Conservation Plans in Agriculture

John H. Davidson

The author is a professor at the University of South Dakota, School of Law.

Through the post-World War II era the U.S. Congress, by an incremental process of experimentation and error, developed the knowledge and experience that led to the imposition of individual permits based on uniform technology-based effluent limitations to regulate industrial water pollution. The resulting permit system has gradually reduced the amount of industrial pollution that enters our national waterways. While this encouraging process proceeds, however, unpermitted and unregulated runoff from farm, ranch, forest, and recreational lands—the now familiar nonpoint sources—remains an unsolved problem.¹

Just as the uniform technology-based standards once emerged gradually as a tool for controlling industrial point sources, a device known generally as the "conservation plan" may be emerging as the possible instrument of choice for controlling nonpoint source runoff. If this is so, the concept requires close examination prior to general acceptance, in order that our waterways do not endure yet another generation of failed efforts at nonpoint runoff control. This brief Article attempts an introduction, and a first brush at the issues. It urges that leaders of the agricultural, forestry, environmental, and conservation communities examine carefully the "conservation plan" concept prior to accepting it as the control tool of choice.

The idea of conservation plans grew from the soil conservation movement in the United States, as led originally by Hugh H. Bennett. From the environmental disaster known as the Dust Bowl emerged a federal and state soil conservation establishment that is represented by the U.S. Department of Agriculture's (USDA's) Soil Conservation Service (SCS) (today less agreeably known as the Natural Resources Conservation Service, or NRCS), and thousands of local conservation districts. The inceptive period of the SCS was energetic, creative and possessed of a sense of mission, and the science, technology and methods that it developed for dealing with soil erosion problems remain as fundamental elements of contemporary American agriculture.²

The soil erosion control efforts of the 1930s included scientifically supported measurement methods and the initiation of a system for surveying erosion and related environmental problems. A fundamental yet little-appreciated achievement was the county-by-county national survey of soils and soil capabilities.

On the basis of its early scientific and field research, the SCS developed a useful catalog of erosion control techniques. Many of these, such as terracing, contour plowing, crop rotation, grass waterways, pasture maintenance, stubble mulch, and field windbreaks, are thoroughly familiar and under-appreciated for their tangible contributions to sustainable agriculture and soil conservation. Such techniques, along with many additions that have been developed since, proved to be practical and economically efficient. The more difficult challenge was, and remains, to develop politically and socially acceptable methods of applying these corrective measures on those lands where they can deliver the maximum advantage.

The institutional structure created by SCS remains in place. In the 1930s, SCS developed a proposed model state law intended to enable the creation of local "soil conservation districts" as state government subdivisions. Most states adopted the model law, but in modified forms. The modifications were significant, however, and remain instructive. The model law proposed that conservation districts should be organized along watershed lines and that they should possess the power to regulate land use. Both of these elements were eliminated by the majority of state legislatures, and today conservation districts are organized along county political lines and rarely possess land use control authority. Although the districts were intended to be the means for implementing the soil conservation program, the program itself, including the important cost-sharing payments, was federal. This arrangement remains in place, although its early vigor has diminished severely.³

Insofar as much of nonpoint pollution is today a result of agricultural production practices, the current situation bears a strong resemblance to the prevailing conditions of the 1930s and 1940s. The problem, then as now, could be traced to the practices of private landowners that were largely responsible for creating soil erosion and resulting water pollution. Then, as now, there existed practical reasons to believe that a centralregulatory response was not the better social or political approach. Each operating land unit has its own natural characteristics. The great number of owners and operators represent many cultures, customs, production methods, crops, soils, terrain, and social practices. Land tenure also varies, from cash rent, share crops, and mortgaged private ownership, to vast estates held by trusts or business corporations. Lenders and creditors cast a long shadow. There is a strong political and cultural preference for the smaller, more numerous and less prosperous farms, often referred to as [31 ELR 10502] "family farms," and it was thought that, as price-takers in the marketplace, they were unable to pass along costs imposed by direct regulation.

