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1 1 (May 27, 2022)

handle is hein.crs/govegwu0001 and id is 1 raw text is: Congr ssionaI Re earch infurni the I egsaive debte sne1 Updated May 27, 2022 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 Clean Water Act (CWA) Section 404 in 1972, requires permits for discharges 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 selected federal farm program benefits. Both FSA and CWA Section 404 regulations include exceptions to their requirements for prior converted cropland (PCC). While both include exceptions for PCC, determinations are made under separate authorities and for different programmatic purposes. This has created confusion for some affected landowners, who argue for greater consistency among PCC determinations. It has also generated some congressional interest in aligning the requirements for PCC. What Is PCC! The CWA Section 404 program and Swampbuster provision 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. Clean Water Act 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 (Corps) and U.S. Environmental Protection Agency (EPA) are responsible for implementing various aspects of the 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's) 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 that 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 the rule's preamble, 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 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 were not included in Corps and EPA regulations. In 2015, the Corps and EPA promulgated the Clean Water Rule (80 Federal Register 37054) during the Obama Administration, which established a revised 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. In 2020, during the Trump Administration, the Corps and EPA published the Navigable Waters Protection Rule (NWPR) to revise the definition of WOTUS (85 Federal Register 22250). The rule maintained the PCC exclusion, defined PCC, and clarified abandonment criteria. The NWPR defined PCC as any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible. PCC would lose its status for CWA purposes when it is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years and the land reverts to wetland status. The NWPR text did not define agricultural purposes for determining abandonment, but the rule's preamble stated that agricultural purposes include land use that makes production of an agricultural product possible, including but not limited to grazing and haying. The preamble also said that cropland left idle or fallow for conservation or agricultural purposes for any period of time remains in agricultural use and maintains PCC status. The term agricultural purposes appeared to broaden the exception for CWA purposes. In contrast, under the abandonment criteria

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