Summary and Evolution of U. S. Farm Bill Conservation Titles — Expanded Discussions
Doug O’Brien Senior Staff Attorney
Highly Erodible Land Conservation (a.k.a. Sodbuster)
1985 – If a person is raising an agricultural commodity on highly erodible land, he or she must use conservation practices appropriate to that land, with a significant exception discussed below. Such practices are determined by the local conservation districts or the Secretary if the land is located in an area where there is no conservation district. If a person does not engage in appropriate conservation practices, they will not be eligible in that crop year for the price-support loan program, farm storage loans, federal crop insurance, disaster payments, new loans made by Farmers Home Administration if the loan would contribute to the degradation of the highly erodible land, and CCC payments for storage. An exemption “allows farmers to produce a commodity on highly erodible land if such land was used to produce a commodity, or was enrolled in a set-aside program, during any of the 1981 through 1985 crop years, and if the producer eventually meets the requirements of establishing, actively applying, and eventually fully complying with an approved conservation plan.” Galen Fountain, Land Use Related Restrictions and the Conservation Provisions of the Food Security Act of 1985: Sodbuster and Swampbuster, 11 U. ARK. LITTLE ROCK L.J. 553, 554 (1988/89).
1990 – The Highly Erodible Land (HEL) requirements are extended to lands that are set aside and diverted. ECONOMIC RESEARCH SERVICE, PROVISIONS OF FOOD, AGRICULTURE, CONSERVATION, AND TRADE ACT OF 1990, 54 (1990). Furthermore, HEL requirements apply to land that comes out of the Conservation Reserve Program. The provision also expands the list of government programs that are subject to denial if the requirements are not met, including Agricultural Conservation Program payments, Emergency Conservation Payments, and CRP payments.
The 1990 bill eases enforcement of the HEL requirements in a number of ways. It provided exemptions from ineligibility for persons whose violations are “technical and minor in nature,” were due to circumstances beyond the persons’ control or were granted a temporary variance from the Secretary for the purpose of handling a specific problem. The provision also allows for graduated reduction of benefits of between $500 and $5000 for those who have not violated the HEL provisions in the past five years and who acted in good faith and without intent to violate the requirements. The provision includes a special provision dealing with land rental situations that provides that if the tenant violated the HEL provisions, the tenant’s ineligibility is restricted to that particular farm if the following qualifications apply: the tenant made a good faith effort to apply the HEL requirements, and the landlord refused to comply with the compliance plan. Linda A. Malone, 1 ENVIRONMENTAL REGULATION OF LAND USE § 5:17 (Aug. 2005).
1996 – The direct payments created by the 1996 Farm Bill are added to the list of programs for which a HEL violator could be ineligible. The 1996 law also provides direction to the Secretary to ensure that the HEL guidelines are “technically and economically feasible” based on local resource conditions. The regulation must also be cost effective and not cause undue financial hardship. The Secretary is also required to provide technical assistance to persons implementing a conservation plan. The 1996 law also contemplates that the Secretary should give the person an opportunity to correct deficiencies that a USDA employee finds on the farm. If the person does not correct the deficiency in one year, the Secretary may review compliance with the conservation plan.
Wetlands Conservation (a.k.a. Swampbuster)
1985 – This new provision denies certain government benefits to those who convert a wetland after December 23, 1985. If a person does convert a wetland for an agricultural use, they will not be eligible in that crop year for the price-support loan program, farm storage loans, Federal crop insurance, disaster payments, new loans made by Farmers Home Administration if the loan would contribute to the conversion of the wetland, and CCC payments for storage. Exemptions include (1) a wetland that was being converted before the enactment of the 1985 Farm Bill; (2) an artificial lake, pond, or wet area created by excavation or irrigation; (3) a wetland where production is possible without action by the producer that destroys the wetland; and (4) a converted wetland where the Secretary deems the biological and hydrological effects of the conversion are minimal. The term “wetland” means “land that has a predominance of hydric soils and that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.” See generally Daryn McBeth, Wetlands Conservation and Federal Regulation: Analysis of the Food Security Act’s “Swampbuster” Provisions as Amended by the Federal Agricultural Reform Act of 1996, 21 HARV. ENVTL. L. REV. 201 (1997).
1990 – The 1990 Farm Bill made it clear that all three of the definitional wetland characteristics listed in the 1985 Farm Bill (as opposed to just one) were required for land to be designated as a wetland, meaning that land must (1) have a predominance of hydric soils; (2) be inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (3) under normal circumstances supports such vegetation. The 1990 provision also changed the violation trigger mechanism from the production of an agricultural commodity to simply making it possible to produce and agricultural product. Linda A. Malone, The Conservation Provisions of the 1985, 1990, 1996, an 2002 Farm Bills, 1 ENVTL. REG. OF LAND USE § 524 (2005).
