UNITED STATES DEPARTMENT OF AGRICULTURE

OFFICE OF THE SECRETARY

NATIONAL APPEALS DIVISION

 

 

In the Matter of

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XXXXX

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and

)                   Case No. 2018W000179

 

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FARM SERVICE AGENCY

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APPEAL DETERMINATION

 

XXXXX (the Appellant) appealed a Farm Service Agency (the Agency) decision dated January 25, 2018, to adopt the Natural Resources Conservation Service’s (NRCS) final technical determination finding 10.5 and 5.17 acres of converted wetlands on the Appellant’s property.  In support of its decision, the Agency argued that NRCS followed proper procedures and that the 10.5 and 5.17-acre portions of the Appellant’s land (the subject land) meet the three wetland criteria: (1) predominance of hydric soils; (2) inundation or saturation by surface or groundwater at a frequency and duration sufficient to support the prevalence of hydrophytic vegetation; and (3) prevalence of hydrophytic vegetation. 

 

The Appellant argued that he had been deprived of his due process rights insofar as the Agency’s decision was arbitrary, capricious, not in accordance with law and not supported by substantial evidence.  In particular, the Appellant argued that all of the 10.5 and 5.17 acres delineated by the Agency did not have the requisite wetland characteristics and, if they did, then such areas were either artificial or prior converted wetlands. 

 

The Appellant initially requested an in-person hearing and a considerable extension of time to complete a soil study, historical records study, and hydrology study.  Later, on July 9, 2018, the Appellant requested a record review.  I closed the record on July 30, 2018.  Based on the evidence and argument presented by the parties and the applicable program laws and regulations, I conclude that the Agency erred when it delineated all the subject land as converted wetlands.  Specifically, the Appellant has demonstrated, by a preponderance of the evidence, that the Agency erred when it determined that the entirety of the subject land contained the requisite hydrology and hydric soils and failed to fully consider that any wetland areas in the subject land were prior converted.  

 

 

BACKGROUND

 

The highly erodible land and wetland conservation rules of the Food Security Act of 1985 (the Act) encourage participants in United States Department of Agriculture (USDA) programs to adopt land management measures to protect wetland functions and values.  The Act does this by linking eligibility for USDA program benefits to farming practices on wetlands.  See Title 16 of the United States Code (16 U.S.C.) Sections (§§) 3801 et seq.  Specifically, after November 28, 1990, a program participant is ineligible for USDA program benefits if there is a conversion of a wetland that makes possible the production of an agricultural commodity.  This provision is intended to remove incentives to produce agricultural commodities on such lands.  The purpose of limiting production is to (1) reduce soil loss because of wind and water erosion; (2) protect the nation’s long-term capacity to produce food and fiber; (3) reduce sedimentation and improve water quality; and (4) aid in preserving the nation’s wetlands.  See Title Seven Code of Federal Regulations (7 C.F.R.) § 12.1(b).  To determine compliance with the wetland provisions, the Agency determines if a producer’s land contains wetlands that are subject to the provisions of the Act and provides other technical assistance.  See 7 C.F.R. § 12.30(a). 

 

A producer's land is a wetland subject to the provisions of the Act if it: (1) has a predominance of hydric soils; (2) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions (hydrology); and (3) under normal conditions supports the prevalence of such vegetation.  See 7 C.F.R. § 12.2(a) (Definition of Wetland) and the National Food Security Act Manual (NFSAM) Paragraphs (Para.) 514.3A and 514.10A. 

 

An artificial wetland is an area that was formerly non-wetland but now meets wetland criteria due to human activities, such as: (i) An artificial lake or pond created by excavating or diking land that is not wetland to collect and retain water that is used primarily for livestock, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, or rice production, or as a settling pond or (ii) A wetland that is temporarily or incidentally created as a result of adjacent development activity.  7 C.F.R. § 12.2(a) (definition of artificial wetland). 

 

A prior converted cropland is defined as an area that is a converted wetland where the conversion occurred prior to December 23, 1985, an agricultural commodity had been produced at least once before December 23, 1985, the converted wetland did not support woody vegetation as of December 23, 1985, and met the following hydrologic criteria:  (i) At least a 50 percent chance that inundation was less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years; and (ii) If the land is a pothole, playa or pocosin, during the growing season in most years there is at least a 50 percent chance that ponding was less than 7 consecutive days and at least a 50 percent chance that saturation was less than 14 consecutive days.  7 C.F.R. 12.2(a)(definition of wetland determination). 

 

 

STATEMENT OF THE ISSUES 

 

The issue in this case is whether the Agency followed its rules and regulations when on January 25, 2018, it decided to adopt a final technical determination (FTD) finding 10.5 and 5.17 acres of converted wetlands in the Appellant’s property.  The specific questions I must address are:

 

1.      Do the circumstances surrounding the Agency’s wetland determination show that the Agency erred in this case or that the Appellant suffered a violation of his constitutional rights? 

2.      Did the Agency err when it determined that the 10.5 and 5.17-acre areas designated as converted wetlands on the Appellant’s property contained the requisite hydrology, hydric soils, and hydrophytic vegetation? 

3.      Did the Agency err when it concluded that the 10.5 and 5.17-acre areas designated as converted wetlands did not meet the criteria of prior converted wetlands or artificial wetlands? 

 

 

FINDINGS OF FACT (FOF) 

 

  1. The Appellant owns Farm No. 6650 (the Farm), Tract Number 27440, in XXXXX.  Fields 1 and 2 of Tract Number 27440 contain the 10.5 and 5.17-acre areas at issue in the appeal.  The Appellant purchased the Farm in 2012.  Agency Record (AR), Pages 128-130 and 316 and Agency Exhibit 11.  The 10.5 and 5.17-acre areas are mostly level to very gently rolling.  AR, Page 36.  Apart from irrigation ditches and a wheel-line irrigation system, the 10.5 and 5.17-acre areas do not have any apparent waterbodies or collections of water (like lakes, ponds, streams, creeks, springs or seeps).  AR, Page 36. 

