In 2004, the National Resources Conservation Service (NRCS) certified a small portion of a farmer’s property as a wetland. The farmer requested a review of the certification several times, most recently in 2017 and 2020. The NRCS denied both requests. The farmer brought suit claiming, among other things, that the NRCS violated the Administrative Procedure Act (APA) by denying his review requests. See 5 U.S.C. § 706(2)(A).

A farmer may request a review of a wetland certification “only if a natural event alters the topography or hydrology of the subject land . . . or if NRCS concurs with an affected person that an error exists in the current wetland determination.” 7 C.F.R. § 12.30(c)(6). The farmer did not argue that he complied with the regulation in 2017. For the 2020 request, the farmer did provide new information through an engineering report. However, when NRCS asked to provide evidence that the NRCS failed to consider specific information topographic information, the farmer failed to respond. As a result, the Eighth Circuit affirmed the grant of summary judgment in favor of the NRCS.

Foster v. Vilsack68 F.4th 37 (8th Cir. 2023).