Agricultural Wetlands Programs

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
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
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 ical/nri/c eap/

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