[Federal Register: January 16, 2009 (Volume 74, Number 11)]
[Rules and Regulations]
[Page 2809-2823]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja09-6]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1491
RIN 0578-AA46
Farm and Ranch Lands Protection Program
AGENCY: Natural Resources Conservation Service (NRCS) and the Commodity
Credit Corporation (CCC),
[[Page 2810]]
United States Department of Agriculture (USDA).
ACTION: Interim final rule with request for comments.
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SUMMARY: The Food, Conservation, and Energy Act of 2008 (the 2008 Act)
amended the Farmland Protection Program (FPP), established by the
Federal Agriculture Improvement and Reform Act of 1996, and
reauthorized by the Farm Security and Rural Investment Act of 2002. In
the implementing rulemaking, the program was named the Farm and Ranch
Lands Protection Program (FRPP) to describe best the types of land the
program seeks to protect. Under the FRPP, the Secretary of Agriculture,
acting through the Natural Resources Conservation Service (NRCS), an
agency of the U.S. Department of Agriculture (USDA), is authorized, on
behalf of the Commodity Credit Corporation (CCC) and under its
authorities, to facilitate and provide funding for the purchase of
conservation easements or other interests in land for the purpose of
protecting the agricultural use and related conservation values by
limiting nonagricultural uses of the land. This rulemaking implements
changes to FRPP made by the 2008 Act and makes administrative
improvement to the program.
DATES: Effective Date: The rule is effective January 16, 2009.
Comment Date: Submit comments on or before March 17, 2009. Comments
will be made available to the public or posted publicly in their
entirety.
ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08006) using any of the following methods:
Government-wide rulemaking Web site: Go to http://
www.regulations.gov and follow the instructions for sending comments
electronically.
Mail: Easements Programs Division, Natural Resources
Conservation Service, Farm and Ranch Lands Program Comments, P.O. 2890,
Room 6819-S, Washington, DC 20013.
E-mail: frpp2008@wdc.usda.gov.
Fax: 1-202-720-9689
Hand Delivery: Room 6819-S of the USDA South Office
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between
9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays.
Please ask the guard at the entrance to the South Office Building to
call 202-720-4527 in order to be escorted into the building.
This interim final rule may be accessed via Internet.
Users can access the NRCS homepage at http://www.nrcs.usda.gov/; select
the Farm Bill link from the menu; select the Interim final link from
beneath the Final and Interim Final Rules Index title under the heading
``2008 NRCS Farm Bill Conservation Program Rules''. Select Farm and
Ranch Lands Protection Program. Persons with disabilities who require
alternative means for communication (Braille, large print, audio tape,
etc.) should contact the USDA TARGET Center at: (202) 720-2600 (voice
and TDD).
FOR FURTHER INFORMATION CONTACT: Director, Easement Programs Division,
U.S. Department of Agriculture, Natural Resources Conservation Service,
Room 6819, P.O. Box 2890, Washington, DC 20013-2890; fax (202) 720-
9689; or e-mail: FRPP2008@wdc.usda.gov. Persons with disabilities who
require alternative means for communication (Braille, large print,
audiotape, etc.) should contact the USDA Target Center at (202) 720-
2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866, this interim final rule with
request for comment has been determined to be a significant regulatory
action. The administrative record is available for public inspection in
Room 5831 South Building, USDA, 14th and Independence Avenue, SW.,
Washington, DC. In accordance with Executive Order 12866, NRCS
conducted an economic analysis of the potential impacts associated with
this program. A summary of the economic analysis can be found at the
end of this preamble and a copy of the analysis is available upon
request from the Director, Easement Programs Division, Natural
Resources Conservation Service, Room 6819, Washington, DC 20250-2890.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this interim
final rule because the CCC is not required by 5 U.S.C. 553, or by any
other provision of law, to publish a notice of proposed rulemaking with
respect to the subject matter of this rule.
Availability of the Environmental Assessment and Finding of No
Significant Impact
A programmatic Environmental Assessment (EA) has been prepared in
association with this rulemaking. The analysis has determined there
will not be a significant impact to the human environment and as a
result an Environmental Impact Statement (EIS) is not required to be
prepared (40 CFR part 1508.13) The EA and FONSI are available for
review and comment for 60 days from the date of publication of this
interim final rule in the Federal Register. Copies of the EA and FONSI
may be obtained from the National Environmental Coordinator, Natural
Resources Conservation Service, Ecological Sciences Division, 1400
Independence Ave., SW., Washington, DC 20250. The FRPP EA and FONSI
will also be available at the following Internet address: http://
www.nrcs.usda.gov/programs/Env_Assess. Written comments on the EA and
FONSI should be specific and reference that comments are regarding the
EA or FONSI. Public comment may be submitted by any of the following
means: (1) E-mail comments to NEPA2008@wdc.usda.gov, (2) e-mail to e-
gov Web site http://www.regulations.gov, or (3) mail written comments
to National Environmental Coordinator, Natural Resources Conservation
Service, Ecological Sciences Division, 1400 Independence Ave., SW.,
Washington, DC 20205.
Civil Rights Impact Analysis
USDA has determined through a Civil Rights Impact Analysis that the
issuance of this rule discloses no disproportionately adverse impacts
for minorities, women, or persons with disabilities. Copies of the
Civil Rights Impact Analysis are available, and may be obtained from
the Director, Easement Programs Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or
electronically at http://www.nrcs.usda.gov/programs/FRPP.
Paperwork Reduction Act
Section 2904 of the Food, Conservation and Energy Act of 2008
requires that the implementation of this provision be carried out
without regard to the Paperwork Reduction Act, Chapter 35 of title 44,
United States Code. Therefore, USDA is not reporting recordkeeping or
estimated paperwork burden associated with this interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act and the Freedom to E-File Act, which require government
agencies in general and NRCS in particular, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
[[Page 2811]]
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988, Civil Justice Reform. The rule is not
retroactive and preempts State and local laws to the extent that such
laws are inconsistent with this rule. Before an action may be brought
in a Federal court of competent jurisdiction, the administrative appeal
rights afforded persons at 7 CFR parts 11 and 614 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), USDA classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Public Law 104-4, USDA assessed the effects of this interim final rule
on State, local, and Tribal governments, and the public. This rule does
not compel the expenditure of $100 million or more by any State, local,
or Tribal governments or anyone in the private sector; therefore, a
statement under section 202 of the Unfunded Mandates Reform Act is not
required.
Executive Order 13132
This interim final rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. USDA has determined
that this interim final rule conforms with the Federalism principles
set forth in the Executive Order; would not impose any compliance costs
on the States; and would not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities on the
various levels of government. Therefore, USDA concludes that this
interim final rule does not have Federalism implications.
