Monday, September 14, 2020

NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part One


The Congress, with passage of the 1985 Farm Bill, tied participation in federal farm programs to conservation requirements related to “highly erodible land” and “wetlands”  New concepts were introduced such as the Conservation Reserve Program, Sodbuster, Swampbuster, and abandoned cropland, just to name a few.  Of course, the “dirt is in the details” and that meant that terms needed to be defined so that a farmer could identify highly erodible land as well as wetland.  A farmer participating in federal farm programs must annually certify compliance with the conservation requirements, and production activities on areas that the government has identified as “protected” under the conservation rules can lead to ineligibility for farm program benefits.

The sub-agency within the United States Department of Agriculture (USDA) responsible for developing, administering and enforcing the rules for the various conservation programs is the Natural Resources Conservation Service (NRCS).  Late last month, the NRCS issued a Final Rule for both the highly erodible land and the conservation provisions of the 1985 farm bill.  85 Fed. Reg. 53137.  While the Final Rule is purportedly designed to bring clarity to the delineation process and aid farmers in avoiding farming activity that could result in farm program ineligibility, the Final rule does no such thing.  Instead, the Final rule expands the federal government’s regulatory power and diminishes landowner rights. 

The NRCS Final Rule on the conservation provisions of the 1985 Farm Bill – it’s Part One of a Two-Part Series and is the topic of today’s post.

The Basics – Delineation and Conversion 

The NRCS delineates (identifies) where highly erodible land and wetland is present so that a farmer can avoid farming activities in those areas.  As for wetland, the 1985 Farm Bill charged the Soil Conservation Service (SCS) with creating an official wetland inventory with a particular tract being classified as a wetland if it had (1) the presence of hydric soil; (2) wetland hydrology (soil inundation for at least seven days or saturated for at least 14 days during the growing season); and (3) the prevalence of hydrophytic plants under undisturbed conditions.  7 C.F.R. §12.30(c)(7).  In other words, to be a wetland, a tract must have hydric soils, hydrophytic vegetation and wetland hydrology. The presence of hydrophytic vegetation, by itself, is insufficient to meet the wetland hydrology requirement and the statute clearly requires the presence of all three characteristics.  See B&D Land & Livestock Co. v. Schafer, 584 F. Supp. 2d 1182 (N.D. Iowa 2008). The determination of highly erodible land involves the use of an “erodibility index” for a soil based on factors such as annual rainfall, the degree to which the soil resists erosion, and the steepness of the area.  7 C.F.R. § 12.21 (a)(1)(i)-(iii).

In addition to delineating land that cannot be farmed without violating the conservation rules, the NRCS also must determine whether wetland or highly erodible land has been impermissibly “converted” from its protected status to being farmed.  But, in general, if the land at issue was converted to use in a farming operation before the 1985 Farm Bill conservation rules took effect, it will maintain its status as land that can be farmed without violating the conservation rules.  Indeed, the conference committee report a week before the 1985 Farm Bill was signed into law stated that wetland conversion was considered to be “commenced” when a person had obligated funds or begun actual modification of a wetland.

The conservation rules have been modified multiple times since their 1985 Farm Bill version.  Those modifications have largely dealt with the issues of conversion, “minimal effects,” and mitigation. 

New Rules

In late 2018, the USDA published a new interim rule concerning the conservation provisions that originated with the 1985 Farm Bill.  On August 28, 2020, those Final Rule was published.  The Final Rule adds definitions for “wetland hydrology,” “normal climatic conditions,” and “best drained condition.”  The Final Rule also modifies the manner in which the NRCS is to delineate the various types of wetland and states that wetland determinations made between 1990 and 1996 are to be “certified” such that USDA benefits will not be denied if a farmer conducts farming activities on land that is covered by such a certification.  7 C.F.R. §12.5(b)(6)(i).   

The Final Rule also says that USDA is to make a “reasonable effort” to include the “affected person” in an on-site investigation before determining that a wetland violation exists.  In addition, the Final Rule specifies that if a landowner disagrees with an “off-site” determination concerning a highly erodible soil determination, NRCS is to make a field visit (on-site) determination. 

Deeper Dive – Digging into the Final Rule

According to the NRCS the Final Rule does farmers a favor by providing clearer guidance on the determination of land subject to the conservation rules, the farming of which would disqualify the farmer from program benefits.  But, is that true?  A deeper analysis of the Final Rule portends the opposite. 

What follows is a section-by-section commentary on the Final Rule.

Summary section.  The NRCS claims that the Final Rule was prepared to clarify how the USDA delineates, determines and certifies wetlands located on subject land in a manner sufficient for making determinations of ineligibility for certain USDA program benefits.  That is a misrepresentation of the purpose of the Final Rule.  The Final Rule does not clarify as much as it alters how the NRCS makes these determinations so as to make the process more convenient for the NRCS, and making appeals from that convenient, simplified process more difficult.  The Final Rule also represents a step away from the possible (but often inconvenient) scientific determination of wetland hydrology in regularly cropped farmed wetland across the prairie pothole region (a significant portion of the northern Great Plains and north-central Iowa and south-western Minnesota).

Supplementary Information - Background section.  This section provides background information concerning highly erodible land and wetland and the charge to the USDA by the Congress as part of the 1985 Farm Bill.  The NRCS claimed in its late 2018 interim rule that its Final Rule would provide “transparency” to USDA program participants and stakeholders concerning how USDA delineates, determines, and certifies wetlands. It also claimed that it was providing information so that farmers could “better understand” actions that may result in ineligibility for USDA farm program benefits. 