The provision also expands the list of government programs subject to denial, including Agricultural Conservation Program payments, Emergency Conservation Payments, and CRP payments. The 1990 provision sets up the process for the Secretary to make on-site determinations and for persons to appeal those determinations. The provision clarifies the exemptions listed in the 1985 Farm Bill and adds one more situation in which a person can convert a wetland to an agricultural use and not be in violation: by restoring previously agricultural land to its original wetland state with approximately the same wetland functions and values. Similar to the good faith exception in the Highly Erodible Land Program, a person who has no history of violating the wetland provision in the past ten years, who agrees to restore the wetland, and who acted in good faith in the conversion of the wetland may be penalized only in graduated sanctions, as opposed to being ineligible for all of the government payments. In this case, the sanctions would mean a reduction of benefits of between $750 and $10,000.
1996 – The 1996 provisions significantly change swampbuster by allowing the Secretary to waive ineligibility upon a showing of good faith and lack of intent to violate the regulations as long as the person restores the wetland within one year. The 1996 Farm Bill also allows for conversion of a wetland that had been agricultural land in 1985 (when the original swampbuster provision went into effect) and that reverted back to its wetland state. As to allowing the conversion of a wetland if a producer mitigates by restoring a previously converted wetland, the 1996 Farm Bill removes the requirement that mitigation must occur on land that was previously cropped, allowing mitigation to occur by work on a degraded wetland.
Environmental Conservation Acreage Reserve Program and the Comprehensive Conservation Enhancement Program
1990 – The Secretary is directed to establish ECARP to assist owners of highly erodible land and wetlands in conserving and improving soil and water quality. The Secretary does this by entering into contracts and acquiring easements to the land. Land enrolled in the Conservation Reserve Program and the Wetland Reserve Program are included in the ECARP. The provision requires the Secretary to enroll between 40 and 45 million acres during 1986 to 1995.
1996 – The provision extends ECARP and states that the Secretary shall carry out the program by providing (1) for the long-term protection of environmentally sensitive land and (2) technical and financial assistance to farmers and ranchers. The section grants the Secretary discretion to designate as conservation priority areas certain watersheds, multistate areas, or regions of special environmental sensitivity. If a producer resides in a priority area, the Secretary may provide technical assistance, cost-share payments, and incentive payments to participate in the programs under ECARP.
Conservation Reserve Program
1985 – The 1985 Farm Bill establishes the Conservation Reserve Program (CRP) that moves land formerly in agricultural production into a conservation reserve. To implement the program, the Secretary enters into ten to 15 year contracts with landowners and shares the cost of certain conservation measures. The bill ramped up the minimum number of acres that should be in the program from five million in 1986 to 40 million in 1990. Beyond highly erodible land, the Secretary may enroll land that poses an “off-farm environmental threat.” The Secretary may not enroll more than 25 percent of the cropland in any one county unless he or she makes a determination that increased enrollment would not have an adverse economic impact in the county.
CRP contracts prohibit landowners from harvesting or grazing the land. The landowners must implement a conservation plan approved by the local conservation district and establish some type of vegetative cover on the land. If the landowner violates the CRP agreement, he may lose his right to all future payments and be required to refund any payments he received under the contract up to the time of violation. The Secretary also has the discretion to adjust the rental payments if he or she determines that the violation does not warrant termination of the contract. If the land is sold or transferred, the Secretary may either terminate the CRP contract or the transferee may agree to assume all obligations under the contract.
The rental payments are to be determined by a submission of bids by landowners. To determine which bids to accept, the Secretary looks to the conservation value of putting the land into reserve and may consider other factors, such as the economic stress of the landowner. Contracts may be modified if both the landowner and the Secretary agree to the modification. The total amount of payments made to an owner shall not exceed $50,000 per year and shall not count against other USDA program payment limitations.
As to cost-sharing, the Secretary should provide 50 percent of the cost of the conservation measure.
As to cropland base history, it should generally be reduced based on a ration of the acres placed in the reserve and the total cropland acres on the farm. The Secretary, however, may preserve the cropland base.
1990 – The 1990 Farm Bill expands the list of eligible lands beyond highly erodible croplands to include (1) marginal pasture lands converted to wetland or established as wildlife habitat prior to enactment of the 1990 Farm Bill, (2) marginal pasturelands to be devoted to trees in or near riparian areas, (3) lands that the Secretary determines cause an environmental threat to water quality, (4) croplands converted to grass waterways or strips as part of a conservation plan, (5) croplands subject to an easement of the useful life of newly created wildlife habitat, shelterbelts, or filter strips devoted to trees or shrubs, and (6) lands that pose an off-farm environmental threat or pose a threat of degradation of production due to soil salinity. The producer entering into the contract can choose the term of the contract between ten and 15 years.
The 1990 Farm Bill also specifies the following areas as priority areas to be enrolled in CRP: Chesapeake Bay Region, Great Lakes Region, the Long Island Sound Region, and “other areas of special environmental sensitivity.”
The 1990 CRP provision makes clear that multiyear grasses and legumes are considered agricultural commodities under CRP.
