4
Policies to Protect Soil and Water Quality

Chapter 2 described four major opportunities to prevent soil degradation and water pollution caused by farming practices and outlined the technologies and scientific knowledge available to take advantage of those opportunities. These four opportunities are

  1. to conserve and enhance soil quality as the first step to environmental improvement;

  2. to increase the efficiency with which nutrients, pesticides, and irrigation water are used in agricultural production;

  3. to increase the resistance of farming systems to erosion and runoff; and

  4. to make greater use of field and landscape buffer zones.

These opportunities should be the goals that policies to protect soil and water resources seek to achieve. Chapter 3 recommended that soil and water quality programs target resources at problem areas and problem farms and use a farming system, rather than a best-management practice approach, to take advantage of the technical opportunities to prevent soil degradation and water pollution. Chapter 3 also outlined the improved tools and information that producers and program managers will need to implement a farming system approach to managing soil and water resources. Federal, state, and local programs could be made much more effective if these steps were taken.

There is considerable scientific and technical information on how to prevent soil degradation and water pollution, as the chapters in Part Two of this report demonstrate. Although gaps remain to be filled in



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Soil and Water Quality: An Agenda for Agriculture 4 Policies to Protect Soil and Water Quality Chapter 2 described four major opportunities to prevent soil degradation and water pollution caused by farming practices and outlined the technologies and scientific knowledge available to take advantage of those opportunities. These four opportunities are to conserve and enhance soil quality as the first step to environmental improvement; to increase the efficiency with which nutrients, pesticides, and irrigation water are used in agricultural production; to increase the resistance of farming systems to erosion and runoff; and to make greater use of field and landscape buffer zones. These opportunities should be the goals that policies to protect soil and water resources seek to achieve. Chapter 3 recommended that soil and water quality programs target resources at problem areas and problem farms and use a farming system, rather than a best-management practice approach, to take advantage of the technical opportunities to prevent soil degradation and water pollution. Chapter 3 also outlined the improved tools and information that producers and program managers will need to implement a farming system approach to managing soil and water resources. Federal, state, and local programs could be made much more effective if these steps were taken. There is considerable scientific and technical information on how to prevent soil degradation and water pollution, as the chapters in Part Two of this report demonstrate. Although gaps remain to be filled in

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Soil and Water Quality: An Agenda for Agriculture technology and information, the more important obstacle to improving soil and water quality is the lack of incentives for producers to use the knowledge and technology that already exists. Ultimately, it is the millions of management decisions producers make each year that determine the effect of farming systems on soil and water quality. The purpose of national policy should be to create the proper incentives that induce producers to change the way they manage their farming systems. There is, however, much less known about the factors that influence producers' choices of cropping, livestock, and enterprise management practices than there is about the technologies and management methods that will protect soil and water quality. Empirical information on the costs of changing farming systems is often lacking or is anecdotal. Many factors influence the decisions that producers make—including market prices for inputs and products, the cost of new technologies, the labor and capital available to the producer, agricultural policy, environmental regulations, and the goals of the individual producer or enterprise (see Chapter 1, Figure 1-1). The agricultural sector is not made up of a homogeneous collection of uniform farms managed by producers with similar skills, resources, and goals. Instead, farming enterprises differ widely in the commodities they produce, the quality of their soils, and their topography. Ownership patterns and the labor or financial resources the producer can tap vary just as widely. Also, producers are a diverse set of people who have a variety of goals: profit maximization, minimization of management time, maintenance of a certain life-style, protection of personal independence, desire to obtain a certain social status, and observation of a particular environmental or religious ethic. This variability means there are many different reasons why producers choose to adopt or reject new farming systems (Table 4-1)—no single policy or program will influence all the producers whose behavior those policies seek to change. The inadequacy of empirical data and predictive models of producer behavior and the diversity of enterprises that make up the agricultural sector make it difficult to pinpoint the precise effect of alternative policies on the behavior of producers. General understanding of the factors that influence producers' decisions, however, can guide the development of national policies to change the way producers manage their farming systems. ENVIRONMENTAL AND AGRICULTURAL POLICY Environmental objectives have historically been closely linked with the larger goals of agricultural policy to support and stabilize the prices