The system that developed in response to the soil erosion problem was imperfect. It did gain acceptance, however, and led to changes in cultural practices and improvements in land management. The system as it exists enjoys the advantage of familiarity and may be re-emerging as relevant to the goals of the Clean Water Act (CWA). The linchpin of that system is the "conservation plan."

Emergence of the Whole Farm Conservation Plan

The on-the-farm method developed by the SCS in the 1930s came to be known as the "whole farm conservation plan" and was central to the program. As described by Held and Clawson:

During the Thirties, also, the idea of the whole farm conservation plan was developed and became deeply embedded in the thinking and operations of Bennett and other SCS leaders. They became convinced that separate and unrelated soil management practices on a farm could not add up to a real program of soil conservation; in fact, that unrelated practices could sometimes do more harm than good. They were convinced that the way a farmer used one piece of land depended in part upon the other land in his farm—how it could be used, and how its use affected the tract in question. They felt that a conservation plan for a farm should grow out of, and be based upon, a classification of land-use capability for that farm.⁴

An effectively executed whole farm conservation plan has great potential. It usually begins with a detailed land capability classification that identifies the limitations and potential of the land. It develops management programs for the different fields and soils. Special conservation measures are recommended, and often take the form of valuable detailed engineering layouts. The plan also considers the limitations of the farm as an economic unit, which includes the practical ability of the farm to implement the plan. This necessarily requires consideration of capital and credit, and implementation is scheduled to reflect the financial capacity of the individual farm involved. The process was facilitated during the early days by federal farm programs that offered the farm planner substantial subsidies (known as in the field cost-sharing) for the conservation improvements required by the farm plan. Implementation also benefited from capital and operating loans to economically marginal farms from the federal Farmers Home Administration (now known as the Farm Service Agency).⁵

Today the whole farm conservation plan is viewed more as an ideal than a practical reality. There is an inherent tension between a farmerwho accedes to a plan in order to qualify for cost-sharing, and the Agency which (in theory, at least) remains committed to the concept that the parts of each plan are completely interdependent. Plan preparation also takes a great deal of time and expertise, requiring adequately staffed county offices, technical support, and confident leadership by the Agency and the conservation districts.

Conservation Plans in the 1985 Farm Bill

The 1985 Farm Security Act established that any person growing agricultural commodities on fields with highly erodible soils is ineligible to receive various federal price support payments or loans during the crop year. A farmer or rancher who actively applies a conservation plan to highly erodible fields is not, however, affected by the ineligibility. This "sodbuster" provision requires a conservation plan, but does not provide a definition.⁶

The legislation sheds little light, if any, on the nature of the required conservation plan. A plan is described only as that which "documents the decision of the person with respect to location, land use, tillage systems, and conservation treatment measures and schedules and that is based on the local SCS technical guide and approved by the local soil conservation district. . . ."⁷ The legislative history does not address the question of the standards required in the plan.

As interpreted by the SCS, the legislative description of the required plan is incorporated into the regulations without elaboration.⁸ As implemented on the ground by the Agency, however, it is narrowly defined to apply only to a "field" that has a predominance of highly erodible land. Thus, the choice of whether to cultivate a particular field and which crop to grow there is left entirely to the farmer or landowner. Having made that choice, the farmer must have a conservation plan in order to gain access to government support programs, but the plan applies only to the particular field. Although this allows for the encouragement of occasionally useful remedial steps, it limits the conservation planning options considerably.

By narrowly limiting and reducing the scope of the required conservation plan, many of the more important conservation questions are avoided. For example, should the cost and difficulties be taken into account before previously unfarmed land is brought into production? What if the same crop can be grown effectively on another part of the farm without disrupting farm economics? What about the many cases in which the land ought not to be cultivated in any situation? What if the motive for farming the field is solely to establish a farm program base? What if effective soil conservation requires conservation practices on other parts of the farm as well as on the field to be cultivated? What if the crop would not be grown but for the availability of federal price support or loan deficiency payments? What if the required conservation practices will cost more money than the landowner is willing to spend?

