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Published on January 4, 2008

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Wetlands Protection Policy, Swampbuster, and 404 Permitting:  Wetlands Protection Policy, Swampbuster, and 404 Permitting Applying them correctly Sacramento, CA 6/15/2005 Program Contacts:  Program Contacts Jennifer McCarthy Wetland Compliance Coordinator (202) 690-1588 Chris Hamilton Mitigation Coordinator and Acting Watershed Surveys and Planning Program Manager (202) 690-3501 Nobody at NRCS wanted the job…:  Nobody at NRCS wanted the job… Issues Raised by NRCS Staff in August 2004 Conference Call:  Issues Raised by NRCS Staff in August 2004 Conference Call Perception NRCS management is not committed to conservation compliance Findings of noncompliance lead to heavy workload when appealed Wetland Compliance is not accounted for as a workload item Issues, continued:  Issues, continued Web application needs minor adjustments to wetland reporting part 1994 Ag MOA is outdated and problematic FSA needs to better inform producers of implications related to self-certification NFSAM is in serious need of revision Issues, continued:  Issues, continued FSA County Committees routinely make “good faith” determinations that invalidate NRCS’s non-compliance determinations FSA is digitizing base maps without including HELC and WC information GM Title 190 Wetland Protection Policy is obsolete and needs revision Wetland Responsibilities:  Wetland Responsibilities Conservation Compliance (Swampbuster) Executive Order 11990 and Wetland Protection Policy Swampbuster :  Swampbuster Ineligible for USDA program benefits if: Produce a commodity crop on wetlands converted after December 23, 1985; or Convert wetlands after November 28, 1990 Executive Order 11990:  Executive Order 11990 Signed by President Carter on May 24, 1977 “to avoid to the extent possible the long and short term adverse impacts associated with the destruction or modification of wetlands and to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative” “Section 1. (a) Each agency shall provide leadership and shall take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities…” when “providing Federally undertaken, financed, or assisted construction and improvements” Executive Order 11990:  Executive Order 11990 Executive Order 11990 is covered by NRCS’ wetland protection policy Separate from Swampbuster provisions of the 1985 Food Security Act Broader - NRCS technical and financial assistance activities impacting wetlands are supposed to be conducted in accordance with this policy Executive Order 11990:  Executive Order 11990 A particular wetland may not be subject to the WC provisions, such as artificial wetlands or prior converted cropland, but it may still be subject to Executive Order 11990 and NRCS’s wetland protection policy. Wetlands :  Wetlands Technical Criteria vs. Labels What is a wetland?:  What is a wetland? Wetlands are defined[1] as lands that: have a predominance of hydric soil; and are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and under normal circumstances do support a prevalence of hydrophytic vegetation. [1] 16 U.S.C. §3801 and 7 CFR §12.2 To identify wetlands, use Corps of Engineers’ 1987 Wetland Delineation Manual :  To identify wetlands, use Corps of Engineers’ 1987 Wetland Delineation Manual (with subsequent guidance or regional supplements) Food Security Act Labels:  Food Security Act Labels The determination of whether or not subject land is wetland is based on technical criteria and is independent of assigned wetland labels. Labels are used to identify land with exemptions or restrictions under the Act. Such land may or may not have positive indicators for wetland criteria and meet the definition of wetland. Certifying Wetland Determinations:  Certifying Wetland Determinations Certification of a wetland determination means that the wetland determination is of sufficient quality to make a determination of ineligibility for USDA program benefits. NRCS will notify the person affected by the certification and provide an opportunity to appeal it before it becomes final. The wetland determination and wetland delineation shall be certified as final by the NRCS 30 days after providing the person notice of certification or, if an appeal is filed with USDA, after the administrative appeal procedures are exhausted Certifying Wetland Determinations:  Certifying Wetland Determinations In