Some Exemptions Recognized for Wetland Violations
Published: Friday, May 30, 2025
The following is from John J. Schwarz, a lifelong farmer and agricultural law attorney. Natalie Boocher, an elder law attorney, contributed to this article.
In our last article we examined and gave a general overview of the USDA's "Swampbuster" Act, which sets out conservation requirements for farmers who participate in USDA programs. Particularly, we discussed different situations where farmers may run afoul of the act and the penalties that can be imposed for violations. In this article, we will discuss options that exist for farmers who find themselves facing a violation under the act.
There are generally two types of wetland violations. First is a wetland conversion, where lands not currently farmed are cleared and/or tiled to allow for crop production. The second is a planting violation, which is the planting of an agricultural commodity on a converted wetland. In most cases, the farmer incurs both violations because the farmer converts the wetland (first violation) and then plants an agricultural commodity on the wetland (second violation). For a wetland conversion, the farmer is ineligible for each and every year the wetland was capable of crop production, both past, present and future, no matter if an agricultural commodity is planted on it or not. For planting violations, the farmer is ineligible for each year an agricultural commodity is planted on the wetland.
Fortunately, the act provides for various exemptions that can give reprieve to a farmer facing violations. Like in the game of Monopoly, an exemption is a farmer's "get out of jail free" card. In the wetlands game, I call it the "get out of the USDA's swamp free" card.
Once NRCS believes a wetland violation occurs, it sends notice over to the Farm Service Agency. From there, the FSA sends notice of the violation to the farmer and informs the farmer that he/she is ineligible for program benefits. However, a farmer can ask for a Minimal Effect Exemption (MEE) from NRCS. With a MEE, the farmer asks the NRCS to determine that the conversion has no meaningful or measurable effect on the overall wetlands in the adjoining areas. Take for example, a quarter acre grove of trees in the middle of a field. Even if it is a wetland, the NRCS could determine the conversion of the wetland does not have an effect on the surrounding wetlands. In this case, a MEE could be granted by the NRCS.
Probably the most common exemption is a Good Faith Exemption (GFE). With a GFE, it is as if the USDA is saying "yes, you violated Swampbuster, but you really did not mean to, so we're going to give you a pass." As with a MEE, a GFE is also a golden ticket out of the USDA swamp. However, there are several criteria the agency must examine before good faith is granted.
First, is whether "the characteristics of the site were such that the person should have been aware that a wetland existed on the subject land." If you convert a pristine wetland with cattails, ducks, etc., it's doubtful you'll meet this criterion. However, most wetland conversions I have been involved with involve land that the common person would not view as a wetland. Farmers are (generally) not versed in what makes a wetland a wetland under the NRCS's criteria. So, if the converted area is something that does not have obvious characteristics of a wetland, the farmer will likely pass this criterion.
Second is whether "NRCS had informed the person about the existence of a wetland on the subject land." This gets a little murky and turns on whether the farmer was told something generic from the NRCS like "there are some wetlands on that farm" versus "that area right there is a wetland." In any event, in the vast majority of the cases I have been in, the farmer had no indication from NRCS of the existence of any wetlands on the farm. Thus, in these instances the farmer passes this criterion.
Third is whether "the person did not convert the wetland, but planted an agricultural commodity on converted wetland when the person should have known that a wetland previously existed on the subject land." This criterion deals with planting violations and mostly comes in to play when the farmer knows he converted a wetland prior, or someone else did prior, and the farmer goes ahead and plants.
Fourth, "the person has a record of violating the wetland provisions of this part or other federal, state or local wetland provisions." Over the years, this seems to be the heaviest of the five criteria. If it is your first violation, you stand a decent chance of getting good faith, even if one of the other five criteria goes against you. If you have had prior violations, in my opinion, this will really drag on your case. I am not saying someone with a prior violation cannot get a GFE. However, I believe the other four criteria need to really weigh in favor of the farmer to overcome the prior violation(s).
Fifth, and lastly, "There exists other information that demonstrates that the person acted with the intent to violate the wetland provisions of this part." I've only seen this count against the farmer when the farmer had good reason to believe the converted area was a wetland or did something to try and hide the conversion.
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