Title: NRCS Wetland Compliance and Appeals Reform Act
Policy area: Agriculture and Food

Summary:
NRCS Wetland Compliance and Appeals Reform Act
This bill revises provisions related to the Natural Resources Conservation Service of the Department of Agriculture (USDA), including by requiring USDA to establish oversight committees in each state that will oversee the appeals of wetland determinations.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4704 Introduced in Senate (IS)]

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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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``NRCS Wetland Compliance and Appeals 
Reform Act''.

SEC. 2. NATURAL RESOURCES CONSERVATION SERVICE REFORMS.

    (a) Permissibility of the Removal of Woody Vegetation.--Section 
1221(d) of the Food Security Act of 1985 (16 U.S.C. 3821(d)) is amended 
by adding at the end the following:
            ``(3) Permissibility of the removal of woody vegetation.--
        The removal of woody vegetation, including stumps, shall not be 
        considered to be an activity that is for the purpose, or that 
        has the effect, of making the production of an agricultural 
        commodity possible under paragraph (1).''.
    (b) Prohibition on Retroactive Penalties.--Section 1221 of the Food 
Security Act of 1985 (16 U.S.C. 3821) is amended by adding at the end 
the following:
    ``(g) Prohibition on Retroactive Penalties.--The Secretary may not 
determine a person to be in violation of this section for the 
production of an agricultural commodity on, or the conversion of, a 
wetland that, at the time of that production or conversion, as 
applicable, the Secretary had not delineated, determined, and certified 
to be a wetland in accordance with section 1222.''.
    (c) Burden of Proof.--Section 1221 of the Food Security Act of 1985 
(16 U.S.C. 3821) (as amended by subsection (b)) is amended by adding at 
the end the following:
    ``(h) Burden of Proof.--The Secretary shall bear the burden of 
proving, by clear and convincing evidence, that a person is in 
violation of this section, including--
            ``(1) in a case in which there is a lack of evidence to 
        determine such a violation; and
            ``(2) the burden of proving, by clear and convincing 
        evidence, that evidence offered to prove that a person is not 
        in violation of this section is unreliable.''.
    (d) Prohibition on Using New Rationale for Wetland Determinations 
Previously Refuted.--Section 1222(a) of the Food Security Act of 1985 
(16 U.S.C. 3822(a)) is amended by adding at the end the following:
            ``(7) Prohibition on using new rationale for wetland 
        determinations previously refuted.--If a person successfully 
        appeals a final wetland determination at the National Appeals 
        Division, the Secretary may not subsequently make a 
        determination that the wetland exists based on a rationale that 
        was not used for the determination that was successfully 
        appealed at the National Appeals Division.''.
    (e) Appeal Process for Nonaccepted Review of Wetland Certification 
Requests.--Section 1222(a) of the Food Security Act of 1985 (16 U.S.C. 
3822(a)) (as amended by subsection (d)) is amended by adding at the end 
the following:
            ``(8) Appeal process for nonaccepted review of wetland 
        certification requests.--The Secretary shall develop an appeal 
        process for requests for the review of wetland certifications 
        that are not accepted by a State office of the Natural 
        Resources Conservation Service, which shall include a right for 
        the person bringing the appeal to demand that the Secretary 
        conduct an on-site visit in accordance with subsection (c).''.
    (f) Requirement Relating to Preliminary Wetland Determinations.--
Section 1222(c) of the Food Security Act of 1985 (16 U.S.C. 3822(c)) is 
amended by adding at the end the following:
            ``(3) Requirement relating to preliminary wetland 
        determinations.--The Secretary may not rely solely on 1 on-site 
        visit described in paragraph (1) to determine that the 
        hydrologic criteria for the determination that a wetland exists 
        are satisfied.''.
    (g) Customer Satisfaction Survey.--Subtitle C of title XII of the 
Food Security Act of 1985 (16 U.S.C. 3821 et seq.) is amended by adding 
at the end the following:

``SEC. 1225. CUSTOMER SATISFACTION SURVEY.

