College of William & Mary Law School William & Mary Law School Scholarship Repository Popular Media Faculty and Deans 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.