In legislation styled as the Federal Agriculture Improvement and Reform Act of 1996,⁹ Congress increased the "flexibility" farmers have when they break highly erodible land subject to the sodbuster program.¹⁰ Modifying language requires the Secretary of the USDA to ensure that its guidelines permit farmers to use conservation plans that are "technically and economically feasible" and "based on local resource conditions and available conservation technology."¹¹ Farmers can "self-audit" by providing their own [31 ELR 10503] binding certification of compliance¹² and the Secretary can allow farmers to include "practices that are not currently approved but that the Secretary considers to have a reasonable likelihood of success."¹³

In sum, while the 1985 Farm Bill brought about some advances, the required conservation plan is a diminished version of the plan conceived by the early proponents of conservation. Although the sodbuster provisions retreat from the whole farm conservation concept, the 1985 legislation does keep alive the idea that a reasonable approach to the controls of runoff from farm fields is an individualized land management plan, developed and monitored by an informed and technically sound expert agency.

Conservation Plans Elsewhere in Federal Law

The idea of reliance upon some kind of conservation plan is one with which Congress is obviously comfortable. In order to be accepted into the Conservation Reserve Program (CRP), for example, a landowner must contract to implement a plan developed by SCS and approved by the local conservation district.¹⁴ Similarly, in order to have land enrolled in the Wetland Reserve Program (WRP), the landowner must agree to implement a "wetland easement conservation plan."¹⁵ The environmental easement program mandates a "natural resources conservation management plan,"¹⁶ and the Environmental Quality Incentives Program (EQIP) calls for an "environmental quality incentives program plan."¹⁷ These examples are all found in the amendments to the 1985 legislation, but the conservation plan is also common elsewhere in laws governing the USDA's authority.¹⁸

Given the phenomenal growth of concentrated pork and chicken feeding operations, and the equally phenomenal potential to pollute water, the introduction of so-called comprehensive nutrient management plans¹⁹ is a noticeable extension of the conservation plan idea. The idea of using some modified version of the old whole farm conservation plan, or the more narrow sodbuster version, has emerged gradually since 1972, and now appears center-stage in discussions of whether and how concentrated animal feeding operations (CAFOs) should be regulated.²⁰

Serious consideration of some type of conservation plan as a contemporary water pollution control tool originates with the many unsuccessful efforts by states and the U.S. Environmental Protection Agency (EPA) to deal with nonpoint sources of pollution. Nonpoint sources are not required to obtain a national pollutant discharge elimination system (NPDES) (point source) permit prior to discharging pollutants into a watercourse, nor are they required to comply with industrywide effluent limitations. Instead, nonpoint sources have been addressed by several stages of federally financed "planning." The first, known as "§ 208,"²¹ received a low priority from all involved. It required each state governor to develop pollution control plans for areas designated as having "substantial water quality problems." A majority of the resulting state plans called, not for a regulatory response, but rather continued reliance on voluntary programs of the type offered by the local conservation districts and SCS offices; in other words, voluntary conservation plans supported by federal cost-sharing to the extent available.²² Years later Congress superseded the ineffective § 208 planning process with § 319.²³ Section 319 asked states to embark on more planning, aided by federal funding. The result of the long and expensive process is, with certain apparent exceptions, close to nil. Nearly three-quarters of the states marked no milestones of improvement for agriculture, and the position of repose for most states continued to be reliance on a faint hope that agricultural landowners and operators would voluntarily adopt and implement SCS farm conservation plans of one sort or another.

The relevance of nonpoint source programs to CAFOs and other intensive agricultural practices is questionable. The latter are, after all, point sources in most cases. However, since 1972, EPA has shown a clear preference for addressing all things agricultural as nonpoint sources, and that trend appears to continue with the conservation plan idea.²⁴

The 1996 farm legislation created a pilot program that also keeps alive the conservation plan concept. Styled the Conservation Plan Option (CPO), it applies to producers of wheat, feed grains, cotton, and rice who have enrolled in the Agricultural Markets Transition Act (AMTA) program.²⁵ Volunteer farmers must first prepare a "conservation farm plan" that shall:

* describe the resource-conserving crop rotations, and all other conservation practices, to be implemented and maintained on the acreage that is subject to contract during the contract period;

* contain a schedule for the implementation and maintenance of the practices described in the conservation farm plan;

* comply with highly erodible land and wetland conservation requirements of this chapter; and

* contain such other terms as the Secretary mayrequire.

