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United States Attorney Brendan V. Johnson announced that a 2011 wetlands determination made by the United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS) was affirmed by U.S. District Judge Karen E. Schreier on October 31, 2014.
In 1985, Congress enacted what are commonly referred to as “Swampbuster” provisions in order to combat the disappearance of wetlands through their conversions into crop lands. The Swampbuster provisions do not make the conversion of wetlands illegal, but 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, an agency within the USDA, is charged with determining and certifying wetlands. In order for a site to be classified as a wetland, the 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.
In 2013, Arlen and Cindy Foster from Miner County, South Dakota, sued the USDA seeking to overturn a 2011 wetlands determination by the NRCS. The wetland status had been appealed to the National Appeals Division, an agency independent from the USDA, which affirmed the NRCS determination in 2012. 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 NRCS determined that 0.8 acres of the Fosters’ property was a wetland. The Fosters challenged the NRCS’s use of aerial photography and a wetlands reference site, but the District Court concluded that the NRCS properly followed their established wetlands determination procedures and criteria. Ultimately, the Court held that the agency made a rational connection between the facts and the wetland determination made, and thus, the NRCS did not act arbitrarily or capriciously.
The agency determination was defended by Assistant U.S. Attorney Cheryl Schrempp DuPris and the USDA, Office of the General Counsel.