What This Bill Does
This bill makes changes to how the Natural Resources Conservation Service (a federal agency that manages farming and land programs) handles wetland decisions. The bill aims to make the appeals process fairer for farmers and ranchers who disagree with wetland determinations.
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Who It Affects
Farmers and ranchers who use agricultural land, the Natural Resources Conservation Service, state departments of agriculture, congressional committees overseeing agriculture, and the Department of Agriculture's appeals courts.
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Key Provisions
• Removing woody plants and stumps from land will not count as trying to make farming possible on a wetland (Sec. 2(a))
• The federal government cannot penalize someone for farming or changing a wetland if the government had not officially identified and certified that wetland beforehand (Sec. 2(b))
• The federal government must prove someone violated wetland rules using clear and convincing evidence (a high legal standard), even when evidence is missing or disputed (Sec. 2(c))
• If someone wins an appeal of a wetland decision, the federal government cannot use a different reason to claim the same wetland exists (Sec. 2(d))
• An independent survey company must send customer satisfaction surveys to people who interact with the Natural Resources Conservation Service and report monthly results to Congress, state officials, and agency leaders (Sec. 2(g))
• Each state must have an oversight committee made of three active farmers or ranchers appointed by the Secretary of Agriculture and state agriculture officials to review wetland appeals and certification requests (Sec. 2(h))
• National Appeals Division judges must get retraining on fair hearings, and people appealing decisions can call technical staff as witnesses and must receive all records about their case (Sec. 2(i))
• A person who wins an appeal must be paid back for legal fees and expenses they spent due to an overturned decision (Sec. 2(i))
• The federal government cannot acquire permanent easements (long-term land agreements) (Sec. 2(k))
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What Changes
The appeals process for wetland disputes becomes more favorable to farmers and ranchers. The government must meet a higher legal standard to prove violations, cannot punish people for past actions on unmarked wetlands, and must provide full case records upfront. Farmers can call government staff as witnesses in their appeals. If they win, they recover legal costs. A new survey system collects feedback on how the Natural Resources Conservation Service treats people. Three-person farmer oversight committees in each state will review all wetland appeals and submit findings to Congress monthly.
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Important Definitions
The bill does not explicitly define key terms like "wetland," "woody vegetation," "hydrologic criteria," or "easement."
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Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 1078
To require reforms to programs of the Natural Resources Conservation
Service, and for other purposes.
IN THE SENATE OF THE UNITED STATES
MARCH 30, 2023
Mr. ROUNDS (for himself, Mr. CRAMER, and Mr. HOEVEN) introduced the fol-
lowing bill; which was read twice and referred to the Committee on Agri-
culture, Nutrition, and Forestry
A BILL
To require reforms to programs of the Natural Resources
Conservation Service, and for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘NRCS Wetland Com-
4
pliance and Appeals Reform Act’’.
5
SEC. 2. NATURAL RESOURCES CONSERVATION SERVICE
6
REFORMS.
7
(a) PERMISSIBILITY OF THE REMOVAL OF WOODY
8
VEGETATION.—Section 1221(d) of the Food Security Act
9
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of 1985 (16 U.S.C. 3821(d)) is amended by adding at the
1
end the following:
2
‘‘(3) PERMISSIBILITY
OF
THE
REMOVAL
OF
3
WOODY VEGETATION.—The removal of woody vege-
4
tation, including stumps, shall not be considered to
5
be an activity that is for the purpose, or that has
6
the effect, of making the production of an agricul-
7
tural commodity possible under paragraph (1).’’.
8
(b) PROHIBITION ON RETROACTIVE PENALTIES.—
9
Section 1221 of the Food Security Act of 1985 (16 U.S.C.