 

  1. On June 20, 2013, the Appellant submitted a Form AD-1026, Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification (Form 1026) to the Agency by which the Appellant agreed to and authorized NRCS to make a certified wetland determination for the Farm.  Agency Exhibit 11. 

 

  1. Prior to making a site visit, NRCS reviewed aerial maps of the Farm from 1969 to 2013 as well as soil maps.  AR, Page 304. 

 

  1. On June 4, 2015, three NRCS employees made a site visit to the Farm.  The NRCS employees chose eight sampling sites, of which Sampling Sites number five (5) and eight (8) were used as representations of Fields 1 and 2, or the 10.5 and 5.17-acre areas, and are relevant to this appeal.  AR, Pages 129, 322-331 and 541-561.  NRCS completed a Preliminary Technical Determination (PTD) on August 3, 2015 in which it found 10.78 and 4.89[1] acres of converted wetlands on the Appellant’s property.  AR, Pages 124-136.  NRCS concluded that the date of conversion for the subject land was farming year 2013, the time when the Appellant purchased and began farming the subject land.  AR, Pages 124-136 and 183. 

 

Hydrology:  At its site visit, NRCS observed wetland hydrology primary indicators of surface soil cracks and salt crust on Sampling Sites 5 and 8.  AR, Pages 541-561.  At Sampling Site 8, NRCS also remarked that the soil was glistening between the 8-16-inch-deep level.  AR, Page 559.  At Sampling Site 5, NRCS also noted the wetland hydrology secondary indicator of saturation visible on aerial imagery.  AR, Page 554. 

 

Hydric Soils:  For both sites during the site visit, the NRCS employees noted F3 Depleted Matrix as Hydric Soils List indicator.  AR, Pages 554 and 559.  At Sampling Site 5, NRCS took a soil sample to a depth of 28 inches, of which the first 24 inches contained silty soil that was dark grayish brown/dark gray (2.5Y 4/2 and 2.5Y 4/1) with 3 percent (%) redox concentration of dark yellowish brown (10YR 3/4) and 3% redox depletion of greenish gray (5GY 5/1).  AR, Page 554.  At a depth of 24-28 inches in Sampling Site 5, NRCS observed dark gray (5Y 4/1) soil.  AR, Page 554.  In Sampling Site 5, NRCS also noted a hydrogen sulfide smell near the bottom of the 28-inch pit as well as high salt and carbonate masses (7%) and salt and carbonate accumulation.  AR, Page 554.  At Sampling Site 8, NRCS dug its soil sample to a depth of 22 inches, of which the first 8 inches were a loamy dusky red (2.5YR 3/2) soil.  AR, Page 559.  At a depth of 8-16 inches in Sampling Site 8, the loamy soil was dark reddish gray (2.5YR 4/1) with 3% redox concentrations of strong brown (7.5YR 4/6).  AR, Page 559.  At a depth of 16-22 inches in Sampling Site 8, NRCS observed weak red (2.5YR 5/2) sandy loam soil with 1% redox concentrations of strong brown (7.5YR 4/6).  AR, Page 559.  In Sampling Site 8, NRCS also detected saturated conditions at the bottom of the 22-inch pit.  AR, Page 559. 

 

Hydrophytic Vegetation:  At its site visit, NRCS noted in its PTD that both Sampling Site 5 and 8 were problematic in that they both contained cultivated crops (sugar beets).  AR, Pages 553 and 558.  Some wetland plants (Potentilla anserine and Suaeda occidentalis) were observed by NRCS in the herb stratum on Sampling Site 5.  AR, Page 553.  Sampling Site 8 had been recently sprayed with Roundup[2] and then planted with sugar beets.  AR, Page 558.  No other species of plant was present, although NRCS noted that the sugar beets were stressed and dying at Sampling Site 8 and speculated that the plants were dying because of the high salt concentrations in the soil.  AR, Page 558.  

 

  1. In November 2015, the Appellant requested reconsideration of the PTD and the Appellant met with NRCS employees at his farm.  AR, Pages 121-123 and 276-298. 

 

  1. NRCS issued a FTD on May 18, 2016, in which it adopted the PTD findings of 10.78 and 4.89 acres of converted wetlands on the Appellant’s property.  AR, Pages 118-120. 

 

  1. The Appellant appealed the FTD on June 3, 2016.  AR, Page 115.  

 

  1. On May 16, 2017, NRCS issued a revised FTD in which it found 10.5 and 5.17 acres of converted wetlands in the Appellant’s property.  AR, Pages 93-108. 

 

  1. The Appellant appealed NRCS’s revised FTD on June 22, 2017.  AR, Page 181.  

 

  1. On July 31, 2017, XXXXX, consisting of the persons of XXXXX and XXXXX (the Wetlands Experts), published the 2017 Kagel Environmental LLC Wetlands Assessment (the Wetlands Report).  AR, Pages 35-92.  The Wetlands Experts are both wetlands scientists with Masters and/or Doctorate-level degrees in wetland or wildlife sciences, as well as nearly 40 years of experience in wetland related fields of study and employment.  AR, Pages 50-62.  Both Wetlands Experts have also been certified in court or administrative proceedings as wetlands experts in the past.  AR, Pages 50-62.  The Wetlands Experts performed an on-site wetland assessment on June 28-29, 2017.  AR, Page 35.  The on-site wetland assessment was under more wet than normal conditions because local precipitation for the prior three months (April-June) was above average and because snowpack in the region was nearly 200% of normal.  AR, Page 36.  The Wetlands Experts analyzed current and historical aerial photo imagery on Google Earth and concluded that the 10.5 and 5.17-acre areas had been in agricultural production since at least the early 1980’s, and that both areas were placed under center-pivot irrigation sometime between 1992 and 1998.  AR, Page 36.  The Wetlands Experts also concluded, based on the Google Earth photos, that ditches had been used for irrigation on the 10.5 and 5.17-acre areas since at least 1985 and that such irrigation activities, in their opinion, were more likely to create wetlands rather than convert them.  AR, Page 37.  To make a wetland determination, the Wetland Experts used the same regulations, manuals and methods as NRCS.  See AR, Page 37. 

