The Wetland Conservation provisions of the Food Security Act of 1985, known colloquially as “Swampbuster,” introduced a new program to promote the conservation of wetlands on agricultural land. Under the Swampbuster program, eligibility for certain United States Department of Agriculture (“USDA”) benefits is contingent on compliance with the program’s conservation requirements. To remain in compliance with Swampbuster, farmers must refrain from converting wetlands into land that could be used for crop production. However, Swampbuster also contained a variety of exemptions that would prevent a farmer from losing eligibility with USDA programs even if it is determined that a converted wetland is present on the farmer’s property. One of those exemptions applies specifically to prior-converted cropland (“PCC”), the term used to describe wetlands that were converted to cropland status before Swampbuster became law. The PCC exemption was later incorporated into the wetland regulation provision of the Clean Water Act (“CWA”) so that areas designated as PCC did not require a CWA permit in order to be used as cropland. Inclusion of the PCC exemption in the CWA grants farmers assurance that they will not face sudden and unexpected regulatory requirements.
Importantly, there are certain circumstances under which an area identified as PCC can lose its PCC status. This tends to occur when a designated PCC reverts back to a wetland or is no longer being used to produce an agricultural commodity. However, it is not always completely clear when the loss of PCC status occurs or what farmers should do to maintain PCC status in certain situations. While PCC are treated largely the same under both Swampbuster and the CWA, there are some crucial differences in regulation between the two programs that can result in an area losing PCC status for one but not the other. Understanding the law surrounding PCC can help agricultural producers remain informed and avoid unexpected regulation.
The PCC Exclusion
Although both Swampbuster and the CWA include a PCC exclusion, the programs identify and incorporate the exclusion slightly differently.
Swampbuster
According to the text of Swampbuster, “no person shall become ineligible under […] this program […] as the result of the production of an agricultural commodity on […] a converted wetland if the conversion of the wetland was commenced before December 23, 1985.” 16 U.S.C. § 3822(b)(1)(A). USDA regulations go on to define PCC specifically as “a converted wetland where the conversion occurred prior to December 23, 1985, an agricultural commodity had been produced at least once before December 23, 1985, the converted wetland did not support woody vegetation and did not meet the hydrologic criteria for farmed wetland.” 7 C.F.R. 12.2(a)(8). In other words, for the purposes of Swampbuster, a PCC is an area that had once been a wetland, but before December 23, 1985, had been used to produce an agricultural commodity, could still be used to produce an agricultural commodity, and no longer supported any recognized wetland characteristics. Areas designated as PCC are exempt from regulation under Swampbuster. Agricultural producers that have PCC on their property can continue to farm that area without concern that they will come out of compliance with Swampbuster and lose USDA benefits.
Clean Water Act
The definition of PCC was incorporated into CWA implementation by a regulatory guidance letter issued by the U.S. Army Corps of Engineers (“the Corps”) in 1990. Under the CWA, it is illegal to introduce pollution from a fixed point source into protected “waters of the United States” (“WOTUS”) without a permit issued by either the Environmental Protection Agency (“EPA”) or the Corps. Specifically, the Corps administers the CWA section 404 permitting program which covers all wetlands included in the definition of WOTUS. While the CWA does not explicitly mention or define PCC, Regulatory Guidance Letter 90-7 issued by the Corps in 1990 provided that any area designated as PCC for the purposes of Swampbuster would be exempt from regulation under the CWA. In that letter, the Corps defined PCC for purposes of the CWA as “wetlands which were both manipulated (drained or otherwise physically altered to remove excess water from the land) and cropped before 23 December 1985, to the extent that they no longer exhibit important wetland values.” The Guidance Letter also clarified that while the Corps retains authority to make final determinations on whether an area is subject to regulation under the CWA section 404 permitting program, it would rely on PCC designations made by USDA. If an area was designated as PCC for the purposes of Swampbuster, it would be exempt from CWA section 404 regulation.
In 1993, the Corps formally codified its policy on PCC under the CWA. There, the Corps clarified that areas designated as PCC would be excluded from the definition of WOTUS and therefore be exempt from permitting requirements under the CWA. 58 Fed. Reg. 45008. Additionally, in the preamble to the rule, the Corps once again noted that any PCC designations made by USDA for the purposes of Swampbuster would also be considered PCC for the purposes of the CWA. Since 1993, every update to the definition of WOTUS has maintained the PCC exclusion. If a farmer has a designated PCC on their property, they may continue using that area to produce an agricultural commodity without concern that they are violating the CWA.
Swampbuster and the CWA both exclude designated PCC areas from regulation. An agricultural producer with a designated PCC can continue to farm the area as normal without fear that they will lose access to USDA program benefits or be subject to an enforcement action from the Corps or EPA. However, a one-time designation of PCC status does not mean that an area will be considered a PCC forever. There are circumstances under which an area can lose its PCC status and once again be subject to regulation under Swampbuster and the CWA.
Loss of PCC Status
While Swampbuster and the CWA treat PCC mostly the same, there are some slight differences between the programs. Those differences are particularly relevant when it comes to loss of PCC status.
Swampbuster
For the purposes of Swampbuster, a designated PCC area will lose its PCC status if it is found to have been “abandoned.” According to the National Food Security Act Manual, a designated PCC will be considered abandoned if the area exhibits wetland criteria and there has been no agricultural commodity produced in the area for five successive years. Both conditions must be present in order for a designated PCC to lose its PCC status and be considered a wetland under Swampbuster.
