MN LICA News, Oct. – Nov. 2013, p. 9

As published in MN Land Improvement Contractors of America News, page 9 and 11 (October 2013 – November 2013), available at: http://www.mnlica.org/News_Letters/MNLICA_Oct_Nov_2013.pdf

Participants in the USDA’s farm program should complete form AD-1026 at their local Farm Service Agency (FSA) office before clearing or draining agricultural land.  Completing an AD-1026 triggers a technical determination from the Natural Resources Conservation Service (NRCS, formerly known as the SCS) as to whether the proposed clearing or drainage activity will violate the wetland conservation compliance provisions of the Food Security Act of 1985 as amended, commonly referred to as “Swampbuster.”

Swampbuster conditions the receipt of farm program benefits on compliance with two key provisions:  First, a participant is ineligible for program benefits in any year in which he or she produces an agricultural commodity on a wetland converted after December 23, 1985; Second, a participant who converts a wetland after November 28, 1990 to make production of an agricultural commodity possible is ineligible in that crop year and all subsequent crop years until the participant takes further action to come back into compliance.

In Minnesota, NRCS has taken the position that when a participant completes an AD-1026, the NRCS may issue a new certified wetland determination on any tract which has not previously received a certified wetland determination issued after July 3, 1996.  This raises two important questions for farmers:  First, does NRCS automatically have the authority to issue a new certified wetland determination for your tract?  Second, how do you know if your tract already has a previously certified wetland determination that you may rely upon?

The simple answer to the first question is “No.”  Once the NRCS has made a certified wetland determination, it remains binding unless a person affected by the certification requests a review by completing form CPA-038 or the tract is no longer used for agricultural production.  An affected person may request a review of a certified wetland determination only if a natural event alters the topography or the hydrology of the tract to the extent that the certified determination is no longer a reliable indicator of site conditions or if the NRCS concurs that an error exists in the current wetland determination.  Therefore, a producer should determine whether a previously certified wetland determination exists on each tract before completing an AD-1026.  Previously issued certified wetland determinations are typically more reliable evidence of the actual site conditions present on December 23, 1985, the date Swampbuster became federal law.

Each landowner or operator has the right to request their agency file from the NRCS and FSA for any tract of land they own or operate within the farm program.  Landowners and operators should request from NRCS a copy of all historical records, letters, forms, maps and other documents in the agency file related to wetland determinations, wetland conservation compliance, and any appeals.  By requesting the agency’s complete record, a landowner or operator can determine if a certified wetland determination was previously issued to them or to a prior landowner of that tract.

There are three key time periods to keep in mind when reviewing an agency record to determine if a certified wetland determination already exists.  The most recent time period is for determinations made after July 3, 1996.  These are automatically considered to be certified wetland determinations.  If there is truly no previously certified wetland determination on record at the time an AD-1026 is completed, then the NRCS will issue a preliminary technical determination which the producer may appeal within 30 days of receiving.  Once the producer has exhausted all appeal procedures or does not appeal the determination within the allotted time frame, the determination becomes a final, certified technical determination.

You may have heard your District Conservationist or another producer tell you, “Determinations issued before 1996 are not certified,” but as discussed below, that is not a legally supported conclusion.  On September 6, 1996, the USDA amended its federal regulations in order to address the certification process for wetland determinations.  The comments to the amendment reiterate that “If NRCS certified a wetland determination prior to July 3, 1996, the certification will remain valid.”  A certified wetland determination means that the determination is of “sufficient quality to make a determination of ineligibility for program benefits under these regulations.”  See 61 Fed. Reg. 47019 (Sept. 6, 1996).  The NRCS policy book, known as the National Food Security Act Manual, states that determinations made prior to July 3, 1996, are considered certified if they met the procedural (appeal rights) and quality mandates as provided in 7 CFR Section 12.

Therefore, the second key period for determining whether a certified wetland determination exists is for determinations made between November 28, 1990 and July 3, 1996.  There are three requirements necessary for a determination made during this period to be certified:  the participant at that time must have received (1) a CPA-026 or notification of the wetland determination, (2) a map delineating the wetland location and size, and (3) a letter providing appeal rights.  Even if the participant did not appeal the wetland determination, a producer can rely upon a determination meeting these three requirements as a certified wetland determination.

The third and final key period applies to determinations made before November 28, 1990.  Determinations received during this period must include all three requirements noted in the second key period above, but in addition, the participant must have actually appealed the determination in order for a certified wetland determination to exist.  The result or outcome of such an appeal is a certified wetland determination to which a producer today can rely upon.

In summary, the NRCS does not have the authority to issue a new certified wetland determination where a previously issued certified wetland determination already exists, unless a participant affected by the certification requests it be reviewed by completing form CPA-038 and such review is necessary due to a natural, topography or hydrology altering event or NRCS’s concurrence that an error exists in the current determination.  Farm program landowners and operators should request a copy of their agency file before completing form AD-1026 to determine whether a certified wetland determination already exists.  Depending on the period of time in which prior SCS or NRCS determinations were made, a tract may already have a certified wetland determination that may be relied upon for clearing or drainage projects.

© 2013 Rinke Noonan