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Soil and Water Quality: An Agenda for Agriculture TABLE 4-1 Constraints to Adopting New Technologies and Program Responses to Nonadoption Constraint Program Response Inability Basic information needed for a sound economic and agronomic analysis is lacking or scarce. Generate and distribute information to those who need it. Time, expense, or difficulty of obtaining site-specific information is excessive. Reduce the costs of obtaining the necessary information by increasing accessibility to the information. Complexity of a technology is inversely related to the rate and degree of adoption. Redesign or simplify the technology. Investment costs, costs of operation, or profit loss are too high. Subsidize the adoption, or design a less expensive system. Labor requirements are excessive. Redesign the practice to reduce labor requirements or subsidize the hiring of adequate labor. Unwillingness Inconsistencies or conflicts exist in the recommendations of public sources (e.g., land-grant universities, USDA agencies), private sources (e.g., agribusinesses, financial institutions), or other sources (e.g., producer-to-producer referral networks, family members). Work to develop a consistent set of recommendations. When legitimate differences between alternative recommendations exist, offer producers explanations of these differences. Available information is not applicable or relevant to the producer's farm firm. Generate and distribute relevant information on a local basis. New technologies are not compatible with existing production systems or policies. Develop flexible management methods and production practices capable of being altered to meet unique farm conditions. Producer does not understand basic agronomic or economic aspects of a new technology, or agents who promote a new technology do not understand the basic needs of a potential adopter. Determine the actual, not assumed, assistance needs and knowledge levels of potential adopters relative to those factors critical to adoption. Then, design education and assistance programs on the basis of producers' needs, not agency or business expertise. Current planning horizon—relative to the time associated with recouping initial investments, learning costs, or depreciation of the present equipment line—is too short. Redesign the system or subsidize a short-term unprofitable decision.

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Soil and Water Quality: An Agenda for Agriculture Constraint Program Response Support from local equipment or agrichemical dealers, other producers, or USDA is lacking and information and assistance networks capable of answering producers questions are inadequate. Build the capacity of local assistance networks to meet local demands. Managerial skills are inadequate. Develop skill-building opportunities for producers. A decision cannot be made without the approval of a partner, the source of financial credit, the landlord, or some other third party. Determine who can make the adoption decision and focus efforts on those persons or organizations. Also, recognize that an adoption decision is often a family decision, and therefore, persuasion or assistance efforts need to address relevant family members. Technology is inappropriate for the physical setting. Specify the physical applicability of the technology or design the technology to be more adaptable to different physical settings. Complexity of a practice, importance of the timeliness of operations, and interdependence of inputs increase the perceived or real uncertainty and risk. Risk can be addressed in two basic ways: either increase information so that probabilistic outcomes can be calculated or subsidize the producer so that he or she can take a risk.   SOURCE: Adapted from P. Nowak. 1992. Why farmers adopt production technology. Journal of Soil and Water Conservation 47:14–16. of agricultural commodities and, indirectly, support and stabilize the income of producers. Effective policies and programs to achieve long-term protection of soil and water quality, however, cannot simply be adjuncts of income and commodity policies. The problem areas and problem farms that should be the focus of soil and water quality policies may be very different than the areas and farms of producers requiring income support; and the commodities produced in problem areas or problem farms may not be the same commodities that are the target of programs to support and stabilize prices. The objectives of commodity and environmental policy are different, and the mechanisms used to achieve those objectives also will be different. It is essential that these policies not create conflicting incentives, and reform of agricultural commodity policy to reduce incentives that lead to soil degradation and water pollution is important. In the long-term, however, policies to protect soil and water quality cannot

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Soil and Water Quality: An Agenda for Agriculture ''Some folks don't know how to appreciate good news" (September 16, 1927). Credit: Courtesy of the J.N. "Ding" Darling Foundation.