According to USDA regulations, a wetland is an area that has the follow: (1) a predominance of hydric soils; (2) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (3) under normal circumstances does support a prevalence of such vegetation. 7 C.F.R. § 12.2. An area is considered to have wetland criteria if all three of those conditions are met. If those wetland criteria are present on a PCC, that weighs in favor of the area losing its PCC status for the purposes of Swampbuster. However, presence of wetland criteria on a PCC is not enough on its own to result in loss of status. The area must have also gone five years in a row without being used to produce an agricultural commodity. USDA regulations define “agricultural commodity” as “any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters or sugarcane.” 7 C.F.R. § 12.2. If a designated PCC has wetland criteria and has gone five successive years without producing a crop that is planted through tilling the soil, then it is at risk of losing its PCC status and is likely to be considered a wetland for the purposes of Swampbuster. If an area that was a designated PCC under Swampbuster loses its status and becomes a wetland, an agricultural producer who subsequently uses the area to produce a crop could be found to be in violation of Swampbuster and lose access to certain USDA benefits.
However, while the abandonment process under Swampbuster appears straightforward, there is some question as to whether PCC can ever truly be abandoned. The text of Swampbuster includes a series of exemptions to abandonment, including exemptions that apply specifically to the abandonment of PCC. Specifically, the statute provides that no person will be found in violation of Swampbuster if a wetland previously identified as PCC returns to wetland status as the result of “(i) the lack of maintenance of drainage, dikes, levees, or similar structures; (ii) a lack of management of the lands containing the wetland; or (iii) circumstances beyond the control of the person.” 16 U.S.C. § 3822 (b)(2)(D). Those exemptions are considered to be relatively broad and can encompass a wide range of circumstances. An area designated as PCC could mee the criteria for abandonment – revert back to wetland characteristics and go five successive years without producing an agricultural commodity – but if one of the above three exemptions applies, the area will not be considered abandoned under Swampbuster and will retain its PCC status.
Clean Water Act
Loss of PCC status functions slightly differently for the CWA than it does for Swampbuster. Under Swampbuster, whether an area is at risk of losing its PCC status hinges on the concept of “abandonment.” For purposes of the CWA, loss of PCC status occurs if there has been a “change in use.”
According to a joint memo issued by the Corps and the USDA’s Natural Resources Conservation Service in 2022, a designation of PCC for purposes of the CWA will “last so long as an area is available for the production of agricultural commodities, but ceas[e] upon a ‘change in use.’” The memo clarifies that, in this instance, “change in use” refers to “an action that would make the prior converted cropland no longer available for the production on an agricultural commodity[.]” This differs from the Swampbuster “abandonment” rule which requires an area to exhibit wetland criteria and gone five successive years without being used to produce an agricultural commodity in order to lose PCC status. For the CWA, loss of PCC status occurs when the area is no longer available for the production of an agricultural commodity.
In its memo, the Corps notes that it uses the same definition of agricultural commodity used by USDA. “Any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane” is considered an agricultural commodity. The memo provides additional context, identifying some specific activities that the Corps will regard as a change in use that makes an area unavailable for production of an agricultural commodity. Development for residential, commercial, or industrial use; mining; energy infrastructure; or other non-agricultural uses would all constitute a change in use that could result in an area losing its PCC status. The memo also provides examples of activities that would not be considered a change in use, including crop production for food, fiber, or horticultural productions; haying or crazing; idling an area in compliance with USDA programs or conservation sues; cropland rotations into long-term agroforestry; idling land for soil recovery following a natural disaster; irrigation tailwater storage; crawfish farming; cranberry bogs or other perennial crops; nutrient retention; and diversion from crop production in order to prevent erosion. Provided that those activities kept the area available for future production of agricultural commodities, the Corps would not see them as a change in use that would risk the loss of PCC status.
Finally, the Corps notes that just because an area loses its PCC status for purposes of the CWA does not mean that the area will automatically be treated as a wetland that is subject to CWA jurisdiction. The Corps stresses that an area still needs to meet the definition of WOTUS in order to be regulated under the CWA’s permitting program. In 2023, the United States Supreme Court issued the landmark ruling Sackett v. EPA, No. 21-454 (2023). There, the Court held that only those wetlands that share an unbroken surface water connection with a water body that had already been designated as a WOTUS could fall under CWA permitting jurisdiction. Following that decision, an isolated wetland that does not share a surface connection with another body of water may not be considered a WOTUS and therefore will not be subject to CWA permitting jurisdiction. Because of that limitation on which wetlands may be described as WOTUS, an area may lose its PCC status for purposes of the CWA but still not be subject to CWA permitting jurisdiction if it does not share an unbroken surface water connection with another body of water that is itself recognized as a WOTUS.
Conclusion
In an effort to balance agricultural interests with environmental concerns, both Swampbuster and the CWA exclude PCC from regulation. However, just because an area was once designated as PCC does not mean it will retain that status in perpetuity. An area can lose PCC status for the purposes of Swampbuster if it has been abandoned, and for the purposes of the CWA if it has experienced a change in use. Because the standard for abandonment differs from the standard for change in use, it is possible that an area could lose PCC status under one program but not the other. Farmers with designated PCC on their property should be aware of the ways in which Swampbuster and the CWA treat PCC in order to avoid unexpected regulation.
To read the text of Swampbuster, click here.
To read the text of the CWA, click here.
For more National Agricultural Law Center resources on Swampbuster, click here.
For more National Agricultural Law Center resources on the CWA, click here.