Joined by Congresswoman Kristi Noem, Minnesota Congressman and House Agriculture Committee Ranking Member Collin Peterson and North Dakota Congressman Kevin Cramer held an Agriculture Committee Listening Session Monday, June 6 in Moorhead, MN.
The session focused on the role of water management to complement the work of the Red River Retention Authority (RRRA) under the Regional Conservation Partnership Program (RCPP). House Agriculture Committee Subcommittee on Conservation and Forestry Chairman Glenn “G.T” Thompson, R-Pa., and Rep. Tim Walz, D-Minn., also joined the discussion.
Mike Elsen, farmer from Hecla and South Dakota Soybean Association (SDSA) director, testified on behalf of SDSA the road blocks frustrating farmers as they try to make wider use of tile drainage, including the timeliness of USDA determinations and the ability to mitigate middle of field wetlands. Read Elsen’s official statement below:
My name is Mike Elsen. I own and operate Elsen Homestead Farm in Brown County, South Dakota with my wife Julie. I am a member of the South Dakota Soybean Association, or SDSA, and serve on the board of directors.
Thank you for allowing the South Dakota Soybean Association to present information on South Dakota’s wetland determination process and the wetland backlog.
With the passage of Swampbuster provisions in the 1985 Farm Bill, South Dakota farmers with wetlands on their property had a voluntary restriction placed on the land. It was voluntary because if the farmer wanted to participate in the farm program, any wetland or potential wetland had a restriction placed on it. This restriction was similar to an easement in that it regulated the use of the wetlands with payment being farm program eligibility.
As Swampbuster rule implementation moved into the 1990s, South Dakota farmers found that the South Dakota Natural Resources Conservation Service (NRCS) was interpreting Swampbuster rules differently than other states. At that time, multiple agriculture groups and farmers became involved to the point of helping develop the wetland determination process for South Dakota NRCS.
Fast forward to an October 28, 2013 South Dakota NRCS Onsite Review of processes and procedures. These findings found deficiencies in job approval authority and training, general wetland determination methods, appeals process, data and final determination including labeling, wetland certification production goals, and the use of consultants in wetland determination work. These findings, obtained by FOIA request, are consistent with the issues raised at a 2014 SDSA wetlands meeting in Aberdeen, South Dakota. Farmers need procedurally and technically correct determinations – done consistently and in a timely manner from South Dakota NRCS – for SDSA to meet its goal of helping landowners to sustainably conserve natural resources.
Ironically, the issues of the late 1990s were general wetland determination methods and job approval authority and training. In early May 2016, a new South Dakota NRCS Onsite Review was completed. We call on South Dakota NRCS to share the 2016 review findings so that continued progress on these issues can be identified and measured.
The common thread for the past 25 years is lack of job approval authority, training and wetland determination methods. The lack of attention to the 2013 has led to the significant wetlands determination backlog. The net effect on farmers is substantial in wasted time, dollars spent and lost opportunity costs. Today, farmers can easily accumulate over $100,000 in legal fees from appeals of incorrect determinations. This does not include a value for the farmer’s time. In some cases, NRCS has rescinded from a USDA National Appeals Division hearing the day before the hearing was to be held. This action starts the whole process of wetland determination all over again. On top of that, some South Dakota farmers have waited 18 months to over four years for NRCS to complete their part of the appeals process. Farmers, however, only have 30 days to make their decision to appeal preliminary or final determinations.
NRCS staff conducting wetland determinations are required to have job approval authority and training. Training must be done by national and regional trainers rather than South Dakota NRCS staff. Color tone on slide reviews is subjective. Incorrect training evolves into incorrect determinations. South Dakota NRCS has adopted State Off-Site Methods for making certain wetland determinations. If a farmer appeals the preliminary determination, currently only the NRCS agency expert can determine if an onsite review is needed. The farmer must be able to request an onsite review that includes soil sampling, not just a drive by. Wetland determination methods should not be adjusted at will. Consistency is important.
The use of NRCS-certified independent consultants has been approved by NRCS for years. In order to help reduce the backlog, farmers are voluntarily paying independent consultants to complete preliminary work for a wetland determination. NRCS is not evaluating consultant data within a reasonable amount of time. NRCS has forced consultants to redo work because NRCS made a process change while the original consultant data was waiting to be reviewed.
Consultant work should be evaluated by the process in effect when the data is submitted. If preliminary work done by an NRCS-certified consultant is changed by NRCS agency experts, those changes need to be documented and justified.
SDSA is very concerned about the accuracy of determinations made prior to and since the 2013 review. Because of the deficiencies highlighted in the review, farmers should have the right to have determinations reviewed on a site-by-site basis.
In summary, the SDSA asks South Dakota NRCS to:
- Share the May 2016 Onsite Review findings with SDSA
- Provide expert training from national and regional trainers for South Dakota NRCS staff and private consultants
- Set and adhere to a one-year deadline for providing technically and procedurally accurate determinations to all farmers
- Eliminate duplicate procedures which waste time
Thank you allowing us to make these comments and I’d be happy to answer any questions you may have.