NRCS Wetland Compliance and Appeals Reform Act
The NRCS Wetland Compliance and Appeals Reform Act would substantially reform how the Natural Resources Conservation Service (NRCS) enforces wetland rules and handles appeals under the Food Security Act of 1985. Key changes include clarifying that removing woody vegetation is not an action intended to enable agricultural production; prohibiting retroactive penalties for wetlands that had not yet been delineated or certified; and shifting the burden of proof to the Secretary to establish violations using a clear and convincing standard. The bill also tightens protections against using new, untested rationale after an appeal, expands and formalizes the appeals process (including on-site reviews), strengthens preliminary determination procedures, and introduces new customer service and oversight provisions. In addition, it introduces reforms to the NAD appeals process to improve fairness, creates state-level oversight committees, requires retraining for NAD judges, ensures access to full records and witnesses during appeals, and provides for fee reimbursement in successful overturns. It also prohibits permanent NRCS easements on land.
Key Points
- 1Permissibility of removal of woody vegetation: Removal of trees and stumps is clarified as not automatically constituting an activity that makes agricultural production possible under current wetland rules.
- 2No retroactive penalties: The Secretary cannot penalize someone for wetland activities that occurred before the land was delineated, determined, and certified as a wetland.
- 3Burden of proof: The Secretary must prove, by clear and convincing evidence, that a violation occurred, including cases with insufficient evidence or when evidence offered to prove no violation is unreliable.
- 4Prohibition on new rationale after appeal: If a wetlands determination is appealed and upheld, the Secretary cannot later rely on a rationale not used in the successful appeal.
- 5Expanded and on-site appeal options: Establishes an appeal pathway for wetland certification requests not accepted by a State NRCS office, including the right to an on-site visit; requires that hydrologic criteria not be based solely on a single on-site visit.
- 6Customer satisfaction survey: Creates a transparent feedback mechanism to measure and report on NRCS customer service related to wetland administration, with regular reporting to State Conservationists, Congress, and state agriculture departments.
- 7State oversight committees: Requires a state-level oversight committee to review a range of wetland-related appeals and to report findings and recommendations to NRCS leadership and Congress; committees include farmer representatives and state agriculture input.
- 8Reforms to appeals processes: NAD judges and agency heads must receive retraining for fair hearings; full case records must be provided; parties may call NRCS technical staff as witnesses; reliable evidence standards apply; and successful appellants may be reimbursed for legal fees and expenses.
- 9Regulations and rulemaking: Certain NRCS regulations governing wetland programs would require formal notice-and-comment rulemaking under 5 U.S.C. 553.
- 10Prohibition of permanent easements: The Secretary may not acquire permanent easements on land, limiting NRCS land-taking tools.