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1988 Swampbuster, Sodbuster, and Conservation Compliance Programs Linda A. Malone William & Mary Law School, [email protected]

Repository Citation Malone, Linda A., "Swampbuster, Sodbuster, and Conservation Compliance Programs" (1988). Popular Media. 103. https://scholarship.law.wm.edu/popular_media/103

Copyright c 1988 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media ======/NDEPTH Swampbuster, sodbuster, and conservation compliance programs - Ii

by Linda A. Malone

On September 17, 1987, final regula­ of "hydrophytic vegetation" typically dueing an agricultural commodity on the tions were published in the Federal Reg­ adapted for life in the saturated soil con­ land continues to be eligible for program ister for the swampbuster, sodbuster, ditions. 52 Fed. Reg. at 35202. An excep­ payments. 16 U.S.C. § 3822. and conservation compliance programs tion from the definition of "wetland'" is The final rule has been revised at of the 1985 E'arm Bill. Pub L. No. 99­ made for lands in Alaska identified as length to clarify when conversion is con­ 198, provisions, codified at 16 U.s.C. §§ having high potential for agricultural sidered to have been "commenced" be­ 3801-3823 (West Supp. 1987). The new development which have a predomi­ fore December 23, 1985. Conversion was rules, published in 52 Fed. Reg. ~5194­ m~nce of permafrost soils. [d. at 35202. "commenced" before that date if: (1) 35208 (September 17, 1987), will be pub­ "Under normal circumstances" is ex­ draining, dredging, filling, leveling or lished in the Code ofFederal Regulations plained in the final rule as referring to other manipulation (including any activ­ as 7 C.F.R. Part 12. The changes made "the soil and hydrologic conditions that ity t.hat ff'fmlts in impairing or reducing in the final rule from the interim rule are normally present, without regard to the now, circulation, or reach of water) are significant and extensive. whether the vegetation has been re­ wa~ actually started on the wetland; or The 1985 Farm Bill contained several moved." Id. at 35207. (2) the person applying for benefits has conservation provisions that were new to A person is ineligible for program pay­ expended or legally committed substan­ agricultural programs, among which ments under the swampbuster provision tial funds either by entering into a con­ were the so-called sodbuster, swamp­ if all or a portion of the field is converted. tract for the installation of any of the buster, conservation compliancE., and wetland, and the ASCS has determined above activities or by purchasing con~ conservation reserve programs. The that the person was entitled to share in struction supplies or materials for the basic purpose of the sodbuster, swamp~ the crops available for the land or the primary and direct purpose of convertlng buster, and consen'ation compliance proceeds thereof, and the ASCS has de­ the wetland. 52 Fed. Reg. at 35203. provisions is to ensure cross-compliance tennined that the land is or was planted Even if the criteria for "commence­ between conservation programs of the to an agricultural commodity during the ment" conversion before December 2:3, USDA and financial support programs year for which the person is requesting 1985 are not satisfied, the person may of the USDA. uenefits. [d. at 35202. Converted wet­ request a commencement determination Under these provisions, a person re­ land means wetland that has been from the ASCS upon :;howing that undue ceives no USDA program payments, that drained, dredged, filled, leveled, or economic hardship will result because c is, price and income supports, disaster otherwise manipulated to make possible substantial financial obligation." incurren_ payments, crop insurance, CCC storage the production of an agricultural com­ prior to December 23, 1985, for the pri­ payments, farm storage facility loans, modity without further application of mary and direct purpose of converting Farmer's Home Administration loans (if the manipulations described, if such pro­ the wetland. ld the proceeds are used for a purpose that duction would not have been possible but Under the final rule, activities of a will contribute to excessive erosion of for the action and before such action the water resource district, drainage dis­ highly erodible land or conversion of land was wetland and was neither trict. or similar entity are attributable wetlandl, and an other USDA produc­ highly erodible land nor highly erodible to all persons within "thp jurisdiction of tion payments, unless the person is in cropland. Id. at 35201. the entity who are assessed for its ac­ compliance with the conservation provi­ In determining if wetland has been tivities. [d. A separate rule applies to de­ sions. Until these provisions in the 1985 ronve-rted, the following factors are to be termine when conversion b.y such ,m pn­ Farm Bill, soil conservation had been considered: (1) where the altering activ­ tity was "commenced" before DecE'mber based primarily on voluntary initiatives. ity is not clearly discernible, comparison 23. 1985. let. of other sites containing the same hydric A person seeking a determination of Swarnpbusting soils in a natural condition to determine conversion commencing before Decem­ Under the swampbuster provision, if the wetland has been converted; and ber 23, 1985, must request the determi­ any person who converts wetlands after (2) where woody hydophytic vegetation nation before September 19, 1988, must Dpcemhe-T 23, 1985, the effective date of has been removed, and wetland condi­ demonstrate that the conversion has the 1985 Farm Bill, will be ineligible for tions have not returned as a result of been actively pursued, and must com­ price and income supports and other abandonment, the area is to be consid­ plete the conversion by January 1, 1995. USDA program payments for any ag­ ered conve-rted wetland. [d. at 35207. Id. at 35203. ricultural commodities produced by that Also, potholes, playas, and other wet­ Conversion of a wetland is considered pe-rson during that crop year. 16 U.S.C. lands flooded or ponded for extended pe· to have been completed before December § 3821. The application of a conservation riods will not be considered converted 23, 1985, if any of the ahove described plan to the converted wetlands, in con­ based upon activities occurring prior to conversion activities were applied to the trast to the sodbuster provision, is ir­ December 23, 1985, and further conver­ wetland and made the production of an relevant to eligibility. sions may result in loss of eligibility un­ agricultural commodity possible without Under the final rule, a wetland is de­ less determined to have a minimal effect further manipulation where the produc­ fined as land that has a predominance of on wetland values. [d. tion would not otherwise have been pos­ "hydric soils" and that is inundated or There are several exemptions that sible. saturated by sunace or groundwater at may relieve a person from the require­ Another revision clarifies that con a frequency and duration sufficient to ments of the act. rfconversion ofthe wet­ verted wetlands are presumed to have support, and that "under normal c)r­ land was commenced or completed be­ been converted by the person applying cumstances" does support, a prevalence fore December 23, 1985, the person pro for benefits unless the person can show

