Staying Afloat of Wetland Rule Changes.
By: Dean Zimmerli, Gislason & Hunter LLP
Wetlands and agriculture have long had a fraught relationship in Minnesota—from early homesteading through the 1980s, swamps, sloughs, and wet areas were drained by systems of ditches and tiles. Since then, new state and federal laws have protected remaining wetlands from drainage, most notably through the Minnesota Wetland Conservation Act (WCA) and the Swampbuster rules enforced by NRCS, a division of the USDA. Recently, Minnesota has enacted significant revisions to WCA and is in the process of creating new regulations to implement those changes to WCA. The Minnesota Corn Growers Association has teamed together with water and drainage attorneys at Gislason & Hunter, LLP to evaluate those proposed changes and ensure the interests of Minnesota farmers are heard.
Most farmers are quite familiar with the Swampbuster rules enforced by NRCS. In general, the Swampbuster provisions prohibit a farmer from converting a wetland to make farming possible or from planting a crop on a wetland that was converted after 1985. A farmer who violates these provisions will be ineligible for farm programs benefits, which includes federal crop insurance, other crop disaster payments, and FSA loan programs including guaranteed loans and commodity loans. Farmers can comply by obtaining a certified wetland determination of their farm to establish whether the land is wetland, farmed wetland, or prior converted/non-wetland. Where wetlands are present, farmers must follow guidelines to ensure drainage work does not impair or inadvertently drain the wetland areas.
Similarly, WCA is designed to prevent the destruction or degradation of remaining wetlands by prohibiting actions that impact or drain wetland areas and requiring that any wetlands that are impacted are offset by replacement of new wetlands. This applies to agricultural land where drainage and other activities might impact the wetland. The WCA includes certain exemptions applicable to agriculture and drainage in some circumstances.
2024 saw significant changes to agricultural exceptions in the WCA. Previous exemptions which focused on timing, wetland type and size, history of repairs, and history of cropping were generally replaced with two major exemptions. First, impacts to wetlands on agricultural land that are allowed under the Swampbuster rules based on a final wetland determination by NRCS will also be allowed under WCA. Second, impacts to wetlands resulting from repair and maintenance of drainage systems are allowed, so long as the wetlands have not been in existence for more than 25 years. These are the two most applicable exceptions under the amended WCA for farmers.
One benefit of these changes for farmers is that it should ensure that a farmer that is in compliance with Swampbuster will also generally be in compliance with WCA, which was not necessarily the case before. In addition, the statutory changes should ensure that if an action has already been approved by NRCS, the state regulators (typically, the local SWCD) will not be able to second-guess that decision or come to a different result. If implemented properly, the statutory revisions to the WCA have the potential to simplify the WCA regulations for farmers and allow easier compliance.
As the Board of Water and Soil Resources (BWSR) has attempted to establish new rules and regulations to implement the WCA changes, MCGA has closely monitored and studied the proposed regulations to ensure agricultural interests are fairly considered in the process. Most recently, BWSR published a Preliminary Draft Rule on April 25, 2025, inviting comments from interested parties. MCGA submitted comments on a number of changes. Notably, MCGA pointed out that the draft rules appear to give local authorities an opportunity to second-guess or overrule the NRCS on wetland determinations, which is inconsistent with statutory changes aimed at ensuring a single, consistent review. In addition, the draft rules created a new unchecked ability to regulate activities that allegedly impact a “rare natural community;” a term which is not defined in the statute or anywhere else in the law.
MCGA also commented on the rule changes relating to enforcement and appeals. Several parts of the draft rules seemed to limit a landowner’s rights on appeal or potentially limited fair due process rights in an enforcement situation. While MCGA believes its members strive to comply with the applicable laws, when landowners are accused of violating the rules, they should be entitled to a fair process to challenge those allegations or get back into compliance without dealing with an overly punitive or cumbersome appeal and enforcement process. MCGA submitted comments on all these points on behalf of its members.
MCGA will continue to work with legal experts to monitor further rules changes to ensure that BWSR is complying with the statutory changes and enacting clear and consistent rules which appropriately consider agricultural interests.
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