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AFBF: USDA’s new conservation final rule falls short

By Doug Schmitz
Iowa Correspondent

WASHINGTON, D.C. – The American Farm Bureau Federation (AFBF) recently advocated for clear rules and safeguards to ensure fair treatment of U.S. farmers in conservation compliance with the USDA’s Highly Erodible Land and Wetland Conservation Final Rule.
But AFBF officials said the new final rule, made public Aug. 28, does not remedy unfair enforcement by the USDA’s Natural Resources Conservation Service (NRCS).
“After decades without a finalized rule in this area, we finally have one, but unfortunately, it falls short,” said Zippy Duvall, AFBF president. “Farmers and ranchers are some of the strongest advocates of conservation, as demonstrated by the 140 million acres they’ve voluntarily committed to federal conservation programs.
“That’s not what this is about. This is about unfair treatment, which we’ve clearly laid out for the USDA in previous comments and many meetings, backed by court rulings.”
Under the final rule, NRCS determines whether land is considered highly erodible or a wetland, integrating input from the public and making updates in accordance with the 2018 Farm Bill. Moreover, the final rule follows what the agency called “a focused effort by the USDA’s Natural Resources Conservation Service to improve consistency and use of science in making determinations.”
Kevin Norton, NRCS acting chief, said, “Feedback is a very important resource, and we appreciate all of those who help us improve how determinations are made. Highly erodible land and wetland determinations are the gateway to USDA programs, and we strive to provide the highest quality technical assistance to inform decision-making by farmers and ranchers.”
To be eligible for most USDA programs, the agency said producers must be conservation compliant with the highly erodible land and wetland provisions. 
“These provisions aim to reduce soil loss on erosion-prone lands, and to protect wetlands for the multiple benefits they provide,” the USDA said.
Published in the Federal Register Aug. 28, the final rule also confirms most of the changes made by the December 2018 interim final rule (published Dec. 7, 2018), the USDA said, and makes the following additional updates:
- Adding the requirement of the 2018 Farm Bill that the USDA will make a reasonable effort to include the affected person in an on-site investigation conducted prior to making a wetland violation technical determination.
- Further clarifying how wetland hydrology is identified for farmed wetlands and farmed wetland pasture.
- Adding clarification to the consideration of best-drained condition for wetland hydrology in keeping with the definition of prior converted cropland.
- Relocating the provision that wetland determinations can be done on a tract, field or sub-field basis in order to improve clarity.
Despite these recent additions, however, many farmers still find themselves in legal battles with NRCS, the AFBF said.
For example, when Kurt Wilke’s father-in-law, Carl Hoffee, wanted to expand his Springfield, Ill., farm in 2010, he purchased 80 acres of land on which crops had grown for more than 100 years – land the USDA’s forms verified as non-wetland.
But soon after Hoffee began improving the farm’s drain tile system, NRCS asserted that 22 of the farm’s 80 acres were wetland, Wilke said.
The assertion, based on undated aerial photographs taken on a single day, forced Hoffee to stop his drain tile repairs and await the agency’s formal determination, which came in 2012. In turn, Hoffee appealed to the USDA’s National Appeals Division (NAD), which ruled in his favor.
“But the NRCS didn’t appeal that order,” Wilke said. “Instead, they just re-issued the exact same determination, forcing a ‘do-over’ and dragging us back through the entire process all over again.”
He said the NRCS issued the same determination two more times, pulling Hoffee back through the time and expense of what Wilke referred to as a flawed appeals process.
NAD ruled in favor of Hoffee in the second appeal, but NRCS withdrew its determination just before a third hearing in 2015. (Hoffee died as the third determination and appeal were playing out and Wilke continued with the appeal).
NRCS issued a fourth do-over, resulting in Wilke having to appeal again in 2016. But, as they had done twice before, NAD ruled in Hoffee’s favor.
As of last September, the NRCS has not requested a fifth determination and Wilke is still waiting to learn if the agency will pay for his and Hoffee’s legal fees and costs, a request he made in 2017 after the NAD ruling in the fourth appeal.
Hoffee and Wilke, both attorneys, represented themselves in preparing and making their case. Wilke said “it’s an expensive and daunting process. This cost us hundreds of thousands of dollars to go through that five-year battle. These appeals also cost the farm almost $100,000 for technical experts and consultants to map and scope the entire drain system. We even had to hire and pay our own court reporter to take the transcript at all these hearings.”
In April, however, NAD Director Frank Wood ruled in Wilke’s favor, finding he is eligible for reimbursement. In Wood’s ruling, he wrote that the EPA ignored evidence presented about the farm and made its decision based on “unsupported assumptions” and conjecture.
“Based on my review of the record, I find that NRCS’s position was not substantially justified because it does not have a reasonable basis in law and fact,” Wood said in an April 2, 2020, letter to Wilke.
Don Parrish, AFBF senior director of regulatory relations, said Wilke and Hoffee’s experience was far from unique.
“I wish I could say that this horror story is an isolated occurrence, but unfortunately, I can’t,” he said. “It is hard to say how many calls I get from farmers with similar stories, or how many times I’ve heard them say that the NRCS just ignores evidence they provide, or that the agency doesn’t even follow its own regulations and guidance.
“The NRCS’ unlimited ability and resources for ‘do-overs’ is one of the most unsettling aspects of this story. There is nothing fair about allowing the agency to continue to drag farmers back through this ‘process,’ while farmers only get one shot if they lose.”
Duvall said farmers deserve a fair process and clarity, including an understanding of the exemptions authorized by Congress.
“They deserve to be protected from repeated, unjustified, costly decisions by the NRCS,” he said. “Although we appreciate recent actions by the USDA to rectify historic wrongs, this was a missed opportunity to ensure fairness going forward. We will continue to examine this rule and our options to address its shortcomings.”
9/5/2020