The Swampbuster Provisions of the Food Security Act of 1985: Stonger Wetland Conservation If Properly Implemented and Enforced

James T. B. Tripp and Daniel J. Dudek

Editors' Summary: It may seem an unlikely place to look for environmental law, but the Food Security Act of 1985 includes several important additions to this field. The "swampbuster" provisions of the Act deprive farmers who fill wetlands to expand their acreage under cultivation of federal price supports for all their crops on all their lands. The author points out that prior to the recent legislation, federal agricultural policies had worked against federal wetland protection policies. He reviews the new swampbuster provisions and concludes that they could be an effective deterrent to the conversion of wetland to farmland while federal agricultural subsidies continue, but only if the provisions are vigorously implemented and enforced.

Mr. Tripp is Counsel and Mr. Dudek Senior Economist at the Environmental Defense Fund's New York office.

[16 ELR 10120]

Congress recently enacted an important new program to protect ecologically vital wetlands against conversion to farmland. Federal acquisition of wetlands protects them absolutely, but has limited scope. Regulatory programs in environmental statutes are meant to overcome the economic incentive to fill swamps so as to put more acreage under the plow, but other federal programs strengthen those economic incentives. Late last year, Congress went to the source of that problem, cutting off federal agricultural benefits to those farmers who fill wetlands. If implemented and enforced, the new program could greatly strengthen federal protection of wetlands.

The History of Federal Subsidies for Wetland Conversion

Starting with passage of the Swamp Acts in the middle of the 19th century, Congress has provided vast subsidies to private landowners to drain wetlands, primarily for agricultural use. Federal financial support for agricultural conversion of swamps, prairie potholes, pocosins, and other wetlands has accelerated in the last 60 years with the construction of large federal agricultural flood control and drainage projects and a wide range of U.S. Department of Agriculture (USDA) loan, credit, price support, crop insurance, and technical assistance programs.

The Fish and Wildlife Service estimates that when our country was young, the lower 48 states had some 215 million acres of wetlands. Now, with less than 95 million acres remaining, 60 percent have been drained, cleared, or filled. Over 80 percent of this loss is due to agricultural conversion. Rich wetland soils have contributed in a major way to the remarkable agricultural productivity of the United States. Clearly, federal water projects and other forms of subsidies have contributed to this high rate of conversion by reducing the frequency of flooding and cutting the cost of growing "upland" row crops in wetlands. Two econometric studies now underway by the Environmental Defense Fund and the Department of Agricultural Economics at Virginia Polytechnic Institute and State University should provide some quantitative insight into the contribution of these federal programs to agricultural conversion of wetlands. Suffice it to say that this contribution has been highly significant.

Initial Federal Protection: Regulation and Acquisition

The conversion of wetlands has had serious environmental costs in terms of immense reductions in fish and wildlife habitat; water quality degradation from sediment, nutrient, and pesticide loadings; and loss of natural flood storage capacity. In October 1972, Congress amended the Federal Water Pollution Control Act, as further amended in 1977 (commonly referred to as the Clean Water Act)¹ to establish a new program, the objective of which is the maintenance and restoration of the chemical, physical, and biological integrity of the nation's waters. The Act requires permits for the discharge of industrial and municipal pollution [16 ELR 10121] from point sources and for the deposit of dredge or fill material into the nation's waters.

The scope of the dredge and fill regulatory program, found in § 404² of the Act, turns on the definition of "waters." That term has been held to include wetlands,³ including bottomland hardwood wetlands⁴ and pocosin wetlands.⁵ Whether an area is a wetland depends on the saturation of its soil and the presence of vegetation adapted to land that is periodically inundated with water. The Fish and Wildlife Service, pursuant to § 208(i) of the Clean Water Act,⁶ has virtually completed a comprehensive list of hydrophytic (wetlands) vegetation species and hydric (wetland) soils as part of the National Wetland Inventory (NWI). The Fish and Wildlife Service will use the Inventory to assist states seeking delegation of the § 404 program. Because of the Inventory and extensive research on wetlands definition by the Army Corps of Engineers' Waterways Experiment Station and the Environmental Protection Agency (EPA), we now have a good technical understanding of what constitutes a wetland. Since the regulatory scope of § 404 includes agricultural clearing operations in wetlands,⁷ the Clean Water Act provides a comprehensive tool for regulating the agricultural conversion of wetlands.

