By Ashley Rice
For 10 years and counting, Illinois farmer Kurt Wilke has been in a legal battle with the Natural Resources Conservation Service (NRCS) over a wetlands determination.
But now, a recent determination by the USDA’s National Appeals Division (NAD) favored Wilke and his family.
“On review, the NAD director upheld the administrative judge’s decision, noting that NRCS did not base its analysis on data about water inflow and outflow, discarded some of the data that was provided, and supplemented the data with unsupported assumptions,” stated Frank Wood, NAD director.
The dispute between Wilke and the NRCS started in 2010 when his father-in-law began drain tile improvements on a newly purchased farm. This was after gathering details, including Farm Service Agency Form 156, which said the farm has no wetlands. But shortly thereafter, the NRCS told him that 22 out of 80 acres were wetlands and he must stop drain tile work.
Even though the courts ruled in favor of Wilke’s family, the NRCS re-issued rulings and ensued the legal battle a total of four times.
“We are certainly frustrated that this process has taken so long,” said Wilke. “We went through four successive appeals on the merits of the wetlands determination, and after five years finally got strongly worded decisions from both the administrative judge and the NAD director that NRCS' position was based on speculation and conjecture, ignored key facts and evidence, and wasn't even consistent with its own procedures for wetlands analysis. That was in 2017. We thought it would be an easy matter to then request reimbursement for this costly ordeal, but that process has now taken three more years.”
While Wilke awaits a decision by the administrative judge on costs and fees reimbursement, either party can appeal this decision, prolonging the dispute even more.
“They (NRCS) could have stopped this early on in the process if they just paid attention to the evidence that he (Wilke) provided,” explained Don Parrish, American Farm Bureau Federation (AFBF), senior director, regulatory relations. “I’m not sure that they’re going to. They may continue to fight. They may continue to try to minimize the cost and the time and the anxiety that Mr. Wilke went through to do this. We hope not. And we’re (AFBF) going to do everything in our power to make sure that USDA doesn’t.”
But nonetheless this recent decision by the NAD is the win that Wilke and his family have been devotedly fighting for.
“Here is the important part of this: It is a huge win,” said Parrish. “It’s something Mr. Wilke has been working on … But I’m not necessarily encouraged that USDA is going to pay attention to all of the work and the outcomes … the things that they should have learned from in this case. You would think the agency would adopt these lessons learned and their best practices. I’m not encouraged that they’re going to do that, but let’s hope that they do."