In 2019, the United States Court of Appeals for the Seventh Circuit resolved a decades old dispute between the Bouchers, an Indiana farming family, and the United States Department of Agriculture (USDA). Boucher v. United States Dep’t of Agric., 934 F.3d 530 (7th Cir. 2019) considered whether the Bouchers violated the “Swampbuster” provisions of the Food Security Act of 1985. The provisions state that farmers who convert wetlands for agricultural purposes will be denied specific USDA benefits for their entire operation.
The Natural Resources Conservation Service (NRCS) is responsible for making determinations about whether an area is a wetland or a converted wetland. NRCS is also tasked with investigating failures to comply with Swampbuster provisions.
In order for an area to be considered a wetland, it must have plants that can be found growing in water or soil capable of supporting wetland vegetation; and the area must normally have wetland hydrology.
In some cases where vegetation in an area has been removed prior to NRCS examination, an NRCS agent may obtain evidence needed to make a wetland determination by examining an adjacent area. The comparison site must have the same topographic position, soils, and hydrology as the altered area.
During the 1990s, the Bouchers removed nine trees from a field on their property. In 2002, a USDA representative visited the Boucher farm. During that trip, the representative reported a potential wetland violation based on the tree removal that had occurred roughly eight years earlier.
An NRCS agent completed a routine wetland determination in late 2002. Although the NRCS agent found nothing to indicate that the field might have been a wetland, the agent nevertheless assumed that the field had been drained using drainage tile and selected a comparison site to aid in her determination. The comparison site selected by the NRCS agent was indisputably a wetland and resulted in a finding that the disputed area was also a wetland.
The Bouchers appealed the determination, and after meeting with a local NRCS official, they believed the situation had been resolved. The Bouchers received no more communication from USDA for nearly 10 years.
In 2012, a request from the Bouchers to USDA prompted the agency to realize that it had never made a final determination in regard to the Bouchers’ 2003 appeal. USDA scheduled another visit to the Boucher farm and once again concluded, without evidence, that the disputed area was a wetland that had been drained through tiling.
USDA notified the Bouchers of its final determination in 2013 and the Bouchers appealed. The Bouchers presented evidence that drainage tile had never been installed at the site, that the land showed no wetland characteristics, and that the trees they had removed were unlikely to grow in a wetland. The agency ruled against the Bouchers, as did the district court in the initial appeal. Following the district court decision, the Bouchers appealed their case to the Seventh Circuit.
The Seventh Circuit ruled in favor of the Bouchers. The court took particular issue with the fact that the NRCS agents had determined that the disputed site had been drained via the use of drainage tile without evidence. Though the assumption was untrue, NRCS used it as a basis to select a comparison site that was not comparable to the disputed site. The comparison site was indisputably an unfarmed wetland, which the court concluded would not be an appropriate comparison site even under the most generous interpretation of the regulations.
The court felt that USDA should have closed the case when it became clear that drainage tiles had never been present at the site.
USDA argument rejected
Finally, the court firmly rejected USDA’s final argument that the removal of trees from waterlogged soil is, on its own, enough to designate an area as a converted wetland. According to the court, such an approach would allow a site to be labeled a converted wetland without any reference to hydrological factors, in direct conflict with the Swampbuster provisions’ focus on hydrology.
The court further concluded that such an approach would be “incompatible […] with common sense.”
The court overruled the district court’s opinion, and remanded back to the district court with directions for it to rule in favor of the Bouchers.