Best if printed in landscape.
of our natural resources of soil, water and air has been addressed by
our laws for more than 70 years; environmental concerns have been the
focus of attention for approximately 40 years. These efforts have
culminated with laws that often impact the use of our natural resources,
including privately-owned resources, such as our land. This web
page introduces some legal limitations on how land and water can be used. The discussion also reviews the limit of government authority to direct the use of privately-owned land.
begin this discussion, it is helpful to recall that government is authorized
to exercise police power; that is, to impose requirements, restrictions,
and limitations on the activities of individuals to promote the health,
safety and general well-being of society.
[police-power] restrictions are the burdens we all must bear in exchange
for '"the advantage of living and doing business in a civilized community."'" North Dakota Supreme Court in Southeast
Cass Water Resource Dist. v. Burlington Northern Railroad, 527 N.W.2d
884 (N.D. 1995) citing United States Supreme Court in Ruckelshaus
v. Monsanto Co., 467 U.S. 986, 1007 (1984).
proper exercise of police power does not entitle an individual who is
adversely impacted by the government action to be compensated.
city generally need not compensate a landowner when a valid police-power
regulation affecting the use of land decreases the value of the property." Buegel
v. City of Grand Forks, 475 N.W.2d 133 (ND 1991).
But there is a limit to government authority to regulate activities.
that deny the property owner all "economically viable use of his land"
constitute one of the discrete categories of regulatory deprivations
that require compensation ... [T]he question [of whether the landowner
is to be compensated] must turn ... on citizens' historic understandings
regarding the content of, and the State's power over, the "bundle of
rights" that they [the citizens] acquire when they [the citizens] take title to property. Because
it is not consistent with the historical compact embodied in the Takings
Clause that title to real estate is held subject to the State's subsequent
decision to eliminate all economically beneficial use, a regulation
having that effect cannot be newly decreed, and sustained, without compensation's
being paid the owner. However, no compensation is owed ... if the State's
affirmative decree simply makes explicit what already inheres in the
title itself, in the restrictions that background principles of the
State's law of property and nuisance already place upon land ownership." Excerpts from syllabus of Lucas
v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (U.S. Supreme
government action that is not a proper exercise of police power will likely
be considered a taking entitling the impacted individual to be
compensated or to have the government action reversed. Thus the
issue often becomes "was the government action a proper exercise
of police power or was it a taking?"
web page addresses the question of "what limitations has federal,
state and local governments imposed on my activities for the purpose of
preserving our natural resources and environment."
can a landowner do on their land? What restrictions might be imposed on
a landowner's activities on their land?
A general rule
could be "a landowner is allowed to do any activity that is not prohibited." Thus the focus of this questions is on prohibitions or restrictions.
- Before the government
took an active role in directing the use of private property, it was
primarily neighbors who would take legal action if someone's activities "got out of line."
nuisance (and tort law, in general) was the primary law for resolving
disputes over activities on private property -- "I cannot do something
on my land that interferes with your use and enjoyment of your land,"
such as, I cannot generate an unacceptable amount of smoke, noise,
odor, dust, etc. Nuisance law is generally enforced by adjacent
landowners -- not government (emphasis on generally, there are always
- Tort law allows a neighbor to influence how a landowner might use their property. For example, tort law could prohibit a landowner from using the property for a livestock feedlot if the neighbor successfully argues that the noise, odor and dust from the livestock operation would be a nuisance.
- A secondary impact of preventing a nuisance is the broader implications for air and water quality, and the use of land.
- Will there be a resurgence of tort law in addressing environmental problems? For example, consider the role of
Natural Resource Trustees under the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the
Oil Pollution Act (OPA). Will claims of bodily injury, property damage, and diminution in property value, based on tort theories of negligence, trespass, nuisance, strict liability, conspiracy and fraud, breach of duty to warn, etc provide the foundation for future tort actions? Note however, that the plaintiff in these cases are public entities, not private individuals.