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Soil and Water Quality: An Agenda for Agriculture depend on incentives tied to price and income support programs. The importance of creating soil and water quality policies that are independent of commodity and income policies is best understood by briefly reviewing the historical linkage of soil conservation and income support in agricultural policy. A Brief History Soil erosion problems in the United States were recognized by a few people early in the nation's history. Generally, however, new lands made available by westward expansion meant that producers and policymakers gave little attention to erosion. By the 1890s, exploitation of land and abandonment of farms when the land became "exhausted" was so commonplace that one of the first bulletins issued by the newly formed U.S. Department of Agriculture (USDA) urged producers to conserve the land they owned (Rasmussen, 1983). The general public was alerted to soil erosion problems during the next few decades, mainly as the result of the efforts of one man, Hugh Hammond Bennett. Bennett was a soil scientist who was appointed to head the USDA's Soil Conservation Service at its creation in 1935. Bennett led a messianic campaign to convince farmers and legislators of the dangers of soil erosion. The initial federal response, in 1930, was to allocate funds to be used for soil erosion research (Kramer and Batie, 1985). Propelled by the Great Depression, stronger legislation soon followed. When President Franklin Roosevelt took office in 1933, U.S. agricultural producers and their urban counterparts were in serious financial stress. The prices of farm products had fallen more than 50 percent since 1929. The Agricultural Adjustment Act of 1933 (PL 73-10) represented a major shift in agricultural policy toward direct government involvement in markets and farm level decision-making. The act authorized USDA to enter into voluntary agreements with producers to take land out of production for compensation (Kramer and Batie, 1985). Simultaneously, but independently, the U.S. Congress had created the Soil Erosion Service and authorized money to be spent to combat erosion. Conceivably, the two programs of farm income support and soil conservation would have developed separately. On January 6, 1936, however, the U.S. Supreme Court ruled the Agricultural Adjustment Act unconstitutional, ruling that the production control provisions of the act were coercive. Policymakers, anxious to continue the supply adjustment program despite the ruling, found a way to use soil conservation as a vehicle for income support.

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Soil and Water Quality: An Agenda for Agriculture "Don't blame factories for all the unemployment" (December 22, 1939). Credit: Courtesy of the J.N. "Ding" Darling Foundation.

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Soil and Water Quality: An Agenda for Agriculture On February 29, 1936, Congress enacted amendments to the Soil Conservation and Domestic Allotment Act (PL 74-461), which required producers to submit conservation-oriented adjustment plans and to enroll in the Agricultural Conservation Program to participate in acreage adjustment contracts (Kramer and Batie, 1985). Producers thus were paid to set aside the acreage from "soil-depleting crops" and replace them with "soil-conserving crops" such as grasses. Since soil-depleting crops were also those crops that existed in surplus, the supply adjustment goals were accomplished by this reorientation. Soil conservation legislation was a legal vehicle for pursuit of farm relief and recovery. From their inception, soil conservation programs were designed to support farm income and production as well as to reduce soil erosion. They remained popular because they lowered producers' operating costs, improved yields, and provided for compensation for idling lands from production. During the 1950s and 1960s, the emphasis of soil conservation programs was on cost-sharing and technical assistance to encourage the adoption of soil-conserving practices. By the 1970s, rising commodity prices and reduced production controls encouraged producers to bring more land into production and to intensify production on their existing croplands. Some of this new cropland was highly erodible, and the push for full production led some producers to abandon conservation practices. A 1977 report by the Comptroller General to the U.S. Congress warned that soil erosion was still a serious problem, despite 40 years of soil conservation efforts (U.S. General Accounting Office, 1977). Not until the 1985 Food Security Act (PL 99-198) was there an emergence of erosion control and water quality as independent objectives of agricultural policies. The receipt of income support was again linked to conservation practices, as in the Agricultural Adjustment Act. Income support, however, became conditional on the adoption of conservation practices on certain highly erodible lands. Soil conservation objectives took precedence over income support objectives, at least on the most highly erodible lands. For the first time, to be eligible for farm program benefits, agricultural producers were required to implement a soil conservation plan for their highly erodible croplands. A conservation plan was required for highly erodible land converted to cropland from other uses, and Congress also established the Conservation Reserve Program (CRP) to pay producers to take highly erodible land out of production. However, many critics claim that the CRP, at least as initially implemented, was intended more to control supply and stabilize land values than to take the most highly erodible lands out of production (U.S. General Accounting Office, 1993).

