Tuesday, September 22, 2020
NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Loss of Property Rights? – Part Three
In Parts One and Two of this three-part series, I have gone through various parts of the preamble to the recently issued USDA/NRCS Final Rule involving highly erodible land and wetland. The rule is found at 85 FR 53137 and became effective August 28, 2020. In today’s article I conclude my discussion of the nuances of additional sections of the preamble to the Final Rule. The question is whether, as NRCS claims, the Final Rule bring clarity to the NRCS delineation process. Is that true? Will the Final Rule help farmers in avoiding a violation of the rules that could cause loss of farm program benefits and additional fines and penalties?
In this concluding article on the preamble to the Final Rule, I look at more areas that are of concern to farmers and ranchers. Part Three of the three-part series on the NRCS Final rule involving highly erodible land and wetland – it’s the topic of today’s post.
Setback Distance Concerns
In this section, the NRCS states that it is currently pursuing “improvements to the methods which are used to provide tile drainage setback distances from mapped wetlands to USDA program participants.” That’s an interesting way to put it. Presently, the NRCS is attempting to employ in the prairie pothole states a tripling of the calculated offset requirement where there is a preponderance of potential ground water discharge soils adjoining the farmed wetland. This is already happening in Iowa at the state level. There, a farmer must triple the setback or wait for the new requirements to be promulgated. For example, a recent Iowa matter involved a 70-acre farmed wetland pothole where the adjoining common soils were classified as discharge soils. The triple setback requirement increases the land area in which drain tile improvements cannot be made from 80 acres to more than 200 acres. This diminishes the value and profitability of the farm substantially.
The NRCS approach basically amounts to a regulatory “land-grab” in areas where drainage tile is already in place in the existing pothole and adjoining soils. Wetland hydrology is supposed to be determined under normal or average circumstances. Indeed, existing regulations specify that “normal circumstances” of the land does not refer to normal climate conditions but instead refers to soil and hydrologic conditions normally present without regard to the removal of vegetation. See, e.g., Boucher v. United States Department of Agriculture, 149 F. Supp. 3d 1045 (S.D. Ind. 2016). While it is true that under very wet conditions these soils may experience some groundwater discharge, it is also true that under normal conditions they rarely do because existing drainage tile normally keeps the water table below the surface.
Wetland Hydrology Indicators Section
In this section the NRCS states that the “USDA appreciates support for the changes made by the interim rule and the expressed concerns. In response, USDA is making changes in this final rule as explained below.” Thus, the NRCS has made material changes to the rule without inviting additional public comment. These changes are greatly impactful in the prairie pothole states.
In a prior post, it was noted that the NRCS failed to complete the administrative procedures associated with the interim final rule that was published in September 1996. Now NRCS asserts that the September 6, 1996 interim rule first established that “playa, pocosin, and pothole farmed wetlands and all farmed wetland pasture have required periods of inundation, ponding, or saturation.” This is the origin of the 7-days ponding criteria - an arbitrary NRCS determination in an uncompleted interim final rule for which public comments were ignored. The federal definition of wetland in the Clean Water Act does not have a ponding criteria. The criteria as set forth in the 1985 Farm Bill is that a particular tract constitutes a wetland if it has (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. In other words, to be a wetland, a tract must have hydric soils, hydrophytic vegetation and wetland hydrology. All three are required. See, e.g., B&D Land & Livestock Co. v. Schafer, 584 F. Supp. 2d 1182 (N.D. Iowa 2008). However, the NRCS intends to move forward with its definition of farmed wetland based upon an incomplete interim final rule and Food Security Act Wetland Identification Procedures located in its National Food Security Act Manual, Part 514, which was not subjected to the public notice and comment procedures of the Administrative Procedure Act.
The NRCS claims that “wetland hydrology field indicators are a valid and reliable method for the identification of wetland hydrology.” The NRCS further asserts that “it would not be an efficient use of analytic techniques or onsite hydrology monitoring in every farmed wetland determination when other valid methods exist. Let’s pick that claim apart. The NRCS is claiming that its methods are valid because NRCS has made an ipse dixit determination that the methods are valid. However, the NRCS has never monitored tests of mapped farmed wetland to determine the accuracy of its methods.
