SOSM identify 
additional off-site indicators and processes that can be used to assist 
in the determinations of hydrophytic vegetation, hydric soils, and 
wetland hydrology.
     A Level 2 determination is based on the use of on-site 
methods from the Corps Manual and field indicators from the regional 
supplements for each of the three factors. As appropriate, the FSA 
Procedures augment the Corps methods. If a Level 2 approach is used, 
SOSM would not be used since SOSM are designed to augment off-site 
methods.
     A Level 3 determination is a combination of the use of on-
site and off-site indicators or methods among the three factors, but 
not within a single factor. For example, a Level 3 determination might 
utilize off-site methods or indicators for soils, then utilize on-site 
methods and indicators for vegetation and hydrology. If applicable, 
SOSM would be limited to the factor(s) where a decision is made 
exclusively from off-site methods/resources, so in this example, SOSM 
would be used for soils, but not for vegetation or hydrology.
    The findings in Step 1 results are recorded on a wetland 
identification base map indicating the area(s) in question as either 
wetland or non-wetland as defined in the 1985 Act.
    Step 2--Determination of Food Security Act Exemptions/Labels. In 
this step, NRCS utilizes the wetland/non-wetland base map produced from 
Step 1 to assign WC labels. WC labels are based on exemptions to the WC 
provisions, as provided in Sec.  12.5(b) of this part.
    Step 3--Sizing of Wetlands. The last step is to determine the size 
of each area delineated and assigned a WC label. The delineations, WC 
labels, and sizes of each delineation are documented on the certified 
wetland determination map provided to the program participant.

Determining Normal Precipitation

    In Step 1 (wetland identification) of the wetland determination 
process, NRCS applies the FSA Procedures to determine if a site ``under 
normal circumstances'' meets the 1985 Act wetland definition. ``Normal 
circumstances'' as used in the statutory wetland definition is not 
defined in Sec.  12.2 (Definitions) of this part but is discussed in 
Sec.  12.31(b) only as it relates to a determination of hydrophytic 
vegetation. In the FSA Procedures, the term is defined as it relates to 
the entire wetland identification process. The consideration of normal 
circumstances includes assessing how disturbance (e.g., tillage, 
mowing, grazing, application of herbicides, and drainage) might alter 
the site conditions, and how climate (e.g., dry season, wet season, 
snow pack, drought, and excessive precipitation) might alter the site 
conditions. NRCS policy requires the consideration of normal 
circumstances for each of the three wetland diagnostic factors.
    To determine normal circumstances, NRCS is required to determine if 
the indicators (on-site or off-site) are reflective of normal climatic 
conditions. NRCS is identifying in part 12 the criteria that NRCS 
commonly uses to determine normal climatic conditions.
    The NRCS National Water and Climate Center compiles precipitation 
data using information from National Oceanic and Atmospheric 
Administration weather stations and publishes normal precipitation data 
that encompass 30 years of weather data. NRCS uses this weather data in 
Chapter 19 of the NRCS National Engineering Field Handbook Climate 
Analysis for Wetlands Tables (WETS). The tables can be updated to 
encompass the most recent 30-year cycle of data and are available in 
the Field Office Technical Guide.
    The agency is concerned that the forward adjustment of 
precipitation data will result in unfair and inconsistent 
determinations and will fail to best represent conditions in or prior 
to 1985, a critical decision common to many exemptions. To address this 
concern, NRCS is establishing a fixed precipitation data set. This data 
set will provide continued certainty to agricultural producers, and the 
1985 date of enactment of the WC provisions falls near the mid-point of 
this data set.

Use of Corps Manual

    NRCS utilizes parts of the 1987 Army Corps of Engineers Wetland 
Delineation Manual and approved regional supplements, subject to 
agency-defined variances required to implement the 1985 Act provisions. 
NRCS has received questions about the basis for its use of the 1987 
Corps Manual.
    In 1980, the Environmental Protection Agency (EPA) issued interim 
guidance for identifying wetlands under Section 404 of the Clean Water 
Act. In 1980 and

[[Page 63049]]

1982, the Army Corps of Engineers and EPA published a joint rule and 
provided their definition of a wetland as:
    ``Those areas that are inundated or saturated by surface or ground 
water 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. Wetlands generally 
include swamps, marshes, bogs, and similar areas.'' (33 CFR Section 
328.3)
    This definition was used by the Corps and EPA as they developed and 
published the Technical Report Y-87-1 Corps of Engineers Wetlands 
Delineation Manual and Wetland Identification and Delineation Manual 
(EPA 1988 Manual).
    In the 1985 Act, Congress defined wetlands subject to the WC 
provisions as:

land that has a predominance of hydric soils and that is inundated 
or saturated by surface or groundwater at a frequency and duration 
sufficient to support, and that under normal circumstances does 
support, a prevalence of hydrophytic vegetation typically adapted 
for life in saturated soil conditions.

