On August 28, 2020 the United States Department of Agriculture (“USDA”) issued a final rule for the Highly Erodible Land and Wetlands Conservation provisions (“conservation provisions”) of the Food Security Act of 1985 (“the 1985 Farm Bill”). The conservation provisions of the 1985 Farm Bill have the broad goal of conserving wetlands and reducing erosion. That goal is accomplished by linking eligibility for USDA program benefits to land management practices on highly erodible lands and wetlands. Because the conservation provisions are closely tied to the management of highly erodible lands and wetlands, how those areas are identified is essential to implementation of the provisions. The final rules passed by USDA aims to provide greater transparency to the process by which highly erodible lands and wetlands are identified, and to help farmers better understand when their actions may result in ineligibility for USDA program benefits.
The Conservation Provisions
The conservation provisions were first introduced in 1985, and have been amended several times by subsequent Farm Bills. Colloquially, the provisions are referred to as “Sodbuster” and “Swampbuster,” and are administered by USDA’s Natural Resources Conservation Service (“NRCS”). Under the conservation provisions, farmers and landowners who use a field with highly erodible land to produce an agricultural commodity or who convert a wetland for the purpose of producing an agricultural commodity lose eligibility for certain USDA program benefits. USDA program participants must annually certify that they are in compliance with the conservation provisions.
Identifying areas that are highly erodible lands and wetlands is a crucial component of the conservation provisions. NRCS is tasked with identifying such areas, and with ensuring compliance with the provisions. When determining whether an area is a wetland that falls under the wetland conservation provisions, NRCS must determine whether the area has wetland vegetation, the type of soil that coan support wetland vegetation, or normally contains hydrologic conditions even if the vegetation has been removed. 7 C.F.R. § 12.30(c)(7). All three characteristics must be present in order for the area to be considered a wetland. Determining whether an area is a highly erodible land is a more complex process that involves calculating the erodibility index for a soil based on factors such as annual rainfall, the degree to which the soil resists erosion, and the steepness of the area. 7 C.F.R. § 12.21 (a)(1)(i)-(iii).
Along with identifying highly erodible lands and wetlands, NRCS is charged with determining whether such areas have been “converted.” Generally, once a highly erodible land or wetland has been converted, the farmer responsible will no longer be eligible for certain USDA program benefits. However, there are multiple exemptions. A person will generally not loose USDA program benefits for production of an agricultural commodity on a converted wetland if the land falls into the definition of prior-converted cropland, farmed wetland, or a farmed-wetland pasture.
The rules published by USDA on August 28 finalizes many of the provisions contained in an interim final rule published by USDA in December, 2018. The new rules make several important changes to the conservation provisions with the intended goal of clarifying when a wetland is present. As part of achieving that goal, the new rules have added definitions for several terms including “wetland hydrology,” “normal climatic conditions,” and “best drained condition,” all of which are terms applied to the process of identifying wetlands. The new rules also revise the definition for “wetland determination” in regard to farmed wetland, farmed wetland pasture, and prior-converted cropland. Because those three categories converted wetland are exemptions to the conservation provisions, clarifying how those areas are identified will be helpful to farmers and landowners in figuring out what areas are on their land. The new rules also state that any wetland determinations made between 1990 and 1996 will be certified. Under the conservation provisions, a person will not become ineligible for USDA program benefits “as a result of taking an action in reliance on a previous certified wetland determination by NRCS.” 7 C.F.R. § 12.5 (b)(6)(i). By certifying the wetland determinations made between 1990 and 1996, NRCS hopes to add further clarity for many farmers and landowners.
Finally, the new rules incorporate the requirement of the 2018 Farm Bill that USDA must make a reasonable effort to include the “affected person” in an on-site investigation conducted prior to making a determination that a wetland violation has occurred. Additionally, the new rules require that if a person disagrees with an off-site determination of potentially highly erodible soils, NRCS would make an onsite determination.
Why It Matters
The changes to the conservation provisions made by the new rules could have a significant impact on how the provisions are administered moving forward. NRCS has come under criticism for how it administers the conservation provisions. The implementing rules have been criticized for being extremely complex and difficult to navigate, while NRCS has come under scrutiny for making unreasonable wetlands determinations.
One example of such a determination was made by NRCS in 2008. That year, NRCS notified the family who owned Maple Drive Farms that the agency had identified a wetland on their property. The family quickly pointed out that the area in question had been converted from a wetland to farmland in 1965 with help from NRCS. Therefore, the family believed the area was exempt from the conservation provisions. NRCS and the family ultimately ended up in court in 2015, where they argued over whether the land was exempt based on ambiguous regulatory language. Although the court in Maple Drive Farms Ltd. Partnership v. Vilsack, No. 13-1091 (6th Cir., 2015) ultimately found in favor of NRCS on that argument, it acknowledged that the language was so ambiguous that both interpretations were plausible. The new regulations are intended to clarify the regulatory language so that going forward it will be easier to identify areas that are exempt from the conservation provisions without having to go to court to determine the meaning of ambiguous regulatory language.
However, not everyone is convinced that the new rules will result in more reasonable wetland determinations. The American Farm Bureau Federation feels that the rule gives NRCS too much discretion to determine whether an area is a wetland, while not providing farmers with enough power to challenge determinations they believe are unfair. At this moment it is unclear whether the new rules will bring the clarity NRCS intended.
To read the new rules for the conservation provisions, click here.
To read the regulations for the conservation provisions, click here.
To read the text of the conservation provisions, click here.
To read the court’s decision in Maple Drive Farms Ltd. Partnership v. Vilsack, click here
For more National Agricultural Law Center resources on the conservation provisions, click here.