Gary Baise Commentaries

Trying to untangle NRCS' updated guidance on prior converted cropland?

On July 17, 2020, USDA’s NRCS, along with EPA and the Corps of Engineers (Corps), signed a Memorandum to the Field offices in your area discussing implementation of Section 404 of the Clean Water Act (CWA) and the Food Security Act of 1985 (FSA).

I have discussed in an earlier blog some of the issues related to this memorandum. The agencies state they “…strive to minimize duplication of efforts, pursuant to the CWA Section 404 program and the FSA Wetland Conservation (WC) provisions, while recognizing the inherent differences in the purpose and language of each law.”

NRCS has just notified the public of the release of its Circular 180-20-1 entitled “Highly Erodible Land and Wetland Conservation” (go here for details). This circular is a perfect example of why farmers almost always lose.

Most farmers and USDA staff are not aware of these circulars. This circular claims its purpose is “To provide updated policy and guidance for the wetland and highly erodible land conservation policy in Title 180, National Food Security Act Manual (NFSAM), 5th edition.”

Most farmers have never heard of NFSAM. It is a critical manual in terms of winning cases against NRCS on wetlands.

Two new policies

Circular 180-20-1 will become effective this week, Sept. 1, 2020. The circular will establish new policy in two areas. The first will be a new icon which will be placed on certified wetland determinations.

It is these technical determinations made by NRCS experts which cause most farmers to lose their case on prior converted cropland.

The technical determination must always be challenged by the farmer as to whether his/her land has the three wetland characteristics.

The second revised policy that Circular 180-20-1 clarifies is when NRCS provides Clean Water Act -related technical assistance to USDA clients such as the Farm Service Agency.

This circular states, “NRCS may also provide technical assistance on prior converted cropland abandonment determinations which may affect CWA exclusion applicability.”

Look for the green triangle

The five-page circular, which most farmers will never see or know about, provides guidance regarding wetland conservation maps which will now utilize a small green triangle as a cautionary icon. This small green icon will be placed approximately every half mile of a water feature to aid the farmer.

This green icon will identify cropland areas potentially subject to CWA jurisdiction. The green icon will be an early identifier of potential jurisdictional waters on your property.

This policy, of course, may subject you to another NRCS form entitled CPA-026. This form, which you also probably have never heard of, is to provide caution that the area on your prior converted cropland may be within the jurisdiction of the CWA and the Food Security Act.

Bureaucratic requirements

The second part of the circular discusses how NRCS may provide CWA technical assistance to other USDA clients. Bureaucratic requirements are numerous when NRCS is invited to a joint field visit with the Corps and EPA. The invitation must be in writing, and the USDA participant must sign a document waiving the protection of any private information.

In language only the bureaucrats love and understand, it is stated “In some cases, it may be helpful to a USDA client to share information NRCS gathered during a previously conducted…site visit for FSA purposes with the USACE or EPA”.

The circular never mentions any of the requirements for making a wetland technical determination. This is an incredibly difficult set of requirements which technical staff have difficulty completing. But of course, the farmer is never told how difficult the technical determination can be.

There are massive documents issued by the Corps and EPA on how to make a technical wetland determination. These technical determinations made by one or two highly educated “experts” have the potential of ruining your farm field or farming operation.

If you have a prior converted wetland issue, you may wish to read Circular 180-20-1.