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

John H. Davidson and Philip P. Chandler

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.

[31 ELR 11417]

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.

Although the statutory definition and implementing regulations seem clear enough as to what is or is not a wetland, the fact remains that the wetland delineation process is flexible and as subject to manipulation as the wetlands themselves. The task under either Swampbuster or the Clean Water Act's (CWA's) § 404³ is to choose the point at which water ends and land begins.⁴ Through the complexities of the National Food Security Act Manual (NFSAM), and its five supplements, state mapping conventions, and practices interpreting these conventions, delineation has become an even more elusive process.

The Prairie Pothole Region

The Prairie Pothole region of the northern Great Plains is one of the most extensive and valuable freshwater resources in the world, surpassed in the United States, perhaps, only by the Great Lakes and the Everglades. Unlike the latter two, however, the importance of the Prairie Pothole is not broadly appreciated, perhaps because the region in which it sits is thinly populated. Whereas the Everglades cover 13,000 square miles,⁵ the Prairie Pothole region encompasses fully 300,000 square miles in the United States and Canada.⁶ Moreover, the Prairie Pothole is a unique region of diverse wetlands on an open prairie landscape. Wetlands in this region function as habitat for wildlife, producing more than two-thirds of North American ducks. They retain run-off waters, sediments, and pollutants. They interact with groundwater and thereby play a role in protection of the quality and quantity of water used in homes, farms, ranches, and industry throughout the region and beyond. Most wetlands in the region are small and temporary, typically holding water for only a few weeks after spring runoff and for short periods of time after heavy precipitation events.

National policy has turned vigorously toward protection and restoration of the Great Lakes and Everglades, yet the Prairie Pothole is threatened with a process of destruction by incremental acts of land drainage of a combined magnitude comparable to that which, in the early 20th century, led to the loss of such magnificent regional water resources as the Kankakee Marsh⁷ and the Great Black Swamp.⁸

The Prairie Pothole is a region of deep rich soils and is recognized worldwide for its agricultural industry. While wetlands are valuable to society for the functions they provide, the cost of maintaining these values is borne by those who own or farm the land.⁹ Piece by piece, the Prairie Pothole [31 ELR 11418] is threatened with destruction by drainage. Drainage may be initiated by agricultural landowners who, because of low commodity prices and high production costs, feel compelled to exploit every option available in order to maximize their efficiency and increase production. Alternatively, as landholdings are consolidated, fencerows are removed and fields enlarged, leading landowners or corporate managers to seek "efficiencies" by altering drainage patterns which had been acceptable in an earlier period of smaller farms and diversified production. This industrialization of field agriculture represents the emerging threat to wetlands.

Headwaters: Wetlands at the Margins of Flowing Waters

If one pictures the region from south to north, the Prairie Pothole begins somewhere north of the Missouri River where that great stream separates Nebraska from South Dakota. As one moves north through South Dakota and Minnesota, the region contains perhaps 17,000 miles of gently flowing headwater wetlands that create and are tributary to prairie rivers. These wetlands have a soft gradient, which results in slight surface and sub-surface flows that cumulate gradually until they are the surface flows of tributary streams. As one moves northward through the "Coteau" region shared by North Dakota, South Dakota, and Minnesota, the land gradually becomes more level, and the prevalent type of wetland changes from headwater to isolated depressional pothole. While this latter category—the depressional potholes—gives the region its name, it is the nondepressional linear headwater wetlands that are most immediately threatened by farming interests in eastern South Dakota. Sloped headwater wetlands are at greater risk partly because depressional wetlands were considered paradigmatic when wetlands definitions, determinations, and delineations were formulated for the region, and partly because they do not enjoy the well-publicized (and more obvious) importance of depressional wetlands in wildfowl migration.¹⁰ It is characteristic of the problem that the NFSAM of the Natural Resources Conservation Service (NRCS), mentions the existence of sloped headwater wetlands, but devotes all discussion of examples to depressional wetlands.

Sloped headwater wetlands are those that lie between two hills (or any gradient) where the hills slope downwards toward each other and bottom out. While both depressional and sloped headwater wetlands are important for water quality, sediment control, groundwater recharge, wildlife habitat, water conservation, and flood control, sloped headwater wetlands serve as the source tributaries for prairie rivers and as important wildlife travel corridors, particularly for amphibians, reptiles, and insects. The sloped headwater wetlands of the Prairie Pothole, for example, contribute materially to the survival of many federal- and state-listed endangered and threatened species.

Sloped headwater wetlands exhibit all the typical wetland characteristics. Like depressional wetlands, they may be permanent, semi-permanent, seasonal, or temporary. They have hydric soils and support hydrophytic vegetation. They have saturated soils beneath them, but because of their gradient the water held by the soil moves slowly downhill. Seasonal and temporary sloped headwater wetlands manifest surface hydrology only briefly, during spring runoff and after major runoff events. They rarely show prolonged inundation and ponding, although they may be found in conjunction with depressional wetlands.

