Landowners, including farmers, who clear brush, old fences or trees from land may be setting themselves up for permanent ineligibility for certain government programs administered through the USDA.
Before clearing a fencerow, removing trees or otherwise changing the character of any un-farmed property, landowners should contact their local Farm Service Agency office to confirm that the property to be cleared is not a wetland. If pre-approval is not secured, the converting person may be forced to re-populate the affected area with native trees and plants, remove any installed drainage and agree to never farm the subject area.
According to federal law, any conversion of wetlands to cropland or other productive use could make the converting party permanently ineligible for participation in all USDA programs, including but not limited to commodity programs, federally subsidized crop insurance, Farm Service Agency loans and other loans that are directly or indirectly subsidized by the federal government. Later owners of the converted wetlands can be ineligible, too.
The soil type, location and usage history can collectively lead to a finding that the “hydrological” (water) character of an area makes the area a wetland, even if the area looks to always be as dry as a bone. As a result, a woods that never floods or portions of a fencerow that barely hold any moisture may be found to be a wetland under certain federal regulations.
Federal law exempts certain properties converted from wetlands to other uses prior to 1985 (for some uses) or prior to 1990 (for other uses). Additionally, there are some other, limited exemptions to the rules against conversion of wetlands.
The premise of wetland preservation makes sense, but if the idea is taken to its logical conclusion, virtually no property in northwest Ohio will ever be able to be converted to productive farm use if it is not already in productive farm use. This is because, at one point in time, almost all of northwest Ohio was a part of the Great Black Swamp. Based upon this history, every acre of land in our region is or has been a wetland. Thus, conversion of any land to productive farm use could be interpreted as a conversion of a wetland.
Based upon my experience, until a couple years ago, penalization for conversion of wetlands was infrequent. Lately, enforcement increased, particularly as the local Farm Service Agencies have more access to more technology and data. That data includes every borrower’s entire loan records from Farm Credit and Ag Credit. Therefore, if a farmer simply recites additional tillable acreage on a loan application through Farm Credit or Ag Credit, that farmer probably places himself or herself in the cross-hairs for extra wetland scrutiny and investigation.
Landowners who do not currently deal with USDA may see wetland conversions as “no big deal.” However, later owners of a converted wetland would not be eligible for USDA programs themselves, unless the wetland conversion is un-done, a situation that significantly decreases the value of property.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.