Monday, December 7, 2015

Wetlands, revisited

Picture from Google Maps.  The pothole is approximately 150 feet wide by 250 feet long.

I was talking with one of my neighbors the other day.  I asked him when he was going to cut the Cottonwood trees that were growing in the pothole in the middle of his field.  They are thirty feet tall and growing about three feet a year.  The pothole is a bit smaller than an acre and I figured the shade and nutrient theft by those trees cost him between ten and twenty bushels of corn a year.

He told me, "I can't.  That is a wetland."  I did not dispute the issue but figured I would check it out.  It just seemed wrong that a man could not cut firewood on his own property.

Not Mr Kimball from Green Acres

I sent Andrea Stay, the Eaton Conservation District director an email explaining the situation and I asked her for clarification.  I have always found Ms. Andrea Stay to be informed, courteous...even cheerful.  I enjoy working with her.

This is her response (reprinted with her permission):

Because it is cropland, the regulation that would likely most impact your neighbor is the federal regulation through the USDA Food Security Act (swampbuster).  My recommendation is that a farmer come in and complete a form called the 1026 at the Farm Service Agency, 551 Courthouse Drive, Ste 2 Charlotte MI, and learn about what he can and cannot do in this wetland. It is my understanding that they will sometimes approve cutting and treating the stumps, but you cannot remove the stumps, thus converting the wetland to farmable acres. He would need to follow up with them directly to learn more (517) 543-1512.
Form 1026 is used to determine if the proposed activity violates any of the terms the land owner agreed to when they accepted USDA financial assistance.  Examples of that assistance includes CRP and crop insurance.  Noncompliance requires that the land owner repay the government last five years of assistance.

The second (set of regulations) is with the Michigan Department of Environmental Quality. More information at this link,4561,7-135-3313_3687-10801--,00.html - In accordance with Part 303 of Federal law, wetlands are regulated by MDEQ if they are any of the following:
  • Connected to one of the Great Lakes or Lake St. Clair.
  • Located within 1,000 feet of one of the Great Lakes or Lake St. Clair.
  • Connected to an inland lake, pond, river, or stream.
  • Located within 500 feet of an inland lake, pond, river or stream.
  • Not connected to one of the Great Lakes or Lake St. Clair, or an inland lake, pond, stream, or river, but are more than 5 acres in size.
  • Not connected to one of the Great Lakes or Lake St. Clair, or an inland lake, pond, stream, or river, and less than 5 acres in size, but the DEQ has determined that these wetlands are essential to the preservation of the state's natural resources and has notified the property owner.
The conditions most likely to apply to my neighbor are underlined.

Finally, I also recommend contacting your local drain commission office, soil erosion control permit program, and other local government offices as requirements may vary by location.

I hope this helps you and your neighbor, please let me know if you have more questions.

Today I made a trip over to the county seat to see if there were any more details I could glean.

Andrea reiterated that it is very expensive to fall out of compliance.  She was reluctant to speak in broad generalities because there is too much risk that the landowner might overlook some specifics.  The land owner might then take actions that would take them out of compliance. Andrea strongly recommends that anyone that has any questions or concerns to stop in and talk with USDA Farm Service Agency, Natural Resources Conservation Service, or your local conservation district to make sure that you do not take any action that would take you out of compliance.

Another look at the pothole.
For example, there is a permanent stream that is more than 500 feet west of the pothole.  That stream is shown in solid blue.  During high water, the stream spills out to the dotted blue line which is less than five hundred feet from the pothole. 
Battle Creek River at 5 Point Highway.  The floodplain is nearly a half mile across.
Another view.  This is a channel that is parallel to the main channel and a quarter mile from it.
In places with low gradient, those "flood plains" fill up with oxbows and abandoned stream beds.  Following the proper process protects the land owner if the stream re-routes to the east side of the flood plain.


There are other advantages to talking to the agents face-to-face.  Some things that don't appear to be a big deal to you or me are a big deal to them.  Talking to the agents ahead of time can save stress later on.

For instance, the field agents want to see stumps left after you timber out a pothole.  To them, stumps are like the tamper-proof ring on a medicine bottle.  They are evidence that the farmer will not (because he cannot) till the cleared land and put it into production.  Secondary benefits of leaving knee-high stumps is that the field agent has the option of inspecting the pothole from the road.  And finally, a pothole bristling with knee-high stumps is not attractive to the yahoos who like to mudbog on other people's property.

The agents might also suggest herbicide options that will be effective and keep you compliant.  Andrea (and her counterparts elsewhere) know who to contact to get the latest recommendations for specific herbicides, concentrations, application methods and any water amendments.  For example, Andrea's expert  might approve the use of small, trim paint rollers to coat the cambium layer of the freshly cut stumps with concentrated herbicide... fast, tidy and cheap.  That would keep the Cottonwood trees from resprouting.

The bottom line

There is a very high likelihood that my neighbor can timber off his pothole and still be in compliance but it would be stupid to not fill out the appropriate form(s) ahead of time.  The only reason he has not done it yet is that he is only losing $30-to-$60/year at current crop prices.  At some point the trees will be tall enough and crop prices high enough to make it worth his time fill out the Form 1026 (which can be done on-line) and drive over to the county seat and have a chat with Andrea


  1. I would no more ask the government what I can do on my property than I would ask the Church. The government simply doesn't care if I remove a single diseased tree per year from my own land, and as long as... well, maybe two diseased trees per year. Who's counting?

    Some things are simply not the government's business, so there is no reason to get them involved.

  2. I agree with you.

    The difference is that farmers are agreeing to those conditions when they enroll land in the Conservation Reserve Program or when they buy Crop Insurance.

    The agreement is just as morally binding as the clause in a bank mortgage that requires a home owner have house insurance for the duration of the mortgage.

    The land owner willingly puts himself on the hook when they sign the papers and take the money. Backing out of the agreement (i.e., violating the clauses) means they must return the money...which might be enough money to bankrupt the operation.

  3. After a few years, that is real money... I'd be going tomorrow, but that's just me.

  4. Farmers who use the USDA programs have to follow USDA rules on both sod busting and swamp busting. Everyone has to follow the wetland rules enforced by the Army Corps of Engineeers, and you do not want to get crosswise with them. Basically, if it is a wetland soil, you don't move dirt, and pushing out stumps is moving dirt. There is lots of wiggle room if you arrange in advance with the Corps for a project. The little streambed clearing I showed on my blog is a 108 Bonnie soil, which is usually a wetland soil if it is checked. It is adjacent to a 109 Racoon soil, which is also a wetland soil. It gets tricky, because the USDA may have it classed as previously cleared (Before the wetland law), but the Corps still may consider it a wetland. The prudent farmer does not excavate without checking because there are dire consequences. The town of Fairfield, Illinois cleared wetland timber without permitting first, and so that project is shut down, and they had to purchase previously cleared ground and plant trees for mitigation. My first step in any landowner request for forestry help is to bring up a soil map for the property. It tells me what trees will be growing there, and a whole lot more. I have saved many landowners from trouble because they did not know they had wetland soils. We get new landowners who don't know my area who think they can put a septic field in a floodplain, because they don't realize it's a floodplain. It's a hard lesson sometimes.


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