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Marc Ribaudo
Abstract—Federal environmental laws
can influence farmers' decisions about production practices
or input use. These laws use a variety of mechanisms
for
protecting the environment, ranging from voluntary incentives to
regulatory approaches.
Introduction
Farmers face a complex set of factors when they make decisions
about farm management and conservation practices. The vagaries of
weather and markets introduce uncertainty into farmers' operations.
The use of conservation practices may also introduce uncertainty
about net returns while producing benefits enjoyed mostly off the
farm. Decisions made by farmers on how and where to produce commodities
can be influenced by policies and programs for protecting the environment.
USDA has several major programs for providing financial and technical
assistance to farmers for protecting water quality, soil quality,
and wildlife habitat (see AREI Chapters 5.2,
5.3,
5.4,
5.5,
and 5.6).
Farmers can also be influenced by other Federal environmental protection
policies and programs that may restrict certain production practices.
This chapter will focus on these programs. The U.S. Environmental
Protection Agency (EPA) is chiefly responsible for administering
these policies and programs. The Clean
Water Act (1972) is the major law protecting water quality.
Several CWA programs address "nonpoint-source"
pollution, which is the most prevalent type of pollution associated
with agriculture (see AREI
Chapter 2.2).
The Nonpoint
Source Program (Section 319) requires States to develop nonpoint-source
management programs. Nonpoint-source control plans can include State
regulatory measures, but usually emphasize voluntary actions like
those used in USDA conservation programs. Implementation grants
to States and tribes ($200 million in FY2005) fund projects like
installation of best management practices (BMPs) for animal waste;
design and implementation of BMP systems for stream, lake, and estuary
watersheds; and basinwide landowner education programs. The Clean
Water State Revolving Fund (CWSRF), created by Congress to fund
the construction of water treatment plants, can be used by States
to provide reduced-rate loans for water quality projects included
in the State nonpoint-source plan. Fifteen States have used CWSRF
for funding waste management systems, manure spreaders, conservation
tillage equipment, irrigation equipment, filter strips, and streambank
stabilization.
Water pollution from some animal
feeding operations is treated as a point source under the
Clean Water Act (see AREI
Chapter 4.5). Confined animal feeding
operations meeting certain
size thresholds or other conditions fall under the National
Pollution Discharge Elimination System (NPDES,
Section 402).
These operations, known as Concentrated Animal Feeding Operations
(CAFOs), must obtain NPDES
permits that specify standards for the production area (i.e., housing,
waste storage) and for the land where wastes are applied. CAFOs
must also implement a nutrient management plan for animal manure
applied to land, a significant change for Federal water quality
laws.
As a form of nonpoint pollution, nutrient runoff from fields has
traditionally been addressed with voluntary approaches. This is
the first time that a nonpoint source of water pollution has been
regulated at the Federal level. EPA estimates that up to 15,500
operations are covered by the CAFO regulations. These regulations
may impose
significant manure management costs in areas where land for
spreading manure is scarce. These costs could influence location
decisions for large operations and spur the development of alternative
uses for manure. EPA encourages CAFOs to seek financial and technical
assistance from USDA to help them meet manure management requirements.
The
Total Maximum Daily Load provisions of the Clean
Water Act are intended to be the second line of defense
for protecting the quality of surface-water resources.
When technology-based controls are inadequate for water
to meet State quality standards, Section 303(d) of the
Clean Water Act requires States to identify those waters
and to develop total maximum daily loads (TMDL). A TMDL
is the maximum
amount of a pollutant that a water body can receive and
still meet water quality standards, and an allocation
of that amount to all
the pollutant's sources. States must submit to EPA a
list of impaired waters and the cause of the impairment.
More than 20,000
such waters have been identified
as impaired under Section 303(d) (fig. 5.7.1).
Figure 5.7.1 - Impaired watersheds, 2000 
Among the top impairments are sediment, nutrients, and pathogens.
States, territories, and authorized tribes are responsible for establishing
a program to meet TMDLs. Point-source reductions to meet wasteload
allocations are achieved through NPDES permits. Agricultural nonpoint
sources are generally addressed through voluntary programs, but
States may use regulations. TMDLs have not generally been used to
regulate agricultural production, but particular management practices
are required on agricultural operations in three TMDL-designated
watersheds in California.