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Soil and Water Quality: An Agenda for Agriculture Incremental Redesigning of Agricultural Policy Because of the history of multiple, competing objectives of agricultural policies and because of a recognition that agricultural policies are a major influence on commercial producers of commodity crops, there has been increasing attention focused on redesigning agricultural policies to remove any barriers to achieving environmental goals. Recent research has pointed out that the current structures of price support and supply control programs erect barriers to the adoption of farming systems that improve soil and water quality. Where such barriers exist, they can seriously impede efforts to induce producers to change the way they manage their farming systems to protect soil and water quality. Incentives are Perverse Price support, deficiency payment, and supply control policies should be reformed to remove the barriers to voluntary adoption of improved farming systems. The structure of U.S. farm programs induces a bias toward intensive farming practices to boost yields and to expand the base acreage of the cropland that can be enrolled in the price support programs. Deficiency payments are directly proportional to a farmer's historical yield, which is used to establish the program yield, and the historical cropland, which is used to establish the base acreage for the crop. These features create incentives for producers to increase plantings and boost yields to capture higher government payments in the future. The 1985 Food Security Act (PL 99-198) and the 1990 Food, Agriculture, Conservation and Trade Act (PL 101-624) have moderated this bias by freezing program yields at 1986 levels and by applying constraints on the expansion of base acres. In a study of potential farm bill influences, however, Dobbs and colleagues (1992) found that current agricultural policies still pose barriers to the adoption of more sustainable farming systems for some farms, despite the modifications made in the 1990 Food, Agriculture, Conservation and Trade Act. For example, simulated reductions in target prices appeared to make farms that practice sustainable agriculture more profitable than farms that use conventional agricultural practices in northeastern and southeastern South Dakota. Dobbs and colleagues (1992) reported that giving producers who participate in agricultural programs more flexibility with respect to the choice of crop rotations did not consistently favor producers who practice sustainable agriculture.

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Soil and Water Quality: An Agenda for Agriculture Runge and colleagues (1990) reviewed recent farm level studies that explored the difficulties that farmers confront when they attempt to participate in government programs and pursue environmentally sound practices simultaneously. They summarized their findings as follows: These case studies suggest that farmers are currently confronted by a confusing set of signals that make it difficult to remain both profitable and environmentally responsible. In one case study in southwest Minnesota, farmers describe the current government programs as putting them in a "vise grip," resulting in cropping practices that distort the allocation of fertilizer and chemical inputs, and discourage crop rotations. While such practices, if changed, would not in themselves solve all of the environmental problems affecting agriculture, they would at least not aggravate them, as current policy appears to do. A second case study, conducted in Iowa, documents a similar set of problems, showing that under current federal farm legislation, crop rotations are discouraged in favor of continuous corn, using the highest levels of nitrogen fertilizer. A third case study, in southwestern Minnesota, an area similar to many other parts of the upper Midwest with vulnerable soils and groundwater, shows both commercial fertilizer and livestock waste must be closely accounted for if total nitrogen use is to reflect best-management practices. It also suggests that some land areas are simply more vulnerable to environmental damages than others, implying the need for more targeted environmental policies. Together, these case studies suggest that government policies and on-farm decisions are closely linked, and that better management practices will require both a different set of signals from Washington, and a renewed commitment to careful and precise farming methods that account for off-farm effects (Runge et al., 1990:v). These studies reinforce some of the findings of a National Research Council study on alternative agriculture: Federal policies, including commodity programs, trade policy, research and extension programs, food grading and cosmetic standards, pesticide regulation, water quality and supply policies, and tax policy, significantly influence farmers' choices of agricultural practices. As a whole, federal policies work against environmentally benign practices and the adoption of alternative agricultural systems, particularly those involving crop rotations, certain soil conservation practices, reductions in pesticide use, and increased use of biological and cultural means of pest control (National Research Council, 1989a:6). The lack of crop diversity either within a field or over time (in rotation) appears to be a major constraint in achieving high soil microbial activity

