Conservation Compliance Not Always Clear

Michigan Musings

One thing is clear, if you want to remain eligible for federal farm programs, you best have a determination made before one tree is cut or one puddle drained.

Published on: October 4, 2013

In this October issue of Michigan Farmer you'll find a couple of stories on farmers who are struggling with the state's Natural Resources Conservation Service to stay in compliance after land was cleared under varying scenarios.

One thing is clear, if you want to remain eligible for federal farm programs, you best have a determination made before one tree is cut or one puddle drained. And, if you did something 20 years ago you're unsure or uneasy about, don't assume you won't be called out on it.

The NRCS is pouring through old aerial photos, possibly going back as far as December of 1985 when the farm bill first tied highly erodible soils and wetland conversion to farmer payments.

Farmers are telling me that any dark area observed in a previous year that's not there now, is coming under suspicion. If there was not a conversion , the burden of proof falls on the farmer.

Do you still have records from 25 years ago? Did you even own the ground at that point?

Gary Lee, State Conservationist for the NRCS, is quick to point out that a determination goes with the ground. So, if you're buying ground, it's best to know its full history. If you buy something with a violation, even if it's less than an acre, your entire farm is out of compliance.

At that point, your choices are to replace the wetland, mitigate it someplace else, improve an existing wetland or buy from a wetland mitigation bank – none of which are cheap. Or, you can choose to appeal it – most likely that will require 3rd party inspections and a lawyer – again, a substantial financial drain.

With current commodity prices, some farmers are opting out of USDA farm programs altogether.  This seems like risky business. Farm programs may not be all that important right now, however, the situation may look very different in the future as both commodity prices and the farm bill changes.

By opting out, it does not mean farmers can do whatever they want with their land.

The Michigan Department of Environmental Quality administers the Clean Water Act, which is a federal law governing all waters of U.S. That includes wetlands, which are defined by assessing the hydrology of the area, soils and vegetation. In the state of Michigan, DEQ regulates wetlands either connected to a stream or lake or within 1,000 feet of the Great Lakes or 500 feet of inland bodies of water. Isolated wetlands greater than 5 acres are also governed. Development of these areas, for any reason, requires a permit – agriculture is no longer exempt.

Farm bill impact
And, while we're still waiting for a new farm bill, it's important to note that the U.S. Senate's version included language that would make crop insurance dependent on complying with conservation requirements. The House, at this time, has no such cross-compliance language.

If, in conference committee, the House agrees to this link, those out of compliance should prepare to pay the federal government's 62% of premium subsidies.

About 80% of farmers use crop insurance to manage price volatility and weather variability. In the new farm bill, it replaces many commodity payments.

I think it makes sense that if USDA (ie: all of us) are going to offer substantial premium subsidies, it should come with some strings.  However, I back pedal on that statement a little when I hear stories of inconsistencies at NRCS and farmers being held accountable and penalized for actions of a prior landowner more than 20 years ago. The Farm Service Agency has the ability to provide a "good faith" exemption and should use it more for actions done prior to 1990 when it's clear the current landowner is not responsible.