In 1991 the Congress directed the United States Environmental Protection Agency to engage the National Research Council (NRC) to review the several wetland determination methods of federal agencies. The impetus for the report was to resolve the differences between the 1987 and 1989 federal wetland delineation manuals. The NRC report, Wetlands Characteristics and Boundaries, was issued in 1995. It remains the best authority on wetlands. In Chapter 4 the NRC reviewed the NRCS standards for classes of wetland stating that, “A farmed wetland that is a playa, pothole or pocosin must be inundated for at least 7 consecutive days or saturated for at least 14 consecutive days during the growing season. Farmed wetlands that are not potholes, playas or pocosins must have a 50% chance of being seasonally flooded or ponded for at least 15 consecutive days during the growing season or for 10% of the growing season whichever is less. NFSAM specifically acknowledges that these especially restrictive guidelines are intended to protect the unique wetland functions of potholes, playas and pocosins.” The NRC did not endorse either the 1987 United States Army Corps of Engineer’s wetland manual or the USDA’s methodology for determining wetlands and their boundaries.
At the conclusion of Chapter 5 of the NRC report, Wetlands Characteristics and Boundaries, the NRC made 35 recommendations regarding wetland identification. The following are applicable to the discussion of the NRCS Final Rule:
- If direct hydrologic evaluation is needed, as in the case of altered sites or when evidence from substrate and biota is not conclusive, the evaluation should be based on water table data or on evidence of anoxia.
- Guidance should be developed for assessment of hydrologic alteration.
- If the hydrology of a site has been altered, evidence from soils or vegetation must be used only with support from hydrologic analysis, including the characteristic frequency, duration and depth of saturation.
- Federal agencies that regulate wetlands should hire regulatory staff that makes up a balanced mixture of expertise in plant ecology, hydrology, and soil science.
Recommendation No. 19 is of particular importance because it says, in essence, that for possible wetland sites with altered wetland hydrology the NRCS method should not be used. Instead, the hydrology must be proven. Hydrology can only be done using mathematical modeling or direct observation via monitoring. Unfortunately, in the Final Rule the NRCS takes the position that this cannot be done properly and that NRCS will simply make an off-the-cuff determination that is binding on farmers. At a minimum, for hydrologically altered prairie potholes, the hydrology should be required to be proven before any limitations on farming activities are applied.
In the Final Rule, the NRCS issues a challenge to all farmed wetland owners in the prairie pothole states by declaring, “The final rule change brings transparency and codifies the method by which these determinations have been made since the establishment of farmed wetland and farmed wetland pasture designations, by stating that areas manipulated prior to December 23, 1985 but which retain wetland hydrology, as determined through Step 1 of the wetland determination process in Rule Section 12.30( c)(7) and application of the procedures described in Rule Section 12.31( c), meet the required hydrology criteria for playa, pocosin, and pothole farmed wetlands and farmed wetland pasture. Both inundation and saturation criteria for pothole farmed wetlands were established in the September 6, 1996 interim rule and USDA does not agree that there is a need to modify these criteria.”
This is simply incorrect. If this NRCS position is allowed to stand there will be very few challenges. Instead, there will be more wetland that is erroneously mapped, and more landowners that will get caught in administrative appeals and litigation and suffer the loss of property rights.
The 2018 Farm Bill Section
Here, the NRCS states in response to the 2018 Farm Bill that, “The December 2018 interim rule established in the wetland determination process in § 12.30(c)(7) that step 2 includes the determination of whether any exemptions apply, and no further modification in this final rule is needed in support of section 2101.” This statement is incorrect. Clearly, the Congress intended that a minimal effect determination be made, and that the NRCS make the determination whether or not a landowner requests that such a determination be made.
The Final Rule is troubling for farmers in many respects. Perhaps the biggest is the NRCS position concerning wetland hydrology indicators for hydrologically altered wetland. Millions of acres of these types of wetland are present in the prairie pothole states. Also, of primary concern is the NRCS intent to triple the tile set-back requirements from the edge of farmed wetlands if the adjoining soil has groundwater discharge potential. It is difficult to believe that NRCS hydrologists, botanists and soil scientists were meaningfully involved in the writing of the Final Rule.