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Soil Health and the Law

State and Federal Legislation

Topics

State Legislation

Today, several states have healthy soils legislation, recognizing the urgency of the threat of climate change, the prominent role that land management plays in ecosystem restoration and food production, and the need for local efforts in light of today’s federal political climate, and the reality that local solutions hold the greatest potential for climate remediation. Examples include California, Maryland, Hawaii, and most recently New Mexico. Healthy soils programs exist in other countries as well, such as Australia, as do opportunities for farmers to participate in carbon markets, such as in Wales. While existing programs vary quite a bit, they involve a guidepost goal of encouraging farmers to adopt regenerative agriculture principles in their farming practices, decreasing financial barriers to entry and compensating those who provide valuable ecosystem services to the public. Policies involve varying metrics for verifying habitat improvement and other outcomes.

Several other state legislatures have seen repeated efforts to pass healthy soils legislation, agricultural water quality bills, or regenerative agriculture bills, such as Vermont, Massachusetts, Connecticut, and Maine. Beyond soil-specific legislation, many states and countries have created agri-environment schemes which aim to facilitate environmental stewardship on agricultural land. Examples include payment for ecosystem services programs, environmental stewardship programs, and the creation of water funds.

Further still, there are many examples of community-led resource management plans that evolved from the ground up to solve conflicts between industries, environmentalists, and regulators, allowing legislators to support local solutions that effectively support the public interest. Examples include Maine’s co-management lobster industry law,  Kansas’ watershed restoration plans, and most recently, California’s ongoing initiative to solve water scarcity issues by creating water management districts to solve the problem at the local level.

Research shows that many farmers are stewards of the land and are struggling to continue to provide the benefits of stewardship because of financial barriers. Others intend to steward the land but encounter financial, technical, physical, cultural, or regulatory barriers impeding stewardship. Healthy soils programs create a variety of tools – including financing and technical assistance – to bridge this gap.

States that have passed healthy soils legislation include Hawaii (HB 1578, 2017), Maryland (HB 1063, 2017), Oklahoma (HB 1192, 2001), California (SB 859, 2016), Utah (HCR 8, 2015), and New Mexico HB 204 and SB 218 (2019).

Additionally in 2019, legislation was proposed in Washington (SB 4937, HB 2095), Illinois (SB 1980, HB 2737, HB 2819), Connecticut (HB 6647), Nebraska (LB 243, LB 729, LB 283), Iowa (HSB 78, HF 102), and Massachusetts (SD 1438, HD 3065).

Legislation has been proposed in the past in states like Vermont (S43, 2017) and New York (A3281, 2017). Legislatures in both states are among several across the country engaging in ongoing consideration of various soil health and conservation policies.

For further information on healthy soils legislation in the United States, see Soil4Climate’s ongoing monitoring efforts located at https://www.soil4climate.org/news/healthy-soils-legislation-update-may-2019. 

Spotlight: California's Healthy Soils Program

Background: Healthy Soils Initiative

In 2015 during his inaugural address, California Governor Jerry Brown announced the birth of a Healthy Soils Initiative, a collaboration of state agencies and departments to promote land stewardship through healthy soils. The Healthy Soils Initiative was the precursor to the Healthy Soils Program, which was enacted in 2016 through Senate Bill 859.

Healthy Soils Initiative Actions

  • Protect and restore soil organic matter in California’s soil- Work with stakeholders to establish short and long-term goals for building soil organic matter in California’s working soil landscapes.
  • Identify sustainable and integrated financing opportunities to facilitate healthy soils- Develop and fund incentive programs with new and existing resources to promote healthy soil mechanisms.
  • Provide for research, education, and technical support to facilitate healthy soils- Secure resources to fund academic institutions to prepare databases of soil management, research, and on-farm applications. Secure funding to support scientific research programs that promote healthy soils.
  • Increase governmental efficiencies to enhance soil health of public and private lands- Increase use of compost throughout the state to improve soil health. Commit to 100 composting and anaerobic digestion facilities in California by 2020.
  • Promote interagency coordination and collaboration to support soils and related state goals- Coordinate activities to facilitate conservations around soil and climate health.

What is the Healthy Soils Program?

The California Department of Food and Agriculture (CDFA) coordinates the Healthy Soils Program to provide farmers incentives to adopt soil health practices that reduce greenhouse gas emissions. The program has two components: the HSP Incentives Program and the HSP Demonstration Projects.

HSP Incentives Program

The Incentives Program provides financial assistance for the implementation of soil conservation management practices. The successes will be measured with quantification methodology and tools that are developed by the California Air Resources Board (CARB), CDFA, and USDA-NRCS, and soil improvement will be measured based on soil organic content.  In 2018, the program requested $8,667,596 in grants for 194 projects.

