Improvements to USDA regulations finalized in 2020 could provide farmers an opportunity to improve NRCS certified wetland determinations and provide exemptions from Clean Water Act oversight by the EPA and Army Corps.
Recent improvements to Swampbuster regulations and the upcoming Biden Administration changes to the “Waters of the United States” rule (“WOTUS”) make now a prime time for farmers to investigate whether areas labeled wetland and farmed wetland on their fields should be recertified as prior converted cropland or non-wetland.
Farmers who produce an agricultural commodity on a converted wetland, or convert a wetland to make the production of an agricultural commodity possible, risk losing USDA farm program benefits and their federal crop insurance premium subsidies.
Acres determined by NRCS to be prior converted cropland or non-wetland on certified wetland determinations are exempt from USDA wetland conservation compliance provisions (commonly called “Swampbuster”) and can be drained or tiled without risk of losing benefits.
Acres certified by NRCS as prior converted cropland are also more likely to be exempt from Clean Water Act oversight.
Positive Regulatory Changes
On August 28, 2020, the USDA finalized three new regulations that have improved the wetland determination process.
1. “Certified” Wetland Determinations
First, USDA clarified whether prior wetland determinations are “certified.” A “certified” NRCS wetland determination remains binding unless a person affected by the recertification requests review or the tract is no longer used for agricultural production.
The requirements for a determination to be “certified” depends on the year a determination was issued. Generally, certification is met if there is an NRCS-CPA-026 or SCS-CPA-026 form, notice of appeal, and map of sufficient quality to make the determination.
If you have questions regarding whether a wetland determination on your tract is certified, please contact one of our environmental law attorneys to discuss the determination and how it impacts your drainage plans.
2. Site Specific Reconsideration Requests
Second, USDA regulation now allows a farmer to request review of a specific wetland site without granting NRCS authority to conduct a new determination on the entire tract or field. This means a person can request recertification of an error on specific wetland sites without opening the entire certified wetland determination for review and without risk of new wetland acres being added or expanded.
3. Best-Drained Condition
Finally, the agency also codified the “best-drained condition” rule. When a wetland is affected by a drainage manipulation that occurred prior to December 23, 1985, the wetland hydrology will be identified on the basis of the best-drained condition resulting from the drainage manipulation.
Sites previously labeled “farmed wetland” or “farmed wetland pasture” may qualify for the prior converted cropland exemption if the site was cropped under normal climate conditions following a pre-1985 drainage manipulation.
Application of the “best-drained condition” rule is likely to increase the number of acres exempt as prior converted cropland on a farmer’s field.
Waters of the United States
On June 9, 2021, the EPA announced its intent to revise the definition of Waters of the United States (“WOTUS”). The exact language of the pending rule is not yet known; however, the EPA is expected to strengthen regulation and increase protection of water resources.
Both Swampbuster and the Clean Water Act include exemptions for prior converted cropland; however, how each agency makes a determination of prior converted cropland has diverged over time.
In June 2020, the EPA codified a new definition of prior converted cropland, which matches USDA’s definition. Therefore, if an area was certified as prior converted cropland by NRCS, the area is also more likely to be exempt from Clean Water Act regulation by the EPA and U.S. Army Corps of Engineers.
Relabeling an area prior converted cropland on an NRCS wetland determination now could help prevent the area from falling under Clean Water Act regulation.
If you would like help determining whether your property has a certified wetland determination, reviewing certified wetland determinations for accuracy, or requesting changes to an NRCS certified wetland determination, please contact one of our agricultural and environmental attorneys for more information.