 

Hydrology:  The Wetlands Experts used the same indicator-based approach employed by NRCS to make wetland determinations to determine whether the nine soil sampling sites had the required wetland hydrology.  This involved looking for the presence of primary and secondary hydrology indicators.  The presence of one primary indicator or a least two secondary indicators is sufficient evidence that wetland hydrology is present.  AR, Pages 75-92, see 7 C.F.R. § 12.2(a) (Definition of Wetland), the 1987 Manual at Page 34, the NFSAM Para. 514 and the Regional Supplement at Pages 58-84.  The Wetlands Experts did not note any primary or secondary hydrology indicators in eight of the nine soil sampling pits.  AR, Pages 75-92.  At one soil sampling pit, located within the 10.5 and 5.17-acre areas delineated as converted wetland by the Agency, the Wetland Experts observed the primary hydrology indicators of a high-water table and saturation and concluded that wetland hydrology was present at that soil sampling site.  AR, Pages 63 and 80. 

 

Hydric Soils:  The Wetlands Experts investigated a total of nine soil sampling pits to a depth of approximately 32 inches.  AR, Pages 37 and 63.  Five of the sampling sites were roughly evenly dispersed throughout the subject land.  AR, Pages 37 and 63.  Four sites were adjacent and near the subject land.  AR, Pages 37 and 63.  In analyzing the nine soil sampling pits, the Wetlands Experts used the same hydric soils indicators that the Agency uses to make hydric soils determinations.  AR, Pages 37-40 and 75-92 and see 7 C.F.R. § 12.2(a) (Definition of Hydric Soils).  Specifically, the Wetlands Experts used the hydric soils indicators listed in “The Field Indicators of Hydric Soils of the United States” (the Hydric Soils List).  The indicators set forth in the Hydric Soils List were developed using criteria established by the National Technical Committee for Hydric Soils.  See the Hydric Soils List.  A soil is hydric if at least one of the approved indicators found in the Hydric Soils List is present in the soil.  See 7 C.F.R. § 12.2(a) (Definition of Hydric Soils).  Of the five sampling pits inside the 10.5 and 5.17-acre areas, four lacked hydric soil indicators.  AR, Pages 38-40, 63, and 75-92.  One soil pit, located immediately adjacent to an irrigation riser, contained hydric soil indicators (F3 Depleted Matrix).  AR, Pages 38-40, 63, and 75-92.  None of the remaining four soil sampling sites contained hydric soil indicators.  AR, Pages 38-40, 63, and 75-92. 

 

Hydrophytic Vegetation:  The Wetland Experts observed the vegetation at the nine soil sampling sites but noted that, since at all the sites the vegetation had been disturbed, the wetland determination would be based on the hydric soil and hydrology criteria.  AR, Pages 75-92 and see 7 C.F.R. § 12.31(b)(2)(i) and (3). 

 

  1. NRCS attempted to make an additional site visit on November 13, 2017.  However, the Agency employee was unable to inspect all the 10.5 and 5.17 acres in question because they had both been recently fumigated.  AR, Pages 158-159. 

 

  1. NRCS upheld its May 16, 2017, revised FTD and forwarded the FTD to the Agency on December 5, 2017.  AR, Pages 22-31. 

 

  1. The Agency notified the Appellant on January 25, 2018, of its decision to adopt NRCS’s revised FTD finding 10.5 and 5.17 acres of converted wetlands in the Appellant’s property.  AR, Pages 3-4. 

 

  1. By electronic filing on February 23, 2018, the Appellant appealed the Agency’s adverse decision to NAD.  Appellant’s Appeal Request, Case Record Tab 2. 

 

  1. On June 6, 2018, XXXXX (the Soil Expert) published the Soils Report: [the Appellant’s] Farm Near XXXXX (the Soil Study).  Appellant Exhibit B, Page 1.  The Soil Expert is a Certified Professional Soil Scientist and a Licensed Geologist in the XXXXX.  Appellant Exhibit B, Page 1.  The Soil Expert (along with the Wetlands Experts, although the Wetlands Experts did not perform the analysis or publish the Soil Study) examined 18 soil pits within the 10.5 and 5.17 acres at issue in the appeal, with each soil pit ranging in depth from about 30 to 48 inches.  Appellant Exhibit B, Page 6.  The Soil Expert took color photos of each soil pit at the time of examination.  Appellant Exhibit B.  In analyzing the soil contained in the 18 pits, the Soil Expert used the same hydric soils indicators that the Agency uses to make hydric soils determinations.  Appellant Exhibit B, Pages 1-6 and see 7 C.F.R. § 12.2(a) (Definition of Hydric Soils).  Specifically, the Soil Expert used the hydric soils indicators listed in the Hydric Soils List.  The Soil Expert found that 15 of the pits lacked hydric soil indicators and that the remaining three pits were, at best, hydric only by the slimmest of margins.  Appellant Exhibit A, Pages 5-6, Appellant Exhibit B Appellant Exhibit F, Page 4, and AR, Pages 35-92. 

 

  1. On June 7, 2018, the Wetland Experts (See FOF 10) published the Analysis of Historical Aerial Photography for the [Appellant’s] Farm #6659, Tract 27440 (the Historical Records Study).  In their study, the Wetland Experts used several aerial photographs previously unavailable to them, including photos from 1946-2017.  Appellant Exhibit C, Pages 5-6.  First, the Wetland Experts noted that a 1994 Conservation Plan Map, which included the 10.5 and 5.17 acres at issue in the appeal indicated that the areas were prior converted wetlands.  Appellant Exhibit C, Pages 7 and 13.  Based on the aerial photographs from 1946-1980, as well as climate information and weather records obtained from AgACIS, the Wetland Experts concluded that the 10.5 and 5.17-acre areas at issue in the appeal: (1) Show clear signs of agricultural activity such as man-made ditching, crop-like textures, and linear elements that are indicative of fences and crop rows prior to December 23, 1985; (2) Show, when correlated with historical precipitation data, that any moisture or inundation signatures were consistent with flood irrigation and did not indicate at least a 50 percent chance that inundation was less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years prior to December 23, 1985; and (3) Do not show any signs of woody vegetation until 1950 at which time a few isolated shrubs appeared near irrigation ditches but not in the 10.5 and 5.17-acre areas in question.  See Appellant Exhibit C.  