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Soil and Water Quality: An Agenda for Agriculture necessary for high soil quality and attendant benefits for water quality (Harwood, 1993). The barriers created by current commodity policy may also constrain the development of innovative cropping systems to improve input use efficiency or resist erosion and runoff that were outlined in Chapter 2. Thus, the disincentives in agricultural programs for rotations and crop diversity are an important barrier for improving soil and water quality. The incentives embedded in agricultural programs to increase production of certain crops are also a problem. The lion's share of government payments goes to producers of feed grains—especially corn, food grains (wheat and rice), and cotton—and indirectly to dairy products. Growers of most livestock products, fruit, vegetables, hay, and nearly all specialty crops are excluded from the direct influence of government programs. Although many vegetable and fruit crops that are not part of government programs receive high agrichemical applications, these crops occupy relatively small areas on a national level. In contrast, corn, cotton, soybeans, and wheat received an estimated 65 percent of total agrichemical applications (Fleming, 1987). Reichelderfer (1985) also concluded that program crops were more soil eroding on average than nonprogram crops. Incremental Reform The current incremental process of policy reform, such as the increased base flexibility provided by the 1990 Food, Agriculture, Conservation and Trade Act (PL 101-624) and the freeze on established yields and the gradual decline in real target prices initiated in the 1985 Food Security Act (PL 99-198) have probably helped to encourage crop rotations and discourage excessive use of nutrients, pesticides, and irrigation water. These incremental reforms have reduced the barriers to adoption of improved farming systems erected by the selectivity and structure of U.S. farm programs and have probably achieved modest improvements in soil and water quality. At the same time, the reformed policies have remained reasonably effective in meeting price support and stabilization objectives. Gradual reform along these lines will help to remove barriers to the development and implementation of improved farming systems and permit time for farmers to adjust to the new incentives. Increasing Planting Flexibility Current price support and supply control programs should be redesigned to increase the flexibility participants have to plant different crops in order to permit greater use of crop rotations, cover crops, and other changes in cropping systems.

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Soil and Water Quality: An Agenda for Agriculture increased profits, reliance on voluntary change or market-based incentives alone will not always be sufficient to achieve the improvements in soil and water quality increasingly demanded by the public. The Chesapeake Bay Program is an example that shows that voluntary change alone has not been large enough or fast enough to meet environmental goals. By the year 2000, jurisdictions participating in the Chesapeake Bay program (Maryland, Virginia, the District of Columbia, and Pennsylvania) are to reduce their nutrient loadings to the bay by 40 percent. In 1990, a panel of producers, state agency staff, environmentalists, and academics assembled by the EPA Administrator William K. Reilly reported to EPA that current efforts would not be enough to meet the 40 percent goal. The panel concluded that voluntary incentives, at least as implemented in the past, had not been effective enough and that nutrient loadings were much larger than originally estimated (Nonpoint Source Evaluation Panel, 1990). The panel recommended that greater regulatory authority was needed to address agricultural as well as other sources of nutrient loadings to the bay watershed. The panel recommended that livestock operations, particularly large or intensive operations, or operations that were planning to expand should be targeted (Nonpoint Source Evaluation Panel, 1990). Although comprehensive data on the production practices and management systems used by producers are not available, most of the data that were reported and discussed in Chapters 2 and 3 indicate that producers use a wide range of production practices and that there is wide variability in the degree to which they refine their management systems. These data suggest that a smaller set of problem farms may well be responsible for a substantial share of soil and water quality problems. If these producers fail to volunteer to participate in programs to improve their production practices and management systems, then voluntary programs may not improve soil and water quality enough to meet public demands. State and Local Legislation The inherent limitations in programs to accelerate voluntary change have led to greater exploration of nonvoluntary approaches to accelerate adoption of improved farming systems. State and local governments have increasingly turned to more nonvoluntary approaches to changing farming systems in areas where soil and water quality damages are severe. Ribaudo and Woo (1991) reviewed state water quality laws that affect agriculture and found that states were adopting a variety of approaches—including