On approval of the plan the farmer may contract with the USDA for 10 years of payments equivalent to the payments the farmers would have received under enrollment in the CRP, the WRP, and the EQIP.²⁶ Payments are contingent upon active compliance with all the terms and conditions of the plan.²⁷

[31 ELR 10504]

While it is unclear whether the plan required by the CPO must encompass the whole farm, statutory language suggests that it does not. Eligible farmers are those who have "contract acreage enrolled in the agricultural market transition program."²⁸ The required plan refers only to "the acreage that is subject to contract."²⁹ This pilot program, like sodbuster and its companions, requires only the lesser plan, yet it suggests a possible future direction that, at its essence, makes financial support dependent upon implementation of a conservation plan.³⁰

The Place of Conservation Plans in State Law

A largely unnoticed relevance of the conservation plan idea is found in the extent to which it has been received into the laws, plans, and programs of various states, either through sediment control programs, nonpoint runoff programs, or the permitting of CAFOs.

Sediment Control Statutes (Bad Actor I)

Encouraged by a model prepared by the Council of State Governments in 1973,³¹ many states adopted some version of sedimentation and erosion control legislation. These typically focused on what was termed "land-disturbing activity." The South Dakota version probably comes close to being typical of this generation of law. It defines "land-disturbing activity" as:

Any land alteration resulting in soil erosion from water or wind and the movement of sediments:

(1) Into any and all waters, public or private, on the surface of the ground, which are contained within, flow through or border lands in the state; or

(2) Onto lands in the state, including but not limited to, clearing, tilling, grading, excavating and transporting and filling of land.³²

A state-level state conservation commission is required to develop guidelines consisting of recommended soil loss limits and suggested conservation practices.³³ These guidelines lack the force and effect of law, but are the basis for mandatory district conservation standards to be adopted by each conservation district in the state. All activities on state-owned land must comply with local standards, as must any activity carried out pursuant to a contract with a state agency. All units of state and local government are directly bound by the standards, and all local or state permit-granting authority is conditioned on compliance.³⁴

Neither the state conservation commission nor local conservation districts may require permits.³⁵ When, however, a conservation district determines that an agricultural "land-disturbing activity" violates a standard, the responsible landowner is required to prepare an erosion and sediment control plan within six months and have it approved by the local conservation district; six months is then allowed in which to implement the plan.³⁶

The state statute does not define "erosion and sediment control plan." It may be presumed that it is intended to resemble the familiar SCS whole farm conservation plan, with the exception that the minimum acceptable standards are found in the local district's conservation standards rather than in the federal agency's regulations. This presumption has played out in practice.

Should a responsible person refuse to cooperate, a conservation district may bring suit for injunction. The strongest remedy provided by the law is a mandated erosion and sediment control plan, and state courts have the authority to enforce the requirement.

Apparently all local conservation districts in South Dakota have at some time adopted the required standards, although some might have difficulty locating a copy. It also appears that conservation districts have relied heavily on advice and counsel from the SCS in developing such rules. The ultimate standard is the specific soil loss that will be tolerated in a given district. For this, reliance on SCS' technical determinations is almost total. As a result, it can be said that development and operation of a system of county-level erosion control standards is largely, if not altogether, dependent upon the availability and skill of technical field staff in the federal SCS.