HSP Demonstration Project

The HSP Demonstration Projects showcase how farmers and ranchers in California implement healthy soils practices and create a platform to promote widespread adoption of conservation practices throughout the state. There are two types of projects: Type A and Type B. Type A projects demonstrate the implementation of conservation practices, measure GHG emission from fields, and conduct cost/benefit analysis of proposed management practices. Type B projects demonstrate the implementation of Healthy Soils Programs conservation practices and conduct cost/benefit analysis of proposed management practices. In 2018, CDFA requested $3,816,121 to award 23 demonstration projects.

Review and Evaluation Process

Applications must undergo multiple review processes. CDFA conducts an internal administrative review, and industry experts do an external technical review. The projects each have a scoring criterion that gives points to standards such as; feasibility, sustainability, emission reduction benefits, co-benefits, conservation, effects of communities, and other additional considerations.

How is the Healthy Soils Program funded?

HSP received $7.5 million in 2017 from cap and trade proceeds. In 2018 the California Department of Food and Agriculture was appropriated $10 million from the California Drought, Water, Parks, Climate, Coastal Protection, and Outdoors Access for All Act; and an addition $5 million from cap and trade proceeds to fund the HSP incentive program and HSP demonstration projects.

References

https://www.nyuelj.org/2018/02/soil-conservation-in-california-an-analysis-of-the-healthy-soils-initiative/
https://www.cdfa.ca.gov/oefi/healthysoils/
http://calclimateag.org/hsp/
https://www.cdfa.ca.gov/oefi/healthysoils/docs/HealthySoilsFactSheet.pdf
https://www.cdfa.ca.gov/climatesmartag/docs/soil/Chen.pdf

Federal Policy

Title II: Conservation

Federal Policy and Soil Conservation

Title II of The Farm Bill deals with conservation. The programs within focus on environmental stewardship and encourage better land management practices. The are administered through the Natural Resources Conservation Service (NRCS) and the Farm Service Agency (FSA) in the U.S. Department of Agriculture (USDA). The following programs received reauthorized funding in the 2018 Farm Bill.

Environmental Quality Incentives Program (EQIP) 

EQIP provides financial cost-share and technical assistance to farmers and ranchers that implement conservation practices on working lands.  Through EQIP, farmers can voluntarily implement conservation practices which NRCS will co-invests. Widespread practices utilized in the program are; cover crops, forest stand improvement, prescribed grazing, and irrigation. The type of land eligible for EQIP includes cropland, rangeland, pasture, nonindustrial private forest land, and other farms/ranch lands.

Conservation Stewardship Program (CSP)

CSP is offered for working lands and is the most extensive conservation program in the U.S. with over 70 million acres of productive agricultural and forested land enrolled in the program. CSP provides technical assistance to promote the conservation and improvement of soil, water, air, energy, plant, and other purposes on private working lands and tribal lands. CSP pays producers to improve, maintain, and actively manage conservation activities currently in place during the application process and to adopt new conservation practices throughout the life of the contract. CSP offers contracts that are five years long with the option of extension, aiming to pay farmers for actively managing, maintaining, and expanding conservation practices.

Agricultural Conservation Easement Program (ACEP)

ACEP helps landowners, land trusts, and others protect, enhance, and restore working lands, grasslands, and wetlands through long-term conservation easements. Agricultural easements protect the long-term health and viability by preventing working lands from going into non-agricultural uses. Land that is protected by land easements can enhance historic preservation, wildlife habitat, environmental quality, and protection for open space. NRCS provides financial assistance to purchase agricultural land easements that preserve agricultural use and conservation of land. NRCS may contribute up to 50 percent of the fair market value of the agricultural land easement.

Regional Conservation Partnership Program (RCPP)

RCPP promotes coordination between NRCS and its partners to deliver conservation assistance to producers and landowners. Partner entities submit project proposals, and when NRCS selects proposals, farmers can apply to participate in an RCPP project. RCPP projects focus on a particular resource of concern in a given region or farmers within an area interested in pursuing innovative conservation objectives (i.e., nutrient reduction in impaired watersheds or adopting cover crops of soil health). The 2014 Farm Bill after consolidated four previously separate programs: The Cooperative Conservation Partnership Initiative (CCPI), Agricultural Water Enhancement Program (AWEP), Chesapeake Bay Watershed Initiative (CBWI), and Great Lakes Basin Program (GLBP) and recreated RCPP.   The 218 Farm Bill modified funding pools with RCPP-allocating 50 percent of total funding for projects located in critical conservation areas (CCAs), and 50 percent to multi-state projects administered at a local level.

