Restoring nature on agricultural lands: a comparative analysis of legislative innovation in Ukraine and Russia

By Oleksii Vasyliuk and Eugene Simonov

The issue of how to legally rewild lands that were previously only ineffectively cultivated is an urgent question in both Ukraine and Russia. The subject is also important from the perspective of protecting biological diversity and fighting climate change. Over the last two months, there have been two important amendments in laws regulating the management of forests that grow on abandoned agricultural lands in both Ukraine and Russia.

War has necessitated further adjustments to previous regulations, and today their implementation depends on the ongoing development of the military-political situation. The process for licensing natural resource extraction is being simplified at the state level, and previously confirmed plans to achieve conservation goals are being scaled back or canceled outright.

In this article we analyze recent legislative changes in Ukraine and Russia that affect the fate of unused agricultural lands, lands that could either be returned to agricultural production or finally legally recognized as natural areas. Regulatory decisions on these questions were made almost simultaneously in each country.

Oleksii Vasyliuk analyzes the pros and cons and needs for the future development of Ukraine’s land and forest legislation. President Zelenskyy is using a new law to grow the country’s forest fund by one million hectares, and the most effective means for achieving this goal is by legalizing “self-afforested” areas, or secondary forests.

In Russia, development of rural forestry has the potential to slow the demise of villages in less fertile northern regions. Eugene Simonov studies the latest regulations halting the development of rural forestry on vast expanses of abandoned agricultural lands in the Russian Federation, hopefully only temporarily.

One million hectares of forest for Ukraine

On 20 June, Ukraine’s Upper Rada parliament passed bill №5650 “On amendments to certain legislative forest conservation acts.” The bill was one of the most widely-anticipated laws among Ukrainian environmentalists and was largely written by civil society sector experts.

What was the vision for Bill №5650?

One premise of the bill’s preparation was last year’s announcement by Ukrainian president Volodymyr Zelenskyy of his government’s intent to increase the number of forests in Ukraine by 1 million hectares (one version of the announcement stated 1 million trees).

It’s obvious that land and other resources are insufficient to plant such a large number of forests in Ukraine, but that issue does not render the initiative impossible. Northern and western Ukraine both have significant secondary forests growing on long-abandoned agricultural lands. To a degree, these forests are more sustainable than monoculture forests planted by foresters. In any case, even a mediocre forest is more valuable to the environment than any representative field.

However, earlier secondary forests lacked legal status in Ukraine and were considered “fields.” And not just fields but abandoned fields with temporary tree cover. Such areas are usually leased out to farmers who then clear-cut or even burn these forests in order to begin cultivating corn or potatoes. Burning down these forests to grow corn is, of course, unacceptable for reasons of nature conservation and climate protection.

For this reason, the idea arose to increase the number of nominal forests in Ukraine not through new plantings but by preserving forests that arose independently and giving these “self-recovering” forests official recognition. The total area of such forests in Ukraine is estimated at 500,000-800,000 hectares. The goal of the law could be described as a way to fulfill the president’s promise to increase the quantity of trees planted quickly and to a high standard.

Guided by these ideas, the Ministry of Natural Resources and civil society drafted bill №5650.

It was hoped that the plan could:

Ensure that changes in the intended use of forested land areas for the construction of residential sites and natural resource extraction would only occur in unforested areas;
Prioritize the use of lands suitable for agriculture not only for food production but also for forest and conservation purposes;
Permit forestry management in any land category (not only on forest fund land), a principle which allows the use of degraded arable land for forestry purposes;
Legitimize secondary forests, thereby increasing forest cover with no additional budget impacts; and, lastly,
End both the large-scale plowing of steppes and meadows and clearcutting secondary forest, moves that assume a moratorium by 2025 on tilling such lands.

