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Press Release


For Immediate Release
U.S. Attorney's Office, District of South Dakota

United States Attorney Randolph J. Seiler announced that a 2011 wetland determination made by the United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS) was affirmed by the Eighth Circuit Court of Appeals this week.

Arlen and Cindy Foster (Fosters) challenged a USDA determination that a portion of their farmland was a wetland within the meaning of federal statutes and regulations. In 2014, District Court Judge Karen Schreier granted summary judgment in favor of the USDA after concluding the agency’s decision was not arbitrary, capricious, or contrary to the law.  The appeals court agreed.

In 1985, Congress enacted what are commonly referred to as “Swampbuster” provisions in order to combat the disappearance of wetlands through conversions into crop lands.  The Swampbuster provisions provide that agricultural production on a converted wetland would cause a farmer to forfeit eligibility for a number of federal farm-assistance programs. 

Under Swampbuster provisions, the NRCS is charged with determining and certifying wetlands.  In order for a site to be classified as a wetland, NRCS must establish that three criteria have been met:  (1) that the land has a predominance of hydric soils; (2) the presence of wetland hydrology (defined as sufficient surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophyic vegetation); and (3) that under normal circumstances the land supports a prevalence of hydrophyic vegetation. 

The NRCS determined that 0.8 acres of the Fosters’ property was a wetland.  The Fosters appealed the wetland status to the National Appeals Division (NAD), an agency independent from the USDA, which affirmed the NRCS determination.  The Fosters then filed a lawsuit in District Court challenging the basis for the NRCS's determination of the wetland status as being arbitrary, capricious, or otherwise not in accordance with the law. 

The Fosters specifically challenged the NRCS’s use of aerial photography and a wetland reference site, but the District Court concluded, and the appeals court agreed, that the NRCS properly followed its wetland determination procedures and criteria established to make wetland determinations.  Ultimately, the Courts held that the agency made a rational connection between the facts and the wetland determination, and thus, the NRCS did not act arbitrarily or capriciously, or contrary to the law.     

The agency determination was defended by Assistant United States Attorney Cheryl Schrempp DuPris and the USDA, Office of the General Counsel.


Updated April 13, 2016