Agricultural Wetlands Programs

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 171-184

Page 171

Chapter 10

Agricultural Wetlands Programs

Agricultural wetlands programs warrant sepa-

rate consideration in light of the special laws

for wetla nds on farmland. A s described

in Chapter 3, §404 of the C WA provides certain

exemptions from permit requirements for agricul-

tural land. Section 404(f) states that “the discharge

of dredged or ll material . . . from normal farm-

ing, silviculture, and ranching activities such as

plowing, seeding, cultivating, minor drainage, har-

vesting for the production of food, ber, and for-

est products, or upland soil and water conservation

practices . . . is not prohibited by or otherwise sub-

ject to regulation under this section.”1 As addressed

above, §404(f) exemptions have been construed

narrowly, so not all activities in agricultura l wet-

lands are exempt from §404.

Parallel and related to the §404 agricultural

exemptions are a series of resource conservation

programs in farm legislation. ese begin with the

wetland and conservation provisions for agricul-

ture Congress included in the Food Security Act

(FSA) of 1985.2 Agricultura l wetlands programs

often link protection of wetlands to eligibility for

other government agricultural subsidies or entitle-

ments. us, the programs are generally optional

rather than prescriptive.

e 1985 FSA, as amended by the Agriculture,

Conservation and Trade Act of 1990 (the 1990

Farm Bill),3 established four programs related to

conservation and wetla nds: Swampbuster, Sod-

buster, the Conser vation Reser ve Program (CRP),

and the Wetlands Reserve Program ( WRP). e

19964 and 20 025 Farm Bills signi cantly changed

1. 33 U.S.C. §1344(f)(1)(A).

2. Pub. L. No. 99-198, 99 Stat. 1504 (1985). e FSA’s resource

conservation provisions are codied at 16 U.S.C. §3801-62.

Other provisions are codied in Title 7 of the United States Code.

3. Pub. L. No. 101-624, 104 Stat. 3587 (1990).

4. Pub. L. No. 104-127, 110 Stat. 888 (1996).

5. Pub. L. No. 107-171, 116 Stat.134 (2002).

some of the wetland protection features and estab-

lished additional conservation programs.6 In 2008,

the Farm Bill reauthorized a lmost all existing

conservation programs, modifying several, and

creating some new programs.7 e success of the

conservation programs turns not only on their

authorizations but on the annual appropriations for

administration. Farm bill conservation programs

are traditionally very controversial and subject to

the debate between competing policies of agricul-

tural production on arable lands and restoration or

protection of natural habitats.

Technical assessments of these programs have

been conducted. e Wildlife Society, in coopera-

tion with the USDA’s National Resources Con-

servation Service (NRCS) and the Farm Service

Agency, published a report titled, Fish and Wildlife

Benets of Farm Bill Conservation Programs 2000-

2005 Update, that describes ma ny of the programs

and their impacts on sh and wildlife, updating a

similar report that covered the period from 1985

to 2000.8 e USDA also manages a Conserva-

6. For further information on the issue of wetlands in relation to

agriculture, see, e.g., omas K. Ruppert, Water Quality Trading

and Agricultural Nonpoint Source Pollution: An Analysis of the Ef-

fectiveness and Fairness of EPA’s Policy on Water Quality Trading,

15 V. E. L.J. 1 (2004); John H. Davidson, e Federal

Farm Bill and the Environment, 18 N. R  E’

3 (2003); Daryn McBeth, Wetlands Conservation and Federal

Regulation: Analysis of the Food Security Act’s “Swampbuster”

Provisions as Amended by the Federal Agriculture Improvement

and Reform Act of 1996, 21 H. E. L. R. 201 (1997)

(hereinafter McBeth); John M. Evans, Agricultural Law: New

Directions in Regulation, 21 C. L. R. 865 (1992); Stewart

L. Hofer, Federal Regulation of Agricultural Drainage Activity in

Prairie Potholes: e Eect of Section 404 of the Clean Water Act

and the Swampbuster Provisions of the 1985 Farm Bill, 33 S.D. L.

R. 511 (1987-1988); Gerald Torres, Wetlands and Agriculture,

34 K. L. R. 539 (1986).

7. Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-

246, 122 Stat. 1651.

8. Available at http:/ /www.nrcs.usd a.gov/techn ical/nri/c eap/

fwbenet.html.