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(1Χ Σ F) + (2x Σ F) + (3 X ΣF) + (4Χ Σ F) +

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termination by SCS is exempt under $ 12.5(d) of this part. However, any additional action of a person that will change the hydrological or biological characteristics of a wetland for which a minimal effect determination has been made shall be reported to SCS for a determination of whether the effect continues to be minimal. The loss of a minimal effect determination will cause a person who produces an agricultural commodity on the converted wetland after such change in status to be ineligible, under $ 12.4, for program benefits. (52 FR 35200, Sept. 17, 1987, as amended at 53 FR 3999, Feb. 11, 1988)

(B) A mean prevalence index (PI) value of less than 3.0 shall indicate that the area exhibits a prevalence of hydrophytic vegetation.

(c) Artificial wetland. (1) An area shall be considered to be an artificial wetland for the purposes of $ 12.5(d)(1) (ii) and (iii) of this part if such area was formerly nonwetland or wetland on which conversion was started or completed before December 23, 1985, but now meets wetland criteria due to the action of man.

(2) Notwithstanding the provisions of paragraph (c)(1) of this section, wetlands which are created in order to mitigate the loss of other wetlands as a result of irrigation, recreation, municipal water, flood control or other similar projects shall not be considered to be artificial wetland for the purposes of $ 12.5(d)(1) (ii) and (iii) of this part. (d) For the

purposes of $ 12.5(d)(1)(v) of this part, SCS, in consultation with the Fish and Wildlife Service, U.S. Department of the Interior, shall determine whether the effect of any action of a person associated with the production of an agricultural commodity on converted wetland has a minimal effect on the hydrological and biological aspect of wetlands. Such determination shall be based upon environmental evaluation analyzing the effect of the action on the maintenance of wetland values of the particular wetland under consideration and other related wetlands, and 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 to demonstrate to the satisfaction of SCS that the effect was minimal. The production of an agricultural commodity on any portion of a converted wetland in conformance with a minimal effect de

an

$ 12.32 Converted wetland identification

criteria. (a) Converted wetland shall be identified by determining whether the wetland was altered so as to meet the definition of converted wetland set forth in $ 12.2(a)(6). In making this determi. nation, the following factors are to be considered:

(1) Where hydric soils have been used for production of an agricultural commodity and the drainage or other altering activity is not clearly discernable, SCS will compare the site with other sites containing the same hydric soils in a natural condition to determine if the hydric soils can or cannot be used to produce an agricultural commodity under natural conditions. If the soil on the comparison site could not produce an agricultural commodity under natural conditions, the subject wetland will be considered to be converted wetland.

(2) Where woody hydrophytic vegetation has been removed from hydric soils which permits the production of an agricultural commodity, and wetland conditions have not returned as the result of abandonment under $ 12.33(b), the area will be considered to be converted wetland.

(3) A pothole or a playa shall not be determined to be converted wetland

or

despite manipulations that occurred prior to December 23, 1985, if that area continues to meet wetland criteria. Any other wetland area that is seasonally flooded or ponded (surface water is present for extended periods especially early in the growing season even though it may be absent by the end of the season in most years) which has been manipulated prior to December 23, 1985 but otherwise continues to meet wetland criteria, shall not be determined to be converted wetland.

(b) A wetland shall not be considered to be converted if:

(1) Production of an agricultural commodity on such land is possible as a result of a natural condition, such as drought, and

(2) It is determined that the actions of the person producing such agricultural commodity does not permanently alter or destroy natural wetland characteristics. Destruction of herbacaeous hydrophytic vegetation, (i.e., plants other than woody shrubs or trees) as a result of the production of an agricultural commodity shall not be considered as altering or destroying natural wetland characteristic if such vegetation could and has been allowed to return following cessation of the natural condition which made production of the agricultural commodity possible.

was converted or the minimum area the commenced activity could convert. Maintenance or improvement of these converted wetlands for the production of agricultural commodities are not subject to this rule so long as such actions do not bring additional wetland into the production of an agricultural commodity. Additional wetland means any natural wetland or any converted wetland that has reverted to wetland as the result of abandonment of crop production. Abandonment is the cessation of cropping, management maintenance operations related to the production of agricultural commodities on converted wetland. Where the cessation of such cropping, management or maintenance operations has occurred, converted wetland is considered to be abandoned unless it is shown that there was no intent to abandon; provided, however, that at the end of five successive years during which there was no crop production, such land shall be determined to be abandoned if the land meets the wetland criteria of $ 12.31. Participation in a USDA set-aside, diverted acres, or similar programs shall not be deemed to constitute abandonment.

PART 14-DETERMINING THE PRI

MARY PURPOSE OF CERTAIN PAYMENTS FOR FEDERAL TAX PURPOSES

8 12.33 Use of wetland and converted wet.

land. (a) The provisions of $ 12.32(a)(3) are intended to protect remaining functional values of the wetlands described therein. Persons may continue 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 SCS determines the effect on remaining wetland values would

be

minimal under $ 12.5(d)(1)(v).

