Summary of Environmental Law in the United States

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19 Agriculture

 

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19.1 Institutions with Authority Over Agriculture

 

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United States Department of Agriculture (USDA)

The USDA is the primary federal agency regulating agriculture. The USDA administers most of the income support and conservation programs established for agricultural interests. Most of the soil and water conservation efforts are administered by the Natural Resources Conservation Service (NRCS), 7 C.F.R. pts. 600-699, and the Agriculture Stabilization and Conservation Service (ASCS), 7 C.F.R. pts. 700-799, and the income support efforts by the Commodity Credit Corporation (CCC), 7 C.F.R. pts. 1400-1499.

Since 1972, EPA has been responsible for regulating pesticides through the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). See Section 11: Chemical Substances and Products. EPA also administers the Clean Water Act's (CWA) provisions relating to agricultural non-point discharge. See Section 9.3: Non-Point Sources.

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19.2 Soil Conservation

 

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Several federal statutes encourage soil conservation. The Soil and Water Resources Conservation Act of 1977, 16 U.S.C. secs. 2001-2009, requires the USDA: to appraise the soil, water, and other resources of farmland; to develop a conservation and protection plan; and, to evaluate annual performance toward achieving the conservation objectives of the Act. The Soil Conservation and Domestic Allotment Act of 1936, Pub. L. 74-461, 49 Stat. 11438, 16 U.S.C. secs. 590a-590q-3, pays farmers to switch from soil-depleting to soil-conserving crops. Under these statutes and the 1985, 1990, and 1996 farm laws, the United States has established a number of soil and water conservation programs, including: the Environmental Conservation Acreage Reserve Program (ECARP), which includes the Conservation Reserve Program (CRP), the Wetlands Reserve Program (WRP) and the Environmental Quality Incentive Program (EQIP); the Conservation Compliance Program; the Sodbuster and Swampbuster Programs; the Environmental Easement Program; and the Resource Conservation and Development Program.

Environmental Conservation Acreage Reserve Program (ECARP)

Established by the Federal Agriculture Improvement Act of 1996 (also referred to as the 1996 Farm Law), Pub. L. No. 104-127, 110 Stat. 888, ECARP was created to serve as the umbrella program encompassing the CRP, WRP, and EQIP, and has been authorized through FY 2002. The Secretary of Agriculture is authorized to designate conservation priority areas that will then be eligible for assistance under the CRP, WRP, and EQIP.

Conservation Reserve Program (CRP)

The CRP, 16 U.S.C. secs. 3831- 3836; 7 C.F.R. pts. 704, 1410, reauthorized by the 1996 Farm Law through to FY 2002, promotes soil conservation by taking highly erodible croplands out of agricultural production. Farmers can voluntarily enroll in ten year reserve contracts, whereby they receive financial support to convert eligible lands to less intensive uses (such as pasture, permanent grass, legumes, shrubs, or trees). 16 U.S.C. sec. 3832(a)(1).

Wetlands Reserve Program (WRP)

The WRP, 16 U.S.C. sec. 3837, was created as part of the Food Security Act of 1985 (1985 Farm Law) and was recently extended by the 1996 Farm Law to FY 2002. It allows USDA to purchase conservation easements "to assist owners of eligible lands in restoring and protecting wetlands." Eligible lands include farmed wetlands, wetlands converted prior to 1985, and adjacent lands which are functionally dependent on wetlands. See also Section 9.7: Protection of Fresh Water Ecosystems.

Environmental Quality Incentives Program (EQIP)

Established by the 1996 Farm Law, EQIP was created to assist crop and livestock producers manage environmental and conservation improvements on the farm. EQIP will be phased in over a period of six months, at the end of which the authority of the Agricultural Conservation Program, Colorado River Basin Salinity Control Program , Water Quality Incentives Program, and the Great Plains Conservation Program, will be terminated. The purpose of EQIP is to maximize environmental benefits per dollar expended. EQIP authorizes the Secretary of Agriculture to enter into five to ten year contracts with operators in order to provide technical and educational assistance, as well as cost share and incentive payments, to operators who submit plans containing appropriate conservation measures.

