Conservation Programs – An Overview
Introduction
The United States Department of Agriculture, 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 the implementation of some programs.
History
The origins of modern conservation programs are found in legislation enacted during the Great Depression era. As one scholar has noted, “([s]ince the 1930’s, the stated government policy has been to encourage agricultural conservation programs.” Dr. Neil E. Harl, AGRICULTURAL LAW, Volume 12, § 108.02[1] (herinafter Harl).
In 1935, Congress enacted the Soil Conservation Act (SCA) in order “[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, that provided technical assistance to producers in planning soil management programs.
In 1936, the Soil Conservation Act 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]. That act authorized the Agricultural Conservation Program, a voluntary program that provided agricultural producers with financial assistance for undertaking approved soil conservation practices.
Another major development in the conservation programs arena occurred in 1956 with the creation of the Great Plains Conservation Program (GPCP). 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).
In the years since the creation of the ACP and GPCP, 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 address natural resource and environmental concerns associated with various aspects of agricultural production. More 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 been given authority by Congress to create regulations implementing the requirements of the federal law. In 2024, the Supreme Court of the United States issued two rulings that are expected to have a major impact on how judges decide cases challenging those regulations and that agency authority.
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 in situations where a court had 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.
Loper Bright formally 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 of time during which a party may file a lawsuit challenging federal agency actions. According to 28 U.S.C.S. § 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 action becomes “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 the full effect of these two rulings remains to be seen, it is highly likely that the agricultural industry will be impacted by the Supreme Court’s decisions. Importantly, the rulings fundamentally change how courts will resolve lawsuits challenging agency regulations for misinterpreting the agency’s statutory authority. Impacts are most likely to be felt in areas of the law, such as conservation programs, dominated by statutes with relatively ambiguous language where Congress has relied on agency regulations to fill in specifics.
Types of Programs
Conservation programs can be divided into two categories: “land retirement” and “working lands” programs. Land retirement programs require certain agricultural lands to be taken out of agricultural production and placed into a conservation-oriented use that is commensurate with the program in which the land is enrolled. Working land programs also require that certain conservation-oriented practices be carried out on agricultural lands. These programs differ, however, in that they require the 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). In recent years, however, 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 of which 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. The predominant focus of CRP is to dramatically reduce the amount of soil erosion derived from agricultural production. Under CRP, producers enter into contracts for 10 to 15 years. The Farm Service Agency administers CRP with assistance from the NRCS. Currently, over 22 million acres of agricultural lands 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 Agricultural Land Easements component of the program 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 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 that provides technical and financial assistance to agricultural producers to address natural resource concerns and deliver environmental benefits. Some of the benefits include improved water and air quality, conserved ground and surface water, reduced soil erosion, and improved or created wildlife habitat. EQIP contains 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. EQIP is administered by the NRCS.
The Conservation Security Program (CSP) is a voluntary working lands program that 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. These programs are administered by the NRCS.
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.