The legislation permits limited fall and winter grazing in exchange for an applicable reduction in rental payments. Concerning land where hard-wood trees are grown, the 1990 Farm Bill allows alley cropping between the trees on CRP acres for a reduction in the rental payment.
The 50 percent cost-share provision is extended beyond vegetative cover to include hardwood trees, shelterbelts, windbreaks, and wildlife corridors. Cost-share payments are limited to the extent that an owner already has other cost-share partners and that the total cost share would be over 100 percent. For an owner to be eligible for CRP cost-share, he cannot receive any other cost share from other Federal sources.
The 1990 bill allows for land already in the CRP that had been converted to vegetative cover to be converted to hardwood trees, windbreaks, shelterbelts, wildlife corridors, or wetlands under certain circumstances. If the land is converted to any of these uses besides wetlands, the owner must provide the Secretary an easement of the land for the useful life of such plantings.
As to crop acreage base protection, the 1990 Farm Bill allows the Secretary to extend the protection of base acres after the term of the CRP if the owner continues to keep the land in a conserving use. Such land could be subject to limited haying and grazing.
1996 – The 1996 Farm Bill makes a number of minor changes to CRP. The Bill allows owners to terminate their CRP contracts after being in effect only five years. Certain lands are excepted: (1) filterstrips, waterways, strips adjacent to riparian areas; (2) lands with an erodibility index of over 15; and (3) other lands that the Secretary deems to be highly sensitive. The owners are allowed to attempt to rebid their land into CRP. Land is eligible for CRP if it was cropped two of the last five years and meets at least one of the following requirements: (1) has an erodibility index of eight or higher; (2) is considered a cropped wetland; (3) is associated with or surrounds noncropped wetlands; (4) is devoted to a highly beneficial environmental practice (for example, filter strips); (5) is subject to scour erosion; (6) is located in national or state CRP conservation priority areas; or (7) is marginal pastureland in riparian areas.
The 2001 Appropriations Bill (Pub. L. No. 106-387, § 755 (Oct. 28, 2000)) creates a good faith exception to termination of CRP contracts for owners who violated the contract in reliance on advice from USDA personnel. This exception was short lived, as it was repealed in the 2002 Farm Bill.
The 2001 Appropriations Bill (Pub. L. No. 106-387, § 817 (Oct. 28, 2000)) also provides an exception to the requirement that the owner plant vegetative cover when excessive rain fall or flooding made planting impossible.
The 2002 Appropriations Bill also creates a new pilot program for enrollment of wetland and buffer acreage in CRP. Pub. L. No. 107-76, § 758 (Nov. 28, 2001).
2002 – The bill extends CRP without major changes and adds to the total maximum enrollment to 39.2 million acres. For land to be eligible for CRP, the cropping history requirement is changed to four out of the last six years. Other eligibility changes include: (1) land under expiring contracts is automatically eligible to be considered for re-enrollment; (2) contracts expiring during 2002 can be extended by 1 year; and (3) existing covers must be retained, if feasible, when expiring contracts are re-enrolled. JEFFREY A. ZINN, CONGRESSIONAL RESEARCH SERVICE, RESOURCE CONSERVATION TITLE OF THE 2002 FARM BILL: A COMPARISON OF NEW LAW WITH BILLS PASSED BY THE HOUSE AND SENATE, AND PRIOR LAW 7 (2002).
A pilot program is developed to allow for wetland to be enrolled into CRP that included wetlands and buffer acres adjacent to wetlands.
Farmland Protection Policy Act and Farmland Protection Program
1985 – The 1981 Farmland Protection Policy Act (FPPA) requires Federal agencies to ensure their policies do not convert farmland to nonagricultural uses. The FPPA makes explicit that it still provides the Federal government authority to regulate private or non-federal land.
The 1985 Farm Bill amends the FPPA to require the Secretary of Agriculture to report to the House and Senate Agricultural Committees on the implementation of FPPA. The 1985 Farm Bill also provides a governor of a state where a farmland protection program is in place the right to sue the federal government. The suit would enforce the FPPA by alleging that a federal government action does not comply with FPPA policy.
1990 – The 1990 Act created a program whereby USDA guarantees or buys down interest on loans made by private lending institutions to states for the purpose of funding farmland preservations programs. ECONOMIC RESEARCH SERVICE, PROVISIONS OF THE FOOD AGRICULTURE, CONSERVATION, AND TRADE ACT OF 1990 61 (1991). The Federal government pays the interest on the loans for the first five years and will buy down at least three percentage points of interest for five more years. Eligible states include Vermont and any other state that administers a land preservation fund.
1996 – The Act requires the Secretary of Agriculture to establish a farmland protection program under which the Secretary can purchase conservation easements or other interests in land with “prime, unique, or other productive soil.” For land to be eligible, it must be subject to a pending offer from a state or local government for the purpose of protecting topsoil by limiting nonagricultural uses. The land must be subject to a conservation plan. The legislation limits the number of acres to between 170,000 and 340,000. Funding is mandatory from the Commodity Credit Corporation and is limited to $35 million.
