Updated February 11April 28, 2020
Prior Converted Cropland Under the Clean Water Act
For decades, the value of wetlands and efforts to protect
them have been recognized in different ways through
national policies, federal laws, and regulations. The central
federal regulatory program, authorized in Section 404 of the
Clean Water Act (CWA), requires permits for the discharge
of dredged or fill material (e.g., sand, soil, excavated
material) into wetlands that are considered “waters of the
United States” (WOTUS). Also, the Food Security Act
(FSA) of 1985—enacted on December 23, 1985—included
a wetland conservation provision (Swampbuster) that
indirectly protects wetlands by making producers who farm
or convert wetlands to agricultural production ineligible for
select federal farm program benefits. Both FSA and CWA
Section 404 regulations include exceptions to their
requirements for prior converted cropland (PCC). PCC
determinations are complex. While both programs include
exceptions for PCC, determinations are made under
separate authorities and for different programmatic
purposes. This has created confusion for affected
landowners, who argue that greater consistency among PCC
determinations is needed. It has also generated
congressional interest in clarifying the issue.
What Is PCC?
The CWA Section 404 permitting and “Swampbuster”
programs both require the administering agencies to make
certain determinations about wetland areas, including
whether an area qualifies as PCC. While historically the
agencies defined PCC similarly, the way the agencies have
determined what qualifies as PCC has diverged over time.
Clean Water Act
Under the CWA, discharges of pollutants into WOTUS are
unlawful unless authorized by a permit. Section 404 permits
authorize discharges of dredged or fill material into
WOTUS, including wetlands (33 U.S.C. §1344). The Army
Corps of Engineers and the U.S. Environmental Protection
Agency (EPA) are both responsible for implementing
aspects of the CWA Section 404 permitting program.
Guidance Letter 90-07, which created one of the first direct
Most routine, ongoing farming activities do not require
CWA Section 404 permits. CWA Section 404(f) exempts
normal farming, silviculture, and ranching from permitting
requirements. However, if a farming activity is associated
with bringing a WOTUS into a new use where the flow,
circulation, or reach of that water might be affected (e.g.,
bringing a wetland into agricultural production or
converting an agricultural wetland into a nonwetland area),
that activity would require a permit.
The CWA does not define or mention PCC explicitly.
However, CWA regulations exclude PCC from the
definition of WOTUS and therefore the act’s permitting
requirements. In 1990, the Corps issued Regulatory
Guidance Letter 90-07, which created one of the first direct
links to Swampbuster. It clarified that PCC, as defined by
U.S. Department of Agriculture’s (USDA) Natural
Resources Conservation Service (NRCS) in its 1988
National FSA Manual, are not subject to regulation under
CWA Section 404. The manual defines PCC as “wetlands
which that “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.”
In 1993, the Corps and EPA codified into regulation the
existing policy that PCC are not WOTUS (58 Federal
Register 45008). In addition, in the preamble to the rule, the
agencies referenced the definition of PCC from the National
FSA Manual. They also indicated that any PCC that were
abandoned, per the NRCS provisions on abandonment, and
reverted back to wetlands could be “recaptured” and again
subject to CWA regulation. Specifically, per the preamble,
PCC that “now meets wetland criteria is considered to be
abandoned unless: For once in every five years the area has
been used for the production of an agricultural commodity,
or the area has been used and will continue to be used for
the production of an agricultural commodity in a commonly
used rotation with aquaculture, grasses, legumes, or pasture
production.” Although the definition and abandonment
criteria were included in the rule’s preamble, they are not
included in Corps and EPA regulations.
In 2015, the Corps and EPA promulgated the Clean Water
Rule (80 Federal Register 37054), which established a new
definition for WOTUS. It maintained the PCC exclusion as
it existed in the 1993 rule and similarly did not define the
term or include abandonment criteria in the rule itself.
However, on January 23, 2020, the Corps and EPA
finalized a new rule—the Navigable Waters Protection
Rule—to revise the definition of WOTUS, including
revisions to how PCC is defined and determined. (See
“PCC in the Navigable Waters Protection Rule.”)
Most routine, ongoing farming activities do not require
CWA Section 404 permits. CWA Section 404(f) exempts
normal farming, silviculture, and ranching from permitting
requirements. However, if a farming activity is associated
with bringing a WOTUS into a new use where the flow,
circulation, or reach of that water might be affected (e.g.,
bringing a wetland into agricultural production or
converting an agricultural wetland into a nonwetland area),
that activity would require a permit.
Food Security Act, Swampbuster Provision
The Swampbuster provision is administered by USDA with
technical determinations made by NRCS. Originally
authorized in Title XII of the 1985 FSA (16 U.S.C. §§3801
et seq.), Swampbuster makes USDA program participants
ineligible to receive select USDA program benefits if they
farm on or alter wetlands. Thus, Swampbuster does not
prohibit the altering of a wetland but rather disincentivizes
doing so by withholding a number of federal payments that
benefit agricultural production.
The CWA does not define or mention PCC explicitly.
However, CWA regulations exclude PCC from the
definition of WOTUS and therefore the act’s permitting
requirements. In 1990, the Corps issued Regulatory
Generally, farmers who plant a program crop on a wetland
converted after December 23, 1985, or who convert
wetlands making agricultural commodity production
possible after November 28, 1990, would be in violation of
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Prior Converted Cropland Under the Clean Water Act
the Swampbuster provision and ineligible for certain USDA
benefits (e.g., farm program support payments, disaster
assistance, loans, and
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Prior Converted Cropland Under the Clean Water Act
conservation programs). In addition,
farmers who plant or
produce an agricultural commodity on
a wetland or make
agricultural production possible after
February 7, 2014, are
in violation and also ineligible for
federal crop insurance
premium subsidies. A number of
exemptions to
Swampbuster exist, including land
determined to be PCC.
