Question of Bias

BIRMINGHAM, Ala. (DTN) -- Some farmers and ranchers denied funds through USDA's Environmental Quality Incentives Program (EQIP) may be able to make a case that their applications were not handled correctly at the state level.

Cattleman Stephen C. (Chris) Winslow of Barbour County, West Virginia, recently won an appeal before USDA's Office of the Secretary, National Appeals, Administrative Judge Jerry L. King, with regard to an EQIP application. According to court papers, the judge found that "NRCS's statement that he did not rank high enough to qualify for funding because other EQIP applications provided a greater environmental benefit is not supported by the evidence."

The judge noted the state's Natural Resources Conservation Service (NRCS) office did not score Winslow's application, nor did it evaluate the environmental benefit of the application. In the appeal, the NRCS argued it had the authority to screen applications and that its process was not appealable.

Louis Aspey, state conservationist for West Virginia's NRCS, said with regard to their screening operation, "it is the initial component of our overall ranking process. We go through this to determine basic eligibility. After that it transitions to determining what the environmental benefit is, which is where a numerical score is generated. Based on limited funding, we rarely get below the high priority in funding applications."

It is that initial screening tool that Winslow argued was not in keeping with federal requirements. He said it violated the Code of Federal Regulations "Application for Contracts and Selecting Applications" (7 CFR, 1466.20) by not addressing resource concerns or environmental benefit. Winslow, a loan officer with USDA's Farm Service Agency, said he took the case this far out of concern for others who may have been treated unfairly by the system the state put into place.

"My question is how many people who could have received government dollars have been improperly denied," he asked. "In West Virginia they have this screening tool, and if your application is considered a high priority they rank you, you get a score. If it is a low priority, you don't get a score. At one time everyone got a score, but applications increased to the point employees could not handle them, so they developed a screening tool. But in the case of West Virginia, they didn't incorporate the environmental questions."

Winslow believes in his case the NRCS turned down his application because he had an issue getting work finished on time under a previous EQIP contract. Sept. 13, 2013, he received advance payment for items in a 2008 EQIP contract, approved Feb. 28, 2011. He said the money was for installation of feeding pads, fencing, water troughs and a barn at his commercial cattle operation, carrying around 100 cows. He admitted the feeding barn was not built on time, and the NRCS sought the return of $12,682, in a letter dated Feb. 24, 2014. However, on April 17, 2014, NRCS rescinded the demand letter.

Winslow contended the barn was not finished due to unforeseen hardship, as the contractor he paid to build the barn took the money but did not do the work. Winslow finished the barn on his own, adding the NRCS threatened to garnish his wages as a federal worker. Aspey said he was unable to comment on this, or any other specifics to the Winslow case.

Winslow said when he submitted another application for additional EQIP funds in 2014, it was placed as a "low" priority by the state NRCS office. That application was for the building of farm roads, additional fencing, water troughs and another feed pad. Asked what environmental benefits he believed this project would have provided, he said: "erosion control, nutrient management, prescribed grazing, water conservation, plant health and vigor."

According to the cattleman, his application was never ranked, or scored, based on those possible environmental benefits, because it was given a low priority. And, he avers, any applications given low or medium priority in West Virginia are not ranked with regards to potential environmental benefits, as he believes is required by law. That was the basis on which he appealed the decision, even seeking $450,000 in "equitable relief."

While the judge found in favor of Winslow's appeal, he did not provide for equitable relief. The cattleman has another appeal scheduled for March 23, because he said the state NRCS continues to assess EQIP applications in the same way, despite the judgement finding the process was not in keeping with federal regulations.

Asked if there were plans to alter the state's process for handing EQIP applications, Aspey said his office reviews their processes annually, looking for ways to improve against the budgetary climate. He added, however, there was no plan for any wholesale change.

Winslow and his brother have acted as legal counsel for the family in this matter, charging an hourly rate of $189; neither are attorneys. When the government loses a case, it pays that cost of representation. In the first appeals case Winslow said that added up to about $40,000 for himself, and $35,000 for his brother. On the upcoming appeal, he anticipates their fees will average $25,000 for himself, and the same for his brother.

In 2009, the Federal Register outlined rules and regulations as to how NRCS was to prioritize applications. They are: (1) Based on overall cost effectiveness; (2) Based on how effectively and comprehensively the project addresses the designated resource concern(s); (3) What best fulfills the purposes of EQIP; and (4) What can improve conservation practices or systems in place at the time the contract is accepted or will complete a conservation system.

Winslow added he has done some research and believes his experience in terms of how an EQIP application was handled, is not confined to West Virginia. The case number for his appeal, for those interested in following its development is 2016E000041 in the USDA Office of the Secretary National Appeals Division.

Victoria Myers can be reached at vicki.myers@dtn.com

(VM/CZ)

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