Farm and environmental groups agree the Natural Resources Conservation Service needs to review and revise new Swampbuster regulations. Where they disagree is on the substance of those changes.

To the American Farm Bureau Federation, which submitted comments Tuesday on an interim final rule published in December, NRCS already has too much discretion in making wetland calls that determine whether producers can collect crop program payments. The rule, AFBF said, is unclear in many respects.

For example, “Whether intentional or not, this interim rule expands the farmed wetland category by making it easier for USDA to designate land as a farmed wetland,” AFBF said in its comments. “By focusing exclusively on wetland hydrology in the definition of farmed wetland, USDA is regulating land that would not satisfy the three basic characteristics of a wetland that USDA and other federal agencies have recognized: hydric soils, hydrophytic vegetation, and wetland hydrology.”

"USDA has been making regulatory determinations with significant legal and economic consequences for regulated entities based on nothing more than guidance and policy without undertaking the required public process," AFBF added. "This error permeates from the initial wetland identification process through the appeals process, where USDA holds all the cards, leaving farmers without the necessary tools to protect their property and due process rights."

The National Wildlife Federation, Izaak Walton League and more than 80 other groups, however, said they are “concerned that this rule promotes the exclusion of seasonal wetlands from the farm bill's wetland conservation compliance safeguards, encouraging additional wetland drainage in the Prairie Pothole Region and beyond.”

NWF and Ducks Unlimited said in comments that NRCS is allowing questionable determinations made between 1990 and 1996 to stand, even if they were not appealed, as NRCS has previously required.

“Of particular concern is the rule's certification of old (pre-1996) wetland determinations that have consistently excluded seasonal wetlands, have been shown to under-identify wetlands by as much as 75 percent, and that were for years considered too inaccurate to be used,” NWF and its fellow commenters said.

In the interim rule, NRCS said pre-1996 determinations are considered certified if “the person was notified that the determination had been certified, and the map document was of sufficient quality to determine ineligibility for program benefits.” It then defines “of sufficient quality” as meaning the map “be legible to the extent that areas that are determined wetland(s) can be discerned in relation to other ground features.”

NWF expressed concern that the interim rule does nothing to restrict NRCS "from issuing guidance permitting the agency to accept as certified the very pre-1996 determinations both Congress and the agency rejected as too inaccurate to determine eligibility for benefits, as long as the map documents are ‘legible’ and the producer was belatedly issued appeal rights.” NRCS has said that pre-1996 determinations are only considered certified if they have been appealed.

Ducks Unlimited said pre-1996 determinations, as a 2017 Office of Inspector General report “clearly demonstrated, are not of sufficient quality to determine eligibility for USDA program benefits, and the data and methods used to complete them do not meet the current, technically rigorous requirements that NRCS uses to complete certified wetland determinations.”

AFBF, however, said “USDA appears to be claiming for itself the discretion — after a wetland determination has been certified for years — to now determine that a decades-old map is of insufficient quality to uphold a certified determination.”

USDA “appears to be retroactively defining how prior wetland determinations were made,” AFBF added. “USDA’s regulations should expressly recognize that pre-1990 certifications are valid unless the producer raises the issue that they were never provided with appeal rights after passage of the 1990 Farm Bill.”

Another issue highlighted in the comments concerns the use of a 1971-2000 dataset to determine precipitation trends. North Dakota commodity groups and Ellingson Companies, a construction company specializing in drainage, said they were opposed to switching the dataset to a different 30-year period with “conditions wetter than those considered normal at the time Swampbuster was enacted” in 1985.

AFBF said NRCS needs to describe “why it thinks this 30-year time frame is appropriate from a scientific or policy perspective. At a minimum, the agency must explain (1) how it derived the date range, including identifying the data used, and (2) how it intends to apply the date range to ensure that it is representative of precipitation in 1985.”

Ducks Unlimited didn’t have a problem with the 1971-2000 time period, citing NRCS’ own environmental assessment to say “moving the dataset forward 10 years would create a situation where producers could request new determinations on the grounds that the existing determination is no longer a reliable indication of site conditions under the new dataset. This would ultimately result in a wave of producers requesting reviews of certified wetland determinations, leading to a significant backlog of new determinations, overwhelming agency resources and staff.”

“While the use of 30-year average precipitation data is not ideal, we accept this approach as a compromise position,” the National Association of Wheat Growers and American Soybean Association in their comments.

NWF and the other groups said NRCS should, in the context of using the best available science to make off-site determinations, consider using the 1981-2010 dataset. NRCS also should require that “its off-site delineation methods be subjected to quality control studies to ensure that off-site methods are not omitting seasonal wetlands on the landscape,” NWF said.

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