A conveyor belt of major snowstorms has covered Arlen Foster's Minor County, South Dakota, farm like a blanket this year.
Though he anxiously waits for the melt, not much will change on his land.
Like a faithful friend, a puddle will reappear behind a tree belt on a 0.8-acre tract of Foster's farm, as it has for generations.
"Yes, we again have 6-foot-plus drifts in the tree belt, but the effects on the puddle remain the same as they have been over the years," Foster told DTN.
What he hopes will change eventually is his ability to farm that stretch of ground.
For more than a decade, Foster has been unable to farm the tract because the USDA's Natural Resources Conservation Service says the puddle is a wetland that cannot be touched if the farm is to remain in USDA programs.
In recent weeks, attorneys for Foster made yet another legal argument before yet another court -- this time the U.S. Court of Appeals for the Eighth Circuit.
Foster hired a wetlands consultant in recent years, who determined the small tract of land was not a wetland. He sought review of his wetland status and was denied despite scientific proof in his favor.
The amount of lost production, lost inputs and other losses has mounted for Foster.
"It isn't just only about loss of production, but also about loss of inputs," Foster told DTN.
"For example, the times when we are able to fertilize, plant, and spray, if we get a heavy rainfall event or events, the growing crop may drown out."
ORAL ARGUMENTS
Foster's Pacific Legal Foundation attorney Jeffrey McCoy delivered an oral argument on March 21 before the Eighth Circuit, making the case the Swampbuster Act requires USDA to grant a review.
Swampbuster provisions prohibit the draining of water from a wetland if farmers are to take part in farm programs.
"One issue the NRCS has had in this case and at argument is articulating objective standards for when a farmer can request a review of a certified wetland delineation," McCoy told DTN.
"Instead, the agency believes it gets to subjectively decide when a farmer gets a review. But Swampbuster is clear: A farmer can request a review at any time. As the Sixth Circuit said in a 2015 decision, Maple Drive Farms v. Vilsack, the NRCS has created a 'bureaucratic labyrinth' under Swampbuster.
"Any amendments to the statute that can clarify and streamline the procedures for determining wetlands would be beneficial to farmers."
Source: dtnpf.com
Photo Credit: pexels-adam-sondel
Categories: South Dakota, General