Case illustrates room for dispute over wetlands

2017-02-09T08:15:00Z Case illustrates room for dispute over wetlandsBy Phyllis Coulter, Illinois Farmer Today Illinois Farmer Today

BLOOMINGTON, Ill. — If the man who bought an 80-acre farm in Macon County in 2010 knew what the future held, he may have reconsidered that decision.

He had no idea he would incur five years of battling with the NRCS over a wetland designation and spend more than $100,000 in the effort, explains Kurt Wilke, the Springfield lawyer who would represent the land buyer during the long battle over the surprise designation.

Before purchase, the buyer consulted with the land’s drainage district in central Illinois. He also received the USDA 1026 form showing no wetlands.

Upon finding wet spots, the buyer, who was cash renting the land, decided to add a new drainage system in 2011. Then he got a visit from the NRCS informing him the 80-acre plot had 22.4 acres of wetlands.

He was told he must disconnect the new system, Wilke said. The suit over the sudden wetland designation ended in December 2016, with an appeal for recovery of costs incurred still ongoing.

“Our client would not have bought the farm if he knew that,” Wilke said.

The lawyer spoke at the recent annual Illinois Association of Drainage Districts conference in Bloomington. During the January meeting, district representatives, often farmers, listened to a panel of NRCS staff and other experts explain criteria determining a wetland or other drainage issues.

The event also included a legal panel, updates on the Des Moines Water Works lawsuit, myth busting about nitrates and the next generation of soybeans including Enlist and Xtend.

Wilke said by law, after the NRCS designation, the farmer could not produce a crop on agricultural land deemed converted from wetlands after Dec. 23, 1985.

The owner couldn’t ignore the NRCS decree because he could lose other federal program benefits on this and other lands, Wilke said.

Once the NRCS makes its call on the wetland, the landowner has 30 days to appeal. There are three options for appeal: through a county Farm Service Agency (FSA) committee, a NRCS mitigation hearing or a national appeals division hearing with an administrative law judge

“Our case went through the process four times,” Wilke said.

First, the landowner and farmer decided to go through the county level and won. But the NRCS didn’t change its decision, so nothing changed. Wilke told farmers he would be reluctant to try the FSA county committee route again because its decision is non-binding.

“NRCS wasn’t going to change its mind,” he said, so they began preparing for the national appeals division hearing.

The legal team turned to Don Wauthier, an agricultural engineer in Urbana with a specialization in soil and water resources. Having been involved in numerous civil and agricultural engineering projects and working with dozens of drainage districts, he brought expertise needed to counter the NRCS, Wilke said.

The bottom line is the criteria in determining a wetland, Wauthier said. To qualify as cropland, the wetland must have been converted to farmland prior to Dec. 23, 1985.

To be a wetland, three factors must be present: hydric soils (such as Drummer, Pella, Peotone or Lena); wetland plants (such as foxtail, sedges, willow, smartweed, milkweed, thistles or rushes); and ponded water for seven days or more or saturated soil for 15 days or more.

The battle hinges on the definition of a wetland and proof. But Wauthier says these criteria are subjective.

“The determination is not black or white. There are all shades of gray,” he said.

In this case, each side had experts who disagreed on the presence of wetland plants.

If NRCS aerial photos taken before 1985 showed ponding, it would be difficult to tell if it lasted for seven days because there weren’t follow-up dated photos, he said. The landowner’s team found other dated photos telling a different story.

The hearings take considerable effort to collect samples, interview witnesses, prepare evidence, rebuttals and summaries. It is a lengthy and costly experience, Wauthier said.

In the second case, the landowner’s side won on a procedural issue — NRCS used the wrong weather station. After two and a half years of fighting over the issue, NRCS appealed and the battle continued.

Again, all the pre-trial work had to be done. But this time, following the complete “scope and effect study” of the lands in the third try, NRCS reduced its claim of wetlands from 22.4 acres to 14 acres.

“Eight acres, by their own determination wasn’t wetlands,” Wauthier said.

NRCS withdrew in the third case and appealed again for a fourth hearing. The judge determined the wetlands had been converted before 1985 to cropland, so the landowner finally won in December.

“It confirmed NRCS was wrong — after five years,” Wilke said, adding that his client continued the time-consuming effort so long on principal.

The landowner is now working on an effort to be re-reimbursed for his legal fees.

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