On another front, the federal government has spent hundreds of millions of dollars in recent decades to acquire wetlands for national wildlife refuges and other public lands. Private conservation organizations, such as the Nature Conservancy, Ducks Unlimited, and the National Audubon Society, have also supported public acquisition of wetlands.

Regulation and acquisition have slowed the destruction of wetlands, but the process has continued. One of the least rational contributions to this trend has been conversion of swampland to farmland. While it may make economic sense for individual farmers to drain wetlands, particularly in light of federal subsidies, it makes no sense for the nation: farmland is in surplus, wetlands in short supply.

The Food Security Act of 1985

Despite the Congress' clean water mandate and federal, state, and private acquisition of wetlands, the traditional federal budgetary support for wetland drainage through water projects and USDA programs has continued. Presidents Carter and Reagan have made a concerted effort to cut back on federal funding for water projects and to incorporate some market discipline into the federal water project program through state and local cost-sharing and user fee programs. Now, for the first time with the passage of Title XII of the Food Security Act of 1985,⁸ Congress has taken steps to withhold USDA loans, credits, and assistance to farmers who drain and convert wetlands and use them for crop production.

Depending on its implementation and enforcement, the swampbuster provisions⁹ of Title XII could provide farmers with powerful economic incentives not to convert wetlands to agricultural use. These disincentives to conversion may be only temporary if, as seems likely, the 1985 Act signals the phasing out of USDA program benefits and subsidies and the retuan of American agriculture to a more market-oriented stance.

Under § 1221¹⁰ of Title XII, as a general matter, any farmer who produces an agricultural commodity on a wetland converted after the Act's enactment becomes ineligible for a broad range of USDA financial assistance for all commodities that he produces during that crop year on any of his land holdings. The effectiveness of this stick depends on commodity prices. If prices rise in any year, a farmer may be inclined to risk foregoing Commodity Credit Corporation Charter Act benefits by raising crops on a converted wetland during that year. The added acreage should have a high financial yield and there would be no price support benefits to lose. The effectiveness of the § 1221 sanction could also be compromised by new § 125(a)¹¹ Technical Assistance programs. Under § 1251(a)(2),¹² the Secretary of Agriculture may formulate plans and provide assistance to property owners to enable them "to reduce their vulnerability to flood hazards that may also affect water resources." It would be most unfortunate if this program were used to facilitate wetland conversion, but it is clearly open to that abuse.

Needless to say, the swampbuster provisions contain a number of exemptions. Thus, the effectiveness of these provisions in deterring wetland conversions depends on: (1) how wetlands are defined nd delineated in the real world, (2) how broadly or narrowly the exemptions are defined, and (3) how aggressively the Secretary of Agriculture implements and enforces the program.

Wetland Definition

Section 1201(a)(16)¹³ of the swampbuster provisions defines "wetlands" rather broadly in terms of areas saturated or flooded long enough during the growing season to support hydrophytic vegetation adapted to hydric soils. This definition of a "wetland" is quite similar to that which the Department of the Interior uses in the NWI. Section 1201(b)¹⁴ further provides that the Secretary of Agriculture is to develop criteria for the identification of hydric soils and hydrophytic vegetation and lists of such soils and vegetation.

Given the comprehensiveness of the NWI data base and [16 ELR 10122] list of such soils and vegetation and its authoritative status under the Clean Water Act, it is reasonable to assume that the Department of Agriculture, as a matter of scientific accuracy and administrative efficiency, would adopt the NWI criteria and lists. The fact that the Secretary of Agriculture is to consult with the Secretary of the Interior in defining wetlands under § 1223¹⁵ should facilitate this process.

Exemptions

Section 1222¹⁶ sets forth a number of exemptions. The swampbuster provisions do not apply to anyone producting agricultural commodities on wetlands converted prior to the Act, artificial wetlands, or wet areas created by irrigation systems. Two other exemptions could be more problematic depending on their interpretation.

Under § 1222(a)(4), a person does not become ineligible for USDA loans, payments, and benefits as a result of producing crops on "wetland on which production of an agricultural commodity is possible as a result of a natural condition, such as a drought, and without action by the producer that destroys a natural wetland characteristic."¹⁷ Since most wetlands dry out in a drought, the limits on this exemption depend on the term "natural wetland characteristic."

