Hoeven to Sec. Bernhardt: Regulatory Relief Needed at FWS, Should Reflect Wetlands Reforms Made Under NRCS

Senator Outlines Burden of Perpetual Wetlands Easements on Farmers, Need for Appeals Process

HOPE, N.D. – At a landowner roundtable today, Senator John Hoeven, chairman of the Senate Agriculture Appropriations Committee and a member of the Energy and Natural Resources Committee, along with Senator Kevin Cramer, urged U.S. Secretary of the Interior David Bernhardt to help advance regulatory relief for farmers and ranchers impacted by wetlands easements under the Fish and Wildlife Service (FWS). Hoeven outlined the differences between the wetlands regulations at the FWS compared to the Natural Resources Conservation Service (NRCS), under which Hoeven sought to provide regulatory relief as a member of the 2018 Farm Bill conference committee. This includes:

  • Maintaining Private Property Rights: In defense of the private property rights of farmers and ranchers, and at Hoeven’s urging, a proposal to authorize permanent easements was not included in the farm bill.
  • NRCS Site Visit: Improves the quality of the wetland appeals process by requiring NRCS to conduct a site visit with the participant after an appeal has been filed.
  • Report on Small Wetlands: Directs the NRCS to report the number of wetland acres in North Dakota, South Dakota and Iowa that have been delineated and are less than one acre. 

“Our farmers and ranchers are the best in the world, and if we want them to be able to continue to compete in the global marketplace, we shouldn’t burden them with uncertainty and unreasonable regulations,” said Hoeven. “The FWS’s perpetual wetlands easements significantly restrict farmers’ operations, while offering them no opportunity to appeal when the agency makes its determinations. This is exactly the kind of overregulation we prevented at NRCS when we made reforms to the conservation title in last year’s farm bill. The FWS should follow this example and pursue a more farmer-friendly approach, and we will work with Secretary Bernhardt to do just that.”

FWS easements are perpetual, transferring upon the sale of the land to the new owners, and the agency provides no administrative appeals process for wetlands determinations. Rather, landowners are forced to overcome significant legal barriers and go through lengthy and costly civil litigation in order to challenge determinations, which often impose tremendous uncertainty and restrictions on farmers’ operations and carry the risk of criminal charges for noncompliance. 

Accordingly, Hoeven is pressing Bernhardt and the FWS to work toward implementing an appeals process that maintains due process for landowners and respects their rights, while also providing regulatory relief such as reducing set back distances from FWS wetlands, which are more than fourteen times larger than NRCS set backs.