II 

116TH CONGRESS 

2D SESSION S. 4704 

To require reforms to programs of the Natural Resources Conservation 

Service, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 24, 2020 

Mr. ROUNDS (for himself and Mr. CRAMER) introduced the following bill; 

which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry 

A BILL 

To require reforms to programs of the Natural Resources 

Conservation Service, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘NRCS Wetland Com5 pliance and Appeals Reform Act’’. 

6 SEC. 2. NATURAL RESOURCES CONSERVATION SERVICE 

7 REFORMS. 

8 (a) PERMISSIBILITY OF THE REMOVAL OF WOODY

9 VEGETATION.—Section 1221(d) of the Food Security Act 


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1 of 1985 (16 U.S.C. 3821(d)) is amended by adding at the 

2 end the following: 

3 ‘‘(3) PERMISSIBILITY OF THE REMOVAL OF

4 WOODY VEGETATION.—The removal of woody vege5 tation, including stumps, shall not be considered to 

6 be an activity that is for the purpose, or that has 

7 the effect, of making the production of an agricul8 tural commodity possible under paragraph (1).’’. 

9 (b) PROHIBITION ON RETROACTIVE PENALTIES.— 

10 Section 1221 of the Food Security Act of 1985 (16 U.S.C. 

11 3821) is amended by adding at the end the following: 

12 ‘‘(g) PROHIBITION ON RETROACTIVE PENALTIES.— 

13 The Secretary may not determine a person to be in viola14 tion of this section for the production of an agricultural 

15 commodity on, or the conversion of, a wetland that, at the 

16 time of that production or conversion, as applicable, the 

17 Secretary had not delineated, determined, and certified to 

18 be a wetland in accordance with section 1222.’’. 

19 (c) BURDEN OF PROOF.—Section 1221 of the Food 

20 Security Act of 1985 (16 U.S.C. 3821) (as amended by 

21 subsection (b)) is amended by adding at the end the fol22 lowing: 

23 ‘‘(h) BURDEN OF PROOF.—The Secretary shall bear 

24 the burden of proving, by clear and convincing evidence, 

25 that a person is in violation of this section, including— 


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1 ‘‘(1) in a case in which there is a lack of evi2 dence to determine such a violation; and 

3 ‘‘(2) the burden of proving, by clear and con4 vincing evidence, that evidence offered to prove that 

5 a person is not in violation of this section is unreli6 able.’’. 

7 (d) PROHIBITION ON USING NEW RATIONALE FOR

8 WETLAND DETERMINATIONS PREVIOUSLY REFUTED.— 

9 Section 1222(a) of the Food Security Act of 1985 (16 

10 U.S.C. 3822(a)) is amended by adding at the end the fol11 lowing: 

12 ‘‘(7) PROHIBITION ON USING NEW RATIONALE

13 FOR WETLAND DETERMINATIONS PREVIOUSLY RE14 FUTED.—If a person successfully appeals a final 

15 wetland determination at the National Appeals Divi16 sion, the Secretary may not subsequently make a de17 termination that the wetland exists based on a ra18 tionale that was not used for the determination that 

19 was successfully appealed at the National Appeals 

20 Division.’’. 

21 (e) APPEAL PROCESS FOR NONACCEPTED REVIEW

22 OF WETLAND CERTIFICATION REQUESTS.—Section 

23 1222(a) of the Food Security Act of 1985 (16 U.S.C. 

24 3822(a)) (as amended by subsection (d)) is amended by 

25 adding at the end the following: 


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1 ‘‘(8) APPEAL PROCESS FOR NONACCEPTED RE2 VIEW OF WETLAND CERTIFICATION REQUESTS.— 

3 The Secretary shall develop an appeal process for re4 quests for the review of wetland certifications that 

5 are not accepted by a State office of the Natural Re6 sources Conservation Service, which shall include a 

7 right for the person bringing the appeal to demand 

8 that the Secretary conduct an on-site visit in accord9 ance with subsection (c).’’. 

10 (f) REQUIREMENT RELATING TO PRELIMINARY WET11 LAND DETERMINATIONS.—Section 1222(c) of the Food 

12 Security Act of 1985 (16 U.S.C. 3822(c)) is amended by 

13 adding at the end the following: 

14 ‘‘(3) REQUIREMENT RELATING TO PRELIMI15 NARY WETLAND DETERMINATIONS.—The Secretary 

16 may not rely solely on 1 on-site visit described in 

17 paragraph (1) to determine that the hydrologic cri18 teria for the determination that a wetland exists are 

19 satisfied.’’. 