"Each coterminous owner is entitled to the lateral and adjacent
support which that owner's land receives from the adjoining land,
subject to the right of the owner of the adjoining land to make
proper and usual excavations on the same for purposes of construction
on using ordinary care and skill, taking precautions to sustain
the land of the other, and giving previous reasonable notice to
the other of the intention to make such excavations. " N.D.C.C.
line -- a landowner cannot dig a hole so large or so close to
the property line that it will cause the neighbor's land to
slide into the opening.
But does tort law effectively address environmental issues?
It is difficult for one person to rely on tort law to resolve environmental issues. The injured person would need to individually sue all persons who could possibly have contributed to the environmental concern, such as all up-stream water users who might have somehow contributed to polluting the water that is reaching the injured plaintiff. For this reason, tort law was NOT an effective legal solution to environmental concerns.
recently (e.g., during the past century), government at all levels (federal,
state and local) have taken a more active role in directing land use. This
is different than relying on neighbors to enforce a concept like nuisance. The
following sections present examples of laws that direct how individuals
can use their private property.
Zoning by local government
the purpose of promoting health, safety, morals, public convenience, general
prosperity, and public welfare, the board of county commissioners of any
county may regulate and restrict within the county ... the location and
the use of buildings and structures and the use, condition of use, or
occupancy of lands for residence, recreation, and other purposes."
- Note the language
in the statute emphasizing that the purpose of this authority aligns
with the general concept of police power; that is, promoting health,
safety, morals, etc.
- Also note the breadth of the county's authority, that is, the authority to regulate and restrict .. the location and use of buildings and structures, and the use of lands for other (any?) purposes. This state statute grants the local government (the county, in this statute) broad authority to regulate activities on private land.
second example: "For the purpose of promoting health, safety,
morals, public convenience, general prosperity, and public welfare,
the board of county commissioners of any county is hereby empowered
to regulate and restrict ... the subdivision of land (N.D.C.C. §11-33.2-02).
A third example: "A
board of county commissioners may regulate the nature and scope of concentrated
feeding operations permissible in the county; however, if a regulation
would impose a substantial economic burden on a concentrated feeding operation
in existence before the effective date of the regulation, the board of
county commissioners shall declare that the regulation is ineffective
with respect to any concentrated feeding operation in existence before
the effective date of the regulation." N.D.C.C. §11-33-02(2).
- Note the limit
the legislature placed on the county commissioners ("however, if a regulation...")
-- was that restriction in the statute due to political "urging" that
the legislature not grant the counties too much authority, or was it
due to the legislature recognizing the Constitutional limits that the
county must comply with, or was it perhaps a combination of these and
regulation may not preclude the development of a concentrated feeding
operation in the county. A regulation addressing the development of a
concentrated feeding operation in the county may set reasonable standards,
based on the size of the operation, to govern its location." N.D.C.C.
"For purposes of [N.D.C.C. §11-33-02], "concentrated feeding
operation" means any livestock feeding, handling, or holding operation,
or feed yard, where animals are concentrated in an area that is not normally
used for pasture or for growing crops and in which animal wastes may accumulate,
or in an area where the space per animal unit is less than six hundred
square feet [55.74 square meters]. The term does not include normal wintering
operations for cattle. For purposes of this section, "livestock" includes
beef cattle, dairy cattle, sheep, swine, poultry, horses, and fur animals
raised for their pelts." N.D.C.C. §11-33-02(4).
board of county commissioners may not prohibit, through regulation, the
reasonable diversification or expansion of a farming or ranching operation."
- Note how this statute
codifies the idea that an existing activity that was not illegal at
the time it was initiated should not be substantially burdened by a
subsequent regulation. This is consistent with the U.S. Supreme Court
statements in the Lucas case that a regulation that eliminates
all economic value of a property right held by an individual is a taking.
In summary, state law often grants local government the authority to promote the health, safety and general well-being of the community through the use of "police power" to regulate activities on private land as long as the regulation does not "take" the individual's property rights.
Does zoning law effectively address environmental issues?
