Indiana Law Review Swampbuster: A Report from the Front Anthony N. Turrini* I. Introduction In 1985, Congress took a bold new step in farm legislation by enacting the conservation title^ of the Food Security Act.^ Over the past five years, the wetland conservation provisions of that title, ^ known as * 'swamp- buster, **"* have generated considerable controversy.^ Swampbuster seeks to deter wetland drainage by withholding a wide range of agricultural subsidies from farmers who plant commodity crops in wetland basins drained after December 23, 1985/ Congress recognized that it is in the pubUc's interest to discourage environmentally destructive farming practices, especially when the country is producing a surplus of commodity crops. In reporting the 1985 farm bill, the House Agriculture Committee concluded that wetlands are a priceless resource which are * Counsel, Prairie Wetlands Resource Center, National Wildlife Federation, Bis- marck, North Dakota. M.B.S. 1987, University of Colorado; J.D. 1982, University of Colorado School of Law; B.A. 1979, University of California at Los Angeles. The author gratefully acknowledges the assistance of EUyn J. Bullock and Lisa C. Turrini. 1. Passed into law on the 23rd of December, the conservation title has been described as a "wonderful Christmas present for wildlife agencies." Risley & Budzik, Implementing Swampbuster and Conservation Easements: An Ohio Perspective, 43 J. Soil & Water Conservation 33, 33 (1988). The title consists of four basic programs: sodbuster and conservation compliance (subtitle B), swampbuster (subtitle C), and conservation reserve (subtitle D). 2. 16 U.S.C. §§ 3801-3845 (1988). For a discussion of the legislative history, see Malone, A Historical Essay on the Conservation Provisions of the 1985 Farm Bill: Sod- busting, Swampbusting and the Conservation Reserve, 34 U. Kan. L. Rev. 577 (1986). 3. 16 U.S.C. §§ 3821-3823. ;, 4. Unless otherwise noted, all references to "swampbuster" refer to the statute as originally enacted in the Food Security Act of 1985, Pub, L. No. 99-198, 99 Stat. 1504 (1985) (codified as amended at 16 U.S.C. §§ 3821-3823). 5. In the Midwest, farmers printed signs excluding hunters and other persons from their property, purportedly in response to the unreasonable implementation of swampbuster. One sign read: "Due to the Swampbuster Act of the 1985 Farm Bill, there will be no hunting, trapping or trespassing allowed on these premises. Violators will be prosecuted" (on file with the National Wildlife Federation's Prairie Wetlands Resource Center). 6. 16 U.S.C. §3821. The statute provides that "any person who in any crop year produces an agricultural commodity on converted wetland shall be ineligible" for certain farm program benefits including price supports, farm storage facility loans, crop insurance, disaster payments, and loans administered by Farmers Home Administration. Id. 1508 INDIANA LAW REVIEW [Vol. 24:1507 valuable for wildlife habitat, aquaculture, flood control, water purifi- cation, groundwater recharge, and recreation.^ The Secretary of Agriculture published final regulations implementing swampbuster in 1987.* Within that regulatory scheme, two federal agencies are primarily responsible for administrating swampbuster — the Agri- cultural Stabilization and Conservation Service (ASCS) and the Soil Con- servation Service (SCS).^ Principal authority for administering and enforcing the law is vested in the ASCS.^° ASCS county committees make most of the day-to-day decisions concerning program eligibility' ' and grant certain exemptions.'^ Other ASCS employees conduct '*spot checks" to ensure swampbuster compUance.'^ The SCS is charged with making the technical determinations"* in identifying the wetlands subject to swampbuster'^ and in granting exemptions under the "minimal effects" provision.'^ Lesser administrative roles are performed by Farmers Home 7. H.R. Rep. No. 271, 99th Cong., 1st Sess., pt. 1, at 86-87, reprinted in 1985 U.S. Code Cong. & Admin. News 1190-91. The committee succinctly stated the concerns that prompted swampbuster's enactment: Currently, wetlands are being destroyed at a rate that is environmentally unac- ceptable . . . [NJearly 14.7 million acres of freshwater wetlands and approximately 500,000 acres of saltwater wetlands have been destroyed from the mid-1950s to the mid-1970s. Much of the wetlands lost in recent years can be attributable [sic] to conversion to agricultural uses. At the present time of surplus agricultural production there is certainly no need for the conversion of more resources into agricultural pro- duction especially when those wetlands resources have such inherent value and provide such practical benefits. Id. at 87, reprinted in 1985 U.S. Code Cong. & Admin. News 1191. 