Agricultural Law: New Directions in Regulation
| Publication year | 1992 |
| Pages | 865 |
| Citation | Vol. 21 No. 5 Pg. 865 |
1992, May, Pg. 865. Agricultural Law: New Directions in Regulation
In some respects, agricultural law is defined by the class of clients involved in the production of food. Statutes single out farmers and ranchers as a class for special legislative treatment,(fn1) and agricultural law has some uniquely defining features. It reflects the regulation of land, capital and labor in food production.
However, agricultural regulation is atypical. Most industries are regulated to thwart the exercise of monopoly power. Agriculture is regulated to mitigate against the harsh effects of competition. In part, such regulation is justified as necessary to maintain an adequate, cheap food supply.
Recently, agricultural regulation has taken some new directions. For example, the Food, Agriculture, Conservation and Trade Act of 1990 ("FACTA"), better known as the 1990 Farm Bill, was recently adopted.(fn2) The bill reflects an effort to reduce the federal role in the farm and food support program. It also introduces an environmental ethic as a principal goal of federal regulation.
This article identifies some of the important new directions in federal agricultural regulation to enable practitioners to serve their clients more effectively. It also provides a legal background to address client problems in water, toxic liability, conservation which includes wetland and soil protection regulation, water quality and grazing fees. The article focuses on new developments in food safety and inspection and farm credit changes, including the creation of a "farmer's bill of rights." Finally, a short summary is provided of the problems arising in biotechnology research and development. Practitioners should not neglect to examine state laws which have companion or additional features dealing with these issues.
Agricultural regulation has a high profile. Describing it's importance is a useful tool when discussing agricultural policy. The figures below are compiled by the United States Department of Agriculture ("USDA") National Agricultural Statistics Service in Lakewood. However, it should be noted that there is a lag in reporting figures because marketing continues into the following year. For example, the 1989 farm crop and livestock is marketed throughout 1990, and the 1990 farm crop and livestock are marketed throughout 1991. This means statistics for each farm year are from eighteen to twenty-four months behind the harvest. The 1990 statistics are preliminary estimates.
Colorado agriculture is important to the state's economy. The net income for Colorado's 27,000 farm and ranch operators totaled $952.3 million in 1989.(fn3) Preliminary figures for 1990 show the number of farm and ranch operators declined to 26,500. Gross farm income in 1989 was $4.54 billion. In Colorado, total farm assets in 1989 were $18.2 billion, with total farm debt of $3.1 billion.
Despite these impressive figures, the average total net farm income in Colorado in 1989 was $35,270. Net individual income in Colorado has varied as much as $5,000 from one year to the next. The debt/equity ratio declined from 21.2 in 1989 to 20.6 in 1990 and the debt/assets ratio declined to 12.1, down from 17.5 the previous year. Livestock and livestock products are the major contributor to Colorado's cash receipts with a total income of $2.65 billion, representing 68 percent of the total cash receipts. Preliminary 1990 figures show an increase of livestock cash receipts to $3.02 billion.
Familiarization with such statistics can assist attorneys in describing the importance of promoting carefully drafted agricultural regulation to the judiciary or elected representatives. It also means that any changes in such regulation must be closely followed.
An environmental scheme focusing attention on agriculture is the Clean Water Act ("CWA").(fn4) The CWA regulates surface water, while the control of ground water is currently left to the states. The CWA establishes standards for point sources and requires states to promulgate ambient water quality standards for approval by the Environmental Protection Agency ("EPA").(fn5) It also recognizes "point" and "nonpoint" sources of pollution. A "point source" is defined as
any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, fissure, container, rolling stock, concentrated animal feeding operation or vessel ... from which pollutants are or may be discharged. This term does not include return flows from irrigation agriculture.(fn6)
Nonpoint source pollution is not defined in the statute. Nonpoint pollution generally can be described as the discharge of waste into a body of water which cannot be located as to a specific source, as with sediment or certain agricultural chemicals. Control of nonpoint pollution is left to the states through enforcement of state water quality standards.(fn7) Improper use of organic and commercial fertilizers or pesticides are a source of concern. Regulations governing water pollution have been integrated into a single program called the Water Quality Management Process. The Colorado Water Quality Control Act provides a comprehensive scheme for the regulation of discharges of pollutants into the waters of the state.(fn8)
The EPA has released a "Summary Outline" regarding these issues. The issues identified for consideration in the CWA include a new emphasis on "risk-based" priority setting, ecological protection and pollution prevention. Also suggested is a need to explore the use of market forces in protecting water resources.
The CWA's focus is on ecology.(fn9) The EPA suggests an emphasis on health and protection of natural resources, ecosystems, wildlife, endangered species and biological diversity, rather than concentrating, as it has in the past, on environmental threats to human health. The EPA's Science Advisory Board report recommends four "relatively high-risk" environmental priorities: changes in climate, ozone depletion, alteration of wildlife and habitat extinction. The category that includes herbicides and pesticides and toxic pollutants is given a relatively medium risk. Ranked as "relatively low risk" are ground water pollution, acid runoff to surface waters, thermal pollution and oil spills.
The report identified the leading environmental risks to human health as: ambient air pollution from vehicles; occupational exposure to toxic chemicals, including agricultural chemicals; and pollution of drinking water from lead, chloroform or microorganisms. The report raises questions as to whether the point/nonpoint distinction should be replaced with a standard based on significant/nonsignificant sources. Dry weather flows (flows arising out of cloudbursts) are also being addressed with water quality and water quantity standards.
Both Congress and the Bush administration are considering removing the current exemption of irrigation return flows from the National Pollution Discharge Elimination System ("NPDES"). Irrigation contamination with return flows of trace elements became a major concern in the 1980s. The focus is on dead and deformed birds resulting from agricultural drainage flows raising the selenium levels in lakes and ponds, such as those discovered at California's Kesterson Reservoir. To date, twenty-two sites in thirteen western states, including Colorado, have been identified as problems, but only California, Nevada, Utah and Wyoming have warranted detailed research.(fn10)
Finally, the EPA each year publishes specific enforcement priorities. Bad faith reporting is a priority for enforcement.(fn11) The EPA also investigates destruction or falsification of documents which it feels threatens the integrity of the reporting system. In the case of a Nabisco plant manager in Washington state, a violation of the CWA generated a sentence of one year and one day in prison, without probation, and a fine of $5,000.(fn12) Enforcement is increasing. In 1989, the EPA undertook more than 4,000 administrative actions, for an agency record, and assessed penalties of $34.9 million.(fn13)
Another area important to practitioners in agricultural law is wetlands protection.
In 1972, Congress enacted the Federal Water Pollution Control Act ("FWPCA").(fn14) FWPCA pre-empted regulatory authority over discharges into navigable waters and expanded the definition of navigable waters to mean the waters of the United States,(fn15) including any water course which could affect water quality.(fn16) At the same time, Congress continued a permit requirement for the discharge of dredged and fill into navigable waters under the Act's § 404,(fn17) building on the Rivers and Harbors Act of 1899.(fn18) In 1975, the Army Corps of Engineers, which administered Rivers and Harbors Act permits, issued regulations implementing § 404 and requiring permits before landowners or others could discharge fill material into wetlands.(fn19) The Corps acted on a series of court rulings that expanded the scope of federal control over wetlands.(fn20) In 1977, Congress amended § 404, thereby establishing the nation's first wetlands permit controls.(fn21)
The Corps will grant a § 404 permit only for certain activities and only after the state in which dredged or fill activities is to be located...
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