Is that wet spot in your field really a wetland? That’s a determination the Natural Resources Conservation Service would like to make. However, the agency is generating comments from people who think the proposed rule will either go too far or not far enough.
Wetland advocates are concerned that NRCS is trying to weaken its highly erodible land protections by allowing faulty maps to be used to determine whether wetlands exist on the landscape. Enacted in the 1985 farm bill, the so-called "Swampbuster" language prohibits farmers who have converted wetlands to cropland from receiving USDA program benefits.
The American Farm Bureau Federation, on the other hand, is worried NRCS may be giving itself too much leeway to determine when wetlands exist on the landscape.
For its part, NRCS says it is simply trying to make everything clearer for producers trying to figure out what’s on their lands.
The Dec. 7 interim final rule, which asks for comments by Feb. 5, would allow determinations made between 1990-96 to be “certified” for purposes of determining those benefits.
But groups such as Ducks Unlimited and the National Wildlife Federation say the rule deviates from longstanding NRCS practice and would allow conversion of many wetlands to cropland.
Their concern is the accuracy of maps developed before 1996. In 1997, NRCS itself said the agency “had made over 3 million wetland determinations using these maps and that 60 percent of these determinations were inaccurate,” according to an Office of Inspector General (OIG) report issued in January 2017.
The report started with a complaint from within NRCS that the agency had decided on its own in 2013 to start certifying pre-1996 determinations to deal with a backlog of requests. The backlog resulted from farmers seeking to bring land into production after commodity prices began to increase in 2009. NRCS offices in Minnesota, Iowa and North Dakota implemented the new policy, but other states did not.
Congress has rejected attempts that would let NRCS use the pre-1996 determinations, according to Ducks Unlimited’s Director of Public Policy Kellis Moss and its Director of Agriculture Policy, Andrew Schmidt.
“In our opinion, congressional intent is pretty clear that the pre-96 wetlands maps are insufficient,” Moss says.
The OIG report said in 13 of 17 cases it examined in North Dakota, protection of wetland acreage was reduced by 75 percent. Accepting the pre-96 determinations succeeded in reducing the backlog “but it also resulted in inaccurate wetland determinations,” OIG said in its report.
NRCS, however, says it’s merely trying to give producers more clarity and disputes that farmers had to go through an appeal process in order for wetlands to be certified.
Responding to questions from Agri-Pulse, NRCS National Leader for Wetland and Highly Erodible Land Conservation Jason Outlaw said there has been some question “whether pre-1996 determinations were considered certified, but there was never a requirement that pre-1996 determinations be appealed before they would be considered certified in national policy. Through the updated rule, we’re able to provide certainty to these producers with determinations made between 1990 and 1996.”
Outlaw also says the “updates” to the program “are explaining what the process for determining wetlands already is and describe what is already happening through administrative action. These changes will not lead to significant changes in what is considered a wetland and what isn’t.”
Scott VanderWal, president of the South Dakota Farm Bureau and vice president of AFBF, says Farm Bureau is "in the process of analyzing" the interim rule and plans to submit comments. So far, however, the rule looks to AFBF like NRCS is trying to give itself more latitude to regulate more wetlands.
Although the interim final rule was final upon publication in the Federal Register, NRCS issued a brief announcement recently, urging producers to weigh in. “As with all rules and regulations, NRCS considers the comments very seriously,” Outlaw said. “After the comments are evaluated, USDA will decide on a schedule for publishing a final rule.”