AuthorKonopacky, Jamie
PositionTwenty-First Century Food Law: What's on Our Plates?

Current approaches to Clean Water Act and farm bill conservation programming are not effectively addressing agricultural runoff in the United States. Waters in the United States are reeling from the effects of nutrient pollution. Clean Water Act and farm bill policies can be revised and integrated to support a small-scale watershed planning and implementation approach that will more effectively restore nutrient-impaired waterbodies. This Article provides an overview of relevant foundational planning principles and complex problem-solving theories and provides concrete Clean Water Act and farm bill policy recommendations, which are rooted in on-the-ground state and local level policy and project experience.

  1. INTRODUCTION 648 II. PRINCIPLES: SOLVING COMPLEX SOCIAL ISSUES 653 III. THE FRAMEWORK 657 A. Revised Small-Scale Watershed Planning Approach to State Clean Water Act Programming 659 1. Overview of Clean Water Act Total Maximum Daily Load and Nonpoint Programs 661 2. Recommendations for State Clean Water Act Programming 662 a. Section 303(d) Programming 662 b. Nonpoint (Section 319) Programming 666 c. HUC 12-Scale Planning 668 d. Site-Level Whole Farm Conservation Plans 673 B. Revised Farm Bill Programming 675 1. Relevant Farm Bill Programs: History and Program Overviews 675 a. History 676 b. Programs 678 i. Conservation Compliance 678 ii. Conservation Easements 679 iii. Conservation Reserve Program 680 iv. Working Lands Programs 680 v. Other Programs 681 vi. Crop Insurance 682 2. Recommendations for Farm Bill Conservation and Crop Insurance Programs 683 a. Conservation Compliance 683 b. Crop Insurance 684 c. Resource Prioritization Through the Watershed Approach 685 d. Resource Allocation 687 e. Streamlining Administration and Revitalizing Technical Assistance 688 f. Transparency, Technology Requirements, and Public Research 690 IV. CONCLUSION 692 "Out beyond ideas of wrongdoing and right-doing there is a field. I'll meet you there." (1) "[W]e should worry less about whether programs are 'regulatory' or 'voluntary' and more about whether the programs are environmentally sound, fair, and cost-effective. " (2) I. INTRODUCTION

    Despite decades of implementation of the Clean Water Act (3) (CWA) and Farm Bill Conservation Title programs, (4) including tremendous investment of public resources, (5) we still do not have clean water in the United States. In fact, our waters are reeling from the effects of phosphorus and nitrogen nutrient pollution. (6) Hypoxia in estuaries has significantly increased, and over half of the estuaries in the United States are hypoxic in any given year. (7) Two prime examples are the iconic Chesapeake Bay, with a dead zone that scientists predict will be the size of 3.2 million Olympic-size swimming pools in 2017, (8) and the Gulf of Mexico, with a dead zone measured to be the size of New Jersey--8,776 square miles--this past summer. (9) Moreover, in 2013, the United States Environmental Protection Agency (EPA) estimated that in the nation's total stream length, high concentrations of nitrogen and phosphorus are present in 28% and 40% of streams, respectively. (10) Although there are three main contributors to nutrient water pollution--wastewater treatment plants (POTWs), urban stormwater (MS4s), and agricultural runoff (11)--agricultural runoff has been cited as both the leading source and the greatest challenge. (12)

    Our lack of progress in restoring nutrient-impaired waterbodies is not surprising. Relevant CWA planning and farm bill conservation programs have lacked sufficient funding (13) and implementation, and have focused on the wrong metrics. (14) Specifically, for many years, EPA gauged the success of the CWA Total Maximum Daily Load (TMDL) planning program based on the number of TMDLs executed, (15) and the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS), which implements the bulk of Farm Bill Conservation Title programs, has focused on the number of conservation contracts executed with producers. (16) Consequently, over 50,000 TMDLs have been executed, (17) but we have very little understanding of whether completed TMDLs have led to the implementation of agricultural land use practices and improved water quality. (18) Similarly, the number of conservation contracts has skyrocketed, (19) with little or no focus on whether funded conservation practices help to achieve water quality goals identified in TMDLs or other watershed plans, or how the practices help, if at all, to restore impaired waterbodies. (20) Instead of bean counting TMDLs and conservation contracts, achieving healthy watersheds will require an integrated approach that promotes productivity and measurable water quality improvements.