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Soil and Water Quality: An Agenda for Agriculture input control, land use controls, and economic incentives—to address water quality problems caused by agricultural production. Because of water quality concerns, 27 states have adopted laws that could affect farm management decisions (Figure 4-2). Evaluating the Role for Regulation Regulatory approaches based on clear planning or performance standards should receive greater attention to achieve more permanent protection in areas where soil and water quality degradation is severe and for problem farms that are unacceptably slow in implementing improved farming systems. Regulatory approaches will be needed to provide more permanent protection when commodity prices are high, damage to soil and water quality is severe, and voluntary change does not result in adequate improvements. The arguments against regulatory approaches are well known and have been stated often. Mandating soil and water quality improvements can be expensive and ineffective if enforcement is inadequate or costly. Critics also claim that such regulations can potentially imperil private property rights. Furthermore, regulations might alter the relationships between the farming community and soil and water conservation agencies by turning the latter into ''police officers" and the former into "lawbreakers" if regulations are not met. Others express concern that regulations cannot be written in a manner that provides the necessary flexibility to reflect the varying soil and water resources and farming systems found throughout the United States. At the same time, there are advantages to grounding U.S. soil degradation and water pollution prevention efforts on a strong regulatory footing. Regulatory requirements can clearly state the objectives that a producer must meet and can be applied uniformly to all landowners and operators whose actions might degrade soil and water resources. If the producer meets certain standards, then compliance can be the basis for providing other benefits. Clearly defined planning or performance standards can provide the foundation on which other programs—including educational programs, programs that provide financial incentives, and cost-sharing programs—can be based. Perhaps the most important benefit offered by using a regulatory approach is the promise of permanence. If landowners or operators are required to meet soil and water quality standards, these standards will apply in all circumstances regardless of changes in market prices, ownership of the land, production systems, the structure of the farm enterprise, or the goals of the producer.

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Soil and Water Quality: An Agenda for Agriculture FIGURE 4-2 States with water quality laws that affect agriculture. Source: M. Ribaudo and D. Woo. 1991. Summary of state water quality laws affecting agriculture. Pp. 50–54 in Agricultural Resources: Cropland, Water and Conservation Situation and Outlook. Report No. AR-23. Washington, D.C.: U.S. Department of Agriculture, Economic Research Service, Research and Technology Division.

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Soil and Water Quality: An Agenda for Agriculture The recognition of the value of including a regulatory approach in U.S. soil and water quality policies is not recent, as seen by the fact that the model state conservation law, on which all state enactments were originally based, included as a major component of the legal powers of the districts the power to implement land use regulations to protect soil and water quality. Although the history of the use of that authority by districts has been limited, there is growing interest in using regulations, as reflected in the innovative approaches being developed at the district level in many states. Likewise, the importance of regulatory methods for delivering and enforcing soil conservation policies has long been recognized and debated in the scholarly discussion of soil and water quality policy. Implications of the Structure of Agriculture for Regulation The processing of many agricultural crops and most livestock is increasingly concentrated in a few firms (Barkema et al., 1991). Poultry is the most highly concentrated sector, and indications are that the hog industry is following the same processes of consolidation as the poultry industry (Barkema and Cook, 1993). It is probably not coincidental that the sectors of agriculture showing the most concentration are those that are not provided risk and income protection in federal agricultural price support and supply control programs. In many cases, these firms contract directly with producers to provide crops and livestock. These contracts can specify, often in detail, the quality of the harvest required and, in some cases, the production practices that must be used. This vertical integration of contracted producers with processors has transferred substantial influence over the management of crop and livestock enterprises to processors. The changing structure of agriculture suggests that regulation may increasingly be directed at processors and may seek to influence producers through their contracts with processors. Poultry processors, for example, could be required to specify requirements for the disposal and use of poultry manure in their contracts with poultry producers. If regulation required that whoever owned the poultry was to be responsible for appropriate manure disposal, then the liability for environmental damage would move from the individual poultry producer to the processor. Producer contracts would of necessity be altered to address the disposal problems associated with manure and dead poultry. Many individual producers could be affected by regulations directed at a handful of firms in agricultural sectors that are highly concentrated and integrated.