The Agricultural Risk Protection Act of 2000 (ARPA) authorizes the use of an additional $10 million from the Conservation Credit Corporation toward the 1996 Farmland Protection Program. Pub. L No. 106-224, § 211(a) (June 20, 2000). ARPA also makes it clear that besides state and local governments, USDA could also make payments to certain conservation organiztions, tax exempt 501(c)(3)’s, or organizations under 509(a)(2) of the tax code.
2002 – The Act further defines eligible entities to include any agency of (1) any state or local government or Indian tribe, as well as (2) an organization that is and has always been devoted to conservation purposes and all organizations under 501(c)(3) or 509(a)(2) of the IRS Code. The definition of eligible land is extended to include land that contains historical or archaeological resources and makes clear that the following types of land are included: cropland, rangeland, grassland, pasture land, and forest land that is an incidental part of an agricultural operation. As to cost sharing, the Act provides that USDA shall not provide more than 50 percent of the fair market value of the easement and that the private landowner may provide up to 25 percent of the fair market value of the easement.
Wetlands Reserve Program
1990 – WRP required the Secretary to enter into long-term easements in wetlands that would restrict environmentally detrimental activity on the wetland. Beginning in 1991, the Secretary is authorized to seek additional easements for 200,000 acres per year until a total of one million acres is reached in 1995. The easements are for 30 years, permanent, or the maximum length allowed by state law. Priority for enrollment is given to permanent easements.
Eligible acres include: (1) farmed wetlands or converted wetland, together with adjacent land, where the conversion commenced before December 23, 1985; (2) farmed wetlands enrolled in CRP and that are likely to return to production after they leave CRP; (3) riparian areas linking wetlands that are protected by easements or some other device. Those who had land enrolled in a CRP contract may convert over to a WRP easement.
The easement must create and record an appropriate deed restriction in accordance with state law. The owner of the land must provide written consent of the easement from all who hold a security interest in the land.
The easements must be in accord with a conservation plan made through an agreement with the Soil Conservation Service. The conservation plan must prohibit (1) the alteration of wildlife habitat, unless specifically permitted by the plan; (2) chemical spraying; (3) any activities on adjacent land that diminishes the functional value of the wetland; and (4) the adoption of any other practice the Secretary determines would defeat the purpose of WRP. A restoration plan must also be developed through an agreement with a local representative of the Soil Conservation Service. The easement may allow for compatible uses, such as hunting and fishing, and even periodic haying and grazing, as long as the activity is consistent with the long-term protection of the wetland.
Compensation for the wetland shall not “exceed the fair market value of the land less the fair market value of such land encumbered by the easement.” Owners are given the opportunity to bid for enrollment into WRP. The easement will be paid for in five to 20 annual payments, unless it is a permanent easement, in which case the payment can be in a lump sum. Easement payments for any year are limited to $50,000, and the payments will not count against any other payment limitation in the Farm Bill commodity programs.
If the owner violates the terms of the easement, the easement will remain in force and the owner may be required to refund all or part of the payments. WRP requires the owner to agree to retire any existing cropland base and allotment history for the land in the easement.
The Secretary will pay 50 to 100 percent of the cost of the improvements to the land, with greater cost share going to longer easements. The Secretary may modify the easement if the present owner agrees and the modification is consistent with the goals of WRP. The easement may be terminated if the Secretary and current owner agrees and the Secretary determines such termination is in the public interest.
1996 – The 1996 Farm Bill scales back to 975,000 the total number of acres that could be enrolled in WRP. The bill creates a new type of legal arrangement that can be used under WRP called a “restoration cost-share agreement,” which requires the owner to restore wetlands but does not include an easement. The 1999 Omnibus Appropriations Act restricted USDA from enrolling more than 120,000 acres in WRP in fiscal year 1999. Pub. L. No. 105-277, § 730 (Oct. 21, 1998). The 2000 Agricultural Appropriations Act restricted USDA from enrolling more than 150,000 acres in fiscal year 2000. Pub. L. No. 106-78, § 728 (Oct. 22, 1999).
The 1996 Farm Bill requires the Secretary to divide enrollment evenly between permanent easements, 30-year easements, and restoration cost-share agreements and prohibits the Secretary from entering into additional permanent easements until he or she has enrolled at least 75,000 acres in temporary easements. The bill also adds a wildlife component to eligibility requirements by requiring that the easements maximize “wildlife benefits and wetlands values and functions.”
As to cost-share, the bill allows for the Secretary to pay 50 to 75 percent of improvements on land under 30-year easement or restoration cost-share agreements, and 75 to 100 percent of improvements to land in permanent easements.
The 2000 Agricultural Appropriations Bill provides the Secretary the authority to enter into cooperative agreements for the acquisition of goods or services from states, political subdivisions, public or private organization, or any other person if the agreements serve the purpose of carrying out WRP. Pub. L. No. 106-78 § 717 (Oct. 22, 1999).