Arguably, local government can address environmental issues by controlling the use of land in the community to promote the health, safety and general well-being of the community (e.g., zoning). Two factors, however, render local zoning as an ineffective solution to environment:
- Local government's jurisdiction is limited to the city, township or county; environmental impacts move (e.g. polluted air and polluted water). Without a coordinated approach among adjacent local governments, one community's regulation of environmental impacts might be negated by an inconsistent environmental strategy of a nearby community.
- Environmental regulation is perceived as a cost to local businesses; that is, there is a cost associated with complying with environmental mandates. If one community imposes a regulation (cost?) on a business, will the business move to a community without such regulation and cost? Does unilateral regulation adversely impact the community's business climate? What economic incentive do community leaders have to risk driving businesses to other communities by imposing regulatory costs? For this reason, few communities are willing to aggressively regulate environmental concerns.
Does state law effectively address environmental issues?
The same economic question arises at the state level; why should a state regulate environmental concerns if the outcome is a risk that businesses will move to other states without such environmental costs?
Due to limited environmental regulation by state and local governments, the federal government began to address environmental issues in the late 1960s. Federal environmental laws are addressed in this section of the course.
The same question is now arising at the international level; why should a nation address environmental concerns if the outcome would be to drive businesses to other nations?
The next several topics describe U.S. federal laws that impact land use.
Congress has taken steps to reduce the risk that an animal or plant species
will become extinct. The relevant statute is the Endangered Species Act (ESA).
purposes of [the ESA] are to provide a means whereby
the ecosystems upon which endangered species and threatened species
depend may be conserved, to provide a program for the conservation of
such endangered species and threatened species, and to take such steps
as may be appropriate to achieve the purposes.
purpose of the ESA is to conserve "the ecosystems upon which endangered
and threatened species depend" and to conserve and recover listed species.
Under the law, species may be listed as either "endangered" or "threatened".
Endangered means a species is in danger of extinction throughout all
or a significant portion of its range. Threatened means a species is
likely to become endangered within the foreseeable future. All species
of plants and animals, except pest insects, are eligible for listing
as endangered or threatened." Source -- U.S. Fish & Wildlife Service;
ESA Basics -- Over 25 years of protecting endangered species.
- Congress set forth
findings, purposes, and policy to explain the role of the Endangered
The Congress finds that
species of fish, wildlife, and plants in the United States have
been rendered extinct as a consequence of economic growth and
development untempered by adequate concern and conservation;
other species of fish, wildlife, and plants have been so depleted
in numbers that they are in danger of or threatened with extinction;
species of fish, wildlife, and plants are of esthetic, ecological,
educational, historical, recreational, and scientific value to
the Nation and its people;
United States has pledged itself as a sovereign state in the
international community to conserve to the extent practicable
the various species of fish or wildlife and plants facing extinction
the States and other interested parties, through Federal financial
assistance and a system of incentives, to develop and maintain
conservation programs which meet national and international standards
is a key to meeting the Nation's international commitments and
to better safeguarding, for the benefit of all citizens, the Nation's
heritage in fish, wildlife, and plants."
purposes of this chapter are to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved, to provide a program for the conservation of such endangered
species and threatened species ..."
"... all Federal departments and agencies shall seek to conserve
endangered species and threatened species, shall utilize their authorities
in furtherance of the purposes of this [act, and] shall cooperate
with State and local agencies to resolve water resource issues in
concert with conservation of endangered species." 16
Agencies Administering the ESA
ESA is primarily administered by the "Fish and Wildlife Service (USFWS) in the Department of the Interior and the National Oceanic and Atmospheric Administration (NOAA)-Fisheries in the Department of Commerce..."
- Generally, USFWS manages land and freshwater species, while NOAA manages marine and "anadromous" species.
- Anadromous: Species that live their adult lives in the ocean but move into freshwater streams to reproduce or spawn (e.g., salmon).
Protection Agency (EPA) also has a role in administering the ESA.
