The U.S. Department of Agriculture published its final rule on determining whether land is considered highly erodible (HEL) or a wetland, integrating input from the public and making updates in accordance with the 2018 Farm Bill. This final rule follows a focused effort by USDA’s Natural Resources Conservation Service to improve consistency and use of science in making determinations. However, not everyone is pleased with these updates.
NRCS Acting Chief Kevin Norton said, “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, 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 final rule is now published in the Federal Register. This final rule confirms most of the changes made by the December 2018 interim final rule and makes these additional updates:
- Adding the requirement of the 2018 Farm Bill that 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.
However, the not everyone felt this was an improvement. The American Farm Bureau Federation advocated for clear rules and safeguards to ensure fair treatment of farmers in conservation compliance, but the final rule does not remedy unfair enforcement by the Natural Resources Conservation Service.
American Farm Bureau Federation President Zippy Duvall said, “After decades without a finalized rule in this area, we finally have one, but unfortunately it falls short. 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 USDA in previous comments and many meetings, backed by court rulings.
“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 NRCS. Although we appreciate recent actions by 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.”
Read the final conservation compliance rule here.
Examples of unfair conservation compliance enforcement (including testimonial):
Learn more about conservation compliance on the NRCS website.