USDA Swampbuster and NRCS Wetland Determinations for Farm Ponds

Key points

• RequirementFINAL / IN FORCE (statute): Swampbuster is a condition on USDA benefits, not a permit. Any person who, in any crop year beginning after November 28, 1990, converts a wetland by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making production of an agricultural commodity possible on the converted wetland is ineligible for the payments, loans, and programs listed in 16 U.S.C. 3821(b) for that crop year and all subsequent crop years, unless a section 3822 exemption applies.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 16 U.S.C. 3821(d)(1) [1]
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  Except as provided in section 3822 of this title and notwithstanding any other provision of law, any person who in any crop year beginning after November 28, 1990, converts a wetland by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making the production of an agricultural commodity possible on such converted wetland shall be ineligible for those payments, loans, or programs specified in subsection (b) for that crop year and all subsequent crop years.

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• RequirementFINAL / IN FORCE (regulation): Under 7 CFR 12.4, a person is ineligible for USDA program benefits if, after November 28, 1990, the person converts a wetland by draining, dredging, filling, leveling, removing woody vegetation, or other means for the purpose, or to have the effect, of making production of an agricultural commodity possible, or produces an agricultural commodity on a wetland converted after December 23, 1985 (exceptions in 7 CFR 12.5 and 12.13).

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 7 CFR 12.4(a)(2)-(3) [3]
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  Except as provided in §§ 12.5 or 12.13, a person shall be ineligible for all or a portion of USDA program benefits listed in this section if: ... (2) The person produces an agricultural commodity on a wetland that was converted after December 23, 1985; or (3) After November 28, 1990, the person converts a wetland by draining, dredging, filling, leveling, removing woody vegetation, or other means for the purpose, or to have the effect, of making the production of an agricultural commodity possible.

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• DefinitionFINAL / IN FORCE (regulation): 'Agricultural commodity' means any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane. Whether a pond project is a Swampbuster 'conversion' depends on whether it makes production of such a crop possible.

  7 CFR 12.2(a) (definition of 'Agricultural commodity'); see also 16 U.S.C. 3801(a)(1) [3]
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  Agricultural commodity means any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane.

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• ExemptionFINAL / IN FORCE (statute): No person becomes ineligible for the conversion of an artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water, used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond.

  Applies when: Pond excavated or diked on land that was not a wetland 16 U.S.C. 3822(b)(2)(A); see also 3822(b)(1)(E) [4]
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  No person shall become ineligible under section 3821 of this title for program loans or payments under the following circumstances: ... (2) For the conversion of the following: (A) An artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water and that is used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond.

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• ExemptionFINAL / IN FORCE (regulation): A person is not ineligible for a wetland conversion if NRCS determines the conversion is for a purpose that does not make production of an agricultural commodity possible, such as conversions for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction, and no agricultural commodity is produced on the land.

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act; pond is for livestock, fish production or another non-commodity purpose 7 CFR 12.5(b)(1)(iv) [3]
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  (iv) NRCS has determined that the conversion if for a purpose that does not make the production of an agricultural commodity possible, such as conversions for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction and no agricultural commodity is produced on such land;

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• AgencyFINAL / IN FORCE (statute): Only the Secretary of Agriculture decides whether a person has complied with the wetland conservation provisions; that authority may not be delegated to any private person or entity (so a private consultant's delineation cannot substitute for USDA's compliance decision).

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy) 16 U.S.C. 3821(f) [1]
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  The Secretary shall have, and shall not delegate to any private person or entity, authority to determine whether a person has complied with this subchapter.

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• ProcessNRCS GUIDANCE: To request a certified wetland determination for a planned project, visit the local FSA office to complete or update Form AD-1026 for the area to be assessed; a person may also request the determination through NRCS on Form NRCS-CPA-38, 'Request for Certified Wetland Determination or Delineation'. An existing determination can be obtained from FSA.

  Applies when: Landowner planning a pond on farmland who wants an NRCS wetland determination first NRCS, 'Certified Wetlands Determination' FAQ page [5]
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  You may contact the Farm Service Agency (FSA) to obtain the most current wetland determination if one already exists. ... To initiate the process, visit your local FSA office to complete or update Form AD-1026 “Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification” for the area you wish assessed. In addition, you may request the determination through NRCS by completing Form NRCS-CPA-38, "Request for Certified Wetland Determination or Delineation" for general information on the property.

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• AgencyEPA GUIDANCE: Farmers who own or manage wetlands are affected by two separate federal programs: CWA section 404, which requires a permit before discharging dredged or fill material into waters of the United States, including wetlands; and Swampbuster, which withholds certain federal farm program benefits from farmers who convert or modify wetlands. EPA advises checking with the local Corps district about section 404, and with NRCS before clearing, draining, or manipulating any wet areas to protect farm program benefits.

  Applies when: Any pond project on farmland with wet areas EPA, 'CWA Section 404 and Swampbuster: Wetlands on Agricultural Lands' (last updated July 24, 2026) [2]
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  requires individuals to obtain a permit before discharging dredged or fill material into "waters of the United States," including wetlands, and (2) the Wetland Conservation (also known as "Swampbuster") provisions of the Food Security Act (FSA), which withholds certain Federal farm program benefits from farmers who convert or modify wetlands ... Check with your local U.S. Army Corps of Engineers (USACE) district office ... Check with the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service ... before clearing, draining, or manipulating any wet areas on your land

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• AgencyNRCS GUIDANCE: If wetland drainage activities are not subject to the 1985 Food Security Act, they could be subject to the Clean Water Act or other State or local regulations; NRCS advises producers to contact the local Army Corps of Engineers office to determine if a Section 404 Clean Water Act permit is needed, or their state or local agency offices to determine if any regulations apply.

  Applies when: Pond work that is exempt from, or outside, Swampbuster NRCS, 'Conservation Compliance for Wetlands' web page [6]
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  If wetland drainage activities are not subject to the 1985 Food Security Act, they could be subject to the Clean Water Act or other State or local regulations. Producers should contact the local Army Corps of Engineers office to determine if a Section 404 Clean Water Act Permit is needed or their state or local agency offices to determine if any regulations apply.

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• StatusSTATUS - INTERIM RULE: The only regulatory text the interim rule amends is 7 CFR 12.30(c)(1). As revised, certification means the wetland determination is sufficient for determining ineligibility for program benefits under 12.4; NRCS may certify without a field investigation; NRCS must notify the affected person and provide an opportunity to appeal before the certification becomes final; and all wetland determinations issued after November 28, 1990 are considered certified if the affected person was notified of the certification and given information on the right to appeal. It does not amend the definitions or exemptions that govern pond or dam work.