Sloped headwater wetlands also provide all the essential benefits of depressional wetlands. They store water, trap nutrients and sediments, discharge water to shallow groundwater aquifers, reduce downstream flooding, provide water downstream during periods of low flow, and provide on-site wildlife cover. They are important travel corridors for all wildlife, being especially valuable to low-mobility wildlife such as amphibians, reptiles, and invertebrates. Many birds nest in them, and others use them for cover in all seasons. They augment low flows to downstream aquatic life and provide good quality water through sediment retention, nutrient uptake, and denitrification.

Given these important functions, the NRCS' lack of attention to sloped headwater wetlands needs more explanation. The problem may be that some sloped wetlands are entirely obvious and present no temptation or even opportunity for destruction, whereas others are hardly obvious, and the destruction of any one of them would result in damage apparent only to the expert eye.¹¹ In the class of obvious wetlands may be grouped rivers, streams, creeks, and their minor tributaries. In the class of the non-obvious are the headwater wetlands of the upper reaches of prairie watersheds, the wetlands from which headwaters are gathered; it is these sloped headwater wetlands that are at risk of drainage for the sake of farming convenience, with the predictable results of loss of wetland function and increased, damaging flow rates downstream.

Although the distinction between "depressional" and "nondepressional" or between "sloped headwater" and [31 ELR 11419] "isolated" is apparent to anyone familiar with this terrain, it does not receive firm acknowledgment in the science texts.¹² Federal regulatory agencies have recognized the distinction. At the field operations level, the NRCS uses the words "sloped" and "linear" to describe these headwater wetlands. Regulations of the U.S. Army Corps of Engineers (the Corps), however, make the distinction more openly:

Headwaters means non-tidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are part of a surface tributary system to an interstate or navigable water of the United States upstream of the point on the river or stream at which the average annual flow is less than five cubic feet per second. The DE [district engineer] may estimate this point from available data by using the mean annual area precipitation, area drainage basin maps, and the average runoff coefficient, or by similar means. For streams that are dry for long periods of the year, DEs may establish the point where headwaters begin as that point on the stream where a flow rate of five cubic feet per second is equaled or exceeded 50 percent of the time.¹³

And the U.S. Environmental Protection Agency (EPA) regulations are also helpful:

Where wetlands are adjacent to open water, they generally constitute the transition to upland. The margin between wetland and open water can best be established by specialists familiar with the local environment, particularly where emergent vegetation merges with submerged vegetation over a broad area in such places as the lateral margins of open water, headwaters, rainwater catch basins, and groundwater seeps. The landward margin of wetlands also can best be identified by specialists familiar with the local environment when vegetation from the two regions merges over a broad area.¹⁴

What emerges is a large and functionally vital category of wetlands "at the margin" between open water and upland.

The Particular Vulnerability of Sloped Headwater Wetlands

Sloped headwater wetlands provide a useful example of the wetlands delineation process as applied because they are particularly vulnerable to permanent conversion, despite the apparent deterrence of Swampbuster.

Sloped headwater wetlands are by definition linear, often running for long distances through otherwise cultivable farm fields. Because these wetlands divide fields, landowners find them a particular nuisance, and look for devices to justify removal. In addition, because they yield their water to downstream flows, headwater wetlands are inclined, in dry years, to lose surface water rapidly and are therefore susceptible to agricultural cultivation early in the season. Thus, in a driver year a landowner may actually grow crops in headwater wetlands or, at the least, mow off the vegetation later in the summer. The effect of such a practice is cumulative. In the following year, because of the absence of vegetation, the headwater will yield its water quickly and at a greater velocity, with predictable results. First, the land will dry even more rapidly and likely be cultivated again; and, second, the increased velocity will cause the land to commence erosion, the first stages of "cutting" an erosion ditch. Although wetter years may intervene, and hydrophytic vegetation will reappear, drier years will return, and the process of degradation will continue. Meanwhile, the "nuisance" effect for the farmer is increased because of his new reliance on machinery of an unprecedented size and for which a turn in order to avoid wet ground is a major transaction, and, often because he is indeed pressed to produce more to compensate for lower prices and higher costs.

At this point the landowner or farmer will propose to bury continuous perforated pipe (tile) parallel to each side of the sloped headwater. The landowner's goals are in the alternative. If surface erosion (cutting) is now severe, he or she may desire to "tile" in order to avoid the eroding effect of fast surface runoff. The tiling is also desired in order to assure that the headwater is dry every year so as to allow cultivation and "farming through." The farmer may simply intend to plant the headwater to grass, and in that way provide that the farm machinery can move through unimpeded. No matter the incentive, the proposed "tiling" threatens to be the last step in a process which destroys the wetland.

Before undertaking this tiling project, the farmer will contact the NRCS for a wetland delineation. The administrative process which follows is critical, and provides the point at which Swampbuster and § 404 take on substance¹⁵; ultimately, the effectiveness of these statutes comes down to the details of the delineation process.