Conservation Farm Option (CFO)

CFO establishes a conservation farm option pilot program for producers of wheat, feed grains, cotton, and rice. Owners or operators of farms with production flexibility contracts, are eligible to receive one consolidated USDA program payment based upon a ten-year contract with the Secretary, so long as the producer implements a plan that addresses the conservation of soil, water, and related resources, water quality, wetlands, and wildlife habitat.

Conservation Compliance Program

The Conservation Compliance Program, 16 U.S.C. secs. 3811-3813, was enacted as part of the 1985 Farm Bill and applies to crop lands classified as highly erodible lands; it requires affected farmers to implement a conservation plan in order to receive farm program benefits. The NRCS periodically and randomly spot checks farms to determine whether they are in compliance with their approved conservation plans. 16 U.S.C. sec. 3812; 7 C.F.R. pt. 12.

Sodbuster and Swampbuster

The Swampbuster provisions of the 1985 Farm Law, 16 U.S.C. secs. 3821-3824, deny federal benefits to farmers who convert a wetland or grow crops on a converted wetland. Also part of the 1985 Farm Law, the Sodbuster provisions apply to highly erodible lands not used to produce annual crops from 1981 to 1985. The Sodbuster provisions make farmers who bring idle, highly erodible land into production ineligible for most federal price support programs.

Environmental Easement Program (EEP)

The EEP, 16 U.S.C. secs. 3839-3839d, was created by the 1990 Farm Law to remove environmentally critical lands from production. Eligible lands include: highly erodible lands, riparian corridors, CRP and water bank lands likely to return to production, critical habitat for endangered species, and other environmentally sensitive areas. The participant must record an easement on the deed that restricts use of the land to "wildlife activities," such as hunting and fishing. Participants receive a payment equal to the difference in value of the land with and without the easement.

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19.3 Discharge of Agricultural Pollutants

 

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See Section 9.3: Non-Point Sources

The primary federal programs to reduce the discharge of agricultural pollutants are under the Clean Water Act. See Section 9.3. Other programs include: the Agricultural Water Quality Initiatives Program; the Integrated Farm Management Option; the Low-Input, Sustainable Agriculture Program; the Sustainable Agriculture Research and Education Program; and, various commodity program incentives to encourage environmentally sound farming. Many of the soil conservation measures described in Section 19.2, such as the Conservation Reserve Program and other conservation measures of the 1985 Farm Law, will prevent water pollution from agricultural runoff.

Clean Water Act

The CWA regulates point sources and non-point sources differently. 33 U.S.C. sec. 1314. Certain agriculture-related operations, including meat processing, fertilizer plants, and feedlots, are considered point sources and are thus regulated under the CWA's National Pollutant Discharge Elimination System permit requirements. 33 U.S.C. secs. 1362(14), 1316(b)(1)(A); 40 C.F.R. pts. 412, 122. Irrigation return flows are not considered point sources. 33 U.S.C. sec. 1362(14). See Section 9: Protection and Management of Water Resources. Section 319 of the CWA established the Non-Point Source Management Program, which requires statewide plans for controlling non-point source pollution from.urban and agricultural uses. 33 U.S.C. sec. 1329. See Section 9.3: Protection and Management of Water Resources, Non-Point Sources.

The Rural Clean Water Program, is a voluntary program designed to reduce agricultural runoff. 33 U.S.C. sec. 1288(j); 7 C.F.R. pt. 634; 40 C.F.R. pt. 35. Under the program, USDA enters into cost-sharing contracts with farmers who implement best management practices for controlling non-point pollution. The practices must be consistent with a state waste treatment management plan approved by EPA. 33 U.S.C. sec. 1288(e).

Under the Agricultural Water Quality Initiative Program, 16 U.S.C. secs. 3838-3838f, USDA can enter into contracts with farmers to develop and implement water quality protection programs.

The Integrated Farm Management Program, 7 U.S.C. sec. 5822; 7 C.F.R. pt. 1414, authorizes USDA to enter into contracts with farmers who implement crop rotation and other long-term management practices to reduce environmental impacts and retain productivity of their land.