Sediment Control Statutes (Bad Actor II)

In 1994, the National Association of Conservation Districts published a proposed model for state legislation under the cautious title of Example of an Act That Could Function as a Bad Actor Component of a State Agricultural Nonpoint Pollution Program. Kentucky adopted a version of this approach that may, again, serve as representative.³⁷ While being structurally similar to "Bad Actor I," the Kentucky law is focused on water quality and, important for our purposes, relies on the conservation plan as the focus of remedial action and implementation. Significantly, the state can provide financial support to operators. Definitions are a key to the Kentucky approach:

(1) "Agriculture operation" means any farm operation on a tract of land, including all income-producing improvements and farm dwellings, together with other farm buildings and structures incident to the operation and maintenance of the farm, situated on ten (10) contiguous acres or more of land used for the production of livestock products, poultry, poultry products, milk, milk products, or silviculture products, or for the growing of crops such as, but not limited to, tobacco, corn, soybeans, small grains, fruit and vegetables; or devoted to and meeting the requirements and qualifications for payments to agriculture programs under an agreement with the state or federal government;

(2) "Bad actor" means any person engaged in agriculture operations, who receives written notification of documented [31 ELR 10505] water pollution and of the agriculture water quality plan needed to prevent water pollution, and is provided technical assistance, and financial assistance when possible, to implement the agriculture water quality plan, but still refuses or fails to comply with the requirements of the agriculture water quality plan;

(3) "Best management practices" means, for agriculture operations, the most effective, practical, and economical means of reducing and preventing water pollution provided by the United States Department of Agriculture Soil Conservation Service and the Soil and Water Conservation Commission. Best management practices shall establish a minimum level of acceptable quality for planning, siting, designing, installing, operating, and maintaining these practices;

(4) "Conservation plan" means a plan, provided by the United States Department of Agriculture Soil Conservation Service and the Soil and Water Conservation Commission, describing best land management practices, including an installation schedule and maintenance program, which when completely implemented, will improve and maintain soil, water, and related plant and animal resources of the land;

(5) "Compliance plan" means a conservation plan containing best management practices developed for persons engaged in agriculture operations by the United States Department of Agriculture Soil Conservation Service, in conjunction with local conservation districts as required for eligibility under the Federal Food Security Act.³⁸

A new agricultural water quality authority is created for the purpose of creating a statewide agricultural water quality plan (SAWQP). Thereafter, all agricultural operations "shall implement the applicable requirements of the statewide plan."³⁹ The plan does not place specific duties on individual operations, but rather simply sets out requirements of general applicability. If it then develops that "water pollution from agriculture operations has been documented"⁴⁰ in a region of the state, all operators will be notified of plan requirements and of the availability of financial assistance.

If it is documented that a particular agriculture operation is in violation of the SAWQP, the operator will be notified, offered financial and technical assistance, and given a reasonable period of time in which to come into compliance. Curiously, compliance is achieved, not when the operator submits a "conservation plan," but when, instead, a "compliance plan" is provided. As the definitions quoted above describe, a "compliance plan" is the lesser effort required for satisfaction of sodbuster provisions of the 1985 Farm Bill, and applies only to those fields containing highly erodible land. In other words, the Kentucky legislature has set the bar at a very low level, and has carefully avoided the whole farm conservation plan. When an operator fails to comply with this low standard, he or she is designated a "bad actor" and subject to enforcement, which is itself minimal.

Although the Kentucky law describes an almost laughable "soft touch" on agricultural operators who generate water pollution, it nonetheless keeps alive the idea that a conservation plan based on best management practices and administered by agricultural rather than environmental agencies is the preferred approach.

Conservation Plans in Contemporary Environmental Protection

The Appropriate Role for Conservation Plans

The early idea of the whole farm conservation plan was a response to the classic situation of controlling runoff from a large number of widely dispersed small sources of nontoxic pollutants.⁴¹ It addressed a situation that exists today only rarely. That is, in the 1930s and 1940s, the SCS was working with an agriculture process comprised of countless small farms, each producing a variety of crops, forage, and animals. In this diversified production, a whole farm review could achieve a great deal—crop and forage rotation, manure management, better seeds, and contour cultivation were typical resource tools. Ample federal cost-sharing allowed the SCS to inject into the plan important and costly runoff controls, such as terraces, pasture improvement, tree planting, and grass waterways. The whole farm conservation plan thus benefited the farm, which enjoyed enhanced production, as well as the public, which benefited from reductions in soil and water loss.

