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Comments on USDA’s Interim Final Rule for the Highly Erodible Land and Wetland Conservation Compliance Provisions of the Food Security Act of 1985

February 5, 2019

National Leader for Wetland and Highly Erodible Land Conservation
Natural Resources Conservation Service
U.S. Department of Agriculture
1400 Independence Avenue SW
Washington, DC 20250

Submitted Via //

SUBJECT: Comments on USDA’s Interim Final Rule for the Highly Erodible Land and Wetland Conservation Compliance provisions of the Food Security Act of 1985 (7 CFR Part 12), Docket ID: NRCS–2018–0010, RIN 0578–AA65.

Dear Sir or Madam: The National Council of Farmer Cooperatives (NCFC) welcomes this opportunity to comment on the U.S. Department of Agriculture’s (USDA) Interim Final rulemaking on matters involving the highly erodible land and wetland conservation compliance provisions of the Food Security Act of 1985 (FSA). The comments below address the rule’s provisions dealing with wetlands determinations and the minimal effects and mitigation requirements, all part of what is commonly referred to as the FSA’s “Swampbuster” provisions. NCFC agrees with USDA that it is time to establish final wetland determination and certification measures and endorses a rulemaking effort to complete this work. Agriculture and USDA need to complete these certified wetland determinations for producers so that the agency can move forward with helping producers properly, efficiently and profitably manage their drainage systems, while being fully compliant with Swampbuster requirements. This rulemaking represents an effort to conclusively resolve questions and challenges that USDA has faced since Swampbuster was created in 1985. Since 1929, NCFC has been the voice of America’s farmer cooperatives. Our members are regional and national farmer cooperatives, which in turn consist of more than 2,500 local farmer cooperatives across the country. The majority of America’s 2 million farmers and ranchers belong to one or more farmer cooperatives. NCFC members also include 21 state and regional councils of cooperatives. Farmer cooperatives handle, process and market almost every type of agricultural commodity; furnish farm supplies; and provide credit and related financial services, including export financing. Earnings from these activities are returned to their farmer members on a patronage basis, helping improve their income from the marketplace. Farmer cooperatives also provide over 250,000 jobs, with a total payroll in excess of $8 billion, and contribute significantly to the economic well-being of rural America. NCFC upholds four core values as it works to advance the business and policy interests of America’s cooperatives and other farmer-owned enterprises. These values are (1) farmer ownership and control in the production and distribution chain, (2) continued economic viability of America’s farmers, ranchers, and the businesses they own, (3) the stewardship of the natural resources entrusted into their care, and (4) vibrant rural communities.

Formal notice and comment rulemaking under the Administrative Procedures Act must be conducted

NCFC disagrees with USDA’s characterization of this rulemaking as a simple update to “guidance to improve consistency and timeliness” when implementing Swampbuster.¹ What is being done in this rulemaking has far more importance and effect than an update to guidance. It is turning into law guidance that has evolved over the last 30 years, which has only grown more complicated and controversial during this time. Moreover, these guidance provisions have never been subject of a formal rulemaking under the Administrative Procedures Act (APA). While USDA has the statutory authority to conduct this FSA rulemaking through interim final procedures, NCFC believes it is neither wise or sound policy to do so. Swampbuster can entail enormous financial risks for farmers and those risks begin with a wetland determination. We believe codifying into law policies of this significant importance warrant treatment under the APA as a formal notice and comment rulemaking. Only in that way can all parties have confidence that the decisions being made are reasonable and consistent with the factual record provided. These measures are too important to the regulated community not to receive treatment as close as possible to that afforded by the APA. At a minimum, NCFC encourages USDA to treat the comments it receives on this Interim Final rule, as well as the agency’s follow up activities related to this rule, as if it were being conducted under procedures governed by the APA for a notice and comment proposed rulemaking. As such, all comments should be responded to, final decisions about the content of the rule should be supported by the factual record provided, and the rationale for the selected decisions must meet the APA standard of being neither arbitrary or capricious.

