1990 Farm Bill Forum 



Proceedings 



that construction on the project had "com- 

 menced" prior to the 1985 Act's passage when 

 in fact the project was only in the planning 

 stage. These "commencement" determinations 

 have been the cause of major problems in 

 gaining the full protection of wetland values 

 that the swampbuster was intended to provide. 

 Two changes need to be made to eliminate this 

 issue in the future. Swampbuster should be 

 strengthened by exempting only those projects 

 where physical construction occurred prior to 

 the law's initial passage in 1985. Judicial rexiew 

 should be provided for ASCS commencement 

 decisions. While WW¥ has successfully ap- 

 pealed several decisions regarding drainage 

 commencement, there are no formal provisions 

 in either law or regulation for such re\iews to 

 take place. Citizen oversight is a necessary 

 component of wetland protection. 



Secondly, we have noted that there have been 

 problems in Montana in defining what consti- 

 tutes a wetland. I recently flew over a slough in 

 eastern Pondera County slated to be drained, 

 which the Soil Conser\-ation Service refuses to 

 acknowledge as a wetland, even though it held 

 water on August 16 in an average precipitation 

 year. According to SCS there is not sufficient 

 evidence of the hydric soils ordinarily associ- 

 ated with permanent wetlands, nor is there a 

 photographic history of the pothole's existence. 

 SCS is maintaining this overly technical posi- 

 tion despite the obvious on-the-ground evi- 

 dence to the contrary and over the objection of 

 fish and wildlife agencies, which have asserted 

 that the area pro\'ides impjortant wetland 

 values. 



This dispute shows that where wetland conver- 

 sion is involved, the benefit of the doubt is 

 going to the producer and not to protecting the 

 resource. This approach is fundamentally at 

 odds \\nth the central purpose of the swamp- 

 buster legislation. As Congress noted, much of 

 the wetlands lost in recent years can be attrib- 

 uted to conversion to agricultural uses. At the 

 present surplus of ag production, there is no 

 need for the conversion of more resources into 

 agricultural production, especially when those 

 wetland resources have such inherent value 

 and provide such practical benefits. 

 H. Rep. 99-271, Part 1, 99th Cong. 1st Sess. 77 

 (1985). 



MoDtina CbaptBr, SoD anii Water Contirvatlon Society 



27 



Congress can address this problem with the 

 1985 Farm Bill in two ways. It can amend the 

 law to provide that wetland determinations are 

 made by fish and wildlife agencies whose 

 mission is wetland protection and who have the 

 staff expertise to recognize wetland values. 

 Alternatively, we need better training of field 

 personnel and a rigorous process for resohing 

 disputes. At the present time there is little 

 continuity in how wetland determinations are 

 made, nor is there any defined method for how 

 disputes will be resolved. 



Conservation Reserve Program and Sodbuster 

 The Conser\'ation Reserve Program was 

 established to convert highly erodible croplands 

 to permanent cover and sodbuster, under 

 which federal benefits can be terminated if 

 highly erodible soils presently in permanent 

 cover are plowed out in the absence of an 

 approved conservation plan. 



These provisions are important to Montana 

 because the state has an estimated 3.5 million 

 acres of land eligible for inclusion in the CRP, of 

 which some 2.5 million acres have actually been 

 enrolled in the last five years. In addition, 

 Montana has over 2 million acres of fragile land 

 that are not presently cropped but have a high 

 or medium potential for conversion to crop- 

 land. (See H. Rep. 99-271 at p. 85.) As with 

 swampbuster, there are indications that the 

 promises of CRP and sodbuster are being only 

 partially fulfilled and that serious problems 

 exist in both the law itself and how it is being 

 applied. 



Mirroring the holes in swampbuster that I have 

 already discussed, sodbuster allows farmers to 

 break out native rangeland even where the soils 

 are extremely fragile if the Soil Conservation 

 Service has approved a conser\'ation plan for 

 the area. Because of this provision, native 

 rangeland continues to go under the plow as 

 plans of doubtful effectiveness are drafted, 

 approved with only minimal review, and 

 allowed to be implemented without any 

 enforcement program. 



Compounding this problem is the fact that 

 some, and perhaps many, producers who have 

 sought approval to plow out new croplands 

 have also enrolled acreage in the CRP. In effect 



AuguttZS, 1883 