- The EPA determines whether pesticide use in a certain geographic area may affect any listed species.
Process of Administering the ESA
"Under the ESA, species may be listed
as either endangered or threatened. “Endangered” means a species is in
danger of extinction throughout all
or a significant portion of its range. “Threatened” means a species is likely
to become endangered within the
foreseeable future. All species of plants
and animals, except pest insects, are
eligible for listing as endangered or
on declaring a species as endangered or threatened
"The ESA makes it unlawful ... "to harass, harm,
pursue, hunt, shoot, wound, kill, trap,
capture, or collect or attempt to engage in
any such conduct.” Through regulations, the term “harm” is defined as “an act
which actually kills or injures wildlife.
Such an act may include significant
habitat modification or degradation where it actually kills or injures wildlife
by significantly impairing essential
behavioral patterns, including breeding,
feeding, or sheltering.”"
habitat is a taking of an endangered species even if the habitat is located
on private land.
"The ESA also requires the designation
of “critical habitat” for listed species
when “prudent and determinable.”
Critical habitat includes geographic
areas that contain the physical or
biological features that are essential
to the conservation of the species and
may need special management or
protection. Critical habitat designations
affect only Federal agency actions or
federally funded or permitted activities.
Federal agencies are required to avoid“destruction” or “adverse modification”
of designated critical habitat."
Federal agencies are required to consult with USFWS before proceeding with a federal project that could affect an endangered species.
"Two-thirds of federally listed species
have at least some habitat on private
land. The FWS has developed an array
of tools and incentives to protect the
interests of private landowners while
encouraging management activities that
benefit listed and other at-risk species."
can receive a permit to take such
species incidental to otherwise legal
activities, provided they have developed
an approved habitat conservation plan
(HCP). HCPs include an assessment of
the likely impacts on the species from
the proposed action, the steps that the
permit holder will take to minimize and
mitigate the impacts, and the funding
available to carry out the steps."
landowners, corporations, state or local governments, or other non-Federal
landowners who wish to conduct activities on their land that might incidentally
harm (or "take") a species listed
as endangered or threatened must first obtain an incidental
take permit from the U.S. Fish and Wildlife Service."
- "To obtain [an incidental take] permit, the applicant must develop a Habitat Conservation Plan (HCP), designed to offset any harmful effects the proposed activity might have on the species. The HCP process allows development to proceed while promoting listed species conservation. "
- This page also describes the "No Surprises" Rule for private
- Note that the federal statute (like the state zoning statutes) is carefully written to not violate the Constitutional prohibition against taking private property without compensation.
"Safe Harbor Agreements (SHAs)
provide regulatory assurance for non-Federal landowners who voluntarily
aid in the recovery of listed species
by improving or maintaining wildlife habitat."
"It is easier to conserve species before
they need to be listed as endangered or
threatened than to try to recover them
when they are in danger of extinction
or likely to become so. Candidate
Conservation agreements (CCAs)
are voluntary agreements between
landowners—including Federal land
management Agencies— and one or
more other parties to reduce or remove
threats to candidate or other at-risk
species. Parties to the CCA work
with the FWS to design conservation
measures and monitor the effectiveness
of plan implementation."
of federal government efforts to provide incentives to preserve habitat
of endangered species.
of the scope of the Endangered Species Act --
Dakota Endangered Species Pesticide Management Program
"The United States Fish and Wildlife Service (USFWS) has listed seven species in North Dakota as threatened or endangered ... The species include three birds - piping plover (Charadrius melodus), least tern (Sterna antillarum) and whooping crane
(Grus americana); two mammals - black-footed ferret (Mustela nigripes) and gray wolf (Canis lupus); one fish - pallid sturgeon (Scaphirhynchus albus); and one plant - western prairie-fringed orchid (Plantanthera praeclara)."
Carefully consider the impact the Endangered Species Act has on private property.