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Soil and Water Quality: An Agenda for Agriculture Furthermore, there would be incentives for processors to develop low-cost manure disposal alternatives. If the regulation covered the entire poultry sector, no one processor would be placed at an economic disadvantage to another. Although poultry prices might rise, depending on increased processor costs, consumers would be making choices based on prices that better represent the true social costs of poultry production. Similar regulation might be addressed toward other sectors of agriculture that evidence high rates of concentration. Clarifying Landowner Responsibilities and Rights Bromley (1990) noted that landowners have enjoyed a wide range of actual and presumptive rights that have undergirded both environmental and agricultural policies. This arrangement automatically places the burden of proof—and of possible compensation—on the state when there is the need to (1) improve the environmental impacts of agriculture, (2) constrain agricultural output in the face of expensive surpluses, or (3) modulate swings in agricultural incomes. However, these arrangements of rights and responsibilities that have served well for many years are undergoing reevaluation. The legal responsibilities of landowners and land users to manage their lands in ways that do not degrade soil and water quality should be clarified in state and federal laws. Many landowners and land users manage their lands in ways that protect soil and water quality. Many others express their desire to improve their management to protect the environment. Clarifying society's expectations should encourage others to improve their management and help further public policies regarding the protection of soil and water resources. The absence of a clear statement of the legal responsibilities as well as the rights of landowners and land users for managing their lands in ways that do not degrade soil and water quality has impeded efforts to protect soil and water quality. Basing publicly funded soil and water quality protection efforts on an articulated policy that establishes the legal responsibilities and rights of landowners and land users to protect soil and water quality offers the opportunity to provide a consistent and uniform basis for implementing soil and water quality protection efforts in a permanent manner. Some argue that soil is simply a component of the land and thus is private property, meaning that efforts to limit the use and misuse of soil are constrained by constitutional limitations on exercise of the police

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Soil and Water Quality: An Agenda for Agriculture power. Water quality, however, is more clearly a common good, the use and utility of which is subject to legitimate public policy concerns. Although landowners may own the soil on their farms, it is less arguable that they own the water that flows across it or under it, especially if ownership leads to degradation of its value for use by other individuals or the public. Soil also has some common-good characteristics since, as discussed in Chapter 2, soil quality is directly and indirectly linked to water quality and protecting soil quality is a fundamental step toward protecting water quality. The broadening of agricultural environmental issues from soil conservation to protecting soil and water quality brings with it a stronger public basis for codifying the responsibilities of landowners to protect soil and water quality. The duty of landowners to protect soil and water quality, as reflected in the ideal that the landowner is ultimately responsible for preserving the sustainability of the land, is a powerful ideal that is reflected in many of the traditional approaches to soil and water conservation found in U.S. policy. In 1938, for example, Secretary of Agriculture Henry A. Wallace stated: "The social lesson of soil waste is that no man has the right to destroy soil even if he does own it in fee simple. The soil requires a duty of man which we have been slow to recognize" (Wallace, 1938: iii). And in 1943, the Iowa Supreme Court upheld a law requiring advance notice for terminating farm tenancies. The court stated: It is quite apparent that during recent years the old concept of duties and responsibilities of the owners and operators of farm land has undergone a change. Such persons, by controlling the food source of the nation, bear a certain responsibility to the general public. They possess a vital part of the national wealth, and legislation designed to stop waste and exploitation in the interest of the general public is within the sphere of the state's police power [8 N.W.2d 481 (Iowa 1943)]. This ideal of stewardship has been promoted in many ways, such as through education, financial incentives, ethical imperatives, and in some instances, legal mandates. Iowa, for example, enacted soil conservation legislation that states, in part: To conserve the fertility, general usefulness, and value of the soil and soil resources of this state, and to prevent the injurious effects of soil erosion, it is hereby made the duty of the owners of real property in this state to establish and maintain soil and water conservation practices, as required by the regulations of the commissioners of the respective soil conservation districts (Iowa Code, 1991:Section 467A.43).

