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The Natural Resource Conservation Service must decide which wet spots in fields are wetlands. Jenny Heglund, assistant state conservationist for compliance at the North Dakota office of the NRCS, said this spot in Ransom County is a good depiction of the seasonal nature of wetlands. Photo provided by Natural Resource Conservation Service.

NRCS touts shrinking wetland determination backlog but some still see problems

FARGO, N.D. — The North Dakota office of the Natural Resources Conservation Service, the conservation arm of the U.S. Department of Agriculture, in 2012 had a backlog of wetlands determinations reaching nearly to 4,000. In some cases, it took years for farmers to get answers on whether they were allowed to install drain tile or take other actions in possible wetland areas.

Though the NRCS has refined their process, leading to a diminished backlog and a shorter time for decisions, the topic still is on the minds of some in agriculture.

"We lose more money in this state because of excess water than drought," North Dakota Farm Bureau President Daryl Lies told U.S. Agriculture Secretary Sonny Perdue on March 9 in Fargo.

Perdue visited Fargo at the request of Sen. John Hoeven, R-N.D. His visit included a roundtable discussion with ag leaders from across the state. While drought was on the minds of many, for some, problems with excess water was the issue they wanted to bring up to the secretary.

The NRCS has to determine what makes up a wetland and how producers can farm in those areas if they want to continue to qualify for USDA programs. Problems crop up when a farmer wants to install drain tile or take other actions in an area the NRCS deems to be a wetland but the producer sees simply as a low spot or puddle.

When crop prices were high, many producers sought to make their land more productive through installing drain tile, leading to the substantial backlog and wait time.

Since then, the NRCS has revised their process, said Jennifer Heglund, assistant state conservationist at the NRCS in North Dakota.

The North Dakota NRCS Compliance Team issued 196 preliminary technical determinations from Oct. 1, 2017, to March 1, 2018. As of March 1, the office had 124 pending wetland determination requests.

Heglund explained the office now has a statewide team of 12 trained staff to assess and issue the wetland determinations. They have gone to using "offsite methodology," such as imagery, elevation data, soil information and other technologies to make their preliminary technical determinations.

"By doing that, we have been able to satisfy requests throughout the year, no matter the climatic conditions," she said.

Using that process allows the NRCS team to focus their "field time" on producers who request reconsideration, Heglund said. The field visits allow the staff to provide technical assistance and alternatives.

Despite the improvements, some producers still are looking for more change.

Lies asked Perdue for more reform of the wetland determination process and voiced his support for House Resolution 3235, the Wetland Determinations Efficiency and Transparency Act.

Under that bill, sponsored by Rep. Kristi Noem, R-S.D., the NRCS would be required to make a wetland determination within 60 days, and if the agency misses the deadline, it must provide time for a producer to come into compliance without losing eligibility for USDA programs. Decisions would be subject to judicial review and producers would not be required to exhaust all administrative remedies before filing a suit in federal court. The NRCS also would bear the burden of proof by a preponderance of the evidence and provide a copy of the agency record upon request. The bill also would require the USDA to allow people to secure technical assistance from approved sources other than the NRCS to prepare conservation plans or wetland delineations or determinations.

Jeff Mertz, president of the North Dakota Grain Growers Association, suggested at the roundtable with Perdue that the state leaders for the NRCS offices be an appointed position as the heads of state FSA offices are.

"Maybe we could change some of the ... philosophy," he said.

Mertz said some farmers waiting on wetland determinations feel like they are in an adversarial position with NRCS.

"They should actually be our partners," he said.