  Applies when: Landowner with a wetland determination issued after November 28, 1990 (especially 1990-1996) 7 CFR 12.30(c)(1), as revised by 91 FR 47785-47786 (July 29, 2026) [7]
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  Amend Sec. 12.30 by revising paragraph (c)(1) ... (1) Certification of a wetland determination means that the wetland determination is sufficient for the purpose of making a determination of ineligibility ... NRCS may certify a wetland determination without making a field investigation. NRCS must notify the person affected by the certification and provide an opportunity to appeal the determination prior to the certification becoming final. All wetland determinations issued after November 28, 1990, are considered certified if the person affected by the certification was notified

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What counts as a wetland conversion, and which benefits are at stake

For Swampbuster, land is a wetland only if it meets all three criteria: a predominance of hydric soils; inundation or saturation by surface 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, a prevalence of such vegetation. [9]

A 'converted wetland' is wetland drained, dredged, filled, leveled, or otherwise manipulated (including any activity that impairs or reduces the flow, circulation, or reach of water) for the purpose or to have the effect of making commodity production possible, if production would not have been possible but for that action and, before it, the land was wetland and was neither highly erodible land nor highly erodible cropland. Wetland is not converted wetland if production in a crop year is possible because of a natural condition, such as drought, and is not assisted by an action of the producer that destroys natural wetland characteristics. [9]

The benefits covered by 7 CFR 12.4(d) are contract payments, marketing assistance loans, and any price support or payment under the Agricultural Act of 2014, the CCC Charter Act, or successor Acts; FSA farm credit loans if the proceeds would contribute to wetland conversion; EQIP contract payments and payments under any other provision of Subtitle D of the Food Security Act; payments under sections 401 or 402 of the Agricultural Credit Act of 1978; payments, loans or assistance under sections 3 or 8 of the Watershed Protection and Flood Prevention Act; and Federal crop insurance premium subsidies. [3]

Except for crop insurance (7 CFR 12.13), a person ineligible for converting a wetland is ineligible for all or a portion of those benefits for the crop year equal to the calendar year in which the violation occurred and for each later crop year, until the converted wetland is restored or the lost wetland values, acreage and functions have been mitigated (under 7 CFR 12.5(b)(4)(i)(A) and (C)-(F)) before the start of that calendar year. For producing a commodity on converted wetland, ineligibility may be reduced, instead of loss of all benefits, based on the seriousness of the violation as determined by the FSA Deputy Administrator for Farm Programs (or designee) on the FSA county committee's recommendation. If a person whose benefits are reduced is affiliated with other persons for the purpose of receiving benefits, each affiliated person's benefits are reduced in proportion to the interest that affiliated person holds. [1][3][10]

EQIP and CSP applicants must be in compliance with the highly erodible land and wetland conservation provisions of 7 CFR part 12. EQIP will not pay for a practice that the applicant or another producer initiated or implemented before applying for the program, or that was initiated or implemented before contract approval unless the Chief granted a waiver before the practice was implemented. Applied to a pond, starting construction before applying, or before contract approval without a waiver granted beforehand, would forfeit EQIP payment for it. [11][12]

• DefinitionFINAL / IN FORCE (statute): 'Wetland' for Swampbuster purposes means land that (A) has a predominance of hydric soils; (B) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (C) under normal circumstances does support a prevalence of such vegetation. All three must be met.

  16 U.S.C. 3801(a)(27) [9]
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  The term "wetland", except when such term is part of the term "converted wetland", means land that- (A) has a predominance of hydric soils; (B) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (C) under normal circumstances does support a prevalence of such vegetation.

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• DefinitionFINAL / IN FORCE (statute): A 'converted wetland' is wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including any activity that impairs or reduces the flow, circulation, or reach of water) for the purpose or to have the effect of making production of an agricultural commodity possible, if the production would not have been possible but for the action and, before the action, the land was wetland and was neither highly erodible land nor highly erodible cropland.

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 16 U.S.C. 3801(a)(7) [9]
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  (7)(A) The term "converted wetland" means wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of water) for the purpose or to have the effect of making the production of an agricultural commodity possible if- (i) such production would not have been possible but for such action; and (ii) before such action- (I) such land was wetland; and (II) such land was neither highly erodible land nor highly erodible cropland.

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• RequirementFINAL / IN FORCE (regulation): The benefits covered by a wetland-conservation ineligibility determination are: (1) contract payments, marketing assistance loans and any price support or payment under the Agricultural Act of 2014, the CCC Charter Act, or successor Acts; (2) FSA farm credit loans if the proceeds would contribute to wetland conversion; (3) EQIP contract payments and payments under any other provision of Subtitle D of the Food Security Act of 1985; (4) payments under sections 401 or 402 of the Agricultural Credit Act of 1978; (5) payments, loans or assistance under sections 3 or 8 of the Watershed Protection and Flood Prevention Act; and (6) Federal crop insurance premium subsidies.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy) 7 CFR 12.4(d)(1)-(6) [3]
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  USDA program benefits covered by a determination of ineligibility under this rule are: (1) Contract payments, marketing assistance loans, and any type of price support or payment made available under the Agricultural Act of 2014 ... (3) A payment made pursuant to a contract entered into under the Environmental Quality Incentives Program ... or a payment under any other provision of Subtitle D of that Act; ... (6) Federal crop insurance premium subsidies for a policy or plan of insurance offered under the Federal Crop Insurance Act (7 U.S.C. 1501-1524).

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• TimelineFINAL / IN FORCE (regulation): Except as provided in 7 CFR 12.13 (crop insurance), a person ineligible for converting a wetland is ineligible for all or a portion of the 7 CFR 12.4(d) benefits beginning with the crop year equal to the calendar year in which the violation occurred and each subsequent crop year until the converted wetland is restored or the lost wetland values, acreage and functions have been mitigated (under 7 CFR 12.5(b)(4)(i)(A) and (C)-(F)) before the start of that calendar year. For producing a commodity on converted wetland, ineligibility may be reduced, instead of loss of all benefits, based on the seriousness of the violation as determined by the FSA Deputy Administrator for Farm Programs or designee on the FSA county committee's recommendation.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); wetland converted in violation 7 CFR 12.4(c) [3]
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  a person determined to be ineligible under paragraph (a)(3) of this section for the conversion of a wetland is ineligible ... during the crop year which is equal to the calendar year during which the violation occurred and each subsequent crop year until the converted wetland is restored or the loss of wetland values, acreage, and functions have been mitigated prior to the beginning of such calendar year ... Ineligibility under paragraph (a)(2) of this section may be reduced ... based on the seriousness of the violation

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• RequirementFINAL / IN FORCE (regulation): To be eligible for EQIP, an applicant must be in compliance with the highly erodible land and wetland conservation provisions of 7 CFR part 12. Because this is an applicant-eligibility condition, it applies to an applicant seeking cost-share for any practice, including Pond (Code 378).