20 (g) CUSTOMER SATISFACTION SURVEY.—Subtitle C 

21 of title XII of the Food Security Act of 1985 (16 U.S.C. 

22 3821 et seq.) is amended by adding at the end the fol23 lowing: 

24 ‘‘SEC. 1225. CUSTOMER SATISFACTION SURVEY. 

25 ‘‘(a) PURPOSES.—The purposes of this section are— 


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1 ‘‘(1) to improve customer service at the Natural 

2 Resources Conservation Service relating to the ad3 ministration of this subtitle; 

4 ‘‘(2) to identify areas of satisfaction of cus5 tomers in interacting with the Natural Resources 

6 Conservation Service in the administration of this 

7 subtitle; 

8 ‘‘(3) to identify areas of customer service at the 

9 Natural Resources Conservation Service in need of 

10 improvement due to dissatisfaction of customers in 

11 interacting with the Natural Resources Conservation 

12 Service in the administration of this subtitle; and 

13 ‘‘(4) to address corrective measures and initiate 

14 positive change in customer service at the Natural 

15 Resources Conservation Service relating to the ad16 ministration of this subtitle. 

17 ‘‘(b) OPTION TO PARTICIPATE IN SURVEY.—The 

18 Secretary shall offer to each individual who interacts with 

19 the Natural Resources Conservation Service in the admin20 istration of this subtitle the option to participate in a sur21 vey described in subsection (c). 

22 ‘‘(c) SURVEYS.—The Secretary shall enter into an 

23 agreement with an independent survey company, under 

24 which the independent survey company shall provide the 

25 following services: 


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1 ‘‘(1) Send, by email or mail, a customer satis2 faction survey to each individual who interacts with 

3 the Natural Resources Conservation Service in the 

4 administration of this subtitle and indicates to the 

5 Secretary a desire to participate in the survey on 

6 being offered the option to participate under sub7 section (b) after any of the following occurs: 

8 ‘‘(A) The Secretary completes a final wet9 land determination, including a final technical 

10 determination, relating to land of the indi11 vidual. 

12 ‘‘(B) Appeals to the Farm Service Agency 

13 with respect to a wetland determination are ex14 hausted. 

15 ‘‘(C) An appeal is made with respect to a 

16 wetland determination to a National Appeals 

17 Division officer. 

18 ‘‘(D) An appeal is made with respect to a 

19 wetland determination to the Director of the 

20 National Appeals Division. 

21 ‘‘(E) The Secretary completes a review of 

22 a prior certification of a wetland determination. 

23 ‘‘(F) The individual has any other inter24 action with the Natural Resources Conservation 


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1 Service, as the Secretary determines to be ap2 propriate. 

3 ‘‘(2) Receive responses to the surveys from the 

4 individuals to which the surveys are sent under 

5 paragraph (1). 

6 ‘‘(3) Each month— 

7 ‘‘(A) compile the responses to the surveys 

8 received under paragraph (2); and 

9 ‘‘(B) submit a report describing the com10 piled responses to— 

11 ‘‘(i) the applicable State Conserva12 tionist; 

13 ‘‘(ii) the congressional delegation of 

14 each applicable State; 

15 ‘‘(iii) the Committee on Agriculture, 

16 Nutrition, and Forestry of the Senate; 

17 ‘‘(iv) the Committee on Agriculture of 

18 the House of Representatives; 

19 ‘‘(v) the applicable State department 

20 of agriculture; and 

21 ‘‘(vi) the Secretary.’’. 

22 (h) STATE OVERSIGHT COMMITTEES.—Subtitle C of 

23 title XII of the Food Security Act of 1985 (16 U.S.C. 

24 3821 et seq.) (as amended by subsection (g)) is amended 

25 by adding at the end the following: 


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1 ‘‘SEC. 1226. STATE OVERSIGHT COMMITTEES. 

2 ‘‘(a) IN GENERAL.—The Secretary shall establish an 

3 oversight committee for each State in which appeals of 

4 wetland determinations under this subtitle are made. 

5 ‘‘(b) COMPOSITION.—Each State oversight committee 

6 shall be composed of— 

7 ‘‘(1) 2 private, active farmers or ranchers ap8 pointed by the Secretary; and 

9 ‘‘(2) 1 private, active farmer or rancher ap10 pointed by the State department of agriculture. 

