6. Conservation Compliance Requirements

Producers enrolled in a number of federal farm programs are prohibited from producing agricultural products on highly erodible land without a conservation plan²⁵⁸ or on unconverted wetlands under any circumstances.²⁵⁹ The requirement protecting highly erodible land is commonly referred to as the “Sodbuster” provision, while the one protecting wetlands is known as the “Swampbuster” provision.

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and exemptions, while NRCS is responsible for making wetland and highly erodible land determinations.²⁶⁰

The 2008 Farm Bill allowed states to implement a third type of compliance requirement, called “Sodsaver,” to protect native sod in the Prairie Pothole National Priority Area.²⁶¹ The 2014 Farm Bill eliminated the optin requirement and amended the provision, which now reduces crop insurance premium subsidies by 50% for production on native sod for the first four years of planting in six states—Minnesota, Iowa, North Dakota, South Dakota, Montana, and Nebraska.²⁶²

While the Sodsaver provision only applies to the crop insurance program, the Sodbuster and Swampbuster requirements also apply to each of the conservation programs, as well as many of the smaller programs administered by FSA and NRCS. All three provisions offer potentially important climate benefits since conventional farming on native sod, highly erodible land, and wetlands results in significant greenhouse gas emissions.²⁶³ Despite the clear environmental benefits of these programs, however, the agency has failed to consistently enforce them.²⁶⁴ A 2016 USDA Office of Inspector General (OIG) report, for example, found that the agency’s auditing process had completely bypassed at least 10 states in 2015, apparently in error.²⁶⁵ At a minimum, USDA should vigorously enforce the Farm Bill’s current conservation compliance provisions, withholding benefits from farmers that fail to meet their requirements.²⁶⁶

FSA should work with NRCS to develop, publish, and implement a plan to address the current weaknesses in the enforcement of conservation compliance provisions.

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many seasonal wetlands have dried out—and precipitation data from historically dry periods.²⁶⁷ In addition, FSA should study and implement best practices for remote sensing technologies that can allow it to detect violations and identify issues for on-site inspections. Since compliance is often relatively easy to determine visually, including by satellite,²⁶⁸ USDA should be able to increase inspections at little additional cost. And, finally, FSA should publicly report on conservation compliance violations (without releasing private information) and resume reporting on conversion of land to cropland, also known as “new breakings,” which has not occurred since 2013. If USDA fails to do so, Congress should consider shifting enforcement responsibility to EPA, which has a stronger record of enforcing regulations, while also enabling states, localities, and citizens to enforce the requirements, as is possible under most federal environmental statutes.²⁶⁹ As discussed in Chapter V.A.4, Congress should also require USDA to provide the public with regular reports on compliance and enforcement data to ensure that FSA and NRCS develop effective tracking and reporting procedures, while also keeping the public and policymakers informed about these critical conservation protections.

Congress should also extend the conservation compliance requirement to farm programs that are not currently covered by the requirement, ensuring that all producers who receive federal subsidies are not causing significant environmental harm. In addition, Congress should expand the required practices to include those that protect soil carbon and water. For example, requiring buffer zones around streams or, where appropriate, cover crops (perhaps with the initial switch partially funded through EQIP), would have significant climate benefits and co-benefits such as improved soil health, nutrient cycling, pest regulation, and crop productivity.²⁷⁰ The EWG has proposed a “new and stronger conservation compact” that would require farmers to plan and apply an approved conservation system on all annually tilled cropland

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in order to remain eligible for farm programs.²⁷¹ Each operation’s conservation system would be designed to (1) achieve a rate of soil erosion no greater than the soil loss tolerance level on all annually planted cropland, (2) prevent ephemeral gully erosion, and (3) establish and maintain a minimum of 50 feet between annually tilled cropland and waterways.²⁷² Congress should adopt the EWG’s outcome-based proposal, which offers a cost-effective and quick way to catalyze widespread change.

Despite Sodsaver, agricultural policy still incentivizes the conversion of natural grassland. This must be addressed if the sector is to achieve net-zero emissions. Natural grasslands provide a number of important ecosystem services, especially in the prairie states, including water supply and flow regulation, erosion control, pollination, and wildlife habitat.²⁷³ They also mitigate climate change and sequester carbon.²⁷⁴ A 2019 study found that almost 90% of emissions from cropland expansion in the United States between 2008 and 2012 came from grassland conversion.²⁷⁵ In early 2018, almost 200 conservation, agriculture, and wildlife organizations urged Congress to extend Sodsaver to the entire country, including states that are experiencing high rates of conversion of native grassland, such as Texas and Kansas.²⁷⁶ Congress should make Sodsaver a national program and require USDA to track and report on grassland loss by county, allowing policymakers to effectively evaluate the program’s efficacy.

USDA does not maintain a comprehensive inventory of intact native prairies, hampering efforts to conserve native prairies. USDA should immediately begin to distinguish between native and non-native prairies and grasses, while coordinating monitoring and reporting frameworks, which include the NASS’ Cropland Data Layer, NRCS’ National Resources Inventory, the U.S. Geological Survey’s National Land Cover Database, and the U.S. Fish and Wildlife Service’s National Wetlands Inventory. This will allow policymakers and USDA to prioritize native sod, increasing Sodsaver’s effectiveness as it expands.

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