As the Agriculture Department moves forward with Highly Erodible Land and Wetland Conservation regulations, the department must ensure its new Interim Rule balances the benefits for both farmland and wetland, as Congress intended, according to the American Farm Bureau Federation. As it was written, the Interim Rule makes program participation much more difficult and fails to give farmers the opportunity they should have to participate in the process.
“Because conservation compliance programs operate fundamentally as regulatory programs they should operate with all the duties and rights that such a regulatory program entails. Equally important, all guidance, policy and interim rules must match up with the statute,” Farm Bureau wrote in comments submitted to USDA on Tuesday.
For too long USDA had been making regulatory determinations based primarily on guidance and policy that was not put through the required public process—an error that Farm Bureau said permeates the wetland identification and appeals processes. “USDA holds all the cards, leaving farmers without the necessary tools to protect their property and due process rights,” the group wrote.
In keeping with the statute, USDA must recognize that prior-converted cropland is not only not farmed wetland, it is no longer wetland and should never be treated as wetland under the Food Security Act or any rule implementing the Food Security Act.
Also at odds with the law is the department’s newly added discretion in determining that a decades-old map is of insufficient quality to uphold a certified determination.
“Determinations certified prior to USDA’s adoption of new mapping conventions should be exempt from invalidation due to changes that only new imaging technology can detect. To that end, USDA’s regulations should expressly recognize that pre-1990 certifications are valid unless the producer raises the issue that they were never provided with appeal rights after passage of the 1990 farm bill (and thus, were not able to appeal the determination to become certified),” Farm Bureau said.
In the Interim Rule USDA has added several terms and definitions that expand the farmland wetland category by making it easier for USDA to designate land as a farmed wetland. This substantively changes what land qualifies as prior-converted cropland or commenced-conversion wetlands under the statutory exemptions, which is harmful to farmers who have relied on prior interpretations.
The group also took issue with USDA’s failure to implement the minimal effect exemption provisions as lawmakers directed. “Congress exempted farmers from ineligibility if the impacts of the wetland conversion were minimal to the wetlands in the area,” the group noted.
The statute also provides that “the Secretary shall exempt a person and does not require that a landowner first request such a determination; rather, such determination must automatically accompany any determination regarding eligibility.” Lastly, the statute requires the Secretary to “identify by regulation categorical minimal effect exemptions on a regional basis.” Unfortunately, USDA has violated the statute by failing to implement this provision to the detriment of farmers and ranchers nationwide.