Executive Order 13175
This interim final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. USDA has assessed the impact of this
interim final rule on Indian Tribal Governments and has concluded that
this proposed rule will not negatively affect communities of Indian
Tribal governments. The rule will neither impose substantial direct
compliance costs on tribal governments, nor preempt tribal law.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
Section 2904(c) of the Food, Conservation, and Energy Act of 2008
requires that the Secretary use the authority in section 808(2) of
title 5, United States Code, which allows an agency to forgo SBREFA's
usual Congressional Review delay of the effective date of a regulation
if the agency finds that there is a good cause to do so. NRCS hereby
determines that it has good cause to do so in order to meet the
Congressional intent to have the conservation programs authorized or
amended by Title II in effect as soon as possible. Accordingly, this
rule is effective upon filing for public inspection by the Office of
the Federal Register.
Background
FRPP is a voluntary program to help farmers and ranchers preserve
their agricultural land. The program provides matching funds to State,
Tribal, and local governments, and nongovernmental organizations with
farmland protection programs to purchase conservation easements. The
Federal Agriculture Improvement and Reform Act of 1996 (1996 Farm
Bill), Public Law 104-387, established the Farmland Protection Program
(FPP). The Farm Security and Rural Investment Act of 2002 (2002 Farm
Bill), Public Law 107-171, repealed the FPP and created a new farmland
protection program. USDA promulgated a proposed rule on October 29,
2002 (67 FR 65907), and a final rule on May 16, 2003 (68 FR 26474)
implementing the FPP statutory authority and naming the program the
Farm and Ranch Lands Protection Program (FRPP). On July 27, 2006, NRCS
amended the final rule by promulgating an interim final rule. The
interim final rule was prepared to clarify the following policies and
legal requirements: Fair market value definition; the eligibility of
forest lands; the nature of the United States' real property rights and
how the United States will exercise those rights; compliance with
Department of Justice (DOJ) Title Standards; the implementation of
Federal appraisal requirements required by the Uniform Relocation
Assistance and Real Property Acquisitions Policies Act of 1970;
impervious surface limitations on the easement area; and
indemnification requirements. NRCS viewed these issues to be matters of
public interest and thus sought public comment on associated agency
policy. Section 2401 of the Food, Conservation, and Energy Act of 2008
(2008 Act), Public Law 110-246, reauthorized FRPP and made several
amendments.
The Farm and Ranch Lands Protection Program has enrolled 533,068
acres on 2,764 farms and ranches since 1996. That area has included
386,444 acres of prime, unique, and important farmland soil or about 72
percent of the total acreage enrolled. The program has also enrolled
50,007 acres of upland forest, 13,287 acres of forested wetlands, and
29,174 acres of non-forested wetlands. The Federal contribution to
those enrolled parcels was $536 million, the eligible entity
contribution was $857 million, the landowner donation was $215 million,
and the total estimated value of those easements was $1.6 billion. The
average Federal contribution was 33 percent of the total estimated
value, the eligible entity contribution was 53 percent, and the
landowner donation was 13 percent.
Summary of 2008 Act Changes
The 2008 Act revised the Farm and Ranch Lands Protection Program
to:
Expand the program purpose to protecting agricultural
lands by limiting nonagricultural uses.
Shift the program focus from purchasing conservation
easements to facilitating the purchase of conservation easements by
eligible entities.
Require the Secretary to enter into agreements with
eligible entities to stipulate the terms and conditions under which the
entity is authorized to use FRPP funds to acquire easements.
Authorize an eligible entity to use its own conservation
easement deed terms and conditions, as approved by the Secretary, so
long as such terms and conditions are consistent with the purposes of
the program, permit effective enforcement of the conservation easement
deed or other interest and include, among other terms, a limit on the
impervious surfaces to be allowed that is consistent with the
agricultural activities to be conducted.
Require the establishment of a certification process by
which the Secretary will directly qualify certain eligible entities as
certified entities.
Require that to be certified, an eligible entity must have
a plan for administering easements consistent with FRPP purposes, the
capacity and resources to monitor and enforce conservation easements,
policies and procedures to ensure long-term integrity of conservation
easements, timely completion of acquisitions, and timely reporting of
use of funds.
Require that the fair market value of the conservation
easement or other
[[Page 2812]]
interest in eligible land is determined on the basis of an appraisal
using an industry-approved method, selected by the eligible entity and
approved by the Secretary.
Require that entities provide a share of the cost of
purchasing a conservation easement or other interest in eligible land
in an amount that is not less than 25 percent of the acquisition
purchase price.
Require that the Secretary hold a right of enforcement in
FRPP funded conservation easements.
Amend the definition of eligible land to allow for the
inclusion of forest land as an eligible land use.
Allow for the inclusion of forest land that contributes to
the economic viability of an agricultural operation or serves as a
buffer to protect an agricultural operation.
Description of Changes to the Regulation
Subpart A--General Provisions
Section 1491.1 Applicability
Section 1491.1(a) is revised to update the effective date by
removing the reference to ``May 16, 2003'' and inserting that
cooperative agreements shall be administered under the regulations in
effect at the time the cooperative agreement is signed. This change is
necessary for administrative clarity because NRCS is administering
active cooperative agreements that were entered into before passage of
the 2008 Act. In addition, the word ``easements'' is removed from
paragraph (a). The term ``easements'' is removed for administrative
clarity because the terms and conditions in effect when the cooperative
agreements were signed will determine the terms and conditions for a
given easement.
Further, Sec. 1491.1(a) is revised to change ``will'' to
``shall''. The change from ``will'' to ``shall'' is made throughout
this regulation for consistency and to strengthen the understanding of
the requirement, this change will not be referenced again in this
preamble.
Section 1491.2 Administration
Section 1491.2, in paragraph (b)(4) is revised to clarify that a
landowner's eligibility must be determined as well as the land
eligibility and the eligibility of the entity that receives cost-share
through FRPP to purchase the easement. Other non-substantive changes
are included to improve readability
Section 1491.3 Definitions
The purpose of the definition section set forth at Sec. 1491.3 is
to ensure consistent interpretation by the public and NRCS personnel of
the terms used throughout the regulation. Through this rulemaking, NRCS
is amending portions of the definition section to implement 2008 Act
changes as well as to provide consistency with other conservation
programs when practicable.
The definition of ``Agriculture uses'' is amended to use more
current and correct terminology, and to broaden the definition to
reflect the new statutory program purposes. The definition in the 2003
rule linked to the state's purchase of development rights (PDR)
program. The revised definition uses a more universal term, ``farm or
ranch land protection program or equivalent.'' The definition is also
revised to change the program purpose from protecting topsoil, the
purpose of the 2002 Act, to ``protect agricultural use and related
conservation uses'' as provided for in the 2008 Act. Additional non-
substantive changes were made to improve readability.
The term ``Certified entities'' is added to conform to the new
statutory requirement providing for an eligible entity certification
process. Certification of ``eligible entities'' is discussed in the
description of changes to Sec. 1491.4.
