In August, the United States Court of Appeals for the Seventh Circuit resolved a dispute that had been on-going for nearly two decades between the Bouchers, a small farming family in Indiana, and the United States Department of Agriculture (USDA). The case, Boucher v. United States Dep’t of Agric., 934 F.3d 530 (7th Cir. 2019), centered around whether the late David Boucher converted several acres of wetlands into cropland when he removed nine trees from his property in the mid-to-late 1990s. The Food Security Act of 1985 included wetland conservation provisions, known colloquially as the “Swampbuster” provisions, which mandate that farmers who convert any wetlands for agricultural purposes will be denied important USDA benefits. Nearly ten years after Mr. Boucher removed the nine trees from his property, USDA determined that Mr. Boucher had converted wetlands rendering the entire Boucher property ineligible for benefits. This determination was made, as the court notes, without evidence that the land in question had ever been wetlands in the first place.
Implementing the Swampbuster Provisions
The Natural Resources Conservation Service (NRCS) is responsible for making determinations as to whether wetlands existed or had been converted. NRCS is also tasked with investigating failures to comply with the Swampbuster Program. When making a wetland determination, NRCS must determine whether “the area of interest supports a prevalence of  hydrophytic vegetation,  a predominance of hydric soils, and  wetland hydrology under normal circumstances.” 7 C.F.R. § 12.30(c)(7). All three characteristics must be present in order for the area to be considered a wetland. In other words, in order for NRCS to find that an area is a wetland, the area must have (1) plants that can be found growing in water or waterlogged soil; (2) the type of soil that is conducive to supporting wetland vegetation; and (3) the area must normally contain hydrologic conditions even if the vegetation has been removed. In some unusual cases where vegetation in an area has been removed, an NRCS agent may obtain evidence needed to make a wetland determination by examining an adjacent area. The comparison site must have the same topographic position, soils, and hydrology as the altered area.
The Boucher Dispute
During the 1990s, Mr. Boucher removed nine trees from two areas of the Boucher farm. Together, the trees had taken up roughly 12/10,000ths of an acre. In 2002, a USDA representative visited the Boucher farm in response to a request by the Boucher’s to establish a conservation strip around the perimeter of their property. During that 2002 trip, the USDA representative reported a potential wetland violation based on the tree removal that had occurred roughly 8 years earlier. In response, an NRCS agent completed a routine wetland determination in late 2002. Although the NRCS agent found nothing to indicate that the field might have been a wetland, the agent nevertheless assumed that the field had been drained using drainage tile and selected a comparison site to aide in her determination. The comparison site selected by the NRCS agent was indisputably a wetland and resulted in a finding that the disputed area of the Boucher property was a wetland as well. Mr. Boucher appealed the NRCS determination, and after a meeting with State Conservationist in 2003, Mr. Boucher felt that he had resolved the situation. The Bouchers received no more communication from USDA for nearly ten years, during which time Mr. Boucher passed away.
In 2012, a request from Rita Boucher to USDA to remove a structure from a portion of the property prompted USDA to realize that it had never made a final determination in regard to Mr. Boucher’s 2003 appeal. USDA scheduled another visit to the Boucher farm and once again concluded, despite a lack of evidence, that the disputed area was a wetland that had been drained using drainage tiles. USDA notified Mrs. Boucher of its final determination in 2013 at which point she began the appeals process. In her appeal to the agency, Mrs. Boucher presented evidence that drainage tile had never been installed at the site, that the land demonstrated no saturation with water, and that the trees that had been removed had been unlikely to occur in a wetland. The agency ruled against Mrs. Boucher, as did the district court when Mrs. Boucher appealed the agency’s decision. Following the district court ruling, Mrs. Boucher appealed her case to the Seventh Circuit.
Before the Seventh Circuit
In its final decision, the Seventh Circuit discussed in detail the many errors that USDA had made during the nearly two-decade process, ultimately ruling that the agency’s decision was not subject to deference because it was arbitrary and capricious.
The court took particular issue with the fact that the NRCS agents had assumed without evidence that the disputed site had been drained via the use of drainage tile. Though the assumption was untrue, NRCS used it as a basis to select a comparison site that was not comparable to the disputed site at all. The comparison site was indisputably an unfarmed wetland, which the court concluded would not be an appropriate comparison site even under the most generous interpretation of the regulations. The court further admonished USDA for trying to “change the subject” during the appeals process when it realized that there was no evidence to support the conclusion that drainage tiles had ever been present on the site, and tried instead to argue that the wetland determination had been made based on the removal of trees. The court faulted USDA for this change in position, and stated that the case should have been concluded when it became clear that drainage tiles had never been present on the site in the first place.
Finally, the court firmly rejected USDA’s final argument that the removal of woody hydrophytic vegetation from hydric soils is, on its own, enough to designate an area as a converted wetland. The court found that such an argument “reaches too far.” According to the court, such an approach would allow a site to be labeled a converted wetland without any reference to hydrological factors which would be in direct conflict with the Swampbuster statute’s focus on hydrology. The court further concluded that such an approach would be “incompatible […] with common sense.”
The court overruled the district court’s opinion, and remanded back to the district court with directions for it to rule in favor of Mrs. Boucher.
To learn more about conservation of wetlands in agriculture click here.