 

  1. On June 13, 2018, the Wetland Experts (See FOF 10) published the Hydrology and Connectivity of the [Appellant’s] Site (the Hydrology Study).  In their study, the Wetlands Experts used the information contained in the Wetlands Report, the Soil Study, and the Historical Records Study.  Appellant Exhibit D, Pages 3-4.  After reviewing the Wetlands Report, the Wetlands Experts concluded that in all nine soil sampling sites included in that study there was no “…surface ponding or inundation, no surface saturation, and neither free standing water or soil saturation within a depth of 12-inches below the ground.”  Appellant Exhibit A, Page 7, Appellant Exhibit D, Pages 4-5 and Appellant Exhibit F, Pages 4-5.  The Wetland Experts also concluded, after personally evaluating the hydrological conditions at all nine soil sampling sites included in the Soil Study and reviewing the Soil Expert’s conclusions, that the Soil Expert’s conclusions regarding the presence or absence of primary and secondary hydrology indicators were correct.  Appellant Exhibit A, Page 7, Appellant Exhibit D, Pages 4-5 and Appellant Exhibit F, Pages 4-5.  

 

 

DISCUSSION

 

Part 11 of Title 7 of the Code of Federal Regulations (7 C.F.R.) governs appeals before NAD.  The laws and regulations governing the issue on appeal are found at 16 United States Code (U.S.C.) Sections (§§) 3801 and 3821-3824 and Title 7 of the Code of Federal Regulations (7 C.F.R.) Part 12.  The National Food Security Act Manual (4th Ed.) (NFSAM) and the Army Corp. of Engineers 1987 Manual (the 1987 Manual) and the Arid West Regional Supplement to the 1987 Manual to the 1987 Manual (the Regional Supplement) further interpret and implement the statute and regulations.  When appealing an adverse decision to NAD, an appellant has the burden of proving by a preponderance of the evidence that an agency's adverse decision was erroneous.  7 C.F.R. § 11.8(e).  “[A] preponderance of the evidence … is evidence which is … more convincing than the evidence … offered in opposition to it.” Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 736 (3d Cir. 1993), aff’d, 512 U.S. 267 (1994).  An agency’s adverse decision is erroneous when it is inconsistent with the laws and regulations of the agency or the generally applicable interpretations of those laws and regulations.  7 C.F.R. § 11.10(b). 

 

  1. Do the circumstances surrounding the Agency’s wetland determination show that the Agency erred in this case or that the Appellant suffered a violation of his constitutional rights? 

 

No.  The circumstances surrounding the Agency’s wetland determination do not show that the Agency erred in this case.  Further, NAD does not have jurisdiction over the Appellant’s constitutional claim. 

 

Rules, policies or procedures promulgated outside of notice-and-comment rulemaking procedure, such as those contained in opinion letters, policy statements, agency manuals, agency handbooks, and enforcement guidelines, lack the force of law.  Nonetheless, such interpretations are entitled to consideration to the extent they have the power to persuade or explain the preexisting laws and regulations.  However, NAD does not give legal effect to policy statements that are inconsistent with agency laws and regulations.  Thus, when the plain language of the regulation conflicts with an Agency policy statement, NAD will not apply an Agency’s policy statement and will rely only on the unambiguous law or regulation.[3] 

 

The Appellant argued that the Agency erred in this case when it used other rules and guidance or “rules of men” which were promulgated outside of the notice-and-comment rulemaking procedure contained in the Administrative Procedure Act (APA).  Appellant Exhibit A, Pages 2-8, Appellant Exhibit F, Pages 1-7 and see 5 U.S.C. §§ 500 et seq.  Besides repeatedly alleging that the NFSAM, the 1987 Manual, and other written policies were “rules of men” because they are not regulations insofar as they were promulgated outside the procedures outlines in the APA, the Appellant did not provide any specific arguments as to how the manuals were inconsistent with the regulations or otherwise unworthy of consideration.  Appellant Exhibit A, Pages 2-8, Appellant Exhibit F, Pages 1-7 and see Auer v. Robbins, 519 U.S. 452, 461 (1997).  As such, the Agency’s use of policies or procedures promulgated outside of notice-and-comment rulemaking procedure, separate from the conclusions and findings drawn therefrom, was not erroneous in this case.  The conclusions and findings of the Agency are discussed further in all the issues below. 

 

NAD does not have jurisdiction over constitutional claims.  See 7 C.F.R. §§ 11.1, 11.3 and 11.6; NAD Case No. 2012W000271 (Dir. Rev., Jan. 24, 2013) (finding that NAD is not the proper forum to pursue an alleged constitutional violation), NAD Case Nos. 2017W000296, 2017W000324, and 2017W000375 (Dir. Rev., Dec. 27, 2017) (finding that NAD does not have jurisdiction over constitutional challenges), and see also NAD Case No. 2014E000587 (Dir. Rev. Sept 16, 2015) (Finding no evidence that NRCS's wetland determination directly deprived Appellants of any government benefit and even so, Appellants were given notice and the ability to be heard, which are the hallmarks of due process). 

