A potentially precedent setting South Dakota wetland determination case may be moving to the Supreme Court. Miner County farmer Cindy Foster says she and her husband are fighting a wetland ruling handed down by NRCS in 2008 on an area of a field measuring eight-tenths of an acre in size and .7 feet deep. She says they challenged the wetland definition in part because the land is located near a tree-belt.

The agency determined the area was a wetland because it met three of the indicators. However, one of those requires that water loving vegetation must be growing on it. Since the field was in production NRCS had to find a reference site. They rejected a site on the Foster’s farm with the same hydrology and soil type, and found their own reference site 40 miles away.

Foster says they fought the determination via administrative appeals and then took the case through state circuit court and the 8th Circuit Court of Appeals, which both deferred to the agency’s expertise. So, the only option was the Supreme Court. She says Pacific Legal Foundation took the case based on its chances for success.

She says they are waiting to find out if the Supreme Court will hear the case, but a victory could set a huge precedent.

Foster says the government has field a response and they expect to find out if the case moves forward early in 2017.