The Swampbuster Provision

The key prohibitions in the "Swampbuster" legislation, as it has been revised, are two. If agricultural commodities have been produced on wetlands converted after December 23, 1985, the producer becomes "ineligible for loans or payments in an amount determined by the Secretary to be proportionate to the severity of the violation."¹⁶ In addition, if, after November 28, 1990, the producer "converts a wetland by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making the production of an agricultural commodity possible," he shall become ineligible.¹⁷ Federal loans and support payments are the benefits that are withheld.¹⁸

Swampbuster defines wetlands in these words:

The term "wetland," except when such term is part of the term "converted wetland," means land that—

(A) has a predominance of hydric soils;

(B) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and

(C) under normal circumstance does support a prevalence of such vegetation.¹⁹

Hydric soils are defined as:

soil that, in its undrained condition, is saturated, flooded, [31 ELR 11420] or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation.²⁰

and hydrophytic vegetation is defined as:

a plant growing in—

(A) water; or

(B) a substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content.²¹

Thus, determining whether a wetland exists is the key step in this regulatory process. Two departments of the USDA participate. The NRCS determines whether wetland criteria have been met.²² This decision is appealable within the NRCS.²³ When the wetland determination is final, the Farm Services Agency (FSA) then decides whether the producer is eligible to receive loans and support payments, an action which includes a decision whether any of Swampbuster's exemptions apply.²⁴ The FSA's decision is also appealable within the agency and through a national appeals division.

In most non-enforcement cases, the process of wetland delineation is initiated by the producer. This is done by filing a form known as "AD-1026" with the FSA at the time benefits are applied for,²⁵ and with the NRCS when the producer is planning a project which may have an effect on a potential wetland. On the AD-1026 the producer must certify that he will not "plant an agricultural commodity on a converted wetland; or convert a wetland to make possible the production of an agricultural commodity during the crop year in which a person is seeking such benefits unless such actions are exempt, . . ."²⁶ When filed with the FSA, the AD-1026 is referred to the NRCS if a wetland delineation is requested.

Mapping Conventions

As defined by the NFSAM, mapping conventions are:

[A] set of accepted practices and procedures, agreed to by EPA, FWS, COE, and NRCS, used to guide the wetland delineator in using off-site tools in the preliminary stages of potential wetland identification for the purposes of making a certified wetland determination/delineation on agricultural lands.

Mapping conventions are state-specific procedures developed to interpret off-site and remotely sensed data to identify wetlands. They are generally applied to disturbed areas such as crop fields where they have been shown to work well.

Mapping conventions may vary by State or region in response to regional differences in wetland characteristics, agricultural activity, and the availability of offsite data.²⁷

The use of mapping conventions is formalized in a formal memorandum of agreement,²⁸ which contains the following language:

V. Procedures

Accurate and consistent wetland delineations are critical to the success of this MOA. For this reason, the signatory agencies will work cooperatively at the field level to: (1) Achieve interagency concurrence on mapping conventions used by [the NRCS] for wetland delineations on agricultural lands.

A. Mapping Conventions

1. Each NRCS State Conservationist [STC] will take the lead in convening representatives of the Corps, EPA, FWS, and [the NRCS] to obtain the written concurrence of each of the signatory agencies, within 120 calendar days of the effective date of this MOA, on a set of mapping conventions for use in making wetland delineations. Only mapping conventions concurred upon by all signatory agencies will be used by [the NRCS] for wetland delineations.²⁹

2. If interagency consensus on mapping conventions is not reached within 120 days of the date of this MOA, the STC will refer documentation of the unresolved issues to the Chief of [the NRCS]. The Chief of [the NRCS] will immediately forward copies of the STC's documentation of unresolved issues to the Corps Director of Civil Works; the EPA Director of the Office of Wetlands, Oceans, and Watersheds; and the FWS Director. Immediately thereafter, the Chief of [the NRCS] or an appropriate designee will lead necessary discussions to achieve interagency concurrence on resolution of outstanding issues, and will forward documentation of the resolution to the STC and the appropriate Headquarters offices of the signatory agencies.

3. Once interagency concurrence on mapping conventions is obtained, such mapping conventions will be used immediately in place of the earlier mapping conventions.³⁰

4. Agreed-upon mapping conventions developed at the state level will be documented and submitted, for each state, through the Chief of [the NRCS] to the Headquarters of each of the signatory agencies. State-level agreements will be reviewed by the Headquarters of the signatory agencies for the purpose of ensuring national consistency.

Even though mapping conventions may vary from region to region and even from state to state, the NFSAM requires that the ones used be "based on field-tested correlation between off-site information and on-site wetland determinations."³¹ Further, according to the NFSAM, mapping conventions should ensure, inter alia, that:

[31 ELR 11421]

. if aerial slides or photographs are used, wetland signatures that are identified are closely correlated with wetland hydrology;

. if aerial slides or photographs are used, a minimum of five years of aerial slides or photographs which indicate normal precipitation will be used, or an equal number of wetter and driver years are used when an insufficient number of normal years slides or photographs are available;

. years of aerial slides or photographs that display wetland signatures which are closely correlated to wetland hydrology are used to identify potential wetlands;

. climatological conditions, especially unusual precipitation events preceding the dates of photography, are considered; and

. climatological data [are] used to ensure that wetland signatures are reflective of long-term hydrological conditions.³²

After an initial correlation between off-site information and on-site wetland determinations is conducted, off-site information may be used to screen out areas from designation as wetlands. This abuse of the conventions is especially likely to occur with respect to sloped headwater wetlands, because their wetland signatures are unlikely to be closely correlated with wetland hydrology, for the simple reason that, as noted earlier, sloped headwater wetlands are not likely to evince surface hydrology of any duration—except in the case of unusual precipitation events, when surface hydrology would be discounted.