Section 404 of the Clean Water Act establishes a program
for protecting
wetlands.It regulates the discharge of dredged and fill material
into U.S. waters, including wetlands, and is a key policy for meeting
the "no net loss" goal for wetland acreage. Section
404 contains a review process that handles small conversions through
general permits. More thorough, qualitative reviews are conducted
for major proposals affecting wetlands. Activities regulated under
this program include fills for development, water resource projects
(such as dams and levees), infrastructure development (such as highways
and airports), and conversion of wetlands to uplands for farming
and forestry. Under the law, a permit is required to fill a wetland,
and is granted only if impacts to wetlands are minimized. Compensation
for any unavoidable impacts is made through wetland restoration
elsewhere. The U.S. Army Corps of Engineers administers the program,
while EPA develops and interprets environmental criteria used in
evaluating permit applications. Ongoing farming activities are generally
exempt from Section 404, but filling wetlands to create new farmland
would require a permit.
The Coastal Zone Management Act Reauthorization Amendments (CZARA)
of 1990 added nonpoint-source water pollution requirements to the
Coastal Zone Management Act of 1972. CZARA requires that each State
and territory with an approved coastal zone management program submit
to EPA and to the National Oceanic and Atmospheric Administration
a program to implement management measures for nonpoint-source pollution
to restore and protect coastal waters. A list of economically achievable
management measures for controlling agricultural nonpoint-source
pollution is part of each State's management plan. States
can initially use voluntary incentive mechanisms such as education,
technical assistance, and financial assistance, but may enforce
management measures if voluntary approaches fail. Currently, 34
coastal States and territories have developed nonpoint-source
pollution control plans (fig. 5.7.2).
Figure 5.7.2 - Coastal nonpoint pollution control programs,
2005
The
Safe Drinking Water Act (SDWA) of 1974 requires the EPA
to set standards for drinking-water quality and requirements
for water treatment
by public water systems. States are required to develop Source
Water Assessment Programs to assess the areas serving as public
sources
of drinking water in order to identify potential threats and to
initiate protection efforts. Each assessment must include four
elements:
(1) delineating (or mapping) the source water assessment area,
(2) conducting an inventory of potential sources of contamination
in
the delineated areas, (3) determining the susceptibility of the
water supply to those contamination sources, and (4) releasing
the
results of the determinations to the public. Under
the 1996 amendments, EPA is required to establish a list of
contaminants for consideration in future regulation. The Drinking
Water Contaminant Candidate List, released in March 1998,
lists chemicals by priority for (a) regulatory determination,
(b) research,
and (c) monitoring. Several agricultural chemicals—including metolachlor,
metribuzin, and the triazines—are among those to be considered
for potential regulatory action. Also under the 1996 amendments,
water suppliers are required to inform their customers about
the
levels of certain contaminants (and associated EPA standards),
and the likely sources of the contaminants.
The Clean
Air Act (CAA) of 1970 sets limits on how much of a pollutant
can be in the air anywhere in the United States. Under Section 110,
each State must develop a State Implementation Plan (SIP) to identify
the sources of air pollution and to determine what reductions are
required to meet Federal air quality standards. A SIP is a collection
of the regulations a State will use to clean up polluted areas.
Pollutants regulated under the CAA are called criteria air pollutants.
Permissible emission levels are generally based on health concerns,
but visibility standards may also apply. The criteria pollutant
most associated with agriculture is particulates. Where airborne
dust from fields, burning crop residues, or other sources exceeds
permissible levels, States must take steps to reduce emissions.
Airborne dust from fields in Washington and particulates from burning
rice straw in California have led to SIPs for controlling emissions
from agricultural fields.
Ammonia is a precursor for fine particulates in the atmosphere,
and confined animal operations are the source for over 70 percent
of ammonia emissions in the United States. California has implemented
State regulations for reducing ammonia emissions from dairy operations
that were affecting air quality in heavily populated areas downwind.
EPA
recently revised the particulate matter standard to control
for fine particulates. This could result in States' requiring
animal feeding operations to control ammonia emissions.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
of 1947 provides direct controls over the sale and use of pesticides.
Under FIFRA, all pesticides must be approved by EPA through a mandatory
registration process. Products determined to pose an unacceptable
risk to human health or to the environment can be denied registration,
thereby preventing their distribution and use. Fifty pesticides
and pesticide formulations have been banned under FIFRA as of 2004.