 

The Appellant also argued that he had suffered a constitutional violation when the Agency decided to adopt a final technical determination finding 10.5 and 5.17 acres of converted wetlands in the Appellant’s property.  Appellant Exhibit A, Pages 1-5.  Specifically, the Appellant argued that the Agency violated a number of general principles related to constitutional protections when it decided to adopt a final technical determination finding 10.5 and 5.17 acres of converted wetlands in the Appellant’s property.  See Appellant Exhibit A, Pages 1-5.  If the Appellant wishes to pursue his constitutional due process claim, he must do so before a court of competent jurisdiction.[4]  

 

  1. Did the Agency err when it determined that the 10.5 and 5.17-acre areas designated as converted wetlands on the Appellant’s property contained the requisite hydrology, hydric soils, and hydrophytic vegetation? 

 

Yes.  The Agency erred when it determined that the 10.5 and 5.17-acre areas designated as converted wetlands on the Appellant’s property contained the requisite hydrology, hydric soils, and hydrophytic vegetation. 

 

A threshold issue on the question of the Agency’s wetland determination is the qualifications of the Appellant’s experts, specifically the scientists who prepared the four sources of expert analysis and opinion in this appeal: The Wetlands Report; the Soil Study; the Historical Records Study; and the Hydrology Study.  FOF 10 and 15-17, AR, Pages 35-92 and Appellant Exhibits B-D.  On that matter, the Agency explained in general terms the differences between the regulations and manuals related to enforcing the Act and those related to enforcing the Clean Water Act (CWA).  AR, Pages 22-30.  The Agency also implied that the Appellant’s experts are not trained in the same way that Agency experts are trained in the regulations and manuals related to enforcing the Act.  See AR, Page 24.  If such an assertion on the Agency’s part could be construed as an objection to qualifying the Appellant’s experts in the field of wetlands and wetland identification, I do not find the Agency’s objection to the Appellant’s experts’ qualifications compelling.  The Appellant’s experts all possess specialized education, training and experience in the areas of wetlands and wetland identification and such qualifications are relevant to the issue under appeal.[5]  See Appellant Exhibits B-D.  Further, the Agency did not make any specific objections to the Appellant’s experts’ qualifications, findings, or methods.  Therefore, I find that the Appellant’s experts are qualified to provide expert opinions regarding wetlands and wetland identification in this appeal. 

 

Hydrology

 

Hydrology refers to whether the land, under normal conditions, is inundated or saturated by surface or groundwater at a frequency and duration enough to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.  7 C.F.R., § 12.2(a) (Definition of Wetland).  The Agency uses an indicator-based approach to determine whether an area of interest has the required wetland hydrology, which involves looking for the presence of primary and secondary hydrology indicators.  The presence of one primary indicator or a least two secondary indicators is sufficient evidence that wetland hydrology is present.  See 7 C.F.R. § 12.2(a) (Definition of Wetland), the 1987 Manual at Page 34, the NFSAM Para. 514 and the Regional Supplement at Pages 58-84. 

 

The Agency also confirms wetland hydrology through remote sensing analysis.  Remote sensing analysis involves reviewing a minimum of five years of USDA annual compliance slides and/or aerial photographs during years with normal precipitation.  Wetland hydrology is verified if wetness signatures are evident on 50% or more of the photographs taken during normal year precipitation.  See NFSAM Para. 514.6 and the Regional Supplement at Pages 58-84.  

 

The Appellant argued that wetland hydrology secondary indicators observed by NRCS, saturation visible on aerial imagery, did not reliably show saturation conditions, and were unreliable because some of the photographs were of such poor quality as to be unreadable.  Appellant Exhibit A, Pages 6-7, AR, Pages 35-92, Appellant Exhibit D, Page 4, and Appellant Exhibit F, Pages 4-5.  The Appellant’s Wetland Report noted that only one of the nine soil sampling pits located in the 10.5 and 5.17-acre areas in question contained the primary hydrology indicators of a high-water table and saturation sufficient to support the label of wetland hydrology at that soil sampling site.  FOF 10.  The results of the Wetland Report were also supported and reaffirmed by the findings of the Hydrology Study.  FOF 17.  The Appellant also argued that the Hydrology Study noted that at all nine sampling points there was no “…surface ponding or inundation, no surface saturation, and neither free standing water or soil saturation within a depth of 12-inches below the ground…”  FOF 17, Appellant Exhibit A, Page 7 and Appellant Exhibit D, Pages 4-5, and Appellant Exhibit F, Pages 4-5.  Finally, the Appellant’s Soil Study reported that “any natural sources of hydrology are quite scant or were altered decades ago…” and that “most wetness signatures [on aerial photographs], and in particular those indicating potential inundation, appear to be strongly associated with patterns consistent with flood irrigation.”  FOF 15, Appellant Exhibit A, Pages 5-6, Appellant Exhibit B, Appellant Exhibit F, Pages 4-5, and AR, Pages 35-92. 

 

NRCS observed wetland hydrology primary indicators of surface soil cracks and salt crust on the sampling sites for both the 10.5 and 5.17-acre areas in question.  AR, Pages 541-561.  At Sampling Site 8, NRCS also remarked that the soil was glistening between the 8-16-inch-deep level.  AR, Page 559.  At Sampling Site 5, NRCS also noted the wetland hydrology secondary indicator of saturation visible on aerial imagery.  AR, Page 554.  Apart from the use of remote sensing analysis (saturation visible on aerial imagery), such on-site observations of primary hydrology indicators by NRCS were sufficient to support its conclusion that the two soil sampling sites used by the Agency contained wetland hydrology.  See 7 C.F.R. § 12.2(a) (Definition of Wetland), the 1987 Manual at Page 34, the NFSAM Para. 514 and the Regional Supplement at Pages 58-84. 

