The Natural Resources Conservation Service has agreed to improve its wetland enforcement by taking a risk-based instead of a random approach to its annual compliance check, according to a Government Accountability Office report on wetlands compliance released Tuesday.

In a report that focused on practices in the Prairie Pothole region, particularly North and South Dakota, GAO found sparse and inconsistent enforcement of Swampbuster and Sodbuster provisions aimed at preserving wetlands and highly erodible land. A risk-based approach would target tracts “most likely to have violations,” GAO said.

“If NRCS used a risk-based approach for its compliance checks (e.g., using information on acres cultivated annually on tracts), it could more efficiently ensure compliance with wetland conservation provisions,” the report said.

From 2014 through 2018, “NRCS identified fewer than five farmers with wetland conservation violations per year on the approximately 417,000 tracts in North Dakota and South Dakota — the states with the most wetland acres,” the report said.

The Prairie Pothole region as a whole, which includes parts of Iowa, Minnesota, Montana and the Dakotas, has about 2.6 million wetland basins, GAO said, relying on an Interior Department report.

But when violations were found, Farm Service Agency committees controlled by local officials - often farmers - frequently granted “good-faith waivers” allowing growers to continue receiving farm payments, GAO said.

“From 2010 through 2018, FSA granted good-faith waivers for approximately 81% (243 of 301) of the farmers with wetland violations NRCS identified in North Dakota and South Dakota,” the report said.

GAO said FSA has agreed to strengthen its guidance “on what constitutes adequate justification and documentation for decisions to grant good-faith waivers.” The report had found that some county committees “relied on weak justification to grant waivers even if farmers had prior violations.”

“FSA further stated that it will strengthen county committee guidance to identify parameters for adequate justification and documentation, which it plans to complete by the end of October 2021,” GAO noted. 

The report also found state offices had not regularly completed quality control reviews, “a key tool for ensuring consistent wetland determinations, and NRCS’s headquarters is not overseeing state offices to ensure that they conduct them, as agency guidance directs.

“Without performing such oversight to ensure state offices conduct these reviews as directed in NRCS’s manual, the agency may be missing opportunities to correct deficiencies such as inconsistent application of wetland determination procedures,” GAO said.

GAO also found fault with some of the appeal decision letters to farmers, saying state offices “do not consistently provide evidence specific to the determinations, as called for in the agency’s appeals manual, because the template they use does not include this direction.”

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NRCS has been trying to apply its regulations more consistently, following a 2017 Inspector General report that found inconsistencies. It issued a final rule last year in an attempt to clarify its procedures.

On other recommendations, GAO said:

  • “NRCS agreed with our recommendation concerning the agency overseeing state offices to ensure they conduct quality control reviews of wetland determinations as directed in the agency’s manual.”
  • “NRCS also agreed with our recommendation about updating the template for appeal decision letters accompanying final wetland determinations to stipulate that the letters must include specific facts providing the basis for the determinations, as called for in the agency’s manual.”
    But the agency also disagreed with GAO’s characterization of the appeals process “resulting in changes allowing farmers to drain and cultivate crops on more of their land without violating wetland conservation provisions. The agency stated that the appeals process provides important opportunities for farmers to provide additional information, and that changes NRCS makes to wetland determinations may legally allow for activities including drainage.”
  • “Regarding our recommendation about NRCS clarifying guidance on how wetland specialists are to apply agency procedures for wetland determinations, NRCS partially agreed. Our recommendation originally specified that NRCS should clarify guidance on the best-drained condition standard and the manipulated wetland designation. The agency agreed that additional guidance is needed for the best-drained condition standard but questioned whether guidance needs to be clarified for the manipulated wetland designation.”
  • "Concerning our recommendation that the Secretary of Agriculture should ensure that the Chief of NRCS instructs state and field offices to consistently report any potential violations they observe, NRCS agreed that policy clarification is needed. NRCS said the agency will work with FSA and the Risk Management Agency to develop policy that clearly identifies when NRCS will submit reports of potential violations."

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