In 1996, the
Food Quality Protection Act amended FIFRA to eliminate inconsistencies
between it and the Federal Food, Drug, and Cosmetic Act of 1938
(which regulates pesticide residues on food). The amendments allow
EPA to move quickly to suspend the use of a pesticide to prevent
serious risks to human health and the environment. The amendments
also provide incentives for the development and maintenance of minor
use registrations. Minor uses of pesticides are defined as uses
for which pesticide product sales do not justify the costs of developing
and maintaining EPA registrations. Lack of registrations can limit
the pest control tools available to the growers of "minor"
crops (including many fruits and vegetables).
The Endangered
Species Act (ESA) of 1973 conserves the ecosystems upon which
endangered and threatened species (wildlife and plants) depend.
To do so, the law regulates the modification or degradation of habitat
deemed critical for species survival. All Federal agencies are required
to protect endangered species and protect their habitat. Private
landowners who wish to conduct activities on their land that might
incidentally harm wildlife listed as endangered or threatened are
required to obtain an incidental take permit from the U.S. Fish
and Wildlife Service. To obtain a permit, the landowner must develop
a Habitat Conservation Plan. The plan is designed to offset any
harmful effects the proposed activity might have on the species.
Under the Act, EPA must also ensure that the use of pesticides it
registers will not result in harm to any species listed as endangered
and threatened by the U.S. Fish and Wildlife Service, or to habitat
critical to those species' survival. EPA's Office of Pesticide
Programs initiated the voluntary Endangered
Species Protection Program in 1988 to protect endangered and
threatened species from harm due to pesticide use. Labels of certain
pesticides contain information to help users minimize the risk
of
pesticide use in critical habitat areas. At least 1 county in 24
States has pesticide use restrictions under this program (fig.
5.7.3).
Figure 5.7.3 - States with pesticide use limitations under the
Endangered Species Protection Program, 2005
The Endangered Species Act may have a large impact on agriculture
through the supply of irrigation water from Federal irrigation
projects.
The Bureau of Reclamation has taken measures to protect the flow
of rivers supporting endangered species, such as salmon. Sufficient
flow for endangered species can reduce the irrigation water available
to farmers from Federal irrigation projects, with obvious implications
for crop production. For example, the ESA triggered a complete
shutdown
of irrigation water to more than 1,300 farms and ranches in the
Klamath River Basin during a drought in the spring of 2001. Conflicts
over the ESA's implementation in the irrigated West will
continue to be the source of many legal actions.
The Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA),
commonly known as Superfund, was enacted in 1980 to provide
broad
Federal authority to respond to releases of hazardous substances
that might endanger public health. CERCLA requires reporting
to
EPA when a facility releases more than a "reportable quantity"
(100 pounds in a 24-hour period) of a hazardous substance. EPA
is authorized to require long-term remedial action that permanently
and significantly reduces threats to public health. Originally
focused on hazardous wastes from industrial plants, the increased
size and
consolidation of animal feeding operations has raised the possibility
that the emission of substances like ammonia and hydrogen sulfide
from such operations may be subject to the notification provisions
of CERCLA (U.S. EPA, 2005).
Role of USDA Conservation Programs
Federal environmental laws cover many aspects of agricultural production.
Laws aimed at preserving habitat (Section 404 of the Clean Water
Act, Endangered Species Act) or at controlling the use of toxic
agricultural inputs (FIFRA) are the source of direct constraints
on agriculture at the Federal level. Those Federal laws directed
at reducing pollution to the environment (i.e., Clean Water Act,
Clean Air Act, Coastal Zone Management Act) have generally not constrained
agriculture directly, opting instead for voluntary approaches overseen
primarily by the States. Constraints on agricultural production
to reduce pollution emissions are more likely to arise at the State
level in response to local problems.
USDA's conservation programs can help farmers respond to resource
issues subject to regulation. For example, being in a 303(d) impaired
watershed is a screening advantage in applications for EQIP (see AREI
Chapter 5.4). EPA encourages CAFOs to seek financial and technical
assistance from USDA to help them implement Clean Water Act provisions,
and 60 percent of EQIP's funding is earmarked for animal feeding
operations. USDA also helps farmers reduce air pollution in dust
and ozone nonattainment areas in California with a cost-share program
funded through EQIP. The Wildlife
Habitat Incentives Program is being used to help landowners
protect habitat for endangered species. The Conservation Reserve
Program (see AREI Chapter 5.2) and
Grassland Reserve
Program both consider potential benefits to endangered species
in the selection of land offered for enrollment.
References
U.S. Environmental Protection Agency (2005). Animal
Feeding Operations Air Quality Compliance Agreement Fact Sheet.
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