Do the USDA's Swampbuster regulations limit the dredging of converted wetlands to the depth existing as of the statute's effective date? Barthel v. U.S. Dept. of Agriculture, 1999 WL 398715 (8th Cir. 1999) The Barthels own agricultural land next to a ditch. At various times before 1985, they dredged the ditch to remove debris that had caused flooding of their land. In 1985, the Federal Food Security Act was passed with a provision (commonly called "Swampbuster") that denies eligibility for federal farm-assistance programs if wetlands are converted to agricultural use. 16 U.S.C. § 3801, 3821-24. In 1987, the Barthels sought to dredge the ditch again, but the USDA determined that dredging below a particular elevation would violate the Swampbuster provision. The Barthels brought this action. The statute provides an exemption from Swampbuster for wetland converted to farmland before the effective date of the law. USDA regulations implementing Swampbuster provide that farmers may continue to farm converted wetlands as they did before the effective date, but that they can take no action to increase the effects on the wetlands. See 7 C.F.R. § 12.33 (a). The National Food Security Act Manual, USDA guidance, allows the agency to "determine the scope and effect of original manipulation on all farmed wetlands." NFSAM § 514.23. The USDA conceded that the hay meadow had been drained before the effective date of the statute; it determined the scope and effect of the original manipulation by specifying the depth to which the Barthels might dredge. However, that depth was insufficient to prevent flooding. The Court overturned the agency's interpretation of its own regulations as arbitrary and capricious. The regulations say nothing about preserving the precise depth of a drainage ditch. Ditch depth may be used as evidence of the water regime that previously existed, but the prior condition of the land is the focal point. In other words, "[t]he unambiguous focus of the statute and implementing regulations is to maintain the status quo of the manipulated wetlands-not the drainage ditch." The USDA was directed to determine the degree of dredging that would permit the Barthels the same "water and farming regime" existing as of the Act's effective date.
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