  Applies when: Landowner seeks EQIP cost-share for a Pond (378) or related practice 7 CFR 1466.6(b)(1) [11]
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  (b) Applicant eligibility. To be eligible to participate in EQIP, an applicant must— (1) Be in compliance with the highly erodible land and wetland conservation provisions at 7 CFR part 12;

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• RequirementFINAL / IN FORCE (regulation): EQIP will not pay for a conservation practice that the applicant or another producer initiated or implemented before applying for the program, or that was initiated or implemented before contract approval unless the Chief granted a waiver before the practice was implemented; so starting pond construction early would forfeit EQIP payment for it. EQIP participants are responsible for obtaining the authorities, rights, easements, permits, or other approvals needed to implement, operate and maintain practices in keeping with applicable laws and regulations, and for compliance with all laws.

  Applies when: Landowner seeks EQIP cost-share for a pond 7 CFR 1466.8(b); 1466.51 [11]
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  (b) Payment will not be made to a participant for conservation practices that— (1) Either the applicant or another producer has initiated or implemented prior to application for the program; or (2) Has been initiated or implemented prior to contract approval, unless a waiver was granted by the Chief prior to the practice implementation. ... Participants who carry out conservation practices will be responsible for obtaining the authorities, rights, easements, permits, or other approvals necessary ... Participants will be responsible for compliance with all laws

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Exemptions that matter for ponds

NRCS's National Food Security Act Manual (November 2010) says ponds constructed in non-wetland may be labeled Artificial Wetland (AW), which is exempt and can be drained or manipulated without loss of USDA eligibility, even if all or part of the pond is too deep for wetland vegetation. The portion of a pond built in a wetland is not AW; NRCS labels it Manipulated Wetland (WX) if agricultural production is not possible, and lists construction of stock watering or irrigation ponds as an example of activity that results in WX. [13]

NRCS labels open water excavated in a wetland WX unless the excavation makes commodity production possible, in which case the converted area is labeled CW (converted wetland). Increasing the hydrology of an existing wetland, for example by raising water levels, does not make it AW; it remains wetland unless the hydroperiod increases to the point where wetland vegetation cannot survive, when it is labeled WX. A WX area can be maintained, but not for the purpose of, or so as to make possible, commodity production; a participant can complete Form AD-1026 before any hydrologic manipulation so NRCS can confirm the manipulation is not for, and does not make possible, commodity production on the WX area or another wetland. [13]

The statute directs the Secretary of Agriculture to exempt from ineligibility any action on land that the Secretary determines fails any one of the three wetland criteria. Under the regulation, land that meets the definition of prior-converted cropland as of the date of an NRCS wetland determination is also exempt. As eCFR currently prints it, the regulation defines prior-converted cropland as a wetland converted before December 23, 1985 on which an agricultural commodity had been produced at least once before that date, and which as of that date did not support woody vegetation and did not meet the hydrologic criteria for farmed wetland; whether the 2024 court vacatur reaches this definition is unresolved (see Rule status below). [3][4]

A person is not ineligible for converting a wetland if NRCS determines the conversion, individually and together with all other similar actions NRCS has authorized in the area, would have only a minimal effect on the functions and values of wetlands in the area. Under the request procedure as eCFR currently prints it (7 CFR 12.31(e)), that determination is based on a functional assessment with an on-site evaluation, and the request must be made before beginning activities that would convert the wetland; if a person converts first and then seeks the finding, the burden is on the person to show NRCS the effect was minimal. The local NRCS field office keeps the list of categorical minimal-effect exemptions determined by the NRCS Chief (or designee) and provides it on request. [3]

A conversion also does not cause ineligibility if NRCS determines the lost wetland values, acreage and functions are adequately mitigated by restoring a converted wetland, enhancing an existing wetland, or creating a new wetland. The mitigation must follow an NRCS-approved plan; be in advance of, or concurrent with, the conversion; not be at federal expense (the regulation excepts a USDA mitigation banking program); occur in the same general area of the local watershed (regional mitigation banks may qualify); be on land for which the owner has granted USDA (or a USDA-approved mitigation bank entity) an easement recorded on public land records and has agreed to maintain the mitigation wetland for as long as the converted wetland remains in agricultural use or is not returned to its original classification with equivalent values, acreage and functions; and provide the equivalent values, acreage and functions lost through the conversion. [3]

A conversion is also exempt if, after December 23, 1985, either a Corps section 404 individual permit authorized it and required mitigation that NRCS determines adequately replaced the wetland values, acreage and functions, or a Corps nationwide or regional general permit covers it and NRCS determines those values, acreage and functions were adequately mitigated. That exemption is tied to a Corps permit plus NRCS-determined mitigation; the regulation does not mention section 404(f) exemptions. [3]

The person seeking an exemption related to converted wetlands must provide the evidence, such as receipts, crop-history data, drawings, plans or similar information, for determining whether the conversion or other action is exempt. A person found ineligible for converting a wetland after November 28, 1990, or for producing a commodity on a wetland converted after December 23, 1985, may regain eligibility under the good-faith provision if FSA finds the person acted in good faith and without intent to violate, NRCS finds the person is implementing all practices in a mitigation plan within an agreed period of no more than one year, and the State Executive Director approves the good-faith determination with the State Conservationist's technical concurrence (or the district director with the area conservationist's concurrence). [3]

• ExemptionNRCS POLICY: Ponds constructed in non-wetland (NW) may be labeled Artificial Wetland (AW), which is exempt and can be drained or manipulated without loss of USDA eligibility, even if parts of the pond are too deep for wetland vegetation. If a pond was constructed wholly or partially in wetlands, the portion built in wetlands is not AW and is labeled WX if agricultural production is not possible.

  Applies when: Pond partly or wholly within a wetland vs. on non-wetland NRCS National Food Security Act Manual, 180 M Part 514 Subpart B, sec. 514.12(A)(1)-(2) [13]
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  These areas are exempt from the WC provisions of the Act and thus can be drained, removed, or otherwise manipulated without causing ineligibility for USDA program benefits. ... b. Ponds constructed in non-wetlands (NW). These may be labeled as AW even if all or part of these areas may be too deep to allow wetland vegetation to grow (i.e., they do not meet the hydrophytic vegetation criteria). If a pond was constructed wholly or partially in wetlands, the portion of the pond that was constructed in wetlands is not AW. These areas shall be labeled WX if agricultural production is not possible.