the case of an appeal, NRCS will review and certify the accuracy of the determination of all lands subject to the appeal to ensure that the subject lands have been accurately delineated. Prior to a decision being rendered on the appeal, NRCS will conduct an on-site investigation of the subject land. AD-1026 :  AD-1026 AD-1026:  AD-1026 CPA-038:  CPA-038 1994 Ag MOA – Key Points:  1994 Ag MOA – Key Points The MOA was developed to streamline the wetland delineation process on agricultural lands, to promote consistency between the CWA and the FSA, and to provide predictability and simplification for USDA program participants. The 1996 and 2002 FSA amendments changed the wetland conservation provisions, producing inconsistency between them and the CWA, and making the 1994 MOA obsolete and illegal for NRCS to follow. 1994 Ag MOA – Key Points:  1994 Ag MOA – Key Points USDA withdrew from the MOA on January 18, 2005 and the Corps of Engineers (COE) withdrew from it on January 24, 2005. NRCS and the COE developed joint guidance for both agencies to use when conducting wetland determinations. This replaces the procedures in the former MOA. NRCS-COE Joint Guidance:  NRCS-COE Joint Guidance Highlights of the Joint Guidance: NRCS will conduct wetland determinations for the purpose of implementing swampbuster provisions of the FSA, and in providing other financial and technical assistance authorized by law. The COE will conduct wetland determinations for CWA purposes. Both agencies will inform landowners that their wetland determinations may not apply to the other agency’s wetland programs. Joint Guidance:  Joint Guidance Prior-converted cropland Confidentiality Local Agreements Expiration of wetland determinations Investigating violations Appeals Documentation!!!:  Documentation!!! If it’s not documented in the file, it doesn’t exist!!! In making any decision, NRCS staff must address two essential questions: What is the authority for this action (statutory and regulatory)? Is the action sufficiently documented? Document the rationale for how you have made your calls Changes to NFSAM:  Changes to NFSAM Procedures, not policy Eliminating some labels—CWNA, CWTE Duration of Certification Separation of wetland technical criteria and labels (e.g., PC, NW, AW) Adding Categorical Minimal Effects Wetland Protection Policy:  Wetland Protection Policy Applies to all wetlands, even those not subject to Swampbuster (e.g. AW, “wet” PCs) Sequencing is required—cannot go directly to mitigation New draft completed Questions about Wetland Protection Policy:  Questions about Wetland Protection Policy Three areas where we have had questions about the Wetland Protection Policy: Spring development Artificial wetlands Nationwide Permit 27 – Stream and wetland restoration activities Nationwide Permit 40 – Agricultural Activities Because it is there Spring Development:  Spring Development Does the activity impact a wetland? Does activity make possible production of ag commodity? YES – subject to Swampbuster NO Does activity impact wetlands? YES – Technical Assistance Policy applies: Consider: Are there practicable alternatives? Can impacts to wetlands be avoided? Can impacts to wetlands be minimized? Compensation Artificial Wetlands:  Artificial Wetlands Comments in review of the policy Primary question to ask yourself: Could the producer shut off the water without a CWA Section 404 permit? Irrigation induced wetlands and excavated basins EE should evaluate whether a portion of the wetland occurred naturally Artificial Wetlands:  Artificial Wetlands May still provide important functions Mitigation may not be required for E.O. 11990 but other concerns should be watched for in the Environmental Evaluation (T and E species, etc.) Planners should also work to educate landowners about the functions the wetlands provide and encourage their conservation when appropriate. Nationwide Permit 27:  Nationwide Permit 27 Authorizes stream and wetland restoration There is no discharge limit Good for Section 404 and Section 10 waters Nationwide Permit 27: “Don’ts”:  Nationwide Permit 27: “Don’ts” Not authorized Doesn’t allow you to dam a stream to create a wetland Doesn’t allow you to channelize a stream for “restoration” Doesn’t allow you to convert a natural wetland to another aquatic use Nationwide Permit 27: Enhancement:  Nationwide Permit 27: Enhancement Enhancement is allowed but: Restricted to relocation of non-tidal wetlands on the project