The 2001 Appropriations Bill allowed for up to 1.075 million acres to be enrolled in WRP, as long as funding for technical assistance USDA provides related to the new enrollment would be paid for by the Commodity Credit Corporation. Pub. L. No. 106-387 § 808 (Oct. 28, 2000). This section also requires that the amount necessary to carry out the section would be designated as emergency moneys.
2002 – The 2002 Farm Bill more than doubles the maximum amount of enrollment in WRP to 2.275 million acres. The bill removes the 1996 requirement that newly enrolled land should be equally distributed among permanent easements, 30-year easements, and cost restoration agreements. The bill then removes the section added in the 1996 bill that authorizes cost restoration agreements.
Agricultural Water Quality Protection Program
1990 – Under AWQP, the Secretary enters into three to five year contracts to develop and implement plans to protect water quality, not to exceed a total of ten million acres. Eligible lands are targeted to areas that have the ability to affect water quality, such as areas within 1000 feet of a wellhead, areas where sinkholes convey runoff water directly into ground water, areas contributing to identified water quality problems in areas designated by the Secretary, and areas recommended by state agencies or the Environmental Protection Agency.
Incentives for owners to enter into these agreements include cash payments and cost share arrangements. Payments shall be based on the amount it takes to entice owners to participate in the program, and in no case should exceed $3500 per person per year. Cost-share can be as much as 50 percent of the eligible practice, not to exceed $1500 per person per year. The Secretary must also provide technical assistance and information. The owner’s crop acreage and yield base are protected under the program.
The plans should include a description of the farm, cropping patterns and practices, and a description of the soil resources and other information related to water quality. The plan should also include information on specific water quality protection goals and the practices that will help attain those goals.
Environmental Easement Program
1990 – The Environmental Easement Program allows the Secretary to enter into permanent (or as long as state law allows) easements to lands that are environmentally sensitive or have an affect on water quality. Eligible lands include land in the CRP, under the Water Bank Act, or other cropland that contains riparian corridors, is a critical habitat for wildlife, or contains other environmentally sensitive areas that would prevent the attainment of environmental goals if the land were devoted to commodity production.
Land owners who enter into an easement under this program must agree to implement a natural resource conservation management plan that sets forth conservation measures to be carried out by the owner and the permitted commercial uses for the land. The conservation plan also formally retires any existing cropland base and allotment history for such land under Farm Bill commodity programs. The easement must be accompanied by (1) an agreement of the recording of the proper deed restrictions, (2) a written statement by security interest holders consenting to the easement, and (3) an agreement to limit agricultural or any other use of the land that would defeat the purposes of the program.
The Secretary is required to share the cost of the conservation measures and to pay for no more than ten years’ annual easement payments not to exceed the lesser of (1) $250,000 or (2) the difference in the value of the land with and without an easement. In determining the amount of payments, the Secretary may also consider the amount necessary to encourage owners to participate in the program. In determining which easement offers to accept, the Secretary should look at the environmental benefit, the productivity of the land, and the on-farm and off-farm environmental threats if the land is used for agricultural production. Payments are limited to $50,000 per person per year and must be in addition to, and not affect, the total amount of payments allowed under the commodity programs.
The Secretary must provide necessary technical assistance to implement the conservation plan. The provision does permit the land to be used for hunting and fishing as permitted by the owner.
Easements may not be entered into within twelve months after the land has changed hands. The easement may be terminated if the owner agrees to the termination and the Secretary determines it is “in the public interest.”
This program was never funded by Congress. See 1995 FARM BILL: HEARINGS BEFORE THE SUBCOMM. ON FORESTRY, CONSERVATION, AND RURAL REVITALIZATION OF THE SENATE COMM. ON AGRICULTURE, NUTRITION, AND FORESTRY, 104th Cong. (1995) (statement of Gary Mast, President of the Ohio Federation of Soil and Water Conservation Districts).
State Technical Committees
1990 – The State Technical Committees are composed of representatives from USDA agencies, such as the Soil Conservation Service, the Forest Service, and the Farmers Home Administration. The committee also includes representatives from state agencies such as the State department of agriculture and the state fish and wildlife agency. Each has its own technical committee to provide recommendations and assistance to the proper USDA officials. Within one year of enactment of the 1990 Farm Bill, the State Technical Committees must develop technical guides for the wetland preservation and wildlife habitat improvement options of the Agricultural Water Quality Protection Program.
The Committees also provide recommendations as to the technical aspects of: (1) wetland protection, restoration, and mitigation requirements; (2) criteria to be used in evaluating bids for enrollment in certain conservation programs; and (3) exemptions from highly erodible land, wetland compliance provisions, and other conservation questions. The Committees are advisory only and have no implementation or enforcement authority.
1996 – The Bill expands the people eligible to participate on the Committees outside federal and state employees to include non-government people knowledgeable about conservation practices, including (1) farmers, (2) people in non-profit organizations, and (3) people involved in agribusiness.
The provision also requires the Committees to provide public notice and comment for certain documents prepared by the Committee.
