WASHINGTON (DTN) -- Last week, USDA's Natural Resources Conservation Service published an interim final rule clarifying that wetland determinations made by the agency since 1990 are considered certified, allowing producers to rely on those determinations when managing farmland.

The rule addresses inconsistencies among NRCS offices that did not accept older USDA wetland determination paperwork, even though those records serve as key evidence for participation in USDA farm programs.

The Swampbuster Act provisions of the Food Security Act of 1985 were established to discourage agricultural producers from draining wetlands and converting them to cropland. In 2014, compliance with the provisions became tied to eligibility for USDA farm loans, conservation assistance, crop insurance and commodity programs.

"There were changes made in 1996 that made the universe of determinations…between 1990 and 1996, very uncertain," said Courtney Briggs, senior director of government affairs at the American Farm Bureau Federation.

The new rule establishes a consistent standard for those older determinations.

Wetlands are identified based on three criteria: hydric soils, hydrophytic vegetation and wetland hydrology. If USDA examined a farm, issued a wetland determination and notified the producer of their appeal rights, that determination would be considered certified.

Farmers can rely on certified determinations to install drainage, clear land and make other land alterations without risking USDA program eligibility.

One reason for the change is that penalties are significant for noncompliance.

If producers violate Swampbuster, they are responsible for repaying USDA program benefits and can lose eligibility for future farm programs, Briggs explained.

"That's why the action that was taken this week is significant because it provides a clear standard for treating older determinations," she said.

The rule should not be confused with waters of the United States, or WOTUS, determinations, which determine whether waters or wetlands are subject to federal regulation under the Clean Water Act.

WOTUS determinations affect federal permitting for dredging, filling, drainage projects and development. A producer may have an NRCS wetland determination that affects USDA program eligibility even if the same area is not considered a WOTUS under the Clean Water Act.

APPEALS PROCESS

Separately, AFBF and its members have identified the wetland determination appeals process as a major concern.

If a farmer disagrees with an NRCS determination that they violated Swampbuster, they have the right to appeal.

"We have anecdotes from members that have had to go through the appeals process four times in order to get a final decision," Briggs said.

According to AFBF, problems with the appeals process include NRCS staff who pick and choose how to apply statutes, place the burden of proof entirely on farmers and disregard evidence showing farmers complied with conservation requirements.

DTN has previously covered a wetland dispute that reached the U.S. Supreme Court in Foster v. U.S. Department of Agriculture.

https://www.dtnpf.com/…

Arlen Foster, a South Dakota farmer, has challenged USDA's wetland determination on a 0.8-acre tract for more than 15 years. He is seeking federal court review based on new evidence that he argues shows the tract is not a wetland.

Foster is awaiting a federal court decision on whether USDA must reconsider the determination after a U.S. Supreme Court ruling gave new life to his case.

Public comments on the interim final rule are due Sept. 28, but the rule has gone into effect already.

"When we are injecting clarity and certainty into this program, I think inevitably it works better for everyone," Briggs said.

USDA's announcement on wetland determinations: https://www.nrcs.usda.gov/…

American Farm Bureau article on unfair treatment in conservation: https://www.fb.org/…

Jake Zajkowski can be reached at jake.zajkowski@dtn.com

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