Minimal Effects

In 1985, a minimal effect exemption was included in the original Swampbuster legislation, as follows:

The Secretary shall exempt a person from the ineligibility provisions of [§] 3821 of this title for any action associated with the production of an agricultural commodity on a converted wetland, or the conversion of a wetland, if one or more of the following conditions apply, as determined by the Secretary: (1) The action, individually and in connection with all other similar actions authorized by the Secretary in the area, will have a minimal effect on the functional hydrological and biological value of the wetlands in the area, including the value to waterfowl and wildlife.³³

Congressional comment on this provision included the following general guidance:

[The bill] also provides [that] these sanctions [i.e., determinations of ineligibility for participation in federal farm programs] would not apply to persons who produce agricultural commodities . . . on converted wetlands where impacts of that conversion on wetland functional values would be minimal. . . . In determining the degree of impact on functional wetland values, the Secretary shall consider such factors as the value of the wetland for wildlife habitat, pollution control, groundwater recharge, flood control, location of the affected wetland relative to other wetlands, water depth and permanency, and other wetland quality factors.³⁴

In 1990, in response to pressure from various agricultural interests, Congress modified Swampbuster. As to minimal effects, the Congress was concerned that farmers were prevented by the statute from farming areas technically designated wetlands, but which provided very little in the way of wetland functions:

The Committee believes the wetlands that are afforded protection under Swampbuster should provide wetland functions and values. The FSA provided for the drainage of wetlands where the effects were minimal. Professional biologists report that there are wet areas on farmland or potential farmland that provide minimal wetland functional values, but that are still technically wetlands and subject to Swampbuster. The Committee does not believe [that] farmers should be precluded from draining or otherwise manipulating these areas for agricultural purposes, and for this reason has modified the minimal effects language in the 1985 Act.³⁵

Elsewhere in its report, the Senate committee described three basic changes made in the 1985 Swampbuster provisions:

The first establishes an active minimal effects/mitigation process. Producers who drain wet areas and as a result have a minimal effect on wetland functional values will not be in violation of Swampbuster. . . . The Soil Conservation Service (SCS) [now NRCS] and the Fish and Wildlife Service (FWS) must concur at the local level on minimal effects determinations. . . . If no concurrence is possible, the final decision is made at the [NRCS] State or Federal level, in consultation with the FWS. . . .

. . .

The third Swampbuster change alters the trigger for Swampbuster violation. Under current law, violation occurs when a producer plants an agricultural commodity on a converted wetland. A violation is now triggered at the conversion of a wetland with the potential of being planted to an agricultural commodity.³⁶

Statutory Application

By way of the following language, the NRCS is directed to apply the statute:

(1) General exemptions. A person shall not be determined to be ineligible for program benefits under § 12.4 as the result of the production of an agricultural commodity on converted wetland or the conversion of wetland if: . . . (v) [The] NRCS has determined that the actions of the person with respect to the conversion of the wetland or the combined effect of the production of an agricultural commodity on a wetland converted by the person or by someone else, individually and in connection with all other similar actions authorized by [the] NRCS in the area, would have only a minimal effect on the wetland functions and values of wetlands in the area.³⁷

[31 ELR 11422]

This language is repeated in the Federal Register³⁸ and in the NFSAM.³⁹ Agency regulations further specify how the minimal effect determination is to be carried out:

For purposes of [§] 12.5(b)(1)(v) of this part, [the] NRCS shall determine whether the effect of any action of a person associated with the conversion of a wetland, the conversion of wetland and the production of an agricultural commodity on converted wetland, or the combined effect of the production of an agricultural commodity on a wetland converted by someone else has a minimal effect on the functions and values of wetlands in the area. Such determination shall be based upon a functional assessment of functions and values of the wetland under consideration and other related wetlands in the area, and will be made through an on-site evaluation. A request for such a determination will be made prior to the beginning of activities that would convert the wetland. If a person has converted a wetland and then seeks a determination that the effect of such conversion on [that] wetland was minimal, the burden will be upon the person to demonstrate to the satisfaction of [the] NRCS that the effect was minimal. The production of an agricultural commodity on any portion of a converted wetland in conformance with a minimal-effect determination by [the] NRCS is exempt under [§] 12(b)(1)(v) of this part. However, any additional action of a person that will change the functions and values of a wetland for which a minimal-effect determination has been made shall be reported to [the] NRCS for a determination [ [ whether the effect continues to be minimal. The loss of minimal effect determination will cause a person who produces an agricultural commodity on the converted wetland after such change in status to be ineligible, under [§] 12.4, for certain program benefits. In situations where the wetland functions and values are replaced by the restoration, enhancement, or creation of a wetland in accordance with a mitigation plan approved by [the] NRCS, the exemption provided by the determination will be effective after [the] NRCS determines that all practices in a mitigation plan are being implemented.⁴⁰

No Federal Register citation is provided for this section of the Code of Federal Regulations. That fact, coupled with the fact that the statutory language⁴¹ is repeated verbatim in the regulation, the Federal Register, and the NFSAM, leads ineluctably to the conclusion that the State Conservationist (STC) of each state NRCS office has great discretion as to how the minimal effects determination is to be made.