References

https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/financial/eqip/

http://sustainableagriculture.net/publications/grassrootsguide/conservation-environment/environmental-quality-incentives-program/

https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/financial/csp/

https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/technical/nra/rca/

https://fas.org/sgp/crs/misc/RS22131.pdf

http://sustainableagriculture.net/publications/grassrootsguide/conservation-environment/cooperative-conservation-partnership-initiative/

Commodity Support Programs

Relevant Titles

As of June 28th, 2019, American farmers had planted 309 million acres for production. Of this, 91.7 million was in corn, 80 million in soybeans, 45.6 million in wheat, and 13 million in cotton. Together these four commodities represent roughly 75% of planted acres in the US this year and roughly 12% of the total US land mass. Under Title I commodity support programs, the Congressional Budget Office (CBO) estimated annual spending is three billion dollars in direct cash payments to farms enrolled as one of these four commodities. CBO estimates an additional four billion in spending on these same commodities via the new Market Facilitation Program’s payments responding to the impact of trade disputes.

Commodity support spending is also authorized under Title 11, which covers insurance programs for those same crops and Title 3, which covers programs encouraging international trade of commodities. The Farm Bill also authorizes the Farm Service Agency to issue seven distinct types of loans to farmers structured to meet different business needs. These are mostly made to commodity growers.

None of these titles discuss soil health directly, though all have a major impact. Commodity crops are often produced in large monoculture operations utilizing practices with a host of negative environmental impacts. Tillage exacerbates erosion and greenhouse gas emissions, use of chemical fertilizers and pesticides threaten water quality, and a lack of living roots in the soil year-round adds to all of this. Thus, federal spending that directly supports commodity production – and disincentivizes other more diversified operations – indirectly supports production that damages soil health.

There is a federal attempt to curb the worst impacts of policy on soil health, although it is relatively limited in scope. Since 1985, there has been a conservation compliance provision in the Farm Bill. What this means today is that commodity farmers must refrain from or submit a detailed plan for planting on designated Highly Erodible Land (HEL), on a drained wetland, or if they plan to drain a new wetland. If farmers violate this rule, they can lose federal crop insurance premium support. While this a huge step towards protecting the most vulnerable and important farmland, it still leaves the vast majority of tillable acreage unprotected. The other conservation programs contained in the Farm Bill that apply to all acres are voluntary and therefore impact far fewer acres than commodity support programs.

An analysis of the 2017 Census of Agriculture reveals that roughly 11 million acres are in completed or active Environmental Quality Incentive Program (EQIP) contracts. Assuming that this number is roughly the same in 2019, that means that EQIP, our largest federal working lands conservation program, at most only managed to touch about 3% of acres planted for production in 2019. This shocking number is all the more alarming when compared to acres impacted by commodity support programs. Base acres enrolled after the enactment of the 2014 Farm Bill give us the clearest measure of the physical reach of commodity support programs as enrolling those acres is a requirement to collecting support payments. Base acres enrolled for the top four commodities of corn, wheat, soybeans, and cotton were 96.7 million, 63.7 million, 54.5 million, and 17.6 million respectively. While not a perfect measure, this clearly indicates that a high percentage of ground planted annually, likely well over 90%, is touched by the commodity support program. This shows that a high percentage of farms are currently supported in their production of soil health damaging commodities while precious few are properly incentivized to use our current best federal tools for building soil health nationally.

References

National Agricultural Statistic Service (2019). Acreage, Grain Stocks, Rice Stocks 6/28/29. https://www.nass.usda.gov/Newsroom/Executive_Briefings/2019/06-28-2019.pdf.

Coppess et al. (2018). The Farm Bill Stale Mate, Part 1: Commodity Assistance. https://farmdocdaily.illinois.edu/2018/09/the-farm-bill-stalemate-part-1-commodity-assistance.html.

Union of Concerned Scientists. (2017). Rotating Crops, Turning Profits. https://www.ucsusa.org/sites/default/files/attach/2017/05/rotating-crops-report-ucs-2017.pdf.

https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/FactSheets/2015/conserve_compli_insure_apr2015.pdf.

Newton. (2019). EQIP and CSP Programs in the 2018 Farm Bill. https://www.fb.org/market-intel/eqip-and-csp-conservation-programs-in-the-2018-farm-bill.

Zulaf. (2017. Comparison and Assessment: Payments on Base vs. Planted Acres, 2014-2016 Crops. https://farmdocdaily.illinois.edu/2017/02/comparison-assessment-payments-base-planted.html.