Duvall Calls for NRCS Wetlands Reform

Indiana Farm Battled Agency on Wetlands Determination for Decades

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The American Farm Bureau Federation is calling on USDA to make reforms in how the Natural Resources Conservation Service makes wetland determinations. (Logo and photo courtesy of USDA)

OMAHA (DTN) -- For years, farmers across the country have battled USDA's Natural Resource Conservation Service on wetland determinations. Now, based on a recent federal court decision, a national farm group is calling on USDA to reform the agency's program.

Last month, the U.S. Court of Appeals for the Seventh Circuit in Chicago sided with a farm family that has been battling NRCS for more than a decade on a wetlands determination made on the family's farm in Indiana.

In the 1990s, the late David Boucher cut down nine trees on his family farm. The action garnered attention from NRCS, which argued the family converted several acres of wetlands into croplands by removing the trees.

As a result, the NRCS claims rendered the Bouchers' entire farm ineligible for USDA benefits, although the family never did convert wetlands. On Aug. 8, 2019, the federal court ruled in favor of the Bouchers.

In a letter to U.S. Secretary of Agriculture Sonny Perdue on Wednesday, American Farm Bureau Federation President Zippy Duvall said the agency should reform the program.

Duvall said the Bouchers' experience was "representative of what our members have experienced across multiple administrations and continue to experience to this day."

"USDA should resist the temptation to characterize these decisions from federal courts as outliers," Duvall wrote.

"In reality, affected farmers typically have been unable to challenge the agency's decisions because they simply cannot afford to lose eligibility or the costs of a fruitless appeal. Generally, farmers follow the direction of the agency to avoid ineligibility instead of appealing. A few farmers, such as the Bouchers, have the means to follow through on their appeals out of principal.

"As part of your legacy, we hope that you commit to embracing a fair and transparent decision-making and appeal process, restoring congressional intent to conservation compliance programs, improving compliance, and creating an environment where more farmers enthusiastically want to take additional actions to protect our precious land and water resources."

COURT RULING

In its ruling, the court called out the NRCS for its handling of the Boucher case.

"The USDA repeatedly failed to follow applicable law and agency standards," the court said. "It disregarded compelling evidence showing that the acreage in question never qualified as wetlands that could have been converted illegally into croplands. And the agency has kept shifting its explanations for treating the acreage as converted wetlands. The USDA's treatment of the Bouchers' acreage as converted wetlands easily qualifies as arbitrary, capricious, and an abuse of discretion."

USDA issued an interim final rule on highly erodible land and wetland conservation in December 2018. Duvall said in his letter that the rule does not fix the problems identified in the Boucher case.

"The wrongs identified by the Seventh Circuit are systemic throughout NRCS and representative of the experience of countless farmers," Duvall wrote. "We hope that you find this case as shocking and troubling as does the Seventh Circuit."

The court found a number of problems with how the NRCS handled the Boucher case. That included an improper reading of the removal of woody vegetation as triggering a converted wetland, although it's not in statute.

In addition, the court criticized NRCS for making just one site visit to the Boucher farm in 2013 to finalize a preliminary determination.

"One of the most troubling aspects for the Boucher court was that, for over 17 years, NRCS 'kept shifting its explanations for treating the acreage as converted wetlands,'" Duvall said in the letter. "The Bouchers were not the only ones forced to chase a moving target. USDA should prohibit NRCS from making result-oriented wetland determinations by forbidding the agency from changing its rationales for wetland determinations.

"Once a farmer refutes the basis for the agency's determination, that should end the matter. NRCS must not be allowed to shift its rationale once the farmer presents contradictory evidence."

In addition, the court found NRCS was repeatedly ignoring evidence provided by the Bouchers.

"For example, NRCS based its various claims over the years on allegations that Mr. Boucher removed hydrophytic vegetation and added drainage tile after 1985," Duvall said in the letter. "But NRCS had no evidence of either assertion."

As a result of the claims by the NRCS, the family was forced to commission an independent study to prove they didn't install drainage tiles.

"USDA must require NRCS and NAD judges to accept as true evidence produced by the farmer absent substantial evidence to the contrary," Duvall wrote. "When NRCS takes a position that conflicts with evidence provided by the farmer, NRCS should document what evidence clearly establishes that the farmer's evidence is incorrect."

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley