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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 |
Jurisdictional
Wetlands
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.
File:word/factsheetwetfacts.doc