North Dakota Senators Introduce Legislation to Reform USDA's NRCS

WASHINGTON – U.S. Senators and John Hoeven (R-ND) and Kevin Cramer (R-ND) joined Senator Mike Rounds (R-SD) in introducing legislation to reform the U.S. Department of Agriculture’s (USDA) Natural Resources Conservation Service (NRCS), which is in charge of making wetland determinations.

“Ensuring that NRCS policies are farmer-friendly has been a priority throughout my time in the Senate, from the 2013 farm bill debate to today, and helping introduce Senator Rounds’ wetland determination reform bill is the latest in these efforts,” said Senator Hoeven. “Our farmers and ranchers know their lands best and have the biggest stake in protecting them. This legislation will provide greater certainty for landowners and producers and make important reforms to NRCS.”

“Defending the private property rights of North Dakotans is one of my highest priorities,” said Senator Cramer. “This commonsense bill would provide a more thorough appeals process, clearly delineate the confines of the law, prohibit bureaucrats from being retroactively punitive, and rightly place the burden of proof on the government rather than the landowner. I thank Senator Rounds for his leadership and look forward to working with him on these reforms.”

 “South Dakota’s farmers, ranchers and landowners know their land better than anyone else,” said Senator Rounds. “They’re on the frontlines of conservation efforts to make certain our natural resources are available for future generations. They don’t need the heavy-hand of government interfering with their ability to use and manage their own land.”

National and local farm associations expressed their support for the bill.

“The plain truth is that farmers have been treated unfairly by NRCS when trying to be good stewards of the land,” said American Farm Bureau Federation President Zippy Duvall. “AFBF stood up for them by pressing for changes to conservation compliance programs, and we applaud Sen. Rounds for introducing the NRCS Wetland Compliance and Appeals Reform Act. It would institute needed reforms, and although sweeping in nature in its current form, it takes important steps toward creating a fair and understandable process for America’s farmers.”

“From its origination, NRCS was to be a partner with farmers and ranchers in the quest to provide improved stewardship of natural resources,” said the North Dakota Farm Bureau. “Over the past couple of decades it seems they have transitioned to a heavy handed compliance and enforcement agency rather than a partner with antiquated due process for farmers and ranchers. NDFB appreciates the continued work by Senators Cramer and Hoeven and their colleagues to bring equity and restoration of a partnership process to NRCS!”

This bill guarantees landowners a wetland redetermination process and reforms the NRCS appeals process to create a state oversight committee, comprised of local farmers and ranchers, to review the NRCS’ determination process. Specifically, it:

  • Makes sure compliance penalties for newly-determined wetlands can only be prospective.
  • Puts the burden of proof on the NRCS to prove a compliance violation, not the landowner.
  • Requires USDA to develop an appeals process for redetermination requests not accepted by the  NRCS state office.
  • Requires USDA to establish oversight committees in each state that will oversee the appeals of wetland determinations.
  • Reforms the regulatory process so NRCS must go through a notice and public comment period for conservation compliance regulations, banning the use of interim rulemaking. 
  • Prevents NRCS from using one-time on-site observations to satisfy the hydraulic criteria for determinations, which can lead to a high-risk of false positives.
  • Stops NRCS from changing rationales when making wetland determinations, so that once a landowner successfully refutes a wetland determination decision, the case is considered closed and cannot be revisited.
  • Makes the following changes to NRCS appeals process:
  • Retrains National Appeals Division (NAD) judges and agency directors in how to provide a fair and balanced hearing;
    • Requires USDA to provide the entire record or decisional documentation to the farmers at the time of alleged compliance violation; 
    • Allows the farmer and his counsel to call NRCS technical staff as witnesses in the appeal;
    • Accepts evidence provided by the farmer as true absent substantial evidence to the contrary; and
    • Compensates the farmer for legal fees when the farmer wins an appeal – i.e., when the farmer is forced to incur costs because of an incorrect decision from NRCS.