8. 7 C.F.R. §§ 12.1-.33 (1990). 9. To help ensure proper administration of swampbuster, Congress appointed the Department of Interior as a "watchdog." Under the statute, the Secretary of Agriculture must consult with the Secretary of Interior concerning the identification of wetlands and determination of exemptions. 16 U.S.C. § 3823. This provision as been interpreted in the final regulations as requiring the ASCS and SCS to consult with the Fish and Wildlife Service on all pending exemption applications and matters relating to the identification of wetlands. 7 C.F.R. §§ 12.6(b)(5), 12.30(c). 10. 7 C.F.R. § 12.6(b). 11. Each crop year, farmers are required to file "AD-1026" forms with their local ASCS office, certifying that they wijl not produce commodity crops on converted wetlands. Id. § 12.7(a)(2). If the county committee determines that a farmer has violated swampbuster, and is not eligible for any type of exemption, it withholds the farmer's subsidies for that year. § 12.6(b)(3). § 12.6(b)(4). § 12.6(c). § 12.6(c)(2)(i). § 12.6(c)(2)(vi). 12. Id. 13. Id. 14. Id. 15. Id. 16. Id. 1991] SWAMPBUSTER 1509 Administration,'^ the Federal Crop Insurance Corporation, '^ and the Ag- ricultural Extension Service.'^ Swampbuster's potential role in protecting wetlands prompted the National Wildlife Federation (NWF) to estabHsh a field office for the purpose of monitoring the law's implementation.^^ NWF suspected that the Department of Agriculture lacked the conviction and expertise to adequately protect wetlands. That perception was fueled by the fact that only two producers in the entire United States had actually lost farm program benefits as a result of swampbuster violations.^' After two lawsuits, a dozen administrative proceedings, and more than one hundred Freedom of Information Act (FOIA) requests,^^ it is apparent that swamp- buster has not been adequately enforced. It is also clear that loopholes in the legislation have limited swampbuster's effectiveness. II. Swampbuster's Success in Deterring Wetland Drainage Before discussing swampbuster's weaknesses, it should be emphasized that the statute has probably succeeded in deterring wetland drainage. During the past 200 years, wetlands were destroyed at a tremendous rate. Of the estimated 215 milhon acres of wetlands originally found in the contiguous United States, only 99 million acres remained by the mid- 1970s.^^ Agricultural practices were responsible for 87% of the wetland loss between the mid-1950s and mid- 1 970s. ^"^ In 1985 (the year swampbuster was enacted), the annual rate of wetland conversion was between 300,000 and 450,000 acres per year.^ Although there have been no comprehensive studies of wetland drain- age subsequent to 1985, both the Environmental Protection Agency^^ and 17. Id. § 12.6(d). 18. Id. § 12.6(e). 19. Id. § 12.6(0. 20. The National Wildlife Federation is a nonprofit conservation organization ded- icated to the wise use and protection of natural resources, including the nation's remaining wetlands. National Wildlife Federation, 1989 Annual Report 5, 8 (1989). NWF opened the Prairie Wetlands Resource Center in March 1987. 21. Personal communication with George Melvin, Chief of the ASCS Compliance Branch (1987). 22. Freedom of Information Act requests were submitted pursuant to 5 U.S.C. § 552 (1988). 23. U.S. Fish and Wildlife Serv., U.S. Dep't of Interior, Wetlands of the United States: Current Status and Recent Trends 29 (1984). 24. Id. at 31. 25. U.S. Dep't of Agric, U.S. Dep't of Agric. Envtl. Assessment for the Wetland Conservation Provisions of the Food Security Act 1985 1 (1986). 26. WiLLLVMS, MlAH & FiNKBEINER, AeIOAL PHOTOGRAPHIC ANALYSIS OF WeTLAND Conversion Related to the Food Security Act 11-17 (1990) (prepared for the United States E.P.A.). 1510 INDIANA LAW REVIEW [Vol. 24:1507 the Soil and Water Conservation Society^^ have completed limited studies indicating that the rate has decreased. These findings are supported by the SCS, which recently stated that the annual loss of wetlands during the mid-1980s was between 100,000 and 200,000 acres per year.^s None- theless, many conservation organizations believe the rate of wetland de- struction remains unacceptably high.^^ III. Swampbuster's Statutory Limitations A. Sanctions Swampbuster's principal shortcoming is its failure to penalize farmers for draining or otherwise manipulating a wetland. A violation does not occur unless **commodity crops" are planted in the wetland basin. ^° The cropping requirement substantially diminishes the incentive to preserve wetlands. Farmers can **play the system*' by draining wetlands and then planting crops in only those years when commodity prices are high and they do not intend to participate in farm programs.