PCC is defined in regulation (7
C.F.R. 12.2(a)) 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.”
Challenges to Consistent PCC
Determinations
Although the agencies overseeing the CWA Section 404
and Swampbuster programs have sought to achieve
consistency in the manner that the programs define and
designate PCC, the inherently different purposes of the
programs—as well as legislative changes and court
rulings—have presented challenges in doing so.
In 1994, USDA, the Departments of the Interior and the
Army, and EPA entered into a memorandum of agreement
to promote consistency in determinations made under the
two wetlands programs. However, Congress amended
Swampbuster in 1996 to state that USDA certifications of
eligibility for program benefits “shall remain valid and in
effect as long as the area is devoted to an agricultural use or
until such time as the person affected by the certification
requests review of the certification by the Secretary” (P.L.
104-127). This created inconsistency between the wetlands
programs, as the abandonment criteria for each were now
different. In addition, 2002 amendments to Swampbuster
(P.L. 107-171) prohibited NRCS from sharing confidential
producer information to agencies outside USDA, making it
illegal for NRCS to provide wetland delineations and
determinations to the Corps and EPA for CWA permitting
and enforcement. Furthermore, in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers
(2001), the Supreme Court interpreted the scope of
WOTUS subject to the CWA more narrowly than the Corps
had previously. The agencies interpreted the ruling to mean
that some isolated wetlands may no longer be regulated as
WOTUS under the CWA but may still be subject to
Swampbuster. These changes and the Court’s ruling
prompted the agencies to withdraw from the 1994
memorandum in 2005.
Subsequently, in February 2005, USDA and the Army
issued joint guidance to reaffirm their commitment to
ensuring the wetlands programs are administered in a way
that minimizes impacts on affected landowners while
protecting wetlands. They acknowledged that “because of
the differences now existing between the CWA and FSA on
the jurisdictional status of certain wetlands (e.g., prior
converted or isolated wetlands may be regulated by one
agency but not the other), it is frequently impossible for one
lead agency to make determinations that are valid for the
administration of both laws.”
The 2005 guidance reiterated that a PCC determination
made by NRCS remains valid for Swampbuster purposes so
long as the area is devoted to an agricultural use. It also
stated that if the land changes to a nonagricultural use, the
PCC determination is no longer applicable, and a new
wetlands determination is required for CWA purposes.
In 2009, the Corps Jacksonville District prepared an issue
paper declaring that PCC that is shifted to nonagricultural
use becomes subject to regulation by the Corps. Corps
headquarters affirmed this “change in use policy” as an
accurate reflection of the national position of the Corps in a
memorandum often referred to as the “Stockton Rules.” A
federal court set aside the rules in 2010, finding that they
were “procedurally improper” because the Corps did not
follow required notice-and-comment procedures.
On January 28, 2020, the Army and NRCS issued a joint
memorandum rescinding the 2005 guidance. According to
the memorandum, the agencies intend to issue new
guidance on this topic in the near future.
PCC in the Navigable Waters Protection
Rule
The Trump Administration has taken steps to rescind and
replace the 2015 Clean Water Rule with a revised definition
of WOTUS. On October, 22, 2019, the Corps and EPA
published a final rule to rescind the 2015 Clean Water Rule
and restore the regulatory definition of WOTUS as it
existed prior to the rule (84 Federal Register 56626). On
January 23April 21, 2020, the Corps and EPA announcedpublished a final
rule—
the Navigable Waters Protection Rule—that
redefines WOTUS. The rule is intended to be effective 60
days after its publication in the Federal Register redefines
WOTUS (85 Federal Register 22250). The rule is set to be
effective on June 22, 2020.
The Navigable Waters Protection Rule maintains the
exclusion of PCC from the definition of WOTUS. In
addition, it defines PCC and clarifies abandonment criteria.
PCC is defined as “any area that, prior to December 23,
1985, was drained or otherwise manipulated for the
purpose, or having the effect, of making production of an
agricultural product possible.” An area would cease to be
considered PCC for purposes of the CWA when both the
PCC “is not used for, or in support of, agricultural purposes
at least once in the immediately preceding five years” and
the land reverts to wetland status, as defined in the rule.
The Navigable Waters Protection Rule text does not define
agricultural purposes for determining abandonment.
However, the rule’s preamble states that “agricultural
purposes include land use that makes production of an
agricultural product possible, including but not limited to
grazing and haying.” It also states that cropland left idle or
fallow for conservation or agricultural purposes for any
period of time remains in agricultural use and maintains
PCC status. The term agricultural purposes appears to
broaden the PCC exception for CWA purposes. In contrast,
an area was required to be used for the production of an
agricultural commodity under the abandonment criteria
included in the 1993 rule’s preamble. The Navigable
Waters Protection Rule also states that the Corps and EPA
will recognize PCC designations made by the Secretary of
Agriculture. It is unclear how this aspect of the proposal
would be rule will be
implemented considering the challenges the
agencies agencies
currently face in making consistent PCC
determinations.
Laura Gatz, Analyst in Environmental Policy
Megan Stubbs, Specialist in Agricultural Conservation and
Natural Resources Policy
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Prior Converted Cropland Under the Clean Water Act
IF11136
Megan Stubbs, Specialist in Agricultural Conservation and
Natural Resources Policy
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