11 ‘‘(c) TERMS.—A member of a State oversight com12 mittee— 

13 ‘‘(1) shall be appointed for a term of 5 years; 

14 and 

15 ‘‘(2) may serve for not more than 2 terms. 

16 ‘‘(d) DUTIES.—Each State oversight committee shall 

17 have the following duties: 

18 ‘‘(1) Review the following appeals of wetland 

19 determinations under this subtitle in the applicable 

20 State: 

21 ‘‘(A) Appeals of preliminary wetland deter22 minations. 

23 ‘‘(B) Appeals of final wetland determina24 tions. 

25 ‘‘(C) Wetland determination appeals to the 

26 county Farm Service Agency committee. 


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1 ‘‘(D) Wetland determination appeals for 

2 State Conservationist review. 

3 ‘‘(E) Requests for wetland determination 

4 mediation. 

5 ‘‘(F) Wetland determination appeals to the 

6 National Appeals Division. 

7 ‘‘(G) Wetland determination appeals to the 

8 Director of the National Appeals Division. 

9 ‘‘(2) Review all requests for a review of a prior 

10 certification of a wetland determination under this 

11 subtitle. 

12 ‘‘(3) Submit a report describing findings of fact 

13 and recommendations for change and improvement 

14 with respect to each review under paragraphs (1) 

15 and (2) to— 

16 ‘‘(A) the State Conservationist; 

17 ‘‘(B) the Chief of the Natural Resources 

18 Conservation Service; 

19 ‘‘(C) the Committee on Agriculture, Nutri20 tion, and Forestry of the Senate; and 

21 ‘‘(D) the Committee on Agriculture of the 

22 House of Representatives. 

23 ‘‘(e) ASSISTANCE.—A State oversight committee may 

24 procure assistance in carrying out the duties under sub25 section (d) from— 


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1 ‘‘(1) a consultant; and 

2 ‘‘(2) a legal services provider.’’. 

3 (i) REFORMS TO APPEALS PROCESSES.—The Sec4 retary of Agriculture shall— 

5 (1) require National Appeals Division judges 

6 and agency heads of the Department of Agriculture 

7 to receive retraining on providing a fair and bal8 anced hearing; 

9 (2) provide to a person the entire record or 

10 decisional documentation relating to an allegation of 

11 the Secretary that the person is in violation of sec12 tion 1221 of the Food Security Act of 1985 (16 

13 U.S.C. 3821) at the time the Secretary makes the 

14 allegation; 

15 (3) allow a person (or counsel of the person) to 

16 call technical staff of the Natural Resources Con17 servation Service as a witness in an appeal brought 

18 by the person relating to a delineation, determina19 tion, or certification of a wetland under section 1222 

20 of that Act (16 U.S.C. 3822); 

21 (4) in an appeal described in paragraph (3), ac22 cept evidence provided by the person bringing the 

23 appeal as reliable absent substantial evidence that 

24 the evidence provided by the person is not reliable; 

25 and 


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1 (5) compensate a person for fees and expenses, 

2 including legal fees, when the person successfully ap3 peals a delineation, determination, or certification 

4 described in paragraph (3) and has incurred legal 

5 costs as a result of the overturned delineation, deter6 mination, or certification, as applicable. 

7 (j) REGULATIONS.—Section 1246(b)(2) of the Food 

8 Security Act of 1985 (16 U.S.C. 3846(b)(2)) is amend9 ed— 

10 (1) by striking ‘‘(2) shall’’ and inserting the fol11 lowing: 

12 ‘‘(2)(A) except as provided in subparagraph 

13 (B), shall’’; 

14 (2) in subparagraph (A) (as so designated), by 

15 striking the period at the end and inserting ‘‘; or’’; 

16 and 

17 (3) by adding at the end the following: 

18 ‘‘(B) shall be promulgated in accordance with 

19 section 553 of title 5, United States Code, in the 

20 case of— 

21 ‘‘(i) subtitles B and C; 

22 ‘‘(ii) section 1201, to the extent that sec23 tion defines a term that appears in, or other24 wise relates to, subtitle B or C; and 


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1 ‘‘(iii) subtitle E, to the extent that subtitle 

2 relates to subtitle B or C.’’. 

Æ 


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