The extent of the STC's discretion is made clear elsewhere in the NFSAM: "The STC, in consultation with the State Technical Committee, will have the responsibility of . . . developing a 'decision rule' (thresholds) for treating functional assessment output data in making minimal effect decisions."⁴² In its discussion of the new 2-4-5 rule (discussed infra) and the computerized hydrogeomorphic model (HGM) used in connection with it, Amendment 5 to the NFSAM (September 2000) is even more explicit:

The approach to processing HGM output for use in making minimal effects determinations is provided as a national framework [1] for direct application or [2] to be modified by the [STC] in consultation with the State Technical Committee, to better reflect local conditions. Threshold levels may be adjusted through modification of baseline index of performance categories or shifting the acceptable level of decrease within each category. The process may also be modified by altering the decision rule, if appropriate.⁴³

Amendment 5 institutes significant changes in the procedures for determining whether effects are minimal. Of course, certain background questions naturally arise, including how and on what basis these changes were decided upon, and whether the appropriate protocol in making them was followed. One of the important changes introduced by Amendment 5 involves wetland indicators:

Wetland indicators are used to verify the criteria for hydric soils, hydrophytic vegetation, and hydrology. In making wetland determinations and/or delineations, these indicators are considered independent variables, but evaluated by the preponderance of the evidence.⁴⁴

The implication of this change is clarified by a later passage:

While the indicators are initially considered as independent variables in the determination process, it is the preponderance of the evidence—that is, the weight of all the indicators together—that leads to the final determination of wetland conditions. These indicators are gathered during on-site reviews.⁴⁵

Introduction of the preponderance-of-the-evidence criterion is especially problematic for the preservation of sloped headwater wetlands because, as noted, the hydrology there is fleeting, and when hydrology goes, hydrophytes go with it, as farmers continue to spray, mow, and till. It is only the hydric soils that cannot be changed by ordinary manipulations, but if their presence is not allowed more weight than the preponderance criterion would suggest, wetlands will not be adequately protected.

One of the changes in field procedure involves criteria for determining whether soil in a candidate wetland area is hydric. Much of the soil in eastern South Dakota is very dark, almost black in its uppermost layer, and it is correspondingly difficult to determine whether such soil is hydric or not, particularly if it has been recently cultivated. Formerly, NRCS field agents were required to examine soil conditions substantially more than a foot below the surface, i.e., below the level of cultivation.⁴⁶ That examination would reveal whether the soil, at that depth, had become gray (a sign of hydric soil) or yellow (a sign of nonhydric soil). Under the changed procedures, NRCS personnel are no longer allowed to look more than a foot below the surface. As a result, it is practically impossible to determine in the field whether a potential wetland area has hydric soil or not. Since the burden is on the NRCS to show that the soil is hydric (rather than on the landholder to show that it is [31 ELR 11423] nonhydric), the new procedure has the result that hydric soils are seldom found. And since the presence of hydric soils is necessary for wetland designation, wetlands are seldom found. Of course, if an area is not a wetland, there is no need to worry about eligibility under Swampbuster when that area is drained.⁴⁷

Probably more significant is the proposed adoption in South Dakota of a sliding scale to determine whether an effect is minimal or not. The current minimal effects threshold in South Dakota is set at a maximum 10% loss in functional capacity units (FCUs). A minimal effect can be granted for sites with a loss in FCUs between 10% and 20%, as long as conditions are implemented that minimize the impacts to those FCUs affected. Loss of 20% or more of FCUs for any single function would require mitigation (or approval by the STC).

Amendment 5 makes a drastic change in the way minimal effects are to be calculated.⁴⁸ Mandating the use of a computer program to model hydrology and biogeochemical functions (the HGM), Amendment 5 introduces a sliding scale whereby the threshold level of allowable manipulation for a given wetland is determined by the degree to which the wetland approaches its full, i.e., natural or unmanipulated, functionality. As will be seen, this sliding scale is literally a slippery slope: the more a manipulated wetland departs from full functionality, the greater the degree of further manipulation is allowed.