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• ExemptionNRCS POLICY (National Food Security Act Manual): Wetlands manipulated for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction where production of an agricultural commodity has not been made possible are labeled 'Manipulated Wetland' (WX) under 7 CFR 12.5(b)(1)(iv). NRCS lists 'construction of stock watering or irrigation ponds' as an example of activity that results in WX. Open water areas excavated in wetlands are labeled WX unless the excavation makes commodity production possible, in which case the converted areas are labeled CW (converted wetland).

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act NRCS National Food Security Act Manual, 180 M Part 514 Subpart B, sec. 514.11(A)(2)-(3), (B)(4) [13]
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  Open water areas excavated in wetlands will be labeled WX unless the excavation results in conversion that makes possible production of an agricultural commodity. In this case, the converted areas would be labeled CW or CW+year. 3. Wetlands manipulated for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction where production of an agricultural commodity has not been made possible are labeled WX (7 CFR Section 12.5(b)(1)(iv)). ... 4. Construction of stock watering or irrigation ponds.

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• ExemptionFINAL / IN FORCE (statute): The Secretary must exempt from Swampbuster ineligibility any action by a person upon lands where the Secretary determines that any one of the three wetland criteria (predominance of hydric soils; inundation/saturation sufficient to support a prevalence of hydrophytic vegetation; prevalence of such vegetation under normal circumstances) does not apply to those lands. Applied to pond siting: if NRCS determines the proposed pond site fails any one of the three criteria, the statute directs that actions on that land be exempted.

  Applies when: Proposed pond site 16 U.S.C. 3822(e) [4]
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  The Secretary shall exempt from the ineligibility provisions of section 3821 of this title any action by a person upon lands in any case in which the Secretary determines that any one of the following does not apply with respect to such lands: (1) Such lands have a predominance of hydric soils. (2) Such lands are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions. (3) Such lands, under normal circumstances, support a prevalence of such vegetation.

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• ExemptionFINAL / IN FORCE (regulation): A person is not ineligible for converting a wetland (or producing a commodity on a converted wetland) if NRCS determines the action, individually and together with all other similar actions NRCS has authorized in the area, would have only a minimal effect on the functions and values of wetlands in the area.

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 7 CFR 12.5(b)(1)(v); 16 U.S.C. 3822(f)(1) [3]
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  (v) NRCS has determined that the actions of the person with respect to the conversion of the wetland or the combined effect of the production of an agricultural commodity on a wetland converted by the person or by someone else, individually and in connection with all other similar actions authorized by NRCS in the area, would have only a minimal effect on the wetland functions and values of wetlands in the area;

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• ProcessFINAL / IN FORCE (regulation): A minimal-effect determination is based on a functional assessment, with an on-site evaluation of the subject wetland. The request must be made before beginning activities that would convert the wetland; if a person converts first and then seeks a minimal-effect finding, the burden is on the person to demonstrate to NRCS's satisfaction that the effect was minimal. Any later action that changes the wetland's functions and values must be reported to NRCS for a new determination.

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 7 CFR 12.31(e)(1)-(2) [3]
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  Such determination shall be based upon a functional assessment ... The assessment of functions and values of the subject wetland will be made through an on-site evaluation. ... A request for such determination will be made prior to the beginning of activities that would convert the wetland. If a person has converted a wetland and then seeks a determination that the effect of such conversion on wetland was minimal, the burden will be upon the person ... any additional action of a person that will change the functions and values of a wetland ... shall be reported to NRCS

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• ExemptionFINAL / IN FORCE (regulation): A conversion does not cause ineligibility if NRCS determines the lost wetland values, acreage and functions are adequately mitigated by restoring a converted wetland, enhancing an existing wetland, or creating a new wetland, and the mitigation: (A) follows an NRCS-approved mitigation plan; (B) is in advance of, or concurrent with, the conversion; and (C) is not at federal expense (the regulation excepts a USDA mitigation banking program); plus conditions (D)-(F) in the next claim.

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act; wetland impact cannot be avoided 7 CFR 12.5(b)(4)(i)(A)-(C) [3]
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  No person shall be determined to be ineligible under § 12.4 for any action associated with the conversion of a wetland if the wetland values, acreage, and functions are adequately mitigated, as determined by NRCS, through the restoration of a converted wetland, the enhancement of an existing wetland, or the creation of a new wetland, if the mitigation— (A) Is in accordance with a mitigation plan approved by NRCS; (B) Is in advance of, or concurrent with, the wetland conversion or the production of an agricultural commodity, as applicable; (C) Is not at the expense of the federal government

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• ExemptionFINAL / IN FORCE (regulation): A conversion is exempt if, after December 23, 1985, the Army Corps of Engineers issued a Clean Water Act section 404 individual permit authorizing the action and the permit required mitigation that adequately replaced the wetland values, acreage and functions converted, as determined by NRCS; or the action is covered by a Corps nationwide or regional general permit and the wetland values, acreage and functions were adequately mitigated, as determined by NRCS. The exemption is tied to a 404 permit plus NRCS-determined mitigation; the text does not mention section 404(f) permit exemptions.

  Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act; project also authorized by a Corps section 404 permit 7 CFR 12.5(b)(1)(vi)(A)-(B); 16 U.S.C. 3822(f)(4) [3]
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  (A) After December 23, 1985, the Army Corps of Engineers issued an individual permit pursuant to section 404 of the Clean Water Act, 33 U.S.C. 1344, authorizing such action and the permit required mitigation that adequately replaced the values, acreage, and functions of the wetlands converted, as determined by NRCS, or (B) After December 23, 1985, the action is encompassed under section 404 of the Clean Water Act ... by an Army Corps of Engineers nationwide or regional general permit and the wetland values, acreage, and functions were adequately mitigated, as determined by NRCS; or

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• RequirementFINAL / IN FORCE (regulation): The person seeking a converted-wetland exemption must provide the evidence, such as receipts, crop-history data, drawings, plans or similar information, for NRCS to determine whether the conversion or other action is exempt.

  Applies when: Landowner claims an exemption for pond work in or near a wetland 7 CFR 12.5(b)(7) [3]
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  (7) Responsibility to provide evidence. It is the responsibility of the person seeking an exemption related to converted wetlands under this section to provide evidence, such as receipts, crop-history data, drawings, plans or similar information, for purposes of determining whether the conversion or other action is exempt in accordance with this section.

