Updated May 27, 2022
Prior Converted Cropland Under the Clean Water Act
For decades, the value of wetlands and efforts to protect
U.S. Department of Agriculture’s (USDA’s) Natural
them have been recognized in different ways through
Resources Conservation Service (NRCS) in its 1988
national policies, federal laws, and regulations. The central
National FSA Manual, are not subject to regulation under
federal regulatory program, authorized in Clean Water Act
CWA Section 404. The manual defines PCC as wetlands
(CWA) Section 404 in 1972, requires permits for
that “were both manipulated (drained or otherwise
discharges of dredged or fill material (e.g., sand, soil,
physically altered to remove excess water from the land)
excavated material) into wetlands that are considered
and cropped before 23 December 1985, to the extent that
“waters of the United States” (WOTUS). Also, the Food
they no longer exhibit important wetland values.”
Security Act (FSA) of 1985—enacted on December 23,
In 1993, the Corps and EPA codified into regulation the
1985—included a wetland conservation provision
existing policy that PCC are not WOTUS (58 Federal
(Swampbuster) that indirectly protects wetlands by making
Register 45008). In the rule’s preamble, the agencies
producers who farm or convert wetlands to agricultural
referenced the definition of PCC from the National FSA
production ineligible for selected federal farm program
Manual. They also indicated that any PCC that were
benefits. Both FSA and CWA Section 404 regulations
abandoned, per the NRCS provisions on abandonment, and
include exceptions to their requirements for prior converted
reverted back to wetlands could be “recaptured” and subject
cropland (PCC). While both include exceptions for PCC,
to CWA regulation. Specifically, per the preamble, PCC
determinations are made under separate authorities and for
that “now meets wetland criteria is considered to be
different programmatic purposes. This has created
abandoned unless: For once in every five years the area has
confusion for some affected landowners, who argue for
been used for the production of an agricultural commodity,
greater consistency among PCC determinations. It has also
or the area has been used and will continue to be used for
generated some congressional interest in aligning the
the production of an agricultural commodity in a commonly
requirements for PCC.
used rotation with aquaculture, grasses, legumes, or pasture
What Is PCC?
production.” Although the definition and abandonment
criteria were included in the rule’s preamble, they were not
The CWA Section 404 program and Swampbuster
included in Corps and EPA regulations.
provision require the administering agencies to make
certain determinations about wetland areas, including
In 2015, the Corps and EPA promulgated the Clean Water
whether an area qualifies as PCC. While historically the
Rule (80 Federal Register 37054) during the Obama
agencies defined PCC similarly, the way the agencies have
Administration, which established a revised definition for
determined what qualifies as PCC has diverged over time.
WOTUS. It maintained the PCC exclusion as it existed in
Clean Water Act
the 1993 rule and similarly did not define the term or
include abandonment criteria in the rule itself.
Under the CWA, discharges of pollutants into WOTUS are
unlawful unless authorized by a permit. Section 404 permits
In 2020, during the Trump Administration, the Corps and
authorize discharges of dredged or fill material into
EPA published the Navigable Waters Protection Rule
WOTUS, including wetlands (33 U.S.C. §1344). The Army
(NWPR) to revise the definition of WOTUS (85 Federal
Corps of Engineers (Corps) and U.S. Environmental
Register 22250). The rule maintained the PCC exclusion,
Protection Agency (EPA) are responsible for implementing
defined PCC, and clarified abandonment criteria. The
various aspects of the Section 404 permitting program.
NWPR defined PCC as “any area that, prior to December
23, 1985, was drained or otherwise manipulated for the
Most routine, ongoing farming activities do not require
purpose, or having the effect, of making production of an
CWA Section 404 permits. CWA Section 404(f) exempts
agricultural product possible.” PCC would lose its status for
normal farming, silviculture, and ranching from permitting
CWA purposes when it “is not used for, or in support of,
requirements. However, if a farming activity is associated
agricultural purposes at least once in the immediately
with bringing a WOTUS into a new use where the flow,
preceding five years” and the land reverts to wetland status.
circulation, or reach of that water might be affected (e.g.,
The NWPR text did not define agricultural purposes for
bringing a wetland into agricultural production or
determining abandonment, but the rule’s preamble stated
converting an agricultural wetland into a nonwetland area),
that “agricultural purposes include land use that makes
that activity would require a permit.
production of an agricultural product possible, including but
The CWA does not define or mention PCC explicitly.
not limited to grazing and haying.” The preamble also said
However, CWA regulations exclude PCC from the
that cropland left idle or fallow for conservation or
definition of WOTUS and therefore the act’s permitting
agricultural purposes for any period of time remains in
requirements. In 1990, the Corps issued Regulatory
agricultural use and maintains PCC status. The term
Guidance Letter 90-07, which created one of the first direct
agricultural purposes appeared to broaden the exception for
links to Swampbuster. It clarified that PCC, as defined by
CWA purposes. In contrast, under the abandonment criteria
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link to page 2 Prior Converted Cropland Under the Clean Water Act
in the 1993 rule’s preamble, an area was required to be used
to promote consistency in determinations made under the
for production of an agricultural commodity. The NWPR
two wetlands programs. However, Congress amended
also stated that the Corps and EPA would recognize PCC
Swampbuster in 1996 to state that USDA certifications of
designations made by the Secretary of Agriculture.
