Opinion: How Trump’s WOTUS proposal benefits farmers with converted cropland

The concept of prior converted cropland originated with the Food Security Act of 1985, which was enacted, in part, to encourage farmers to protect wetlands that existed on their agricultural property. To accomplish this goal, that 1985 farm bill established the “Swampbuster” program, which provides federal benefits to farmers.

The Environmental Protection Agency and the Army Corps of Engineers have also relied on the prior converted cropland concept, for purposes of the Clean Water Act. The agencies have authority to regulate the “discharge of dredged or fill material into the navigable waters,” and the CWA defines the term “navigable waters” as “the waters of the United States," or WOTUS.

To provide additional context to the scope of their authority, the agencies have promulgated regulations defining which features are WOTUS and subject to CWA jurisdiction, and which areas are excluded from CWA jurisdiction. Since 1993, the agencies’ regulations have categorically excluded prior converted cropland from the definition of WOTUS and thus regulation under the CWA.

But the agencies did not define prior converted cropland in the 1993 regulations, which has resulted in implementation issues because the prior converted cropland concept has been applied in different ways by USDA (for Swampbuster purposes), and the agencies (for purposes of the CWA), reflecting the different policies served by each agency and the statutes they administer.

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On Nov. 20, 2025, the agencies published a proposed rule to update the definition of WOTUS. Among other things, the proposal beneficially revises and clarifies the prior converted cropland exclusion. The proposed changes will assist farmers in demonstrating that their prior converted cropland is not subject to the CWA and, therefore, no CWA permit is required for activities on such land. If adopted as final, the changes to the prior converted cropland exclusion will have important implications for the 53 million acres of prior converted cropland across the country.

Under the proposal, the agencies provide a regulatory definition of prior converted cropland and revive concepts of “abandonment” and “reversion,” as described further below:

The proposal defines prior converted cropland as “any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible.” Qualifying uses include grazing and haying. In addition, cropland that is left idle for conservation purposes remains in agricultural use and therefore maintains the prior converted cropland exclusion. This clarification ensures that cropland enrolled in long-term and other Natural Resources Conservation Service conservation programs administered by the U.S. or by state and local agencies that prevent erosion or other natural resource degradation does not lose its prior converted cropland status.

Prior converted cropland would only become eligible for regulation under the CWA if the cropland is abandoned (meaning the cropland has not been used for or in support of agricultural purposes for more than five years) and the land has reverted to wetlands, as that term is defined under the proposal.

Even if land loses its prior converted cropland, meaning the land was abandoned and reverted to wetlands, a wetland is only subject to the CWA if it meets the requirements of the proposal, including a new adjacency test.

Importantly, the proposal confirms that the agencies will no longer apply the “change in use” approach from their current regulations to determine whether land qualifies for the prior converted cropland exclusion. Under the “change in use” approach, if prior converted cropland was used for non-agricultural uses, it lost the benefits of the prior converted cropland exclusion and was subject to the CWA.

Under the proposal, prior converted cropland will not become WOTUS subject to regulation under the CWA simply because it is being used for non-agricultural purposes. A prior converted cropland determination will be made regardless of the types or impacts of the activities that may occur.

Finally, the agencies will recognize designations of prior converted cropland made by the USDA or the Corps. The clarification that prior converted cropland determinations can be made by the Corps (in addition to USDA) is very important because USDA does not issue prior converted cropland determinations for lands that are not subject to USDA programs, and, in the past, farmers have been unable to obtain USDA prior converted cropland determinations when they do not participate in such programs.

If adopted as proposed, the prior converted cropland exclusion will have significant benefits for farmers and ranchers nationwide who can establish that their land qualifies for this important exclusion. The agencies are expected to issue a final rule later this year.

Karma B. Brown is a partner, and Sadie Mapstone and Nathan Menard are associates at the Hunton law firm.