202 



The Swampbuster Program's "prior converted cropland" exemption is limited to 

 annual "program crops" because those are the only crops affected by the program's 

 sanctions. Perennial crops generally do not receive price supports and other benefits. 

 Unfortunately, without valid scientific reasons, the annual/perennial distinction has been 

 carried over into the Clean Water Act, where perennial crops are affected. Regulatory 

 Guidance Letter 90-7 issued by the Corps of Engineers in 1990 defines the term "prior 

 converted cropland" to exclude turfgrass sod and all other perennial agricultural 

 commodities, including tree crops, cranberries, blueberries, grass hay and alfalfa hay. The 

 definition of the term "agricultural commodity" only includes annual crops. 



ASPA expressed its concerns about the agricultural definitional problems to USDA 

 prior to the issuance of its Interagency Memorandum of Understanding (MOA) intended to 

 resolve these types of issues. We thought we might obtain relief for our problem when we 

 learned that the Soil Conservation Service (SCS), the Corps' of Engineers and the 

 Environmental Protection Agency were entering into an MOA that would shift responsibility 

 for agricultural determinations to SCS. 



Unfortunately, our hopes were dashed when we read the MOA, published in the 

 January 19, 1994 Federal Register at 2920. The definition of "agricultural lands" in the 

 MOA is extremely ambiguous. On the one hand, it refers to lands "intensively used and 

 managed for the production of food or fiber," which would not include turfgrass sod. 

 Turfgrass sod clearly is an intensively used and managed commodity, but is not "food or 