In the Urgent Supplemental Appropriation Act, 1986, Congress added the 
following to the wetland definition:

this term shall not include lands in Alaska identified as having 
high potential for agricultural development which have a 
predominance of permafrost soils.

    The 1985 Act definition represents the first time that Congress 
defined the term ``wetland.'' Also, for the first time in Federal law, 
Congress also provided a definition for the terms ``hydric soil'' and 
``hydrophytic vegetation.'' These three congressional definitions in 
the 1985 Act only differ slightly from what is used by the Corps and 
EPA for Section 404 of the Clean Water Act. The Manager's Report to the 
1990 Act acknowledges that NRCS used wetland delineation methodology 
that had been developed in consultation with other Federal and State 
agencies.
    Since the WC provisions contain specific definitions, exemptions, 
and guidance for its implementation, where these provisions differ from 
those in the Corps Manual, NRCS identifies these differences in the FSA 
procedures. Thus, NRCS adopted the use of the Corps methods, but not in 
their entirety. Where needed to address differences in the two laws, 
and where needed to address unique challenges of delineating wetlands 
on agricultural lands, NRCS provides variances to the Corps methods.
    To avoid confusion, NRCS clearly informs the program participant 
that the determinations are for purposes of the WC provisions only, and 
that the producer should contact the Army Corps of Engineers for 
clarification about whether a particular activity will require a Clean 
Water Act Section 404 permit.

Definition of Pothole, Playa, and Pocosin

    Current language in 7 CFR part 12 distinguishes farmed wetland 
hydrology criteria on whether the area is a pothole, playa, or pocosin. 
These three landforms are not defined in the regulation. Since it is a 
critical determination about the scope of the restrictions to which a 
producer will be subject, there is a need for a regulatory definition 
to provide consistency in the determination of the presence of these 
special land forms. NRCS has longstanding definitions in policy, 
located in the appendix to the NFSAM; however, the appendix was not 
transferred to the current electronic policy document storage system. 
NRCS is amending Sec.  12.2 to add these definitions to the WC 
regulation.

Hydrology Criteria for Farmed Wetland, Farmed Wetland Pasture, and 
Prior Converted Cropland

    The prior hydrologic criteria for farmed wetland and farmed wetland 
pasture was based strictly on the quantification of the number of days 
that the wetland experienced inundation or saturation during the 
growing season. Further, for farmed wetland, these criteria differed 
depending on the landscape position of the wetland, with playa, 
pothole, and pocosin requiring 7 days of inundation or 14 of 
saturation, and all other landscape positions requiring 15 consecutive 
days of inundation.
    Quantification of a number-based hydrologic criteria is both 
inefficient and cost prohibitive, and if practiced, requires the 
installation of monitoring equipment. For this reason, other Federal 
agencies with responsibilities for wetland conservation or regulation 
either did not adopt or have since abandoned such an approach in favor 
of one that uses more readily observable and easily quantifiable 
criteria. The agency has itself moved from a number-based approach to 
such an approach, with criteria that are based on observable conditions 
resulting from such inundation or saturation and is therefore more 
consistent with the agency's statutory definition of ``wetland.'' 
Codifying this indicator-based approach as the current science and 
approach by NRCS to make a decision on wetland hydrology will improve 
transparency and understanding by program participants and the general 
public.

Best Drained Condition

    The term ``best drained condition'' is introduced and defined to 
provide clarity regarding a long-standing and practiced statutory 
concept that is fundamental to the identification of wetlands that 
experienced drainage manipulations prior to enactment of the 1985 Act, 
and to meet congressional intent to provide certainty to persons 
concerning the status of such land and its future use. This long-
standing concept provides that a person has the statutory right to 
maintain hydrologic conditions on wetlands that were converted to crop 
production prior to the 1985 Act, and are not abandoned, to the extent 
that those conditions existed on or before December 23, 1985.

