The Food Security Act of 1985 is provided under 16 U.S.C. 3801-3862. The Act contains provisions designed to discourage the conversion of wetlands into non-wetland areas. These provisions collectively, are commonly referred to as the “Swampbuster” provisions (Food Security Act of 1985 Title XII, Subtitle C)). The Food Security Act of 1985 allowed lower commodity prices and income supports. It also established a dairy herd buyout program. The Act made changes to a variety of other USDA programs. Pursuant to the Act, several enduring conservation programs were created, including:
- swampbuster, and
- the Conservation Reserve Program.
The Swampbuster provisions denied Federal farm program benefits to producers who converted wetlands after December 23, 1985. The Food, Agriculture, Conservation, and Trade Act of 1990 strengthened Swampbuster by making violators ineligible for farm program benefits for that year and subsequent years. Furthermore, the Act created a system for inadvertent violations allowing farmers to regain lost Federal benefits if they restore converted wetlands.
Moreover, the 1996 Farm Bill, (Federal Agriculture Improvement and Reform Act of 1996, PL 104-127) contains numerous provisions that purportedly modify the operation of certain agricultural programs. Thus, Subtitle C, Wetland Conservation, modifies Sections 1221 and 1222 of 16 USC 3821, and 16 USC 3822 of the Food Security Act of 1985 regarding program ineligibility, wetland delineation, consultation and cooperation requirements. Moreover, it clarifies the definition of agricultural lands in the Memorandum of Agreement signed with the Department of the Army, the Department of Interior, and the Environmental Protection Agency, on January 6, 1994. It also authorizes the Secretary of Agriculture to operate a pilot program for mitigation banking of wetlands to assist persons in increasing the efficiency of agricultural operations while protecting wetland functions and values.
The Conservation Reserve Program under Title XII 16 USC 3831 authorizes the Federal government to enter into contracts with agricultural producers to remove highly erodible cropland from production in return for annual rental payments. The Wetlands Reserve Program under 16 USC 3837 authorizes the enrollment of wetlands for protection and restoration through permanent and temporary or thirty year easements. The resources covered by the Act are:
- agricultural lands;
- highly erodible land;
- converted wetlands.
The Corps coordinates its flood control plans involving agricultural lands with the Natural Resources Conservation Service. Furthermore, it alerts project sponsors and affected farmers of their responsibilities to meet the requirements set forth in the “Swampbuster” provisions of the Food Security Act of 1985. The Act provides for certain “third party” exemptions that may be available to landowners who receive ancillary drainage benefits from Corps projects. Pursuant to the Act, it is the responsibility of the individual landowner to request such an exemption.
The U.S. Department of Agriculture’s (USDA) implementing guidance for the Swampbuster provisions establishes the terms and conditions under which a person, who has produced an agricultural commodity on newly converted wetlands, shall be declared ineligible for certain benefits provided by USDA such as:
- commodity price support or production adjustment payments;
- farm storage facility loans;
- disaster payments;
- payments for storage of grain owned or controlled by the Commodity Credit Corporation;
- Federal crop insurance; and
- FMHA loans.
Pursuant to the Act, farmers who plant commodity crops, after 23 December 1985, on lands that were converted from a wetland to a non-wetland condition by a Corps project will trigger “Swampbuster” considerations, which may lead to the USDA program ineligibilities. Moreover, this could result in the lessening of sponsor support for a project and a reduction in estimated benefits that might otherwise have been attributed to the project proposal.