Prior Converted Cropland Under the Clean Water Act

Updated February 24, 2023

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 to discharge

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 wetlands

or convert them 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 advocate for greater consistency among

PCC determinations. It also has 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, is 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 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, during the Obama Administration, the Corps and

EPA promulgated the Clean Water Rule (80 Federal

Register 37054), which redefined WOTUS. The rule

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

in the 1993 rule’s preamble, an area was required to be used

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Prior Converted Cropland Under the Clean Water Act

for production of an agricultural commodity. The NWPR

also stated that the Corps and EPA would recognize PCC

designations made by USDA.

Various lawsuits challenged the NWPR, and in September

2021, a federal district court vacated it. The Corps and EPA

then announced that they would halt implementation of the

rule and interpret WOTUS consistent with regulations in

place prior to 2015 (see CRS Report R47408, Waters of the

United States (WOTUS): Frequently Asked Questions

About the Scope of the Clean Water Act).

On January 18, 2023, the Corps and EPA, under the Biden

Administration, issued a new rule redefining WOTUS (88

Federal Register 3004). The 2023 WOTUS Rule, which is

to take effect on March 20, 2023, maintained the PCC

exclusion, but made changes to the regulatory text in what

the agencies described as an effort to improve clarity and

consistency with USDA’s implementation of Swampbuster.

(See “Challenges to Consistent Determinations.”) The 2023

WOTUS Rule specifies that PCC designated by USDA is

excluded, and that the exclusion ceases upon a change in

use, meaning the area is no longer available for the

production of agricultural commodities. These changes are

intended to align the CWA PCC exclusion with the

Swampbuster exception.

Food Security Act, Swampbuster Provision

The Swampbuster provision is administered by USDA with

technical determinations made by NRCS. Originally

authorized in Title XII of the 1985 FSA (16 U.S.C. §§3801

et seq.), Swampbuster makes USDA program participants

ineligible to receive select USDA program benefits if they

farm on or alter wetlands. Thus, Swampbuster does not

prohibit the altering of a wetland but rather disincentivizes

doing so by withholding a number of federal payments that

benefit agricultural production.

Generally, farmers who plant a program crop on a wetland

converted after December 23, 1985, or convert wetlands

making agricultural commodity production possible after

November 28, 1990, would be in violation of Swampbuster

and ineligible for certain USDA benefits (e.g., farm support

payments, loans, conservation programs). In addition,

farmers who plant or produce an agricultural commodity on

a wetland or make agricultural production possible after

February 7, 2014, are in violation and also ineligible for

federal crop insurance premium subsidies. A number of

Swampbuster exemptions exist, including land determined

to be PCC. USDA defined PCC in regulation (7 C.F.R.

12.2(a)) as “a converted wetland 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 did not support woody vegetation and

did not meet the hydrologic criteria for farmed wetland.”

Challenges to Consistent

Determinations

Although the agencies overseeing the CWA Section 404

and Swampbuster programs have sought to achieve

consistency in the manner that the programs define and

designate PCC, the inherently different purposes of the

programs—as well as legislative changes and court

rulings—have presented challenges in doing so.

In 1994, USDA, the Departments of the Interior and the

Army, and EPA entered into a memorandum of agreement

to promote consistency in determinations made under the

two wetlands programs. However, Congress amended

Swampbuster in 1996 to state that USDA certifications of

eligibility for program benefits “shall remain valid and in

effect as long as the area is devoted to an agricultural use or

until such time as the person affected by the certification

requests review of the certification by the Secretary” (P.L.

104-127). This created inconsistency between the wetlands

programs, as the criteria for determining when PCC loses

its exclusion became different (i.e., abandonment for CWA

versus change in use for Swampbuster). In addition, 2002

amendments to Swampbuster (P.L. 107-171) prohibited

NRCS from sharing confidential producer information to

agencies outside USDA, making it illegal for NRCS to

provide its wetland delineations and determinations to the

Corps and EPA for CWA permitting and enforcement.

Furthermore, in Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers (2001), the

Supreme Court interpreted the scope of WOTUS subject to

the CWA more narrowly than the Corps had previously.

The agencies interpreted the ruling to mean that some

isolated wetlands may no longer be regulated as WOTUS

under the CWA but may still be subject to Swampbuster.

These changes and the Court’s ruling prompted the

agencies to withdraw from the 1994 memorandum in 2005.

Subsequently, USDA and the Corps issued joint guidance

in February 2005 to reaffirm their commitment to ensuring

the wetlands programs were administered in a way that

minimized impacts on affected landowners while protecting

wetlands. They stated that “because of the differences now

existing between the CWA and FSA on the jurisdictional

status of certain wetlands (e.g., prior converted or isolated

wetlands may be regulated by one agency but not the

other), it is frequently impossible for one lead agency to

make determinations that are valid for the administration of

both laws.” The guidance reiterated that a PCC

determination made by NRCS remains valid for

Swampbuster purposes so long as the area is devoted to an

agricultural use. It also stated that if the land changes to a

nonagricultural use, the determination is no longer valid,

and a new determination is required for CWA purposes.

In 2009, the Corps Jacksonville District prepared an issue

paper declaring that PCC that is shifted to nonagricultural

use becomes subject to regulation by the Corps. Corps

headquarters affirmed this “change in use policy” as an

accurate reflection of the national position of the Corps in a

memorandum referred to as the “Stockton Rules.” A federal

court set aside the rules in 2010, finding that they were

“procedurally improper” because the Corps did not follow

required notice-and-comment procedures.

In January 2020, the Corps and NRCS rescinded the 2005

guidance. Subsequently, in July 2020, the Corps, EPA, and

NRCS issued a joint memorandum establishing procedures

for agency staff to help ensure that the programs are

administered efficiently and effectively while continuing to

fulfill the missions of the respective agencies.

Laura Gatz, Specialist in Environmental Policy

Megan Stubbs, Specialist in Agricultural Conservation and

Natural Resources Policy

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Prior Converted Cropland Under the Clean Water Act

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