Conservation Programs – An Overview
Introduction
The United States Department of Agriculture (USDA), through the Natural Resources Conservation Service (NRCS) and the Farm Service Agency (FSA), currently administers approximately two dozen federal conservation programs. Conservation programs are voluntary federal programs designed to encourage agricultural producers and landowners to undertake conservation practices on agricultural lands. While the NRCS and FSA administer the programs, other agencies, such as the Forest Service, may assist in implementing some programs.
History
Modern conservation program origins are found in Great Depression-era legislation. One scholar noted, “[Since the 1930s, the stated government policy has been to encourage agricultural conservation programs.” Dr. Neil E. Harl, AGRICULTURAL LAW, Volume 12, § 108.02[1] (hereinafter Harl).
In 1935, Congress enacted the Soil Conservation Act (SCA) “[t]o provide for the protection of land resources against soil erosion, and for other purposes.” Act of April 27, 1935, Ch. 85, 49 Stat. 163. The SCA authorized the Conservation Options Program, a voluntary soil conservation program administered by the Soil Conservation Service, predecessor to the NRCS. The Soil Conservation Service provided technical assistance to producers in planning soil management programs.
In 1936, the SCA was amended by the Soil Conservation and Domestic Allotment Act, which has been described as the “cornerstone” of the federal policy to encourage agricultural conservation programs. See Harl at § 108.02[1]. This authorized the Agricultural Conservation Program, a voluntary program providing agricultural producers with financial assistance for undertaking approved soil conservation practices.
In 1956, the Great Plains Conservation Programs (GPCP) enactment was a major conservation program development. The GPCP was a long-term voluntary program designed to encourage producers to develop conservation practices in the Great Plains region. The GPCP conservation practices addressed wind and water erosion and how to best utilize soil and water resources, in addition to undertaking “anti-pollution practices, measures to enhance fish, wildlife, and recreation resources, and practices to promote economic land use.” Harl, at § 108.04[2] (citation omitted).
Since the SCA and GPCP’s creations, the number and types of programs have greatly expanded. Today, approximately two dozen conservation programs are available to eligible agricultural producers. Despite their technical differences, the programs’ common denominator is that they all address natural resource and environmental concerns associated with agricultural production. Specifically, the programs are intended to “help people reduce soil erosion, enhance water supplies, improve water quality, increase wildlife habitat, and reduce damages caused by floods and other natural disasters.” USDA, Nat. Res. Conservation Serv., NRCS Conservation Programs.
Federal Regulatory Authority
In conservation programs, administrative agencies such as USDA/FDA/EPA have Congressional authority to create regulations to implement federal law requirements. In 2024, the Supreme Court of the United States issued two rulings that are expected to have major impacts on how judges decide cases challenging such agency authority and their regulations.
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) overruled the long-standing doctrine of deference established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron deference was a two-step process that clarified how and when federal courts should defer to an agency regulation interpreting a statute. Chevron only applied if the court determined that the statutory language the agency was interpreting was ambiguous. If it was ambiguous, the court would consider whether the agency’s interpretation of the statutory language was “reasonable”. If it was reasonable, the court was required to defer to the agency’s interpretation. If it was not, the court would overrule the interpretation.
However, Loper Bright overturned Chevron. In a 6-3 decision, the Supreme Court held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” Following the ruling, courts are instead required to exercise independent judgment in determining whether an administrative agency has acted within its statutory authority. Courts may still seek guidance from the agencies involved, but courts will no longer be required to defer to an agency’s interpretation of a statute.
In Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024), the Supreme Court extended the period when a party can file a lawsuit challenging federal agency actions. According to 28 U.S.C. § 2401(a), the six-year statute of limitations began to run when an administrative agency’s action was “final.” In Corner Post, the Supreme Court ruled that an agency’s action is “final” when a plaintiff suffers an injury, rather than when a “final regulation” is released. This ruling expands the potential for plaintiffs to challenge federal agency rules and regulations that have been final for over six years.
