The Land of 10,000 Potholes

It’s not often that you hear North Dakota farmers complain about getting a little rain, but this year there is nothing little about the moisture in North Dakota’s fields.  Along with this rain that just won’t quit, farmers are seeing a lot of new standing water on their fields.  What may come as a surprise is that this standing water may be classified as a “wetland” by the federal government.  More importantly, work done to farm around these wetlands could be considered “conversion” of these wetlands, and payments under federal farm programs can be withheld and recovered if one of these wetlands is converted.  Because of the potential effect that dealing with a wet year like this could have on your federal payments, it’s important to know the rules for dealing with the new wetlands appearing in North Dakota’s fields.

It can be frustrating to hear that a new puddle in the field is considered a protected wetland.  The federal government is concerned about these shallow, temporary wetlands because they provide critical food supplies for migrating waterfowl.  If you are a duck hunter, this might temper your frustration with having to farm around the potholes.  Because the shallow, temporary potholes heat up faster in the spring than deeper wetlands, they also provide a home to many invertebrates early in the spring.  This is an early season food source that the federal agencies consider crucial for healthy populations of migrating waterfowl.  Whether or not the bugs and ducks are a concern, though, most farmers are concerned with payments from federal farm programs. 

The federal “Erodible Land and Wetland Conservation and Reserve Program” provides the rules for designating and farming these wetlands.  It essentially defines a “converted wetland” as a “wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of water) for the purpose or to have the effect of making the production of an agricultural commodity possible.”  This is a pretty broad definition.  The phrase “otherwise manipulated” is a catch-all, making it important to closely consider any field work that might impact the hydrology of the wetland.

For example, the drains that form between the wetlands typically have abrupt edges, making it difficult to cross over them with farm equipment.  It gives new meaning to the term “prairie pothole.”  A farmer should be able to take the shoulders off these drains, so long as the total depth of that drain is not impacted, because it would not impact the hydrology of the wetlands; it merely makes driving across the drain possible without damage to farm equipment.  The NRCS is in charge of regulating wetland conversion, however, and it may disagree.  You should consult with NRCS prior to doing any field work that may potentially impact the hydrology of the wetlands.  Call your local NRCS representative and get permission for any contemplated work (and get it in writing!).

If you are unsure whether the moisture in your fields would be considered a wetland, you should call NRCS and ask them to conduct a certified wetland designation.  The federal act governing wetlands defines them very loosely, so NRCS has a significant degree of discretion in determining what constitutes a wetland.  You have appeal rights for these designations, and if NRCS says you have converted a wetland or done something improper, you also have appeal rights through USDA’s National Appeals Division.  Be sure to follow the proper legal channels to ensure your federal farm program payments are not put at risk.

(Posted by Derrick Braaten)

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