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Certified wetland determinations: requesting one, timing, and appeals

NRCS says producers self-certify compliance by filing Form AD-1026 when enrolling in USDA programs; the form covers all land the producer farms and stays effective unless changes to the operation or new activities change the self-certification. On the producer's behalf, FSA seeks technical assistance from NRCS, which develops a preliminary technical determination by field inspection or remote resources and issues Form NRCS-CPA-026-WC with a map for the producer to review. [6][14]

7 CFR 12.4(g) makes people who want to take part in the covered programs responsible for contacting USDA well in advance; a late contact could substantially delay the eligibility determination. NRCS's manual (amended March 2025) says NRCS will make every attempt to issue preliminary determinations within 3 months for off-site and 6 months for on-site determinations from the date NRCS receives a request; this is an internal timeframe, not a regulation, and on-site determinations may be delayed until site conditions are favorable for evaluating soils, hydrology, or vegetation. [3][15]

NRCS labels each area (for example W wetland, NW non-wetland, PC prior converted cropland, FW farmed wetland, FWP farmed wetland pasture, CW converted wetland) and attaches a wetland determination map. A preliminary determination becomes final 30 days after the participant receives it unless the participant files an appeal with the appropriate NRCS official named in the decision notice, requesting reconsideration or mediation; a participant may waive reconsideration in writing to the State Conservationist so it becomes final sooner. [5][16]

NRCS's appeals page says a final technical determination can be appealed to the FSA county committee or the USDA National Appeals Division, in writing within 30 days of receiving it. Before any benefits are withheld, NRCS must make an on-site investigation of a potential violation and make a reasonable effort to include the affected person. [3][17]

Under 7 CFR 12.30(c)(6), as long as the affected person is in compliance with the wetland conservation provisions and the area is devoted to producing food, fiber, or horticultural crops, a certification remains valid until that person requests review by NRCS. The person may request review only if a natural event alters the topography or hydrology of the land so the certification is no longer a reliable indication of site conditions, or if NRCS agrees with the person that the current determination contains an error. No person may be adversely affected for acting on a previous certified wetland delineation by USDA, and that delineation is not subject to a later USDA certification or delineation unless the person requests it. [3][4]

• ProcessNRCS GUIDANCE: Producers self-certify compliance by filing Form AD-1026 when enrolling in USDA programs. Once accurately completed and filed, the form remains effective unless changes to the operation or new activities change the self-certification (for example, intent to bring new land into production or install new drainage). The form covers all land a producer farms.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy) NRCS, 'Conservation Compliance: Highly Erodible Lands and Wetlands Provisions' web page [14]
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  Producers self-certify compliance by filing Form AD-1026 when enrolling in USDA programs. ... Once the form is accurately completed and filed, it remains effective, unless changes to the agricultural operation occur and/or new activities arise which change the previous self-certification (for example, the intent to bring new land into production or install new drainage structures). The form is not specific to a particular crop. It covers all land that a producer farms.

  Open USDA Natural Resources Conservation Service (opens in a new tab)

• ProcessNRCS GUIDANCE: A new activity that improves or creates drainage, levels land, fills, clears land, or conducts excavation will prompt an update to Form AD-1026 (Highly Erodible Land Conservation and Wetland Conservation Certification). On the producer's behalf, FSA seeks technical assistance from NRCS, which develops a preliminary technical determination (field inspection or remote resources) and issues Form NRCS-CPA-026-WC with a map for the producer to review.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); pond excavation or fill planned NRCS, 'Conservation Compliance for Wetlands' web page [6]
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  A new activity that improves or creates drainage, land levels, fills, clears land, or conducts excavation will prompt an update to Form AD-1026 ... On the producer’s behalf, The Farm Service Agency (FSA) will seek technical assistance from the Natural Resources Conservation Service (NRCS) ... NRCS, through field inspection or by using a variety of remote technical resources, develops a preliminary technical determination and issues Form NRCS-CPA-026-WC ("Highly Erodible Land and Wetland Conservation Determination”) and associated map to the producer for review

  Open USDA Natural Resources Conservation Service (opens in a new tab)

• TimelineFINAL / IN FORCE (regulation): Persons who wish to participate in the covered USDA programs are responsible for contacting the appropriate USDA agency well in advance of the intended participation date so Form AD-1026 can be completed and determinations scheduled; a late contact may not allow enough time and could substantially delay the eligibility determination.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy) 7 CFR 12.4(g) [3]
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  Persons who wish to participate in any of the USDA programs described in paragraph (d) or (e) of this section are responsible for contacting the appropriate agency of USDA well in advance of the intended participated date so that Form AD-1026 can be completed. ... A late contact may not allow sufficient time for USDA to service the request and could result in a substantial delay in receiving a USDA determination of eligibility or ineligibility.

  Open eCFR / Office of the Federal Register (opens in a new tab)

• TimelineNRCS POLICY (internal timeframe, not a regulation): NRCS will make every attempt to issue preliminary technical determinations within 3 months for off-site determinations and 6 months for on-site determinations from the date NRCS receives a request; on-site determinations may be delayed until site conditions are favorable.

  Applies when: Wetland determination requested for a pond site NRCS National Food Security Act Manual, 180 M Part 510 Subpart C, secs. 510.20(E)-(F) [15]
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  1. NRCS will make every attempt to promptly issue preliminary technical determinations within 3 months for off-site determinations and 6 months for on-site determinations from the date that a request is received by NRCS. 2. On-site determinations may be delayed until site conditions are favorable for the evaluation of soils, hydrology, or vegetation (7 CFR § 12.6(c)(7)).

  Open USDA Natural Resources Conservation Service (NRCS eDirectives) (opens in a new tab)

• TimelineFINAL / IN FORCE (regulation): A preliminary technical determination under the highly erodible land / wetland conservation provisions becomes final 30 days after the participant receives it unless the participant files an appeal with the appropriate NRCS official, as indicated in the decision notice, requesting reconsideration (with a field visit, office visit, or other designated meeting location) or mediation.

  Applies when: Landowner disagrees with (or wants to speed up) an NRCS preliminary wetland determination 7 CFR 614.7(a)-(d) [16]
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  (a) A preliminary technical determination is limited to those determinations made pursuant to the HELC/WC provisions (16 U.S.C. 3801, et seq.) and becomes final 30 days after the participant receives the decision, unless the participant files an appeal with the appropriate NRCS official as indicated in the decision notice requesting: (1) Reconsideration with a field visit, office visit, or other designated location meeting site in accordance with paragraphs (b) and (c) of this section; or (2) Mediation as set forth in § 614.11.

