Wildlife group calls Rounds’ wetlands bill ‘egregious,’ but some farmers say it’s overdue

By Joshua Haiar

A U.S. senator from South Dakota has sparked opposing reactions with legislation that could make it easier for farmers to convert wetlands into cropland.

Mike Rounds, a Republican, wants to change the “Swampbuster” provision of the 1985 farm bill. Under the existing provision, farmers lose eligibility for federal farm program benefits, like crop insurance subsidies, if they convert a wetland into cropland. Landowners are also fined for converting a wetland from the time they are believed to have done so.

If a farmer wants to remove water from their land but is unsure if it qualifies as a wetland, the Natural Resources Conservation Service (NRCS) makes the determination.

Rounds’ bill would establish state-level committees made up of local landowners to hear appeals from farmers who dispute the NRCS’s wetland determinations. The U.S. Department of Agriculture would pay for the farmer’s legal fees if an appeal is successful.

• READ MORE: Farmers say cover crops are on 40% of cropland

Julie Sibbing is the associate vice president for land stewardship with the National Wildlife Federation (NWF). She compared the proposed state-level committees made up of landowners to “the fox guarding the henhouse.”

“You would take the highly scientific process of identifying what a wetland is and turn it over to farmers to help their friends,” Sibbing said.

Sen. Mike Rounds, R-South Dakota, speaks with reporters at the U.S. Capitol Building on Oct. 7, 2021 in Washington, D.C.

Rounds disagrees. He sees farmers and ranchers as stewards of the land they own.

“And so to somehow suggest that the folks that live on the land would do stuff to destroy their land, I think, is wrong,” Rounds said.

The bill would also allow farmers to fill out a customer satisfaction survey regarding their wetland survey by NRCS. Sibbing calls that “ridiculous.”

“That’s the equivalent of having a state trooper give you a customer service survey right after he gives you a speeding ticket,” Sibbing said. “The only thing to come of that will be to identify those who have actually enforced the law.”

That view ignores the underlying goal, Rounds said.

“We want a better way for farmers and ranchers to express their frustration with these bureaucrats,” Rounds said. “And what they have today, and we’re trying to avoid, is a point where there’s an explosion that causes permanent problems and violence.”

Additionally, the bill would change the way the Swampbuster provision is enforced — rather than being fined from the time the landowner is believed to have converted the wetland, landowners would be fined from when they are caught.

Sibbing said that change creates incentives for farmers to drain more wetlands.

“Why wouldn’t you just go ahead and drain that property and start farming it, given it could be decades before you’re caught?” Sibbing said.

But Rounds said landowners are sometimes unaware they drained what qualifies as a wetland.

“And so they may very well think they’re doing good farming practices, and a couple of years later, you’ve got NRCS coming back in saying, ‘Under our interpretation of the rules, you should not have farmed this,’” Rounds said.

Bill also addresses easements

The bill addresses more than the Swampbuster provision.

Farmers can currently choose to place a wetland into a permanent conservation easement. That typically happens when a farmer determines a piece of cropland is too wet for planting crops. The farmer then applies to NRCS for a permanent wetland habitat, and the USDA pays the farmer for the permanent easement and 100% of the restoration cost.

Rounds’ bill would remove permanent easements as an option in NRCS programs – still leaving temporary easements on the table. He said permanent easements are a problem for future landowners because the size, shape and location of wetlands change over time.

“NRCS may be enforcing wetland areas that have been identified, maybe 40 years ago or so, and they’ve changed,” Rounds said. “And now you’ve got either kids or grandkids that are saddled with a neighbor, the federal government, that isn’t exactly friendly to traditional or current farming practices.”

Broader concerns

Rounds said the bill’s provisions address a fundamental aspect of farmers’ dealings with the federal government.

“It’s time that local farmers and ranchers have an opportunity to have a more friendly relationship with bureaucrats within NRCS, and that there is an incentive for NRCS to find a common ground with these farmers and ranchers,” Rounds said.

The National Wildlife Federation considers the removal of permanent easements “egregious” because landowners are entering into those agreements voluntarily, said Julie Sibbing.

“If we believe in landowner rights, then why can’t a landowner sell a perpetual easement on their property?” Sibbing asked. “And why should the taxpayers have to continually pay over and over again for a property instead of purchasing it outright?”

Sibbing said Rounds’ bill ignores the reasons taxpayers gave $18.2 billion in federal subsidies to South Dakota farmers from 1995 to 2020.

“These are just continued efforts to undermine what we consider a compact between farmers and the taxpaying public, where we only ask two things in return for USDA benefits and subsidies,” Sibbing said. “And those are that you refrain from draining wetlands on your property without going through a process, and to not farm highly erodible lands.”

Farmer reaction

Farm Forum reported the South Dakota Farmers Union and South Dakota Farm Bureau are in support of the changes.

South Dakota Farm Bureau President Scott VanderWal said the bill would create more flexibility for farmers.

“What we’re asking for is to be fairly treated on wetland determinations,” he said. “And there have been some cases quite a while back and in the recent past where there are some personal agendas that have gone into those NRCS interpretations. And so what farmers are asking for, and landowners, is just to be treated fairly.”

But not all farmers see the bill as a good thing.

"We want a better way for farmers and ranchers to express their frustration with these bureaucrats. And what they have today, and we're trying to avoid, is a point where there’s an explosion that causes permanent problems and violence," says U.S. Sen. Mike Rounds.

Ryan Roehr farms in the northeastern Prairie Pothole region of the state. He said wetland oversight is already too lax, and the proposed bill would make things worse.

“People are already draining wetlands illegally, they’re just not getting caught,” he said. “I think this bill is a big push from the chemical companies, the seed companies and the drain-tile companies to get more business.”

Jay Gilbertson, manager of the East Dakota Water Development District, said there’s already a lot of pressure on wetlands in South Dakota from drought, a lack of drainage oversight, and a pending U.S. Supreme Court case that could weaken wetland protections.

“We keep trying to do things that are going to jeopardize water quality in the name of addressing today’s agricultural needs,” Gilbertson said. “If the solution impairs our long-term sustainable existence, it’s short-sighted. I’ve got grandkids that I’d like to think will have water 50 years from now. Some of these policies suggest that is not a universally held opinion.”

Rounds’ wetlands bill was recently introduced and referred to the Committee on Agriculture, Nutrition, and Forestry.

South Dakota Searchlight asked the office of Sen. John Thune, R-South Dakota, if he supports Rounds’ bill. Thune’s office responded with a written statement: “With respect to this particular bill, it will likely be evaluated as part of a broader legislative process surrounding the next farm bill, which will need to be considered in the new Congress.”

This story was originally published by South Dakota Searchlight, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. South Dakota Searchlight maintains editorial independence. Contact Editor Seth Tupper for questions: info@southdakotasearchlight.com. Follow South Dakota Searchlight on Facebook and Twitter.

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