Wetland Wednesday
February 26, 2020
Rescission of the 2005 Joint Guidance between NRCS and USACE
On January 28, 2020 the Natural Resources Conservation Service (NRCS) and U.S. Army Corps of Engineers (USACE) agreed to rescind the 2005 memo that directed how wetlands and waterways would be assessed between the two agencies. The January 23, 2020 Navigable Waters Protection Rule (NWPR) preamble references the rescission of the 2005 Joint Guidance, “because it was not consistent with the newly promulgated definition of “waters of the United States” in the rule. At issue is the differing interpretations of wetlands and waterways between the two agencies.
NRCS administers farm subsidy programs. The USACE administers a regulatory program. These have very different objectives. NRCS’s program chiefly focus on avoiding and minimizing impacts to wetlands. Whereas, the USACE program focus is on authorized uses and fills of wetlands. NRCS does not make the distinction of jurisdictional waters as they are not claiming any jurisdictional authority. Rather their role is simply to pay farmers to not impact wetlands.
The Food Security Act Manual defines a wetland based upon the use of the USACE 1987 Wetlands Delineation Manual and the subsequent Regional Supplements. It does not address jurisdictional wetlands at all. Wetlands are managed by NRCS regardless of USACE jurisdictional status.
If a farmer fills in a wetland he or she risks losing all or some of the farm subsidies paid by NRCS. There is also the potential to lose future payments as well. These subsidy reversals can go beyond just wetland conservation monies and extend to other payments like crop insurance, soil conservation payments and other non-wetland related farm payments.
Ironically, the promulgation of the Navigable Waters Protection Rule was heavily lobbied by the farm community. It is ironic because the Clean Water Act (CWA) violations are the least of their problems. Under the NWPR, if a farmer fills in a non-jurisdictional wetland (USACE) he or she may not be subject to CWA violations, but they still run the financial risk of agreement penalties with NRCS. These can be very significant and have far more impact on a farm than the CWA fines they might have received.
It is also important to note that pursuant to this change in agreement a NRCS Certified Wetland Delineation cannot be used for USACE permitting. A farmer would need to request a jurisdictional determination from the USACE in order to proceed with a wetland or water filling project. This would also seem to negate the historic farmland exemptions enjoyed by the farmers in the past. The January 28, 2020 does not expressly state this, but the intent seems clear. Farmers will have to deal with USACE just like the rest of us.