Integrated Farm Management Program
1990 – This program encourages farmers to voluntarily enter into agreements to plant a portion of their farm to resource-conserving crops, such as legumes, and legumes mixed with small grain and/or grass. The program requires a farmer to enter into a three to five year agreement after the Secretary accepts an integrated farm management plan for his or her farm.
Enrollment is limited from three to five million acres per year. The Secretary must implement the program to minimize any adverse economic affect on agriculturally related interests and shall not approve any plan that displaces farm tenants.
Each plan must specify the acreage and crop basis, describe the type of resource conserving crop rotation to be implemented, contain a schedule for implementation, and describe the types of practices that will be used to maintain the productivity of the farm and prevent environmental degradation. With some exceptions, participation in a plan does not reduce crop acreage bases or yield bases.
Watershed Protection and Flood Prevention Act
1990 – This Act allows the Secretary to provide cost-share assistance to project sponsors (generally state and local governments) so that they may acquire perpetual easements to enhance the natural capability of wetlands or floodplains to retain floodwaters. The project sponsors are required to contribute up to 50 percent of the total costs.
Environmental Quality Incentives Program
1996 – The Act creates a new program to consolidate and replace (1) the agricultural conservation program authorized by the Soil Conservation and Domestic Allotment Act, (2) the Great Plains conservation program established by the Soil Conservation and Domestic Allotment Act, (3) the water quality incentives program of the Food Security Act of 1985, and (4) the Colorado River Basin salinity control program established by the Colorado River Basin Salinity Control Act. The new program is intended to assist farmers with technical and financial assistance to address the most serious environmental threats on agricultural land and assist farmers and ranchers in complying with state and federal environmental laws.
The program allows the Secretary to enter into contracts with producers for both structural and land management practices. Structural practices refer to the construction or establishment of projects such as animal waste management facilities, terraces, waterways, or permanent wildlife habitats. Land management practices refer to activities such as manure management practices, irrigation management, tillage management, and grazing management.
The contracts may have a term of five to ten years and may apply to (1) one or more structural practices or (2) one or more land management practices and have a term of five to ten years. In determining which contracts to enter into for structural practices, the Secretary should estimate the cost of the project and how the project falls within the program’s authority. If the structural practice is proposed by a tenant, the landowner of the affected land must concur with the proposed structural practice. For land management practices, the Secretary is required to establish an evaluation process for awarding technical assistance and incentive payments, or both. The contracts may be modified if the producer acquiesces and the modification is in the public interest.
As to details of the different types of payments, for structural practices the Secretary may provide up to 75 percent of the costs of practices not already receiving federal cost share. Such cost share cannot be used for agricultural waste management facilities on large confined livestock operations. For incentive payments, the Secretary may provide an amount necessary to encourage a producer to perform a land management practice. The receipt of technical assistance does not affect the eligibility of the producer to receive such assistance under other laws. The law does not provide guidance on how much technical assistance individual producers may receive, except that the total funding for cost share shall not exceed “the projected cost to the Secretary for the technical assistance provided for a fiscal year.”
In determining what to fund, the Secretary should provide a higher priority if the proposal (1) is in a conservation priority area under the Environmental Conservation Area Reserve Program, (2) maximizes environmental benefits, or (3) is included in an area that is also receiving state or local government support.
EQIP requires producers to implement a plan approved by the Secretary and “not to conduct any practices on the farm or ranch that would tend to defeat the purposes of” EQIP. If the producer violates a term of the contract, he or she must refund any cost-share or incentive payment received, with interest. On transfer of the producer’s interest in the land, the producer can either refund all cost-share and incentive payments or have the transferee agree to the obligations under the EQIP contract.
To the extent appropriate, the Secretary must assist the producer in achieving the goals of EQIP by providing an eligibility assessment of the farm, as well as information and technical assistance to implement the plan.
The Act includes payment limits wherein a producer may not receive more than $10,000 for any one year or $50,000 for any multiyear contract. The Secretary may exceed the limitation if he or she determines that a larger payment is necessary to accomplish essential projects and consistent with the maximization of environmental benefits per dollar expended.
2002 – The Act extends EQIP through the 2002 Farm Bill while making some significant changes, including increasing the maximum contractual duration from five to ten years and increasing the payment limits to $450,000 per person for the duration of the 2002 Farm Bill, no matter the number of contracts entered into by the person.
The Act makes explicit that in evaluating applications for cost-share, the Secretary shall give higher priority to payments that encourage cost-effective conservation practices and that address national conservation priorities. The amount of the contract should not be a determinant in the priority of the contract.
If a producer violates a term or condition of the contract, the Secretary has the discretion whether to require the producer to forfeit his contractual rights and refund all payments already received and provides the Secretary the ability to adjust the payments as the Secretary deems to be appropriate. The Act also provides the Secretary the discretion to require producers to comply with additional provisions the Secretary determines necessary to carry out the program.
