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Wetlands mismanagement – American style

Posted on: February 15th, 2017
by David Ganje

Wetlands play a role in the ecosystem and provide benefits for both people and wildlife. Society’s idea of wetlands management includes protecting water quality, storing floodwaters, retaining groundwater during dry periods, and providing food. Wetlands are also a source of biodiversity and serve as a habitat for species of fish and wildlife. It is estimated that one hundred years ago, the U.S. had over 221 million acres of wetlands. Today, the number is 107.7 million acres. The decline in the wetlands is linked, in part, to modern agricultural production. The government estimates that there are 6.4 million acres of wetlands in the prairie pothole region of South Dakota, North Dakota, Minnesota and Iowa. While I wrote about current languishing federal legislation addressing wetlands in a prior opinion piece, this article discusses the bureaucratic management of wetlands by the USDA.

The U.S. is not the old super-bureaucratic Soviet Union; nevertheless, the U.S. has a myriad of federal bureaucratic agencies, departments, services, divisions and offices, particularly within the USDA. For the convenience of the reader (and myself) I refer to all USDA related offices or divisions as simply ‘USDA’ instead of using the alphabet soup abbreviation for the particular office within the USDA.

Let me set the stage. The USDA has been involved in the wetlands management since 1977. Farmers, ranchers and landowners are incentivized to preserve the wetlands on their property by receiving government benefits. Beginning in 1990 and continuing through 1996, the USDA created maps to show wetlands determinations, or more specifically what was and was not a wetland. So that we don’t get lost in the timeline, I refer to the maps created during this time as “pre-1996 maps.” In 1996, the USDA completed several internal studies and concluded that the pre-1996 maps were not accurate and should not be used. Between 1996 and 2013, the USDA moved to a more comprehensive system to determine what is and isn’t a wetland. This new system was more accurate than the pre-1996 maps because it relied on several different techniques, such as onsite evaluations, maps, aerial photography, and soil samples.

Now here is the kicker. In 2013 the agency stopped using onsite evaluations, aerial photography and soil samples and reverted back to issuing wetlands determinations using the inadequate pre-1996 maps. Thus, in 2013 the pre-1996 maps were to be the ‘new’ method of making wetlands determinations. Alas, these older maps sometimes underestimate the amount of wetlands on a piece of property. For example, by using an inaccurate pre-1996 map the agency caused the reduction of wetland acreage in North Dakota by nearly 75% on 13 tracts. In another example, a 2010 map showed 34 acres of wetland on a tract of land but the pre-1996 map showed that the tract only had 2.5 acres. Since the USDA approved a landowner’s petition, the producer drained 31.5 acres of wetlands without being penalized with the loss of farm benefits. Remember the agency first asserted that the pre-1996 maps were unacceptable in 1996, yet they repeatedly reaffirmed this position over the years, most recently in a 2012 report. In 2013 the agency reversed this position so it could use the pre-1996 maps. Curiously, during this confusing time South Dakota USDA officials decided, on their own, not to follow their own USDA directives. USDA bumbling has created interstate chaos in wetlands management. The lack of uniformity in applying the rules caused complaints. I have yet to deal with a landowner who has experienced uniform treatment under the wetlands program.

Adding to the bumbling, senior officials finally realized that there was an inconsistency in the way wetlands determinations are decided between different states. In 2013 the USDA stated it would “clarify” its new decision-making process. It did not. The agency did not published anything on its official decision to revert back to the pre-1996 maps for over three years. And we were all taught that only families could be dysfunctional. This messy stew resulted in an Inspector General investigation and report.

Bumbling. Now I admit to bumbling some of my games of chess, however that is not the question at hand. But to the point: we all hold a low opinion of the stupidity of a bumbling government agency, and yet we all know we gotta have government. Just try to live without the security and benefits of a government – you will need to be a pretty good shot as well as a full time prepper, and yet you still won’t have a long shelf life.

So, let’s figure out what to do on the issue of wetlands management. The USDA has blown it. It is now incumbent upon USDA to get its act together and quickly. We must remember that the individual landowner does not always directly get the eco-benefits and the financial advantage by the imposition of wetlands management upon his land. It can happen, that is, the USDA may determine that private property should be regulated for the protection of a particular body of water or a species. Such action does not benefit the immediate landowner but rather benefits the environment and is the country’s form of stewardship of the land. We will have to live with a rational management of wetlands or choose to become the Wild West of environmental management as the Chinese tried for about 30 years. Go ask them now if that was a good idea.

The USDA Inspector General last month issued his critical report stating the USDA should, “Issue official guidance reinforcing correct and current rules and clarifying procedures for making wetland determinations…, including the status of pre-1996 determinations.” The USDA accepted the Inspector General’s criticism and declared it would provide clarification and specific guidance to evaluate the status of prior determinations. It’s a start. The USDA will need to learn how to chew gum and walk at the same time; it must both fix yesterday’s problems as well as manage wetlands rationally going forward.

Wetlands management may be a problem in which ‘institutional bypass’ is in order. In this case by institutional bypass I mean contracting with private enterprise to take care of the backlog of problems and create a fair and streamlined access to wetland determinations.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.