Farmers'
federal money at risk in wetlands fight
Case
of South Dakota brothers tests 1985 law
By Peter
Harriman
PUBLISHED: February 11, 2008
One
of the largest recipients of federal farm payments in South Dakota is at risk of
losing them.
The so-called Swampbuster case is being watched closely by both friends and foes
of Swampbuster, a controversial environmental law. It has some farmers and
conservation advocates at odds over what really constitutes wetlands that should
be off-limits to agricultural production.
The outcome could signal whether small, seasonal wetlands get an aggressive new
level of protection. Or will they fall prey to increased pressure by farmers to
make a crop on every possible inch of ground as sky-high corn, soybean and wheat
prices pull rent, fuel and fertilizer prices up with them?
At
issue: Whether Swenson Brothers, a farming partnership operating in Aurora,
Beadle, Davison, Haakon, Jerauld and Sanborn counties, damaged wetlands on farms
in Sanborn and Jerauld counties before 2006.
Daniel C. Swenson, Douglas J. Swenson and Paul V. Swenson, all of Woonsocket,
and Darren M. Swenson of Mitchell constitute the partnership that received $2.53
million in federal payments from 1995 to 2005, according to a database compiled
by the Environmental Working Group. That makes Swenson Brothers the 17th-largest
recipient of farm subsidies in South Dakota during that span. The $625,058
Swenson Brothers received in 2005, the latest year EWG figures are available,
was the seventh-largest payment to a South Dakota farming entity that year.
The
U.S. Department of Agriculture Office of National Appeals last year upheld
state-level rulings that Swenson Brothers violated Swampbuster. Doug Swenson,
citing ongoing attempts to resolve the case or to decide whether to take it to
federal court, says the partners are declining comment.
However, Wayne Smith, field services director for the South Dakota Farm Bureau,
thinks the Swenson case illustrates a number of problems with Swampbuster. Many
small, seasonal wetlands are improperly classified. Swampbuster does not take
into account land-use changes that have occurred since 1985. Wetland
determinations are more stringent in South Dakota than elsewhere, and
Swampbuster is enforced subjectively.
"They can follow the rules to a T. But the subjective part is the
interpretation of those rules and how they are applied on the ground. It isn't
really taken into consideration in the appeals process," Smith says.
Swampbuster
was a provision of the Food Security Act of 1985 and has been expanded by
additional federal legislation in 1990 and 2002. Designed to preserve wetlands,
it says anyone who farms a wetland that existed in 1985 loses eligibility for
all or a portion of federal farm subsidies paid out during that crop year.
Anyone who destroys a wetland loses eligibility for subsidies every year until
the wetland is restored or its loss mitigated to the satisfaction of the USDA.
According
to case documents, the USDA's Natural Resource Conservation Service claims
Swenson Brothers drained one wetland by deepening a drainage ditch beyond the
depth that existed in 1985 and drained three more by cutting a 6-inch deep
furrow with a disk.
Rather than seek a determination from a USDA Farm Service Agency committee made
up of fellow farmers that they were acting in good faith when they carried out
the drainage program - something they would almost surely receive - and settle
on a restoration plan, the Swensons put their considerable subsidies at risk to
fight Swampbuster.
Smith says there are reasons to fight. When wetlands in eastern South Dakota
were inventoried after Swampbuster was adopted, the inventory failed to take
into account land such as the Swenson Brothers' that was farmed with drainage
put in by homesteaders and early farmers that had been allowed to lapse,
restoring in part the wetland characteristics of the land. Those wetlands should
have been exempted from Swampbuster, Smith says.
Also,
National Resource Conservation Service regulations don't take into account
upstream drainage that might increase water flows beyond 1985 levels on land
downstream.
"If more is coming through, you need to be able to expand your ditch area
so the use of the land is the same as what it was," Smith says.
In
the Swensons' case, he adds, use of a disk represents normal tillage.
"People are converting wetlands every day if that's the
interpretation."
However George Vandel, acting director of wildlife for the South Dakota
Department of Game, Fish & Parks, says Swampbuster is the safeguard of one
of the state's most valuable resources.
"Those wetlands are one of the single most important habitat features in
eastern South Dakota," he says. Most are less than an acre in size and hold
water only part of the year.
"When
they're dry, fine, they sit there. Add water, and they instantly function and
are valuable not just for waterfowl but for a whole hosts of species and for
water quality," he says.
Kurt Foreman of the U.S. Fish and Wildlife Service in Brookings adds, "We
know those sorts of wetlands in croplands are responsible for 50 percent of the
breeding duck population in eastern South Dakota."
Vandel
says "taxpayers spend a lot of money to keep producers in business. With
that comes the responsibility they not do environmental harm. When you drain
wetlands, you are causing a loss for somebody else, the duck hunter in Louisiana
who is not getting ducks, the neighbor who now has more water on his place or
the neighbor who is trying to drill a well and sees the water quality going
down."
Both Madsen and the Farm Bureau's Smith say it is rare in South Dakota to see a
Swampbuster case fought so hard.
"Most of the time, the case can be resolved out in the field," Smith
says. "You deal with them at the local level, and you can usually get to
common ground before you get to national appeals."