With USDA Rules, It's Better to Ask First Before Tiling
Published: Friday, February 21, 2025
The following is from John J. Schwarz II, a lifelong farmer and an agricultural law attorney. Natalie Boocher also contributed to this article and is an elder law attorney.
In 1985, Congress passed the Food Security Act, a comprehensive framework to administer agriculture and food programs. In doing so, Congress established a conservation program titled the Erodible Land and Wetland Conservation and Reserve Program. The conservation and reserve components are affectionately (or perhaps un-affectionately) referred to as "Sodbuster" and "Swampbuster," respectively. This article will focus on Swampbuster.
Swampbuster prohibits farmers receiving USDA agricultural benefits from converting wetlands into tillable land to be used for agricultural purposes. A farmer seeking any U.S. Department of Agriculture benefits must submit a completed AD-1026 form to the local Natural Resource Conservation Service office certifying compliance with Swampbuster's conservation provisions as a condition of eligibility for certain USDA programs.
Keep in mind that the magic date for Swampbuster is Dec. 23, 1985. Essentially, if land was farmed prior to Dec. 23, 1985, it is, for the most part, exempt from Swampbuster provisions. If it was not farmed before such date, then Swampbuster provisions apply to the land. It is here where the USDA's swamp monster lies in wait for those to violate the Swampbuster provisions.
A person who desires to remove woody vegetation or install drainage tile is expected to complete an updated AD-1026 to the NRCS. The AD 1026, via question 7, asks if anyone since Dec. 23, 1985, has engaged in certain activities, or will so in the future, and then lists various questions under subparts A, B and C. I will address each of these subparts.
Subpart A of the AD-1026 asks if anyone has or will "perform any activities to create new drainage systems, conduct land leveling, filling, dredging, land clearing or excavation that has NOT been evaluated by NRCS?" If the farmer checks "Yes," the farmer is to indicate the years these activities have or will occur. So, for example, assume there are five acres of trees in a field that I want to remove so the area can be farmed. Since these activities have "not been evaluated by the NRCS," NRCS will need to evaluate my activities before I perform them. From here, NRCS will evaluate and generate a Preliminary Technical Determination (PTD). A PTD is a report from NRCS stating what designation the 5-acre spot falls under, such as wetland, non-wetland, prior-converted, and so forth. Later, the PTD will be finalized as a Final Technical Determination (FTD).
If a farmer disagrees with an NRCS technical determination, they are afforded the right to appeal such determination. Appealing a technical determination you disagree with is important because a wetland certification remains effective in perpetuity. This is because the administrative rules limit review of a prior certification by essentially requiring an act of God (i.e. storms or other hydrology changing event) or an error by NRCS can change a wetland determination.
I cannot stress enough that, if a farmer disagrees with an NRCS technical determination, to get professional help. Fighting back against an NRCS technical determination is no easy task. Essentially, you will need to show the NRCS's method was either flawed in determining it was a wetland or some other factual reasons. This is generally going to take the help of an attorney and a wetland consultant. I routinely tell clients that a wetland does not have to be some picturesque wetland with cattails, migratory birds or other aesthetic features that come to mind when the average person envisions a wetland. Rather, in the NRCS's world, a "wetland" only needs three criteria: Predominance of hydric soils (soils formed under wet conditions), prevalence of hydrophytic vegetation (vegetation adapted to wet soil conditions), and inundation or saturation by surface or groundwater (hydrology) enough to support hydrophytic vegetation.
Thus, when confronted with what is referred to as an "adverse determination" regarding a Preliminary or Final Technical Determination, plan on bringing the "A" team (i.e. get professional help) because once a determination becomes final, you're likely stuck with that for the rest of your life, and so are your heirs.
So, the threshold criteria for a "wetland" in the NRCS world is low. In fact, many wooded areas that could be easily cleared and farmed without tile having to be inserted can still classify as a "wetland." At the end of the day, a farmer should err on the side of caution if they intend to create new drainage systems, conduct land leveling, filling, dredging, land clearing or excavation, that has not been previously evaluated by NRCS, by completing an updated AD-1026.
Subpart B of the AD-1026 also asks if the farmer intends to "improve or modify an existing drainage system that has NOT been evaluated by NRCS." Subpart C asks if the farmer intends to "maintain an existing drainage system that has NOT been evaluated by NRCS." I would be hard pressed to think of a time when I had a client get crossways with the NRCS for failing to complete an AD-1026 for improving tile in areas that have already been farmed, but it can happen. More so, issues seem to arise when old tile has not been working for quite some time, causing areas not to be farmed for several years. In some of these cases, I have seen NRCS take the position that "abandonment" has occurred when the area has not been farmed for five consecutive years, thus leading to a violation if wood vegetation is removed and/or tile installed.
Many people employ the adage of "it is easier to ask for forgiveness, than permission." And, in many areas of life, that adage holds true. When it comes to Swampbuster, not so much. Thus, I believe a brief discussion on the penalties for violating Swampbuster is in order.
When a farmer is in violation of Swampbuster, they are ineligible for USDA program benefits for each year the violation exists. This applies to payments received in past and future years, which also includes crop insurance subsidy premiums.
This article serves to give a high-level review of Swampbuster with focus on the importance of filing an AD-1026 with NRCS before engaging in certain activities. Completing an updated AD-1026 before clearing woody vegetation, tiling wet areas, etc., can go a long way to keep you from getting stuck in the USDA swamp. Our next article will look at what happens when you do end up getting stuck in the USDA swamp, and examine exemptions to wetland violations that are available, mitigation of wetlands to alleviate a violation, and the appeal process.
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