Can I Sell Farmland With a Highly Erodible Land (HEL) Compliance Violation?
Key Takeaways
- An HEL violation is a program-eligibility problem, not a title problem. Under 7 CFR Part 12, a Highly Erodible Land (Sodbuster) compliance violation makes the producer ineligible for specific USDA benefits — it does not record a lien, deed restriction, or easement against the parcel, according to Cornell Law School LII's text of 7 CFR § 12.4.
- The list of what a violation can suspend is longer than most sellers expect. 7 CFR § 12.4 names commodity and price-support payments, farm credit program loans, EQIP payments, disaster payments, Commodity Credit Corporation storage payments, and federal crop-insurance premium subsidies as benefits tied to HEL and wetland conservation compliance.
- A good-faith violation has a narrow, time-limited fix, not an automatic pass. Per 7 CFR § 12.5, FSA and NRCS can restore eligibility if the violation was unintentional and the producer implements a corrective conservation plan within a period NRCS sets, capped at one year — miss that window and ineligibility can extend into subsequent crop years.
Can I Sell Farmland With a Highly Erodible Land (HEL) Compliance Violation?
Yes — a Highly Erodible Land (HEL) conservation compliance violation, also called a Sodbuster violation, does not attach to your title, does not create a lien or easement, and does not require any release or payoff before you close. Under the federal regulations at 7 CFR Part 12, an HEL violation suspends the operator's eligibility for specific USDA farm-program benefits — commodity payments, certain loans, and crop-insurance premium subsidies among them — rather than encumbering the land itself, so a title search will not surface it and there is no county recorder's office document to clear.
HEL compliance gets confused with two different problems that also show up on farm ground. It is not a Swampbuster wetland compliance violation — a sibling test under the same Farm Bill framework, but NRCS applies it to a completely different soil and hydrology question; see selling farmland with a Swampbuster wetland compliance dispute if that's your situation. And it is nothing like an actual recorded lien, such as a USDA Farm Service Agency farm loan mortgage that FSA has to pay off or partially release before a sale can close — see selling farmland with a USDA FSA farm loan lien for that scenario. HEL compliance is neither: it's a soil-erosion eligibility status in your farm's FSA and NRCS records, and it changes how a row-crop buyer should evaluate the parcel's future program eligibility, not whether you're free to sell it.
This guide covers what triggers an HEL determination, which USDA benefits a violation can suspend, whether that reaches back to payments already received, the good-faith fix available, and what a buyer needs to know before closing. For more guides on selling farmland with a complication attached, visit the Jerez Land blog.
What Exactly Counts as a Highly Erodible Land (HEL) or Sodbuster Violation?
A Highly Erodible Land violation happens when an agricultural commodity is produced on land NRCS has identified as highly erodible without following an approved conservation plan or conservation system, per 7 CFR § 12.21 and the National Agricultural Law Center's summary of the Sodbuster rule. NRCS identifies highly erodible soil map units using an erodibility index — a ratio of the soil's potential erosion rate to its soil-loss tolerance value — and any soil map unit with an index of 8 or higher is classified highly erodible.
That soil-level classification then gets applied at the field level under 7 CFR § 12.22: a field is treated as "predominantly highly erodible" if 33.33 percent or more of its total acreage, or 50 acres or more of it, consists of highly erodible soil map units. Once a field crosses that threshold, the whole field carries the conservation-plan requirement, and while a landowner can request a boundary adjustment to exclude a non-erodible portion, acreage already designated highly erodible stays subject to the requirement even if field boundaries change later. This is a mapped, soil-science determination NRCS makes and documents — not a subjective judgment call by an FSA county office.
What Does an HEL Violation Actually Suspend — and Is It Retroactive?
An HEL violation makes the producer ineligible for a defined list of USDA benefits tied to program participation, and that ineligibility can apply to a crop year for which payments were already disbursed, effectively requiring repayment. 7 CFR § 12.4 names the covered benefits explicitly: contract payments, marketing assistance loans, and other price-support payments under the farm bill; farm credit program loans under the Consolidated Farm and Rural Development Act; Environmental Quality Incentives Program (EQIP) payments; Agricultural Credit Act payments; Watershed Protection and Flood Prevention Act assistance; and federal crop-insurance premium subsidies. On the highly erodible land side specifically, the ineligibility also reaches farm storage facility loans, disaster payments, and Commodity Credit Corporation storage payments.