 

However, the Appellant’s expert analysis of eight soil sample sites included in the Wetland Report demonstrate that certain portions of the subject land lacked primary and secondary hydrology indicators.  FOF 10 and see 7 C.F.R. § 12.2(a) (Definition of Wetland), the 1987 Manual at Page 34, the NFSAM Para. 514 and the Regional Supplement at Pages 58-84.  Consequently, the Appellant has shown by a preponderance of the evidence that portions of the subject land do not contain the requisite hydrology to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.  I note three characteristics of the Appellant’s Wetland Report that were important to my conclusion.  First, the Wetlands Experts used the same indicator-based approach employed by NRCS to make wetland determinations to determine whether the nine soil sampling sites had the required wetland hydrology, which involved looking for the presence of primary and secondary hydrology indicators.  FOF 10.  Second, the Wetlands Experts found evidence of primary hydrology indicators at one of the soil sampling pits, evidencing that the Wetlands Experts were thorough, unbiased, and willing to accept that at least portions of the subject land may be wetlands.  See FOF 10.  Finally, the Agency had the opportunity to thoroughly review the findings and methodology of the Wetlands Experts, and, apart from noting the differences between the Act and the CWA and differences in training between the Agency employees and the Wetlands Experts, the Agency provided no evidence or argument to contradict the Wetland Report or the Wetland Experts findings and conclusions.  See FOF 10. 

 

For these reasons, I find that the Agency erred when it determined that the entirety of the 10.5 and 5.17-acre areas designated as converted wetlands on the Appellant’s property contained the hydrology required to be labeled as such.  

 

Hydric Soils 

 

Hydric soils are soils that, in an undrained condition, are saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation.  See 7 C.F.R., § 12.2(a) (Definition of Hydric Soils).  To be considered a wetland, land must contain a predominance of hydric soils.  See 7 C.F.R., § 12.2(a) (Definition of Wetland).  The Agency identifies hydric soils either using published soil maps that reflect Agency Soil Surveys or through on-site reviews.  See 7 C.F.R., § 12.31(a).  When conducting an on-site evaluation, the Agency uses hydric soils indicators to make hydric soils determinations.  Hydric soils indicators used for on-site evaluations are listed in the Hydric Soils List.  The indicators set forth in the Hydric Soils List were developed using criteria established by the National Technical Committee for Hydric Soils.  A soil is hydric if at least one of the approved indicators found in the Hydric Soils List is present in the soil.  See 7 C.F.R. § 12.2(a) (Definition of Hydric Soils). 

 

The Appellant argued that the subject land lacked a predominance of hydric soils.  FOF 15, Appellant Exhibit A, Pages 5-6, Appellant Exhibit B, Appellant Exhibit F, Page 4, and AR, Pages 35-92.  The Soil Expert examined 18 soil pits in the 10.5 and 5.17-acre areas ranging in depth from about 30 to 48 inches deep, finding that 15 of the pits lacked hydric soil indicators and that the remaining three pits were, at best, hydric only by the slimmest of margins.  FOF 15.  Importantly, the Soil Expert used the same hydric soil indicators and methodologies used by NRCS to make wetland determinations.  FOF 15.  In contrast, NRCS observed two soil sites in the subject land, noting F3 Depleted Matrix in both.  FOF 4.  In Sampling Site number 5, NRCS also noted a hydrogen sulfide smell near the bottom of the 28-inch pit as well as high salt and carbonate masses (7%) and salt and carbonate accumulation.  FOF 4.  In Sampling Site number 8, NRCS detected saturated conditions at the bottom of the 22-inch pit.  FOF 4.  

 

At least one of the indicators found in the Hydric Soils List was present in the soil sampled by NRCS at Sampling Sites 5 and 8.  FOF 4 and see the Hydric Soils List at Pages 22-23.  Accordingly, the Agency did not err when it concluded that hydric soils were present at Sampling Sites 5 and 8.  FOF 4 and see 7 C.F.R. § 12.2(a) (Definition of Hydric Soils) and the Hydric Soils List at Pages 22-23. 

 

Again, however, the Appellant presented uncontested expert analysis of a significant number of additional soil samples that demonstrated the Agency’s delineation of the wetland areas were incorrect.  By using the same hydric soil indicators and methodologies used by NRCS, the Appellant’s Soil Study showed that 15 of the 18 pits lacked hydric soil indicators necessary to be considered hydric soils.  FOF 15, see 7 C.F.R. § 12.2(a) (Definition of Hydric Soils) and the Hydric Soils List at Pages 22-23, AR, Pages 27-29 and Agency Exhibit 9.  Such uncontested evidence proves, by a preponderance of the evidence, that the entirety of the 10.5 and 5.17-acre areas at issue in this appeal do not contain a predominance of hydric soils.  See 7 C.F.R., § 12.2(a) (Definition of Wetland).  Put another way, if 15 out of a total of 20 sampling sites (the Appellant’s 18 sites and NRCS’s two sites) within the subject land do not contain hydric soils, the entire 10.5 and 5.17-acre areas cannot contain a predominance[6] of hydric soils.  As such, the Agency erred when it determined that the 10.5 and 5.17-acre areas designated as converted wetlands on the Appellant’s property contained the hydric soils required to be labeled as such.  See 7 C.F.R., § 12.2(a) (Definition of Wetland). 

 

Hydrophytic Vegetation 

 

Hydrophytic vegetation means plants growing in water or on a subsurface that is at least periodically deficient in oxygen during a growing season because of excessive water content.  7 C.F.R. §§ 12.2(a) (Definition of Hydrophytic Vegetation) and 12.31(b).  The Agency must perform an on-site assessment to determine whether, under normal circumstances, the land supports a prevalence of hydrophytic vegetation, even if vegetation has been removed or altered by human activities.  7 C.F.R. § 12.31(b)(2)(i) and (3).  The Agency relies upon the National Plant List to determine if an area has hydrophytic vegetation.  7 C.F.R. § 12.31(b)(1).  The National Plant List categorizes plant species according to their likelihood of occurrence in wetlands.  Obligate (OBL) plant species occur 99 percent of the time in wetlands; Facultative Wetland (FACW) 67-99 percent of the time; and Facultative (FAC) 34-66 percent.  Facultative Upland (FACU) occur 67-99 percent of the time in non-wetlands and Obligate Upland (UPL) 99 percent of the time.  Plant species listed on the National Plant List with an indicator status of FAC or wetter shall be considered plant species that occur in wetlands.  7 C.F.R. §§ 12.2(a) (Definition of Hydrophytic Vegetation and 12.31(b). 