While Loper Bright and Corner Post’s full effects are yet to be fully determined, the agricultural industry will be affected. Importantly, the rulings fundamentally change how courts will resolve lawsuits challenging agency regulations for misinterpreting the agency’s statutory authority. Areas of law where Congress has historically passed relatively ambiguous statutes and then relied on agency expertise to use regulations to fill in the specifics, such as conservation programs, are going to be affected the most.
Types of Programs
Conservation programs can be divided into two categories: “land retirement” and “working lands” programs. Land retirement programs require enrolled agricultural lands to be taken out of agricultural production and placed into a conservation-oriented use that is consistent with the program’s requirements. While working land programs also require that certain conservation-oriented practices be carried out on agricultural lands, they require the enrolled land to remain under agricultural production.
Historically, land retirement programs have dominated the conservation program landscape. The USDA reports that “[f]rom 1986 through 2000, more than 90 percent of direct conservation payments were allocated to land retirement programs.” USDA, Econ. Res. Serv., Conservation Program Design, Contrasting Working-Land and Land Retirement Programs, EB4 (2006). However recently, working lands programs have become more prevalent.
Major Programs
As noted, the NRCS and FSA currently administer more than two dozen conservation programs, the most prominent include the Conservation Reserve Program, Agricultural Conservation Easement Program, Environmental Quality Incentives Program, and the Conservation Security Program.
The Conservation Reserve Program (CRP) is a land retirement program designed to remove millions of acres of environmentally sensitive and highly erodible land from agricultural production. The program provides technical and financial assistance to producers to address soil, water, and related natural resource concerns on their lands in an environmentally beneficial and cost-effective manner. CRP’s predominant focus is to dramatically reduce soil erosion from agricultural production. Under CRP, producers enter into contracts for 10 to 15 years. The FSA administers CRP with assistance from the NRCS. As of 2024, over 26 million acres of agricultural land are enrolled in CRP. USDA, Farm Serv. Agency, CRP Contract Summary and Statistics.
The Agricultural Conservation Easement Program (ACEP) provides financial and technical assistance to help conserve agricultural lands, wetlands, and grasslands through conservation easements. The program’s Agricultural Land Easements component allows the NRCS to help American Indian tribes, state and local governments, and non-governmental organizations protect working agricultural lands and limit non-agricultural uses of the land. The program’s Wetlands Reserve Easements component allows the NRCS to help in restoring, protecting, and enhancing enrolled wetlands.
The Environmental Quality Incentives Program (EQIP) is a voluntary working lands program administered by the NRCS. Which provides technical and financial assistance to agricultural producers to address natural resource concerns and deliver environmental benefits. Some benefits include improved water and air quality, conserved ground and surface water, reduced soil erosion, and improved or newly created wildlife habitats. Within EQIP there are seven subprograms: (1) Air Quality Initiative, (2) Colorado River Basin Salinity Project, (3) Conservation Innovative Grants, (4) High Tunnel Initiative, (5) Landscape Initiatives, (6) On-Farm Energy Initiative, and (7) Organic Initiative. The Conservation Security Program (CSP) is a voluntary working lands program administered by the NRCS. Which provides financial incentives and technical assistance to agricultural producers who promote conservation and improvement of soil, water, air, energy, and plant and animal resources. CSP represents one of the most important developments in the history of federal conservation programs and could become a central component of overall U.S. agricultural policy. The 2018 Farm Bill established a new CSP Grassland Conservation Initiative that provides financial assistance through a 5-year contract to conserve grasslands by planting cropland to grass or pasture.
For a summary and evolution of the Conservation Titles in the 1985-2018 Farm Bills, visit our U.S. Farm Bills page. For further and related information on Conservation Programs, visit our Animal Feeding Operations Reading Room and Sustainable Agriculture Reading Room or Forestry Reading Room.