The definition for ``contingent right'' is removed because the
regulation no longer refers to the term.
The term ``Cooperative agreement'' is added to define the document
that specifies the obligations and rights of NRCS and the eligible
entities.
The term ``Dedicated fund'' is added and describes an account that
can only be used for the purposes of management, monitoring, and
enforcement of conservation easements. This requirement applies to non-
governmental organizations wishing to become ``certified entities'' and
serves as evidence of their capacity to ensure the long term protection
of easements.
The definition of ``Eligible entities'' is revised to reflect the
statutory change in the program's purpose and to remove language that
is irrelevant to the new definition. The 2008 Act amended the
definition of an eligible entity to add organizations that are
described in paragraph (1) of section 509(a) of the Internal Revenue
Code of 1986.
The definition of ``Eligible land'' is removed because the term is
fully explained in Sec. 1491.4(f).
The definition of ``Fair market value'' is amended to reflect the
change in the statute regarding easement valuation methodology. NRCS
will approve the use of either the Uniform Standards for Professional
Appraisal Practice (USPAP) or the Uniform Appraisal Standards for
Federal Land Acquisition (UASFLA) procedures by the eligible entity for
determining ``fair market value.'' This decision is discussed further
in this preamble where the agency addresses changes to Sec. 1491.4(g).
The definition of ``Farm and ranchland of statewide importance'' is
added to provide greater specificity to the existing umbrella term
``other productive soils.'' This new definition is more descriptive and
technically correct than the current definition of this land type,
which is subsumed in general term ``other productive soils.''
The definition of ``Farm and ranchland of local importance'' is
added for the same reason discussed above under ``Farm and ranchland of
statewide importance.''
The definition of ``Farm or ranch succession plan'' is changed to
correct typographical errors in capitalization and lower case. The
phrase ``Farm or Ranch Succession Plan is * * *'' is changed to ``Farm
or Ranch Succession Plan means * * *'' for consistency purposes.
The definition of ``Field Office Technical Guide (FOTG)'' is
revised to provide consistency with the way the term is defined in
other NRCS program regulations.
The definition of ``Forest land'' is amended to delete the minimum
acreage requirement for forest land. The 2008 Act provides that forest
land is eligible providing it contributes to the economic viability of
an agricultural operation or serves as a buffer to protect an
agricultural operation from development. No minimum acreage enrollment
levels were established in statute.
The term ``Forest management plan'' is added to define a newly
established documentation requirement needed to demonstrate forest land
eligibility, when the ``forest land'' is being enrolled under the
``contributes to the economic viability of the agricultural operation''
land eligibility category. NRCS is using the ``forest management plan''
as documentation of eligibility rather than requiring submission of
receipts or tax returns, which may be viewed as intrusive. The
definition is consistent with the way the term is defined in other NRCS
program regulations.
The definition of Historical and archaeological resources is
amended to include resources listed in the State Historic Preservation
Officer or Tribal Historic Preservation Officer inventory with written
justification as to why the resource meets National Register of
Historic Places criteria. This change is made to more fully recognize
preservation efforts of State, Tribal, and local preservation offices.
[[Page 2813]]
The definition of ``Imminent harm'' is amended to incorporate the
change in statutory purpose of the program from protection of topsoil
to protection of agricultural use and related conservation values.
Other non-substantive changes are made to improve sentence structure
and clarity.
The definition of ``Indian Tribe'' is updated to give the term the
meaning provided in section 4(e) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450(b)(e)). This definition is
consistent with the way the term is defined for other NRCS easement
programs.
The definition of ``landowner'' is amended to clarify that a
landowner may be a ``person, legal entity, or Indian Tribe.'' The
definition clarifies that State and local governments, and non-
governmental organizations are not considered eligible landowners. This
clarification was previously included in policy, but it was not
included in the regulation.
The term ``Natural Resources Conservation Service'' is amended to
more appropriately refer to the ``United States'' rather than ``U. S.''
and to denote ``NRCS'' as the defined acronym.
The definition of ``Non-governmental organization'' is amended in
accordance with the 2008 Act to incorporate reference to organizations
that are described in section 509(a)(1) of the Internal Revenue Code.
The definition of ``Other interests in land'' is amended to clarify
that other interests are interests other than easements.
The definition of ``Other productive soils'' is amended to identify
that the term is restricted to farm and ranch land soils that are
considered ``unique farmland,'' and ``farm and ranch land of statewide
and local importance.'' The terms ``unique farmland'', ``farm and ranch
land of statewide importance'' and ``farm and ranch land of local
importance'' are now defined separately rather than within the
definition of ``other productive soils.'' The change was made to
provide specific definitions for these types of land.
The definition of ``Prime and unique farmland'' is deleted and
replaced with separate definitions for ``Prime farmland'' and ``Unique
farmland.'' The change is made to improve the clarity and technical
correctness of the definitions for these types of land.
The definition of ``Purchase price'' is added to provide for
consistent use of the term in the regulation. ``Purchase price'' is the
appraised fair market value of the easement minus the landowner
donation. The definition of ``purchase price'' is essential to
determining the entity's minimum contribution as provided for in the
2008 Act.
The term ``Right of enforcement'' is added to clarify that a right
of enforcement is an interest in the land which the United States may
exercise under specific circumstances to enforce the terms of the
conservation easement. The exercise of this right is provided in the
description of changes to Sec. 1491.22.
The definition of ``Secretary'' is amended to more appropriately
refer to the ``United States'' rather than the ``U. S.''.
The definition of ``State Technical Committee'' is changed to
remove ``of the U.S. Department of Agriculture'' following the term
``Secretary'' to simplify the definition. The definition for the term
``Secretary'' already includes these words.
The definition of ``State Conservationist'' is updated to use the
current terminology for the ``Pacific Island Area'' rather than
``Pacific Basin Area.''
As noted above, the term ``Unique farmland'' is added to improve
clarity and provide a more technically accurate definition of this type
of land than is described in the existing regulation under ``Prime and
unique farmland.''
The term ``United States' rights'' is removed because the 2008 Act
limited the Secretary's interest in FRPP funded easements to a right of
enforcement which runs with the land. The term ``right of enforcement''
is defined in this section.
Section 1491.4 Program Requirements
Section 1491.4(a) is amended to incorporate the statutory
requirement that NRCS provide funding for conservation easements or
other interests in land versus acquiring a Federal interest in land;
change the reference from the ``Secretary'' to ``Chief''; and to add
the ``right of enforcement''. The ``right of enforcement'' is discussed
further under the description of changes to Sec. 1491.22. The 2008 Act
changed the role of the Secretary to ``facilitate and provide funding
for the purchase of conservation easements or other interests in
eligible land'' rather than to directly purchase easements. Related
changes are made to remove the requirement that the United States is
named as a grantee on the deed and instead require that the United
States' right of enforcement is noted in the opening paragraph of the
deed that acknowledges the parties. The purpose for requiring this
acknowledgement is to put the public on notice of the Federal right and
to guard against condemnation of FRPP-funded deeds. Minor non-
substantive changes are also made to improve readability.