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Soil and Water Quality: An Agenda for Agriculture The Iowa Supreme Court upheld the law's constitutionality, when it was challenged by a farmer required to implement soil conservation practices, noting: "[T]he state has a vital interest in protecting its soil as the greatest of its natural resources, and it is right to do so" [279 N.W.2d 276 (Iowa 1979)]. Several other states have enacted legislation that implicitly acknowledges the responsibilities of landowners and land users to protect soil and water quality (Figure 4-2). This combination of incentives to encourage landowners to meet their stewardship responsibilities has resulted in significant progress, for example, as reflected through the work of the local soil and water conservation districts. However, the existence or acceptance of a duty to protect soil and water quality is not consistent among all landowners or in all soil and water conservation programs. Advantages of Defining Rights and Responsibilities The national commitment to protect soil and water quality could be stated simply and directly in a manner that applies uniformly to all landowners and operators, regardless of their participation in federal farm programs. The concept of a duty to prevent soil and water quality degradation could be used as the basis for delivering and implementing other soil and water quality policies. These policies could include acceleration of voluntary adoption of improved farming systems, use of market-based incentives, reform of agricultural policies, implementation of nonvoluntary programs, and the administration of long-term easements. The lack of a consistent definition of the legal responsibilities landowners have to protect soil and water quality as the foundation for soil and water quality programs has impeded the ability to build long-term comprehensive efforts in which publicly funded soil and water quality gains are made permanent. Basing soil and water quality protection efforts on an articulated policy that establishes landowners' responsibilities to manage their lands in ways that protect soil and water quality offers the United States the opportunity to provide a consistent and uniform basis for implementing soil and water quality protection efforts in a permanent manner. The important value of establishing the responsibilities as well as right of landowners would be in the practical and psychological shift in the orientation of federal soil and water quality efforts. In codifying a landowner duty to protect soil and water quality, the burden of primary responsibility for protecting soil and water quality would shift from the government to the individual landowner. Rather than use programs that

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Soil and Water Quality: An Agenda for Agriculture are based on inventing ways to educate, encourage, or coerce producers into protecting soil and water quality, the reorientation would establish that landowners and operators have a duty to protect soil and water quality from degradation. Rather than it being the government's responsibility to induce landowners to improve farming systems, it will be the duty of landowners to protect soil and water quality, with the government playing only a supporting role. Implementation This clarification of landowners' and operators' responsibilities to protect soil and water quality could be moved forward in many ways: through education and voluntary compliance (essentially the history of the first 50 years of U.S. soil conservation programs); by integration of duties into existing federal farm programs as a condition for eligibility, as is now being done through Conservation Compliance, Sodbuster, and Swampbuster; by contractual agreement, as is the case with the CRP and the proposed use of long-term easements; as an imposed legal duty under state law, as is the case under the Iowa soil erosion control law, which makes it the duty of each landowner to protect his or her land from erosion by complying with the applicable county soil loss limits; as a function of private legal relationships, imposed either by the parties, such as through inclusion of such standards in the terms of a farm lease, or through the judicial imposition of stewardship under such common law concepts as the "covenant of good husbandry," which courts in many states attach to all farm lease relations; and/or a program to certify producers as stewards, analogous to the current programs requiring certification prior to using certain pesticides. Articulation of landowners' responsibilities as well as rights to use their lands in ways that degrade soil or pollute water will allow producers who are committed to protecting soil and water quality to reaffirm their commitment to doing so and will offer a basis for public programs to change farming practices that are causing soil and water quality problems.

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Soil and Water Quality: An Agenda for Agriculture PART TWO

OCR for page 145
Soil and Water Quality: An Agenda for Agriculture This page in the original is blank.