New Farm Bill Makes Wetland Enforcement Harder, Requires Feds to Pay Landowners' Legal Fees

This legislation, titled the NRCS Wetland Compliance and Appeals Reform Act, fundamentally restructures how the Natural Resources Conservation Service (NRCS) handles wetland compliance for farmers and ranchers. In short, it significantly raises the bar for the government to prove a violation, offers new protections against surprise penalties, and introduces several mechanisms aimed at improving fairness and customer service within the NRCS administrative process.

The Enforcement Bar Just Got Higher

For anyone dealing with a potential wetland violation, the biggest change is the shift in the burden of proof. Currently, the NRCS holds the cards, but this Act requires the Secretary to prove a violation using "clear and convincing evidence." That’s not just a little bit of proof; that’s a heavy lift, usually reserved for serious cases like fraud. Furthermore, if you offer evidence showing you didn't violate the rules, the agency then has to prove your evidence is unreliable—again, using that high standard of clear and convincing evidence (SEC. 2).

What does this mean in the real world? It means the NRCS can’t just rely on weak data or a hunch anymore. If you’re a farmer facing a compliance issue, the agency now has to bring their A-game with solid, indisputable facts. It’s a huge win for procedural fairness but could make it much harder for the government to enforce legitimate wetland protections if the evidence is complex or circumstantial.

Protection Against Surprise Penalties

The bill also provides crucial protection against retroactive penalties. Under the new rules, the government cannot penalize a landowner for farming on or converting land unless that land had been officially marked, identified, and certified as a wetland at the time the action took place (SEC. 2). Think of it as a 'no surprise' rule: if the agency hadn't officially flagged it, they can't come back years later and fine you because a new determination says it was a wetland all along. This should bring a lot of certainty to land management decisions.

Another practical change is that simply removing "woody vegetation," like stumps, will no longer automatically trigger a violation (SEC. 2). This is a common-sense fix for landowners who might be clearing minor debris without intending to convert a wetland for farming, separating routine maintenance from actual land conversion.

The Feds Might Pay Your Lawyer

Perhaps the most eye-catching change for anyone who has battled the agency is the new mandate regarding legal fees. If you successfully appeal a wetland delineation, determination, or certification, the NRCS must now compensate you for all legal fees and expenses you incurred in the process (SEC. 2). This provision drastically changes the financial calculus of appealing an NRCS decision. Previously, fighting the government was often too costly for the average landowner; now, if you win, the agency covers the bill. This incentivizes the agency to ensure its initial determinations are rock-solid, but it also creates a significant financial liability for the government.

New Oversight and Lost Conservation Tools

To address customer service, the bill requires the NRCS to implement customer satisfaction surveys, providing feedback on the agency’s interactions (SEC. 2). More significantly, it mandates the creation of State Oversight Committees for appeals. These committees will review all types of wetland appeals and send reports to Congress and the NRCS Chief. Crucially, these three-member committees will be composed entirely of active farmers and ranchers, ensuring that the review process has heavy input from the regulated community itself (SEC. 2).

However, the bill also contains a provision with major implications for long-term conservation: it explicitly prohibits the NRCS from acquiring any permanent easements moving forward (SEC. 2). Permanent easements are a key tool the agency uses to ensure wetlands or other sensitive areas are protected long-term, often in exchange for payment to the landowner. Banning this practice removes a significant conservation mechanism from the NRCS's toolbox, potentially limiting future efforts to preserve critical habitat and water resources.