It’s worth adding that it used to be thought that planting slopes of natural steppe with non-native acacia was also considered land conservation, given that these areas are sloped and thus farmers consider them degraded (regardless of soil quality). Many valuable steppe grasslands were transferred to forest managers and destroyed according to this principle. Not only was the steppe destroyed, but no forest grew because, in recent years, a more arid climate has not facilitated the growth of new forests. At the same time, truly degraded agricultural lands were not restored in any way, despite significant need. Bill №5650 provides that only degraded cropland be subject to conservation instead of the past practice of including all slopes, including those covered by natural steppe vegetation.

What was Law №5650 in reality?

When the bill became law, the Ministry of Natural Resources announced that the law would protect forests, steppes, and meadows. The final version of the law, however, was not all that was expected. The language in the bill’s first reading was significantly better, even while it was still far from ideal. The large agribusiness and developer lobby got involved before the bill’s second reading, and during negotiations, Ministry representatives specifically supported agribusiness and not environmentalists that were criticizing changes benefiting the farm lobby.

Let’s take a detailed look at the law.

Part 1. Forest

Prior to land reform a significant number of secondary forests were owned by the state. State-owned secondary forests were relatively simple to “legitimize” and transfer to forestry enterprises. Environmentalists called for transferring secondary forests on farmland to state forest management during the land reform process. Their calls were in vain. Today, secondary forests are predominantly found in communal or private ownership.

The law offers two ways to protect forests. The first approach is to allow citizens, businesses, or local governments to assign them legal status in order to then carry out forestry operations. This is economically beneficial: the owner of the site has an attractive alternative to uprooting secondary forest and “restoring” arable land, instead protecting it and generating income through timber sales.

In practice, that didn’t work out so well. In its final version, Law №5650 permits legitimizing secondary forests (the law describes them as “self-afforested areas”), or, in other words, officially changing the zoning from “agricultural” to “forestry” in a relatively simple process. Owners of privately-held secondary forest and local governments managing communal lands are both permitted to do this.

Logically at this point, the private owner of the newly-established self-afforested area or a business association would then carry out forestry activities there. But no one has changed forest management rules, and they are applied equally to state-owned forestry enterprises managing 20,000 hectares and one-hectare private or communal forests.

In order to earn income, the owner of a small forest must submit to a forest inventory process, obtain logging tickets, pay land and harvest taxes, prepare piles of paperwork, upload harvest data into the national registry, etc. This is absurd and unprofitable for small forest owners.

Moreover, the law does not require anyone to legalize their self-afforested areas. It’s a right but not an obligation. If the owner so desires, they can still legally clear and till the land. Given the unprofitability of small-scale forestry under these conditions, you can guess what owners or managers will choose to do.

If the state truly intends to protect secondary forest through business and local government, then the passage of №5650 must be followed by developing reasonable rules for forestry management of small forests. Otherwise, the law will go nowhere. No one will recategorize secondary forests when faced with the prospect of continuous potential losses.

The second approach for Law №5650 is to create financial incentives for the conservation of secondary forests, including selling them into state ownership. Unfortunately, there is nothing good to say about such sales of secondary forests. The government never has money for nature protection, so it is doubtful that even 10 hectares might be redeemed in this way. Just two years ago, the federal government transferred all state-owned agricultural land to communities (and almost all of them immediately registered their plots as arable land, hoping for the greatest profit at auction). The law does not specifically address any other financial incentives, and any such stimuli have yet to be developed in detail by the Cabinet.

As an aside, Law №5650 obliges the authorities to inventory secondary forests: identify them, their location, and size and number. But this does not, however, mean that the government will actually conduct such an inventory.

In summary then, Law №5650 alone is unlikely to save even a hectare of secondary forest, yet it remains a step toward their preservation. Real protection requires further work, mostly by the Ministry of Natural Resources.

Part 2. Steppes, meadows and arable lands

Ukraine’s legendarily-fertile chernozem soil is already almost depleted due to overuse by farmers. Ukraine is the most plowed country in Europe, and a third of Ukraine’s endangered species live in steppe habitats. Today, in place of chernozem, the country has heaps of degraded arable land. Will Law №5650 enable the restoration of tangible areas of degraded agricultural land? Unlikely. In its final version, however, the law introduces a few changes related to land restoration.