^' In other years, farmers can plant perennial crops or hay in the converted wetlands without jeopardizing their farm benefits.^^ The cropping requirement also makes it more difficult to detect swampbuster violations. Although the ASCS, SCS, and U.S. Fish and Wildlife Service (FWS)^^ are Hkely to observe 27. Son. AND Water Conservation Society, Implementing the Conservation Provision of the Food Security Act 8-9 (1989). 28. Soil Conservation Service, Interpretations of Wetland Data from the 1987 Nat'l Resource Inventory 1 (Aug. 1990). 29. Conservation groups that lobbied for stronger swampbuster provisions in the 1990 farm bill include the Center for Resource Economics, Natural Resources Defense Council, National Audubon Society, National Wildlife Federation, Sierra Club, and Soil and Water Conservation Society. See Farm Bill 1990: Agenda for the Environment and Consumers (Island Press 1990). 30. 16 U.S.C. § 3821 (1988). ''Commodity crops" are defined as those agricultural commodities "planted and produced in a state by annual tilling of the soil, including tilling by one-trip planters . . . ." Id. § 3801(a)(1)(A). 31. The financial benefits of participating in farm programs are generally greater when market prices are low. See Heimlich & Langner, Swampbusting: Wetland Con- version AND Farm Programs 8 (1986) (USDA Agricultural Economic Rep. No. 551). 32. The planting of perennial crops does not require annual tilling, and therefore does not trigger swampbuster sanctions. See 16 U.S.C. § 3821(a)(1)(A). 33. In addition to providing technical guidance, the FWS has emerged as the primary investigator of violations. FWS employees typically fly over wetland areas once a year to ensure that conservation easements are not violated. These easement flights often result in the detection of numerous swampbuster violations that are reported to the ASCS. In North Dakota, these practices have earned the FWS the moniker, "spies in the sky." 1991] SWAMPBUSTER 1511 and report new drainage activity, they simply do not have the resources to perform an annual review of previously manipulated wetlands to determine whether they are planted with commodity crops. Fortunately for the wetland resource, this loophole was eliminated in the 1990 farm bill.^"^ In a major victory for conservationists, swamp- buster was amended to make the act of drainage a violation. ^^ Farmers who manipulate wetlands are ineligible for subsidies until they restore the affected wetland to its original condition.^^ Swampbuster now provides a real deterrent to drainage, and for the first time creates an incentive to restore converted wetlands. B. Scope A second fundamental Hmitation of swampbuster, which was not redressed in the new farm bill, is that it pertains only to producers who participate in federal farm programs. Farm operators who do not produce crops with price supports, or who do not rely on federally subsidized loan or insurance programs, can ignore swampbuster altogether. Swamp- buster is an effective deterrent only in areas where participation in farm programs is high and where subsidies contribute significantly to farm income or profitability.^'' Fortunately for wetlands (if not the American taxpayer), most producers participate in federal farm programs.^* C Administrative Appeals A third weakness of the statute is that it fails to unambiguously provide an administrative appeals avenue for nonfarmers. Swampbuster directed the Secretary of Agriculture to promulgate regulations enabling a ''person who is adversely affected by any determination" under the law to seek administrative review. ^^ Even though many people may be adversely affected by the drainage of wetlands, the final regulations limit review to farmers who have been or will be denied farm subsidies as a result of a swampbuster determination. '•^ Although decisions withholding benefits can be "second-guessed," decisions favoring a producer to the 34. Food, Agriculture, Conversation, and Trade Act of 1990, Pub. L. No. 101- 624, 104 Stat. 3359 [hereinafter 1990 Farm Bill]. With few exceptions, the amendments to swampbuster apply to crop years after 1990. 35. 1990 Farm Bill, Pub. L. No. 101-624, § 1421, 104 Stat. 3359, 3572. 36. Id. 37. Heimlich & Langner, Swampbusting in Perspective, 41 J. Son, & Water Con- servation 219, 224 (1986). 38. See J. Bovard, The Farm Fiasco 46-47 (1989) (citing U.S. Department of Agriculture, Farmline 5 (1986)). For an economic analysis of swampbuster and its probable effect on farming practices, see Heimlich & Langner, supra note 31. 39. 16 U.S.C. § 3843(a) (1988). 