Are you guilty of swamp busting, if you remove non-productive trees for productive ones?

Question

The swamp buster law says that you can't remove trees, or stumps from a wetland. Does that include removing trees that are unproductive for trees that are productive (for food, and other things)?

Answer 1

Guilt is a concept of criminal law. In this case, if you do the prohibited thing, you are ineligible for certain USDA benefits. Under 7 CFR 12.4(a)(2-3), triggers include producing an agricultural commodity on a wetland converted after 12/23/85, or after 10/28/90 "converting" a wetland including removing woody vegetation to enable agriculture. Paragraph (c) also says that the loss of eligibility lasts until the situation is rectified (replanting could constitute remediation). 12.5(b) covers exemptions for "prior-converted cropland" which is a special case or a "farmed wetland", and within that a chunk of interest is

(iv) NRCS has determined that the conversion if[sic] for a purpose that does not make the production of an agricultural commodity possible, such as conversions for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction and no agricultural commodity is produced on such land

Under these regulations, "agricultural commodity" does not refer to agricultural commodities, it refers to "any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane", thus pulling out cottonwood trees and planting almond trees would not be producing an agricultural commodity.

There is also a "may I please" option, an exemption if

(v) NRCS has determined that the actions of the person...would have only a minimal effect on the wetland functions and values of wetlands in the area

There are dozens of other possibly applicable conditions which I'll skip. From what I can tell, there is no provision that allows "trade X for Y", but such an action might be consistent with benefit eligibility either under the theory that the "damage" was undone, or else under a "negligible effect" provision.