SWAMPBUSTER PROGRAM

The USDA/NRCS has primary regulatory authority over wetlands related to agricultural lands, The authority of the USDA/NRCS over wetlands is established by the "Swampbuster" provisions of the Natural Food Security Act and its subsequent amendments. In much the same way the USF&WS provides oversight to the USACE for Section 404 regulations, the USDA/NRCS receives oversight assistance from the USF&WS and the USEPA for the Swampbuster program (U.S. Department of Agriculture 1996).

Swampbuster Enforcement
The USDA/NRCS has the authority to enforce compliance with the Swampbuster provisions of the NFSA by denying landowners eligibility for USDA benefits. According to the National Food Securities Act Manual, persons are ineligible to receive USDA benefits for any year in which they plant an agricultural commodity on wetlands converted between December 23, 1985 and November 28, 1990, unless the converted wetlands have been mitigated. Persons who convert wetlands after November 28, 1990 in such a way as to make the production of an agricultural commodity possible, remain ineligible for USDA benefits until the converted wetland is mitigated. Ineligibility remains with the person even if he or she is no longer associated with the land (U.S. Department of Agriculture 1996).

Swampbuster Exemptions In the same manner that the CWA exempts certain activities from complying with the 404 program, the NFSA establishes a list of criteria under which an activity may be exempted from complying with the Swampbuster program. The following is a list of these exemptions:

• A proposed wetland conversion activity may be exempted if the USDA/NRCS determines it will have an insignificant effect on the functions and values of the wetland and the wetlands in the area.

• Conversions of wetlands by a county, drainage district, or similar entity that have met specific conditions prior to December 23, 1985 are considered commenced, and therefore exempt.
• Federally assisted projects converting or providing outlets to convert wetlands that have met specific conditions prior to December 23, 1985 are considered commenced, and therefore exempt.
• Conversions of wetlands after November 28, 1990 are not in violation of the Swampbuster program if the conversion activities which make production possible are for purposes other than making production possible and all other required provisions are met.
• A person shall not be ineligible for USDA program benefits for converting a wetland or producing an agricultural commodity on a converted wetland if the action was based on an incorrect wetland determination that was documented on specific Soil Conservation Service (SCS) or NRCS forms. This exemption does not apply to wetlands USDA/NRCS personnel determine are obvious and may not apply to determinations based on incorrect information provided by the person.
• Owners of wetlands converted after December 23, 1985 will remain eligible for USDA/NRCS benefits provided the exemption is filed before an agricultural commodity is planted on the converted wetland, and the Farm Services Agency, in consultation with the USF&WS, USACE and USDA/NRCS, determines a party other than the one applying for USDA program benefits is responsible for the conversion. If the Farm Services Agency determines the conversion was part of a scheme or device to avoid the Swampbuster provisions of the NFSA, the exemption will not be granted.
• Subsequent owners and operators of wetlands converted after December 23, 1985 will not be in violation as long as the converted wetland is not planted to an agricultural commodity or used for forage production (U.S. Department of Agriculture 1996).

The USDA/NRCS categorizes wetlands according to NFSA exemptions. There are four categories of wetlands subject to NFSA restrictions and three categories of wetlands with NFSA exemptions. Each wetland classification includes its own unique set of regulatory requirements. The following is a list of the different USDA/NRCS wetland categories and a brief definition of each.

Regulated Wetland Categories
Wetlands (W)-Areas meeting wetland criteria under natural conditions that have typically not been manipulated by altering hydrology and/or removing woody vegetation. This definition includes abandoned areas (U.S. Department of Agriculture 1996).

Farmed Wetlands (FW)-Wetlands that were drained, dredged, filled, leveled, or otherwise manipulated before December 23, 1985, for the purpose of, or to have the effect of, making the production of an agricultural commodity possible, and continue to meet specific wetland hydrology criteria (U.S. Department of Agriculture 1996).

Farmed Wetland Pasture or Hayland (FWP)-Wetlands manipulated and used for pasture or hayland, including native pasture and hayland, prior to December 23, 1985 that still meet specific wetland hydrology criteria and are not abandoned; or were in agricultural use and met FWP criteria on December 23, 1985 (U.S. Department of Agriculture 1996).

Converted Wetland (CW)-Wetlands drained, dredged, filled, leveled, or otherwise manipulated for the purpose of, or to have the effect of, making possible the production of an agricultural commodity. These lands must have been W, FW, or FWP and not highly erodible prior to the conversion. They may have been converted by any activity, including the removal of woody vegetation, that impaired or reduced the flow, circulation, or reach of water; provided the conversion activity was such that agricultural production on the land would not have been possible without its application (U.S. Department of Agriculture 1996).

Exempted Wetland Categories
Prior Converted Cropland (PC)-Converted wetlands where the conversion occurred prior to December 23, 1985; an agricultural commodity had been produced at least once before December 23, 1985; and as of December 23, 1985, the converted wetland met certain specific hydrologic criteria and did not support woody vegetation (U.S. Department of Agriculture 1996).

Artificial and Irrigation-Induced Wetland (AW)-Wetlands in an area that was formerly non-wetland, but now meets wetland criteria due to human activities. This definition includes wetlands created by an irrigation system on an area that was formerly non-wetland (U.S. Department of Agriculture 1996).

Non-Wetland (NW)-Land that under natural conditions does not meet wetland criteria. This definition includes wetlands which were converted to the extent that wetland criteria was not present prior to December 23, 1985 but were not cropped (U.S. Department of Agriculture 1996).

[ Introduction   | Section 404 Program  |  Nationwide Permits & General Conditions | Section 401 Program |Critical Resource Waters |  Swampbuster Prog.  | Interagency Wetlands Policy Act of 1989  |  Rivers, Lakes & Streams Act  | Wetland Detmermination & Delineations |Conclusion ]

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