The Farm Bill of 1985 is known for introducing several conservation programs which are still in use by agricultural producers today. The Highly Erodible Lands and Wetlands Conservation (“HEL & WC”) program, first introduced in the 1985 Farm Bill, works to conserve erodible land and wetlands across the United States. The two main components of the HEL & WC program are referred to colloquially as “Sodbuster” and “Swampbuster.” Previous posts discussing Swampbuster are available here, and here. The following is an introduction to the other component of the 1985 conservation programs, Sodbuster.
The main goal of Sodbuster is to prevent the conversion of highly erodible land into cropland in order to reduce soil loss on erosion-prone lands. To accomplish this goal, the Sodbuster program requires that any producer who plants or produces an agricultural commodity on highly erodible land without following an approved conservation plan, will not longer be eligible to receive certain benefits from the United States Department of Agriculture (“USDA”). The Natural Resources Conservation Service (“NRCS”) is responsible for administering Sodbuster and works with producers to identify highly erodible lands and create conservation plans.
According to NRCS, a highly erodible land is land that “can erode at an excessive rate from either water or wind because of soil properties, leading to long-term decreased productivity.” According to the Sodbuster regulations, highly erodible lands are identified according to an “erodibility index” which operates as “a numerical value that expresses the potential erodibility of a soil in relation to its soil loss tolerance value” without taking conservation practices into consideration. 7 C.F.R. § 12.2(a). The regulations go on to explain that an area’s “soil loss tolerance value” represents “the maximum annual rate of soil erosion that could occur without causing a decline in long-term productivity.” 7 C.F.R. § 12.21(a). In other words, an area’s erodibility depends on how much soil erosion could occur each year without negatively impacting the area’s productivity. Highly erodible lands that fall under the scope of Sodbuster are lands with an erodibility index of 8 or more. 7 C.F.R. § 12.2(a).
Under Sodbuster, NRCS is responsible for making highly erodible land determinations, and working with producers to develop conservation plans and systems. NRCS makes highly erodible land determinations field-by-field, and based on the proportion of the total acreage that contains highly erodible soil. A field will be classified as highly erodible land if either 33.3 percent or more of the total field acreage has highly erodible soils, or 50 acres or more of the field has highly erodible soils. Producers who want to know if a highly erodible land determination has already been made for their land can contact their local Farm Service Agency (“FSA”) office for the most current determination. If a determination does not exist, then a producer may request one by notifying FSA via Form AD-1026 “Highly Erodible Land Conservation and Wetland Conservation Certification” and delineating on a map the location for the requested determination. From there, FSA transfers the request to NRCS.
To identify fields subject to Sodbuster, NRCS follows a four-step determination process. First, NRCS will review the field’s soil survey for soils the Highly Erodible Soils List. Each state has its own list of soils that have an erodibility index of 8 or higher that can be found here. NRCS will next evaluate the field itself to determine if it meets the highly erodible lands criteria of having either 33.3 percent or more of the total field acreage contain highly erodible soils, or 50 acres or more of the field contain highly erodible soils. NRCS will then fill in a determination map by marking which areas are considered highly erodible lands and which are not. Finally, NRCS completes Form NRCS-CPA-026 “Highly Erodible Land and Wetland Conservation Determination,” and sends the form to the producer along with a determination map and a preliminary technical determination. If NRCS has identified a highly erodible land on the producer’s property, the producer will need to work with NRCS to develop a conservation plan or system before farming the area.
Conservation Plans & Exemptions
Agricultural producers who wish to farm a designated highly erodible land must do so in compliance with an NRCS conservation plan in order to remain in compliance with Sodbuster. Upon request, NRCS will provide technical assistance for conservation plan development. In general, the plan will be designed to ensure a 75 percent reduction of the possible soil erosion, or less than twice the tolerable soil loss for the identified highly erodible soils. The specifics of each conservation plan are required to be based on the NRCS field office technical guide in use at the time. 7 C.F.R. § 12.23(a). Each field office maintains a guide specific to where the office is located, those guides can be explored here.
Although Sodbuster generally requires any farmer who produces a commodity on highly erodible land without an approved conservation plan to lose access to certain USDA benefits, there are some exceptions to that general rule. Sodbuster exemptions include: land that was planted with an agricultural commodity during the years 1981 – 1985; actions that are taken in reliance on an NRCS highly erodible land determination; noncommercial production of an agricultural commodity on highly erodible land on an area of two acres or less; violations of Sodbuster that were made in good faith; and technical and minor violations. 7 C.F.R. § 12.5(a). If a Sodbuster violation is determined by NRCS to fall into one of those exemption categories, then the violator will remain eligible for USDA benefits.
In 2020, NRCS passed new regulations for the Sodbuster and Swampbuster programs. While most of the 2020 regulations were aimed at clarifying aspects of Swampbuster, some of the provisions were also aimed at making Sodbuster easier to navigate. The 2020 regulations allow the use of light detection and ranging to help make slope length and steepness measurements when NRCS is determining whether a field is highly erodible land. This change allows NRCS to use newer technological tools while making its determinations. Additionally, the 2020 regulations will require NRCS to make an onsite determination if a person disagrees with an offsite highly erodible land determination. By doing so, NRCS hopes to ensure more accurate determinations. For additional information on the 2020 regulations, click here.
Any farmer who receives USDA benefits should be aware that compliance with certain conservation programs may be required to maintain those benefits. Sodbuster is one of those conservation programs, and any producer with land that may contain highly erodible soils should be aware that producing an agricultural commodity on such soils without an NRCS-approved conservation plan may violate Sodbuster. Local FSA and NRCS field offices can be good sources of information for determining what soils are present in a particular area.
To read the Sodbuster regulations, click here.
For more Sodbuster resources from NRCS, click here.
For more conservation programs resources from the National Agricultural Law Center, click here.