In this case, “restoration” is defined as fallowing depleted land or some other method of restoring soil fertility. Degraded lands and lands used in violation of the law are subject to restoration, for example, slopes steeper than 7˚ that have been tilled.

This is good in concept, but restoration only occurs at the initiative of the land owner or manager! If a community depends on working long-degraded croplands for survival, it is acceptable to continue depleting them. Restoration is not mandatory.

In addition to secondary forests, steppes and natural meadows are most often listed as “arable land” or “unforested areas” in land cadasters. As a result, they are either tilled or given over to forest plantations.

Some steppes and meadows were more fortunate, officially described as “hayfields” or “pastures.” But nothing prevents tilling from occurring if the documented status changes from “haymaking” to “arable land”, or even just plowing in spite of its status.

It is noteworthy that the new Law for the first time introduces a legal definition of “steppe land”. Uniquely for Ukraine, this is the steppe’s first appearance in the legal landscape. The law also prohibits planting forest in steppes as well as converting “pastures”, “hayfields”, or “fallows” to forest if the land is communal or state agricultural land leased after Law №5650 comes into force.

It is an open question about which of these provisions will be useful. A legal definition of “steppe” does not directly influence the fate of steppe lands. By now, most have been distributed as arable land.

A ban on planting forest in steppe lands will have an impact, but only if activists demand that forestry enterprises first recognize steppe lands as steppe in each specific case. Since land cadasters do not change automatically, steppe remains “not steppe” in the registries. How can it be proven that a forestry enterprise planted forest on steppe lands if there is no record that it was steppe?

The ban on changing “hayfield” or “pasture” categories may save some steppe lands, but not a significant quantity.

Law №5650 makes many other detailed changes to specific regulatory acts. Some are beneficial, some are half-hearted, and some simply will not work. There is, for example, a useful ban on creating forests comprising invasive (alien) tree species. That said, that regulation will only function when the Ministry of Natural Resources finally approves a proposed list of invasive species already found in Ukraine, a move that is being actively opposed by forestry enterprises that are extensively planting introduced American tree species (Red oak and Robinia locusts) across the entire steppe zone. Moreover, in Western European nations these species are banned for use in forestry as especially dangerous species. Officials have not been able to get the list approved over the last five years, even after the list was developed using government funding by Ukrainian National Academy of Sciences scholars.

In another change, local governments will be held responsible for unauthorized logging in forests not designated for logging. Previously, no one was held responsible for this type of logging. This is, of course, a positive change.

Following the first reading, a number of proposals beneficial to nature disappeared from Bill №5650. For example, the final language no longer includes a moratorium on the plowing of pastures and hayfields or the transfer to private ownership or lease of agricultural reserve land (other than arable land) through 2025. Such regulations could protect certain steppes and meadows from cultivation. A requirement for coordinating planned afforestation activity with the Cabinet of Ministers was also tossed out, and the same fate befell a regulation to protect forests during land transfers for the construction of power transmission lines. Lawmakers also eliminated a regulation limiting peat extraction in natural ecosystems.

As a result, despite the bill’s passage overall – indeed a big step forward – the final version lost a large number of potentially useful regulations and innovations.

Overall, Law №5650 has some positives, but they are quite limited. Aside from the section on secondary forests, the law is akin to using wooden posts to prop up a decrepit old house. Each issue the law touches upon is a huge challenge for the entire country. There are no easy solutions here, and wooden posts will not get the job done. We have to make plans, involve specialists, work at length, negotiate, and, finally, develop comprehensive, high-quality solutions. After that, it is critical to build public support and ensure that not a single major agribusiness or other corporate lobbyist gets involved at the last moment with “anti-corrections.”

How are secondary forests doing in Russia?