Although exceptions surely abound, the fact of contemporary production agriculture is that it is specialized, intensified and, increasingly, industrialized. Commodity crop production in the grain belt of the Midwest occurs typically on drained fields growing "continuous corn"; animals are rarely seen, rotation of crops is practiced less often, and forage crops are seldom involved. The production process relies on regular applications of a range of sophisticated chemicals, and the tillage and harvesting equipment relied upon is of the greatest sophistication. The runoff from such a "farm" is not in dispersed rivulets, but through a carefully engineered collection system analogous to a municipal sewer collection system.⁴² Nor is the runoff nontoxic, for it inevitably conveys some pesticide residues.

Animal production is today similarly industrialized. Farms that once raised horses, cows, sheep, hogs, and chickens in small herds or flocks are seldom found. Hogs and chickens are now raised as part of an industrial process that is as removed from traditional animal husbandry as the John Deere tractor assembly line is from horse-powered tillage.

The point to be made is that in considering the advantages of the "conservation plan" or the "comprehensive nutrient management plan," we must conclude that it should not be a device that applies equally and well to all things "agricultural." The conservation plan is an idea that responds most appropriately to nonpoint polluted runoff resulting from widely dispersed, small, andnontoxic sources. When, however, production of either crops or animals is specialized, and generates concentrated discharges from carefully engineered systems, and where those discharges may contain measurable amounts of potentially harmful toxic or unconventional chemicals, the conservation plan may no longer serve a practical, remedial, or protective function.

Moreover, the concept is that a plan, to be successful, must apply to the entire farm—the whole farm conservation [31 ELR 10506] plan. When a plan is restricted to just one small part of a farm, its purpose is largely defeated.

Is There a Standard?

The statutes, agency regulations, and field guides, when viewed together, do not seem to establish recognizable or enforceable minimum standards for individual plans. The rule, if there is one at all, appears to be "landowner-control and agency discretion." The one place where something resembling a standard appears is in the "sodbuster" requirement. Farm program ineligibility applies to farmers who grow crops on highly erodible (HEL) ground without first applying a conservation plan, which is defined as a document that:

(A) applies to highly erodible cropland;

(B) describes the conservation system applicable to the highly erodible cropland and describes the decisions of the person with respect to location, land use, tillage systems, and conservation treatment measures and schedules; and

(C) is approved by the local soil conservation district, . . . .⁴³

In turn the phrase "conservation system" is defined as . . . a combination of 1 or more conservation measures or management practices that—

(A) are based on local resource condition, available conservation technology, and the standards and guidelines contained in the [NRCS] field office technical guides; and

(B) are designed to achieve, in a cost effective and technically practicable manner, a substantial reduction in soil erosion or a substantial improvement in soil conditions on a field or group of fields containing highly erodible cropland when compared to the level of erosion or soil conditions that existed before the application of the conservation measures and management practice.⁴⁴

Qualifying conservation plans are those that have

been approved by a conservation district after the district has determined that the conservation system is in conformity with technical standards set forth in the [NRCS] technical guide for such district.⁴⁵

Plans "must be based on," "and to the extent practicable" conform with NRCS technical guides in use in the field.⁴⁶ A "substantial reduction in soil erosion" on HEL ground is based on

a comparison of the estimated annual level of erosion that is expected to occur on that portion of the field for which a conservation plan or system was developed and is being applied, to the estimated annual level of erosion that existed on that same portion of the field before the application of a conservation plan or system.⁴⁷

As if to drive home the point that sodbuster plans are to reflect the maximum flexibility and concern for the needs of the producer, the 1996 farm legislation specifies that NRCS technical guides defining conservation plans and systems

shall ensure that the standards and guidelines permit a person to use a conservation system that:

(1) is technically and economically feasible;

(2) is based on local resource conditions and available conservation technology;

(3) is cost effective; and

(4) does not cause undue economic hardship on the person applying the conservation system under the person's conservation plan.⁴⁸

The closest thing to a specific standard is the soil erosion prediction equations referred to in the regulations,⁴⁹ although these also are not mandatory. These equations are to be used to "develop new or revised conservation plans,"⁵⁰ but neither the statutes nor regulations require that they establish a minimum standard for plans.