Congress has declared its intent to preserve some federally-owned land
in its natural, unaltered state.
order to assure that an increasing population, accompanied by expanding
settlement and growing mechanization, does not occupy and modify all
areas within the United States and its possessions, leaving no lands
designated for preservation and protection in their natural condition,
it is hereby declared to be the policy of the Congress to secure for
the American people of present and future generations the benefits of
an enduring resource of wilderness. For this purpose there is hereby
established a National Wilderness Preservation System to be composed
of federally owned areas designated by Congress as "wilderness areas", and these shall be administered for the use and
enjoyment of the American people in such manner as will leave them unimpaired
for future use and enjoyment as wilderness, and so as to provide for
the protection of these areas, the preservation of their wilderness
character, and for the gathering and dissemination of information regarding
their use and enjoyment as wilderness; and no Federal lands shall be
designated as "wilderness areas" except as provided for in this chapter
or by a subsequent Act.
wilderness, in contrast with those areas where man and his own works
dominate the landscape, is hereby recognized as an area where the earth
and its community of life are untrammeled by man, where man himself
is a visitor who does not remain. An area of wilderness is further defined
to mean in this chapter an area of underdeveloped Federal land retaining
its primeval character and influence, without permanent improvements
or human habitation, which is protected and managed so as to preserve
its natural conditions and which (1) generally appears to have been
affected primarily by the forces of nature, with the imprint of man's
work substantially unnoticeable; (2) has outstanding opportunities for
solitude or a primitive and unconfined type of recreation; (3) has at
least five thousand acres of land or is of sufficient size as to make
practicable its preservation and use in an unimpaired condition; and
(4) may also contain ecological, geological, or other features of scientific,
educational, scenic, or historical value."
16 USC §1131
excerpts from The Wilderness
Society v. U.S. Fish and Wildlife Service, U.S. Court of Appeals,
9th Circuit, Filed December 30, 2003; Amended March 16, 2004.
impact may the Wilderness Act have on federally owned grazing lands?
is hereby declared to be the policy of the United States that certain
selected rivers of the Nation which, with their immediate environments,
possess outstandingly remarkable scenic, recreational, geologic, fish
and wildlife, historic, cultural, or other similar values, shall be
preserved in free-flowing condition, and that they and their immediate
environments shall be protected for the benefit and enjoyment
of present and future generations. The Congress declares that the established
national policy of dam and other construction at appropriate sections
of the rivers of the United States needs to be complemented by a policy
that would preserve other selected rivers or sections thereof in their
free-flowing condition to protect the water quality of such rivers and
to fulfill other vital national conservation purposes.
purpose of this chapter is to implement the policy of this title by
instituting a national wild and scenic rivers system, by designating
the initial components of that system, and by prescribing the methods
by which and standards according to which additional components may
be added to the system from time to time."
Source 16 USC §§1271 and 1272; 36
C.F.R. Part 297
C.F.R. Sec. 297.3 Definitions ... Wild and scenic river means a river
and the adjacent area within the boundaries of a component of the National
Wild and Scenic Rivers System pursuant to section 3(a) or 2(a)(ii) of
16 USC §1274(b) "... boundaries shall include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river..."
16 USC §1277(a)(1) "The Secretary of the Interior and the Secretary of Agriculture are each authorized to acquire lands and interests in land within the authorized boundaries of any component of the national wild and scenic rivers system designated in section 1274 of this title, or hereafter designated for inclusion in the system by Act of Congress, which is administered by him, but he shall not acquire fee title to an average of more than 100 acres per mile on both sides of the river..."
impact may the Wild and Scenic Rivers Act have on undeveloped rivers?
What impact does a Wild and Scenic River designation have on private property within its boundary?
Implementation of the Wild and Scenic Rivers Act often leads to the federal government purchasing privately-owned land within the designated "immediate environments". This practice protects some of the land in the immediate environment (that is, the purchased land) and avoids the legal issue of a "taking" by inverse condemnation.