Russia has 50 million hectares of “agricultural forests” at stake

In June 2022, having heeded the agribusiness lobby’s calls for prioritizing expanding crop planting during the war, the government of the Russian Federation issued a decree that actually prohibits the cultivation of new forests on abandoned agricultural lands and introduces a tough, virtually impossible procedure for land owners and users with existing secondary forests to obtain forestry permits, along with a completely unreasonable reporting system. This is the latest chapter in the long-standing debate about the fate of secondary forests on agricultural lands. Earlier, UWEC published an overview of how different states’ approaches to maintaining a balance between food security and the conservation and restoration of natural areas are changing in wartime.

Many lands cultivated in the Soviet era’s planned economy turned out to be completely unprofitable in new market conditions and huge areas were abandoned, especially in Russia’s northern regions. In 2019 Greenpeace estimated that there are roughly 76 million hectares of abandoned agricultural land suitable for forestry in Russia, including 30 million hectares covered in mature secondary forest and about 20 million hectares of thickly wooded immature forest stands. For comparison, this is larger than the entire area of agricultural land in Ukraine (43 million hectares). If those 50 million hectares were under competent forest management, this area could yield 300 million m³ of harvested wood per year in the medium term and support up to 100,000 permanent jobs in the forestry sector alone. Allowing rural forestry would legitimize the restoration of natural forest complexes in locations where they existed prior to the senseless socialist tilling. Encouraging natural secondary forest growth instead of artificial forest plantations is the most effective form of climate forest projects for Russia. In general, it is an obvious positive step, as well as any changes that legitimize rural forestry.

But Russian land legislation and the mindset of agricultural officials have preserved even more immutably all these same prejudices from socialist times, also described above in the context of Ukrainian legislation. In their way of thinking, a field overgrown with forest is mismanaged and a violation of the “normal” order of things and thus something to be uprooted and land to be tilled. But in a country where the rural population is declining due to petty prohibitions on the efficient conduct of diverse economic activity on their land, this approach is a dead end, a fact that has become obvious to many managers. As a result of this observation, positive changes took place in the Russian regulatory framework in 2018-20.

Federal Law №538-FZ of 27 December 2018 added a new Article 123 “Forests located on agricultural land” to the federal Forest Code, legitimizing land for rural forestry as such. Russian federal decree №1509 followed, adopted in 2020. That decree established that it is sufficient to notify authorized agencies that you are engaging in rural forestry by growing, preserving, and using your forest. A minimal regulatory and administrative burden was envisaged for land owners and users using their land for forestry as was the possibility of both managing existing forests and growing new ones at the discretion of individual land owners.

Destruction of rural forestry

Although the situation had improved by 2020, large-scale rural forestry still required new legal acts and administrative procedures, as public activists informed Russia’s president at a meeting of the Council for the Development of Civil Society and Human Rights, held 9 December 2021. It seemed that the president understood.

In January 2022, President Putin tasked the federal government with “analyzing conditions for carrying out activities for growing forests on agricultural land not used for their intended purpose, ensuring that records are kept of the results of such activities and creating the necessary conditions for their implementation, including for the implementation of climate projects, and, if necessary, submitting proposals for making appropriate changes to the legislation of the Russian Federation.” In fact, he supported the proposals of the Russian branch of the international Council of Greenpeace on ways to make good use of widespread secondary forest growth on agricultural lands for the benefit of the population and the planet.

As the Russian saying goes, “we tried our best, you know the rest.” Under pressure from agricultural holding companies and government agribusiness officials, the Government of the Russian Federation issued a new Decree (№1043, 8 June 2022) that introduces administrative and regulatory restrictions rendering rural forestry almost impossible. It is no longer possible to cultivate new forests on abandoned agricultural lands, and virtually impossible procedures for obtaining permits and reporting on rural forestry are proposed for lands with existing secondary forests. In addition, as is also true for Ukraine’s new law, it is presumed that a farmer or a small agribusiness will be required to carry out forest management in their forests, as well as a number of extremely costly procedures that are beyond the scope of small and medium-sized businesses and completely antithetical for rural forest management.

Taken in combination, these regulatory requirements will completely halt any development of a rural forestry industry, and, accordingly, criminalize land ownership where forest has already grown on old arable land.

