Prior Converted Cropland Under the Clean Water Act

Prior Converted Cropland Under the Clean Water Act

Updated February 24, 2023
Prior Converted Cropland Under the Clean Water Act
For decades, the value of wetlands and efforts to protect
Resources Conservation Service (NRCS) in its 1988
them have been recognized in different ways through
National FSA Manual, is not subject to regulation under
national policies, federal laws, and regulations. The central
CWA Section 404. The manual defines PCC as wetlands
federal regulatory program, authorized in Clean Water Act
that “were both manipulated (drained or otherwise
(CWA) Section 404 in 1972, requires permits to discharge
physically altered to remove excess water from the land)
dredged or fill material (e.g., sand, soil, excavated material)
and cropped before 23 December 1985, to the extent that
into wetlands that are considered “waters of the United
they no longer exhibit important wetland values.”
States” (WOTUS). Also, the Food Security Act (FSA) of
In 1993, the Corps and EPA codified into regulation the
1985—enacted on December 23, 1985—included a wetland
existing policy that PCC are not WOTUS (58 Federal
conservation provision (Swampbuster) that indirectly
Register 45008). In the rule’s preamble, the agencies
protects wetlands by making producers who farm wetlands
referenced the definition of PCC from the National FSA
or convert them to agricultural production ineligible for
Manual. They also indicated that any PCC that were
selected federal farm program benefits. Both FSA and
abandoned, per the NRCS provisions on abandonment, and
CWA Section 404 regulations include exceptions to their
reverted to wetlands could be “recaptured” and subject to
requirements for prior converted cropland (PCC). While
CWA regulation. Specifically, per the preamble, PCC that
both include exceptions for PCC, determinations are made
“now meets wetland criteria is considered to be abandoned
under separate authorities and for different programmatic
unless: For once in every five years the area has been used
purposes. This has created confusion for some affected
for the production of an agricultural commodity, or the area
landowners, who advocate for greater consistency among
has been used and will continue to be used for the
PCC determinations. It also has generated some
production of an agricultural commodity in a commonly
congressional interest in aligning the 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, during the Obama Administration, the Corps and
whether an area qualifies as PCC. While historically the
EPA promulgated the Clean Water Rule (80 Federal
agencies defined PCC similarly, the way the agencies have
Register 37054), which redefined WOTUS. The rule
determined what qualifies as PCC has diverged over time.
maintained the PCC exclusion as it existed in the 1993 rule
and similarly did not define the term or include
Clean Water Act
abandonment criteria in the rule itself.
Under the CWA, discharges of pollutants into WOTUS are
In 2020, during the Trump Administration, the Corps and
unlawful unless authorized by a permit. Section 404 permits
EPA published the Navigable Waters Protection Rule
authorize discharges of dredged or fill material into
(NWPR) to revise the definition of WOTUS (85 Federal
WOTUS, including wetlands (33 U.S.C. §1344). The Army
Register 22250). The rule maintained the PCC exclusion,
Corps of Engineers (Corps) and U.S. Environmental
defined PCC, and clarified abandonment criteria. The
Protection Agency (EPA) are responsible for implementing
NWPR defined PCC as “any area that, prior to December
various aspects of the Section 404 permitting program.
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
not limited to grazing and haying.” The preamble also said
The CWA does not define or mention PCC explicitly.
that cropland left idle or fallow for conservation or
However, CWA regulations exclude PCC from the
agricultural purposes for any period of time remains in
definition of WOTUS and therefore the act’s permitting
agricultural use and maintains PCC status. The term
requirements. In 1990, the Corps issued Regulatory
agricultural purposes appeared to broaden the exception for
Guidance Letter 90-07, which created one of the first direct
CWA purposes. In contrast, under the abandonment criteria
links to Swampbuster. It clarified that PCC, as defined by
in the 1993 rule’s preamble, an area was required to be used
U.S. Department of Agriculture’s (USDA’s) Natural
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link to page 2 Prior Converted Cropland Under the Clean Water Act
for production of an agricultural commodity. The NWPR
In 1994, USDA, the Departments of the Interior and the
also stated that the Corps and EPA would recognize PCC
Army, and EPA entered into a memorandum of agreement
designations made by USDA.
to promote consistency in determinations made under the
Various lawsuits challenged the NWPR, and in September
two wetlands programs. However, Congress amended
2021, a federal district court vacated it. The Corps and EPA
Swampbuster in 1996 to state that USDA certifications of
eligibility for program benefits “shall remain valid and in
then announced that they would halt implementation of the
rule and interpret WOTUS consistent with regulations in
effect as long as the area is devoted to an agricultural use or
place prior to 2015 (see CRS Report R47408, Waters of the
until such time as the person affected by the certification
