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March 14, 2019
Prior Converted Cropland Under the Clean Water Act
For decades, the value of wetlands and efforts to protect
Guidance Letter 90-07, which created one of the first direct
them have been recognized in different ways through
links to Swampbuster. It clarified that PCC, as defined by
national policies, federal laws, and regulations. The central
U.S. Department of Agriculture’s (USDA) Natural
federal regulatory program, authorized in Section 404 of the
Resources Conservation Service (NRCS) in its 1988
Clean Water Act (CWA), requires permits for the discharge
National FSA Manual, are not subject to regulation under
of dredged or fill material (e.g., sand, soil, excavated
CWA Section 404. The manual defines PCC as “wetlands
material) into wetlands that are considered “waters of the
which were both manipulated (drained or otherwise
United States” (WOTUS). Also, the Food Security Act
physically altered to remove excess water from the land)
(FSA) of 1985—enacted on December 23, 1985—included
and cropped before 23 December 1985, to the extent that
a wetland conservation provision (Swampbuster) that
they no longer exhibit important wetland values.”
indirectly protects wetlands by making producers who farm
or convert wetlands to agricultural production ineligible for
In 1993, the Corps and EPA codified the existing policy
select federal farm program benefits. Both FSA and CWA
that PCC are not WOTUS (58 Federal Register 45008). In
Section 404 regulations include exceptions to their
addition, in the preamble to the rule, the agencies
requirements for prior converted cropland (PCC). PCC
referenced the definition of PCC from the National FSA
determinations are complex. While both programs include
Manual. They also indicated that any PCC that were
exceptions for PCC, determinations are made under
abandoned, per the NRCS provisions on abandonment, and
separate authorities and for different programmatic
reverted back to wetlands could be “recaptured” and again
purposes. This has created confusion for affected
subject to CWA regulation. Specifically, per the preamble,
landowners, who argue that greater consistency among PCC
PCC that “now meets wetland criteria is considered to be
determinations is needed. It has also generated
abandoned unless: For once in every five years the area has
congressional interest in clarifying the issue.
been used for the production of an agricultural commodity,
or the area has been used and will continue to be used for
What Is PCC?
the production of an agricultural commodity in a commonly
The CWA Section 404 permitting and “Swampbuster”
used rotation with aquaculture, grasses, legumes, or pasture
programs both require the administering agencies to make
production.” Although the definition and abandonment
certain determinations about wetland areas, including
criteria were included in the rule’s preamble, they are not
whether an area qualifies as PCC. While historically the
included in Corps and EPA regulations.
agencies defined PCC similarly, the way the agencies have
determined what qualifies as PCC has diverged over time.
In 2015, the Corps and EPA promulgated the Clean Water
Rule (80 Federal Register 37054), which established a new
Clean Water Act
definition for WOTUS. It maintained the PCC exclusion as
Under the CWA, discharges of pollutants into WOTUS are
it existed in the 1993 rule and similarly did not define the
unlawful unless authorized by a permit. Section 404 permits
term or include abandonment criteria in the rule itself.
authorize discharges of dredged or fill material into
However, in February 2019, the Corps and EPA proposed
WOTUS, including wetlands (33 U.S.C. §1344). The Army
to revise the definition of WOTUS, including revisions to
Corps of Engineers and the U.S. Environmental Protection
how PCC is defined and determined. (See “PCC in
Agency (EPA) are both responsible for implementing
Proposed Rule to Revise WOTUS.”)
aspects of the CWA Section 404 permitting program.
Food Security Act, Swampbuster Provision
Most routine, ongoing farming activities do not require
The Swampbuster provision is administered by USDA with
CWA Section 404 permits. CWA Section 404(f) exempts
technical determinations made by NRCS. Originally
normal farming, silviculture, and ranching from permitting
authorized in Title XII of the 1985 FSA (16 U.S.C. §§3801
requirements. However, if a farming activity is associated
et seq.), Swampbuster makes USDA program participants
with bringing a WOTUS into a new use where the flow,
ineligible to receive select USDA program benefits if they
circulation, or reach of that water might be affected (e.g.,
farm on or alter wetlands. Thus, Swampbuster does not
bringing a wetland into agricultural production or
prohibit the altering of a wetland but rather disincentivizes
converting an agricultural wetland into a non-wetland area),
doing so by withholding a number of federal payments that
that activity would require a permit.
benefit agricultural production.
The CWA does not define or mention PCC explicitly.
Generally, farmers who plant a program crop on a wetland
However, CWA regulations exclude PCC from the
converted after December 23, 1985, or who convert
definition of WOTUS and therefore the act’s permitting
wetlands making agricultural commodity production
requirements. In 1990, the Corps issued Regulatory
possible after November 28, 1990, would be in violation of
https://crsreports.congress.gov
Prior Converted Cropland Under the Clean Water Act
the Swampbuster provision and ineligible for certain USDA
lead agency to make determinations that are valid for the
benefits (e.g., farm program support payments, disaster
administration of both laws.”
assistance, loans, and conservation programs). In addition,
farmers who plant or produce an agricultural commodity on
The 2005 guidance reiterated that a PCC determination
a wetland or make agricultural production possible after
made by NRCS remains valid for Swampbuster purposes so
February 7, 2014, are in violation and also ineligible for
long as the area is devoted to an agricultural use. It also
federal crop insurance premium subsidies. A number of
stated that if the land changes to a non-agricultural use, the
exemptions to Swampbuster exist, including land
PCC determination is no longer applicable and a new
determined to be PCC. PCC is defined in regulation (7
wetlands determination is required for CWA purposes.