Low-Input, Sustainable Agriculture (LISA) Program

LISA was created by the 1985 Farm Law to conduct research on farming techniques that would lessen dependence on chemical inputs and reduce contamination from agricultural chemicals.

Sustainable Agriculture Research and Education (SARE)

The SARE program, 7 U.S.C. secs. 5801-5934, was created as part of the 1990 Farm Law to encourage research of alternative agricultural techniques. It encourages research and educates farmers about agricultural systems that enhance soil and water quality, and conserve soil, water, energy, natural resources, and fish and wildlife habitat. The program goals include reduced use of pesticides, fertilizers and toxic materials, improved low-input management, and greater crop and livestock diversity. 7 U.S.C. sec. 5801(a).

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19.4 Pesticides

 

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See also Section 11: Chemical Substances and Products.

Federal regulation of pesticides is primarily the responsibility of The Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide and Rodenticide Act of 1947 (FIFRA), as amended by the Federal Environmental Pesticide Control Act of 1972, codified as amended at 7 U.S.C. secs. 136-136y. See Section 11. In addition, the LISA Program encourages research on farming techniques that would lessen dependence on chemical inputs and reduce contamination from agricultural chemicals.

The USDA also administers several programs aimed at dealing with exotic or foreign species of plants, bacteria, and other pests that could harm domestic agriculture. See Plant Quarantine Act , 7 U.S.C. secs. 151-164, 166-67; Virus-Serum Toxin Act, 21 U.S.C. secs. 151-158.

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19.5 Agricultural Lands Protection

 

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Both states and the federal government have enacted legislation to prevent the conversion of farmland for urban development, although the most significant legislation in this area is at the state and local level.

Federal Protection

The Farmland Protection Policy Act of 1981, 7 U.S.C. secs. 4201-4209; 7 C.F.R. pt. 658, requires the USDA to develop criteria for other federal agencies to determine whether their programs would increase conversion of, or otherwise harm, agricultural lands. No private person can challenge a federal project on the basis of this Act. The Farm Future Act of 1990, Pub. L. No. 101-624, secs. 1465-1470, 104 Stat. 3616, provides for federally guaranteed loans and interest rate assistance for private loans to state-operated land preservation funds. Only Vermont has an approved trust fund.

The Farm Security and Rural Investment Act of 2002, also known as the Farm Bill 2002 (P.L. 101-171), makes numerous changes to the conservation effort. It enacts the Conservation Security Program, which will provide payments to producers who apply conservation practices on working lands. Other new programs will retire grasslands, address surface and ground water conservation needs, address conservation issues in certain regions, and replace existing programs with a new assistance program. It greatly expands many conservation programs. Funding will grow for; the Environmental Quality Incentives Program, the Farmland Protection Program, and the Wildlife Habitat Incentive Program.

State Protection

Many states protect agricultural lands through agricultural districting. Certain benefits, such as limits on regulations, protection from nuisance suits, and differential tax assessments, are provided to farmers within the district. All states but South Dakota have "right-to-farm" laws, which codify the common law doctrine of "coming to the nuisance" and protect farms from nuisance suits caused by the encroachment of urban development into farming areas.

Local Zoning

Zoning ordinances and other land use laws are often used to protect agricultural lands. Typical ordinances include: exemptions from zoning ("freedom to farm" laws), exclusive agricultural zoning (prohibiting non-agricultural use of land within a given district), and non-exclusive agricultural zoning. Non-exclusive agricultural zoning includes: large-lot zoning (setting large minimum lot sizes), area-based allocation zoning (the number of non-farm dwellings that can be developed is determined by an acreage-based allocation and the minimum size of each non-farm dwelling is restricted), and conditional use zoning (requiring a special use permit to subdivide agricultural land). Some states provide property tax relief to farmers, allow for conservation easements (where a land owner gives up the right to develop the property, but retains the right to use the land for agriculture), and transferable development rights (where development rights are transferred between preservation and development districts).

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2003