In view of the definitions of "wetland" at § 1201(a)(16) as well as "converted wetland" at § 1201(a)(4)(A),¹⁸ natural wetland characteristics should include the wetland's natural hydrophytic vegetation, hydric soils, and hydrologic regime. In that case, the clearing of wetland trees, shrubs, and gresses; leveling of soils; and construction of ditches or levees that alter the area's hydrologic system would all destroy natural wetland characteristics. Arguably, during a dry year a farmer could plow and plant a herbaceous wetland, such as a prairie pothole, in the early spring before the grasses appear and qualify for this exemption, buy only if he did not in any way alter the wetland's natural hydrologic regime. However, since trees and shrubs do not die back annually, clearing or leveling of forested or shrub wetlands should never qualify the farmer for an exemption.

Another exemption of concern is § 1222(c),¹⁹ which provides that the Secretary of Agriculture may exempt a person from program ineligibility for any action associated with food production on a converted wetland if the effect of such action, "individually and in connection with all other similar actions authorized by the Secretary in the area, on the hydrological and biological aspect of wetland is minimal." This exemption smacks a bit of § 404(e),²⁰ the general permitting program of the Clean Water Act which allows the Corps of Engineers to exempt categories of actions that are similar and, individually and cumulatively, have minimal impact on the environment. Since agricultural conversion decimates wetlands for a significant period, at least certainly of forested and shrub wetlands, the effect of such action "on the hydrological and biological aspect of wetland" is never minimal. Thus, this exemption should not authorize conversion of such wetlands.

Under § 1223(2),²¹ the Secretary of Agriculture is to consult with the Secretary of the Interior on the determination of exemptions under § 1222 and is to issue regulations within six months dealing with program benefit ineligibility. We should soon know more about the Secretary's reading of these critical provisions.

Enforcement

The biggest question mark about the swampbuster provisions is its enforcement. USDA officials who work closely with farmers providing financial and technical assistance hardly have a reputation as vigorous defenders of wetlands. The Soil Conservation Service (SCS) has actively promoted drainage of wetlands through its so-called watershed protection projects. The SCS constituency is the agricultural community. Yet, the program will work in the field only if these officials half all USDA assistance and benefits whenever they see a farmer draining, leveling, or dredging a wetland and thereafter producing a crop on it. It is not evident that the Act offers the SCS or other USDA agencies any positive incentives to serve these environmental quality objectives.

Since vegetation is typically the most telltale sign of a wetland, farmers may attempt to clear and level wetlands with the hope that USDA officials will not notice the conversion. Such surreptitious conversions can be controlled through vigorous enforcement of the § 404 programs including notification to farmers applying for § 404 clearing permits of the swampbuster provisions and vigorous enforcement of § 404 penalty provisions. USDA officials must work closely with Department of the Interior scientists and take full advantage of the NWI maps, aerial photography, and soils maps to make sure that farmers claiming USDA benefits are not converting and then growing crops on wetlands. An aggressive program of farmer notification and education about the swampbuster program and how it dovetails with the § 404 program would be beneficial.

Beneficial Timing of the Program

The swampbuster (as well as sodbuster)²² program has arrived in a favorable climate for implementation and enforcement. With an existing surplus in agricultural production capability, and federal support for wetland conversion for agricultural use is not only environmentally unsound, but economically foolish. With the necessity to control federal spending for the economic health of the country, effective implementation of the swampbuster program should reduce federal USDA program benefits. The fiscal policy of the Title XII of the Food Security Act certainly is consistent with present federal budgetary objectives. In addition, if the country needs to expand its agricultural production capacity in the future, it can take steps now to allow this to happen without depending on wetland conversion. Such steps could include reducing federal subsidies for converting farmland to development use; controlling acid rain and ozone concentrations, which harm crops; and [16 ELR 10123] improving irrigation efficiency. Finally, the country is becoming increasingly concerned about pesticide levels in the nation's waters and pesticide residues in fish, waterfowl, and crops. Since crop production in former wetland areas often depends on heavy pesticide use and wetlands can protect downstream waters from pesticide contamination, vigorous enforcement of the swampbuster provisions will further the nation's health, safety, fiscal, and ecological interests.