site when there are net gains in aquatic resource functions and values. It must be self-mitigating Does not allow relocation or conversion of tidal waters, including tidal wetlands, to other aquatic uses Nationwide Permit 27:  Nationwide Permit 27 Things to watch for: Regional conditions the Corps may have added in your area Need binding landowner agreement to move forward without notification (shouldn’t matter to us since we would require the same to spend money) Permit says “planting only native species” Document baseline for potential reversion by landowner when agreement expires Nationwide Permit 27:  Nationwide Permit 27 Our wetland policy should not conflict with this permit (let us know if it does when you submit comments during the review) E.O. 11990 encourages us to protect, restore, and enhance wetlands Understand and follow the permit conditions and you will not be in conflict with our wetland protection policy Nationwide Permit 40:  Nationwide Permit 40 Agricultural activities: Authorizes improving agricultural production and the construction of building pads for farm buildings Limitations: ½ acre of wetland on a farm tract Section 404 waters only Non-tidal wetlands only “Farm buildings” only authorized in farmed wetlands Nationwide Permit 40:  Nationwide Permit 40 The catches for the permittee (program participant): Must have a Categorical Minimal Effect, Minimal Effect, or Mitigation Exemption from NRCS Must have a certified wetland delineation from NRCS Must implement an NRCS-approved mitigation plan, if necessary Must submit a post-construction report to the Corps District Engineer detailing wetland impacts and mitigation provided Nationwide Permit 40:  Nationwide Permit 40 The catches for the permittee (non- participant): Pre-construction notification to Corps if greater than 1/10 acre impact Must submit delineation Notification must include a mitigation proposal Upcoming Wetland Protection Policy Review:  Upcoming Wetland Protection Policy Review We need your comments Please be looking at it for conflicts with: Other authorities Program responsibilities Implementation of conservation actions Wetland restoration and enhancement Water conservation We do not want to put policy in the manual that does not make sense with respect to our mission Recent Court Cases:  Recent Court Cases Wetland Conservation Compliance Horn Farms v. USDA—Feb. 2, 2005 Court Cases:  Horn Farms v. USDA—Feb. 2, 2005 Court Cases In 1998, Horn Farms converted 6.2 acres of wetland The wetland had been drained prior to 1985, but wetland hydrology returned in the 1970s and by 1985 the site was vegetated with mature trees. Plaintiff claimed statute exempts land converted at any time prior to 12/23/85, even if it reverted to wetlands prior to 12/23/85 USDA interprets statute to say that 12/23/85 is the benchmark date, and conditions existing on that date are the basis for determining PC. Horn Farms v. USDA:  Horn Farms v. USDA Federal District court found for Horn Farms, and directed USDA to resume Horn Farms’ subsidy payments. 7th Circuit Court of Appeals overturned district court decision Barthel v. USDA:  Barthel v. USDA The 8th Circuit Court of Appeals--NRCS must allow adjustment of the existing drainage system sufficient to return the land to the farming use and condition that existed on December 23, 1985. This may allow the landowner to improve the capacity of existing drainage ditches or drain tiles to accommodate an increase in water coming from upslope in the watershed. Barthel Decision:  Barthel Decision A landowner may improve drainage sufficiently to achieve the water regime and farming use that existed on December 23, 1985, which reflect the operation and maintenance of the site prior to that date. However, he is not authorized to significantly improve the drainage or manipulation so that wetland characteristics on areas identified as wetland or farmed wetland are further degraded in a significant way. August 2004 Conference Call Issues: Current Status:  August 2004 Conference Call Issues: Current Status Commitment to Compliance Appeals Compliance workload Web application adjustments 1994 Ag MOA August 2004 Conference Call Issues: Current Status:  August 2004 Conference Call Issues: Current Status Producers, FSA, and Self-Certification FSA County Committees and “good faith” FSA digitization of base maps NFSAM revision Wetland Protection Policy

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