Section 1491.4(b) is amended to add that in states that limit the
term of the easement, the term of the easement must be the maximum
allowed by State law.
Section 1491.4(c) is amended to make non-substantive changes to
improve readability.
A new Sec. 1491.4(d) is added, and subsequent paragraphs are re-
designated, to address the requirements that an entity must meet to
become a ``certified entity.'' The certification process was added by
the 2008 Act as an option for entities. To meet the certification
requirements established under the 2008 Act, NRCS is requiring that an
entity demonstrate long-term and substantial experience directly with
the FRPP program. This section also includes a requirement for the
existence of a dedicated fund for non-governmental organizations, as
described in the changes to Sec. 1491.3. Section 1491.4(d)(1) includes
the requirement that an entity have a demonstrated ability to complete
timely acquisition of easements through compliance with the terms under
previously executed FRPP cooperative agreements.
A new Sec. 1491.4(e) is added to describe the provisions for
review and revocation of certification included in the 2008 Act.
Section 1491.4(f), previously Sec. 1491.4(d), is restructured to
increase clarity and readability. Section 1491.4(f) is amended in
paragraph (1) to combine the provisions of the former Sec.
1491.4(d)(2) and certain provisions found in the ``eligible land''
definition in Sec. 1491.3. Section 1491.4(f)(1) is also amended to add
the new statutory eligibility land category identified as ``to further
a State or local policy consistent with the purposes of the program.''
Section 1491.4(f)(2) is added to describe the type of agriculture land
categories that are eligible for enrollment. This language was
previously found in the definition of ``eligible land'' in Sec.
1491.3, except that, the text in paragraph (f)(2) contains restrictions
on forest land provided in the 2008 Act. Section Sec. 1491.4(f)(3) is
added to include language on incidental lands formerly found in the
definition of ``eligible land''. Section 1491.4(f)(4), previously Sec.
1491.4(d)(1), is revised to clarify that whole or part of a farm or
ranch may be offered for enrollment. In Sec. 1491.4(f)(5), NRCS is
establishing a threshold for requiring the development of forest
management plans. The threshold will be the greater of 10 acres of
forest or 10 percent of the easement area in forest. Based on
historical program
[[Page 2814]]
participation, NRCS estimates that this policy would have resulted in
forest management plans on about 40 percent of the parcels enrolled in
the program currently. Farms that are less than 100 acres in size with
less than 10 acres of forest are not required to have a plan to be
eligible. A forest management plan will help ensure that the Federal
investment in an easement encompassing significant forest acreage will
have long-term viability for food, fiber, and environmental benefits.
The requirement also helps to ensure that these forest lands contribute
to the viability of the agricultural operation as required by the 2008
Act.
Section 1491.4(f)(6), previously Sec. 1491.4(d)(5), is revised to
clarify that lands currently under ownership by an entity whose purpose
is to protect agricultural uses and related conservation values are not
eligible for the program. Lands owned by these entities are already
protected. Exclusion of these lands will allow program investments to
protect additional acreage. This provision is already included in the
FRPP policy, and is now being incorporated into the regulation by this
rulemaking.
Section 1491.4(f)(7), previously Sec. 1491.4(d)(6), is amended to
add the current regulatory Adjusted Gross Income (AGI) eligibility
reference, non-substantive changes are made to improve clarity, and
paragraphs are re-numbered as appropriate.
Section 1491.4(f)(8) is added to describe the on-site and off-site
conditions that are not compatible with the program's purposes.
Section 1491.4(f)(9) is added to clarify that a landowner may
submit an application on land on which the mineral estate is owned by
someone other than the landowner (also referred to as a split estate),
but that USDA reserves the right to determine the impacts of third
party rights upon a potential easement and to deny funding where the
purposes of the program cannot be achieved.
Section 1491.4(g), previously Sec. 1491.4(e), is amended to define
the industry-approved appraisal methods specified in the 2008 Act as
the Uniform Standards of Professional Appraisal Practices (USPAP) or
the Uniform Appraisal Standards for Federal Land Acquisition (UASFLA).
USPAP and UASFLA are the guidelines that professional appraisers use
for appraising properties. The entity may choose which of these methods
they prefer to use. The 2008 Act specified that an appraisal would be
used; therefore, administrative valuation processes which are used by
some farm and ranchland protection programs will not be acceptable
because they are not appraisal methodologies.
Section 1491.4(h), previously Sec. 1491.4(f), is amended to
clarify that a standard deed form may be required and is updated to
reflect the passage of the 2008 Act by indicating that any standard
form must meet the purposes of this part.
Section 1491(4)(i), previously Sec. 1491.4(g), was not otherwise
amended. Section 1491.4(i) contains the requirement that a landowner
must meet the payment eligibility requirements of 7 CFR part 12.
Section 1491.5 Application Procedures
The text of the existing section is deleted in its entirety and
replaced with a new application process. Section 1491.5(a) establishes
that an entity must submit an application to the State Conservationist
in the State where the parcels are located. Section 1491.5(b) provides
that the Chief will determine whether an eligible entity qualifies as a
certified entity based on the criteria in Sec. 1491.4(d) and in the
NRCS national FRPP database.
Section 1491.5(c) indicates that the State Conservationist will
notify the entity about whether or not the entity has been determined
to be eligible or certified.
Section 1491.5 (d) clarifies that an entity with an established
cooperative agreement will not need to submit an annual application in
response to an RFP, but that the entity may re-apply when their
cooperative agreement expires. NRCS determined, based on experience
administering other easement programs, that FRPP can be implemented
using a continuous signup process. This process provides better service
to agency clients because applications can be submitted in accordance
with their own schedule. Clients do not have to wait for a Federal
Register publication. It also reduces administrative burden for the
agency.
Section 1491.5(e) identifies that the new application process will
allow continuous sign-up, which is consistent with other conservation
programs. The State Conservationist will announce periodic ranking
dates no less than 60 days before the date of the ranking. The process
will allow certified and non-certified eligible entities to compete
under the same application and ranking process. NRCS has decided to
have certified and non-certified entities participate similarly in the
program to simplify the application process and allow parcels to
compete on equal resource-based terms, regardless of the status of the
entity.
To eliminate confusion and miscommunication on the status of non-
selected parcels at the end of each fiscal year, Sec. 1491.5(f)
provides that NRCS will purge the unfunded parcels from the application
list on September 30 of each year unless the entity requests that the
parcels be considered for funding in the next fiscal year. If an entity
fails to request that their parcels be retained on the list, a new list
of parcels must be submitted for consideration each year. This process
will allow NRCS State Offices to purge their lists of parcels that may
have dropped their applications or were funded with other sources, and
eliminate confusion for entities regarding the status of their existing
applications.