4 AGRICULTURAL LAW UPDATE JANUARY 1988 ~l regulations

that the conversion was by an unrelated such a determination must be made ments as a result of production on highly third party and that there has been no prior to the beginning of activities that erodible land without a conservation involvement in a scheme or device to would convert the wetland. Id. at 35208. plan iF it was done in reliance on a deter­ avoid compliance. Jd. If there was ac­ mination by ses that the land was not quiescence in, approval of, or assistance Sodbusting highly erodible land when the produc­ to acts of the third 'party, the person ap­ Under the sodbuster provision, a pro­ tion was made. The exemption does not plying for benefits is subject to the ducer is ineligible for USDA program apply to any agricultural commodity scheme or device restrictions and may payments for agricultural commodities iF that was planted on highly erodible land lose eligibility. If, however, the conver­ there is production without an approved after the ses determines that such land sion was in fact done by an unrelated conservation plan or system on a field in is highly erodible land and the person is third party, the person applying for which highly erodible land is predomin­ so notified. Id. at 35203. henefits may continue to produce ag­ ant. Id. at 35201 For the first time, under the final rule ricultural commodities on the converted In the final rule, many of the defini­ persons are allowed to exchange certain wetland and retain eligibility if there are tions in the interim rule have been re­ crop acreage bases for crop~ that have a no further improvements to the drain­ vised. The definition of "highly erodible high residue base if the high residue age, Or ifthe SCS determines further im­ land" encompasses land that has an crop is recommended by SCS as being provement will have a minimal effect on "erodibility index" of eight or more. Id. essential for the conservation plan and wetlands values. Id. However, any at 35201. "Erodibility index" is a numer­ the SCS's recommendation is approved further drainage improvement on such ical value that expresses the potentwf hy the ASCS. Id. at 35204. land by the party is not permitted with­ erodibility of a soil in relation to its soil out loss of eligibility for USDA program loss tolerance value without considera­Conservation compliance payments, unless the SCS determines tion of applied conservation practices or The requirement of conservation com­ that further drainage activitie~ applied management." Id. (emphasis addedl. pliance is applicable to highly erodible to such lands would have minimal effect Therefore, land that may actuallv be land as defined in the sodbuster provi· on any remaining wetland values. Id. eroding at an acceptable rate, but 'with sion. By the later of January L 1990 or An artificial lake, pond. or wetland an unacceptable potential rate of erosion the date two years after the ses soil sur­ created by excavatinK or diking non-wet­ in relation to the acceptable soillnss tol­ vPy is completed. a person must be '"ac­ land to collect and retam water for pur­ erance, will be considered highly erodi­ tively applying" an approved conserva­ poses such as water for livestock, fish ble land. Also, the definitions of "conser­ tion system or plan for highly erodible production, irrigation, a settling basin, vation plan" and "conservation system" cropland that was in production or set cooling, rice production, or flood control have been revised to be more specific aside in USDA programs For any year is not subjected to the provisions of the about thelr contents. Id. from 1981 to 1985. Id. at 35202. A person act. Id. An area is considered an artifi­ Highly erodlble land is predominant is "actively applying" a plan iF the plan cial ""etland if such area was formerly in a field if one-third of the field is highly "is being applied according to the sched­ non·wetland or wetland on which con­ erodible or fifty or more acres of the field ule specified in the plan and the applied version was started or completed before are highly erodible. Id. at 35206. Highly practices are properly operated and December 23, 1985, but meets the wet­ erodible land that was planted to an ag­ maintained." Id. at 3,,206. By 1995, the ,- ­ '­ land criteria "due to the actions of man." ricultural commodity in any year