Wetland Issues for Farmers

Robert Moore

Wetlands became a significant issue for farmers with the introduction of the Swampbuster provisions in the 1985 Farm Bill. The Swampbuster program protects wetlands which are thought to be beneficial by regulating water flow, increasing water quality, and allowing increased biodiversity. In essence, the Swampbuster rules cause any farmer that converts a wetland into agricultural production to become ineligible for government program payments. A farmer that unknowingly or innocently drains a wetland could be shocked to find themselves ineligible for FSA payments and required to pay back all program payments from the time the wetland was converted. Therefore, it is important for farmers to be at least somewhat familiar with the Swampbuster program.

Wetlands determinations are the responsibility of NRCS and are made based upon three criteria:

1. Presence of wetland type vegetation
2. Hydrology of the soil (amount of water in soil)
3. Hydric soils (soils subjected to prolong water saturation)

If all three of these criteria are met, a wetland determination can be made. If a wetland determination is made by NRCS, the landowner has the ability to appeal the determination. The primary basis for the appeal is that one or more of the three criteria were not met.

Upon signing up for program payments with FSA, every farmer must sign a form AD-1026 declaring that he/she will not farm a wetland or convert a wetland for that program year. This includes both land owned and rented by the farmer. Therefore, if a farmer produces crops on converted wetlands on leased land, he will be in violation of the AD-1026 form and will be in violation of the Swampbuster regulations. Therefore, it is very important that tenant farmers confirm with the landlord and perhaps even NRCS that the farm they are leasing does not have any wetlands. In a recent situation, the landowner had unintentionally converted part of a wetland. The tenant farmed the converted portion of the wetland not knowing that he was in violation of the Swampbuster rules. After NRCS determined that a portion of the wetland had been converted, both the landlord and tenant were declared ineligible for program payments. Additionally, both parties were required to pay back all program payments since the wetland was initially converted.

NRCS and FSA provide producers with appeal processes if they are determined to be ineligible for payments due to wetlands conversion. FSA allows a good faith appeal to the local county committee. This appeal involves the farmer explaining his actions to the county committee and claiming that his actions were not intended to intentionally convert a wetland. The producer essentially claims that his actions were in good faith albeit possibly in violation of the Swampbuster program. If the county committee accepts the good faith argument, payment eligibility is restored. However, the converted wetland must be remediated to its original condition at the landowner’s expense.

A producer may also appeal through NRCS. This appeal process is more formal and starts in the National Appeals Division and often ends in the federal courts. This appeal process can be very costly and time consuming and not always ends in a successful appeal. A producer facing ineligibility will likely find that the good faith appeal with the county committee is likely his better chance of success and certainly the less expensive option.

The Swampbuster program does allow for the conversion of wetlands if the lost wetlands are compensated for elsewhere. Under the guidance of NRCS, a farmer can convert a wetland if the farmer establishes another wetland elsewhere. This mitigation option usually requires the farmer to replace the converted wetland area with an even bigger wetland area.

Farmers should spend a few hours and visit their local NRCS office to verify that none of the land they are farming is classified as wetlands. Even innocent producers who had no idea they were farming a wetland or were converting a wetland may find themselves ineligible for FSA payments and facing a lengthy and costly appeal process. If a farmer finds himself facing such a situation, he should strongly consider engaging qualified legal counsel to be sure that all appeal options are preserved and that all legal options are explored to regain eligibility.

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