10
3821) is amended by adding at the end the following:
11
‘‘(g) PROHIBITION ON RETROACTIVE PENALTIES.—
12
The Secretary may not determine a person to be in viola-
13
tion of this section for the production of an agricultural
14
commodity on, or the conversion of, a wetland that, at the
15
time of that production or conversion, as applicable, the
16
Secretary had not delineated, determined, and certified to
17
be a wetland in accordance with section 1222.’’.
18
(c) BURDEN OF PROOF.—Section 1221 of the Food
19
Security Act of 1985 (16 U.S.C. 3821) (as amended by
20
subsection (b)) is amended by adding at the end the fol-
21
lowing:
22
‘‘(h) BURDEN OF PROOF.—The Secretary shall bear
23
the burden of proving, by clear and convincing evidence,
24
that a person is in violation of this section, including—
25
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‘‘(1) in a case in which there is a lack of evi-
1
dence to determine such a violation; and
2
‘‘(2) the burden of proving, by clear and con-
3
vincing evidence, that evidence offered to prove that
4
a person is not in violation of this section is unreli-
5
able.’’.
6
(d) PROHIBITION ON USING NEW RATIONALE FOR
7
WETLAND DETERMINATIONS PREVIOUSLY REFUTED.—
8
Section 1222(a) of the Food Security Act of 1985 (16
9
U.S.C. 3822(a)) is amended by adding at the end the fol-
10
lowing:
11
‘‘(7) PROHIBITION ON USING NEW RATIONALE
12
FOR WETLAND DETERMINATIONS PREVIOUSLY RE-
13
FUTED.—If a person successfully appeals a final
14
wetland determination at the National Appeals Divi-
15
sion, the Secretary may not subsequently make a de-
16
termination that the wetland exists based on a ra-
17
tionale that was not used for the determination that
18
was successfully appealed at the National Appeals
19
Division.’’.
20
(e) APPEAL PROCESS FOR NONACCEPTED REVIEW
21
OF
WETLAND
CERTIFICATION
REQUESTS.—Section
22
1222(a) of the Food Security Act of 1985 (16 U.S.C.
23
3822(a)) (as amended by subsection (d)) is amended by
24
adding at the end the following:
25
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‘‘(8) APPEAL PROCESS FOR NONACCEPTED RE-
1
VIEW
OF
WETLAND
CERTIFICATION
REQUESTS.—
2
The Secretary shall develop an appeal process for re-
3
quests for the review of wetland certifications that
4
are not accepted by a State office of the Natural Re-
5
sources Conservation Service, which shall include a
6
right for the person bringing the appeal to demand
7
that the Secretary conduct an on-site visit in accord-
8
ance with subsection (c).’’.
9
(f) REQUIREMENT RELATING TO PRELIMINARY WET-
10
LAND DETERMINATIONS.—Section 1222(c) of the Food
11
Security Act of 1985 (16 U.S.C. 3822(c)) is amended by
12
adding at the end the following:
13
‘‘(3) REQUIREMENT
RELATING
TO
PRELIMI-
14
NARY WETLAND DETERMINATIONS.—The Secretary
15
may not rely solely on 1 on-site visit described in
16
paragraph (1) to determine that the hydrologic cri-
17
teria for the determination that a wetland exists are
18
satisfied.’’.
19
(g) CUSTOMER SATISFACTION SURVEY.—Subtitle C
20
of title XII of the Food Security Act of 1985 (16 U.S.C.
21
3821 et seq.) is amended by adding at the end the fol-
22
lowing:
23
‘‘SEC. 1225. CUSTOMER SATISFACTION SURVEY.
24
‘‘(a) PURPOSES.—The purposes of this section are—
25
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•S 1078 IS
‘‘(1) to improve customer service at the Natural
1
Resources Conservation Service relating to the ad-
2
ministration of this subtitle;
3
‘‘(2) to identify areas of satisfaction of cus-
4
tomers in interacting with the Natural Resources
5
Conservation Service in the administration of this
6
subtitle;
7
‘‘(3) to identify areas of customer service at the
8
Natural Resources Conservation Service in need of
9
improvement due to dissatisfaction of customers in
10
interacting with the Natural Resources Conservation
11
Service in the administration of this subtitle; and
12
‘‘(4) to address corrective measures and initiate
13
positive change in customer service at the Natural
14
Resources Conservation Service relating to the ad-
15
ministration of this subtitle.