One reason for the change of government attitudes toward forests on agricultural lands, is, apparently, the economy’s transition to martial law. As we have already described, in April 2022 Putin ordered an accelerated return of abandoned lands formerly held by collective farms to active cultivation, while the ruling United Russia party proposes to till an additional ten million hectares of land within next four years. The authorities now view increased food production as a guarantee of both domestic political stability and a source of export revenue in the long term. We believe that after receiving guarantees from the UN at July 2022 talks in Turkey to facilitate increased Russian grain exports, Russia’s desire to transfer all “empty” agricultural lands to large agricultural holdings will only intensify. Accordingly, the determination to till forested lands and seize such lands from small owners unable to so themselves this will also increase. The prospects for expansion of arable lands are very vague, but the harm from the decisions made is already quite tangible.

According to Greenpeace’s assessment, there will be at least five negative consequences upon adoption of these amendments:

The number and size of fires and the frequency with which they damage settlements and infrastructure will increase given that fines and other punishments will be issued for failure to use agricultural lands. One of the defining features of “negligent use” is the existence of forest on agricultural land absent an established right to use the land for forestry. This will force land owners to destroy young forests, and that the easiest way to destroy them is by lighting stubble fires.
Growing crises in the supply of firewood and the inexpensive wooden building material stem from a radical increase in regulatory and administrative burdens on forest users. This has made it impossible or economically unattractive to supply the population with these cheap products at the expense of forest fund lands, and, to date, the problem is only partly using forests on agricultural lands.
Food security will decrease as a mandatory return to agricultural trade in low-productivity and inconvenient lands cleared of forests will force the distribution of agricultural subsidies over a larger area and reduce support for the most efficient producers working on the best lands.
Abandonment of rural settlements and entire rural areas will accelerate, especially in less fertile non-chernozem parts of Russia. The absence of rural forestry development prevents implementation of forestry-related socio-economic projects to support jobs and livelihoods.
The most promising climate-focused forest projects will be infeasible, given that afforestation of previously treeless lands and awarding managed forest status to spontaneous secondary forests are the most promising options.

“The Russian branch of Greenpeace categorically opposes such a decision by the government,” explains Vilen Lupachik, Forestry Program expert at Greenpeace’s Russian branch on the organization’s website.

“Silviculture in forests on abandoned agricultural lands is an obvious and almost the only way to develop rural areas, especially outside the chernozem region in the north. It is impossible to return over 70 million hectares of currently unused agricultural land to agricultural use. The government also recognizes this challenge, given that it plans to return just 13 million hectares to circulation over the next 10 years through a newly adopted state program. But in order for silviculture to develop, it is necessary to not only stop fining land owners for the presence of forests on their land but also end forced removal of these forests. Decisions on whether to grow forest or agricultural products, and, moreover, how to grow this forest, should be made by the land owner and not bureaucrats. But the government chose the opposite path, and it’s a dead end,” Lupachik concluded.

The Russian government also recently submitted a bill to the Duma that would make it easier to seize agricultural land in the event of “negligent” use. Now the land of “careless” owners can be seized one year after obtaining usage rights instead of after three years. It will be possible to cancel the right to continuing (perpetual) use, lifetime and inheritable ownership, unreimbursed use, agricultural land leases, and even mortgaged properties. This will put farmers and small agribusinesses on the brink of failure and consequently reduce their capacity to protect forests on their own land.

Demonization of civil society as “foreign agents” also makes it unlikely that Russian authorities will be able to engage in constructive dialogue with NGOs in the near future or to overcome the impasses created by the legal dead-end described above. As a result, until such a time that top-level management changes take place, Russian rural forestry is in for hard times.

The good news is that it is completely unrealistic to uproot and destroy 50 million hectares of forest, and as a result, more and more unprofitable fields will continue to be overgrown with “illegal” forests no matter what decisions the Russian government makes.

Translation by Jennifer Castner

Images credits: recyclemag.ru, Greenpeace