eligibility for program benefits “shall remain valid and in
effect as long as the area is devoted to an agricultural use or
Following the NWPR’s issuance, numerous groups filed
until such time as the person affected by the certification
lawsuits challenging it, and in September 2021, a federal
requests review of the certification by the Secretary” (P.L.
district court vacated it. The Corps and EPA then
104-127). This created inconsistency between the wetlands
announced that they would halt implementation of the rule
programs, as the criteria for determining when PCC loses
and interpret WOTUS consistent with regulations in place
its exclusion became different (i.e., abandonment for CWA
prior to 2015 (see CRS Report R46927, Redefining Waters
versus change in use for Swampbuster). In addition, 2002
of the United States (WOTUS): Recent Developments).
amendments to Swampbuster (P.L. 107-171) prohibited
During the Biden Administration, the Corps and EPA have
NRCS from sharing confidential producer information to
initiated the first of two anticipated rulemakings to revise
agencies outside USDA, making it illegal for NRCS to
the definition of WOTUS. In December 2021, the agencies
provide its wetland delineations and determinations to the
published a proposed rule to restore regulations in place
Corps and EPA for CWA permitting and enforcement.
prior to 2015, updated to reflect consideration of relevant
Furthermore, in Solid Waste Agency of Northern Cook
Supreme Court decisions (86 Federal Register 69372). The
County v. U.S. Army Corps of Engineers (2001), the
2021 proposal includes the PCC exclusion as published in
Supreme Court interpreted the scope of WOTUS subject to
1993. The agencies also requested comments on changes
the CWA more narrowly than the Corps had previously.
that could enhance consistency between PCC status under
The agencies interpreted the ruling to mean that some
Swampbuster and the CWA, such as which criteria to apply
isolated wetlands may no longer be regulated as WOTUS
in determining when PCC loses its exclusion. (See
under the CWA but may still be subject to Swampbuster.
“Challenges to Consistent Determinations.”)
These changes and the Court’s ruling prompted the
agencies to withdraw from the 1994 memorandum in 2005.
Food Security Act, Swampbuster Provision
The Swampbuster provision is administered by USDA with
Subsequently, USDA and the Corps issued joint guidance
technical determinations made by NRCS. Originally
in February 2005 to reaffirm their commitment to ensuring
authorized in Title XII of the 1985 FSA (16 U.S.C. §§3801
the wetlands programs were administered in a way that
et seq.), Swampbuster makes USDA program participants
minimized impacts on affected landowners while protecting
ineligible to receive select USDA program benefits if they
wetlands. They recognized that “because of the differences
farm on or alter wetlands. Thus, Swampbuster does not
now existing between the CWA and FSA on the
prohibit the altering of a wetland but rather disincentivizes
jurisdictional status of certain wetlands (e.g., prior
doing so by withholding a number of federal payments that
converted or isolated wetlands may be regulated by one
benefit agricultural production.
agency but not the other), it is frequently impossible for one
lead agency to make determinations that are valid for the
Generally, farmers who plant a program crop on a wetland
administration of both laws.” The guidance reiterated that a
converted after December 23, 1985, or convert wetlands
PCC determination made by NRCS remains valid for
making agricultural commodity production possible after
Swampbuster purposes so long as the area is devoted to an
November 28, 1990, would be in violation of Swampbuster
agricultural use. It also stated that if the land changes to a
and ineligible for certain USDA benefits (e.g., farm support
nonagricultural use, the determination is no longer valid,
payments, loans, conservation programs). In addition,
and a new determination is required for CWA purposes.
farmers who plant or produce an agricultural commodity on
a wetland or make agricultural production possible after
In 2009, the Corps Jacksonville District prepared an issue
February 7, 2014, are in violation and also ineligible for
paper declaring that PCC that is shifted to nonagricultural
federal crop insurance premium subsidies. A number of
use becomes subject to regulation by the Corps. Corps
Swampbuster exemptions exist, including land determined
headquarters affirmed this “change in use policy” as an
to be PCC. The USDA defined PCC in regulation (7 C.F.R.
accurate reflection of the national position of the Corps in a
12.2(a)) as “a converted wetland where the conversion
memorandum often referred to as the “Stockton Rules.” A
occurred prior to December 23, 1985, an agricultural
federal court set aside the rules in 2010, finding that they
commodity had been produced at least once before
were “procedurally improper” because the Corps did not
December 23, 1985, and as of December 23, 1985, the
follow required notice-and-comment procedures.
converted wetland did not support woody vegetation and
In January 2020, the Corps and NRCS rescinded the 2005
did not meet the hydrologic criteria for farmed wetland.”
guidance. Subsequently, in July 2020, the Corps, EPA, and
Challenges to Consistent Determinations
NRCS issued a joint memorandum that provides procedures
for agency staff to help ensure that the programs are
Although the agencies overseeing the CWA Section 404
administered in an efficient and effective manner while
and Swampbuster programs have sought to achieve
continuing to fulfill the missions of the respective agencies.
consistency in the manner that the programs define and
designate PCC, the inherently different purposes of the
Laura Gatz, Analyst in Environmental Policy
programs—as well as legislative changes and court
Megan Stubbs, Specialist in Agricultural Conservation and
rulings—have presented challenges in doing so.
Natural Resources Policy
In 1994, USDA, the Departments of the Interior and the
IF11136
Army, and EPA entered into a memorandum of agreement
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Prior Converted Cropland Under the Clean Water Act


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https://crsreports.congress.gov | IF11136 · VERSION 7 · UPDATED

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