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Published July 26, 2011, 09:38 AM

Independent analysis in wetland determination a worthwhile step

BISMARCK, N.D. — Although I did not intend to return to the topic of my prior column (“The Land of 10,000 potholes,” Agweek, June 13), I received a significant response from folks around the Midwest and out on the Plains. I am humble enough to admit I learned more about the issues myself, and I would like to share this knowledge with Agweek’s readers.

By: Derrick Braaten, Special to Agweek

BISMARCK, N.D. — Although I did not intend to return to the topic of my prior column (“The Land of 10,000 potholes,” Agweek, June 13), I received a significant response from folks around the Midwest and out on the Plains. I am humble enough to admit I learned more about the issues myself, and I would like to share this knowledge with Agweek’s readers.

I advised in my last column that if a farmer is unsure whether standing water in a field is a “wetland,” then he or she should call NRCS and ask the agency to conduct a certified wetland designation. As one gentlemen pointed out (and with whom I agree), NRCS often errs on the side of caution when designating wetlands. Therefore, if NRCS is conducting a wetland determination on your property, it is highly advisable to have your own experts on hand to observe and conduct an independent analysis. Some of NRCS’s methodologies in making these determinations are less than scientific, and are open to challenge.

The typical process for such a challenge is through the National Appeals Division of USDA. It begins with an administrative hearing with a NAD hearing officer, and then can proceed to director review or to federal court. Unfortunately, many of the successful cases challenging USDA are not won until after the initial administrative hearing.

The results of challenging NRCS determinations become a bit of a mixed bag.

One case, Barthel v. USDA is an example of the downside of challenging NRCS. In (a shortened version of) this case, the Barthels had a hay meadow that flooded several times over the years, typically because a ditch that drained the meadow kept getting plugged. After the initial “Swampbuster” regulations went into effect, NRCS decided that cleaning the ditch was a conversion of a wetland. The Barthels lost initially, going through a long process of appeals, finally ending up in front of the 8th Circuit Court of Appeals. The Barthels finally prevailed at the 8th Circuit in 1999. The court explained: “Certainly there is no worse statute than one misunderstood by those who interpret it. We conclude that the agency’s interpretation misses the clear focus on the Swampbuster provisions.” Unfortunately, the court sent the case back to the agency, where it is mired to this day.

Another significant case had better results.

In B & D Land and Livestock v. Shafer, NRCS ignored one of the mandatory signifiers of a wetland; “wetland hydrology.” After losing its NAD appeal, B & D Land and Livestock appealed to federal court. The court found that “the Hearing Officer’s decision is so flawed that it cannot be ascribed to a difference in view or the product of agency expertise. The Hearing Officer’s decision that ‘wetlands’ existed . . . is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.” The court also forced NRCS to pay more than $70,000 to B & D Land and Livestock for its attorneys’ fees and expenses in fighting the appeals (a possible remedy open to anyone challenging USDA decisions through NAD when the agency is not substantially justified in its position). B & D Land and Livestock was represented by attorney Thomas Lawler, an expert agricultural law attorney out of Iowa. He’s worth contacting about these issues if you are in his area.

In the end, challenging NRCS over wetland determinations is an individual decision worth serious consideration. As these cases indicate, NRCS does make serious mistakes, and farmers willing to take on the fight can and do prevail. The questions for any farmer, then, are whether they have a good case, and also whether it is worth the fight.

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