United States

Department of

Agriculture

Natural Resources

Conservation

Service

1351A HIGHWAY 146 Bypass

Liberty, Texas 77575

PH.  (936) 336-9145 Ext.3

FAX (936) 336-7224

 

 

Fact Sheet

Jurisdictional Wetlands

June 2000

 

 

Purpose of this Fact Sheet: 

The intent of this fact sheet is to inform landowners, tenants, realtors, appraisers, units of local government, and others in Liberty County about federal regulations that deal with “Wetlands.”

 

This information is general in nature and should not be applied to specific cases.  You should contact the appropriate federal agency with questions about site specific questions.  In addition, regulations change from time to time, so it is incumbent upon the landuser to remain informed of any changes.

 

 

Regulations and Agencies that Deal with Jurisdictional Wetlands:

 

This fact sheet provides an overview of two federal laws that deal with the use of “jurisdictional” wetlands.  There may be other federal, state, and local laws that apply to areas such as navigable streams, rivers, coastal bays, tidal flats, deepwater habitats, floodplains, and environmentally sensitive areas that are not discussed in this fact sheet.

 

v     The Farm Bills of 1985, 1990, and 1996, as amended, include wetland conservation  provisions that “USDA participants” must abide by to continue to receive financial benefits from USDA.  In general, farmers (owners and operators) who receive price supports (payments) crops or livestock, crop insurance, crop or livestock loans, or conservation cost-share become ineligible for these USDA programs if they violate USDA wetland regulations.                                                                                                                       

                                                                                                                                              The USDA-Natural Resources Conservation Service (NRCS) is the federal agency that upon the request of USDA program participants, delineates wetlands for purposes of the Farm Bill.  Using these determinations, participants can better make decisions regarding compliance with the wetland conservation provisions of the Farm Bill.                                                                                                      

                                                                                                                                                                                           

                                                                                                                                        Under the Farm Bill, Participants are not eligible for USDA programs benefits if they convert wetlands (except for non-agricultural purposes with prior approval).  The Farm Bill defines a “converted wetland” as a wetland that 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, circulation, or reach of water, with the intent to make the production of an agricultural commodity or forage crop (pasture) possible.                                                                                                                                                                                                                                                                          Individuals that are not USDA program participants are not required to adhere to the wetland conservation provisions of the Farm Bill; however, violations can affect future participation in USDA programs.                                                                                                                                                                                                                      Tenants or landowners that participate in USDA programs must comply with the provisions, even if the tenant is not a participant.                                                                                                                                                                                             Questions pertaining to the Farm Bill can be directed to the Liberty office of the USDA-NRCS at (936) 336-9145 ext. 3.

 

v     Section 404 of the 1972 Clean Water Act (CWA), as amended, is administered jointly by the US Army Corps of Engineers (CE) and the Environmental Protection Agency (EPA).  The CE has primary responsibility for making wetland delineations and processing Section 404 permits under the CWA.

 

While the Farm Bill only pertains to USDA program participants, Section 404 pertains to everyone, including USDA program participants, having jurisdictional wetlands.  Under Section 404, a CE permit is required before altering jurisdictional wetlands (i.e.: mechanized land clearing, dozing trees, excavating, digging ditches, filling, leveling, constructing buildings or structures, changing the landuse, etc.).

 

Violations of Section 404 can carry both civil and criminal penalties.  The Galveston District Office of the Corps Engineers handles Section 404 permits for Liberty County.  All questions relating to Section 404 of the CWA should be directed to the CE.  The CE can be reached in Galveston at (409) 766-3930.

 

Both the Farm Bill and the CWA have certain exemptions for some activities involving jurisdictional wetlands.  Contact NRCS or CE, as appropriate, for site-specific questions.

 

 

 

 

Defining Jurisdictional Wetlands:

 

The Farm Bill, as amended, and Section 404 of the 1972 Clean Water Act (CWA) define “Wetlands” in slightly different ways.  Presently, both the NRCS and CE use the same guidelines (1987 CE Wetlands Delineation Manual) to make field determinations.  The NRCS also uses the National Food Security Act Manual (Third Edition) for making offsite determinations on “disturbed areas” such as cropland fields.

 

The Farm Bill defines wetlands as: An area that has a predominance of hydric soils and that is inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances does support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

 

The CWA defines wetlands 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.

 

Under both the Farm Bill and CWA, for an area to be delineated a “jurisdictional wetland”, three environmental parameters must be present (under normal circumstances).  They are:          1.  Hydric Soil

2.  Prevalence of Hydrophytic Vegetation

3.  Wetland Hydrology

 

Hydric Soil:

 

A hydric soil is one that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions that favor the growth and regeneration of hydrophytic vegetation.  The “growing season” in Liberty County is from March 2 thru November 18.  Soils may be classified as “hydric” because they are saturated, ponded, or flooded.

 

In general terms, “saturated” is defined as having a water table within 1.5 feet (18 inches) of the surface for a significant period (usually a week or more) during the growing season if the permeability is less than 6.0 inches per hour in any layer within 20 inches.  Many Liberty County soils are considered hydric because they meet the definition of “saturated.”

 

A “Ponded” hydric soil generally has water standing above the surface for 7 days or longer.  “Ponded” is a condition in which water stands in a closed depression.

 

“Flooded” hydric soils are frequently flooded for at least one week.  “Frequently flooded” means the area has a 50 percent chance of flooding in any year, or more than 50 times in 100 years.  Flooding is a condition in which the soil surface is temporarily covered with flowing water from any source.

 

 

 

Hydrophytic Vegetation:

 

 

Defined as “Plants growing in water or in a substrate that is at least periodically deficient in oxygen during the growing season as a result of saturation or inundation by water.”

 

A publication entitled “National List of Plant Species That Occur in Wetlands (Region 6)” is used to determine a given plant’s probability of occurring in wetlands.  Plants are assigned a numerical value depending on that probability.  Hydrophytic vegetation can then be determined by one of several approved methods depending on various factors such as complexity, prior disturbance, and type of plant community present (trees, shrubs, forbs, etc.).

 

Hydrophytic vegetation is prevalent in an area when the dominant species comprising the plant community or communities are typically adapted for life in saturated soil conditions.

 

In Liberty County, many plant communities are considered “hydrophytic”.  Our heavy soils coupled with flat topography and high rainfall are conducive to the growth of hydrophytic plants.

 

 

 

Wetland Hydrology:

 

 

In general terms, wetland hydrology is permanent or periodic inundation or prolonged soil saturation sufficient to create anaerobic conditions in the soil.

 

Hydrology is often the least exact of the parameters, and indicators of wetland hydrology are sometimes difficult to find in the field.  Indicators of wetland hydrology may include, but are not necessarily limited to: drainage patterns, drift lines, sediment deposition, watermarks, stream gage data and flood predictions, historic records, visual observation of saturated soils, or visual observation of inundation.

 

Wetland hydrology criteria includes:

(a)    Saturation at or near the soil surface for at least  5% (14 consecutive days or longer) of the growing season in most years (50% chance or more )

(b)   Inundation (ponding or flooding) occurs for at least 5% (14 consecutive days or longer) of the growing season in most years (50% chance or more).

 

 

 

 

 

Summary:

The issue regarding “Jurisdictional Wetlands” is complex, often controversial, and rules sometimes change.  The primary role of the USDA-Natural Resources Conservation Service under the Farm Bill is to make wetland determinations, as requested, and to educate and inform USDA program participants about those determinations.

 

As one can see from the above information, “jurisdictional wetlands” encompass many areas that were not traditionally thought of as “wetlands”.  There are a number of areas in Liberty County that have one, two, or all three of the required parameters (hydric soils, hydrophytic vegetation, wetland hydrology).

 

The NRCS has “soil maps” available that show the locations of different kinds of soils in the county.  Soils maps are often useful tools in locating areas that may have “hydric soils”.

 

If you think that some of your land may fit the criteria discussed here, and you need more information about his subject before proceeding with a project, you are encouraged to contact the appropriate agency.                   

 

 

 

 

 

 

 

 

 

 

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, sex, religion, age, disability, political beliefs, sexual orientation, or marital or family status.  (Not all prohibited bases apply to all programs.)  Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA’s TARGET Center at 202-720-2600 (voice and TDD)

 

To file complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326W, Whitten Building, 14th  and Independence Avenue, SW, Washington, DC 20250-9410 or call (202) 720-5964 (voice and TDD.)  USDA is an equal opportunity provider and employer.

 

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