Missouri State Scenic River Act (North Dakota law)
"The purpose of this chapter shall be to preserve the Little Missouri
River as nearly as possible in its present state, which shall mean that
the river will be maintained in a free-flowing natural condition, and
to establish a Little Missouri River commission." N.D.C.C. §61-29-02.
"Channelization, reservoir construction, or diversion other than
for agricultural or recreational purposes and the dredging of waters within
the confines of the Little Missouri scenic river and all Little Missouri
tributary streams are expressly prohibited. Flood control dikes may be
constructed within the floodplain of the Little Missouri. Diking and riprapping
for bank erosion control shall be permitted within the confines of the
Little Missouri scenic river. The construction of impoundments for any
purpose on the Little Missouri mainstream shall be prohibited. This chapter
shall in no way affect or diminish the rights of owners of the land bordering
the river to use the waters for domestic purposes, including livestock
watering, or any other rights of riparian landowners." N.D.C.C. §61-29-06.
Does this state law provide the same protection for the Little Missouri River in North Dakota as a federal designation as a Wild and Scenic river? Has this state law eliminated the need for a federal designation of the Little Missouri River in North Dakota as a Wild and Scenic river?
v. police power -- revisited -- When does a regulation become a taking?
- At this point in
our thought process, it may be helpful to again consider the "limit
to government action."
- It is well understood
that government cannot "take" private property without compensating
- It also is well
understood that a government "taking" does not occur only when the government
seizes possession of the property; that is, the government may have
"taken" private property even though the individual still possesses
the property. The easiest example of a taking even though the ownership
of the property has not changed is a regulation that prohibits a landowner
from using the property for any economic purpose.
- This notion
of taking is consistent with the idea that property is not the item,
but the rights in the item, and if too many rights are taken away
(even though the "sticks in the bundle" that represent ownership
are still retained by the individual), there has been a taking.
- Thus the question
becomes -- at what point does a regulation cease to be an "exercise
of police power" (for which the property owner is not compensated) and
become a "taking" that entitles to property owner to be compensated?
- Remember, an alternative
to compensating the property owner for "taken" property is to remove
the regulation and allow the owner to use the property as desired.
Can I construct a water well on my land? Can I construct a dam on my land?
general rule is that water belongs to the state, even water located on
or below private land. Likewise, in most states, the use of water is regulated
according to statutory or common law. For example, in North Dakota and
other states in the western United States, a person needs to comply with
the state's permitting process to acquire the right to use water. Also
in these western states, the person who is first to use the water has the
best legal right to continue using the water (this legal concept is referred to as the doctrine of prior appropriation). Persons who begin using
the water at a later time are generally required to stop their use of the
water if there is shortage.
N.D.C.C. §61-04-02. "Any person, before commencing any construction for the
purpose of appropriating waters of the state or before taking waters
of the state from any constructed works, shall first secure a water
permit from the state engineer unless such construction or taking from
such constructed works is for domestic or livestock purposes or for
fish, wildlife, and other recreational uses or unless otherwise provided
by law. However, immediately upon completing any constructed works for
domestic or livestock purposes or for fish, wildlife, and other recreational
uses the water user shall notify the state engineer of the location
and acre-feet [1233.48 cubic meters] capacity of such constructed works,
dams, or dugouts.
of proposed use, however, all water users shall secure a water permit
prior to constructing an impoundment capable of retaining more than
twelve and one-half acre-feet [15418.52 cubic meters] of water or the
construction of a well from which more than twelve and one-half acre-feet
[15418.52 cubic meters] of water per year will be appropriated. "In
those cases where a permit is not required of a landowner or the landowner's
lessee to appropriate less than twelve and one-half acre-feet [15418.52
cubic meters] of water from any source for domestic or livestock purposes
or for fish, wildlife, and other recreational uses, those appropriators
may apply for water permits in order to clearly establish a priority
date; the state engineer may waive any fee or hearing for such applications.
An applicant for a water permit to irrigate need not be the owner of
the land to be irrigated."
line -- even though I own the land, my use of the water that is on or
below the land is subject to state regulation.
