SECTION: CAPITOL HILL HEARING TESTIMONY

LENGTH: 2121 words

COMMITTEE: HOUSE TRANSPORTATION AND INFRASTRUCTURE

SUBCOMMITTEE: WATER RESOURCES AND ENVIRONMENT

HEADLINE: WETLANDS RESTORATION

TESTIMONY-BY: JOHN L. CONNER, JR.

BODY:
STATEMENT BY JOHN L. CONNER, JR.

THE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

U. S. HOUSE OF REPRESENTATIVES

OCTOBER 3, 2001

Mr. Chairman and members of this Subcommittee. I am grateful for the invitation to appear before you today and relate my experiences with the wetland permit process and the manner in which that process has been applied to my familys farming operations, and to give my opinions as to whether or not that process is working as I understand Congress intended it to work, and whether it is being fairly administered. After the 1985 Farm Bill was completed by Congress, I was very aware that regulation pertaining to wetlands would have a different meaning to farmers and landowners than others. My family had been on a long range improvement farm plan when this bill was passed. The bill had provisions to take care of people like us with an ongoing farm plan. If a producer had started work on a wetland prior to December 23, 1985, the producer could fill out a form designated as form 492, a Commenced Conversion, to be presented to the USDA/Farm Service Agency (or FSA), county office. The county office was then directed by instructions in the National Food and Security Act Manual as to how to carry out the process and to follow policy. First, the producer had to have on file with the FSA a farm plan by September 18, 1988 and to seek approval. The FSA director was to invite the county committee, representatives of the U. S. Fish and Wildlife Service, the USDA Natural Resource Conservation Service (or NRCS), and the Corps of Engineers and the applicant producer to a hearing. This hearing was scheduled and held on my family=s farms not once, but twice by the FSA county committee with all previously mentioned parties attending, except the Corps of Engineers who chose not to attend. After the permits having been approved twice, the USDA sent their representatives and legal representatives from the Arkansas State FSA to check out if USDA policy had been implemented. A few months later, a conservation group from Iowa, along with Washington D. C. conservation specialist came to Jackson County again, and reviewed the forms and made field visits. In all cases, the commenced determination Forms 492 were found to have been approved according to USDA policy. By the approval of these commenced conversion forms, under the law and regulations, I should have been able to complete the farm plan which had been on file and approved as required.

Each time a Farm Bill passed, or the time frame stated in the National Food and Security Act Manual stated an update was required, I filed required updates on all farms.

Approvals were on file, approved within the time frame by the required government agencies. The NFSAM manual states that if the Corps or EPA would like to have a copy of these approvals, then they must be furnished a copy by the NRCS. After approvals were issued, we continued with the farm plan. To our dismay, even though we were in full compliance and our farm plan had been approved, the Corps of Engineers issued cease and desist orders, which my family tried to resolve. We kept working, following the approved plans, and the Corps kept issuing cease and desist orders.

The National Food and Security Act Manual states that land farmed before December 23, 1985 would be considered Prior Converted if a producer had been doing ongoing work on a tract, and that producer filled out the proper Form 492 for Commenced Conversion by September 18, 1988, the land would be APrior Converted and work could continue. The Corps of Engineers guidance letter states that the Corps has no jurisdiction over APrior Converted lands. This is not the stated position of the Corps.

The NFSAM #1 states that wetlands that have been given a ACommenced Conversion delineation are considered APrior Converted when the conversion is complete and the land being farmed (See attached chart - Exhibit A).

This manual also states when a wetland determination is made by NRCS, the determination is then noted on the aerial photograph by the NRCS. The manual also states that if the determination is not made for the entire map, it will be noted on the specific fields. This was never done.

The NFSAM #2 (May 6, 1991) states that the SCS (now the NRCS) will make the certified wetland determination available to the EPA and the Corps upon request. It also states that the SCS will certify the determination after a final appeal is issued, or 45 days after notification if not approved. (See Exhibit B). The Corps never made a request for a Form 026 determination at the SCS or NRCS offices. Their position has been that the Corps only has to follow their 404 permit process rules, and that the USDA rules do not apply to them. I have been told that this was not the intent of Congress. These rules were to be applied to every agency. Yet the Corps, at least in the districts in which our family lands are located, chose to ignore them where we are concerned.

In the early 1990s my family continued to level and to have leveled land to complete the farm plan which had been fully approved. The Corps totally disregarded the SCS/NRCS determinations. Their own letters (Exhibit C) outline what a producer/landowner could or could not do.

There are two examples of work that have been done on my farm for which cease and desist orders were issued. The two examples are Cypress Break and Swan Pond, and I am enclosing the information on these two tracts. In spite of the fact that all land included within these two examples had been determined Aprior Converted or had that status under an approved Form 492, the Corps of Engineers issued 24 cease and desist orders.

Because of these alleged violations, which under the rules in place were not violations at all, my family was threatened suit in Federal Court in Arkansas, citing these two and twenty two other activities as violations. We strenuously denied any wrongdoing, but our efforts fell on deaf ears. As we prepared to go to trial, we were told that EPA and the Corps would seek two hundred million dollars from us if we went to court and that they would keep us in court for years. We could not afford to proceed in the face of those threats, and wound up settling the case by paying four hundred thousand dollars and giving up the use of our lands, even though the regulations, if properly applied, would have allowed us to do exactly what we were attempting to do.

