“Swampbuster” is the name often used to refer to the section of the Highly Erodible Lands and Wetlands Conservation provisions of the Food Security Act of 1985 (“1985 Farm Bill”) that deals with wetlands. The goal of the Swampbuster program is to promote the conservation of wetlands by making eligibility for certain United States Department of Agriculture (“USDA”) benefits contingent on compliance with the conservation provisions. To remain in compliance with Swampbuster, farmers must refrain from converting wetlands into land that could be used for crop production. However, Swampbuster contains several exemptions that would prevent a farmer from losing eligibility even if it is determined that a wetland was converted for agricultural production on the farmer’s property. While these exemptions provide a safe harbor, they are often difficult to understand and apply. One exemption, known as the prior-converted cropland exemption, has proven especially challenging to apply and has often be a source of contention between farmers and USDA. To fully understand the prior-converted cropland exemption, it is necessary to understand Swampbuster and how it works. The functions of Swampbuster provide the backdrop for all its exemptions, including prior-converted cropland.
How Swampbuster Works
The Swampbuster program is administered by USDA’s Natural Resources Conservation Service (“NRCS”). The agency is tasked with identifying wetlands, and ensuring that farmers remain in compliance with the Swampbuster program. A key component of ensuring compliance with the Swampbuster program is determining whether a farmer’s land has wetlands that are subject to the program. NRCS is tasked with making these determinations, which stay in effect as long as the land is used for agricultural purposes or until the farmer requests a review. 16 § 3822 (a)(4).
To determine whether an area is a wetland for the purposes of Swampbuster, NRCS looks for the following characteristics: presence of wetland vegetation, soil that can support wetland vegetation, and the ability of the area to contain hydrologic conditions even if the vegetation has been removed. 7 C.F.R. § 12.30(c)(7). An area with all three characteristics will generally be considered a wetland. NRCS uses a variety of different tools to make wetland determinations, including soil maps, aerial photography, and precipitation data for the area.
NRCS is also responsible for determining when a wetland has been converted in violation of the Swampbuster provisions. Typically, this is done during the wetland determination process. Once NRCS determines that a farmer has violated Swampbuster by converting wetlands for agricultural production, the farmer becomes ineligible for certain USDA program benefits. However, there are multiple exemptions to the Swampbuster program which will prevent a farmer from losing USDA program eligibility, even if NRCS determines that a wetland has been converted for use in agricultural production. These exemptions are listed in the text of the Swampbuster provisions, and further detailed in its implementing regulations. Perhaps one of the most well-known exemption is the prior-converted cropland exemption, which generally applies to wetlands which were converted for agricultural use prior to Swampbuster being enacted. This post will explore that the prior-converted cropland exemption in more depth. As will be shown, it is not always immediately clear whether an area qualifies for the prior-converted cropland exemption, which can lead to confusion and litigation.
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). The regulations further define a prior-converted cropland 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, and as of 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 an area to qualify for the prior-converted cropland exemption, it must be a wetland that was converted prior to the date that Swampbuster was enacted, it must have been used for agricultural production prior to that date, and on that date it must not have supported any of the recognized wetland characteristics.
Also part of the prior-converted cropland exemption is an exemption for wetlands which were converted prior enactment Swampbuster, but which have since reverted back to wetland status. The text of Swampbuster provides an exemption from ineligibility for “a wetland previously identified as a converted wetland (if the original conversion of the wetland was commenced before December 23, 1985), but that [NRCS] determines returned to wetland status after that date…” 16 U.S.C. § 3822(b)(2)(D).
The definition of prior-converted cropland and how it applies on the ground has long been a source of dispute between NRCS and agricultural producers. In Maple Drive Farms Ltd. Partnership v. Vilsack, No. 13-1091 (6th Cir., 2015), the plaintiff challenged NRCS over a wetland determination concluding that the plaintiffs had violated Swampbuster by converting a wetland. The plaintiffs argued that the wetland in question qualified for the prior-converted cropland exemption because the plaintiffs had worked with NRCS to install drainage tiles in the area during the 1960s, and then grew commodity crops on the area until at least 1982. Although the area had reverted back to a wetland by 1985, and not farmed again until 2009, the plaintiffs argued that it fell under the exemption for prior-converted croplands that had reverted back wetland status. The plaintiffs argued that the language of 16 U.S.C. § 3822(b)(2)(D) exempted all wetlands that had been converted prior to December 23, 1985, regardless of when they reverted back to wetland status. NRCS argued that the statute only exempted prior-converted croplands that had been converted prior to December 23, 1985, and on December 23, 1985 were converted wetlands that did not have any wetland characteristics.
The judge in that case concluding that the text of Swampbuster was so ambiguous that both interpretations made sense. It ruled in favor of NRCS, concluding that because the agency’s definition was a reasonable interpretation of the statute, it would prevail. Therefore, to qualify for the prior-converted cropland exemption, an area must be been converted prior to December 23, 1985, and must have still be a converted wetland unable to support wetland characteristics on that date. However, Maple Drive Farms is an example of how complex the Swampbuster exemptions can be, and how difficult it can be to apply them.
Not only can it be challenging to accurately interpret the prior-converted cropland exemption, it can also be difficult to determine whether an area was a converted cropland on December 23, 1985 or not. The plaintiffs in Reichenbach v. U.S. Dep’t of Agric., No. 1:10-CV-994-WTL-TAB (S.D. Ind. Jan. 4, 2013) purchased the land at issue in the case in 2006. In 2007, the plaintiffs requested permission from USDA to remove timber from the property. This request prompted a visit from NRCS which ultimately resulted in a determination that roughly four and a half acres of the property were converted wetlands. The plaintiffs appealed, arguing that the area had been converted prior to December 23, 1985 and therefore qualified for the prior-converted cropland exemption. To support this claim, the plaintiffs explained that clay and plastic drainage tile had been uncovered at the site. The clay tile was related to a drainage system that county records indicated had been created in 1900, while the plastic tile was dated to 1988. The plaintiffs argued that the presence of the older clay tile indicated that the area had been a converted wetland at the time Swampbuster was enacted. However, NRCS maintained that the site had reverted back to a wetland by 1985, based on aerial photos taken from 1981 to 1987 showing that wetland vegetation was present at the site. Although the plaintiffs argued that the photos were not good enough evidence, the court concluded that it would not overturn the determination from NRCS because the plaintiffs had failed to raise their methodology argument when they appealed the NRCS determination within the agency. Because the plaintiffs failed to make their argument at the appropriate time, the court was unable to hear it and ultimately dismissed the case.
Although the court ultimately did not reach a decision about whether the methodology NRCS used to identify a wetland was appropriate, the Reichenbach case illustrates how challenging it can be to determine whether an area is a prior-converted cropland or not.
The prior-converted cropland exemption can be a useful safe harbor for farmers who are at risk of losing USDA program eligibility for Swampbuster violations on land that can be easily shown to have been a converted cropland on December 23, 1985. However, successfully proving that an area is a prior-converted wetland can be a long and complex process. Regulations passed by USDA on August 28, 2020 sought to clarifying the process by which a prior-converted cropland is identified, hopefully making it easier to apply the exemption going forward. At the moment, it is unclear how much impact the new regulations will have on the process.
To read the text of Swampbuster, click here.
To read the regulations for Swampbuster, click here.
To read the August, 2020 regulations for Swampbuster, click here.
To read the decision in Maple Drive Farms Ltd. Partnership v. Vilsack, click here.
To read the decision in Reichenbach v. U.S. Dep’t of Agric., click here.
For more National Agricultural Law Center Resources on Swampbuster, click here.