Because a violation is typically discovered through a spot-check or a subsequent AD-1026 review rather than caught before planting, the practical sequence is often: commodity or other program payments are already in the producer's hands for that crop year, the violation is then determined, and the producer becomes ineligible for the year(s) the violation occurred — a retroactive clawback of benefits already paid, on top of losing eligibility going forward until compliance is restored. FSA and NRCS weigh mitigating factors — prior information available, land-use patterns, and violation history — in setting the exact scope of the penalty, so the specifics are case-by-case rather than off a fixed published schedule; your county FSA office and NRCS field office are the only accurate source for your own exposure.
Is There a Way to Fix an Unintentional Violation Before Losing Eligibility?
Yes — 7 CFR § 12.5 provides a good-faith exemption, but it only protects a producer who acted without intent to violate and who then corrects the problem within a defined window, not one who simply disputes the finding. To qualify, FSA has to determine the person acted in good faith and without intent to violate, NRCS has to determine the person is willing to bring the field into compliance, and the FSA county or state committee's good-faith finding has to be reviewed and approved by the applicable State Executive Director.
If that good-faith finding is made, the producer gets a reasonable period — as determined by NRCS, but capped at one year — to implement the conservation plan or system that brings the field into compliance. Miss that corrective window and ineligibility can extend to the crop year the corrective action was supposed to happen, plus any subsequent crop year, rather than resetting the clock. FSA can also apply a partial benefit reduction instead of full ineligibility, scaled to the seriousness of the violation — a determination FSA makes on the specific record, not something a seller can assume applies without asking.
How Is This Different From a Swampbuster Wetland Violation?
HEL/Sodbuster and Swampbuster are sibling provisions of the same 1985 Farm Bill conservation-compliance framework, but NRCS applies a completely different technical test to identify each, and the corrective path differs too. An HEL determination is a soil-erosion calculation — the erodibility index applied to mapped soil units — under 7 CFR Part 12 Subpart B. A wetland determination is a hydrology and vegetation question — hydric soils, wetland hydrology, and hydrophytic vegetation, or a previously converted wetland — under 7 CFR Part 12 Subpart C, an entirely separate delineation process. An HEL violation is generally correctable going forward with an approved conservation plan on the field; a wetland conversion instead ties ineligibility to the violation year and each subsequent year until the wetland itself is restored. If a wetland determination or a drained/converted wetland is the actual issue rather than soil erosion, see selling farmland with a Swampbuster wetland compliance dispute instead.
Does an HEL Violation Show Up in a Title Search or Need to Be Released Before I Sell?
No — an HEL violation is not recorded against the parcel anywhere a title search would find it, and there is no release, subordination, or payoff document required before closing. It lives in FSA farm records and NRCS conservation records tied to the operation and the field, not in the county recorder's or register of deeds' chain of title. That's the core difference from the two encumbrances sellers most often confuse it with: an FSA farm loan is a recorded mortgage or deed of trust that FSA has to pay off or partially release under 7 CFR Part 765 before a clean closing, covered in selling farmland with a USDA FSA farm loan lien; and a CRP contract or conservation easement is a formal succession obligation or a permanent recorded restriction that runs with the land, covered in selling land in a conservation easement or CRP contract. An HEL violation is none of those — it changes what USDA benefits are available to whoever farms the land, not who's allowed to own it.
| HEL / Sodbuster Violation | Swampbuster Wetland Violation | Recorded FSA Farm Loan Lien | |
|---|---|---|---|
| What triggers it | Producing a commodity on a field NRCS classifies highly erodible (erodibility index ≥8) without an approved conservation plan | Converting or farming a wetland NRCS has delineated by hydric soils, hydrology, and vegetation, without an exemption | Signing a mortgage or deed of trust to secure an FSA direct farm loan |
| What it attaches to | The producer's USDA program eligibility for that operation | The producer's USDA program eligibility, tied to the crop year until the wetland is restored | The land's title, via a recorded security instrument |
| Shows up in a title search? | No — tracked in FSA/NRCS farm records, not recorded | No — tracked in FSA/NRCS farm records, not recorded | Yes — recorded at the county recorder's or register of deeds' office |
| What a seller must do before closing | Nothing required to close; disclose known compliance issues to the buyer if program continuity matters to them | Nothing required to close; same disclosure consideration | Obtain FSA's written consent, and either payoff or partial release, before or at closing |
| Where it's governed | 7 CFR Part 12, Subpart B | 7 CFR Part 12, Subpart C | 7 CFR Part 765 |
What Should a Buyer of My Farm Know About an HEL Violation?
