On Monday, January 24, NRCS published its final rule (FR) for the Farm and Ranch Lands Protection Program (FRPP) in the Federal Register.  You can download a pdf version of the final rule here.

USDA published its interim final rule (IFR) for public comment on January 16, 2009, and subsequently published an amendment to:

• Clarify the meaning of “contingent right of enforcement”
• Change the definition of “lands owned by State or Local Government”
• Seek input regarding how the FRPP could be used to promote renewable energy production and climate change mitigation and adaptation

After reviewing public comments, USDA made a number of substantive changes to the rule.

Certification program

The 2008 Farm Bill allows USDA to provide matching funds to help land trusts and other entities purchase easements to “protect agricultural use and related conservation values of the land.”

The length of agreements depends on whether the eligible entity is “certified” or “non-certified.” Certified entities—defined in the Farm Bill as having a proven record of acquiring and monitoring conservation easements—may receive a 5-year agreement.  Eligible entities that are not certified may receive a 3-year agreement.

The FRPP IFR did little to distinguish between certified and non-certified entities.  In an effort to ensure that certified entities “exhibit sufficient capability and experience to manage FRPP financial assistance prudently,” the Final Rule makes significant changes to the certification process.  In order to be certified, eligible entities must:

• Hold and manage at least 25 easements (according to the FR, “NRCS derived this number from the total acres owned and under easement by land trusts, the total number of land trusts, and the average size FRPP easement”)
• Hold and manage at least five FRPP conservation easements

The Chief of NRCS will retain authority to grant waivers for the 25-easement requirement.

Certified land trusts and other certified entities will be able to close on an easement without needing NRCS to review and approve the deed, title, and appraisal beforehand.  Non-certified entities will still need to submit the deed, title, and appraisal for review prior to closing.

NRCS is accepting additional public comments on this certification process, as proposed in the Final Rule.

Dedicated fund

The FR requires that certified entities that are non-governmental organizations establish a dedicated fund for long-term management and monitoring of easements.

Impervious surfaces

Since 2003, USDA has allowed FRPP easements to contain “impervious surfaces, which includes residential buildings, agricultural buildings (with and without flooring), and paved areas, both within and outside the conservation easement’s building envelope(s)” not to exceed 2 percent of the total easement acreage.

Before publishing the IFR, USDA allowed State Conservationists to waive the 2 percent limitation, allowing up to 6 percent impervious surface, if certain conditions were met (easements had to be located in a densely populated area, contain a large amount of open prime and important soil, and be less than 50 acres in size).

Unfortunately, when published in 2009, the IFR allowed for waivers on a parcel-by-parcel basis up to 6 percent without the previous language limiting the exceptions to small farms of less than 50 acres in size located in densely populated areas.  NSAC objected to this change.

Nonetheless, the FR not only continues to allow State Conservationists to waive the 2 percent impervious surface limitation, up to a 10 rather than 6 percent limit, it also allows eligible entities to develop and submit their own impervious surface waiver process for review by the State Conservationist.  If approved, the waiver process would be applied by the entity on a parcel-by-parcel basis.

Moving even one step further down the road away from a program to preserve farmland, the FR also exempts many animal waste lagoons from the very definition of what an impervuous surface is by now excluding “conservation practices identified in the FOTG and in a conservation plan for the subject farm or ranch.”   Provided the lagoon or other storage or treatment site is part of the farm’s conservation plan, it will now outside of the impervious surface limit altogether.

NSAC objects to a policy or regulation on impervious surfaces in FRPP easements that allows the inclusion of animal confinement facilities and waste storage and handling structures for industrial concentrated animal feeding operations (CAFOs) in any FRPP easement.  The impervious surface waiver provision and definitional change appears to be tailored for the establishment of new and expanding CAFOs on relatively small acreages.  This is completely contrary to the letter and spirit of the FRPP authorization.  If public funds are used in this manner, it may also quickly become contrary to public opinion and diminish public support for the program.

Forest Land

The FRPP IFR increased the national limitation on forested land in an FRPP easement from one-half to two-thirds of the total easement acreage.  USDA’s rationale for this increase in forested acreage was that the 50 percent limit unintentionally created an impediment to enrolling land in the Eastern United States where forested acreage is an integral and supplemental part of a farming operation.

In addition to increasing the enrollment limit for forest land, NRCS also loosened forest management plan requirements in the FR.  Where the IFR required forest management plans for easements with 10 contiguous acres or 10 percent of the easement area, the FR increases that acreage / percentage floor to 40 contiguous acres or 20 percent of the easement area.  The FR also reaffirms the IFR in allowing industrial forest land into the program, not just family farm-owned non-industrial private forest land.

Neither the IFR nor the FR justify a drastic change in the FRPP from a farm and ranch land protection program to a forest land protection program.  Interestingly, in response to a public comment calling for a higher cap on forest land enrollment, NRCS explains, “The limitation of two-thirds forest land is to avoid conflicts with the Forest Legacy Program as requested by the USDA Forest Service.”

Public Access

The FRPP IFR allowed for eligible entities to receive additional ranking points under the State ranking criteria for allowing public access to a proposed easement.  The FR removes this additional conservation incentive.

According to the FR, “NRCS is cognizant of the potential biohazards that public access presents to an active agricultural operation, and thus, will not use public access as a ranking factor for FRPP assistance.”

Given the strong interest in public access and the assistance it can provide to farm viability, eliminating it as even a State option for ranking points seem contrary to program goals.

Farm Succession Planning

As under existing regulation, the new FR would allow State Conservationists to add ranking points to farms with succession or transition plans to encourage farm viability and new farming opportunities for future generations.  However, this is not part of the national ranking criteria, but rather a state option.  NSAC will continue to encourage State NRCS offices to use this option but would have preferred national ranking points to tip the program more in the direction of saving working farms and ranches and linking the public funding to increased economic opportunity.

Visit NRCS’ Farm and Ranch Lands Protection Program page for more information about the program.