Thursday, September 1st 2016
Winter dumps piles of snow nearly every year along a tree belt near an 0.8-acre tract of land on Arlen Foster's farm in Miner County, South Dakota, in the southeastern part of the state. Spring melt drains onto his field, often making it impossible to farm. Such is life in the Prairie Pothole region, where centuries ago glacial formations carved into the land. The 0.8 acres was declared a wetland based on a USDA process that Foster is asking the U.S. Supreme Court to review. The Natural Resources Conservation Service, or NRCS, faces a backlog of requests for wetlands determinations, leaving some landowners waiting for years. NRCS instead used a comparison site to make a determination,Foster said. Thisdeprives him of his rights, he contends in his appeal. Such comparisons are allowed by NRCS procedures. The Pacific Legal Foundation is challenging the agency's use of a so-called "reference site" in Kingsbury County about 33 miles from the Foster farm and the 0.8 acres. The petition said NRCS investigated the area and found it had been disturbed and naturally occurring vegetation altered. Wetland conservation provisions in the Food Security Act place no restrictions on farming wetlands if natural conditions allow for it. The wetlands provision prohibits converting wetlands to crop production by draining, filling or other means. The Supreme Court is on break until late September. Foster will learn sometime this fall whether the high court will take up the case.