Wallaces Farmer

Legal Issues: Tools farmers use such as federal crop insurance hinge on complying with farm bill conservation provisions.

Erin Herbold-Swalwell

February 23, 2024

4 Min Read
cornfield with sun setting
CONSERVATION COMPLIANCE: Well-drained land via tiling is a proven land improvement perk. However, drainage must be done within compliance of farm bill conservation provisions. Gil Gullickson

At a Glance

  • Farmers must comply with farm bill conservation compliance to receive federal crop insurance.
  • Land improvements such as tiling are subject to compliance with farm bill conservation provisions.
  • NRCS randomly samples clients with highly erodible land each year to check compliance.

As farm families look forward to the busy spring months ahead, it is always a good idea to review the rules that govern participation in the farm programs. Some landowners may be considering land improvements, such as field tile installation or other conservation measures to improve their farms. What should landowners consider and what is the law?

Congress typically passes a farm bill every five years. In 2023, there was much discussion and behind-the-scenes work regarding a new farm bill. In the end, Congress passed a farm bill extension that extends the provisions of the Agriculture Improvement Act of 2018 through September.

Farmers must remember to comply with the act’s highly erodible land and wetlands provisions to be eligible for crop insurance premium assistance.

What is your risk?

In the past several years, farmers have dealt with derechos, droughts and other weather events. It is never more important to preserve your ability to qualify for crop insurance premium assistance than it is now.

So, what are a landowner’s duties with respect to farm programs, including conservation ones such as the Conservation Reserve Program, and how do they protect themselves from the risks of farming?

It is important for farm families to understand that with the rewards of enrolling in the farm program, there are risks and requirements farmers or landowners must keep in mind. What often flies under the radar are conservation provisions and increased compliance responsibilities 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.

What is the law?

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 is owned or farmed by someone that 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, such as through field reviews and spot checks.

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 disaster 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 that understands these issues.

Stay informed

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. All producers who receive premium subsidies for federal crop insurance must complete the form.

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 file it 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 producing an ag commodity possible.

Ask questions

As we have been reminded several times over the last few years, crop insurance and eligibility for premium assistance plays a major role in the decisions farm families make. 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 the new farm bill moves along prior to September, we will update readers on developments in the area of conservation cross-compliance when they become available.

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About the Author(s)

Erin Herbold-Swalwell

Erin Herbold-Swalwell is an attorney with Wickham & Geadelmann PLLC.

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