from person mu~t have fully complied with lei. at 35207. A wet area created by a 1981 through 1985, or that was set the plan. Id. at 35202. Revisions in the water delivery system, irrigation or irri­ aside, diverted. or otherwise not culti­ final regulation indicate that the soil gation system is also not covered as wet­ vated in any such crop year under a pro­ survey that must be completed is that land under the act. Id. at 35203. gram administered hy the Secretary to which applies only to the cropland por­ Wetland on which production oFan ag­ reduce production of an agricultural tion of the tract or farm. not the plan for ricultural commodity is possible as the commodity, is exempt From the sodbus­ the enUre farm. Id. result of a natural condition and without ter requirement. Id. at 35202. A conservation plan for purpo.:'-ies of action by the person that destroys a nat­ In response to a statutory amendment the sodbuster and conserv"ation com· ural wetland characteristic is not wet~ on April 24. 1987 (Puh. L. No. 100-281, pliance provisions is defined as a docu­ land that is ("overed by the act. Id. persons who had alfalfa in a crop rota­ ment containing the decisions of a per­ Converted wetland may also be tion during each of the 1981 through son with respect to the location, land exempt if the SCS has determined that 1985 crop years based on a conservation use, tillage systems and conservation the actions of the person with respect to plan have an extension until June 1, treatment measures as scheduled which, the production of the agricultural com­ 1988 to fully apply a conserv"ation sys­ if approved, must be or have been estab­ modity, individually and in connection tem to retain eligibility. Id. at 35202. If lished on highly erodible cropland in ""ith all other similar actions authorized the person has not fully implemented an order to control erosion on the land. It!. by SCS in the area, would have only a approved conservation plan by that date. at 35201. A conservation system means minimal impact on the hydrological and the person sha]] be deemed to be ineligi­ the part of cropland resource manage­ biological aspect of wetlands. Id. Al­ ble for the 1988 crop year and for every ment system applied to a field or group though this exception might seem to be following year that an agricultural com­ of fields that provides for cost effective­ a broad one, the legislative history modity is produced without an approved ness and practical erosion reduction r - ;. makes it clear that this is intended to be conservation plan or system. Id. A per­ based upon the standards contained in a very limited exemption. A request for son is not ineligible for program pay­ the SCS Field Office Technical Guide. Id. (con.tinued on. next page)

=.. JANUARY 1988 AGRICULTURAL LAW UPDATE 5 SWAMPBUSTER, SODBUSTER AND CONSERVATION COMPLIANCE PROGRAMS / CONTlNl'EI) "ROM PAC>'

A new ~E'ction dealing exclusively with days of the request for approval, the SCS Persons who wish to partil'ipate in the the conservation plans and systems en­ will approve or disapprove the plan or USDA programs are responsiblE' for con­ courages persons who require SCS assis­ system. [d. tacting the appropriate agency in the lance in developing a plan or installing Sections 12.9 and 12.10 are revised in USDA well in advance of the intended a system to request assistance well in the final rulE' to expand the ineligibility participation date to assure that determi­ advance of deadline dates for com­ of landlords for tenants' actions. Under nations regarding highly erodible land, pliance. [d. at 35206. Conservation dis­ the final fulp, landlords are ineligible for wetland. and conservation plans or ~vs­ tricts approve or disapprove conserva­ benefits not only when noncompliancI! is terns are seheduled in a timely mann'er. tion plans and systems as in confor­ required in thp contract with a tenant Id. at 35202. ThE' final rule 'applies to mance with the SCS Field Office Techni­ but also if the landlord has acquiesced: crops planted aftE'r Seplemhf-'r 17. 19R7, cal Guide. If the conservation district approved, or assisted in the noncomply­ and to all determinations made after or fails to act without due cause within 45 ing activities of the tenant Id. at 35205. pending on that date. Id. at 35193. -~ ~------~-~--

6 AGRICULTURAL LAW UPDATE JANUARY 1988