 

The Appellant questioned whether the Appellant’s land could be designated as a wetland without woody vegetation being present on the land or observable on historical aerial photographs.  Appellant Exhibit A, Page 8.  NRCS noted that both sampling sites for hydrophytic vegetation were problematic in that they both contained cultivated crops (sugar beets).  AR, Pages 553 and 558.  Some wetland plants (Potentilla anserine and Suaeda occidentalis) were observed by NRCS in the herb stratum on Sampling Site 5, although the presence of such vegetation did not pass any prevalence test.  AR, Page 553 and the Regional Supplement, Page 19.  Sampling Site 8 had been recently sprayed with Roundup and then planted with sugar beets.  AR, Page 558.  No other species of plant was present, although NRCS noted that the sugar beets were stressed and dying at Sampling Site 8 and speculated that the plants were dying because of the high salt concentrations in the soil.  AR, Page 558. 

 

In this case, both the Agency and the Appellant noted that vegetation had been removed or altered on the 10.5 and 5.17-acre areas at issue in this appeal.  FOF 4 and 10.  Neither the Agency nor the Appellant, using on-site assessment, was able to directly observe a prevalence of hydrophytic vegetation.  FOF 4 and 10 and 7 C.F.R. § 12.31(b)(2)(i) and (3).  Consequently, my findings regarding hydrology and hydric soils (discussed above) are determinative and drive the conclusion that the Agency erred when it determined that the entirety of the subject land contained the hydrology, hydric soils, and hydrophytic vegetation required to be labeled as converted wetlands. 

 

  1. Did the Agency err when it concluded that the 10.5 and 5.17-acre areas designated as converted wetlands did not meet the criteria of artificial wetlands or prior converted wetlands? 

 

Yes.  The Agency erred when it concluded that the 10.5 and 5.17-acre areas designated as converted wetlands did not meet the criteria of artificial wetlands or prior converted wetlands. 

 

Although I have found that the Agency erred when it determined that the entire subject land contained the requisite hydrology, hydric soils, and hydrophytic vegetation, I will still address the issues of artificial and prior converted wetlands since I have found that at least portions of the subject land may be wetlands (see above).  

 

An artificial wetland is an area that was formerly non-wetland but now meets wetland criteria due to human activities, such as: (i) An artificial lake or pond created by excavating or diking land that is not wetland to collect and retain water that is used primarily for livestock, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, or rice production, or as a settling pond or (ii) A wetland that is temporarily or incidentally created as a result of adjacent development activity.  7 C.F.R. § 12.2(a) (definition of artificial wetland). 

 

The Appellant argued that the 10.5 and 5.17-acre areas designated as converted wetlands were artificial wetlands.  Appellant’s Appeal Request, Case Record Tab 2 and Appellant Exhibit F, Pages 5-6.  Specifically, the Appellant cited his Hydrology Study, the Wetland Report, and the Historical Records Study to argue that irrigation water has been ditched artificially into the areas in question for decades and that other manmade structures built over the last century have significantly altered the drainage patterns of the subject land.  Appellant Exhibit F, Pages 5-6. 

 

The Agency considered the issue of whether the subject land were artificial wetlands and concluded that they were not because “the soils maps and data show inclusions of hydric soils in depressions…”  Agency Exhibit 9, Page 3-4.  Although the Agency admitted that irrigation water could be the source of hydrology in an artificial wetland, the Agency decided that since it believed the 10.5 and 5.17-acre areas were wetlands before human activities, increasing the hydrology (through irrigation) of the areas would not make the areas artificial wetlands.  AR, Page 28 and See 7 C.F.R. § 12.2(a) (definition of artificial wetland).  On the contrary, the Appellant cited evidence that irrigation water had been artificially ditched to the subject land since approximately 1950.  The Appellant also cited the Wetland Experts’ opinion that the irrigation activities on the Appellant’s land was more likely to create wetlands rather than convert them.  Appellant Exhibit C and Appellant’s Appeal Request, Case Record Tab 2, Factual and Procedural History, Pages 5-7.  Unlike other aspects of this appeal, the Agency has attempted to present evidence and argument to contradict the Wetland Expert’s opinions regarding artificial wetlands.  Considering the weight of the evidence presented by both parties, particularly the lack of detail as to exactly how the irrigation activities on the Appellant’s land created wetlands, I do not find that the Appellant has proven by a preponderance of the evidence that the Agency erred when it concluded that the 10.5 and 5.17-acre areas designated as converted wetlands did not meet the criteria of artificial wetlands.

 

A prior converted cropland is defined as an area that is a converted wetland where the conversion occurred prior to December 23, 1985, an agricultural commodity had been produced at least once before December 23, 1985, the converted wetland did not support woody vegetation as of December 23, 1985, and met the following hydrologic criteria:  (i) At least a 50 percent chance that inundation was less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years; and (ii) If the land is a pothole, playa or pocosin, during the growing season in most years there is at least a 50 percent chance that ponding was less than 7 consecutive days and at least a 50 percent chance that saturation was less than 14 consecutive days.  7 C.F.R. 12.2(a)(definition of wetland determination).  

 

The Appellant argued that the subject land were prior-converted wetlands.  Appellant Exhibit A, Pages 7-8 and Appellant Exhibit F, Pages 2-4.  Specifically, the Appellant’s Historical Records Study concluded that, since before 1946, the 10.5 and 5.17-acre areas designated as converted wetlands were used for farming and other agricultural purposes.  Appellant Exhibit A, Pages 7-8, Appellant Exhibit C, Pages 1-59 and Appellant Exhibit F, Pages 2-6.  The Appellant also argued that the Agency ignored a 1994 Conservation Plan Map that labeled portions of the Appellant’s land, including the subject land, as prior-converted wetlands.  AR, Pages 26-27 and Appellant Exhibit F, Pages 2-6. 

