Wetland Compliance: USDA’s National Appeals Division Confirms a Rule of Reason and Science

By Kenneth D. Ackerman

wetland 1Not all “wetlands” are equal.  And while protecting these previous environmental legacies is a high priority for USDA’s Farm Service Agency (FSA), its power to penalize farmers for inadvertent wetland conversions must be tempered by reason and science.

The National Appeals Division (NAD) recently underscored this message in a Hearing Officer Determination (FSA chose not to appeal).  In this case, the producer had mistakenly cleared a small (less than two acre) wetland that was part of a 300 acre field and a multi-thousand-acre farm operation.  It was undisputed that the producer had no knowledge the land had been deemed a “wetland” when he cleared it.  It didn’t look “wet”; subsoil moisture did not appear until more than a foot underground most of the time.  And USDA’s Natural Resources and Conservation Service (NRCS) ten years earlier had sent its original wetland determination for the spot to the producer’s landlord, not the producer himself.

Still, FSA penalized the farmer by requiring he repay all FSA program benefits for a multi-year period covering his entire operation, amounting to hundreds of thousands of dollars.

We defended the producer, and central to our argument was testimony from two scientists, the NRCS District Conservationist and a private certified geologist hired by the producer to provide a “second opinion” – much like you’d get from a doctor.   The two scientists, not surprisingly, agreed on most key points.  Their testimony confirmed that the wetland itself was small, had previously been farmed (that is, was not “virgin wetland”), was not visually wet most of the time, would naturally regenerate itself if simply left alone, and was not easily identifiable as a “wetland” by a non-scientist.  The producer himself demonstrated that, despite some miscues with the local FSA office, he had in fact followed the NRCS restoration plan ever since it was presented to him, even if the written form was not signed until a few months later.

FSA wetland rules give the agency authority to forgive good faith mistakes when a farm producer owns up to them and is prepared to correct them.  If a wetland conversion is unintentional, penalties can be waived.  If the “seriousness” of the violation – based largely on the environmental value of the wetland – is less, then penalties can be reduced accordingly.  FSA has a duty to apply this discretion when the facts support it.

That’s the message of the new NAD decision.   Click here to read the full text.