Wetland Hydrology

    The definition of wetland requires the presence of hydrology 
sufficient to support a prevalence of hydrophytic vegetation. 
Hydrology, as it relates to the definition of ``wetland'' contained in 
Sec.  12.2, is further referenced throughout part 12 as a diagnostic 
factor for which consideration is required during the identification of 
wetlands. To provide clarification concerning this requirement, the 
definition of wetland hydrology and its related identification 
procedures are being incorporated into part 12, with associated 
reference to the underlying considerations of ``best drained 
condition'' and the determination of normal climatic conditions in 
Sec.  12.31.

Tract Versus Field

    Wetland determinations can be conducted on different areas of an 
agricultural operation. In some cases, the wetland determinations are 
conducted on a farm tract, while in other instances only specific farm 
fields or areas within a field are assessed. The USDA program 
participant initiates the wetland determination with a request 
submitted to the Farm Service Agency on an AD-1026. If an activity that 
could potentially result in a determination of ineligibility is 
planned, the program participant identifies the location of the 
activity on a map. NRCS will conduct wetland determinations on a field 
or sub-field basis except when the producer requests a determination 
for their entire farm tract. To clarify that NRCS will conduct a 
wetland determination only on the area specified by the USDA program 
participant,

[[Page 63050]]

NRCS is replacing the term ``tract'' with the term ``field or sub-
field'' in 7 CFR 12.30(c), so that it is clear that all wetland 
determinations will be done on a field or sub-field basis and will be 
considered certified wetland determinations.

Wetland Minimal Effect Determinations

    Part 12 provides for a minimal effect exemption for wetland 
conversions that have only a minimal effect on the functional 
hydrological and biological value of the wetland and other wetlands in 
the area. Current regulatory language requires that the minimal effect 
determination be based upon a functional assessment made during an on-
site evaluation of all wetlands in the area. This requirement is overly 
burdensome, and on-site evaluations can seldom be made on property not 
controlled by the subject person. Removing the on-site requirement will 
better allow USDA to provide this statutory exemption to USDA program 
participants, and such removal will not provide a substantially 
different decision as would otherwise occur, especially considering 
that assessments can be conducted remotely based on a general knowledge 
of wetland conditions in the area.

Wetland Determination Certification

    NRCS began making wetland determinations subsequent to the 
enactment of the 1985 Act and the interim final rule for 7 CFR part 12 
promulgated in 1986. These wetland determinations were completed 
utilizing soil surveys, U.S. Fish and Wildlife Service National Wetland 
Inventory maps, and USDA aerial imagery or site visits. Producers were 
provided appeal rights with these determinations. In the 1990 Farm 
Bill, the concept of certification of wetland determinations was 
incorporated into the WC provisions. In particular, as described in the 
Manager's Report to the 1990 Farm Bill:

    [T]he certification process is to provide farmers with certainty 
as to which of their lands are to be considered wetlands for 
purposes of Swampbuster. The Managers note that the current USDA 
wetland delineation process involves the use of substantial 
materials to make an initial determination in the field office, 
developed in consultation with other appropriate Federal and State 
agencies. Wetlands identified in this process are delineated on maps 
which are then mailed to producers for review. If the producer finds 
such map to be in error, and the USDA agrees that an error has been 
made, then the map is corrected. If the USDA does not agree that 
there is an error in the map, and the producer continues to believe 
so, then the producer may appeal such determination. The Managers 
find that this process is adequate for certification of any new maps 
delineated after the date of enactment of this Act. For maps 
completed prior to the date of enactment of this Act, the Managers 
intend for producers to be notified that their maps are to be 
certified and that they have some appropriate time for appeal. In 
this circumstance, producers who had not already been mailed their 
maps should be given a map for their review.

    The changes made to 7 CFR part 12 in 1991 included the following 
incorporation of certification at Sec.  12.30(c) (1991):

    SCS determinations of wetland status and any applicable 
exemptions granted under this part shall be delineated on a map of 
the farm or tract. Notification of the wetland determination, a copy 
of the wetland delineation and the SCS appeal procedures shall be 
provided to each person who completes a Form AD-1026. The wetland 
determination and wetland delineation shall be certified as final by 
the SCS official 45 days after providing the person notice or, if 
appeal is filed with SCS, after a final appeal decision is made by 
SCS.