(b) Unless otherwise provided in this part, the production of an agricultural commodity on wetlands that were converted before, or for which the conversion was commenced before, December 23, 1985, is exempted by law from these regulations for the area which

Sec. 14.1 Purpose. 14.2 Applicability. 14.3 Objective. 14.4 Policy. 14.5 Procedure. 14.6 Criteria for determining the primary

purpose of payments with respect to po

tential exclusion from gross income. 14.7 Non-Federal programs and payments.

AUTHORITY: Sec. 543, Pub. L. 95-600; as amended by sec. 105, Pub. L. 96-222; 26 U.S.C. 126, 1255 and 5 U.S.C. 301.

SOURCE: 45 FR 58507, Sept. 4, 1980, unless otherwise noted.

§ 14.1 Purpose.

(a) Part 14 sets forth criteria to be used by the Secretary of Agriculture in determining the primary purpose of certain payments received by persons under applicable programs. Determining the primary purpose for which applicable payments are made is one step toward the exclusion of all or part of the payments from gross income for Federal income tax purposes.

(b) The criteria set forth in Part 14 apply only to the determinations to be made by the Secretary of Agriculture.

(10) Any program of a State, a possession of the United States, a political subdivision of a State or a possession of the United States, the District of Columbia, or a combination of any of the foregoing under which payments are made primarily for the purpose of conserving soil and water resources, protecting or restoring the environment, improving forests, or providing a habitat for wildlife.

(b) The criteria set forth in § 14.5 for determining the primary purpose of payments with respect to their eligibility for exclusion from gross income shall also be used to determine the applicability of this part to payments received under non-Federal programs as provided in § 14.2(a)(10).

8 14.3 Objective.

The objective of the determinations made under Part 14 is to provide maxi. mum conservation, environmental, forestry improvement, and wildlife benefits to the general public from the operation of applicable programs.

§ 14.2 Applicability.

(a) Part 14 applies only to payments received under the programs listed in paragraphs (a) (1) through (10) of this section. Payments received under programs not listed in paragraphs (a) (1) through (10) of this section, are not considered eligible for exclusion from gross income under this part.

(1) The rural clean water program authorized by section 208(j) of the Federal Water Pollution Control Act (33 U.S.C. 1288(j)).

(2) The rural abandoned mine program authorized by section 406 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1236).

(3) The water bank program authorized by the Water Bank Act (16 U.S.C. 1301 et seq.).

(4) The emergency conservation measures program authorized by Title IV of the Agricultural Credit Act of 1978 (16 U.S.C. 2201 et seq.).

(5) The agricultural conservation program authorized by the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590a).

(6) The Great Plains conservation program authorized by section 16 of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590p(b)).

(7) The resource conservation and development program authorized by the Bankhead-Jones Farm Tenant Act and by the Soil Conservation and Do. mestic Allotment Act (7 U.S.C. 1010; 16 U.S.C. 590a et seq.).

(8) The forestry incentives program authorized by section 4 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2103).

(9) Any small watershed program administered by the Secretary of Agriculture that is determined by the Secretary of the Treasury or his delegate to be substantially similar to the type of programs described in paragraphs (a) (1) through (8) of this section.

§ 14.4 Policy.

Federal tax, conservation, natural resource, and environmental policies should complement rather than conflict with one another. Therefore, the Federal income tax liability on applicable payments should be reduced or eliminated to the extent that the payments yield conservation, environmental, forestry improvement, or wildlife benefits to the general public beyond the benefits that accrue to those who receive the payments.

$ 14.5 Procedure.

(a) The portion of an applicable pay. ment that may be excluded from gross income under Part 14 shall be that portion or all, as appropriate, that

(1) Is determined to be made primarily for the purpose of conserving soil and water resources, protecting or restoring the environment, improving forests, or providing wildlife habitat; and

(2) Is determined by the Secretary of the Treasury as not increasing substantially the annual income derived from the property associated with the payment.

(b) Primary purpose means the principal, fundamental, predominant, or independent objective for which a payment is made. The following shall be considered in determining the primary purpose of a payment:

(1) Single-purpose payments shall be considered as having that purpose as their primary purpose.

(2) Multiple-purpose payments. If a payment is made for several purposes, it may be considered as having soil and water conservation, environmental protection or restoration, forestry improvement, or providing wildlife habi. tat as its primary purpose to the extent of the portion of the payment that is made for one or more of such purposes.

(3) Where a purpose of a payment, or portion thereof, is in doubt, the following sources should be considered

(i) Authorizing legislation, legislative history, administrative regulation, administrative history, interpretive case law, and the administrative policies and procedures under which the applicable program operates and the payment is made; and

(ii) Agreements or other documentation accompanying the transfer of the payment;

(iii) Use made of the payment by the recipient.

(b) Water conservation. (1) Water conservation includes actions that, for a given level of water supply, reduce the demand for or use of water by

(i) Improving efficiency in use; (ii) Reducing loss and waste;

(iii) Increasing the recycling or reuse of water, thereby making existing supplies available for other current or future uses; or

(iv) Improving land management practices for the purpose of reducing water use, loss, waste, increasing the efficiency of water use, or increasing the recycling or reuse of water.