Applicability of the Conservation Reserve Program to Wetlands

The swampbuster program at best will limit future wetland conversions. By itself it will not induce farmers to reconvert floodplain lands to wetlands, although reconversion in certain areas is the only practical tool for achieving Clean Water Act water quality standards and restoring critical aquatic ecosystems. The Food Security Act's conservation reserve²³ is designed primarily to induce farmers to take highly erodible cropland out of production under contracts of 10 to 15 years duration. Under § 1231(c)(2),²⁴ the Secretary could include in the conservation reserve program wetlands "that pose an off-farm environmental threat." Since so many floodplain wetland forests and shrubs have been cleared to the banks of creeks and streams that suffer from high levels of pesticides, nutrients, and sediments, many former wetlands should qualify under § 1231(c).²⁵

Further, under § 1232(c),²⁶ at least one-eighth of the number of acres placed in the conservation reserve in the 1986-1990 period are to be devoted to trees — a substantial environmental benefit. Floodplain areas that were forested should be ideal candidates to satisfy § 1232(c). On the other hand, given the limited term of the reserve contracts, the utility of planting trees is of questionable value. Reforestation makes sense only if the conservation reserve program provides for long-term or permanent contractual commitments.

Conclusion

The swampbuster program in the 1985 Food Security Act should reduce the rate of wetland conversions to agricultural use. Its utility depends in large part on its implementation by the Department of Agriculture, an agency which traditionally has served the agricultural community and not environmental interest. Its effectiveness could obviously increase if the Corps of Engineers and EPA would aggressively regulate agricultural conversion of wetlands under § 404 of the Clean Water Act. Proper coordingation of both the swampbuster and § 404 programs, with a full role for the department of the Interior, would greatly enhance the wetland protection. Congress should also act to reduce subsidies for wetland conversion in the form of federal water projects.

Finally, an effective national program is now needed to stimulate floodplain reforestation, which would improve water quality and meet fish and wildlife habitat objectives. An expansion of the conservation reserve program could aid in accomplishing these goals.

1. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101, as amended in 1977, now commonly referred to as the Clean Water Act.

2. 33 U.S.C. § 1344, ELR STAT. 42142. Section 404 directs the Army Corps of Engineers to issue permits for discharges of dredge and fill material in accordance with environmental standards promulgated by the Environmental Protection Agency. The § 404 program has been covered extensively in the ENVIRONMENTAL LAW REPORTER, see, e.g., Comment, The Supreme Court Endorses a Broad Reading of Corps Wetland Jurisdiction Under FWPCA § 404, 16 ELR 10008 (Jan. 1986); Habicht, A Justice Department View of Section 404 Implementation, 16 ELR 10073 (Mar. 1986); and in the NATIONAL WETLANDS NEWSLETTER generally.

3. United States v. Riverside Bayview Homes, __ U.S. __, 16 ELR 20086 (U.S. Dec. 4, 1985).

4. Avoyelles Sportsmen's League v. Marsh, 715 F.2d 297, 13 ELR 20942 (5th Cir. 1983).

5. National Wildlife Federation v. Hanson, 623 F. Supp. 1539, 16 ELR 20388 (E.D.N.C. 1985).

6. 33 U.S.C. § 1288i, ELR STAT. 42122:4.

7. Avoyelles Sportsmen's League v. Marsh, 715 F.2d 297, 13 ELR 20942.

8. P.L. No. 99-198, 99 Stat. 1504 (codified in various sections of Titles 7, 16, 19, and 42 of U.S.C. The conservation provisions will be codified in 16 U.S.C. and will be published in the ENVIRONMENTAL LAW REPORTER).

9. 16 U.S.C. § 3801.

10. 16 U.S.C. § 3821.

11. 16 U.S.C. § 2005(a).

12. 16 U.S.C. § 2005(a)(2).

13. 16 U.S.C. § 3801(a)(16).

14. 16 U.S.C. § 3801(b).

15. 16 U.S.C. § 3823.

16. 16 U.S.C. § 3822.

17. 16 U.S.C. § 3822(a)(4).

18. 16 U.S.C. §§ 3801(a)(16), and (a)(4)(A).

19. 16 U.S.C. § 3822(c).

20. 33 U.S.C. § 1344(e), ELR STAT. 42143.

21. 16 U.S.C. § 3823(2).

22. 16 U.S.C. § 3811. The sodbuster program denies federal farm benefits to anyone who plants any part of a crop on newly plowed, erodible land.

23. 16 U.S.C. § 3831.

24. 16 U.S.C. § 3831(c)(2).

25. 16 U.S.C. § 3831(c).

26. 16 U.S.C. § 3832(c).