    By statute, as clarified in the 1990 Conference Managers Report, 
determinations made pursuant to the 1991 rule are certified 
determinations when the producer was provided a copy of the 
determination and had been provided appeal rights. The producer was not 
required to appeal the determination for the determination to become 
certified. In June of 1991, USDA issued a revised CPA-026 form that 
included certification language in the agency signature block and 
contained the applicable appeal rights on the back side of the person 
copy.
    The certification provisions were further strengthened in the 1996 
Farm Bill, due in part to a moratorium that had been placed on wetland 
determinations by the Secretary of Agriculture in 1995. In response to 
these changes, in the 1996 interim final rule USDA identified that all 
wetland determinations made after its effective date of July 3, 1996, 
would be considered a certified wetland determination. A final 
certification remains valid and in effect as long as the area is 
devoted to an agricultural use or until such time as the person, 
affected by the review, requests review of the certification if ``a 
natural event alters the topography or hydrology of the subject land to 
the extent that the final certification is no longer a reliable 
indication of site conditions, or if NRCS concurs with an affected 
person that an error exists in the current wetland determination.'' 7 
CFR 12.30(c)(6).
    NRCS, program participants, farm organizations, conservation 
organizations, and others have long focused upon the certification 
process for NRCS wetland determinations because of the certainty that 
such determinations provide to program participants regarding future 
business decisions. Through this rulemaking, USDA is adding further 
guidance in the WC regulation to improve clarity on the statutory 
concept of certification, particularly for those certified 
determinations issued between 1990 and 1996.

List of Subjects in 7 CFR Part 12

    Administrative practice and procedure, Coastal zone, Crop 
insurance, Flood plains, Loan programs--agriculture, Price support 
programs, Reporting and recordkeeping requirements, Soil conservation.

    For the reasons explained above, USDA amends 7 CFR part 12 as 
follows:

PART 12--HIGHLY ERODIBLE LAND CONSERVATION AND WETLAND CONSERVATION

0
1. The authority citation for part 12 continues to read as follows:

    Authority:  16 U.S.C. 3801, 3811-12, 3812a, 3813-3814, and 3821-
3824.

0
2. Amend Sec.  12.2(a) as follows:
0
a. Add definitions, for ``Best drained condition'', ``Normal climatic 
conditions'', ``Playa'', ``Pocosin'', and ``Pothole'', in alphabetical 
order;
0
b. Revise paragraphs (4), (5), and (8) of the definition for ``Wetland 
determination''; and
0
c. Add the definition of ``Wetland hydrology'', in alphabetic order.
    The additions and revision read as follows:


Sec.  12.2   Definitions.

    (a) * * *
    Best drained condition means the hydrologic conditions with respect 
to depth, duration, frequency, and timing of soil saturation or 
inundation resulting from drainage manipulations that occurred prior to 
December 23, 1985, and that exist during the wet portion of the growing 
season during normal climatic conditions.
* * * * *
    Normal climatic conditions means the normal range of hydrologic 
inputs on a site as determined by the bounds provided in the Climate 
Analysis for Wetlands Tables or methods posted in the Field Office 
Technical Guide.
* * * * *
    Playa means a usually dry and nearly level lake plain that occupies 
the lowest parts of closed depressions (basins). Temporary inundation 
occurs primarily in response to precipitation-runoff

[[Page 63051]]