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• ProcessNRCS GUIDANCE: NRCS's 'Conservation Compliance Appeals Process' page says a person who disagrees with a Final Technical Determination has additional appeal opportunities through the FSA County Committee or the USDA National Appeals Division (NAD), and that the request must be submitted in writing to the appropriate agency within 30 days of receipt of the Final Technical Determination. In cases of ineligibility, the person will be informed of the opportunity to request a Good Faith Exemption from FSA or to complete corrective actions to regain eligibility.

  Applies when: Landowner disagrees with an NRCS final wetland determination NRCS, 'Conservation Compliance Appeals Process' web page (regulatory basis: 7 CFR 614.8(b), 614.7(c)) [17]
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  You have additional appeal opportunities through the Farm Service Agency (FSA) County Committee or the USDA National Appeals Division (NAD). The request must be submitted in writing to the appropriate agency within 30 days of receipt of the Final Technical Determination. ... In cases of ineligibility, you will be informed of the opportunity to request a Good Faith Exemption from the Farm Service Agency or complete corrective actions to regain eligibility.

  Open USDA Natural Resources Conservation Service (opens in a new tab)

• TimelineFINAL / IN FORCE (regulation): Under 7 CFR 12.30(c)(6), as long as the affected person is in compliance with the wetland conservation provisions and the area is devoted to the use and management of the land for production of food, fiber, or horticultural crops, a certification remains valid and in effect until the affected person requests review by NRCS. A person may request review only if a natural event alters the topography or hydrology of the land so that the final certification is no longer a reliable indication of site conditions, or if NRCS concurs with the affected person that an error exists in the current wetland determination.

  Applies when: Landowner holds an existing certified wetland determination 16 U.S.C. 3822(a)(4); 7 CFR 12.30(c)(6) [3]
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  as long as the area is devoted to the use and management of the land for production of food, fiber, or horticultural crops, a certification made under this section will remain valid and in effect until such time as the person affected by the certification requests review ... A person may request review of a certification only if a natural event alters the topography or hydrology ... to the extent that the final certification is no longer a reliable indication of site conditions, or if NRCS concurs with an affected person that an error exists in the current wetland determination.

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• ExemptionFINAL / IN FORCE (statute and regulation): No person may be adversely affected for taking an action based on a previous certified wetland delineation by USDA, and a certified delineation is not subject to a later certification or delineation by USDA unless the affected person requests it.

  Applies when: Landowner relies on an existing NRCS certified wetland determination to site a pond 16 U.S.C. 3822(a)(6); 7 CFR 12.5(b)(6) [4]
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  (6) Reliance on prior certified delineation No person shall be adversely affected because of having taken an action based on a previous certified wetland delineation by the Secretary. The delineation shall not be subject to a subsequent wetland certification or delineation by the Secretary, unless requested by the person under paragraph (4).

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Federal crop insurance premium subsidy

For federal crop insurance premium subsidy, ineligibility applies only to reinsurance years after the date of a final determination of a violation, including all administrative appeals, and does not apply to wetlands converted before February 7, 2014. [1]

For wetlands the Secretary determines were converted after February 7, 2014, the person is ineligible for premium subsidies in later reinsurance years unless a section 3822 exemption applies, or, for a violation the Secretary determines affects less than 5 acres of an entire farm, the person may instead pay NRCS a contribution equal to 150 percent of the cost of mitigation. The regulation allows that payment only if NRCS approves, limits it to one exemption per farm, and says NRCS will not refund it even if the person later mitigates the conversion. [1][3]

The statute adds further limits, including a 1-reinsurance-year period to initiate a mitigation plan before crop insurance ineligibility begins. [1]

• Size cutoffFINAL / IN FORCE (statute): For Federal crop insurance premium subsidy, ineligibility applies only to reinsurance years after the date of a final determination of a violation (including all administrative appeals). For wetlands the Secretary determines were converted after February 7, 2014, the person is ineligible for premium subsidies in subsequent reinsurance years unless a section 3822 exemption applies, or, for a violation that impacts less than 5 acres of an entire farm, may instead pay a contribution equal to 150 percent of the cost of mitigation. Crop-insurance ineligibility does not apply to wetlands converted before February 7, 2014. Further limits in 3821(c)(2)(D) and (c)(3) apply, including a 1-reinsurance-year period to initiate a mitigation plan before ineligibility begins (see notes).

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); person insures crops with FCIC-reinsured policies 16 U.S.C. 3821(c)(1)(B), (c)(2)(B)-(C) [1]
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  only apply to reinsurance years subsequent to the date of a final determination of a violation, including all administrative appeals ... after February 7, 2014- (i) the person shall be ineligible ... unless ... an exemption pursuant to section 3822 of this title applies; or (ii) for any violation that the Secretary determines impacts less than 5 acres of an entire farm, the person may pay a contribution in an amount equal to 150 percent of the cost of mitigation ... prior to February 7, 2014, ineligibility under this subsection shall not apply.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

• ExemptionFINAL / IN FORCE (regulation): The regulation limits the less-than-5-acre, 150-percent-of-mitigation-cost contribution option (available only for crop insurance premium subsidy, and only if approved by NRCS) to one exemption per farm, and NRCS will not refund the payment even if the person later mitigates the conversion.

  Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); person insures crops with FCIC-reinsured policies 7 CFR 12.13(f)(1)-(3) [3]
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  In lieu of ineligibility for Federal crop insurance premium subsidies ... a person may, if approved by NRCS, pay a contribution to NRCS in an amount equal to 150 percent of the cost of mitigating the converted wetland, as determined by NRCS. (2) A person is limited to only one exemption, as determined by NRCS, described in paragraph (f)(1) of this section per farm. (3) NRCS will not refund this payment even if the person later conducts actions which will mitigate the earlier conversion.

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Rule status: the July 29, 2026 interim rule and the 2024 court decision

USDA's Office of the Secretary issued 'Highly Erodible Land and Wetland Conservation' (91 FR 47779, FR Doc. 2026-15284) as an interim rule with request for comments, not a proposed rule; it took effect on publication, July 29, 2026, and its comment period closed September 28, 2026. USDA says the Food Security Act requires part 12 regulations to be published as interim rules effective on publication with an opportunity for notice and comment. [7]

As revised, 7 CFR 12.30(c)(1) lets NRCS certify a determination without a field investigation, requires notice and an opportunity to appeal before certification becomes final, and treats all determinations issued after November 28, 1990 as certified if the affected person was notified and given appeal-rights information. USDA says the rule does not change the certification status of pre-1996 determinations as established in the 1996 regulatory preamble, but does change how they will be treated: NRCS previously had discretion to decide whether a determination made between November 28, 1990 and July 3, 1996 was certified, and the rule confirms those determinations are certified if the affected person was notified of the certification and provided appeal rights. [7]

USDA states that a producer can act immediately on a certified determination, that a producer who disagrees can ask for review, and that NRCS has no independent authority to question prior certified determinations of land in agricultural use; only a person affected by the prior determination may request review. [7]

In National Wildlife Federation v. Lohr (D.D.C. Feb. 22, 2024), a federal court held that NRCS's 2020 final rule violated the Administrative Procedure Act because NRCS changed its policy on certifying pre-1996 wetland determinations without a reasoned explanation, vacated that rule, and remanded the case to NRCS; on October 8, 2024 the court denied the government's request to remand to NRCS without vacating the rule. [18][19]

The 2026 interim rule revised only 12.30(c)(1). eCFR still prints other part 12 text that the vacated 2020 rule had adopted, including the prior-converted cropland definition in 12.2 and the minimal-effect request procedure in 12.31(e); whether the vacatur reaches that text has not been confirmed. [3][7]

• StatusSTATUS - INTERIM RULE (in effect): FR Doc. 2026-15284, 'Highly Erodible Land and Wetland Conservation' (91 FR 47779, July 29, 2026; Docket NRCS-2026-0067; RIN 0578-AA73), is an interim rule with request for comments issued by USDA's Office of the Secretary. It is not a proposed rule and not a direct final rule. It took effect on publication, July 29, 2026. Comments had to be received by September 28, 2026, so the comment period has closed.

  91 FR 47779 (July 29, 2026), FR Doc. 2026-15284 [7]
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  [Docket ID NRCS-2026-0067] RIN 0578-AA73 Highly Erodible Land and Wetland Conservation AGENCY: Office of the Secretary, USDA. ACTION: Interim rule with request for comments. ... DATES: This rule is effective July 29, 2026. Comments concerning this rule must be received by September 28, 2026.

  Open USDA Office of the Secretary (Federal Register via govinfo.gov) (opens in a new tab)

• StatusSTATUS - INTERIM RULE (purpose): USDA says that previously NRCS had discretion to decide whether a determination made between November 28, 1990 and July 3, 1996 was certified; the interim rule confirms those determinations are certified if the affected person was notified of the certification and provided appeal rights. USDA says the rule does not change the certification status of pre-1996 determinations as stated in the 1996 regulatory preamble, but changes how they will be treated.

  Applies when: Landowner with a 1990-1996 wetland determination 91 FR 47784 (July 29, 2026), preamble sec. IV.B [7]
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  This interim rule does not constitute a change in the certification status of pre-1996 determinations as established in the regulatory preamble to the 1996 text ... However, this interim rule changes how these determinations will be treated. Previously, discretion was left to NRCS to decide if a determination conducted between November 28, 1990, and July 3, 1996, was certified; however, this rule confirms that those determinations are certified if the person affected by the determination was notified of the certification and provided appeal rights.

  Open USDA Office of the Secretary (Federal Register via govinfo.gov) (opens in a new tab)

• StatusSTATUS - INTERIM RULE (effect for landowners): USDA states that if a determination is certified, a producer can act on it immediately without going through a new determination; a producer who disagrees can ask for the existing certification to be reviewed; and NRCS has no independent authority to question prior certified wetland determinations of land in agricultural use; only the affected person may request review.

  Applies when: Landowner relying on an existing certified determination when siting a pond 91 FR 47783-47784 (July 29, 2026), preamble secs. IV.A and IV.C [7]
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  If a determination is certified, a producer can immediately act based on the certification and does not have to ... If a producer disagrees with a certified wetland determination, the producer can ask for the existing certification to be reviewed. ... NRCS has no independent authority to question prior certified wetland determinations of land in agricultural use. Only a person affected by the prior determination may request a review of their determination.

  Open USDA Office of the Secretary (Federal Register via govinfo.gov) (opens in a new tab)

• StatusCONFLICTING AGENCY GUIDANCE (flag): As retrieved on 2026-09-28, NRCS's 'Certified Wetlands Determination' page still states a pre-interim-rule test for 1990-1996 determinations: they are considered certified if issued on or after the June 1991 version of form NRCS-CPA-026 or SCS-CPA-026 and the associated map is of sufficient quality to identify presence or absence of wetlands. The July 29, 2026 interim rule (7 CFR 12.30(c)(1)) instead makes notice of certification plus information on the right to appeal the test.

  Applies when: Landowner with a wetland determination issued between November 28, 1990 and July 3, 1996 NRCS 'Certified Wetlands Determination' FAQ page (compare 7 CFR 12.30(c)(1) as revised July 29, 2026) [5]
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  All wetland determinations made after July 3, 1996 are certified wetland determinations. Determinations made after November 28, 1990, and before July 3, 1996, are considered certified if the determination was issued on or after the June 1991 version of form NRCS-CPA-026 or SCS-CPA-026, and the associated map is of sufficient quality to identify presence or absence of wetlands.

  Open USDA Natural Resources Conservation Service (opens in a new tab)

How Swampbuster determinations relate to Section 404

Under the 2022 USDA/Army/EPA Ag Memo, which states it does not have the force and effect of law, NRCS decides whether land is prior converted cropland for Food Security Act purposes and the Corps and EPA decide whether the Clean Water Act exclusion applies; a Corps or EPA decision on that exclusion does not affect a landowner's USDA eligibility. EPA's 'Clean Water Act Section 404 and Agriculture' page, last updated July 24, 2026, still lists the memo, and no rescission was found in the sources reviewed. [8][20]

The memo says the Clean Water Act prior-converted-cropland exclusion covers only wetlands, not other non-wetland aquatic resources such as tributaries, ponds, or ditches within land designated prior converted cropland. NRCS policy is to mark water features on certified determination maps that do not meet Food Security Act wetland criteria but are potentially subject to the Clean Water Act, including streams, lakes, ponds and rivers, as Potential Jurisdictional Waters (PJW); PJW designations are informational only and not appealable to USDA, and areas NRCS does not flag as PJW might also be subject to the Clean Water Act. [8][21]

A 1990 EPA/Army memorandum that EPA still posts, discussing the section 404(f)(1)(A) normal-farming exemption, says construction of fish ponds is not an exempt activity and that the normal-farming exemption applies only to wetlands already in use for agricultural crop production. The Clean Water Act's exemption for construction or maintenance of farm or stock ponds is a separate provision, section 404(f)(1)(C), and is subject to the recapture provision in 404(f)(2). [22][23]

PROPOSED, not in effect (no final rule as of September 28, 2026): under the November 20, 2025 proposed 'Updated Definition of Waters of the United States' rule, USDA would still decide prior-converted-cropland status for Food Security Act purposes, and prior converted cropland would be considered abandoned if not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. The agencies say their implementation of that exclusion would not affect USDA's administration of the Food Security Act or a landowner's eligibility for its programs. [24]

• AgencyAGENCY GUIDANCE (2022 Ag Memo): NRCS decides whether land is prior converted cropland for Food Security Act purposes; the Corps and EPA decide whether the CWA prior-converted-cropland exclusion applies. The Corps and EPA will recognize any NRCS certified wetland determination on whether land is prior converted cropland, then evaluate whether the exclusion currently applies or has ended through a 'change in use'. A Corps or EPA determination on the CWA exclusion does not affect USDA's administration of the Food Security Act or a landowner's eligibility for USDA program benefits.