United States (WOTUS): Frequently Asked Questions
requests review of the certification by the Secretary” (P.L.
About the Scope of the Clean Water Act).
104-127). This created inconsistency between the wetlands
programs, as the criteria for determining when PCC loses
On January 18, 2023, the Corps and EPA, under the Biden
its exclusion became different (i.e., abandonment for CWA
Administration, issued a new rule redefining WOTUS (88
versus change in use for Swampbuster). In addition, 2002
Federal Register 3004). The 2023 WOTUS Rule, which is
amendments to Swampbuster (P.L. 107-171) prohibited
to take effect on March 20, 2023, maintained the PCC
NRCS from sharing confidential producer information to
exclusion, but made changes to the regulatory text in what
agencies outside USDA, making it illegal for NRCS to
the agencies described as an effort to improve clarity and
provide its wetland delineations and determinations to the
consistency with USDA’s implementation of Swampbuster.
Corps and EPA for CWA permitting and enforcement.
(See “Challenges to Consistent Determinations.”) The 2023
Furthermore, in Solid Waste Agency of Northern Cook
WOTUS Rule specifies that PCC designated by USDA is
County v. U.S. Army Corps of Engineers (2001), the
excluded, and that the exclusion ceases upon a change in
Supreme Court interpreted the scope of WOTUS subject to
use, meaning the area is no longer available for the
the CWA more narrowly than the Corps had previously.
production of agricultural commodities. These changes are
The agencies interpreted the ruling to mean that some
intended to align the CWA PCC exclusion with the
isolated wetlands may no longer be regulated as WOTUS
Swampbuster exception.
under the CWA but may still be subject to Swampbuster.
Food Security Act, Swampbuster Provision
These changes and the Court’s ruling prompted the
agencies to withdraw from the 1994 memorandum in 2005.
The Swampbuster provision is administered by USDA with
technical determinations made by NRCS. Originally
Subsequently, USDA and the Corps issued joint guidance
authorized in Title XII of the 1985 FSA (16 U.S.C. §§3801
in February 2005 to reaffirm their commitment to ensuring
et seq.), Swampbuster makes USDA program participants
the wetlands programs were administered in a way that
ineligible to receive select USDA program benefits if they
minimized impacts on affected landowners while protecting
farm on or alter wetlands. Thus, Swampbuster does not
wetlands. They stated that “because of the differences now
prohibit the altering of a wetland but rather disincentivizes
existing between the CWA and FSA on the jurisdictional
doing so by withholding a number of federal payments that
status of certain wetlands (e.g., prior converted or isolated
benefit agricultural production.
wetlands may be regulated by one agency but not the
other), it is frequently impossible for one lead agency to
Generally, farmers who plant a program crop on a wetland
make determinations that are valid for the administration of
converted after December 23, 1985, or convert wetlands
both laws.” The guidance reiterated that a PCC
making agricultural commodity production possible after
determination made by NRCS remains valid for
November 28, 1990, would be in violation of Swampbuster
Swampbuster purposes so long as the area is devoted to an
and ineligible for certain USDA benefits (e.g., farm support
agricultural use. It also stated that if the land changes to a
payments, loans, conservation programs). In addition,
nonagricultural use, the determination is no longer valid,
farmers who plant or produce an agricultural commodity on
and a new determination is required for CWA purposes.
a wetland or make agricultural production possible after
February 7, 2014, are in violation and also ineligible for
In 2009, the Corps Jacksonville District prepared an issue
federal crop insurance premium subsidies. A number of
paper declaring that PCC that is shifted to nonagricultural
Swampbuster exemptions exist, including land determined
use becomes subject to regulation by the Corps. Corps
to be PCC. USDA defined PCC in regulation (7 C.F.R.
headquarters affirmed this “change in use policy” as an
12.2(a)) as “a converted wetland where the conversion
accurate reflection of the national position of the Corps in a
occurred prior to December 23, 1985, an agricultural
memorandum referred to as the “Stockton Rules.” A federal
commodity had been produced at least once before
court set aside the rules in 2010, finding that they were
December 23, 1985, and as of December 23, 1985, the
“procedurally improper” because the Corps did not follow
converted wetland did not support woody vegetation and
required notice-and-comment procedures.
did not meet the hydrologic criteria for farmed wetland.”
In January 2020, the Corps and NRCS rescinded the 2005
Challenges to Consistent
guidance. Subsequently, in July 2020, the Corps, EPA, and
Determinations
NRCS issued a joint memorandum establishing procedures
for agency staff to help ensure that the programs are
Although the agencies overseeing the CWA Section 404
administered efficiently and effectively while continuing to
and Swampbuster programs have sought to achieve
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, Specialist 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
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Prior Converted Cropland Under the Clean Water Act

IF11136

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