I recently retired from USDA where I have done wetland determinations for the past ten years. I want to continue doing some wetland determinations and I would like to know what procedure the US Army Corps of Engineers uses to make wetland determinations on farmland (mainly cropland, hayland, and pasture) and how they label these. Is there a url for this information (I haven’t been able to find one)? Thanks for your help.
There probably isn't a Corps URL regarding farmlands as such. Since the mid-90s the Corps has been precluded from regulating farmlands under the CWA unless there is a development proposal for the site. In the 90s an MOA was adopted assigning the regulation of wetlands in agricultural lands to the NRCS, pursuant to the Food Security Act. That MOA was rescinded last year owing to changes in the amended FSA, but the NRCS is still responsible for regulating wetlands in agricultural lands and the Corps is explicitly not involved. That said, if there is a development proposal that engenders Corps jurisdiction, then the Corps (in the region where I have experience, anyway) just identifies the wetlands as if they were non-agricultural, using the 1987 Manual.
I appreciate your reply to my question. If there is a proposed development on say cropland where the Corps has jurisdiction, how do they (or a consultant) tell that the area is not a converted wetland? For instance, if a company wants to build a factory in 2006 on a crop field, how would the person doing the wetland determination know that the area had been converted from wetland in 2002 and cropped for the past four years? If the area has been farmed for 50 years and there is a hydric soil, would they label it PC? Where I work, USDA has aerial photography for at least the past two decades and this makes it fairly simple to ascertain that an area was cropped in the past. I feel comfortable with doing wetland determinations on woodland (non-agricultural land) using the Corps manual. I assume cropland would be an Atypical Situation but I don’t know how the Corps would go about determining the “approximate date when the alteration occurred”. I am assuming that most clients would want to know what the wetland classification is on all of the land they are developing and not just the woodland.
To expand on chad's information, in Oregon its the same as California. If the farm land will be changed to an urban use, you ignore PC entirely. It only pertains to agricultural land and once development is proposed it is no longer considered agricultural land. So use the 1987 Corps manual, atypical procedures due to vegetation removed or planted, and use the Corps manual hydrology criteria, not the PC/FW criteria in the NFSAM. If the field or portions of it are "effectively drained" such that you no longer have saturation for the requisite time within 12 inches of the surface, it is non wetland (drained wetland). If it still meets the saturation criteria, it is simply "wetland." By the way, you may also need to delineate and map the drained hydric soil areas separately from the non-hydric soil areas if the site will be used for compensatory mitigation and the agency needs to know what areas will be "restoration" vs. "creation."
Janet, thanks for your reply. In the area that I work in deciding whether an area is “effectively drained” is usually a case of “best professional judgment” unless there is some kind of well data available (which is almost never). Do you just make a note to this effect in the determination? The section of the manual that deals with Atypical situations says to “Determine the approximate date when the alteration occurred”. Do you do things like looking at aerial photography, doing interviews, and checking NWI maps (which in my experience are not of much use in determining legal wetlands)? If you complete a determination on cropland and find no evidence of a converted wetland and label the area non-wetland, then send this determination to USACE for review and they concur, does this protect everybody involved if ten years from now someone decides there was a wetland there in 1989? Thank you.
Dave Drew wrote: If the USACE agrees my determination that an area is not wetland, “does this protect everybody involved if ten years from now someone decides there was a wetland there in 1989?”
Yes and no. The corps will of course say that their agreement with your determination assumes that your report was factual. So, if someone presents them with compelling evidence that the area is a wetland at the time you delineated it, the corps could decide that the area is a wetland and requires a permit. However, the momentum of the area as a non wetland is hard to over come. The property owner can fight that reversal by pointing to the corps concurrence with the non-wetland determination, an expert’s determination, etc. There are plenty of other far easier battles that the corps is going to fight before they fight over an old farm field.
Speaking to the determination in the first place, in my experience, there is very little investigation as to when a wetland was drained to become farm field. If I can show that the field is drained and not a wetland now, regulators have always agreed that it is not a wetland. The only times where former wetlands in farm field becomes an issue is where there has been earth moving to fill in the low (presumably wetland) areas. That is a clear violation that will be pursued.
"...If I can show that the field is drained and not a wetland now, regulators have always agreed that it is not a wetland..."
Dear Andrew,
I have a question about a situation that I once observed on farm land
When an old ditch becomes silted and overgrown with vegetation, and no longer drains properly, then wetlands may be created as a result of poor drainage.
Is it permissible to clean and maintain an old ditch to re-establish good drainage, if it results in drainage of wetlands?
Johnny, That is a sticky situation… Maybe. In Michigan, there are specific farming exemptions to the wetland laws that apply to maintaining existing agricultural drainage ditches. (Last I knew, however, the regulations were changing.) Previously, that would be exempt as farming activity – as long as it was the farmer doing it to improve farming and the ditch was not wetland. If the ditch is wetland, then he might need a permit to dredge the ditch. That permit would be difficult to obtain because the result would be more wetland loss. If a developer wanted to clean the ditch, or the farmer wanted to do it to make the land more sellable, this farming exemption would not apply.
Dave Drew might have more to say on maintaining agricultural ditches in farm fields since that would fall under USDA jurisdiction.
Maintenance of existing ditches is exempt from regulation under Sec. 404(f)(1)(C) of the Clean Water Act. The statutory ditch maintenance exemption applies to all ditches, not just farm ditches, and it allows a land owner to restore a ditch to its original dimensions. If a ditch is deepened or widened then regulatory requirements may be triggered. The Corps issued a Regulatory Guidance Letter on ditch maintenance in 1987.
This message has been edited. Last edited by: Johnny Stevens,