    Rather than amending CWA regulatory permit programs to include agricultural producers or mandating that agricultural producers implement TMDLs, this Article recommends revising and integrating voluntary CWA planning and farm bill conservation programs to carry out a voluntary small-scale watershed planning approach to address nutrient pollution. This revised, voluntary planning approach is practical because in the current political climate, it is highly unlikely that Congress will amend the CWA permit program to include agricultural sources or make TMDL implementation mandatory. (21) Moreover, previous efforts to regulate agricultural runoff have not always been successful, (22) and it is not clear that a regulatory solution would be effective given the diffuse and variable environmental impacts of agricultural production, economic realities of farming, (23) and the unique treatment of agriculture in our federal policy and political history. (24) The approach is also necessary because although farm bill conservation programs have helped implement conservation practices on a significant number of acres in the United States, (25) these programs have generally been unable to aggregate conservation implementation within watersheds in a manner that restores water quality impacted by agricultural runoff. (26)

    In this Article, we set forth our initial synthesis for a Healthy Watershed Policy Framework (the Framework), which integrates voluntary CWA planning and farm bill conservation programming. The Framework draws from previous and current watershed planning policy and practice, and also builds on our research and previous work, which recommends a hydrologic unit code (27) (HUC) 12 watershed planning approach for addressing nutrient water quality impairments, as well as a reform of conservation programs to improve their environmental efficacy. (28) We have included graphics, actual watershed maps, and planning examples to help elucidate the Framework. The Framework and accompanying visuals are based, in part, upon real-world efforts in Wisconsin, Iowa, and Kansas. We intend for the Framework and visuals included in this Article to create a blueprint that is useful for federal, state, and local agencies, and other stakeholders addressing nonpoint source (NPS) pollution. This blueprint is intended to be iterative--as is any good design process--in order to incorporate lessons learned.

    Although robust academically, we have conceived of this piece with an eye toward practitioners as well as watershed stakeholders and policymakers, with the goal of facilitating their efforts at improving water quality. This Article is organized as follows: in Part II we set forth key principles that undergird the Framework and are exhibited in the real-world examples we reference. In Part III, we describe the Framework process. And, in Part IV, we conclude with recommendations for policy reforms needed to achieve healthy watersheds.


    Water pollution from agricultural NPSs is a complex social problem. Agricultural NPS pollution is highly influenced by topography, soil type, precipitation, hydrology, farm practices, crop type, and agricultural markets. (29) In other words, agricultural NPS pollution is born of a complex system comprised of many interconnected variables. Solving complex problems like agricultural NPS pollution requires a highly coordinated systems approach. In this Part, we provide background on systems thinking and problem-solving as a foundation to further elucidate the Framework presented in Part III. Relatedly, we then set forth principles we have discerned from our clean water and food systems research that are indicative of successful complex problem-solving in this context.

    The study of complex systems arose over the last half of the 20th century across many disciplines in an effort to better understand phenomena and solve challenging problems. (30) The systems approach was in counterpoint to reductionist or linear analysis, which had failed to adequately explain the behavior of both natural and human-created phenomena. (31) A key proponent of system thinking was the scientist Donella Meadows. (32) Meadows is known for her influential book Limits to Growth, based on her work modeling global trends on population, economics, and environment at the Massachusetts Institute of Technology. (33) She espoused the idea that by thinking in systems, one is better able to see the component parts and their interactions and, therefore, design effective interventions or solutions that minimize unintended negative consequences. (34)

    Around the same time Meadows's work was gaining popularity, the concept of design thinking as a methodology for creating solutions was evolving. (35) Design thinking is not about how things look but is a process to discover solutions and opportunities. (36) Although the tools and techniques used in design thinking vary, the core of the process is the same and can be summarized by Figure 1.

    The Framework we are presenting in this Article is informed by both systems and design thinking. Through these lenses, we have worked to create a policy framework for addressing...

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