Federal court says South Dakota farmer's puddle can remain a wetland

ST. LOUIS — A South Dakota farmer says he has new evidence that a puddle on his farm should not be called a wetland, but a government agency and the court system are not letting him make his case.

The Eighth Circuit Court of Appeals ruled on Friday, May 12, ruled against Arlen Foster in his quest for a new review of the wetland determination.

According the Appeals Court ruling: “When the snow melts in the spring, some ponding in the nature of a shallow puddle can occur on a portion of the property.”

That puddle on Foster’s Miner County farm in southeast South Dakota was determined to be a wetland in 2004. Foster argues that the wetland was created by the planting of some trees but was not able to convince the Natural Resources Conservation Service.

Foster requested a review in 2008. In 2011 the NRCS did the review and recertified the site as a wetland.

“In the eight years since they last reviewed it, Mr. Foster got new expert evidence, and he requested them to review it, and the agency says they aren't going to review it,” says Jeff McCoy, an attorney with Pacific Legal Foundation representing Foster.

In 2020, Foster submitted a third review request, this time including an engineering report that said the ponding is the result of the tree belt “and is properly considered an artificial wetland outside the scope of the Swampbuster Act,” according to court documents. The NRCS asked the engineering firm to identify the new evidence, but neither the firm nor Foster responded to the request.

In 2021, Foster sought a district court's help in forcing the NRCS to look at the case again. Foster was denied, as was his appeal.

Part of Foster’s argument is that a wetland certification remains in effect only until the landowner requests a review. But the NRCS, McCoy said, will only review if there is some naturally occurring event that causes a change of if the agency agrees that the wetland certification is incorrect.

The district court and Eighth Circuit agreed with the NRCS that it was not obligated to do another review. The appeals ruling said the Swampbuster language was “ambiguous” and the agency’s rules do not conflict with the federal law.

“We've argued throughout the case that a court has a duty to independently interpret the statute and the Eighth Circuit instead deferred to the agency's interpretation,” McCoy said.

McCoy said there will be a case before the Supreme Court that could help clarify when a court should interpret a statute rather than using a government agency’s interpretation. McCoy said they are still weighing their options, including asking the Supreme Court to review the case.

While the puddle is small, McCoy said it keeps foster from making full use of the field in which it sits.

Another frustrating aspect to the case, McCoy said, is that the trees were planted at the request of the NRCS to Arlen Foster’s father.

“It's not that they (the NRCS) even disagree with the evidence; they aren't even granting a review,” McCoy said.