  Applies when: Pond site on land that may be prior converted cropland 2022 Ag Memo, sec. III [8]
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  When determining whether a feature meets the definition of "waters of the United States" and is subject to CWA jurisdiction, the Corps and EPA will recognize any NRCS CWD as to whether a land area is prior converted cropland when evaluating the applicability of the prior converted cropland exclusion. ... A Corps or EPA determination of the applicability of the prior converted cropland exclusion for CWA purposes does not affect the USDA administration of the FSA or a landowner's/operator' s eligibility for USDA program benefits.

  Open USDA NRCS / Department of the Army / U.S. EPA (posted by EPA) (opens in a new tab)

• DefinitionAGENCY GUIDANCE (2022 Ag Memo): The CWA prior-converted-cropland exclusion covers only wetlands; it does not exclude non-wetland aquatic resources such as tributaries, ponds, or ditches located within land designated as prior converted cropland, and it does not apply to areas USDA designates under other Food Security Act exemptions (such as farmed wetlands) or to areas meeting the USDA wetland definition without a PC designation.

  Applies when: Pond or stream on land designated prior converted cropland 2022 Ag Memo, sec. III [8]
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  The CWA exclusion for prior converted cropland only excludes wetlands and does not exclude other types of non-wetland aquatic resources (e.g., tributaries, ponds, ditches) that are located within a land area designated as prior converted cropland. The exclusion for prior converted cropland does not apply to areas designated by USDA as meeting other Food Security Act exemptions, including exemptions for farmed wetlands, or areas that meet the USDA definition of wetlands and do not have a prior converted cropland designation.

  Open USDA NRCS / Department of the Army / U.S. EPA (posted by EPA) (opens in a new tab)

• ProcessAGENCY GUIDANCE (2022 Ag Memo): Under the memo, the Corps intends to include standard language in all written delineations stating they may not be valid for the Food Security Act wetland conservation provisions and that USDA program participants (or those anticipating participation) should discuss the applicability of an NRCS certified wetland determination with the local USDA service center before starting work; and NRCS intends to include language in all written certified wetland determinations stating they may not be valid for identifying the extent of CWA jurisdiction and that anyone intending a discharge of dredged or fill material into wetlands or other waters should contact the local Corps district office before starting work.

  Applies when: Landowner who has one agency's determination and assumes it covers the other program 2022 Ag Memo, sec. V(C)(1)-(2) [8]
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  This delineation may not be valid for the Wetland Conservation Provisions of the Food Security Act ... you should discuss the applicability of an NRCS Certified Wetland Determination with the local USDA service center, prior to starting work. ... This determination may not be valid for identifying the extent of Clean Water Act jurisdiction for this site. If you intend to conduct any activity that constitutes a discharge of dredged or fill material into wetlands or other waters, you should contact the local district office of the U.S. Army Corps of Engineers prior to starting work

  Open USDA NRCS / Department of the Army / U.S. EPA (posted by EPA) (opens in a new tab)

• ProcessNRCS POLICY: NRCS marks water features on certified wetland determination maps that are not subject to the Food Security Act wetland provisions but are potentially subject to the CWA (including streams, lakes, ponds and rivers) with a cautionary 'Potential Jurisdictional Waters' (PJW) icon. PJW designations are informational only and not appealable to USDA, and other areas not flagged as PJW might also be subject to the CWA.

  Applies when: Pond site with an existing stream, pond, or other water feature NRCS National Food Security Act Manual, 180 M Part 514 Subpart A, sec. 514.1(J)(2) [21]
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  These water features will be designated as Potential Jurisdictional Waters (PJW). Water features located within the area of the certified wetland determination map; including, but not limited to streams, lakes, ponds, rivers, and other water features which do not meet FSA wetland criteria; will be identified with the icon. ... PJW are for informational purposes only and are not appealable to USDA. Additional areas, not identified by NRCS as PJW, might also be subject to the Clean Water Act.

  Open USDA Natural Resources Conservation Service (NRCS eDirectives) (opens in a new tab)

• AGENCY GUIDANCE (1990 EPA/Army memorandum, still posted by EPA): In discussing the section 404(f)(1)(A) 'normal farming' exemption, EPA and the Army stated that construction of fish ponds is not an exempt activity, and that the normal-farming exemption applies only to wetlands already in agricultural crop production. The memo also states that use of a 404(f) exemption does not affect section 404 jurisdiction.

  Applies when: Fish pond construction in wetlands EPA/Army, 'Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural Activities' (May 3, 1990) [22]
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  Similarly, the rotation of rice and crawfish production is also exempt (construction of fish ponds is not an exempt activity and is addressed below). ... the Section 404(f) exemption for "normal farming activities" and the General Permit being developed for fish ponds apply only to the use of wetlands which are already in use for agricultural crop production. ... It should be emphasized that the use of Section 404(f) exemptions does not affect Section 404 jurisdiction.

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• StatusPROPOSED (not in effect): Under the November 20, 2025 proposed 'Updated Definition of Waters of the United States' rule, USDA would still decide whether land is prior converted cropland for Food Security Act purposes, while EPA and the Corps would decide whether the CWA exclusion applies; the agencies would recognize a USDA prior-converted-cropland determination when making their own CWA determination, and a landowner without one could seek a new determination from either USDA or the agencies.

  Applies when: Pond site on land that may be prior converted cropland 90 FR 52537 (Nov. 20, 2025) (PROPOSED) [24]
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  The USDA is responsible for making determinations as to whether land is prior converted cropland for its Food Security Act purposes, whereas the agencies would be responsible for determining applicability of the exclusion for Clean Water Act purposes under the proposed rule ... However, the agencies would recognize a USDA determination of prior converted cropland when making their own determination for purposes of the Clean Water Act. A landowner without an existing prior converted cropland determination may seek a new determination from either the USDA or the agencies.

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