Section 1491.6 Ranking Considerations and Proposal Selection
The existing section is deleted and replaced by a new ranking
process. Section 1491.6(a) establishes that prior to scoring and
ranking parcels for funding, NRCS must evaluate the eligibility of both
the landowner and the land. Section 1491.6(b) of this section
establishes that such parcels will be ranked according to both National
and State criteria. Within the State ranking criteria, the National
criteria must comprise at least half of the available ranking points.
Section 1491.6(c) identifies that State Conservationists will establish
and announce a date for ranking the applications that were accepted and
scored in the continuous signup. Section 1491.6(d) states that
applications from certified entities and non-certified entities will be
ranked together and not separately so that the parcels submitted
compete equally.
Section 1491.6(e) provides that parcels selected for funding will
be included in the cooperative agreements signed by both NRCS and the
entity; that funds for each fiscal year will be obligated through an
amendment signed by both parties to the existing cooperative agreement;
and that the amendment will identify the closing and payment
reimbursement deadline applicable to each funding year's parcels.
Paragraph (f) sets forth the national ranking criteria. The
national ranking criteria are changed to reflect site (parcel)-specific
criteria rather than entity performance criteria and language has been
added to clarify that the national requirements are mandatory for
inclusion in the state ranking. The national criteria set forth in the
2003 Rule included information in the State FRPP plans, and criteria on
eligible entities regarding their histories of protecting farms and
ranches. These
[[Page 2815]]
criteria did not include parcel specific criteria; however, it is the
individual parcels that are being rated and ranked. Therefore, these
changes are made because the use of the new factors provides a more
quantifiable resource-based ranking of individual parcels.
In addition, in order to clarify and streamline their use, funding
priorities set forth in the existing Sec. 1491.7 are being
incorporated into the new national and the state funding criteria
established by this rulemaking in Sec. 1491.6(f) and (g). In the
``other protected land'' criteria set forth at Sec. 1491.6(f)(7), this
rulemaking adds a reference to military installations to emphasize the
USDA partnership with the Department of Defense under its buffer
program.
Section 1491.6(g) identifies the type of criteria that a State
Conservationist, with advice of the State Technical Committee, may
include. The State ranking criteria may address the viability of the
parcel for agriculture into the future, the landowner's willingness to
grant public access for recreational purposes, and the performance of
the entity. Because the leveraging factors may skew the ranking of
individual parcels and the other factors set forth in the existing
regulation are not relevant to individual parcels, the State ranking
criteria is being changed by this rulemaking to eliminate criteria
related to the type of farm, the maximum amount of Federal funding
required per acre, the percent leveraging, and an entity's history of
assisting beginning farmers and ranchers. Funding priorities from the
former Sec. 1491.7, however, were incorporated as possible State
factors.
Section 1491.6(h), previously Sec. 1491.6(b), provides that the
State ranking criteria will be developed on a State-by-State basis.
However, it removes the language in Sec. 1491.6(b) that recommends
interested entities request ranking criteria from the State
Conservationist. This language is replaced with a provision that
requires NRCS State Conservationists to make available the full listing
of National and State ranking criteria. Section 1491.6(i) is removed
because the purpose of (i) is addressed with the changes in Sec.
1491.4 (g).
Section 1491.7 Funding Priorities
Section 1491.7 is deleted and its elements incorporated in Sec.
1491.6 as noted above to improve the structure of the regulation.
Subpart B--Cooperative Agreements and Conservation Easement Deeds
Section 1491.20 Cooperative Agreements
Section 1491.20(a) is amended to reflect changes to the contents of
cooperative agreements that are necessitated by the 2008 Act, including
the change that FRPP funds are used to assist eligible entities with
the purchase of rights in land rather than to purchase these rights
directly by the United States. To implement 2008 Act statutory changes,
the following additions have been made to this section: requirements of
the easement deed, management and enforcement requirements, the
responsibilities of NRCS, the responsibilities of the eligible entity,
the ability to substitute parcels by mutual agreement, and other
requirements deemed necessary by NRCS. These issues have been addressed
in the cooperative agreements since 1996, but their presence in the
cooperative agreements has never been required by regulation. These
issues are included in this regulation to inform the eligible entities
what their responsibilities are in the agreement and list the
responsibilities of NRCS. Other non-substantive changes were made to
paragraph (a) to improve its readability.
A new Sec. 1491.20(b) is added which sets forth the new statutory
requirement that the terms of agreements be a minimum of five years for
certified entities and three years for other eligible entities.
The existing Sec. 1491.20(b) is being redesignated as Sec.
1491.20(c) and is amended to require that the list of parcels funded
under a cooperative agreement include the acreage, the estimated fair
market value of the parcel, and the FRPP contribution amount. The
requirement for a location map is being removed from the existing
regulation, but such information may be still required as a matter of
policy under the category of ``other relevant information''.
Section 1491.21 Funding
Section 1491.21(a) is amended to reflect that NRCS may share the
cost of an interest in land, and not just the cost of a conservation
easement. Section 1491.21(b) incorporates the 2008 Act change that the
minimum entity cost-share to be an amount that is not less than 25
percent of the acquisition purchase price. As discussed above in the
changes to the definitions section, ``purchase price'' is defined as
the fair market value of the easement less the landowner's
contribution. Section 1491.21(c) authorizes landowner donations without
restrictions. The previous rule limited landowner donations to 25
percent. Section 1491.21(d) includes the requirement that the entity
must provide a minimum of 25 percent of the purchase price of the
conservation easement. Section 1491.21(e) remains unchanged. Section
1491.21(f) emphasizes that a State Conservationist shall not assign a
higher priority to any easement solely based on its lesser cost to
FRPP.
Section 1491.21(g) is added to affirm that NRCS asserts no direct
or indirect interests to environmental credits associated with an
easement purchased in part with FRPP funds.
Section 1491.22 Conservation Easement Deeds
Section 1491.22(b) is amended to clarify that easements in States
where State law prohibits permanent easements shall be of the maximum
duration allowed by state law. The 2008 Act requires that entities may
use their own terms and conditions of conservation easement deeds,
provided that such terms and conditions meet the minimum requirements
set forth in the statute and are approved by the Secretary.
Consequently, this rulemaking amends Sec. 1491.22(c) to provide that
eligible entities may use their own easement deeds when the deed form
to be used for its land transactions under the cooperative agreement
has been submitted to and approved by NRCS in advance.
In accordance with the 2008 Act change made to the property
interest acquired by the United States in FRPP funded easements, this
rulemaking deletes the language of the existing Sec. 1491.22(d), which
requires the United States to be named a grantee on FRPP funded
easements.