This system applies only to conservation plans for sodbuster-related HEL ground. These field-specific plans are but a small part of the lot of situations to which conservation plans may apply. Thus, in most situations, conservation plans are subject to even more landowner control and agency discretion than is the case with sodbuster plans.

Factors Favoring Use of the Conservation Plan

The conservation plan recognizes that each agricultural production unit has its own unique character, reflecting hydrology, climate, terrain, soils, and natural vegetation. Each such unit has also a distinct economic capacity, reflecting the cost of production, size of unit, domestic requirements of the producer, and land tenure arrangements, all of which are relevant to the final plan and its schedule for implementation. The nature of available markets contributes to the selection of crops to be grown and may be a compelling factor. The conservation plan is therefore a flexible device that allows all of these factors to be drawn into account. As the farm changes, the plan can change. The conservation plan is flexible in another way. Although voluntary—dependent on the willingness of the landowner—the plan is susceptible to being gradually adapted into a regulatory tool in cases in which pollution damage is particularly persistent or harmful, or where the landowner finally earns recognition as a recalcitrant or "bad actor."

In addition, the idea of a conservation plan enjoys a history of acceptance among farmers, and there is an institution—the SCS—in place. There is a tendency to overlook the remarkable presence of the USDA in farm country. Stationed in every county is a technical staff ready to develop conservation plans. This staff knows the ground, and has on file the complete cropping history for each farm. Annual aerial photography provides staff with a unique analytical and monitoring device. The importance of the local office's link to farm financial support programs is apparent.

Clearly, no uniform standard can be applied to all agriculture. Standards will remain imprecise, and flexibility is essential. EPA has always argued that uniform effluent limitations are impossible in these cases, and that some type of [31 ELR 10507] general permit is inevitable. The conservation plan seems to offer a satisfactory middle ground.

Factors Weighing Against Use of the Conservative Plan

Despite one-half century of heavily subsidized volunteerism, pollution from agriculture has worsened steadily. Only the well-intentioned farmers have participated in voluntary conservation programs. Therefore, there is no ability for the SCS, conservation district, EPA, or other entity to perform triage, addressing the serious problems more aggressively. The standards of performance (notably soil loss limits) are vague and ultimately depend on a judgment by hard-pressed field personnel.

The implementing agency—the USDA, through the SCS—may have a long history of acceptance in the agricultural community, but that acceptance is based on remembrances of substantial cost-sharing in support of production-enhancing activity such as drainage, channelization, and landclearing. When cost-shares are reduced and the goal is pollution control rather than production enhancement, the willingness of farmers to accept leadership from the SCS is quite likely to reach a low level. It must be remembered that the raison d'etre of the USDA is to promote agriculture and agricultural production, and any expectation that it will provide leadership in pollution control must be a hopeful illusion. In addition, the SCS is an agency the prospects of which have been steadily diminishing. Funding and expertise has been reduced, and it is not now in a position to take on the task of preparing a large number of meaningful plans.

The conservation plan as it exists today is not tied to the quality of receiving waters, and is not related to specific pollution control objectives such as water quality standards. The emphasis is on achieving such reductions in soil erosion as are possible given the practical constraints on the particular operation, and the crop and tillage decisions already determined by the farmer. There do not appear to be any enforceable minimum standards.

Conclusion

If conservation plans emerge as the tool of choice for responding to pollution from agriculture, caution is in order. The conservation plan is a tool devised to deal with runoff of simple sediment from a large number of dispersed sources. It is not designed to respond to the intense, specialized, and industrial agriculture methods that are now commonplace.

1. See, e.g., OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION (Envtl. L. Inst. 1999); Robert W. Adler, Controlling Nonpoint Source Water Pollution: Is Help on the Way (From the Courts or EPA)?, 31 ELR 10270 (Mar. 2001); James M. McElfish Jr., State Enforcement Authorities for Polluted Runoff, 28 ELR 10181 (Apr. 1998); Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 ELR 10574 (Nov. 1997); David Zaring, Federal Legislative Solutions to Agricultural Nonpoint Source Pollution, 26 ELR 10128 (Mar. 1996); John H. Davidson, Little Waters: The Relationship Between Water Pollution and Agricultural Drainage, 17 ELR 10074 (Mar. 1987).