(2) Payments shall be considered to be made primarily for the purpose of water conservation if they are intended to finance actions, measures, or practices that can be expected to result in water conservation as defined in paragraph b(1) of this section.

(c) Protecting the environment. (1) Payments shall be considered to be made primarily for the purpose of protecting the environment if they are intended to finance actions, measures, or practices undertaken to prevent mancaused or man-induced reductions or degradations in the quantity or quality of the natural external or extrinsic conditions directly or indirectly affecting people.

(2) External or extrinsic conditions refer to the complex of natural conditions or circumstances, including but not limited to those affecting public health and safety, in which people reside or otherwise carry out their lives.

(d) Restoring the environment. (1) Payments shall be considered to be made primarily for the purpose of restoring the environment if they are intended to finance actions, measures, or practices undertaken to reestablish, return, or enhance the quantity or quality of the natural external or ex. trinsic conditions directly or indirectly affecting people that existed before the man-caused or man-induced degradation.

(2) External or extrinsic conditions have the same meaning with respect to restoring the environment as they do for protecting the environment.

(e) Improving forests. (1) Payments shall be considered to be made primarily for the purpose of improving for

8 14.6 Criteria for determining the pri

mary purpose of payments with respect to potential exclusion from gross

income. (a) Soil conservation. (1) Payments shall be considered to be made primarily for the purpose of soil conservation if they are intended to finance activities, measures, or practices to reduce soil deterioration.

(2) Soil deterioration refers to impairments of the physical or chemical properties of soil that are largely irreversible and that can be expected to esult in a long-term or permanent reduction in the productive capacity of the resource regardless of the level of technology available or applied. Erosion by water and wind and the associated changes that result in permanent or long-term reductions in the productive capacity of the soil are forms of soil deterioration.

ests if they are intended to finance ac- (c) Determining the primary purpose tions, measures, or practices undertak- of non-federal payments. The determien for the direct or indirect conserva- nation of the primary purpose for tion or enhancement of the quantity which non-Federal payments are made or quality of timber resources.

with respect to their potential for ex(2) Improving forests includes the clusion from gross income shall be generation and regeneration of timber made by using the criteria set forth in stands as well as the silvicultural im- Part 14 for determining the primary provement of such timber stands but

purpose of Federal payments. excludes harvest cuttings not under- (d) Procedure for determining the taken primarily for silvicultural im- primary purpose of payments made provement.

under non-Federal programs. (1) To (f) Providing habitat for wildlife. (1) initiate the process of determining the Payments shall be considered to be

applicability of this part to payments made primarily for the purpose of pro- received through non-Federal providing habitat for wildlife if they are grams and the primary purpose of the intended to finance actions, measures, payments for potential exclusion from or practices leading directly to the es- gross income, the non-Federal official tablishment of those physical and bio- responsible for the program through logical conditions or resources that which the payments are made should can be expected to support primarily provide six copies of the following manoncultivated and nondomesticated terials relating to the program to the animal and plant life. The animal and Secretary of Agricultureplant life must be of value to the (i) Authorizing legislation; public in their natural state apart (ii) Rules or regulations; from any value that may be realized (iii) Current policies and procedures from them as private economic gain. under which payments are made and

(2) Wildlife includes but is not limit- used; ed to species of terrestrial or aquatic (iv) A description of all practices or animals and plants.

measures for which payments are (3) Habitat includes, but is not limit- made and used; and ed to, the food supply, water supply, (v) Any other information that may and nesting and escape cover neces- be helpful in determining the purpose sary to support populations of wildlife for which payments, or portions therespecies. Included in the definition of

of, are made and used. wildlife habitat are domestic crops (2) Any changes in the supporting raised for the primary purpose of pro- documentation listed in paragraphs viding food supply or cover for specific (d)(1)(i) through (d)(1)(iv) of this secwildlife species.

tion, should be reported to the Secre

tary within 30 days of the date they 8 14.7 Non-Federal programs and pay.

become final. ments. (a) Definition of non-Federal programs. Non-Federal program means

PART 15-NONDISCRIMINATION any program of a State, a possession of the United States, a political subdi

Subpart A-Nondiscrimination in Federally-Asvision of any State or possession of the

sisted Programs of the Department of AgUnited States, the District of Colum

riculture-Effectuation of Title VI of the bia, or a combination of any of the

Civil Rights Act of 1964 foregoing.

(b) Applicability. Payments received Sec. through non-federal programs under 15.1 Purpose and application of part. which payments are made primarily

15.2 Definitions. for the purpose of conserving soil and

15.3 Discrimination prohibited.

15.4 Assurances required. water resources, protecting or restor

15.5 Compliance. ing the environment, improving for

15.6 Complaints. ests, or providing a habitat for wildlife

15.7 Intimidatory or retaliatory acts promay be considered for exclusion from

hibited. gross income under Part 14.

15.8 Procedure for effecting compliance.

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