The Act allows for conservation innovation grants to governmental and nongovernmental organizations using the grants in programs that (1) involve producers eligible for payments, (2) implement projects such as market systems for pollution reduction and other innovative conservation practices, and (3) are used in conjunction with matching funds of at least 50 percent from the nonfederal organization.
A new section on ground and surface water conservation provides that the Secretary may provide cost-share, technical assistance, and loans for practices that conserve ground and surface water. Beyond the normal source of EQIP funding, this section allows for mandatory funding from the Commodity Credit Corporation, ramping up to $60 million for the last three years of the 2002 Farm Bill. An additional $50 million is dedicated to conservation activities in the Klamath Basin, California and Oregon.
Conservation Farm Option
1996 – This short-lived program (1996 to 2002) in essence served as a substitute for CRP, WRP, and EQIP by requiring CFO participants to forego participation in the other programs in return for receiving payments that the “owner or producer would have received” under the other programs. Only those producers who are enrolled in the commodity programs are eligible. An applicant to the program must prepare a conservation plan for the Secretary’s approval that (1) describes crop rotation and other conservation practices to be implemented, (2) contains a schedule of implementation, (3) complies with the sodbuster and swampbuster provisions, and (4) contains other provisions required by the Secretary. The contracts are for 10 years, with a possible extension of five years. This program is funded through the Commodity Credit Corporation.
The program never received significant funding support; appropriators generally instructed USDA that it could not spend money to carry out the program. For examples, see these appropriations bills: Pub. L. No. 105-277 § 740, 112 Stat. 2681 (Oct. 21, 1998); Pub. L. No. § 732, 113 Stat. 1135 (Oct. 22, 1999); Pub. L. No. 106-387 § 726 (Oct. 28, 2000).
Wildlife Habitat Incentives Program
1996 – In establishing the program, the Secretary must consult with the state technical committees. USDA-NRCS provide provide cost-share to landowners to develop upland, wetland, and aquatic wildlife, as well as habitat for threatened and endangered species.
2002 – The extension provides that the Secretary may provide for cost-share above and beyond the regular WHIP cost-share to agreements with terms of at least 15 years but limits the amount of funds dedicated to this increase to 15 percent of the total WHIP funds. The amount of funds authorized for WHIP ramps up from $15 million in 2002 to $85 million annually in 2005 through 2007.
National Natural Resources Conservation Foundation
1996 – The National Natural Resources Conservation Foundation (NNRCF) is not an agency of the United States. Its duties are designed to address problems associated with the conservation of natural resources on private lands, particularly with respect to agricultural, soil, and water conservation. Specifically, NNRCF should promote voluntary partnerships between government and private interests, conduct research and support demonstration projects, accept and administer private gifts “for the benefit of, or in connection with, the conservation and related activities and services of the Department, particularly” NRCS, and raise private funds to promote the purposes of the foundation. NNRCF may not engage in political activities. NNRCF may acquire any real property, including conservation easements.
Conservation of Private Grazing Land
1996 – The purpose of this program, among other things, is: (1) to establish a coordinated federal, state, and local grazing conservation program for management of private grazing land; (2) improve technical assistance to owners of grazing lands; (3) conserve and improve wildlife habitat; (4) protect water quality; (5) conserve water supplies; and (6) manage weeds. The program invites groups of farmers or ranchers to develop a grazing district that would seek federal funds to help attain these goals.
Conservation Security Program
2002 – CSP provides producers the ability to enter into contracts with USDA for certain land management, vegetative, and structural practices. The types of contracts are divided into three tiers, deferred by the comprehensiveness of the conservation plan incorporated into the contract.
Under tier I, a producer can receive five percent of the base payment, which is the average national per-acre rate for the 2001 crop year that ensures regional equity. A producer can also receive up to 75 percent of the average county costs of the adoption of new management practices, the maintenance of existing management practices, or the maintenance of existing structural practices. To be eligible for tier I, the producer must enter into a contract for five years that includes conservation practices that address at least one significant resource of concern for the enrolled portion of land, not necessarily the entire agricultural operation, that meets the appropriate nondegradation standard.
Under tier II, a producer can receive 10 percent of the base payment, as well as up to 75 percent of the costs of certain new or existing management practices and structural work. For a producer to be eligible for tier II payments, he or she must enter into a contract for five to 10 years that covers at least one significant resource of concern for the entire operation.
Under tier II, a producer can receive 15 percent of the base payment, as well as up to 75 percent of the costs of certain new or existing management practices and structural work. To be eligible for tier III, a producer must enter into a contract for five to 10 years that applies a resource management system that meets the appropriate nondegradation standard for all resources of concern of the entire agricultural operation.
Payments for the cost of new or existing management practices or structures to beginning farmers and ranchers can be up to 90 percent of the cost.
Practices that may be included in a conservation plan include management of the following resources: nutrients, water, pastures, soil, invasive species, air, and energy. Specific practices include contour farming, strip cropping, cover cropping, rotational grazing, crop rotation and any other practice deemed appropriate by the Secretary.
