[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1078 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 1078
To require reforms to programs of the Natural Resources Conservation
Service, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 30, 2023
Mr. Rounds (for himself, Mr. Cramer, and Mr. Hoeven) 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.''.
(k) Prohibition of Permanent Easements.--Notwithstanding any other
provision of law, the Secretary of Agriculture, acting through the
Chief of the Natural Resources Conservation Service, may not acquire
any permanent easement.
<all>