New language is set forth in Sec. 1491.22(d) incorporating the
2008 Act requirement that the Secretary shall require the inclusion of
a ``contingent right of enforcement'' for the Secretary in the terms of
the conservation easement deed. Because this right is new in the 2008
Act and is not a standard real property term, NRCS has carefully
considered its meaning while promulgating this rule. Specifically, NRCS
interpreted the plain meaning of the statutory language, considered the
legislative history, and consulted with the Office of the General
Counsel for the Department.
The purpose of the right is to ensure that the easement is enforced
and that the Federal investment is protected. The FRPP statute requires
that the easement deed include a contingent right of enforcement. Given
the requirement for
[[Page 2816]]
inclusion of a contingent right of enforcement in the terms of the
deed, the Agency has determined that it is Congress' intent that such a
right run with the land for the duration of the easement.
The only legislative history discussing the nature of the
contingent right of enforcement is found in the Manager's Report for
FRPP. Here the Managers indicated that Congress did not want the
contingent right of enforcement considered an acquisition of real
property. The House version of FRPP included specific statutory
language stating that the contingent right of enforcement was not a
real property acquisition. However, Congress adopted the Senate version
(with amendment), which did not include this language.
NRCS has concluded that it cannot accomplish the intent of the
Managers as reflected in the legislative history regarding the effect
of ``contingent right of enforcement'' and give meaning to the plain
statutory language of FRPP. This is because when an interest is to run
with the land, it constitutes a real property right. The agency has
considered other theories, including contractual and constitutional
authority under the Spending Clause, but none provide a sufficient
legal justification for the Secretary to enforce the terms of the
easement for its duration against subsequent landowners. Consequently,
the Agency has concluded that the contingent right of enforcement as
used in FRPP means a vested real property right, which provides the
Secretary, on behalf of the United States, the right to enforce the
terms of the easement for the duration of the easement. In addition,
because the United States has a vested real property right in FRPP
easements, i.e., its right of enforcement, the easement cannot be
condemned by state or local government, thereby providing further
protection of the easement and the federal investment.
Finally, the Agency is interpreting the term ``contingent'' in
``contingent right of enforcement'' to mean that the Secretary
exercises that right under certain circumstances, not that the right
itself is contingent. Consequently, to prevent confusion over the scope
of right, the Agency is referring to its enforcement right as a ``right
of enforcement.'' The definition clarifies that this right is only
exercised under certain circumstances. Section 1491.22(d) is changed to
provide information about the United State's right of enforcement.
Specifically, the paragraph provides that the conveyance document must
include the right of enforcement as set forth in the FRPP cooperative
agreement, it identifies when the United States may exercise this right
and it explains that the right is a vested interest in real property
and cannot be condemned by State or local governments. Section
1491.22(e) is amended to remove the requirement for conservation
districts to approve the conservation plan, as this is not always
consistent with local practice. The change still gives NRCS the ability
to work through local conservation districts in the development of
conservation plans. The requirement that NRCS sign the deed accepting
its terms is incorporated at Sec. 1491.22(g) for administrative
clarity.
Section 1491.22(i) retains the impervious surface limit of 2%, but
is amended to increase the impervious surface waiver to up to 10% from
the existing policy of 6%. This change is possible because the statute
was amended to eliminate the protection of topsoil as the primary
purpose of the program. This impervious surface limit should be
adequate to allow for various types of agricultural needs in different
regions, while providing an adequate protection against destruction of
agricultural soil resources and other conservation values associated
with agricultural land such as open space.
The indemnification language previously located in Sec. 1491.30(d)
is moved to Sec. 1491.22(j) because this language describes a deed
requirement and is appropriately placed in this section.
Section 1491.22(k) is added to require that any conservation
easement deed include a clause which addresses amendments to its terms.
In particular, Sec. 1491.22(k) requires that any amendment be
consistent with the purposes of the conservation easement and with
FRPP. This paragraph replaces the provisions previously found in Sec.
1491.23.
Section 1491.23 is removed since the United States is no longer a
grantee under the terms of the conservation easements acquired with
FRPP funds. Therefore, modifications to the terms of the conservation
easement will be handled through an amendment clause required under
Sec. 1491.22(k).
Subpart C--General Administration
Section 1491.30 Violations and Remedies
Section 1491.30(b) and (f) are revised to incorporate the changes
to the nature of the Federal right. The former section 1491.30(e) is
moved to Sec. 1491.22 as described above. Subsequent sections are re-
numbered. Section 1491.30(d) clarifies that any cost recoveries levied
by NRCS will be directed to the cooperating entity, not the specific
landowner.
Section 1491.31 Appeals
Section 1491.31(a) is changed by replacing the term ``cooperating
entity'' with the term ``eligible entity'' to refer to potential FRPP
participants. The term ``cooperating entity'' is no longer used.
Section 1491.31(b) is changed to add the term ``of eligible entity''
after the term ``person'' to ensure the public understands that all
participants have the same rights. Paragraph (b) is further changed to
refer to ``administrative action'' rather than ``any action taken under
this part''. Only administrative actions are appealable. Last,
paragraph (b) is changed to provide that no decision shall be a final
Agency action except a decision of the Chief of NRCS. The words ``Chief
of NRCS'' replace the words ``U.S. Department of Agriculture''.
Paragraph (c) is added to further clarify that once an easement is
recorded, enforcement actions taken by NRCS are not subject to review
under administrative appeal regulations. This language is consistent
with the appeal regulations at 7 CFR part 614, 7 CFR part 11, and
Federal real property law.
Section 1491.32 Scheme and Device
The text of Section 1491.32 is revised by replacing ``Secretary''
with ``NRCS''.
Section 2708, ``Compliance and Performance'', of the 2008 Act added
a paragraph to section 1244(g) of the 1985 Act entitled,
``Administrative Requirements for Conservation Programs,'' which states
the following:
``(g) Compliance and performance.--For each conservation program
under Subtitle D, the Secretary shall develop procedures--
(1) To monitor compliance with program requirements;
(2) To measure program performance;
(3) To demonstrate whether long-term conservation benefits of the
program are being achieved;
(4) To track participation by crop and livestock type; and
(5) To coordinate activities described in this subsection with the
national conservation program authorized under section 5 of the Soil
and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).''
This new provision presents in one place the accountability
requirements placed on the Agency as it implements conservation
programs and reports on program results. The requirements apply to all
programs under Subtitle D, including the Wetlands Reserve program, the
Conservation Security Program, the Conservation Stewardship Program,
the Farm and Ranch Lands
[[Page 2817]]
Protection Program, the Grassland Reserve Program, the Environmental
Quality Incentives Program (including the Agricultural Water
Enhancement Program), the Wildlife Habitat Incentive Program, and the
Chesapeake Bay Watershed initiative. These requirements are not
directly incorporated into these regulations, which set out
requirements for program participants. However, certain provisions
within these regulations relate to elements of section 1244(g) of the
1985 Act and the Agency's accountability responsibilities regarding
program performance. NRCS is taking this opportunity to describe
existing procedures that relate to meeting the requirements of section
1244(g) of the 1985 Act, and Agency expectations for improving its
ability to report on each program's performance and achievement of
long-term conservation benefits. Also included is reference to the
sections of these regulations that apply to program participants and
that relate to the Agency accountability requirements as outlined in
section 1244(g) of the 1985 Act.