Each tier has a different annual payment limits. Tier I payment limit is $20,000 per year; tier II is $35,000; and tier III is $45,000.
Land is not eligible for CSP if it is enrolled in CRP, WRP, or GRP. Other limitations provide that payments may not be made for the construction of animal waste storage facilities or the purchase of equipment not integral to the conservation practice.
Partnership and Cooperation
2002 – In determining which special projects to support, the Secretary should look to projects that encourage (1) producer cooperation, (2) sharing of information and technical and financial resources among producers, (3) cumulative conservation benefits in geographic areas, and (4) the development of innovative conservation measures.
Privacy of Personal Information
2002 – All information provided to the Secretary or a contractor of the Secretary for the purpose of providing technical or financial assistance to the producer shall not be subject to the Freedom of Information Act or released to the public. This prohibition does not apply to the availability of information related to payments, such as the payment amounts, recipients, and recipient addresses. The Secretary may release the non-payment information to the Attorney General for enforcement. The Secretary may also disclose the information if it will be used merely in aggregate form.
Grassland Reserve Program
2002 – The general enrollment conditions of the program provide that the land enrolled must be (1) grassland or land that contains forbs or shrubland, (2) land that is located in an area historically dominated by grasslands, or (3) land that has significant wildlife or ecological value. Enrolled land must be in at least 40 contiguous acres. Land is enrolled under either rental agreements of 5, 10, 20 years or easements that are permanent or 30 years. A maximum of two million acres may be enrolled in the program.
To participate in the program, landowners must provide an unencumbered easement and comply with the terms of the restoration agreement. Easements will allow grazing but include conditions related to nesting seasons and fire rehabilitation. The easement will prohibit the production of crops or any other activity that would disturb the surface of the land. The Secretary must rank the applications with criteria that emphasize support for grazing operations, plant and animal biodiversity, and grassland.
The Secretary has the duty of making easement or rental payments. As to the amount of the payment, in the case of permanent easements the amount is the fair market value of the land less the grazing value; in the case of a 30-year easement, the amount is 30 percent of the fair market value of the land less the grazing value of the land for the duration of the easement. To restore the grassland, the Secretary will make payments of up to 90 percent of the costs of restoration for land that has never been cultivated or 75 percent of the costs of restoration for land that has been cultivated.
A private organization or state agency may hold the easements if all parties, including the Secretary, agree. The private organization must meet certain conditions.
Agricultural Management Assistance
2002 – Uses for payments under this program include the construction of watershed or irrigation structures or planting trees. The payments may also be used to help producers mitigate financial risk through production or marketing diversification, as well as entering into futures, hedging, or options contracting in a manner designed to help reduce production, price, or revenue risk. Payments are limited to $50,000 per person. Only producers in the following states are eligible: Connecticut, Delaware, Maryland, Massachusetts, Maine, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming.
Resource Conservation and Development Programs
2002 – This provision amends the RC and D program created in 1981. In general, the program encourages officials and volunteers from a particular area to develop and implement plans that improve the natural resources and the economic development in that area. The plan should also encourage and improve the capability of the state and local governments and nonprofit organizations to work together in the planning and implementation of the plans.
The area plan needs to address the following subjects: land conservation, water management, community development, and land management. The land conservation element focuses on controlling erosion. The water management element provides for, among other things, water conservation, improved water quality, and mitigation of floods. The community development element focuses on the development of resource-based industries, the development of rural water and waste disposal systems, the provision of adequate health and education facilities, and the promotion of food security. The land management element looks at energy conservation, farmland protection, and the protection of fish and wildlife habitats. The Council includes people from states, local units of government, Indian tribes, or local nonprofit organizations.
The Secretary has the authority to provide financial and technical assistance to help implement an area plan, including loans of up to 30 years. The Secretary may work with other federal agencies, state governments, or nonprofit organizations to carry out the plan. Technical and financial assistance is available only to those councils that agree in writing to carry out the project and to finance or arrange for financing of any portion of the project not covered by assistance from USDA. States, local governments, or nonprofit organizations must agree to maintain the project.
Delivery of Technical Assistance
2002 – The ultimate recipient can be either the producer or a certified third-party provider. The Secretary must establish a system to certify third-parties with expertise in conservation planning, watershed planning, and environmental engineers. Such entities could include commercial entities, nonprofit entities, state or local governments, and other federal agencies.
Miscellaneous Programs Not Created by a Farm Bill
Soil and Water Conservation Assistance
Agricultural Risk Protection Act of 2000 – The law does not link the requirement to any particular existing law. Beyond addressing threats to certain natural resources, the law directs the Secretary to provide financial assistance to farmers and ranchers to comply with federal laws and to make beneficial, cost-effective changes to different types of production systems. The payments may be in the form of cost-share or incentive payments. The Secretary is to provide the financial assistance to areas other than those designated as conservation priority areas under section 1230(c) of the Food Security Act of 1985 under the Environmental Conservation Acreage Reserve Program.