However, the reality of the Final Rule is that such “transparency” and “understanding” is defined to mean that the NRCS will unilaterally decide that status of a tract based on its own determination by virtue of its best “guestimate.”  That is evidenced by the statement in this section that, as part of the wetland delineation process that a, “[w]etland hydrology determination will be made in accordance with the current Federal wetland delineation methodology in use by NRCS at the time of the determination.”  A landowner may appeal such a determination, but given the deference that courts give to administrative agencies concerning the interpretation of agency rules, succeeding in overturning such a determination will be difficult.  See Auer v. Robbins, 519 U.S. 452 (1997).

Summary of Public Comments section.  In this section, the NRCS points out that, “[o]nsite wetland determinations and aerial imagery do not constitute an unreasonable search or seizure.  Its rationale is that a wetland determination for purposes of determining eligibility in voluntary USDA programs is not part of a criminal law proceeding.

Abandonment of Farmed Wetland and Farmed Wetland Pasture section.  Here, the NRCS asserts that the Final Rule made no changes in the interim rule with respect to abandonment of farmed wetlands and farmed wetland pasture.   7 CFR §12.33(c). Abandonment applies to farmed wetland and farmed-wetland pasture when wetland conditions return after December 23, 1985, unless certain conditions are met. NRCS states that this is a part of “long-standing policy and regulation.”  Here, the NRCs stated that it was reaffirming that USDA program participants may continue to farm farmed wetlands and farmed wetland pasture under natural conditions without risk of losing their eligibility for USDA program benefits, as long as additional hydrological manipulations do not occur.

Administrative Procedure Act section.  In this section, the USDA claims that it is not required to promulgate the conservation rules contained in  7 C.F.R. part 12 pursuant to notice and comment rulemaking under the APA.   While it mentions that §1246 of the 1985 Farm Bill, as amended by the Agricultural Act of 2014, specified that the promulgation of regulations and administration of the conservation programs are to be subjected to public notice and comment, it claims that the APA requirements for notice and comment do not apply to a matter relating to public property, loans, grants, benefits, or contracts. 5 U.S.C. §553(a)(2).  Because the matters identified in the 2018 interim rule relate to USDA program grants and other benefits, the USDA claimed that notice and comment rulemaking are not required under the APA.

However, the NRCS does not explain why all the rules, practices and policies issued and implemented before 2014 were not subjected to the APA.  Similarly, the NRCS does not explain why the requirement of the 1996 Farm Bill that all changes in policies regarding highly erodible land and wetland conservation be adopted pursuant to the APA’s rulemaking and comment procedures.  Before the adoption of the Final Rule, the NRCS had acknowledged that the 1996 Farm Bill provision remains applicable by citing it in the June 2017 rulemaking for the promulgation of the State Off-Site Method (SOSM) for the prairie pothole states.  But, it should be noted, that the Iowa NRCS changed its SOSM in December of 2018 without following notice and comment procedures. 

Appeals section.  The NRCS claims in the Final Rule that it will use the delineation methodology in use at the time of a particular delineation.  But, will the states follow this approach?  For example, the Iowa NRCS has steadfastly refused to accept the application of the Soil, Plant, Atmosphere, Water (SPAW) software for wetland surface ponding hydrology even though it was and is a method accepted by the NRCS in its wetland hydrology tools.

Area of Request for Certified Wetland Determinations section.  Here, the NRCS notes that wetland determinations, delineations, and certifications may be done on a tract, field, or sub field basis.

Best Drained Condition section.  The NRCS claims that allowing the “best drained condition” of a tract is intended…” to provide clarity regarding a long-standing and practiced statutory concept that is fundamental to the identification of…” hydrologically altered farmed wetlands.  Calling this assertion a “stretch” is an understatement of substantial degree.  The phrase “best drained condition” is derived from Barthel v. United States Department of Agriculture, 181 F.3d 984 (8th Cir. 1999).   In that case, the U.S. Court of Appeals for the Eighth Circuit held that the plaintiff landowners were entitled to the historic “wetland and farming regime” of a 450-acre hay meadow irrespective of the degree of manipulation of a ditch drainage device . After more than 15 years and multiple contempt actions brought against the U.S. Secretary of Agriculture in the Barthel litigation, the NRCS finally recognized that the Barthel decision meant that it had to apply a historic drainage (i.e., “best drained condition”) test to wetland determinations, and that the focus of the analysis was not to be on the manipulation of the drainage device, but rather on the effect of the manipulation of the drainage device on the subject property.    

Under the Final Rule, the NRCS explains how “best drained condition” is to be identified.  The NRCS asserts that the decision is to be made based upon the best available evidence.  That could include remote resources such as historical aerial imagery or other historical evidence. Indeed,  this is what the NRCS does in practice.  NRCS personnel make a decide whether or not the drainage outlet (device) is in good condition by examining the available historic aerial photographs and identifying one as providing the best historic drainage.  If the existing drainage matches that historic drainage, then aerial imagery may be used.  That’s what constitutes “best available evidence.”  One of a handful of aerial photographs taken between 1935 and 1985 is picked as the best by the agency expert.  Then it is set aside never to be used again.  The agency expert then judges if the outlet is compromised. 

This is “clarity” and “transparency.”  The NRCS personnel make a judgment call about best historic drainage and the landowner must either accept or challenge it subject to a “substantial deference” standard.   This strategy allows the NRCS to playing the regulatory and judicial system to the government’s advantage rather than focusing on a serious attempt to make an accurate determination of what is the best historic drainage even though scientific methods exist to make that determination.


In Part Two, I will examine the remaining parts of the Final Rule and provide some concluding thoughts.

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