events. Playas may or may not be characterized by high water table and 
saline conditions. They occur primarily in the Southern Great Plains.
    Pocosin means a wet area on nearly level interstream divides in the 
Atlantic Coastal Plain. Soils are generally organic but may include 
some areas of high organic mineral soils.
    Pothole means a closed depression, generally circular, elliptical, 
or linear in shape, occurring in glacial outwash plains, moraines, till 
plains, and glacial lake plains.
* * * * *
    Wetland determination * * *
    (4) Farmed wetland is a wetland that prior to December 23, 1985, 
was manipulated and used to produce an agricultural commodity, and on 
December 23, 1985, did not support woody vegetation, and met the 
following hydrologic criteria:
    (i) If not a playa, pocosin, or pothole, experienced inundation for 
15 consecutive days or more during the growing season or 10 percent of 
the growing season, whichever is less, in most years (50 percent chance 
or more), as determined by having met any of the following hydrologic 
indicators:
    (A) Inundation is directly observed during a site visit conducted 
under a period of normal climatic conditions or drier;
    (B) The presence of any indicator from Group B (Evidence of Recent 
Inundation) of the wetland hydrology indicators contained in the 
applicable regional supplement to the Corps of Engineers Wetland 
Delineation Manual is observed;
    (C) The presence of conditions resulting from inundation during the 
growing season is observed on aerial imagery, and the imagery is 
determined to represent normal or drier than normal climatic conditions 
(that is, not abnormally wet); or
    (D) The use of analytic techniques, such as the use of drainage 
equations or the evaluation of monitoring data, demonstrate that the 
wetland would experience inundation during the growing season in most 
years (50-percent chance or more).
    (ii) If a playa, pocosin, or pothole experienced ponding for 7 or 
more consecutive days during the growing season in most years (50-
percent chance of more) or saturation for 14 or more consecutive days 
during the growing season in most years (50-percent chance or more) as 
determined by having met any of the following hydrologic indicators:
    (A) Inundation or saturation is directly observed during a site 
visit conducted under a period of normal climatic conditions or drier;
    (B) The presence of one primary or two secondary wetland hydrology 
indicators contained in the applicable regional supplement to the Corps 
of Engineers Wetland Delineation Manual is observed;
    (C) The presence of conditions resulting from inundation or 
saturation during the growing season is observed on aerial imagery, and 
the imagery is determined to represent hydrologic conditions that would 
be expected to occur under normal or drier than normal climatic 
conditions (that is, not abnormally wet); or
    (D) The use of analytic techniques, such as the use of drainage 
equations or the evaluation of monitoring data, demonstrate that the 
wetland would experience inundation or saturation during the growing 
season in most years (50-percent chance or more).
    (5) Farmed-wetland pasture is wetland that was manipulated and 
managed for pasture or hayland prior to December 23, 1985, and on 
December 23, 1985, experienced inundation or ponding for 7 or more 
consecutive days during the growing season in most years (50-percent 
chance or more) or saturation for 14 or more consecutive days during 
the growing season in most years (50-percent chance or more) as 
determined by having met any of the following hydrologic indicators:
    (i) Inundation or saturation is directly observed during a site 
visit conducted under a period of normal climatic conditions or drier;
    (ii) The presence of one primary or two secondary wetland hydrology 
indicators contained in the applicable regional supplement to the Corps 
of Engineers Wetland Delineation Manual is observed;
    (iii) The presence of conditions resulting from inundation or 
saturation during the growing season is observed on aerial imagery, and 
the imagery is determined to represent hydrologic conditions that would 
be expected to occur under normal, or drier than normal climatic 
conditions (that is, not abnormally wet); or
    (iv) The use of analytic techniques, such as the use of drainage 
equations or the evaluation of monitoring data, demonstrate that the 
wetland would experience inundation or saturation during the growing 
season in most years (50-percent chance or more).
* * * * *
    (8) Prior-converted cropland is a converted wetland where the 
conversion occurred prior to December 23, 1985, an agricultural 
commodity had been produced at least once before December 23, 1985, and 
as of December 23, 1985, the converted wetland did not support woody 
vegetation and did not meet the hydrologic criteria for farmed wetland.
* * * * *
    Wetland hydrology means inundation or saturation by surface or 
groundwater during a growing season at a frequency and duration 
sufficient to support a prevalence of hydrophytic vegetation.
* * * * *

0
3. Amend Sec.  12.21 by revising paragraph (c) to read as follows:


Sec.  12.21   Identification of highly erodible lands criteria.

* * * * *
    (c) Potentially highly erodible. Whenever a soil map unit 
description contains a range of a slope length and steepness 
characteristics that produce a range of LS values that result in RKLS/T 
quotients both above and below 8, the soil map unit will be entered on 
the list of highly erodible soil map units as ``potentially highly 
erodible.'' The final determination of erodibility for an individual 
field containing these soil map unit delineations will be made by an 
on-site investigation, or by use of Light Detection and Ranging or 
other elevation data of an adequate resolution to make slope length and 
steepness measurements. In any case where a person disagrees with an 
off-site determination on potentially highly erodible soils, a 
determination will be made on-site.

0
4. Amend Sec.  12.30 by revising paragraph (c)(1), and adding paragraph 
(c)(7), to read as follows:


Sec.  12.30   NRCS responsibilities regarding wetlands.

    (c) * * *
    (1) Certification of a wetland determination means that the wetland 
determination is of sufficient quality to make a determination of 
ineligibility for program benefits under Sec.  12.4. In order for a map 
to be of sufficient quality to determine ineligibility for program 
benefits, the map document must be legible to the extent that areas 
that are determined wetland can be discerned in relation to other 
ground features. NRCS may certify a wetland determination without 
making a field investigation. NRCS will notify the person affected by 
the certification and provide an opportunity to appeal the 
certification prior to the certification becoming final. All wetland 
determinations made after July 3, 1996, will be done on a field or sub-
field basis and will be considered certified wetland determinations.

