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The Minimal Effects Exemption and the Regulation of Headwater Wetlands Under Swampbuster, With a Coda on the Theme of SWANCC

December 2001

Citation: ELR 11417

Author: John H. Davidson and Philip P. Chandler

Introduction

Under the Wetland Conservation subtitle of the Food Security Act of 1985, as amended, commonly known as "Swampbuster,"1 wetlands may be used to grow crops provided they are not degraded by this practice. In the legislation, Congress has made an effort, by use of the "minimal effects" concept, to make precise just what farming practices are acceptable. If a farming practice has only a minimal effect on the wetland's function, then the farmer is not ineligible for participation in federal loan, commodity price and income support, and conservation programs. Whatever else the congressional minimal effects directive means, it should at least mean that, if a given area has been designated a wetland before it is subjected to any farming or related manipulation, it should remain a wetland after the manipulation.

The wetland delineation process that has emerged since enactment of Swampbuster in 1985 is arcane and has been subject to abuse in favor of wetland destruction.2 Using the one category of headwater wetlands (which are also known as first-order streams, as well as sloped, linear, or nondepressional wetlands) in the famous Prairie Pothole region of South Dakota as a working example, one can demonstrate how the wetland delineation process operates "on the ground" and how, through the use of almost inaccessible informal rules and field procedures, widespread wetland drainage is permitted without denial of U.S. Department of Agriculture (USDA) farm program benefits.

John H. Davidson is a Professor of Law at the University of South Dakota. Philip Chandler is a Law Clerk to the South Dakota Supreme Court.