A question that might arise is the difference between domestic use (which includes watering a garden) and irrigation (watering a BIG garden). North Dakota statutory law answers this question, for example, by defining irrigation as "... the use of water for application to more than five acres of land to stimulate the growth of agricultural crops, including gardens,
orchards, lawns, trees, or shrubbery, or the maintenance of recreation areas such as
athletic fields, golf courses, parks, and similar types of areas." N.D.C.C. §61-04-01.1(6).
Most states in the eastern portion of the United States follow the doctrine of riparian rights, that is, "I can make a reasonable use of water that is adjacent to my land." However as water issues arise more often in these states, some states are modifying their law by incorporating aspects of prior appropriation doctrine and permitting systems.
we required to conserve our natural resources, such as our soil?
Soil conservation laws since the 1930s have been voluntary; similarly,
the soil bank program of the 1950s was voluntary.
example, Soil Conservation Act (1936)
- To assist in erosion
control and enhance the productivity of farm land
USC §2001 -- Congressional findings. The Congress finds that:
"(1) There is a growing demand on the soil, water, and related resources
of the Nation to meet present and future needs.
"(2) The Congress, in its concern for sustained use of the resource base,
 of the United States, has ensured that the Department of Agriculture
possesses information, technical expertise, and a delivery system for
providing assistance to land users with respect to conservation and
use of soils; plants; woodlands; watershed protection and flood prevention;
the conservation, development, utilization, and disposal of water; animal
husbandry; fish and wildlife management; recreation; community development;
and related resource uses.
"(3) Resource appraisal is basic to effective soil and water conservation.
Since individual and governmental decisions concerning soil and water
resources often transcend administrative boundaries and affect other
programs and decisions, a coordinated appraisal and program framework
are essential. Now add 'sodbuster,' conservation compliance, and conservation
reserve program - all are voluntary programs but the associated incentives
are so important to producers that they often feel they have no alternative
but to participate in the programs."
(highly erodible land) -- does not prohibit new cultivation of highly
erodible grasslands; but the law renders a farmer ineligible for benefits
of federal farm programs if grassland is converted to cropland; 16
Compliance -- does not require farmers to develop a plan for soil and
water conservation; but it declares a farmer ineligible for benefits of
federal farm program if a plan for managing highly erodible lands is not
developed and implemented; 16
Also see 7 CFR Part 12
Reserve Program (CRP) -- pays landowners to plant highly erodible
cropland to grass or trees (similar to Soil Bank program used in the late
1950s and 1960s); 16
Also see Conservation
Programs of the NRCS (USDA).
As CRP contracts expire and the land is again cropped, these will be considered highly erodible land. The producer will need a conservation compliance plan to retain eligibility for the federal government farm programs when producing a crop on these lands.
Benefits of federal government farm programs are unavailable to producers
if the operator is not in compliance with these programs.
incentives to engage in soil conservation practices would be available if the federal government farm program
is eliminated? Do environmentalists and producers each have reasons
for continuing the farm program?
there an alternative to voluntary soil conservation programs, such as mandating conservation practices without
an incentive? Look at Iowa's
- Is there a legal reason why Congress might not mandate soil conservation practices? Would mandating soil conservation practices be a "proper exercise of police power"?
Bottom line -- generally landowners are NOT required to practice soil conservation,
but incentives provided by federal programs are so extensive that farm
operators feel they have no alternative but to practice soil conservation.
Summary of Key Points
- Federal, state and local regulation of land-use to promote management of natural resources must fit within the scope of "a proper exercise of police power'" otherwise, the regulation will be considered a "taking."
- Common law tort restrictions have been largely replaced by local government zoning and state and federal regulatory schemes.
- Federal laws intended to preserve natural resources can impact the use of land; such legislation, for example, includes the Endangered Species Act, Wilderness Act and Wild and Scenic Rivers Act.
- Allocation of water is primarily a state regulatory matter.
- Soil conservation is primarily a voluntary activity but landowners are influenced by incentive programs.
December 22, 2010