[[Page 63052]]

Determinations made after November 28, 1990, and before July 3, 1996, 
are considered certified if the determination was issued on the June 
1991 version of form NRCS-CPA-026 or SCS-CPA-026, the person was 
notified that the determination had been certified, and the map 
document was of sufficient quality to determine ineligibility for 
program benefits. If issued on a different version of the form, a 
determination will be considered certified if there is other 
documentation that the person was notified of the certification, 
provided appeal rights, and the map document was of sufficient quality 
to make the determination.
* * * * *
    (7) The wetland determination process for wetland conservation 
compliance includes three distinct steps. In Step 1, wetland 
identification, it is determined if the area of interest supports a 
prevalence of hydrophytic vegetation, a predominance of hydric soils, 
and wetland hydrology under normal circumstances. In Step 2, 
determination of wetland type, it is determined if any exemptions apply 
from Sec.  12.5(b). The findings are reflected in the assignment of an 
appropriate wetland conservation compliance label. In Step 3, sizing of 
the wetland, the boundary of each wetland type determined in Step 2 is 
delineated on the certified wetland determination map.

0
5. Amend Sec.  12.31 by revising the section heading, redesignating 
paragraphs (c) through (e) as paragraphs (d) through (f), adding a new 
paragraph (c), and revising newly redesignated paragraph (e) to read as 
follows:


Sec.  12.31   Wetland identification procedures.

    (c) Wetland Hydrology. (1) Wetland Hydrology consists of inundation 
or saturation by surface or groundwater during a growing season at a 
frequency and duration sufficient to support a prevalence of 
hydrophytic vegetation.
    (2) When a wetland is affected by drainage manipulations that 
occurred prior to December 23, 1985, wetland hydrology shall be 
identified on the basis of the best-drained condition resulting from 
such drainage manipulations.
    (3) The determination of wetland hydrology will be made in 
accordance with the current Federal wetland delineation methodology in 
use by NRCS at the time of the determination.
    (4) When making a decision on wetland hydrology, NRCS will utilize 
a fixed precipitation date range of 1971-2000 for determining normal 
climatic conditions.

* * * * *

    (e)(1) Minimal effect determination. For the purposes of Sec.  
12.5(b)(1)(v), NRCS shall determine whether the effect of any action of 
a person associated with the conversion of a wetland, the conversion of 
wetland and the production of an agricultural commodity on converted 
wetland, or the combined effect of the production of an agricultural 
commodity on a wetland converted by someone else has a minimal effect 
on the functions and values of wetlands in the area. Such determination 
shall be based upon a functional assessment of functions and values of 
the subject wetland and other related wetlands in the area. The 
assessment of functions and values of the subject wetland will be made 
through an on-site evaluation. Such an assessment of related wetlands 
in the area may be made based on a general knowledge of wetland 
conditions in the area. A request for such determination will be made 
prior to the beginning of activities that would convert the wetland. If 
a person has converted a wetland and then seeks a determination that 
the effect of such conversion on wetland was minimal, the burden will 
be upon the person to demonstrate to the satisfaction of NRCS that the 
effect was minimal.

    (2) Scope of minimal-effect determination. The production of an 
agricultural commodity on any portion of a converted wetland in 
conformance with a minimal-effect determination by NRCS is exempt under 
Sec.  12.5(b)(1)(v). However, any additional action of a person that 
will change the functions and values of a wetland for which a minimal-
effect determination has been made shall be reported to NRCS for a 
determination of whether the effect continues to be minimal. The loss 
of a minimal-effect determination will cause a person who produces an 
agricultural commodity on the converted wetland after such change in 
status to be ineligible, under Sec.  12.4, for certain program 
benefits. In situations where the wetland values, acreage, and 
functions are replaced by the restoration, enhancement, or creation of 
a wetland in accordance with a mitigation plan approved by NRCS, the 
exemption provided by the determination will be effective after NRCS 
determines that all practices in a mitigation plan are being 
implemented.

    Dated: November 28, 2018.
Stephen L. Censky,
Deputy Secretary.
[FR Doc. 2018-26521 Filed 12-6-18; 8:45 am]
 BILLING CODE 3410-16-P