Trouble Downstream: Upgrading Conservation Compliance: IV. Recommendations for Improving Conservation Compliance

Despite an initial and significant reduction in soil erosion due to the 1985 Highly Erodible Land Conservation (HELC) compliance policy, many environmental problems associated with subsidized agriculture remain unaddressed by conservation compliance. What follows is a list of the primary weaknesses with conservation compliance and action that could be taken to make progress reducing the unintended, environmental harm of agricultural activities. Addressing these issues will require changes in the federal Farm Bill statute and regulations.

A. Expand the limited reach of compliance

Problem: A great deal of erosion is occurring on cropland considered “non-highly-erodible” and therefore beyond the reach of HELC compliance. In fact, nearly half of the unsustainable erosion is occurring in both the 10 Mississippi River border states and nationwide on cropland that is not highly erodible. In some states, the unsustainable erosion problem occurs on many more acres of non-highly erodible cropland than highly erodible cropland. Expanding soil conservation requirements to all cropland would substantially increase the benefit of compliance provisions to the Mississippi River and waterways nationwide. Expanding soil conservation requirements to all cropland acres is even more urgent and justified given the expected intensification of corn production to meet ethanol mandates. In addition, cropland receiving federally subsidized crop insurance should come under the compliance umbrella, along with the cropland currently under compliance requirements—those tracts receiving commodity, disaster, and conservation farm program benefits.

Solution: Amend the statute to require conservation compliance on all cropland acres receiving farm program benefits, regardless of designation as highly erodible or non-highly erodible land.

Solution: Amend the statute to include crop insurance in the list of farm program benefits that are subject to conservation compliance.

Problem: The primary threats agriculture poses to the health of the Mississippi River and its tributaries are pollution from sediments and nutrients, and degradation of aquatic and riparian habitat. HELC compliance directly addresses sediment loadings and can indirectly address phosphorus loadings since most phosphorus is delivered to waterways attached to sediment. Expanding HELC to include all cropland would increase the impact of compliance on sediment and phosphorus loadings. Current soil conservation requirements, however, have little or no effect on loadings of nitrogen or degradation of aquatic and riparian habitat. Compliance provisions should be expanded to address nitrogen management and to directly address phosphorus management through requirements to implement a nutrient management plan. Impacts on aquatic and riparian habitat could be addressed by requiring a minimum setback of crop production from waterways.

Solution: Amend the statute to require nutrient management plans, not just soil conservation plans, on cropland receiving farm program benefits.

Solution: Amend the statute to require a meaningful minimum setback from waterways for crop production on land receiving farm program benefits. Allow producers to meet this requirement by enrolling sufficient acres in the continuous sign-up of the Conservation Reserve Program to achieve technical specifications for riparian buffers or filter strips on a site-by-site basis.

B. Establish better and consistent standards

Problem: The HELC statute requires that the approved soil conservation plan produce a “substantial reduction” in erosion. This standard is and has been subject to wide variation in interpretation. Establishment of more quantitative and more meaningful standards would help improve the performance of HELC compliance. The traditional quantitative standard has been the soil loss tolerance level (T)—an estimate of the amount of erosion that can be sustained without loss of soil productivity. However, this T standard does not address the environmental impact of the soil erosion, only the impact on soil productivity. More recently, other standards, such as the “non-degradation” standard used for implementation of the Conservation Security Program have been developed. In addition, NRCS should consider developing soil erosion reduction goals related to sediment loads within specific watershed basins as a more effective approach to reducing erosion through required soil conservation plans. Until a better soil erosion standard is determined, achieving the T standard on all existing HELC tracts would yield significant reductions in soil erosion.

It is unclear how many of the existing 4.5 million tracts have the “basic” conservation plans designed to reduce erosion to T and how many have the “alternative” conservation systems with no specific reduction goal other than a “substantial reduction” with two definitions depending on the year the plan was prepared. It is also unclear though more likely that the vast majority of tracts is held to the modest “substantial reduction” standard of compliance because most fields were used to produce crops prior to 1985. Thus, it is likely that only a minority of tracts subject to compliance are required to achieve the specific reduction of a “75 percent reduction in potential erodibility, not to exceed two times the soil loss tolerance level for the predominant soil map unit.”

Solution: Require NRCS to develop a better standard than “T” for soil conservation plans that would include new standards for soil degradation (erosion, loss of organic matter, compaction, etc.) and standards reflecting the environmental impact of soil degradation. In addition, NRCS should consider developing soil erosion reduction goals related to sediment loads within specific watershed basins as a more effective approach to reducing soil erosion through required soil conservation plans.

Solution: While those new standards are being developed, amend the statute to require soil conservation plans that reduce sheet and rill erosion, the worst kinds of water erosion, to the Soil Loss Tolerance Level (T).

Solution: Require all current and future conservation plans to meet these upgraded standards.

C. Ensure better enforcement

Problem: Emphasis on and enforcement of conservation compliance lagged after passage of the 1996 Farm Bill, which introduced a number of new waivers and exemptions that made enforcement more difficult.

The emphasis placed on enforcing compliance varies greatly among states. According to the 2003 GAO survey of NRCS field offices, the primary reasons NRCS staff said they had difficulty implementing the conservation provisions were: a) they lack staff, b) their managers do not emphasize the provisions, c) they are uncomfortable with their enforcement role, d) their non-compliance decisions are routinely reversed by FSA. During the appeals process from 1993 to 2001, the FSA waived 4,948 out of 8,118 cases of NRCS non-compliance determinations.

Solution: Mandate an annual compliance review of at least one percent of crop fields subject to conservation compliance provisions.

Solution: Allow graduated penalties scaled to severity of the violation and degree of cooperation by the producer in correcting deficiencies. Eliminate most other waivers and exemptions.

Solution: Mandate sufficient funding from the Commodity Credit Corporation, which disburses the crop subsides, to support the technical assistance by NRCS staff and certified third-parties needed to develop and implement conservation plans and to conduct mandated status reviews.

D. Improve data collection, evaluation and reporting

Problem: Insufficient data are being collected and evaluated by NRCS and FSA compliance staff. This in turn prevents these agencies from being able to properly evaluate and provide adequate evidence to support the claim that 98 percent of farmers are in compliance with the policy provisions.

Solution: Require NRCS and FSA to document and report:

1) What level of erosion reduction is required in each approved soil conservation plan,
2) What level of erosion reduction is actually being achieved by each soil conservation plan,
3) If there was a violation, whether the appropriate action was taken to ensure the problem is corrected and the plan is fully implemented,
4) How much erosion is occurring on the tracts which received waivers for not fully implementing the plan (e.g. economic and personal hardship, good faith, technical violation, severe conditions, etc.) but are counted as in compliance anyway,
5) A complete statistical profile of farmers deemed in and out of compliance, and
6) The number of tracts with violations associated with the benefits at risk of denial and benefits actually denied.