Monitor compliance with program requirements. NRCS has established
application procedures to ensure that participants meet eligibility
requirements, and follow-up procedures to ensure that participants are
complying with the terms and conditions of their contractual
arrangement with the government and that the installed conservation
measures are operating as intended. These and related program
compliance evaluation policies are set forth in Agency guidance (440
CPM--519) (http://directives.sc.egov.usda.gov/).
The program requirements applicable to participants that relate to
compliance are set forth in these regulations in Sec. 1491.4,
``Program Requirements'', Sec. 1491.22, ``Conservation Easement
Deeds'', and Sec. 1491.30, ``Violations and remedies''. These sections
make clear the general program participant and entity obligations, the
terms and conditions of the conservation easement, and the
ramifications of noncompliance. Pursuant to the requirements of the
Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec.
1116) and guidance provided by OMB Circular A-11, NRCS has established
performance measures for its conservation programs. Program-funded
conservation activity is captured through automated field-level
business tools and the information is made publicly available at:
http://ias.sc.egov.usda.gov/PRSHOME/. Program performance also is
reported annually to Congress and the public through the annual
performance budget, annual accomplishments report and the USDA
Performance Accountability Report. Related performance measurement and
reporting policies are set forth in Agency guidance (GM--340--401 and
GM--340--403) (http://directives.sc.egov.usda.gov/).
The actions undertaken by eligible entities and participants are
the basis for measuring program performance--specific actions are
tracked and reported annually, while the effects of those actions
relate to whether the long-term benefits of the program are being
achieved. The program requirements applicable to participants and
eligible entities that relate to undertaking conservation actions are
set forth in these regulations in Sec. 1491.4, ``Program
Requirements,'' Sec. 1491.20, ``Cooperative Agreements,'' and Sec.
1491.22 ``Conservation Easement Deeds''.
Demonstrate whether long-term conservation benefits of the program
are being achieved. Demonstrating the long-term natural resource
benefits achieved through conservation programs is subject to the
availability of needed data, the capacity and capability of modeling
approaches, and the external influences that affect actual natural
resource condition. While NRCS captures many measures of ``output''
data, such as acres of conservation practices, it is still in the
process of developing methods to quantify the contribution of those
outputs to environmental outcomes NRCS currently uses a mix of
approaches to evaluate whether long-term conservation benefits are
being achieved through its programs. Since 1982, NRCS has reported on
certain natural resource status and trends through the National
Resources Inventory (NRI), which provides statistically reliable,
nationally consistent land cover/use and related natural resource data.
However, lacking has been a connection between these data and specific
conservation programs. In the future, the interagency Conservation
Effects Assessment Project (CEAP), which has been underway since 2003,
will provide nationally consistent estimates of environmental effects
resulting from conservation practices and systems applied. CEAP results
will be used in conjunction with performance data gathered through
Agency field-level business tools to help produce estimates of
environmental effects accomplished through Agency programs, such as
WRP. In 2006 a Blue Ribbon panel evaluation of CEAP strongly endorsed
the project's purpose, but concluded ``CEAP must change direction'' to
achieve its purposes. In response, CEAP has focused on priorities
identified by the Panel and clarified that its purpose is to quantify
the effects of conservation practices applied on the landscape.
Information regarding CEAP, including reviews and current status is
available at (http://www.nrcs.usda.gov/technical/NRI/ ceap/. Since 2004
and the initial establishment of long-term performance measures by
program, NRCS has been estimating and reporting progress toward long-
term program goals. Natural resource inventory and assessment, and
performance measurement and reporting policies set forth in Agency
guidance (GM--290--400; GM--340--401; GM--340--403) (http://
directives.sc.egov.usda.gov/).
Demonstrating the long-term conservation benefits of conservation
programs is an Agency responsibility. Through CEAP, NRCS is in the
process of evaluating how these long-term benefits can be achieved
through the conservation practices and systems applied by participants
under the program. The program requirements applicable to participants
that relate to producing long-term conservation benefits are described
previously under ``measuring program performance.''
Track participation by crop and livestock type. NRCS' automated
field-level business tools capture participant, land, and operation
information. This information is aggregated in the National
Conservation Planning database and is used in a variety of program
reports. Additional reports will be developed to provide more detailed
information on program participation to meet congressional needs. These
and related program management procedures supporting program
implementation are set forth in Agency guidance (440 CPM 519).
The program requirements applicable to participants that relate to
tracking participation by crop and livestock type are put forth in
these regulations in Sec. 1491.4, ``Program Requirements,'' which
makes clear program eligibility requirements, including the requirement
to provide NRCS the information necessary to implement WRP.
Coordinate these actions with the national conservation program
authorized under the Soil and Water Resources Conservation Act (RCA).
The 2008 Act reauthorized and expanded on a number of elements of the
RCA related to evaluating program performance and conservation
benefits. Specifically, the 2008 Farm Bill added a provision stating,
``Appraisal and inventory of resources, assessment and inventory of
conservation needs, evaluation of the effects of conservation
practices, and analyses of alternative approaches to
[[Page 2818]]
existing conservation programs are basic to effective soil, water, and
related natural resources conservation.''
The program, performance, and natural resource and effects data
described previously will serve as a foundation for the next RCA, which
will also identify and fill, to the extent possible, data and
information gaps. Policy and procedures related to the RCA are set
forth in Agency guidance (GM--290--400; M--440--525; GM--130--
402)(http://directives.sc.egov.usda.gov/).
The coordination of the previously described components with the
RCA is an Agency responsibility and is not reflected in these
regulations. However, it is likely that results from the RCA process
will result in modifications to the program and performance data
collected, to the systems used to acquire data and information, and
potentially to the program itself. Thus, as the Secretary proceeds to
implement the RCA in accordance with the statute, the approaches and
processes developed will improve existing program performance
measurement and outcome reporting capability and provide the foundation
for improved implementation of the program performance requirements of
section 1244(g) of the 1985 Act.
List of Subjects in 7 CFR 1491
Administrative practice and procedure, Agriculture, Soil
conservation.
0
For the reasons stated in the preamble, the Commodity Credit
Corporation revises 7 CFR part 1491 to read as follows:
PART 1491--FARM AND RANCH LANDS PROTECTION PROGRAM
Subpart A--General Provisions
Sec.
