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UNITED STATES DEPARTMENT OF AGRICULTURE OFFICE OF THE
SECRETARY NATIONAL APPEALS DIVISION |
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In the Matter of |
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XXXXX |
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and |
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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)
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.
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).
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).
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]
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.
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.
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/s/ |
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JUSTIN C. OLIVER |
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Administrative Judge |
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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.