Fixed time period for precipitation data must coincide with the FSA’s deadline—the only meaningful time period for farmers’ drainage decisions and actions under the statute

The Interim Rule defines “normal climatic conditions” and specifies that a “fixed precipitation date range of 1971-2000” will be used to establish “normal climatic conditions” for purposes of determining a piece of farmland’s “wetland hydrology”.² NCFC supports the use of a fixed data range, but we believe the 1971-2000 range is inconsistent with the express intent and purpose of the FSA. NCFC believes it is more lawful and therefore proper for USDA to use hydrological data from some period representative of average hydrological conditions leading up to the FSA’s December 23, 1985, Swampbuster deadline. Congress established December 23, 1985, as the date by which wetland conversions were to be completed (or “commenced,” as provided in the statute) in order for that activity to be excluded from Swampbuster’s ineligibility provisions. Farmers’ actions involving the drainage of wetlands as of December 23, 1985, are grandfathered in and do not subject the farmer to potential Swampbuster penalties. (Those actions make that drained land “prior converted cropland” and no longer a wetland, and not subject to Swampbuster). Those grandfathered actions by farmers represent drainage and related farm management decisions made in light of the hydrological and precipitation conditions preceding the statutory cutoff date. The degree or amount of drainage installed or created reflected the extent needed to make such land profitable for agricultural production. It is reasonable to presume that the degree or amount of drainage installed would be a direct reflection of the degree or amount of precipitation that was present at that location for a relevant planning period before December 23, 1985. Congress did not create a moving date by which actions must have been taken to be excluded from Swampbuster. For USDA to adopt a fixed period of precipitation that includes years after FSA’s cutoff date is arbitrarily subjecting producers to hydrological conditions that do not reflect those Congress understood would apply to farmer decisions about their drainage actions. As a statutory matter, the only proper data to use in making determinations about the hydrological conditions on a piece of land needing a wetland determination must be consistent with the conditions present prior to December 23, 1985.

Minimal effects and mitigation decisions require accurate estimates of functions and values in the context of a highly-managed, highly-drained agricultural landscape

NCFC believes Congress intended to create minimal effects and mitigation measures in the FSA that are practical and used to assist farmers with Swampbuster compliance. This means not only assisting them in meeting Swampbuster’s requirements, including assistance with drainage- related decisions on their operations that support their profitability and productivity. In the case of Swampbuster’s minimal effects and mitigation provisions, Congress recognized that even though some of the wetter parts of farmers’ fields may still exhibit wetland properties, in practice their wetland functions and values would often be extremely limited. These are agricultural lands that are highly-managed, highly-drained and in active production. Proper minimal effects and mitigation measures under Swampbuster require accurate consideration of the actual functions and values present in such instances. Depending on the degree of values present, there must be circumstances where it is appropriate for farmers to further drain those areas and, if needed, conduct mitigation measures. Yet such things are not taking place under the agency’s implementation of Swampbuster. Accurate assessment of functions and values make it more likely that any mitigation measures required would be as affordable and practical as possible. For example, agriculture is actively working to reduce nutrient losses from row crop fields as part of other natural resource policy efforts. One of the important practices in this regard is the installation of treatment wetlands, which could be categorized as a mitigation measure. We encourage you to develop Swampbuster determinations measures that are supportive of these efforts.

Better and more information needs to be made public to evaluate the merits of this rulemaking

In the interest of transparent and sound policy-making, we believe USDA should provide the public with documentation of the analysis USDA has done to support this rulemaking. For example, we would be interested in learning from:
  1. Analyses done of how many producers, farms or fields USDA estimates will likely need determinations, given their possible wetland characteristics, and how many of these do not yet have wetland determinations, certified or not certified.
  2. Case studies that have been done that can be shared with the public (while protecting confidentiality) to help USDA assess and evaluate what the application of these measures will mean, in practice, for both wetland resources and farmers.
  3. Analyses of hydrological conditions of various durations and time periods (as suggested in these comments being from before December 23, 1985) that the agency considered when determining which period that was most representative of applicable hydrological conditions.
NCFC supports a rulemaking effort on the subject matter addressed by this Interim Final rule, and we applaud USDA for working to bring to a sensible conclusion the decisions needed on these Swampbuster matters. This is important work for us all. We offer the above comments in the interest of helping USDA craft provisions that meet Swampbuster’s objectives while being fully understandable to farmers and consistent with the law. Thank you once again for this opportunity.

Charles F. Conner
President & CEO

¹ USDA Press Release, 2018, USDA Updates Wetland Determination Guidance to Increase Consistency, 12/07/2018,
//, Accessed on January 30, 2019.
² See 83 Fed. Reg. at 63,052.

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