August 19, 2021
It is hard to believe that it has been a year since the derecho that left many farm families reeling over property damage and widespread crop loss. We are not immune from Mother Nature, as we have been continually reminded.
With talk of the next farm bill on the horizon, it's a good time to check in on your farming operation's conservation plan and ensure compliance with Federal Farm Programs to protect your ability to obtain federally subsidized crop insurance.
Agriculture Secretary Tom Vilsack, in his address at the 2021 Commodity Classic, said that work on "climate-smart ag" should begin before the next farm bill. Proposed increases in funding of the Conservation Reserve Program and an increased emphasis on carbon credits and carbon banks, renewable energy, and other environmental matters bring different opportunities for farm families, but also remind us that we need to understand the rules of enrollment in USDA programs.
So, what are a landowner's duties with respect to farm programs, including CRP, and conservation compliance in general? It is important for landowners to understand that with the rewards of enrolling in the program, there are risks and requirements landowners must keep in mind.
What often flies under the radar are the conservation provisions and the increased compliance responsibilities for producers and landowners set out in the 2014 Farm Bill and continued thereafter. Practically speaking, for a producer to participate in Farm Service Agency programs, the producer must abide by the conservation compliance "guidelines" administered by the Natural Resources Conservation Service and FSA.
Farm bill requires ‘conservation compliance’
Most importantly for producers to remember, the 2014 Farm Bill reinstated the requirement of "conservation compliance" with the highly erodible land and wetlands provisions already in place for a producer to be eligible for crop insurance premium assistance beginning with the 2016 crop year — often referred to as conservation cross-compliance. (Congress had previously severed the link between conservation compliance and crop insurance premium support in 1996.)
The highly erodible land conservation (HELC) and the wetland conservation (WC) provisions were created under the 1985 Farm Bill in an attempt to reduce soil loss on erosion-prone land and to protect wetlands. The provisions are sometimes referred to as "Swampbuster" or "Sodbuster."
Unless some exemption applies, the HELC and WC provisions apply to all land USDA considers highly erodible or a wetland, and that is owned or farmed by someone who chooses to participate in USDA programs. The programs are administered by FSA and NRCS, and those agencies are required to enforce the rules by monitoring compliance through field reviews, spot checks, etc.
According to NRCS, it conducts a random sampling of clients with highly erodible land each year. If a producer is found in violation and loses eligibility for farm program benefits, they must be notified and offered a right to appeal. They may also be eligible to for a waiver due to weather, natural disasters or "unavoidable situations."
If you receive a final determination of a violation of either the WC or HELC provisions, the best practice is to consult an attorney who understands these issues.
Remember, the farm bill requires producers to have on file a Highly Erodible Land Conservation and Wetland Conservation Certification (known as Form AD-1026 at the local FSA office). All producers that receive premium subsidies for federal crop insurance must complete the form.
In reality, most producers already have this form on file if they have participated in NRCS or FSA programs that require it. However, if a producer does not have the form on file, they must complete it and get it on file with their local office to remain eligible for crop insurance premium assistance.
Form AD-1026 requires a producer certify that they will not plant or produce an ag commodity on highly erodible land without an NRCS-approved conservation plan or system, plant or produce an ag commodity on a converted wetland, or convert a wetland that makes the production of an ag commodity possible.
Talk with local NRCS, FSA office
As we were reminded with last year's derecho, crop insurance and eligibility for premium assistance play a major role in the decisions producers are making. The best practice is for producers is to talk with their local NRCS and FSA office to gain a better understanding of the rules and to ensure they are in compliance.
In communicating with your local office, it is often important to take notes, familiarize yourself with the rules, and ask follow-up questions of staff if you are not clear on the requirements of a particular program.
As talk moves forward with the 2023 Farm Bill, we will update readers on developments in the area of conservation cross-compliance when information becomes available.
Renewable energy leases
In the past several months, I have received questions from landowners in the process of evaluating lease and easement opportunities covering a wide array of opportunities in renewable energy — including wind, solar or transmission line projects. Understanding and reviewing these agreements is essential to protecting your farm business and business successors, as these agreements can be quite lengthy and complex.
With talk in the Biden administration of increasing investments in renewable energy, it is a prime time to discuss the key terms found in these agreements and how to evaluate the potential income opportunity they may provide. Stay tuned next month.
Herbold-Swalwell is an attorney with Brick-Gentry in Des Moines. Email [email protected].
About the Author(s)
You May Also Like
9 steps to stay safe around pesticidesMar 30, 2023
Will South American weather spark corn market rally?Mar 30, 2023
WOTUS repeal bill goes to presidentMar 30, 2023