    ``(a) Purposes.--The purposes of this section are--
            ``(1) to improve customer service at the Natural Resources 
        Conservation Service relating to the administration of this 
        subtitle;
            ``(2) to identify areas of satisfaction of customers in 
        interacting with the Natural Resources Conservation Service in 
        the administration of this subtitle;
            ``(3) to identify areas of customer service at the Natural 
        Resources Conservation Service in need of improvement due to 
        dissatisfaction of customers in interacting with the Natural 
        Resources Conservation Service in the administration of this 
        subtitle; and
            ``(4) to address corrective measures and initiate positive 
        change in customer service at the Natural Resources 
        Conservation Service relating to the administration of this 
        subtitle.
    ``(b) Option To Participate in Survey.--The Secretary shall offer 
to each individual who interacts with the Natural Resources 
Conservation Service in the administration of this subtitle the option 
to participate in a survey described in subsection (c).
    ``(c) Surveys.--The Secretary shall enter into an agreement with an 
independent survey company, under which the independent survey company 
shall provide the following services:
            ``(1) Send, by email or mail, a customer satisfaction 
        survey to each individual who interacts with the Natural 
        Resources Conservation Service in the administration of this 
        subtitle and indicates to the Secretary a desire to participate 
        in the survey on being offered the option to participate under 
        subsection (b) after any of the following occurs:
                    ``(A) The Secretary completes a final wetland 
                determination, including a final technical 
                determination, relating to land of the individual.
                    ``(B) Appeals to the Farm Service Agency with 
                respect to a wetland determination are exhausted.
                    ``(C) An appeal is made with respect to a wetland 
                determination to a National Appeals Division officer.
                    ``(D) An appeal is made with respect to a wetland 
                determination to the Director of the National Appeals 
                Division.
                    ``(E) The Secretary completes a review of a prior 
                certification of a wetland determination.
                    ``(F) The individual has any other interaction with 
                the Natural Resources Conservation Service, as the 
                Secretary determines to be appropriate.
            ``(2) Receive responses to the surveys from the individuals 
        to which the surveys are sent under paragraph (1).
            ``(3) Each month--
                    ``(A) compile the responses to the surveys received 
                under paragraph (2); and
                    ``(B) submit a report describing the compiled 
                responses to--
                            ``(i) the applicable State Conservationist;
                            ``(ii) the congressional delegation of each 
                        applicable State;
                            ``(iii) the Committee on Agriculture, 
                        Nutrition, and Forestry of the Senate;
                            ``(iv) the Committee on Agriculture of the 
                        House of Representatives;
                            ``(v) the applicable State department of 
                        agriculture; and
                            ``(vi) the Secretary.''.
    (h) State Oversight Committees.--Subtitle C of title XII of the 
Food Security Act of 1985 (16 U.S.C. 3821 et seq.) (as amended by 
subsection (g)) is amended by adding at the end the following:

``SEC. 1226. STATE OVERSIGHT COMMITTEES.

    ``(a) In General.--The Secretary shall establish an oversight 
committee for each State in which appeals of wetland determinations 
under this subtitle are made.
    ``(b) Composition.--Each State oversight committee shall be 
composed of--
            ``(1) 2 private, active farmers or ranchers appointed by 
        the Secretary; and
            ``(2) 1 private, active farmer or rancher appointed by the 
        State department of agriculture.
    ``(c) Terms.--A member of a State oversight committee--
            ``(1) shall be appointed for a term of 5 years; and
            ``(2) may serve for not more than 2 terms.
    ``(d) Duties.--Each State oversight committee shall have the 
following duties:
            ``(1) Review the following appeals of wetland 
        determinations under this subtitle in the applicable State:
                    ``(A) Appeals of preliminary wetland 
                determinations.
                    ``(B) Appeals of final wetland determinations.
                    ``(C) Wetland determination appeals to the county 
                Farm Service Agency committee.
                    ``(D) Wetland determination appeals for State 
                Conservationist review.
                    ``(E) Requests for wetland determination mediation.
                    ``(F) Wetland determination appeals to the National 
                Appeals Division.
                    ``(G) Wetland determination appeals to the Director 
                of the National Appeals Division.
            ``(2) Review all requests for a review of a prior 
        certification of a wetland determination under this subtitle.
            ``(3) Submit a report describing findings of fact and 
        recommendations for change and improvement with respect to each 
        review under paragraphs (1) and (2) to--
                    ``(A) the State Conservationist;
                    ``(B) the Chief of the Natural Resources 
                Conservation Service;
                    ``(C) the Committee on Agriculture, Nutrition, and 
                Forestry of the Senate; and
                    ``(D) the Committee on Agriculture of the House of 
                Representatives.
    ``(e) Assistance.--A State oversight committee may procure 
assistance in carrying out the duties under subsection (d) from--
            ``(1) a consultant; and
            ``(2) a legal services provider.''.
    (i) Reforms to Appeals Processes.--The Secretary of Agriculture 
shall--
            (1) require National Appeals Division judges and agency 
        heads of the Department of Agriculture to receive retraining on 
        providing a fair and balanced hearing;
            (2) provide to a person the entire record or decisional 
        documentation relating to an allegation of the Secretary that 
        the person is in violation of section 1221 of the Food Security 
        Act of 1985 (16 U.S.C. 3821) at the time the Secretary makes 
        the allegation;
            (3) allow a person (or counsel of the person) to call 
        technical staff of the Natural Resources Conservation Service 
        as a witness in an appeal brought by the person relating to a 
        delineation, determination, or certification of a wetland under 
        section 1222 of that Act (16 U.S.C. 3822);
            (4) in an appeal described in paragraph (3), accept 
        evidence provided by the person bringing the appeal as reliable 
        absent substantial evidence that the evidence provided by the 
        person is not reliable; and
            (5) compensate a person for fees and expenses, including 
        legal fees, when the person successfully appeals a delineation, 
        determination, or certification described in paragraph (3) and 
        has incurred legal costs as a result of the overturned 
        delineation, determination, or certification, as applicable.
    (j) Regulations.--Section 1246(b)(2) of the Food Security Act of 
1985 (16 U.S.C. 3846(b)(2)) is amended--
            (1) by striking ``(2) shall'' and inserting the following:
            ``(2)(A) except as provided in subparagraph (B), shall'';
            (2) in subparagraph (A) (as so designated), by striking the 
        period at the end and inserting ``; or''; and
            (3) by adding at the end the following:
            ``(B) shall be promulgated in accordance with section 553 
        of title 5, United States Code, in the case of--
                    ``(i) subtitles B and C;
                    ``(ii) section 1201, to the extent that section 
                defines a term that appears in, or otherwise relates 
                to, subtitle B or C; and
                    ``(iii) subtitle E, to the extent that subtitle 
                relates to subtitle B or C.''.
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