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1 1 (February 11, 2020)

handle is hein.crs/govcada0001 and id is 1 raw text is: FF.ri E.$~ & Updated February 11, 2020 Prior Converted Cropland Under the Clean Water Act For decades, the value of wetlands and efforts to protect them have been recognized in different ways through national policies, federal laws, and regulations. The central federal regulatory program, authorized in Section 404 of the Clean Water Act (CWA), requires permits for the discharge of dredged or fill material (e.g., sand, soil, excavated material) into wetlands that are considered waters of the United States (WOTUS). Also, the Food Security Act (FSA) of 1985-enacted on December 23, 1985 included a wetland conservation provision (Swampbuster) that indirectly protects wetlands by making producers who farm or convert wetlands to agricultural production ineligible for select federal farm program benefits. Both FSA and CWA Section 404 regulations include exceptions to their requirements for prior converted cropland (PCC). PCC determinations are complex. While both programs include exceptions for PCC, determinations are made under separate authorities and for different programmatic purposes. This has created confusion for affected landowners, who argue that greater consistency among PCC determinations is needed. It has also generated congressional interest in clarifying the issue. VV-,ats PCC? The CWA Section 404 permitting and Swampbuster programs both require the administering agencies to make certain determinations about wetland areas, including whether an area qualifies as PCC. While historically the agencies defined PCC similarly, the way the agencies have determined what qualifies as PCC has diverged over time. W,.e , &a.te,, Ack, Under the CWA, discharges of pollutants into WOTUS are unlawful unless authorized by a permit. Section 404 permits authorize discharges of dredged or fill material into WOTUS, including wetlands (33 U.S.C. §1344). The Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) are both responsible for implementing aspects of the CWA Section 404 permitting program. Most routine, ongoing farming activities do not require CWA Section 404 permits. CWA Section 404(f) exempts normal farming, silviculture, and ranching from permitting requirements. However, if a farming activity is associated with bringing a WOTUS into a new use where the flow, circulation, or reach of that water might be affected (e.g., bringing a wetland into agricultural production or converting an agricultural wetland into a nonwetland area), that activity would require a permit. The CWA does not define or mention PCC explicitly. However, CWA regulations exclude PCC from the definition of WOTUS and therefore the act's permitting requirements. In 1990, the Corps issued Regulatory Guidance Letter 90-07, which created one of the first direct links to Swampbuster. It clarified that PCC, as defined by U.S. Department of Agriculture's (USDA) Natural Resources Conservation Service (NRCS) in its 1988 National FSA Manual, are not subject to regulation under CWA Section 404. The manual defines PCC as wetlands which were both manipulated (drained or otherwise physically altered to remove excess water from the land) and cropped before 23 December 1985, to the extent that they no longer exhibit important wetland values. In 1993, the Corps and EPA codified into regulation the existing policy that PCC are not WOTUS (58 Federal Register 45008). In addition, in the preamble to the rule, the agencies referenced the definition of PCC from the National FSA Manual. They also indicated that any PCC that were abandoned, per the NRCS provisions on abandonment, and reverted back to wetlands could be recaptured and again subject to CWA regulation. Specifically, per the preamble, PCC that now meets wetland criteria is considered to be abandoned unless: For once in every five years the area has been used for the production of an agricultural commodity, or the area has been used and will continue to be used for the production of an agricultural commodity in a commonly used rotation with aquaculture, grasses, legumes, or pasture production. Although the definition and abandonment criteria were included in the rule's preamble, they are not included in Corps and EPA regulations. In 2015, the Corps and EPA promulgated the Clean Water Rule (80 Federal Register 37054), which established a new definition for WOTUS. It maintained the PCC exclusion as it existed in the 1993 rule and similarly did not define the term or include abandonment criteria in the rule itself. However, on January 23, 2020, the Corps and EPA finalized a new rule-the Navigable Waters Protection Rule-to revise the definition of WOTUS, including revisions to how PCC is defined and determined. (See PCC in the Navigable Waters Protection Rule.) The Swampbuster provision is administered by USDA with technical determinations made by NRCS. Originally authorized in Title XII of the 1985 FSA (16 U.S.C. §§3801 et seq.), Swampbuster makes USDA program participants ineligible to receive select USDA program benefits if they farm on or alter wetlands. Thus, Swampbuster does not prohibit the altering of a wetland but rather disincentivizes doing so by withholding a number of federal payments that benefit agricultural production. Generally, farmers who plant a program crop on a wetland converted after December 23, 1985, or who convert wetlands making agricultural commodity production possible after November 28, 1990, would be in violation of K~:> gognpo g-o g , q 's a X 11LULANJILiN,

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