USDA's Natural Resource Conservation Service is making decisions and claiming jurisdiction over farmlands, once wetlands, that have been tiled.  NRCS takes an expansive view of what is a "farmed wetland."

In 1985, Congress passed what is known as the Swampbuster provision of the Food Safety Act. The purpose was clear. If a farmer converted an actual wetland after December 23, 1985, then USDA benefits were cut off to the producer on the land converted.

In 1990, Congress again addressed the issue prohibiting the conversion of wetlands into crop-producing land. The 1990 statute required a loss of all USDA benefits on ALL of a farmer's land until the wetland was restored or mitigated to NRCS's requirements.

NRCS takes the position in its regulations that it may exercise jurisdiction over farm land which was converted from wetlands before 1985. NRCS says in its regulations it wants to conserve wetlands and even admits that a "strict reading" of the statute would exclude farmed wetlands if they were farmed before the December, 1985 date.

NRCS claims its position is backed by U.S. Circuit Court opinions which declare there is authority to regulate existing farmed wetlands if there is manipulation of the land, such as tiling and that the manipulation makes the land "more farmable."

This means if you are farming land that NRCS considers to have been wetlands at any time before December 1985, and you improve your tiling and drainage system, NRCS will want to be involved in such a decision.

It will also want the farmer to make up for impacting wetlands by buying and saving other wetlands. This can be very expensive.

Making its case
NRCS relies on a U.S. Court of appeals to support its position, Clark v. USDA. In this case, the farmer challenged USDA's interpretation of converted wetland when she attempted to convert pasture ground into row crop land. In Clark, the farmer argued it was possible in the past for the wetland to produce agricultural commodities and that is was USDA's legal burden to prove that the land could not produce agricultural commodities.  In Clark, it appears that NRCS had the better position. The land was pasture before and after 1985.

In a case decided two years ago in California, Koshman v. Vilsack, a farmer sued USDA regarding farmed wetland which had been producing rice before 1985 and in fact, produced rice since the 1950s. The farmer simply wanted to level the rice fields to improve water flow, and NRCS told the farmer any manipulation of the soils, topography or hydrology would be considered improving or converting a "farmed wetland."

Incredibly, NRCS takes the position that it has jurisdiction over your land prior to December 23, 1985, if the land has been "…drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of the water) for the purpose or to have the effect of making the production of an agricultural commodity possible…"

Remember, the statute says USDA is to have jurisdiction over farmed wetlands that were indeed wetlands after December 23, 1985.

The rice farmer argued that Congress was clear in declaring that a person loses USDA financial benefits if the land was not producing nor was it possible to produce before December 1985. The California rice farmer had been producing rice on his land long before December, 1985.

Stopped cold
In Koshman, the court stopped NRCS cold by saying if the land "was in any measure farmable prior to manipulation" NRCS has no jurisdiction.

The court used language from the Senate Agricultural Committee, which pointed out that it wanted to "discourage the draining and cultivation of wetland that is unsuitable for agricultural production in its natural state."

The Koshman case stops NRCS in its grab for more jurisdiction over "farmed wetlands." If you are planning to tile or drain your property, which improves it, the Koshman case helps you tell NRCS that it does not have jurisdiction over your property, particularly if you had been growing crops on that property before December 23, 1985.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.