There are three levels of functional performance: 80%-100%, 50%-79%, and below 50%. Wetlands in the first group may be manipulated to the extent of allowing up to a 20% decrease in its initial functionality; those in the second group, up to 40%, those in the third group, up to 50%. (From the varying percentages—20, 40, 50—comes the designation "2-4-5 rule.") So that, for example, a poorly functioning wetland (one that is below 50% of its natural functionality) may be manipulated to allow a further decrease of up to 50% of its remaining functionality. On the other hand, a reasonably well-functioning wetland (one that is above 80% of its natural functionality) may be manipulated to allow only a further decrease of up to 20% of its remaining functionality. This result means that the more degraded the wetland is prior to evaluation, the greater the chances that the proposed manipulation will be considered minimal.

By contrast, South Dakota's past practice allowed no more than a 10% decrease in wetland functionality for a given manipulation to be classified as having a minimal effect.⁴⁹ Clearly, this practice is more protective of wetlands than is the Amendment 5 sliding scale. However, South Dakota NRCS is under continuing pressure to respond to the NFSAM guidance that regional consistency be sought across state lines. This pressure may, in a kind reading of the facts, have been the motivating factor behind the ill-fated attempt of May 1999, to bring South Dakota's minimal effects determinations into closer accord with Minnesota's.⁵⁰ Currently, South Dakota NRCS officials are considering the adoption of a variation of the Amendment 5 sliding scale, a 1-2-4 rule.⁵¹

From one point of view, the proposed 1-2-4 rule is more protective of wetlands. For example, a relatively well-functioning wetland (one that is above 80% of its natural functionality) may be manipulated to allow only a further decrease of up to 10% of its remaining functionality. However, for nondepressional wetlands, that wetland-protective feature may well be overshadowed by the fact that the proposed 1-2-4 rule considers only two of the several hydrology functions that are to be considered in the 2-4-5 rule. Even worse, where the NFSAM rule does not allow a given manipulation to reduce any hydrology functions below threshold levels and still be considered a minimal effect, the proposed South Dakota rule would allow any manipulation if the existing hydrology functional capacity is below 50% of its natural functionality and the existing biogeochemical functional capacity is below 25% of its natural functionality—and that manipulation would still be considered to have produced a minimal effect. Furthermore, no consideration whatever is given to the status of the area after the manipulation: will it still be a wetland in any meaningful sense?

Perhaps as good a way as any to grasp the bizarre character of the 2-4-5 rule as well as its 1-2-4 South Dakota cousin is to note the solicitude with which Congress looks upon restored wetlands. Consider the following two passages from the 1990 Senate Report No. 101-357:

Restored wetlands in the prairie pothole region might include the wet area, native grasses and other appropriate vegetation, and sufficient upland area to provide adequate habitat.⁵²

In delineations of and calculation of minimal effects on existing wetlands, there is far less, if any, concern with upland habitat than there is indicated here for restored wetlands.

[Several agricultural activities that can be undertaken for the economic benefit of the landowner] can all be consistent with protecting wetland functional values [but] must not result in degradation of the wetland.⁵³

Restored wetlands should not be degraded, but existing wetlands may be!

General Observations

This brief description has shown that while the defining characteristics of a protected wetland appear to be stated in Swampbuster in terms that reflect wetland science correctly, [31 ELR 11424] the process of wetland delineation is, as practiced on agricultural lands, thoroughly malleable, and governed by arcana not detectable in either the legislation or promulgated rules.⁵⁴ Through aggressive expansion of regulatory detail such as "minimal effects," "scope and effect," "normal circumstances" and other phrases, agricultural landowners and the NRCS are able to exclude from protection vast acreage of functionally vital wetlands.

There are no empirical data that describe the amount of wetlands lost as a result of this process, for the agency will report only the amount of wetlands actually protected. When NRCS, using "minimal effects" and other devices, allows drainage to occur it has in fact decided that there is no wetland to be protected and, therefore, no wetland loss to be reported.

On the ground in farm country, the sound policy of Swampbuster yields to a nearly invisible subsystem of wetland delineation that is weighted in favor of drainage, and in some situations, such as those involving headwater wetlands, becomes a mere licensing device for wetland drainage. The result is that in midwestern farm country it is now commonplace to see large yellow trenching equipment in farm fields, installing the great rolls of flexible perforated pipe (tile) for the sole purpose of draining wetlands on agricultural lands. The many thousands of miles of headwater wetlands are most immediately threatened, but the process—the point of this short piece—applies more generally.

Coda: Protection of Headwater Wetlands Can Survive SWANCC

The recent U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corp of Engineers (SWANCC)⁵⁵ might seem to be a threat to the protection of the headwater wetlands discussed in this Article. But a closer reading of the case shows that the crucial precedent of United States v. Riverside Bayview Homes, Inc.⁵⁶ remains in force.

In Riverside Bayview, the Court addressed the question "whether the CWA . . . together with certain regulations promulgated under its authority by the . . . Corps . . . authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries."⁵⁷ In addressing this specific question, the Court had to face the more general question whether the Corps' interpretation of what constitutes wetlands protected by the CWA was reasonable. The Court, per Justice Byron White, concluded "that a definition of 'waters of the United States' encompassing all wetlands adjacent to other bodies of water over which the Court has jurisdiction is a permissible interpretation of the Act."⁵⁸ The key term for present purposes is "adjacent"; precisely not in question were "isolated" wetlands, those not adjacent to "waters of the United States."

