Compliance with USDA’s Highly Erodible Land Conservation (Sodbuster) and Wetland Conservation (Swampbuster) provisions is critical for many farmers. Violations of these provisions can render a farmer ineligible for USDA programs, including Farm Service Agency (FSA) loans, disaster assistance payments, conservation program benefits and federal crop insurance premium subsidies. USDA is also authorized to claw back prior benefits as a penalty for violations. Furthermore, USDA requires violators to mitigate their impacts to return to eligibility. With so much to lose, Natural Resources Conservation Service (NRCS) determinations are high-stakes affairs.
Preliminary determinations from your local NRCS conservationist are not the final word when it comes to your rights. These decisions can be appealed all the way to the Supreme Court. However, the first step is the “informal review” process. It is designed to be navigated without a lawyer, but legal assistance is an option.
To challenge a technical determination (e.g., wetland delineation), a farmer requests reconsideration and a field visit from the district conservationist. If the determination remains adverse, the district conservationist will submit it to the state conservationist for final review.
To challenge a final technical determination or program eligibility under Sodbuster or Swampbuster, a farmer can appeal the decision before their FSA county committee. It will consider evidence by the state conservationist, the farmer, other experts and a field visit. The county committee will then issue a decision letter.
If further appeal is desired, the farmer can either appeal a county committee decision to the FSA state committee or proceed directly to the USDA National Appeals Division (NAD). A more formal administrative review, NAD closer resembles a regular court system, and its decisions can be appealed directly to a federal district court.
Factors to consider before pursuing an informal review:
Know the rules. The procedures for an informal review are detailed in the Code of Federal Regulations, which is available online. Relevant portions include: NRCS Appeals Procedures (Title 7, Part 614) and FSA Appeal Regulations and County Committee Appeals (Title 7, Part 780). NRCS decisions should be accompanied with information regarding your rights of appeal.
Mind the deadlines. If a producer desires to challenge an NRCS decision, a written request for appeal must be submitted within 30 days of receipt of an adverse NRCS decision. With a few exceptions, failure to
appeal within the 30-day time frame renders an initial NRCS determination final.
Consider mediation. NRCS’s informal review process allows for confidential mediation if the producer requests mediation within 30 days of an NRCS decision notice. In mediation, a neutral mediator works with an NRCS representative and the farmer to attempt to facilitate a settlement between the two. If a settlement is not reached, the farmer is free to pursue further appeals. While a farmer is typically responsible for paying mediator program fees, this alternative form of dispute resolution is oftentimes cheaper than pursuing further appeals.
Consider legal or technical assistance. The NRCS informal review process is designed to allow laypersons to defend their rights. In many cases, hiring additional expertise is unnecessary. However, presenting your best case in an informal review might allow you to head off the extra time and expense of an appeal to NAD or federal court. Hiring legal counsel or a civil engineer to assist you might make sense in some circumstances.
This column is not a substitute for legal advice.