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Updated February 11, 2020
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 into regulation the
select federal farm program benefits. Both FSA and CWA
existing policy that PCC are not WOTUS (58 Federal
Section 404 regulations include exceptions to their
Register 45008). In addition, in the preamble to the rule, the
requirements for prior converted cropland (PCC). PCC
agencies referenced the definition of PCC from the National
determinations are complex. While both programs include
FSA 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
In 2015, the Corps and EPA promulgated the Clean Water
determined what qualifies as PCC has diverged over time.
Rule (80 Federal Register 37054), which established a new
Clean Water Act
definition for WOTUS. It maintained the PCC exclusion as
it existed in the 1993 rule and similarly did not define the
Under the CWA, discharges of pollutants into WOTUS are
term or include abandonment criteria in the rule itself.
unlawful unless authorized by a permit. Section 404 permits
However, on January 23, 2020, the Corps and EPA
authorize discharges of dredged or fill material into
finalized a new rule—the Navigable Waters Protection
WOTUS, including wetlands (33 U.S.C. §1344). The Army
Rule—to revise the definition of WOTUS, including
Corps of Engineers and the U.S. Environmental Protection
revisions to how PCC is defined and determined. (See
Agency (EPA) are both responsible for implementing
“PCC in the Navigable Waters Protection Rule.”)
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 nonwetland 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
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Prior Converted Cropland Under the Clean Water Act
the Swampbuster provision and ineligible for certain USDA
The 2005 guidance reiterated that a PCC determination
benefits (e.g., farm program support payments, disaster
made by NRCS remains valid for Swampbuster purposes so
assistance, loans, and conservation programs). In addition,
long as the area is devoted to an agricultural use. It also
farmers who plant or produce an agricultural commodity on
stated that if the land changes to a nonagricultural use, the
a wetland or make agricultural production possible after
PCC determination is no longer applicable and a new
February 7, 2014, are in violation and also ineligible for
wetlands determination is required for CWA purposes.
federal crop insurance premium subsidies. A number of
In 2009, the Corps Jacksonville District prepared an issue
exemptions to Swampbuster exist, including land
paper declaring that PCC that is shifted to nonagricultural
determined to be PCC. PCC is defined in regulation (7
use becomes subject to regulation by the Corps. Corps
C.F.R. 12.2(a)) as “a converted wetland where the
headquarters affirmed this “change in use policy” as an
conversion occurred prior to December 23, 1985, an
accurate reflection of the national position of the Corps in a
agricultural commodity had been produced at least once
memorandum often referred to as the “Stockton Rules.” A
before December 23, 1985, and as of December 23, 1985,
federal court set aside the rules in 2010, finding that they
the converted wetland did not support woody vegetation
were “procedurally improper” because the Corps did not
and did not meet the hydrologic criteria for farmed
follow required notice-and-comment procedures.
wetland.”
PCC in the Navigable Waters Protection
Challenges to Consistent PCC
Rule
Determinations
The Trump Administration has taken steps to rescind and
Although the agencies overseeing the CWA Section 404
replace the 2015 Clean Water Rule with a revised definition
and Swampbuster programs have sought to achieve
of WOTUS. On October, 22, 2019, the Corps and EPA
consistency in the manner that the programs define and
published a final rule to rescind the 2015 Clean Water Rule
designate PCC, the inherently different purposes of the
and restore the regulatory definition of WOTUS as it
programs—as well as legislative changes and court
existed prior to the rule (84 Federal Register 56626). On
rulings—have presented challenges in doing so.
January 23, 2020, the Corps and EPA announced a final
In 1994, USDA, the Departments of the Interior and the
rule—the Navigable Waters Protection Rule—that
Army, and EPA entered into a memorandum of agreement
redefines WOTUS. The rule is intended to be effective 60
to promote consistency in determinations made under the
days after its publication in the Federal Register.
two wetlands programs. However, Congress amended
The Navigable Waters Protection Rule maintains the
Swampbuster in 1996 to state that USDA certifications of
exclusion of PCC from the definition of WOTUS. In
eligibility for program benefits “shall remain valid and in
addition, it defines PCC and clarifies abandonment criteria.
effect as long as the area is devoted to an agricultural use or
PCC is defined as “any area that, prior to December 23,
until such time as the person affected by the certification
1985, was drained or otherwise manipulated for the
requests review of the certification by the Secretary” (P.L.
purpose, or having the effect, of making production of an
104-127). This created inconsistency between the wetlands
agricultural product possible.” An area would cease to be
programs, as the abandonment criteria for each were now
considered PCC for purposes of the CWA when both the
different. In addition, 2002 amendments to Swampbuster
PCC “is not used for, or in support of, agricultural purposes
(P.L. 107-171) prohibited NRCS from sharing confidential
at least once in the immediately preceding five years” and
producer information to agencies outside USDA, making it
the land reverts to wetland status, as defined in the rule.
illegal for NRCS to provide wetland delineations and
The Navigable Waters Protection Rule text does not define
determinations to the Corps and EPA for CWA permitting
agricultural purposes for determining abandonment.
and enforcement. Furthermore, in Solid Waste Agency of
However, the rule’s preamble states that “agricultural
Northern Cook County v. U.S. Army Corps of Engineers
purposes include land use that makes production of an
(2001), the Supreme Court interpreted the scope of
agricultural product possible, including but not limited to
WOTUS subject to the CWA more narrowly than the Corps
grazing and haying.” It also states that cropland left idle or
had previously. The agencies interpreted the ruling to mean
fallow for conservation or agricultural purposes for any
that some isolated wetlands may no longer be regulated as
period of time remains in agricultural use and maintains
WOTUS under the CWA but may still be subject to
PCC status. The term agricultural purposes appears to
Swampbuster. These changes and the Court’s ruling
broaden the PCC exception for CWA purposes. In contrast,
prompted the agencies to withdraw from the 1994
an area was required to be used for the production of an
memorandum in 2005.
agricultural commodity under the abandonment criteria
Subsequently, in February 2005, USDA and the Army
included in the 1993 rule’s preamble. The Navigable
issued joint guidance to reaffirm their commitment to
Waters Protection Rule also states that the Corps and EPA
ensuring the wetlands programs are administered in a way
will recognize PCC designations made by the Secretary of
that minimizes impacts on affected landowners while
Agriculture. It is unclear how this aspect of the proposal
protecting wetlands. They acknowledged that “because of
would be implemented considering the challenges the
the differences now existing between the CWA and FSA on
agencies currently face in making consistent PCC
the jurisdictional status of certain wetlands (e.g., prior
determinations.
converted or isolated wetlands may be regulated by one
agency but not the other), it is frequently impossible for one
Laura Gatz, Analyst in Environmental Policy
lead agency to make determinations that are valid for the
Megan Stubbs, Specialist in Agricultural Conservation and
administration of both laws.”
Natural Resources Policy
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Prior Converted Cropland Under the Clean Water Act
IF11136
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