ICGA expresses concerns regarding the NRCS technical standards and expansion of CWA

The Iowa Corn Growers Association recently joined with other agricultural organizations to express their concerns with the recent actions taken by the U.S. Department of Agriculture in collaboration with the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) with regard to the Natural Resources Conservation Service (NRCS) technical standards and the expansion of federal jurisdiction under the Clean Water Act (CWA).

As an association, we believe these actions will impede soil and water conservation progress as the NRCS technical standards become regulatory tools for the EPA and the Corps, and thus the Interpretative Rule should be withdrawn.

The state of Iowa and the agricultural organizations involved are committed to continued progress on soil and water quality improvements. The Iowa Nutrient Reduction Strategy details the scope of the effort necessary to achieve our goals, and its science report is clear that additional management of nutrient application will not provide the desired outcomes without implementing edge of field practices and other conservation infrastructure.

The scope of the effort necessarily dictates that many practices will need to be installed with exclusively private funds as there isn’t enough cost-share or available technical assistance to achieve these goals.


Farmers are solutions-oriented and are rising to the challenge. According to a recent survey of Iowa land improvement contractors, farmers are investing their own resources into conservation practices without state or federal financial assistance at a high rate. For example, at least 67% of grassed waterways and 50% of terraces are installed exclusively with personal funds. The survey confirms what has long been known: farmers are committed to conservation and are willing to invest their own resources.

NRCS technical standards, technical assistance and cost-share are voluntary programs. Although farmers may not agree with every requirement in the technical standards, they understand that following the standards is the choice they make when signing up for cost-share.

Farmers have had to consider whether the additional requirements and expense involved with cost-share programs pencil out when compared to self-financing. Farmers that chose to self-finance have the flexibility to accelerate the implementation of practices, design practices according to the needs of the particular location, and avoid the additional paperwork burden. Turning the technical standards into de facto regulations for Clean Water Act compliance is contrary to the purpose of these voluntary programs.

The Interpretative Rule requires farmers to follow NRCS technical standards in order to qualify for the “normal farming practices” exemption to CWA § 404 jurisdiction. Without the exemption, farmers are required to obtain a § 404 permit when conducting activities in “waters of the U.S.” (WOTUS).

According to the economic analysis on the proposed WOTUS rule, obtaining this permit will cost months of delay and tens of thousands in additional costs, in many cases far surpassing the cost of installing the conservation practice. Observing the experiences of Iowa’s drainage districts in recent projects going through the §404 permitting process, individual farmers will be unable to navigate or pay for participation in the current permitting system without assistance.

We are also concerned that the list of practices identified in the Memorandum of Understanding between USDA, EPA, and Corps is not a comprehensive list. Practices such as grade stabilization structures, terraces,
created wetlands, ponds, sediment basins, cover crops, riparian forest buffers, residue and tillage management, contour farming, drainage water management, bioreactors, nutrient management and many other conservation practices are also “normal farming practices.” The Interpretative Rule states that it does not affect the scope of the exemption; however, it proceeds to identify that the agencies have determined that only specific, named conservation practices meet the new qualification requirements for the exemption. The rule is not formulated to create a safe haven for those who install conservation practices. It creates uncertainty, trepidation and additional expense for those that want to self-finance their conservation practices.

The Agencies do not have the technical support capacity to implement this rule for the approximately 30 million acres of farmland in the state of Iowa. NRCS technical staff assigned to Iowa has been cut about 20% over the past five years. NRCS staff has not been willing to review or verify practices, which did not receive federal technical or financial assistance to determine whether it meets NRCS standards. NRCS does not conduct field visits for practice verification for farmers not receiving federal assistance. This leaves large numbers of farmers who want to install more conservation with no options for verifying compliance with NRCS standards. The only option remaining to create certainty of compliance is to seek a jurisdictional determination from the Corps, which is also severely understaffed to handle the numbers of determinations that will be required to continue the current pace of conservation implementation in Iowa.

Farmers want to do the right thing, but the new interpretation creates uncertainty, and additional expense to minimize the uncertainty. Additional costs and uncertainties will result in fewer conservation practices on the ground, which is inconsistent with Clean Water Act goals.

Many questions about the interpretative rule have remained unanswered. How is a farmer to know whether his land is a “navigable water” without requesting a jurisdictional determination every five years? Will EPA recognize NRCS’s prior converted cropland determinations? Which NRCS technical standards are to be followed: the federal technical standards or the state adopted technical standards? What happens when NRCS technical assistance does not result in the technical standards being followed? Grassed waterways and surface drainage pathways in fields have a “bed and bank” and an “ordinary high-water mark” until the ground is tilled and reshaped. Will § 402 permits be required to apply crop protection products to this land? Will § 404 permits be required when the ground is tilled? Can an installed conservation practice become a “water of the U.S.” subject to future § 402 permitting requirements? Will the technical standards become more prescriptive, not allowing for site-specific flexibility as EPA gains influence over their content? We have more questions than there are answers about the Interpretative Rule, Memorandum of Understanding and proposed “Navigable Waters” rule.

Iowa Corn Growers Association is very concerned about the impact of this rule on future conservation progress and the ability of farmers to produce food, feed, fuel and fiber. Rather than eliminating uncertainty, the agencies’ actions will create great hardships on farmers who want to produce food and conserve the land and water while doing it.

~Written by: Iowa Farm Bureau Federation