Murky Waters: Making Sense of the Food Security Act’s Swampbuster Program and the Clean Water Act’s Prior Converted Cropland Exemptions

An important consideration for any future development is compliance with the U.S. Department of Agriculture (“USDA”) Food Security Act’s Swampbuster Program and wetland permitting requirements under the Clean Water Act’s Section 404 Nationwide Permit Program.

The Food Security and the Clean Water Act both contain provisions associated with wetlands in agriculture use, known as prior converted cropland (“PCC”). However, between the two programs, determining what lands fit into the PCC condition, how that determination is made, and the purpose of that determination can be difficult to understand. Here, we discuss the PCC distinction under each program and outline key considerations for landowners and developers.

Clean Water Act Considerations:

First and foremost, the PCC exemption under theClean Water Act covers agricultural uses. Non-agriculture-related proposed development in PCC-designated areas, including residential, commercial, industrial, or energy infrastructure development, constitutes a “change in use” that would make the PCC area no longer available for agriculture production. A change in use can also include a situation where PCC areas are left idle for several years, allowing the area to revert to its previous wetland status. This “idling” removes the PCC exemption.

Most farming activities do not require Clean Water Act permits to authorize a discharge into jurisdictional wetlands because Section 404(f) exempts normal farming, silviculture, and ranching. However, a permit is required to bring a wetland into agricultural production or convert an agricultural wetland into a non-wetland area unless that area meets the PCC exemption criteria.

Therefore, to comply with the Clean Water Act permitting requirements, landowners must determine if parts of their property include areas exhibiting wetland characteristics that were previously converted into agricultural use. Although the Clean Water Act does not define PCC, the U.S. Army Corps of Engineers (“USACE”) can make case-by-case determinations using field surveys and historical data. USACE assesses this information to determine if the area meets USDA’s Natural Resources Conservation Service (“NRCS”) definition of PCC: “wetlands that were both manipulated (drained or otherwise physically altered to remove excess water from the land) and cropped before December 23, 1985.”

A properly designated PCC means the developer or landowner does not need to obtain a Clean Water Act 404 Permit to expand or enhance agricultural use.

Swampbuster Program Considerations:

Introduced through the Food Security Act and administered by the U.S. Department of Agriculture (“USDA”), the Swambuster Program (“Program”) functions as a conservation compliance program, encouraging farmers to conserve wetlands on their property in exchange for USDA benefits (like farm support payments, loans, and conservation programs) and federal crop insurance premium subsidies. In general, the Program allows for the continuation of most existing farming practices as long as new wetlands are not converted and wetland drainage is not increased. Failing to abide by the Program and improperly converting wetlands to farmland presents considerable consequences for landowners and raises many questions about the process and procedures for determining the status of wetlands on their property, conversion exemptions, the burden of proof, mitigation eligibility, and appeals.

The basic tenants of the Program include withholding federal farm program benefits from any landowner that conducts the following actions:

• Plants an agricultural commodity on a converted wetland that was converted by drainage, dredging, leveling, cropped, or any other means after December 23, 1985;

• Converts a wetland for the purpose of or to make agricultural commodity production after November 28, 1990.

Similarly, to evaluate land’s eligibility for the PCC exemption under the Clean Water Act, and to thus determine whether any portions of the property need to be held out of agricultural production, an NRCS agent can help assess the property for evidence of a wetland, including by examining surrounding areas for hydrophytic vegetation, topographic position, particular soils, and hydrology.

If the gathered evidence shows that the land in question was converted before December 23, 1985, the land is considered a PCC. These PCC lands are suitable for increased agricultural development without losing the benefits of the federal farm program.

If the landowner does not properly analyze the land to be planted, the landowner risks running afoul of the two provisions of the Program.

Relationship between the Swampbuster Program and Clean Water Act:

USACE and USDA have a history of publishing guidance and memorandums of agreement attempting to promote consistency between the programs. However, some of the efforts lead to further confusion, particularly about the criteria for determining when PCC lands lose their exclusion status: abandonment under the Clean Water Act compared to change in use under the Program. In January 2023, a new rule redefining “waters of the United States” changed the regulatory text to attempt to improve the consistency between the Clean Water Act and Food Safety Act’s use of PCC. Specifically, under the new rule, a PCC designated by the NRCS can qualify as a proper exclusion under the Clean Water Act.

To avoid noncompliance penalties, landowners should consider both the Clean Water Act permitting requirements and the implications of losing federal farm benefits under the Program before moving forward with agricultural field expansion or non-agricultural developments.

88 Fed. Reg. 3004

[View source.]