The Food Security Act of 1985 (“1985 Farm Bill”) established the Highly Erodible Lands and Wetlands Conservation program that relates to the conservation of highly erodible lands and wetlands. The portion of the program that deals specifically with wetland conservation is colloquially referred to as “Swampbuster,” is administered by the Natural Resources Conservation Service (“NRCS”) which is a part of the United States Department of Agriculture (“USDA”). Swampbuster operates by requiring participants in certain USDA programs to keep from converting wetlands to land that is capable of producing an agricultural commodity. Participants who do make such a conversion will lose the benefits they receive from the USDA programs.
While the conversion of wetland to land that can produce an agricultural commodity will generally be a violation of Swampbuster, there are many exemptions to the program that could prevent a person who has converted wetlands from losing USDA benefits. One of those exemptions, known as the prior-converted cropland exemption, was talked about in-depth here. This post will provide additional information on some of the other Swampbuster exemptions, including when NRCS is required to make a minimal effect determination, who is responsible for showing that a wetland conversion will be minimal, the scope of the exemption, and those activities identified as categorical minimal effect exemptions.
Minimal Effect Exemption
Under Swampbuster, a farmer may not become ineligible for USDA benefits despite converting a wetland, if the conversion is minimal. To qualify for the minimal effect exemption, the conversion must have “a minimal effect on the functional hydrological and biological value of the wetlands in the area, including the value to waterfowl and wildlife.” 16 U.S.C. § 3822(f)(1). NRCS is responsible for determining whether a wetland conversion falls into the minimal effect exemption. According to Swampbuster’s regulations, “NRCS shall determine whether the effect of any action of a person associated with the conversion of a wetland … has a minimal effect …” 7 C.F.R. § 12.31(e)(1).
When to Make Minimal Effects Determination
Although NRCS is tasked with determining whether a wetland conversion has had only a minimal effect, it is not always clear when the agency is required to do so. In Maple Drive Farms Ltd. Partnership v. Vilsack, No. 13-1091 (6th Cir., 2015), the plaintiff challenged NRCS over its decision that the plaintiffs had violated Swampbuster by converting a wetland. The plaintiffs argued that, not only was the conversion minimal, but that NRCS had failed to determine whether the conversion was minimal despite being presented with evidence by the plaintiffs.
The converted wetland in Maple Drive Farms had originally had drainage tiles installed during the 1960s. The plaintiffs grew commodity crops on the area until at least 1982, but the area had reverted back to a wetland by 1985. Although the plaintiffs attempted to repair the drainage tiles more than once during the 1980s and 1990s, the area was not successfully farmed again until 2009. As a result of the plaintiffs’ activity, NRCS determined that a wetland had been converted, and therefore denied the plaintiffs benefits from certain USDA programs. This caused the plaintiffs to appeal the agency’s decision, and the dispute eventually ended up in court.
Among other things, the plaintiffs argued that NRCS had violated the Swampbuster provisions by failing to analyze whether the wetland conversion would have only a minimal effect on the surrounding wetlands. Following the 2009 conversion, the plaintiff and NRCS met for a mediation over NRCS’s wetland determination. At that meeting, the plaintiffs presented NRCS with evidence that the conversion had been minimal. According to the plaintiffs, NRCS refused to review the evidence or make its own determination. The plaintiffs argued that this violated the requirement that NRCS shall make minimal effect determinations.
The Swampbuster regulations allow for two different types of minimal effect determinations, those made prior to a conversion and those made after. According to the regulations, minimal effect determinations will generally be made prior to beginning of any activity that would convert a wetland. At that point, the person wishing to perform the activities would ask NRCS to make a minimal effect determination, and NRCS would be required to make such a determination. However, the regulations also permit farmers to seek minimal effect determinations after a wetland has already been converted. In that instance, NRCS is still required to conduct a minimal effect analysis, although the burden will be on the person who requested the determination to demonstrate that the effect is minimal.