I have had many meetings on various tracts with the NRCS and FSA, the Corps of Engineers, the U. S. Fish and Wildlife and the EPA in Washington and the State of Arkansas. I have had no success getting the wetland issues resolved to what I have felt was the intent of the wetland issues of the law and the stated manuals.

The Corps of Engineers does not listen to anyone. They only refer to Form 404. I have pointed out to the Corps that the cease and desist orders issued were on APrior Converted@ land. This made no difference. One Corps enforcement person stated to Shelley Evins, my consultant, A...you did not have certified delineation. When Shelley and I pointed out that NFSAM Manual #2 stated that determinations would be certified if not appealed within 45 days, the Corps representative said that it made no difference.

When Shelley Evins and I went to Little Rock to discuss wetland actions with the USDA/NRCS conservationist, I asked him if he had read the NFSAM. He stated that he had not read the manual.

Also, when I showed the conservationist that all cited cease and desist orders were issued on APrior Converted@ land, he would not take a position or discuss the cease and desist orders with the Corps, Environmental Protection Agency, or U. S. Justice Department.

Even while having NRCS Form 026 wetland determination forms updated each and every time required, I was having a major problem understanding why NRCS, Corps, and EPA personnel were not willing to follow policy procedures. When I requested an update on the 026 Wetland Determinations in 1996 after the new Farm Bill was approved, it took between 32 and 4 years to get these determinations back. A vast amount of Aprior Converted land was changed to farmed wetland. Keep in mind that the NRCS changed the certified delineations on previously certified Aprior Converted deliniations. The Corps simply did not put the proper priorities on these determinations that they did for other farmer/landowners.

In the process of trying to better understand the process, I had many dealings with representatives of the Corps of Engineers. After having been told by the Corps that the Corps did not have to look at USDA/NRCS material used to determine wetland determinations when I applied for approval of a Form 404 request, I tried using this USDA/NRCS material in the early 1990s while applying. This was after I had been issued a cease and desist order for two farms. I was told that the Corps could not process a new request until the cease and desist orders were resolved with the Corps of Engineers and EPA.

I was required to tear down a farm road on Prior Converted land to get the EPA to term the case settled. I was also required to put blocks in two ditches of two farms which had a Commenced Conversion where we were trying to finish the on-going farm plan. This occurred where Form 492 CC had been approved and all work on the prior converted or approved commenced conversion land.

After having done these things, I tried to get relief from the Corps and EPA. I asked the Corps of Engineers to process the 404 Permits. I was given a list of unreasonable requests to continue to process the Form 404 on tracts of land to be cleared, according to the farm plan which had been approved by NRCS/FSA. Requests such as providing a cut sheet for wooded land to be leveled is unreasonable. When approached before and since by the Corps, no such list was required previously or was again sent out for a producer to include within a 404 application.

In a Corps regulatory letter, the Corps made reference to the grandfathering in of ongoing farm projects. The Corps of Engineers never considered this or anything except to fine, stop, and penalize my family=s ongoing farm plan. The Corps simply did not consider the policies. I have been to Washington several times to try to get the issues clarified, and my requests have fallen on deaf ears. The responses from Mr. Jim Lyons of the NRCS, Mr. Danny Sells of NRCS, Mr. Pearly Reed of NRCS, and Mr. Brian Maas of the EPA include you are talking to Justice and we cannot help.

In one meeting with the USDA in January 1999, Ms. Glenda Humiston hit on the only issue. She wanted to know what the policy is, and did we follow it. I did follow the policy one-hundred percent.

I feel that my family is one of the few landowner/producers who followed the wetland issues to the letter of the law, and yet have been singled out to be made an example. As I was told at the Justice department, that the Justice Department could focus a lot more attention on their cause with a big landowner case like mine, rather than a little one. As stated earlier, when my attorney and I were in Washington to settle with the Justice Department, we were told that if we left, the Justice Department would file a two hundred million dollar law suit against me and the family companies. I felt we had to settle at that time.

Following are the issues I feel need to be resolved:

1. I feel that the NRCS should handle all wetland rulings. The Corps of Engineers should have nothing to do with agricultural related lands. Any person, persons, companies, or agricultural related entities that followed policy and were fined or forced into settlements by the Corps of Engineers and/or the Environmental Protection Agency should have their funds and lands returned.

2. Congress needs to make clearer the intention of the laws to the people and the appropriate field offices on how to regulate their intentions. They also need to instruct the Corps of Engineers to follow their own guidance letter and to cooperate with other governmental agencies.

3. I would like to be able to complete farm plans which were approved and expired on January 1, 1995. Due to EPA, COE and U. S. Justice, I have been unable to do so.

4. I would like to have my settlement money and land returned.

5. The current permit process as it has been applied to our family farming operation is unfair. A permit process needs to be implemented that makes clear Congressional intent, and that is impartially and fairly applied to all citizens. I am honored to appear before you, and I will be glad to answer any questions that you have of me.



LOAD-DATE: October 4, 2001