40. 7 C.F.R. § 12.12 (1990). 1512 INDIANA LAW REVIEW [Vol. 24:1507 detriment of a wetland cannot be reversed through the formal appeals process. This one-sided procedure has produced skewed results. Seventy- seven percent of all appeals decided by the ASCS favored the farmer. "^^ This shortcoming was not remedied in the 1990 farm bill. IV. Inadequate Implementation and Enforcement The greatest impediment to swampbuster's effectiveness has been unen- thusiastic administration. Virtually everyone agrees that agricultural drain- age continues to occur.''^ Although the Department of Agriculture claims that more than $1 million dollars has been withheld, the most current data indicate that the ASCS has withheld subsidies from only twenty-six farmers throughout the United States,"^^ The total amount of farm benefits forfeited was a mere $124,000."^ Not a single dollar was withheld from a producer in the Pacific flyway, the gulf coast, or the South.'*^ As of 41. Environmental Law Institute, Implementation of the "Swampbuster" Pro- visions OF the Food Security Act of 1985, at 28 (1990). The problem is exacerbated because farmers dissatisfied with an ASCS determination are offered three bites from the appeals apple. They mjiy request reconsideration of the decision by the county committee. 7 C.F.R. § 780.3. They may appeal the county committee's decision to the state ASCS committee. Id. § 780.4. Finally, they may appeal to the ASCS deputy administrator (DASCO) in Washington, D.C. Id. § 780.5. Concerned citizens have no right to participate in any of these proceedings. 42. Even the Department of Agriculture acknowledges drainage. After surveying 25% of the farms participating in federal programs, the SCS reported that over 77,000 acres of unexempted wetlands have been converted since 1985. Soil Conservation Service, Food Security Act Progress Report - Oct. 1989 1. 43. Letter from Jay D. Hair, President of NWF, to Clayton Yeutter, Secretary of Agriculture (Oct. 13, 1989) (criticizing Mr. Yeutter' s claim that more than $1 million had been withheld from more than 400 producers) [hereinafter Hair Letter}. In January 1989, NWF submitted a FOIA request asking the ASCS for a list of all producers conclusively determined ineligible for agricultural subsidies as a result of swamp- buster violations. The ASCS was asked to exclude any producer who was appealing, requesting an exemption, or seeking a wetland redesignation. The agency produced a list that purported to identify all swampbuster violations from December 23, 1985, to April 15, 1989. This information was double-checked by NWF, which contacted the producers, local ASCS committees, or farm bill coordinators from the Fish and Wildlife Service. The study demonstrated that the ASCS's figures were extremely inaccurate and misrepresented the extent of agency enforcement. Confronted with NWF's results, the ASCS suspended its record- keeping practice. The agency promised to publish an updated summary of swamp- buster statistics by 1990, but has not yet finalized the report. Id. 44. Id. During the same time period, the Department of Agriculture gave more than $90 billion (full dollars) to American farmers in the form of federal subsidies. Federal Assistance Award Data System, U.S. Department of Agriculture, CCC Federal Assistance FY 1982-1989: Summary by State (1989). 45. Hair Letter, supra note 43. Wetlands in these areas provide critical breeding and wintering habitat for waterfowl, and are threatened by agriculture, industry, and other 1991] SWAMPBUSTER 1513 April 1989, only six states had ever withheld agricultural subsidies as a result of swampbuster violations.'*^ A. ASCS County Committees Lax enforcement is largely due to the organizational structure of the ASCS/"^ The primary responsibility for implementing swampbuster is in the hands of locally elected county committees, which frequently mis- construe, misapply, or ignore swampbuster in order to excuse farmers for wetland drainage. A wetland conservation analysis team made up of experts from the ASCS, SCS, FmHA, FWS, and the Environmental Protection Agency specifically found that ASCS county committees are reluctant to withhold farm program benefits.^^ The interagency team concluded that the purposes of swampbuster would be best achieved by replacing the committees with interagency review boards.'