[Code of Federal Regulations]
[Title 7, Volume 1]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR12.33]

[Page 371-372]
 
                          TITLE 7--AGRICULTURE
 
PART 12_HIGHLY ERODIBLE LAND AND WETLAND CONSERVATION--Table of Contents
 
                     Subpart C_Wetland Conservation
 
Sec. 12.33  Use of wetland and converted wetland.

    (a) The provisions of Sec. 12.32(b)(2) are intended to protect 
remaining functions and values of the wetlands described therein. 
Persons may continue

[[Page 372]]

to farm such wetlands under natural conditions or as they did prior to 
December 23, 1985. However, no action can be taken to increase effects 
on the water regime beyond that which existed on such lands on or before 
December 23, 1985, unless NRCS determines the effect on losing remaining 
wetland values would be minimal under Sec. 12.5(b)(1)(v). If, after 
December 23, 1985, changes due to human activity occurred in the 
watershed and resulted in an increase in the water regime on a person's 
land, the person may be allowed to adjust the existing drainage system 
to accommodate the increased water regime on the condition that the 
person affected by this additional water provides NRCS with appropriate 
documentation of the increased water regime, the causes thereof, and the 
planned changes in the existing drainage system. In order to maintain 
program eligibility, a person must provide sufficient documentation and 
receive approval from NRCS prior to making any changes that will have 
the effect of increasing the capacity of the existing drainage systems.
    (b) Unless otherwise provided in this part, the production of an 
agricultural commodity on land determined by NRCS to be prior-converted 
cropland is exempted by law from these regulations for the area which 
was converted. Maintenance or improvement of drainage systems on prior-
converted croplands are not subject to this rule so long as the prior-
converted croplands are used for the production of food, forage, or 
fiber and as long as such actions do not alter the hydrology of nearby 
wetlands or do not make possible the production of an agricultural 
commodity on these other wetlands. Other wetlands under this section 
means any natural wetland, farmed wetland, farmed-wetland pasture, or 
any converted wetland that is not exempt under Sec. 12.5 of this part.
    (c) Abandonment is the cessation for five consecutive years of 
management or maintenance operations related to the use of a farmed 
wetland or a farmed-wetland pasture. Unless the criteria for receiving 
an exemption under Sec. 12.5(b)(1)(iii) are met, such land is 
considered to be abandoned when the land meets the wetland criteria of 
Sec. 12.31. In order for documentation of site conditions to be 
considered adequate under Sec. 12.5(b)(1)(iii), the affected person 
must provide to NRCS available information concerning the extent of 
hydrological manipulation, the extent of woody vegetation, and the 
history of use. In accordance with Sec. 12.5(b)(1)(iii), participation 
in a USDA approved wetland restoration, set-aside, diverted acres, or 
similar programs shall not be deemed to constitute abandonment.
    (d) The maintenance of the drainage capacity or any alteration or 
manipulation, including the maintenance of a natural waterway operated 
and maintained as a drainage outlet, that affects the circulation and 
flow of water made to a farmed wetland or farmed-wetland pasture would 
not cause a person to be determined to be ineligible under this part, 
provided that the maintenance does not exceed the scope and effect of 
the original alteration or manipulation, as determined by NRCS, and 
provided that the area is not abandoned. Any resultant conversion of 
wetlands is to be at the minimum extent practicable, as determined by 
NRCS.