In SWANCC, the Court (per Chief Justice William H. Rehnquist) held that the Corps' rule extending the CWA's definition of "navigable waters" to include intrastate waters used as habitat for migratory birds exceeded the authority Congress granted to the Corps under the CWA. In the course of discussion, the Court explicitly refused to extend "Riverside Bayview to [hold] that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under § 404(a)'s definition of 'navigable waters' because they serve as a habitat for migratory birds."⁵⁹ In addition to the Court's clear restriction of its decision to the Migratory Bird Rule,⁶⁰ one should note that the key term is "isolated"; where Riverside Bayview addressed wetlands adjacent to waters of the United States, SWANCC addressed wetlands not adjacent to waters of the United States.

As to headwater wetlands, then, the question that is posed when Riverside Bayview and SWANCC are taken together is whether such wetlands are isolated or adjacent to waters of the United States. If they are isolated, the fact that they may serve as habitat for migratory birds does not suffice to protect them under § 404(a). If, on the other hand, they are adjacent to waters of the United States, that fact alone provides sufficient reason for § 404(a) protection. But with the dichotomy so clearly stated, there can be no doubt that headwater wetlands are adjacent to waters of the United States, because they are the source of those waters.⁶¹ As, for the poet, "the child is father of the man," so, for the scientist, headwater wetlands are the fathers of inland navigable waters. Without the incremental contributions of these wetlands, rivers would not exist.

1. 16 U.S.C. §§ 3821, 3822; Food Security Act of 1985, Pub. L. No. 99-198, tit. XII, subtit. C (1985) (amended by the Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624, 104 Stat. 3568 (1990)).

2. Agency jurisdiction over Swampbuster is divided. The Natural Resources Conservation Service (NRCS) is charged with "delineation," which is the determination of what is or is not a wetland for purposes of Swampbuster. The Farm Service Agency determines eligibility for farm programs. Both agencies are in the U.S. Department of Agriculture.

3. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

4. "In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 16 ELR 20086, 20089 (1985).

5. WILLIAM J. MITSCH & JAMES G. GOSSELINK, WETLANDS 53 (2d ed. 1993).

6. Id. at 54.

7. Id. at 60.

8. Id. at 61.

9. WILLIAM H. RODGERS JR., 2 ENVIRONMENTAL LAW: AIR AND WATER 183 (1986) says it best:

In the regulation of wetlands, as with most environmental regulation, the benefits are broadly shared while the costs are concentrated, assuring an angry loser class with a distinct desire to set things right. The situation also is one where the conduct condemned used to be praised—it was called land reclamation—and this reversal of professed values obviously leaves strong pockets of resistance. There is more—benefits of wetlands protection are often incremental, sometimes marginally invisible, are not linked to human health, all considerations raising the ante of adequate justification; and as the regulation creeps inland assumptions about protecting the public commons shift to expectations of private entitlement—in maintaining the farm, building the home, and improving the ranch, . . . .

10. For example, a major distinction in wetland determination is that between farmed wetlands (FW) and prior converted cropland (PC). FWs are areas that were manipulated and cropped before December 23, 1985, but still meet wetland criteria. PCs were also manipulated and cropped before that date, but no longer exhibit wetland characteristics. No Swampbuster restrictions are placed on PCs (except that any manipulations may not "convert adjacent wetland labels," but FWs may be farmed only as they were before the given date, with exceptions given only for further manipulations that result in "minimal effects" on the FWs wetland functions. In other words, no drainage facility can be installed in wetlands. Drainage facilities in FWs can be maintained to their original scope and effect, except for "minimal effect" manipulations. PCs are unregulated.

11. Note the differential effects of a mere definition on depressional and nondepressional wetlands: The designation FW "includes potholes, playas, and pocosins that are seasonally inundated for at least 7 consecutive days or saturated for 15 consecutive days during the growing season." However, "if the area is not potholes, playas, or pocosins, it must be seasonally flooded or ponded for 15 consecutive days during the growing season." NRCS, NATIONAL FOOD SECURITY ACT MANUAL 515-17 (3d ed., Amend. 2, Nov. 1995) (180-V-NFSAM). Now, headwater wetlands are neither potholes, playas, or pocosins, but they are by nature unlikely to be flooded or ponded for 15 days at any time during the year because water will continue to flow out of them. It follows that they will not receive protection as FWs.

12. We are not here speaking of riverine wetlands as those are defined in the texts, although the similarities are important.

13. 33 C.F.R. § 330.2(d).

14. 40 C.F.R. § 230.41(a)(2).

15. When agricultural lands are involved, the Corps relies on NRCS wetland delineations.

16. 16 U.S.C.A. §§ 3821(a), 3822(b).

17. Id. § 3821(c).

18. Id. § 3821.

19. Id. § 3801(18).

20. Id. § 3801(10).

21. Id. § 3801(11).

22. 7 C.F.R. § 12.6(c)(5).