*^ The county committees' failure to fully enforce swampbuster is the result of several factors. First, the ASCS is institutionally biased — its original and primary function is to supervise the distribution of federal subsidies to farmers, ^^ not to regulate environmental transgressors. ASCS employees are trained to administer farm programs and are more knowl- edgeable about agriculture than environmental protection. Naturally, they tend to sympathize with the concerns of their traditional constituency, the farm community. County committees are reluctant to penalize farmers for the sake of *' newfangled'' environmental ideals. Second, committee members are sometimes personally biased. To be eligible to become a committee member, an individual must be a resident land uses. See U.S. Fish and Wildlife Service/Canadlvn Wildlife Service, Waterfowl FOR THE Future: The North American Waterfowl Management Plan (1987). The Pacific flyway is one of four north-south migratory routes used by waterfowl in North America. See Ducks Unlimited, Ducks Unlimited in Your Flyway (1986). 46. Hair Letter, supra note 43. Those states are Indiana, Minnesota, New York, Pennsylvania, South Dakota, and Wisconsin. 47. Keith Bjerke, ASCS Administrator, characterizes this criticism of the local committees as "a bunch of bunk." According to Mr. Bjerke, "This American system of ours says that, No. 1, you are innocent until proven guilty. No. 2, you should be tried by a jury of your peers, not outside agitators. What is going on is best judged by local folks rather than outsiders." Brisbane, A Farm Belt Fight Over Protected 'Potholes,' Washington Post, Dec. 6, 1989, at A3. 48. Memorandum from Mike Hein, Chairman of the Wetland Conservation Analysis Team, to John B. Campbell, Deputy Under Secretary of the Department of Agriculture (Nov. 28, 1989) (discussing wetland protection and restoration recommendations for the Conservation Title of the 1990 Farm Bill) (available at the Prairie Wetlands Resource Center). 49. Id. 50. For an overview of the structure and function of the ASCS, see C. Kelley & J. Harbison, A Lawyer's Guide to ASCS Administrative Appeals and Judiclu, Review OF ASCS Decisions 4-18 (1990). 1514 INDIANA LAW REVIEW [Vol. 24:1507 farmer of the county in which she is to serve.^' Only farmers living in the county are entitled to vote in committee elections." This arrangement, which asks members of the regulated community to enforce swampbuster, disfavors objective decision-making. County committees are hesitant to take actions that may harm friends or neighbors. Third, ASCS personnel lack technical expertise in wetland issues. They receive little or no formal training enabling them to recognize wetlands or to determine the scope and effect of drainage systems. Nevertheless, it is the ASCS that is responsible for spot checking farms to ensure swampbuster compliance." Finally, committee members have little professional or financial in- centive to enforce laws or regulations with which they disagree. Committee membership is a part-time position. The full-time farmers who sit on the committees are sometimes more concerned with maintaining their standing in the agricultural community than they are with losing a part- time job and a nominal pay check. B. Exemptions Exemptions have been the most widely abused provisions of swamp- buster. The Department of Agriculture currently grants five different exemptions which allow farmers to convert wetlands to cropland and continue receiving agricultural subsidies. The exemptions are known as the * 'commenced determination,'*^* * 'hardship exemption, "^^ "third party exemption, "^^ "good faith reliance exemption,''" and "minimal effects exemption. "^^ L Commenced Determinations.—The exemption most frequently used to justify wetland drainage is the "commenced determination." Swamp- buster provides that a producer who plants crops on a converted wetland remains eligible for agricultural subsidies if the conversion was begun prior to the enactment of the Food Security Act on December 23, 1985.^^ As of April 1989, the ASCS had received 5,259 requests for commenced determinations and granted 78<^o of the requests considered.^ Many of 51. 7 C.F.R. § 7.15 (1990). 52. Id. § 7.4. 53. Id. § 12.6(b)(4). 54. See infra notes 59-75 and accompanying text. 55. See infra notes 76-83 and accompanying text. 56. 7 C.F.R. § 12.5(d)(Yi) (1990). 57. See infra notes 84-97 and accompanying text. 58. See infra notes 98-112 and accompanying text. 59. 16 U.S.C. § 3822(a)(1) (1988). 60. Agricultural Stabilization and Conservation Service, Sod/Swamp Cumu- lative Data Report for April and March (1989). 1991] SWAMPBUSTER 1515 the exemptions approved by the ASCS were not justified by swampbuster or its regulations.^* In a recently completed study, the Government Accounting Office (GAO) concluded that the ASCS frequently issued commenced deter- minations without appropriate documentation.^^ The GAO examined twenty- three approved commenced determination requests and found that in nine cases (39