What makes a wetland? Depends on who’s drawing the map

Recognizing that the continued destruction of prairie potholes might be really bad for the nation’s wildlife, Congress decided in 1985 to protect wetlands as part of the farm bill in a policy commonly known as “Swampbuster.” Those new rules essentially made United States Department of Agriculture (USDA) money available to farmers contingent upon wetland preservation. If a producer filled in potholes on his land, he was no longer eligible for most farm assistance programs.

Interest groups like the Farm Bureau typically oppose any government regulation of private land, insisting that “farmers know best” how to care for their fields. When the president sent up prairie potholes at the bureau’s convention, he was referencing his administration’s recent rollback of the Waters of the United States (WOTUS) rule, which made it easier for the Environmental Protection Agency (EPA) to regulate some pothole-adjacent farming activities. Now, the Trump administration is finalizing another rule that, if implemented, may further impact wetlands nationwide.

In an interim final rule published in December, the National Resources Conservation Service (NRCS) announced that it would confirm the status of wetland determinations it made between 1990 and 1996. In those early years, NRCS was using a less accurate method to identify wetlands, which Congress ditched in the 1996 farm bill. The next year, reports Agri-Pulse, the agency said it had made over 3 million determinations and about 60 percent of them were inaccurate. That’s important because those determinations likely underestimated the number of wetland acres that should be protected in a given area. A 2017 report by the Office of the Inspector General (OIG) seems to confirm this: In 13 of 17 cases it reviewed in North Dakota, the pre-1996 determinations reduced wetland acreage by 75 percent.

The proposed policy change gets pretty deep into the weeds, much like the duck nests that’ll be affected by it. But it boils down to this: the Swampbuster legislation gave USDA the ability to regulate wetlands, but it also gave USDA the ability to define wetlands. The agency changed its methods in 1996, but many farmers would like to be regulated according to the pre-1996, less stringent assessments of their land. The affected farms wouldn’t have been re-examined in between their initial determination and now; Goldman-Carter, the lawyer for the National Wildlife Foundation, says that farmers basically keep their initial determinations forever.

Goldman-Carter also says this issue came to a head back in the early 2010s, when Congress was considering the next farm bill. At the time, rumors were circulating that crop insurance eligibility would be coupled with wetland protection compliance, and many farmers who had left the program needed back in. But rather than have their land reassessed by NRCS, which might have meant waiting a long time and seeing more land reclassified as wetlands than they’d have liked, they instead wanted to use their pre-1996 assessments.

In March of 2014, a whistleblower contacted the OIG, alleging that NRCS was accepting the pre-1996 assessments in the prairie pothole region, adding that this change was “unethical,” “fraudulent,” and “illegal,” according to a letter Goldman-Carter wrote to Agriculture Secretary Sonny Perdue in July of 2018. Anecdotally, Goldman-Carter says, advocates and scientists were noticing increased wetlands drainage around that time.

The subsequent OIG investigation found that NRCS offices in those regions were rubber-stamping backlogged cases to accept the pre-1996 determinations. The OIG recommended that NRCS clarify its procedures; two days later, the agency amended its rulebook to accept pre-1996 wetlands determinations nationwide.

So if the agency effectively adopted the policy in January of 2017, why go through the trouble of formalizing it through the official rulemaking process now? “It’s basically trying to put some aura of process and legality on top of what they have already been doing,” Goldman-Carter says.

To recap: Congress decided to make taxpayer subsidies contingent on a modicum of environmental stewardship. The methods the government used to determine what is and isn’t a wetland changed over time, but even though pretty much everyone acknowledges that the  maps created before 1996 missed a lot of important duck territory, USDA still wants to rely on old data to determine what is and isn’t a prairie pothole. What this means is that we may end up subsidizing farms that fill in wetlands, even though that’s exactly what the policy was designed to prevent. And it may all add up to less farmland for ducks. Quack.