WHEN THE USDA SAYS AN AREA ON YOUR FARM IS A WETLAND, BUT YOU DISAGREE

 

Appealing USDA Wetland Decisions

                In past articles, we discussed USDA’s “Swampbuster” and the relief that can be granted to a farmer that commits a wetland violation.  This article will discuss when a farmer receives an unfavorable wetland determination (i.e. NRCS declares an area a wetland and the farmer disagrees) and the appeal rights that are available to the farmer to dispute the wetland determination. 

                Many times, Swampbuster violations start with a farmer clearing and/or tiling an area that has not been historically farmed and does not have a classification with the NRCS.  In these instances, NRCS starts with a Preliminary Technical Determination. (PTD)  This consists of the NRCS performing an analysis as to whether the site meets the criteria to be labeled a wetland.  If the area  meets the criteria, then the farmer is issued a PTD stating that the area, at least preliminarily, is a wetland.  If the farmer disagrees, a reconsideration request can be made. NRCS will schedule a field visit with the farmer to reconsider the technical decision. The purpose of this review is to gather additional information and discuss the facts relating to the PTD.  If the PTD turns out to no longer be adverse to the farmer, the NRCS will issue a final determination (FTD) that, among other things, could find the area to be a non-wetland, or other designations that allow it to be farmed.  If the determination remains adverse, the determination can be further reviewed and issued by the NRCS State Conservationist.

If the NRCS State Conservationist upholds the adverse FTC and the farmer disagrees with the FTD, the farmer has additional appeal opportunities.   The request must be submitted in writing to the appropriate agency within 30 days of receipt of the FTD.   It is critical that the 30 day deadline be adhered to.  I’ve seen farmers lose their appeal rights by not seeking an appeal within the 30 day deadline.  And, it never ceases to amaze me for people to receive an adverse FTD, but wait until only a few days before the 30 day deadline to call me for help.  Thus, giving immediate attention to an adverse FTD is critical.

                While not quite an appeal, per se, mediation is available to the farmer after receiving an adverse FTD.  Following a written request for mediation, a mediator, who is a neutral third party, will work with the farmer and NRCS to improve communications, understand the relevant issues, develop alternatives, and reach a mutually satisfactory resolution. In general, mediation is usually more helpful in disagreements with program decisions rather than technical determinations.  However, the nice thing is that mediation tolls (suspends) the 30 day deadline to appeal.  So, in addition to perhaps narrowing or clarifying the issues, a mediation request can give the farmer additional time to get their ducks in a row for an appeal.

The starting appeal option is an appeal to the FSA County Committee. (COC)  The COC is an elected board of, most times, three farmers from the county that the farmer lives in or is based out of.  I’ve always liked the concept of the COC because, as farmers, it is tough for us to get a “jury of our peers” at the courthouse or other tribunals.  But, with the COC, you will have three farmers determining your matter.  The downside is that farm communities are small, and people don’t always get along.  If you find yourself going in front of a COC where there is a member that has an axe to grind against you, this should be brought to the attention of the FSA and either the COC member recuses and/or an alternate is utilized.   The COC will conduct a hearing where the farmer can identify the reason for the appeal. If they determine the appeal has merit, FSA will request a field and technical review from the NRCS State Conservationist and will issue the results to you following the review.

If the farmer receives an adverse ruling from the State Conservationist, the farmer can appeal the decision to the National Appeals Division.  (NAD)  NAD is an organization within USDA that is formally independent from all other agencies and offices of the Department, including USDA officials at the state and local level. However, NAD remains subject to the general supervision of and policy direction by the Secretary and Deputy Secretary of Agriculture. The NAD Director is appointed by and reports directly to the Secretary of Agriculture, whose authority over NAD may not be delegated to any other USDA officer or employee.

If a farmer chooses to appeal to NAD, there will be a hearing in front of an administrative law judge. (a/k/a a hearing office)  This gives the farmer  the opportunity to present testimony and/or documentary evidence which demonstrates the determination was in error. NRCS will share data from the agency record supporting the technical determination. The NAD hearing officer will render a decision based on the hearing and evidence provided. 

If a farmer loses their case in front of the NAD hearing officer, the farmer has 30 days to appeal to the NAD director under what is called Request for Director Review.  If the NAD director upholds the decision, then the farmer can seek judicial review in a U.S. District Court.

Although the appeal process provided for an adverse wetland determination is generous, it can be a tough row to hoe.  In most cases, a farmer challenging an adverse wetland determination is going to need to retain the services of a wetland consultant and legal counsel.  Because, generally, the farmer will need to show that the process, procedures, or methods used by NRCS was flawed in arriving at the adverse wetland determination. For smaller converted areas, the costs may not justify the appeal journey.  But, with the ever-increasing cost of ground, the value of the converted area being wetland versus being able to be farmed can add up quickly. 

In the end, it is important to realize that if you disagree with an NRCS wetland determination, you have a wide range of appeal options, but the 30 day clock will start as soon as you get the determination.  If you believe the ends justify the means, then seek out professional help to appeal the determination.  Else, be ready to live with the adverse determination .

John J. Schwarz, II, is a lifelong farmer and agricultural law attorney located in central Indiana.  He can be reached at 1-844-FARMLAW or www.thefarmlawyer.com.   These articles are for general informational purposes only and do not constitute an attorney-client relationship.