16
‘‘(b) OPTION TO PARTICIPATE
IN SURVEY.—The
17
Secretary shall offer to each individual who interacts with
18
the Natural Resources Conservation Service in the admin-
19
istration of this subtitle the option to participate in a sur-
20
vey described in subsection (c).
21
‘‘(c) SURVEYS.—The Secretary shall enter into an
22
agreement with an independent survey company, under
23
which the independent survey company shall provide the
24
following services:
25
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‘‘(1) Send, by email or mail, a customer satis-
1
faction survey to each individual who interacts with
2
the Natural Resources Conservation Service in the
3
administration of this subtitle and indicates to the
4
Secretary a desire to participate in the survey on
5
being offered the option to participate under sub-
6
section (b) after any of the following occurs:
7
‘‘(A) The Secretary completes a final wet-
8
land determination, including a final technical
9
determination, relating to land of the indi-
10
vidual.
11
‘‘(B) Appeals to the Farm Service Agency
12
with respect to a wetland determination are ex-
13
hausted.
14
‘‘(C) An appeal is made with respect to a
15
wetland determination to a National Appeals
16
Division officer.
17
‘‘(D) An appeal is made with respect to a
18
wetland determination to the Director of the
19
National Appeals Division.
20
‘‘(E) The Secretary completes a review of
21
a prior certification of a wetland determination.
22
‘‘(F) The individual has any other inter-
23
action with the Natural Resources Conservation
24
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Service, as the Secretary determines to be ap-
1
propriate.
2
‘‘(2) Receive responses to the surveys from the
3
individuals to which the surveys are sent under
4
paragraph (1).
5
‘‘(3) Each month—
6
‘‘(A) compile the responses to the surveys
7
received under paragraph (2); and
8
‘‘(B) submit a report describing the com-
9
piled responses to—
10
‘‘(i) the applicable State Conserva-
11
tionist;
12
‘‘(ii) the congressional delegation of
13
each applicable State;
14
‘‘(iii) the Committee on Agriculture,
15
Nutrition, and Forestry of the Senate;
16
‘‘(iv) the Committee on Agriculture of
17
the House of Representatives;
18
‘‘(v) the applicable State department
19
of agriculture; and
20
‘‘(vi) the Secretary.’’.
21
(h) STATE OVERSIGHT COMMITTEES.—Subtitle C of
22
title XII of the Food Security Act of 1985 (16 U.S.C.
23
3821 et seq.) (as amended by subsection (g)) is amended
24
by adding at the end the following:
25
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‘‘SEC. 1226. STATE OVERSIGHT COMMITTEES.
1
‘‘(a) IN GENERAL.—The Secretary shall establish an
2
oversight committee for each State in which appeals of
3
wetland determinations under this subtitle are made.
4
‘‘(b) COMPOSITION.—Each State oversight committee
5
shall be composed of—
6
‘‘(1) 2 private, active farmers or ranchers ap-
7
pointed by the Secretary; and
8
‘‘(2) 1 private, active farmer or rancher ap-
9
pointed by the State department of agriculture.
10
‘‘(c) TERMS.—A member of a State oversight com-
11
mittee—
12
‘‘(1) shall be appointed for a term of 5 years;
13
and
14
‘‘(2) may serve for not more than 2 terms.
15
‘‘(d) DUTIES.—Each State oversight committee shall
16
have the following duties:
17
‘‘(1) Review the following appeals of wetland
18
determinations under this subtitle in the applicable
19
State:
20
‘‘(A) Appeals of preliminary wetland deter-
21
minations.