 

The Agency, in response to concerns raised by the Appellant in December 2017, concluded that there was no evidence of agricultural commodity crop being produced on the areas in question prior to 1985.  AR, Page 27.  Based on the new information contained in the Appellant’s Historical Records Study, completed later in June 2018, I find that the Agency’s original conclusion about whether the subject land contains prior converted wetlands is erroneous insofar as it fails to consider the new aerial images and analysis presented by the Appellant.  Setting aside the fact that the 1994 Conservation Plan Map indicated that the subject land were prior-converted wetlands (see Appellant Exhibit C, Pages 7 and 13), the historical maps and documentation alone prove by a preponderance of the evidence that the areas in question, if wetlands, deserve consideration from the Agency as prior converted wetlands.  Specifically, aerial maps from 1946-1980 of the 10.5 and 5.17-acre areas: (1) Show clear signs of agricultural activity such as man-made ditching, crop-like textures, and linear elements that are indicative of fences and crop rows; (2) Show, when correlated with historical precipitation data, that any moisture or inundation signatures were consistent with flood irrigation and did not indicate at least a 50 percent chance that inundation was less than 15 consecutive days during the growing season or 10 percent of the growing season, whichever is less, in most years; and (3) Do not show any signs of woody vegetation until 1950 at which time a few isolated shrubs appeared near irrigation ditches but not in the 10.5 and 5.17-acre areas in question.  See Appellant Exhibit C.  Importantly, the Agency did not respond to the specific and comprehensive findings contained in the Appellant’s Historical Records Study or attempt to contradict the Appellant’s arguments related thereto.  Accordingly, I find that the Agency erred when it concluded that the 10.5 and 5.17-acre areas designated as converted wetlands did not meet the criteria of prior converted wetlands because the Agency failed to specifically consider and respond to the new information presented by the Appellant in the Historical Records Study.  

 

In summary, I have found that the Agency erred when it concluded that the 10.5 and 5.17-acre areas designated as converted wetlands on the Appellant’s property contained the hydrology, hydric soils, and hydrophytic vegetation required to be labeled as such.  My finding is based on a preponderance of the evidence in the form of uncontroverted expert findings and opinions that 15/18 of the Appellant’s expert sampling sites within the delineated 10.5 and 5.17-acre areas did not contain hydric soils and that eight out of ten sampling sites lacked primary or secondary hydrology indicators.  Such a finding on my part, however, does not foreclose the possibility (as evidenced by the findings contained in NRCS’s FTD) that parts of the 10.5 and 5.17-acre areas may contain the hydrology, hydric soils, and hydrophytic vegetation required to be labeled as wetlands.  It is that possibility that compelled me to also consider whether the Agency erred when it concluded that the 10.5 and 5.17-acre areas could not have contained artificial wetlands or prior converted wetlands.  I have also concluded that the preponderance of the evidence shows that any areas of wetland contained in 10.5 and 5.17-acre areas at issue in the appeal should have been considered by the Agency as prior converted wetlands and that the Agency’s failure to do so constituted error on its part. 

 

Based on my findings above, the Agency’s FTD was erroneous.  If the Appellant still wishes to participate in USDA programs and have his compliance with the Act certified by the Agency, the Agency must re-delineate the 10.5 and 5.17-acre areas originally designated as converted wetlands on the Appellant’s property to ensure that any area or areas delineated as wetlands contain the hydrology, hydric soils, and hydrophytic vegetation necessary to be labeled as such.  Further, any portion or portions of the 10.5 and 5.17-acre areas in question that are ultimately labeled by the Agency as wetlands must be specifically analyzed by the Agency with due consideration of the evidence and analysis contained in the Appellant’s Historical Records Study and whether such land is a prior converted wetland. 

 

 

DETERMINATION

 

Pursuant to 7 C.F.R. § 11.8(e), the Appellant bears the burden of proving that the Agency’s adverse decision is erroneous by a preponderance of the evidence.  In this case, the Appellant has met this burden.  The Agency’s decision was erroneous. 

 

This is a final determination of the Department of Agriculture unless a timely request for review is filed. 

 

Dated and mailed this 23rd day of August 2018. 

 

 

 

/s/

JUSTIN C. OLIVER

Administrative Judge

National Appeals Division

 

 



[1] As explained in FOF 11, NRCS eventually revised the number of acres in its FTD to the 10.5 and 5.17 acres of converted wetlands found in the adverse decision at issue in this appeal.  See Agency Exhibit 9, Page 4.  

[2] Roundup is a brand of glyphosate herbicide.

[3] See Christensen v. Harris County, 529 U.S. 576, 586–588 (2000) (citing Reno v. Koray, 515 U.S. 50, 61 (1995); Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150–157 (1991)).  See NAD Case No. 2012W000271 (Dir. Rev., Jan. 24, 2013) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997) (deferring to the agency’s handbook interpretation of its regulation regarding riparian forest buffer size after finding the interpretation was not plainly erroneous or inconsistent with the regulation); NAD Case No. 2010W000427 (Dir. Rev., Sep. 23, 2010) (deferring to the agency’s interpretation of a handbook provision regarding maintenance violations under a Direct and Counter-Cyclical Program contract after determining agency’s interpretation was reasonable and consistent with the regulation at issue).  See also NAD Case 2013W000038 (Dir. Rev., Mar. 2, 2013) (finding agency error where a handbook provision created a requirement that was not intended by the express language of the regulation and emphasizing that if the agency intended to impose the handbook’s blanket refund requirement, then the regulations could have been drafted accordingly). 

[4] See 42 U.S.C. § 1983 and Gomez v. Toledo, 446 U.S. 635, 638 (1980). 

[5] See Daubert V. Merrell, 509 U.S. 579, 587 (1993) ( "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.") 

 

[6] The ordinary meaning of the word predominance merely means more of one type of thing (in this case hydric soil) than another (in this case non-hydric soil).  See https://www.merriam-webster.com/dictionary/predominance.