In Maple Drive Farms, the court found in favor of the plaintiff, concluding that NRCS had violated the Swampbuster provisions by refusing to conduct a minimal effect determination after the plaintiff had requested a determination be made, and presented NRCS with evidence that the conversion was minimal. According to the court, the “shall” language of the regulations required NRCS to conduct a minimal effect analysis upon a farmer’s request, even after a wetland conversion had already occurred.
Burden of Proof
As mentioned above, the Swampbuster regulations state that “[i]f a person has converted a wetland and then seeks a determination that the effect of such conversion … was minimal, the burden will be upon the person to demonstrate … that the effect was minimal.” 7 C.F.R. § 12.31(e)(1). In other words, if a person requests a minimal effect determination after they have converted a wetland, it becomes that person’s responsibility to show that the conservation had a minimal effect on the surrounding area.
This regulation was affirmed as valid by the United States Court of Appeals for the Eighth Circuit in Clark v. U.S. Dep’t of Agric., 537 F.3d 934 (8th Cir. 2008). In that case, the plaintiff converted two wetland sites on her property in violation of Swampbuster. The plaintiff did not request a minimal effect determination from NRCS prior to the conversion, nor did she request a wetland determination after the conversion had been made. Therefore, NRCS did not conduct a minimal effect determination before concluding that the plaintiff had violated Swampbuster, rendering her ineligible for certain USDA benefits. The plaintiff challenged this decision, ultimately arguing that the regulation requiring a person who has converted a wetland to show that the conversion was minimal places an unreasonable duty on the landowner.
Ultimately the court disagreed with the plaintiff’s argument, concluding that the regulation was a reasonable interpretation of the Swampbuster statute. According to the court, the statutory text does not contain any language suggesting that NRCS lacks the authority to impose a burden of proof requirement upon landowners who fail to request a minimal effect determination prior to converting a wetland. Because Congress chose to remain silent on the issue, despite the burden of proof regulation being in place for years, the court concluded that the regulation was reasonable.
Other aspects of the minimal effect exemption include the scope of the exemption, and those actions which are categorically considered to have a minimal effect.
When addressing the scope of the minimal effect exemption, the Swampbuster regulations specify that any additional action that will change the functions and values of a wetland which has a minimal effect determination must be reported to NRCS so that the agency can determine whether the effect will continue to be minimal. In other words, additional change to an area that is already under the minimal effect exemption will need additional analysis to make sure the exemption still applies. If further action results in the wetland conversion having more than a minimal effect, it is possible that the exemption will no longer apply and the landowner could be considered in violation of Swampbuster.
Additionally, the Swampbuster regulations require NRCS to identify “any categories of conversion activities and conditions which are routinely determined … to have minimal effect on wetland functions and values[.]” 7 C.F.R. § 12.31(f)(1). These activities are referred to as categorical minimal effect exemptions, and landowners who conduct them will not lose eligibility for USDA programs. Categorical minimal effect exemptions are identified at the local level, and lists of such activities will be available in local NRCS offices.
The minimal effect exemption can be helpful for farmers who wish to convert an area of wetland without violating Swampbuster. However, the exemption is only applicable to conversions that will only have a minimal impact to the hydrological and biological value of the wetland and its surrounding area. NRCS is required to make minimal effect determinations, but if the request comes after the wetland has already been converted it is the responsibility of the person making the request to show that the conversion had a minimal effect. It is also important to be aware that any additional activity on a converted wetland that falls under the minimal effect exemption could cause the area to no longer be exempted depending on the impact of the additional activity to the wetland. Finally, local NRCS offices should maintain lists of activities that are automatically exempted as categorical minimal effect exemption.
To read the text of Swampbuster, click here.
To read the minimal effect regulations, click here.
To read the decision in Maple Drive Farms Ltd. Partnership v. Vilsack, click here.
To read the decision in Clark v. U.S. Dep’t of Agric., click here.
To read the National Food Security Act manual used by NRCS to interpret Swampbuster, click here.
For more National Agricultural Law Center Resources on Swampbuster, click here.