22
‘‘(B) Appeals of final wetland determina-
23
tions.
24
‘‘(C) Wetland determination appeals to the
25
county Farm Service Agency committee.
26
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•S 1078 IS
‘‘(D) Wetland determination appeals for
1
State Conservationist review.
2
‘‘(E) Requests for wetland determination
3
mediation.
4
‘‘(F) Wetland determination appeals to the
5
National Appeals Division.
6
‘‘(G) Wetland determination appeals to the
7
Director of the National Appeals Division.
8
‘‘(2) Review all requests for a review of a prior
9
certification of a wetland determination under this
10
subtitle.
11
‘‘(3) Submit a report describing findings of fact
12
and recommendations for change and improvement
13
with respect to each review under paragraphs (1)
14
and (2) to—
15
‘‘(A) the State Conservationist;
16
‘‘(B) the Chief of the Natural Resources
17
Conservation Service;
18
‘‘(C) the Committee on Agriculture, Nutri-
19
tion, and Forestry of the Senate; and
20
‘‘(D) the Committee on Agriculture of the
21
House of Representatives.
22
‘‘(e) ASSISTANCE.—A State oversight committee may
23
procure assistance in carrying out the duties under sub-
24
section (d) from—
25
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•S 1078 IS
‘‘(1) a consultant; and
1
‘‘(2) a legal services provider.’’.
2
(i) REFORMS TO APPEALS PROCESSES.—The Sec-
3
retary of Agriculture shall—
4
(1) require National Appeals Division judges
5
and agency heads of the Department of Agriculture
6
to receive retraining on providing a fair and bal-
7
anced hearing;
8
(2) provide to a person the entire record or
9
decisional documentation relating to an allegation of
10
the Secretary that the person is in violation of sec-
11
tion 1221 of the Food Security Act of 1985 (16
12
U.S.C. 3821) at the time the Secretary makes the
13
allegation;
14
(3) allow a person (or counsel of the person) to
15
call technical staff of the Natural Resources Con-
16
servation Service as a witness in an appeal brought
17
by the person relating to a delineation, determina-
18
tion, or certification of a wetland under section 1222
19
of that Act (16 U.S.C. 3822);
20
(4) in an appeal described in paragraph (3), ac-
21
cept evidence provided by the person bringing the
22
appeal as reliable absent substantial evidence that
23
the evidence provided by the person is not reliable;
24
and
25
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(5) compensate a person for fees and expenses,
1
including legal fees, when the person successfully ap-
2
peals a delineation, determination, or certification
3
described in paragraph (3) and has incurred legal
4
costs as a result of the overturned delineation, deter-
5
mination, or certification, as applicable.
6
(j) REGULATIONS.—Section 1246(b)(2) of the Food
7
Security Act of 1985 (16 U.S.C. 3846(b)(2)) is amend-
8
ed—
9
(1) by striking ‘‘(2) shall’’ and inserting the fol-
10
lowing:
11
‘‘(2)(A) except as provided in subparagraph
12
(B), shall’’;
13
(2) in subparagraph (A) (as so designated), by
14
striking the period at the end and inserting ‘‘; or’’;
15
and
16
(3) by adding at the end the following:
17
‘‘(B) shall be promulgated in accordance with
18
section 553 of title 5, United States Code, in the
19
case of—
20
‘‘(i) subtitles B and C;
21
‘‘(ii) section 1201, to the extent that sec-
22
tion defines a term that appears in, or other-
23
wise relates to, subtitle B or C; and
24
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‘‘(iii) subtitle E, to the extent that subtitle
1
relates to subtitle B or C.’’.
2
(k) PROHIBITION
OF PERMANENT EASEMENTS.—
3
Notwithstanding any other provision of law, the Secretary
4
of Agriculture, acting through the Chief of the Natural
5
Resources Conservation Service, may not acquire any per-
6
manent easement.
7
Æ
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