II 116th CONGRESS 2d Session S. 4704 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. Short title This Act may be cited as the NRCS Wetland Compliance and Appeals Reform Act . 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: 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: 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. .