WEST FARGO, N.D. -- The head of the U.S. Department of Agriculture's Natural Resources Conservation Service promised by September to come up with a just solution for wetland determination backlogs when he spoke to farmers on May 1 at the Red River Valley Fairgrounds in Fargo, N.D.
Wetland determinations that are held up, waiting for NRCS approval, have become a frustration for the region's farmers, particularly those in the central and southern Red River Valley. They want to use tile drainage or water management to contend with a string of wet years, and to capitalize on higher commodity prices and land values.
"I have one shot to make this right," said Dave White, NRCS Chief, who came to Fargo at the invitation of Sen. John Hoeven, R-N.D. "It's got to be legally defensible. It's got to be fair, it's got to be equitable, it's got to be transparent. If I screw this up, it's going to be bollocks for the USDA in lawsuits for the next 20 years. I'm begging, pleading for your patience as a lot of these things are worked through."
Today farmers who want to tile and need to drain land must fill out federal forms (AD-1026), requiring that NRCS complete a "certified" wetland determination. This can start with office work, but ends with a field determination.
The NRCS uses aerial photography to make preliminary determinations. Part of this involves various markers including wet spots that have shown up because of historic wet conditions. Farmers who thought they had two or three wetlands on a tract of land now were disappointed to find out that they now had 20 spots that weren't identified before.
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The appearance of wetlands can stop the drainage project until a field determination is made. The farm program benefits are at risk if the drainage goes forward without it.
Among other things, wetland determinations involve whether the soil is "hydric," or supports water-loving plants such as cattails. The farmer can only drain fields that contain wetlands if he doesn't violate setback provisions, or put in nonperforated pipes that can't drain areas too near the wetland.
A flood of requests
White says his agency has received 34,713 wetland determination requests from 2009 to 2011 in the four Upper Midwest states. "We've done about 24,000 of them and we have about 11,000 of them left," he says. He says the agency put "a few million dollars into the Dakotas, Minnesota and Iowa, to hire people to do that.
Mary Podoll, NRCS State Conservationist, based in Bismarck, says the agency completed 3,000 determinations in the past 18 months but has some 3,500 additional sitting on the books today.
"Yesterday we were losing ground, but with some of the changes the chief has suggested that can be implemented fairly quickly, we will start gaining ground this summer," Podoll says.
Fed up with the backlog, some farm leaders at the meeting reported that they or neighbors have dropped out of the farm program entirely. Hoeven took the opportunity to stress that he's against tying conservation compliance to crop insurance, which is one tool environmental groups have advocated to keep conservation techniques in place.
Among the ways suggested to cut the backlog is to create a procedure for off-site wetlands determinations. One likely idea is to use a 30-year history of wetland mapping as a baseline for establishing normal conditions on farm lands.
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The National Oceanographic and Atmospheric Administration uses a 30-year period to determine a "normal" average. The agency's "baseline" for what is a wetland would start with precipitation data from 1970 to 2000, which includes 15 years before and 15 years after the 1985 conservation compliance provisions were started. High and low precipitation years would be discarded to represent a reasonable range. The agency would come up with five of the most representative years for weather, and would even use methods to "normalize" those, to compensate for data collected before or after a big rain.
White says that if the data show a "wetland signature" at least 60 percent of the time it would constitute a farmed wetland in a remote wetland determination. If it's seen less than 30 percent, it isn't a wetland. If it's there from 30 to 60 percent of the time, the NRCS would send someone out to look at it.
White says a streamlined remote approach will "unify around a set of climate data" and get teams up and running that can specialize in the process. Plus, the agency is planning to offer producers more options for mitigation. White thinks USDA can approve some of the procedures in a month. He says the agency also is in the process of finalizing parts of the process, including mathematical formulas for setbacks -- distances that tile must be from wetlands -- by September.
Bill Hejl, an Amenia, N.D., farmer was among those cautioning White to include snowfall precipitation and not just precipitation over a three-month (May to July) period. "If we have 140 inches of snow it's going to look wet for a long time."
White indicated the weather data will be based on the closest NOAA station, although Podoll said North Dakota uses the North Dakota Agricultural Weather Network for some of its work.
White says he's leaning toward allowing farmers to opt for a field determination and opt out of the remote determination. Similarly, he is considering allowing farmers to certify an entire tract, or separate fields within a tract. He says NRCS engineers are in the process of reviewing four formulas for setbacks. "For this area of the world, we will have one" formula, he says. "Everybody's going to use the same formula for setback distances."
He says wetland mitigation banks have mostly been set up for businesses or road builders when they drain a wetland. "The problem is that you guys can't compete with the Wal-Marts and the highway departments of the world," he says.
Not a new problem
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White says the certification issue has been festering since 1985 and should have been addressed then. "I want you to know that whatever decisions are made, they're on my head" and not the state agency officials.
In the 1990 farm bill, the agency started to "certify" wetlands, based on things like whether the soil supports water-loving plants. The farm law initially allowed farmers to drain the wetland, but did not penalize the farmers unless they seeded it. In 1990, even the act of draining, dredging or filling was a violation, and the government would reduce farm payments. In 1996, Congress changed this so if a farmer converted a wetland, but unintentionally (in good faith) and he could restore the wetland, they could restore all benefits.
In the 1996 farm bill, farmers didn't want the agency to make determinations. "Since 1996 every determination has been certified," White says. "I kind of regret the term certified, because we should have used the word 'final.' When you get a certified wetland determination, it is final -- it's forever. It's not going to change in a dry year, not going to change in a wet year."
The NRCS is also dealing with whistle-blower complaints that are reported to the Office of Inspector General. If any citizen complains about a farmer's drainage infractions, that case by law gets top priority over routine applications. "It is one of the distressing things that they are anonymous and you can say anything," he says. "I've often thought it would be nice to have some accountability. Some of them are pure . . . I wouldn't describe motives, but a lot of them don't pan out."
