Protecting the Environment and Farmers Through USDA Reform
USDA subsidies have become an entrenched part of American farming, even if the subsidized crops fail to ever reach market. One of the early results of these subsidies was incentivizing agricultural producers to plant crops on fragile lands, such as wetlands and highly erodible areas, which negatively impacted soil and water quality while also producing unnecessary surplus crops.
Like most big-government failures, regulators turned to even bigger-government solutions. To reverse the trend of converting fragile lands into food agricultural areas, the USDA began incentive programs that pay farmers to not produce food agricultural products in these sensitive areas. The results of these efforts became today’s USDA conservation programs, which were largely enforced by threatening to cut off subsidies if farmers did not comply.
Wetlands Conservation Reform
The National Resource Conservation Service (NRCS), the agency within USDA charged with enforcing conservation programs, were empowered to declare areas wetlands and, therefore, off limits for farming. If these wetland-declared areas were used in a manner deemed unacceptable by federal officials, NRCS may revoke access to federal resources and subsidies by making technical determinations that carry potential penalties.
When a farmer disagrees with an NRCS technical determination, the farmer can file a request for reconsideration detailing why they feel a determination is inaccurate.[1] There is an administrative appeals process, which can include mediation, and, if the agency decides that a violator was acting in good faith without any intent to commit violations, the agency may grant good faith waivers.[2]
However, fighting a NRCS determination comes at a cost. Farmers can expect to hire their own experts, as well as legal counsel, to challenge these determinations. Even if the original determination is successfully appealed, as an administrative, rather than legal judicial process, the agency can re-visit and re-issue determinations that were successfully challenged, while it only takes one adverse determination for a farmer to lose all right to administrative appeals.
Because costs associated with fighting an immense federal bureaucracy with nearly unlimited financial and expert support, farmers often accept determinations that they would otherwise challenge because the process can be enough of a punishment in and of itself. There are several noteworthy cases where farmers challenged NRCS determinations, only to go through many years of legal challenges. [3] Additionally, there have been instances where challenging NRCS determinations led to retributive increases of enforcement efforts against those challenging the determinations. [4]
It is absurd that the federal government is involved in individual farm operations to the extent that a particularly soggy field in the middle of an otherwise non-marsh area falls under federal jurisdiction. The vast majority of farmers are good conservationists, if not because of moral or ethical considerations, out of self-preservatory interest in making sure their land, and by extension their livelihood, remain intact. The threat of dealing with a federal regulatory nightmare is an injustice to our nation’s farmers. Under the principles of federalism, these kinds of non-interstate matters are best handled at either state or local jurisdictions.
Fortunately, there are already resources available to help states establish their own wetlands conservation programs. One particular example, the American Legislative Exchange Council’s Wetlands Mapping and Protection Act model policy is available for states to define the procedures, guidelines, and administration of wetlands programs.[5]
If the federal government does not divest these responsibilities to the states, at the very least a future administration should support the NRCS Wetland Compliance and Appeals Reform Act.[6] The Act modifies NRCS’ compliance rules to protect farmers and ranchers by adding protections against regulatory overreach.
Conservation Easement Reform
USDA’s conservation easements are a powerful tool to incentivize long-term preservation of ecosystems while still allowing farmers to benefit economically. However, when farmers and ranchers sign conservation easements with the USDA, they are enforced in perpetuity.
Future generations, be they the descendants of the landowner or new residents, are bound by those conditions. Ecosystems and topography naturally change over time, but without legislative change, easement requirements will not.
Prohibiting USDA from requiring permanent easements, rather than temporary, will not only secure the property rights of future generations, but also ensure that those closest to the land can adapt.
[1] https://www.nrcs.usda.gov/getting-assistance/compliance/conservation-compliance-appeals-process
[2] https://www.gao.gov/products/gao-21-241
[3] https://www.agweb.com/news/crops/crop-production/quadruple-jeopardy-farmer-wins-after-bizarre-wetlands-regulation-saga
[4] https://www.agweb.com/news/crops/crop-production/regulatory-hell-farmer-and-veteran-wins-10-year-wetlands-fight
[5] https://alec.org/model-policy/wetlands-mapping-and-protection-act/
[6] https://www.congress.gov/bill/117th-congress/senate-bill/4931?s=1&r=8