‘Swampbuster’ is Broken, Congress Must Fix It

Swampbuster is a conservation compliance program, meaning that farmers aren’t eligible for farm programs or crop insurance premium discounts unless they conserve the wetlands under their stewardship. They lose eligibility if they convert regulated wetlands to farmable land. Started in the 1985 farm bill, the program has helped farmers lower ag losses of wetlands to virtually zero if not a net gain of wetlands. That’s a huge accomplishment. But all is not well with Swampbuster and conservation compliance. Things have gotten out of whack because USDA, in recent years, has strayed far from congressional intent when it created Swampbuster.

Farmland that was converted from wetlands before the 1985 farm bill is called prior-converted cropland. It is exempt from Swampbuster, but agency employees have tried to narrow that exemption out of existence, routinely nailing farmers for violations if they do basic, everyday farming activities such as removing or cleaning up fencerows, changing a field footprint, repairing or improving drainage, or removing trees. These activities do not change the fact that the land was already converted to farmland before 1985 and is, therefore, exempt. A wetland can only be converted to farmland once. Making the land more farmable does not (cannot) convert it a second time. Perversely, even a change that is good for the land and environment could result in the landowner losing eligibility for farm programs. This “gotcha” approach is not consistent with the language or spirit of the farm bill.

Protecting wetlands is worth doing, and farmers and ranchers are proud of their record of wetland protection.

Agency bureaucrats also fail to apply another exemption called minimal effects. The exemption was mandated by Congress almost 30 years ago, but USDA has not implemented it as Congress intended. Agency officials put the burden on landowners to know about the exemption and don’t tell them when they’re eligible. The agency hasn’t even put out rules to make the exemption real on the ground.

Congress can bring fairness back to Swampbuster in four ways.

First, it must make protecting the prior-converted cropland designation a priority. That designation is a vital cornerstone of Swampbuster and protects the value and use of over 55 million acres of farmland.

Second, it should require USDA to apply all congressionally authorized exemptions before a farmer loses eligibility, instead of putting that burden on the farmer to claim one of these important exemptions.

Third, we need to require USDA to issue regulations to implement the exception for changes that have a minimal effect on wetlands.

Fourth, Congress should provide funding to grow the mitigation banking program, so more farmers can help restore wetlands in one area to make up for where they need to convert wetlands to farmable land somewhere else. This market-based approach to protecting wetlands gives farmers and ranchers more flexibility and is similar to other environmental protection programs such as trading in carbon credits or renewable energy credits.

Finally, Congress needs to change the process for a farmer or rancher to appeal a USDA decision, to level the playing field between government and governed. Today, appeals can take years, and it’s too easy for the agency to avoid abiding by an appeals decision by redoing wetland determinations that put the landowner through the same process again and again.

Many of us grew up hearing our parents admonish us that anything worth doing is worth doing right! Protecting wetlands is worth doing, and farmers and ranchers are proud of their record of wetland protection. But we need changes to Swampbuster to get it right. Congress can and must fix it.