23. Id. §§ 12.6(c)(16), 12.12, & pt. 614.

24. Id. § 12.6(b).

25. Id. § 12.7(a)(1).

26. Id. § 12.7(a)(2).

27. NRCS, NATIONAL FOOD SECURITY ACT MANUAL 513-17 (3d ed., Amend. 5, Sept. 2000) (180-V-NFSAM) [hereinafter NATIONAL FOOD SECURITY ACT MANUAL].

28. Interagency Memorandum of Agreement (MOA) Concerning Wetlands Determination for Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food Security Act, 59 Fed. Reg. 2920-01 (Jan. 19, 1994). To further confuse matters, on July 3, 1996, the NRCS issued a "Circular No. 1" which appears to reduce the role of mapping conventions and thus the role of the other MOA partners. The legality of such unilateral action has yet to be tested.

29. To this paragraph the NFSAM adds the following sentence: "Mapping conventions are not intended to diminish, modify, or otherwise affect statutory or regulatory authorities of any of the signatory agencies." NATIONAL FOOD SECURITY ACT MANUAL, supra note 27, at 513-18.

30. To this paragraph, the NFSAM adds the following sentence: "Any future changes identified as a result of field activities will be concurred by EPA, COE [the Corps], and FWS [U.S. Fish and Wildlife Service]." Id.

31. Id. at 513-19.

32. Id.

33. 12 U.S.C. § 3822(f) (emphasis added).

34. 1985 U.S.C.A.A.N. 1192.

35. S. REP. No. 101-357, at 130-37 (1990).

36. Id.

37. 7 C.F.R. § 12.5(b).

38. 61 Fed. Reg. 47019, 47030 (Sept. 6, 1996).

39. NRCS, NATIONAL FOOD SECURITY ACT MANUAL 527-621 (3d. ed., March 1994).

40. 7 C.F.R. § 12.5(b).

41. 12 U.S.C. § 1322(f).

42. NRCS, NATIONAL FOOD SECURITY ACT MANUAL 516-25 (3d ed., Amend, 3, Aug. 1998) (180-V-NFSAM).

43. NATIONAL FOOD SECURITY ACT MANUAL, supra note 27, at 526-47a.

44. Id. at 513-15.

45. Id. at 527.4, 527-185.

46. Id. at 527.4: "Soils Indicators. . . . To fully document a hydric soil, the soil should be examined and described to whatever depths are necessary to test for the presence of applicable hydric soils indicators. In most soils, the depth of excavation should be at least 50 cm [centimeters] or 20 inches."

47. Another important fact from the field: every FW designation has been returned from headquarters as a PC.

48. NATIONAL, FOOD SECURITY ACT MANUAL, supra note 27, at 526-47, 526-47a, 526-48.

49. Earlier South Dakota NRCS personnel used the following "Minimal Effect Threshold Decision Guidance": "Minimal Effect: A 10[%] decrease of functional capacity units for 1 or more functions would exceed the threshold for a minimal effect. Exceptions to this rule will have documentation for exceeding 10[%] that has been reviewed and approved by the NRCS [STC]." NRCS, NATIONAL FOOD SECURITY ACT MANUAL SD516-19 (3d ed., Amend. SD1, Feb. 1998).

50. Minnesota has an approved minimal effect practice that will allow the installation of tile in association with grassed waterways on slopes of 0.5% or greater. South Dakota allows the installation of a grassed waterway on slopes of 1% or greater, and does not currently allow installation of tile. "Both states will be allowed to install tile under a minimal effect practice that will control erosion on slopes 0.5% or greater. . . ." Memorandum of Dean Fisher, South Dakota STC, to All NRCS Offices (May 13, 1999) (on file with authors).

51. The adoption of the 1-2-4 rule seems to be in conformity with the Amendment 5 guidance allowing the 2-4-5 rule to be "modified . . . to better reflect local conditions." The question, however, is what local conditions are better reflected by the 1-2-4 rule?

52. 1990 U.S.C.C.A.N. 4871.

53. Id. at 4872.

54. Leading legal texts on the subject of wetland regulation do not address this subject. See, e.g., WILLIAM L. WANT, LAW OF WETLAND REGULATION (Supp. 2000).

55. 121 S. Ct. 675, 31 ELR 20382 (2001).

56. 474 U.S. 121, 16 ELR 20086 (1985).

57. Id. at 123, 16 ELR at 20086.

58. Id. at 135, 16 ELR at 20089.

59. 121 S. Ct. at 682, 31 ELR at 20384.

60. In SWANCC, the Court did not rule on other bases of CWA jurisdiction over isolated wetlands, only on the Migratory Bird Rule. Accordingly, it is still open to the Corps to find jurisdiction over isolated wetlands on some other factually sound basis. For example, if filling or other degradation of a wetland might contribute materially to downstream flooding or to degradation of a receiving stream, an impact on interstate commerce might be found. Or, if filling or other degradation of a wetland will reduce the habitat of a federally listed or endangered species, jurisdiction might also be found.

61. Discussion of headwater wetlands is found in Borden Ranch Partnership v. Corps of Eng'rs, 261 F.3d 810 (9th Cir. 2001).