A buyer who wants to keep the land in row-crop production and stay eligible for USDA farm programs needs to know about a prior HEL violation, because eligibility questions attach to the operator and the field going forward, and a new owner will generally need the field's compliance status resolved or a conservation plan in place — a due-diligence question for the buyer to raise with the FSA and NRCS offices, not something a seller has to fix before closing. A direct cash buyer can move forward without requiring that compliance status resolved first, in a way a retail buyer relying on a USDA-backed agricultural loan may not be able to.
Request a no-obligation cash offer and we'll work through what you actually know about the field's HEL history, whether a violation or determination is on file, and what a straightforward cash closing looks like regardless of where that compliance question stands. For the broader document checklist a farmland sale like this still requires, see paperwork needed to sell land, and for the general playbook on selling working farm ground, see selling farmland.
Frequently Asked Questions
My tenant tilled up a field NRCS had mapped as highly erodible years ago without renewing our conservation plan — does that follow the land when I sell, or is it just his problem?
The eligibility consequences under 7 CFR § 12.4 attach to the producer whose operation was on that field during the violation year, but the field's highly erodible classification itself stays with the land regardless of who's farming it, so a new owner or new tenant who wants USDA program eligibility going forward will need an approved conservation plan on that field. It isn't a lien that transfers with the deed, but a buyer who plans to keep the ground in program-eligible row crops should know the field's HEL status and conservation-plan situation before closing, which your local FSA and NRCS offices can confirm.
I found out my farm has an HEL violation from a few years ago and FSA says I owe back some commodity payments — can I still sell while that's being sorted out?
Yes, you can sell — an unresolved repayment obligation from an HEL violation is a debt between you and USDA, not a lien on the property, so it doesn't block a closing the way a recorded mortgage would. That said, it's worth disclosing to your buyer and settling the repayment question with your county FSA office in parallel, since a buyer who wants continued USDA program eligibility on the field will care whether the compliance issue itself — not just the past payment dispute — has been resolved with an approved conservation plan.
I inherited farmland and have no idea whether any field has ever been flagged as highly erodible — how do I find out before I list it?
You can find out by contacting the FSA and NRCS offices serving the county where the land sits and asking whether the farm has an AD-1026 on file and whether any field has an HEL determination or conservation plan attached to it; the USDA Service Center Locator will point you to the right office. Because this status is held in agency farm records rather than the county's land records, a standard title search will not surface it, so asking the agencies directly is the only reliable way to check before you list.
Does a Highly Erodible Land violation show up when a title company runs a search on my farm?
No — an HEL violation is not a recorded instrument, lien, or easement, so it will not appear in a title company's search of the county recorder's or register of deeds' records. It exists as a program-eligibility status in USDA Farm Service Agency and Natural Resources Conservation Service farm records, which are separate systems from the land-records chain of title a closing attorney or title company checks.
What's the difference between a Highly Erodible Land violation and a Swampbuster wetland violation?
Both fall under the same 1985 Farm Bill conservation-compliance framework at 7 CFR Part 12, but NRCS uses a different technical test for each: HEL/Sodbuster is a soil-erosion calculation based on an erodibility index applied to mapped soil units, while Swampbuster is a wetland delineation based on hydric soils, wetland hydrology, and wetland vegetation. They also resolve differently — an HEL violation is generally corrected going forward with an approved conservation plan on the field, while a wetland conversion keeps a producer ineligible until the wetland itself is restored. See our guide on selling farmland with a Swampbuster wetland compliance dispute if wetlands, not erosion, are the actual issue on your parcel.
Will my buyer inherit my HEL compliance problem, or does it reset with a new owner?
USDA program-eligibility consequences under 7 CFR § 12.4 are tied to the producer and the crop year of the violation, not to the new owner personally, so a buyer doesn't automatically inherit your past ineligibility. But the field's highly erodible classification and its conservation-plan status stay with the land, so if your buyer wants to farm the field and stay eligible for USDA programs going forward, they'll need to confirm the field has (or can get) an approved conservation plan on file with NRCS, separate from anything tied to your own prior violation history.
Disclaimer: This article is for informational purposes only and does not constitute legal, financial, or professional advice. Laws, regulations, and USDA/FSA/NRCS program rules vary and change over time. Always consult a real estate attorney and your local FSA and NRCS Service Center before making decisions about a highly erodible land compliance issue, a conservation plan, or the sale of affected farmland. Jerez Land is not responsible for actions taken based on this information.