2. R. BURNELL HELD & MARION CLAWSON, SOIL CONSERVATION IN PERSPECTIVE 41-89 (1965).

3. Craig Williams, Soil Conservation and Water Pollution Control: The Muddy Record of the United States Department of Agriculture, 7 ENVTL. AFF. 365, 376-78 (1979).

4. HELD & CLAWSON, supra note 2, at 67.

5. Id. at 68.

6. 16 U.S.C. §§ 3811, 3812.

7. Id. § 3812(2).

8. 7 C.F.R. § 12.2.

9. Pub. L. No. 104-127, 110 Stat. 888.

10. 16 U.S.C. § 3812.

11. Id. § 3812(a).

12. Id. § 3812d(d)(1).

13. Id. § 3812a(f).

14. Id. § 3832(b).

15. Id. § 3837a(a)(2).

16. Id. § 3839a(a)(1).

17. Id. § 3839aa-5.

18. See, e.g., id. § 1003.

19. NRCS, Comprehensive Nutrient Management Planning, Technical Guidance, 65 Fed. Reg. 76984 (Dec. 8, 2000).

20. U.S. EPA. Proposed Rule, Guidelines and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960 (Jan. 12, 2001).

21. 33 U.S.C. § 1288, ELR STAT. FWPCA § 208.

22. 5 WATERS AND WATER RIGHTS § 54.03 (Robert E. Beck ed., 1998) (Supp. 2000). See also Robert E. Beck, Agricultural Water Pollution Control Law, in 2 AGRICULTURAL LAW §§ 28-29 (1981).

23. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319.

24. See, e.g., Natural Resources Defense Council v. Costle, 568 F.2d 1369, 8 ELR 20028 (D.C. Cir. 1977).

25. Pub. L. No. 104-127, § 101, 110 Stat. 896; 7 U.S.C. § 7201.

26. 16 U.S.C. § 3839bb.

27. Id.

28. Id. § 3839bb(d).

29. Id. § 3839bb(d)(2)(A) (Supp. 2000).

30. The irony is not lost. The 1996 legislation was trumpeted as the death knell of New Deal farm legislation, whereas the CPO seems to bring us round again to the original Soil Conservation and Domestic Allotment Act.

31. The Council of State Governments, Model State Act for Soil Erosion and Sediment Control, in 32 SUGGESTED STATE LEGISLATION (1973).

32. S.D. CODIFIED LAWS ANN. § 38-8A-2 (Michie 2000).

33. Id. § 38-8A-4.

34. Id. § 38-8A-5.

35. Id. § 38-8A-18.

36. Id.

37. 1999 Ky. Rev. Stat. & R. Serv., ch. 224, § 71-100 to 71-130 (Supp. 2000).

38. Id. § 71-100(1)-(5).

39. Id. § 71-120.

40. Id. § 71-120(6).

41. HARLOW S. PERSON, LITTLE WATERS: A STUDY OF HEADWATER STREAMS & OTHER LITTLE WATERS, THEIR USE AND RELATIONS TO THE LAND (SCS, 1935), reprinted in 2 GREAT PLAINS NAT. RESOURCES J. 78 (1997).

42. Davidson, supra note 1.

43. 16 U.S.C. § 3801(2) (emphasis added).

44. Id. § 3801(3) (emphasis added).

45. Id. § 3812(c).

46. 7 C.F.R. § 12.22 (emphasis added).

47. Id. § 12.23(b) (based on 16 U.S.C. § 3812a(b)).

48. 16 U.S.C. § 3812a(a). As noted, § 3812a(c)(2) requires that the Secretary of Agriculture accept the landowner-producer's measure of compliance, thus introducing the "self-audit" concept to agricultural water pollution control law.

49. 7 C.F.R. §§ 12.20-.23; id. §§ 610.11-.14.

50. Id. § 610.14.