Contemplating wetland mitigation? You might want to consult an attorney
Wetlands are in the news again. It's timely, as corn harvest is nearly wrapped up, and fields are soon to be covered with snow. With the spring melt, drainage becomes a topic of interest. And so does wetlands compliance.
Last week Senator John Hoeven hosted a meeting in Bismarck with Natural Resources Conservation Service Acting Chief Leonard Jordan. The purpose of the meeting was to have a roundtable discussion with agriculture producers, commodity groups and representatives from the drain tile industry. Hoeven, who chairs the Senate Agriculture Appropriations Committee and who is also a member of the Senate Agriculture Committee, wanted the NRCS chief to hear from farmers about issues pertaining to the NRCS determinations about wetlands.
Wetlands have been a subject of interest in this column several times. There are two subtopics that are of particular interest today: wetland determination and wetland mitigation.
The USDA has two primary agencies that are in charge of farm programs, the Farm Service Agency and the NRCS. The FSA is primarily responsible for administration of farm programs. The NRCS is primarily in charge of "helping people help the land," or technical assistance. Both agencies play a role in wetland determination and wetland mitigation, although the NRCS has the primary role.
For farmers, wetland determination has been a puzzle ever since its inception in the late 1980s. A flowchart illustrating the process is available online. It's worth a review at https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_007778.pdf. Although well intended, the flow chart serves to illustrate the conundrum farmers face regarding such determinations. The process is complicated, unwieldy and has far too many "chefs in the soup."
The primary frustration faced by producers is the lack of consistency in agency determinations about wetlands and also the lack of timeliness in such determinations.
"Today's meeting is about building on the wetland compliance relief we secured in the last farm bill and creating a workable guideline for NRCS' wetlands determinations," Hoeven said. "That means having policies in place that treat farmers and ranchers fairly and ensure NRCS can provide timely, objective decisions based on the best historical data for the region. This kind of approach will provide certainty for agriculture producers, helping them to plan and make long-term investments in their land and operations, while maintaining good environmental stewardship."
This is an admirable, and ambitious, task. In the past 10 years, installing drain tile has become much easier than it used to be. Accordingly, farmers are champing at the bit to get their land drained and ready for production. In order to do so, however, they are often left waiting for governmental administrative agencies to give them permission to move. This begins at the local level, with permits from local water resource districts at the county level of government. However, it extends up to the federal level, with NRCS providing the guidelines for wetland determinations.
Wetlands mitigation is a different topic but is closely related to wetland determination. Simply stated, the law provides a mechanism for farmers to drain wetlands, so long as they "mitigate" that drainage by either creating or acquiring another wetland, which in theory offsets the wetland that is now drained and dry.
Clear as mud? It's an important tool that has been around for a decade or so but is really gaining relevance as drainage and drain tile get more prevalent. As part of the 2014 farm bill, Hoeven worked to authorize $9 million in funding for a program to encourage a market-based approach to help farmers comply with wetland mitigation requirements. These requirements are administered by — you guessed it — the NRCS. The fairness of a market-based approach is crucial to the continued relevance and success of wetland mitigation.
As is the case with so many legal issues, if farmers are considering wetlands mitigation, it is money well spent to consult — even briefly — with an attorney.