C.F.R. 12.2(a)) as “a converted wetland where the
In 2009, the Corps Jacksonville District prepared an issue
conversion occurred prior to December 23, 1985, an
paper declaring that PCC that is shifted to non-agricultural
agricultural commodity had been produced at least once
use becomes subject to regulation by the Corps. Corps
before December 23, 1985, and as of December 23, 1985,
headquarters affirmed this “change in use policy” as an
the converted wetland did not support woody vegetation
accurate reflection of the national position of the Corps in a
and did not meet the hydrologic criteria for farmed
memorandum often referred to as the “Stockton Rules.” A
wetland.”
federal court set aside the rules in 2010, finding that they
Challenges to Consistent PCC
were “procedurally improper” because the Corps did not
Determinations
follow required notice-and-comment procedures.
Although the agencies overseeing the CWA Section 404
PCC in Proposed Rule to Revise
and Swampbuster programs have sought to achieve
WOTUS
consistency in the manner that the programs define and
The Trump Administration has taken steps to rescind and
designate PCC, the inherently different purposes of the
replace the 2015 Clean Water Rule with a revised definition
programs—as well as legislative changes and court
of WOTUS. In July 2017, the Corps and EPA published a
rulings—have presented challenges in doing so.
proposed rule to rescind the 2015 Clean Water Rule and
restore the regulatory definition of WOTUS as it existed
In 1994, USDA, the Departments of the Interior and the
prior to the rule (82 Federal Register 34899). A final rule
Army, and EPA entered into a memorandum of agreement
has not yet been issued. On February 14, 2019, the Corps
to promote consistency in determinations made under the
and EPA published a proposed rule that includes a new
two wetlands programs. However, Congress amended
definition of WOTUS (84 Federal Register 4154).
Swampbuster in 1996 to state that USDA certifications of
eligibility for program benefits “shall remain valid and in
The 2019 proposed rule would maintain the exclusion of
effect as long as the area is devoted to an agricultural use or
PCC from the definition of WOTUS. In addition, it would
until such time as the person affected by the certification
define PCC and clarify abandonment criteria. PCC would
requests review of the certification by the Secretary” (P.L.
be defined as “any area that, prior to December 23, 1985,
104-127). This created inconsistency between the wetlands
was drained or otherwise manipulated for the purpose, or
programs, as the abandonment criteria for each were now
having the effect, of making production of an agricultural
different. In addition, 2002 amendments to Swampbuster
product possible.” An area would cease to be considered
(P.L. 107-171) prohibited NRCS from sharing confidential
PCC for purposes of the CWA when both the PCC “is not
producer information to agencies outside USDA, making it
used for, or in support of, agricultural purposes at least once
illegal for NRCS to provide wetland delineations and
in the immediately preceding five years” and the land
determinations to the Corps and EPA for CWA permitting
reverts to wetland status, as defined in the rule.
and enforcement. Furthermore, in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers
The 2019 proposed revised WOTUS rule text does not
(2001), the Supreme Court interpreted the scope of
define agricultural purposes for determining abandonment.
WOTUS subject to the CWA more narrowly than the Corps
However, the rule’s preamble states that “agricultural
had previously. The agencies interpreted the ruling to mean
purposes include land use that makes production of an
that some isolated wetlands may no longer be regulated as
agricultural product possible, including but not limited to
grazing and haying.” It also
WOTUS under the CWA but may still be subject to
states that cropland left idle or
Swampbuster. These changes and the Court’s ruling
fallow for conservation or agricultural purposes for any
prompted the agencies to withdraw from the 1994
period of time remains in agricultural use and maintains
memorandum in 2005.
PCC status. The proposed term agricultural purposes
appears to broaden the PCC exception for CWA purposes.
Subsequently, in February 2005, USDA and the Army
In contrast, an area was required to be used for the
issued joint guidance to reaffirm their commitment to
production of an agricultural commodity under the
ensuring the wetlands programs are administered in a way
abandonment criteria included in the 1993 rule’s preamble.
that minimizes impacts on affected landowners while
The 2019 proposed revised WOTUS rule also states that the
protecting wetlands. They acknowledged that “because of
Corps and EPA will recognize PCC designations made by
the differences now existing between the CWA and FSA on
the Secretary of Agriculture. It is unclear how this aspect of
the jurisdictional status of certain wetlands (e.g., prior
the proposal would be implemented considering the
converted or isolated wetlands may be regulated by one
challenges the agencies currently face in making consistent
agency but not the other), it is frequently impossible for one
PCC determinations.
Laura Gatz, Analyst in Environmental Policy
https://crsreports.congress.gov
Prior Converted Cropland Under the Clean Water Act
Megan Stubbs, Specialist in Agricultural Conservation and
IF11136
Natural Resources Policy
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