Prior Converted Cropland Under the Clean Water Act

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