1491.1 Applicability.
1491.2 Administration.
1491.3 Definitions.
1491.4 Program requirements.
1491.5 Application procedures.
1491.6 Ranking considerations and proposal selection.
Subpart B--Cooperative Agreements and Conservation Easement Deeds
1491.20 Cooperative agreements.
1491.21 Funding.
1491.22 Conservation easement deeds.
Subpart C--General Administration
1491.30 Violations and remedies.
1491.31 Appeals.
1491.32 Scheme or device.
Authority: 16 U.S.C. 3838h-3838i.
Subpart A--General Provisions
Sec. 1491.1 Applicability.
(a) The regulations in this part set forth requirements, policies,
and procedures, for implementation of the Farm and Ranch Lands
Protection Program (FRPP) as administered by the Natural Resources
Conservation Service (NRCS). FRPP cooperative agreements shall be
administered under the regulations in effect at the time the
cooperative agreement is signed.
(b) The NRCS Chief may implement FRPP in any of the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin
Islands of the United States, American Samoa, and the Commonwealth of
the Northern Mariana Islands.
Sec. 1491.2 Administration.
(a) The regulations in this part shall be administered under the
general supervision and direction of the NRCS Chief.
(b) NRCS shall--
(1) Provide overall program management and implementation
leadership for FRPP;
(2) Develop, maintain, and ensure that policies, guidelines, and
procedures are carried out to meet program goals and objectives;
(3) Ensure that the FRPP share of the cost of an easement or other
deed restrictions in eligible land shall not exceed 50 percent of the
appraised fair market value of the conservation easement;
(4) Determine eligibility of the land, the landowner, and the
entity;
(5) Ensure a conservation plan is developed in accordance with 7
CFR part 12;
(6) Make funding decisions and determine allocations of program
funds;
(7) Coordinate with the Office of the General Counsel (OGC) to
ensure the legal sufficiency of the cooperative agreement and the
easement deed or other legal instrument;
(8) Sign and monitor cooperative agreements for the CCC with the
selected entity;
(9) Monitor and ensure conservation plan compliance with highly
erodible land and wetland provisions in accordance with 7 CFR part 12;
and
(10) Provide leadership for establishing, implementing, and
overseeing administrative processes for easements, easement payments,
and administrative and financial performance reporting.
(c) NRCS shall enter into cooperative agreements with eligible
entities to assist NRCS with implementation of this part.
Sec. 1491.3 Definitions.
The following definitions will apply to this part and all documents
issued in accordance with this part, unless specified otherwise:
Agricultural uses are defined by the State's farm or ranch land
protection program or equivalent, or where no program exists,
agricultural uses should be defined by the State agricultural use tax
assessment program. (If NRCS finds that a State definition of
agriculture is so broad that an included use could lead to the
degradation of soils and agriculture productivity, NRCS reserves the
right to impose greater deed restrictions on the property than
allowable under that State definition of agriculture in order to
protect agricultural use and related conservation values.)
Certified entity means an eligible entity that NRCS has determined
to meet the requirements of Sec. 1491.4(d) of this part.
Chief means the Chief of NRCS, USDA.
Commodity Credit Corporation (CCC) is a Government-owned and
operated entity that was created to stabilize, support, and protect
farm income and prices. CCC is managed by a Board of Directors, subject
to the general supervision and direction of the Secretary of
Agriculture, who is an ex-officio director and chairperson of the
Board. CCC provides the funding for FRPP, and NRCS administers FRPP on
its behalf.
Conservation Easement means a voluntary, legally recorded
restriction, in the form of a deed, on the use of property, in order to
protect resources such as agricultural lands, historic structures, open
space, and wildlife habitat.
Conservation Plan is the document that--
(1) Applies to highly erodible cropland;
(2) Describes the conservation system applicable to the highly
erodible cropland and describes the decisions of the person with
respect to location, land use, tillage systems, and conservation
treatment measures and schedules;
(3) Is approved by the local soil conservation district in
consultation with the local committees established under Section
8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C.
5909h(b)(5)) and the Secretary, or by the Secretary.
Cooperative agreement means the document that specifies the
obligations and rights of NRCS and eligible entities participating in
the program.
Dedicated fund means an account held by an eligible entity
sufficiently
[[Page 2819]]
capitalized for the purpose of covering expenses associated with the
management, monitoring, and enforcement of conservation easements and
where such account cannot be used for other purposes.
Eligible entity means federally recognized Indian Tribes, State,
unit of local government, or a non-governmental organization, which has
a farmland protection program that purchases agricultural conservation
easements for the purpose of protecting agriculture use and related
conservation values by limiting conversion to non-agricultural uses of
the land.
Fair market value means the value of a conservation easement as
ascertained through standard real property appraisal methods, as
established in Sec. 1491.4(g).
Farm and ranch land of statewide importance means, in addition to
prime and unique farmland, land that is of statewide importance for the
production of food, feed, fiber, forage, bio-fuels, and oil seed crops.
Criteria for defining and delineating this land are to be determined by
the appropriate State agency or agencies. Generally, additional
farmlands of statewide importance include those that are nearly prime
farmland and that economically produce high yields of crops when
treated and managed according to acceptable farming methods. Some may
produce as high a yield as prime farmlands if conditions are favorable.
In some States, additional farmlands of statewide importance may
include tracts of land that have been designated for agriculture by
State law in accordance with 7 CFR part 657.
Farm and ranch land of local importance means farm or ranch land
used to produce food, feed, fiber, forage, bio-fuels, and oilseed
crops, that are not identified as having national or statewide
importance. Where appropriate, these lands are to be identified by the
local agency or agencies concerned. Farmlands of local importance may
include tracts of land that have been designated for agriculture by
local ordinance.
Farm or Ranch Succession Plan means a general plan to address the
continuation of some type of agricultural business on the conserved
land; the farm or ranch succession plan may include specific intra-
family succession agreements or strategies to address business asset
transfer planning to create opportunities for beginning farmers and
ranchers.
Field Office Technical Guide (FOTG) means the official local NRCS
source of resource information and interpretations of guidelines,
criteria, and requirements for planning and applying conservation
practices and conservation management systems. The FOTG contains
detailed information on the conservation of soil, water, air, plant,
and animal resources applicable to the local area for which it is
prepared.
Forest land means a land cover or use category that is at least 10
percent stocked by single-stemmed woody species of any size that will
be at least 13 feet tall at maturity. Also included is land bearing
evidence of natural regeneration of tree cover (cutover forest or
abandoned farmland) that is not currently developed for non-forest use.
Ten percent stocked, when viewed from a vertical direction, equates to
an aerial canopy cover of leaves and branches of 25 percent or greater.
Forest management plan means a site-specific plan that is prepared
by a professional resource manager, in consultation with the
participant, and is approved by the State Conservationist. Forest
management plans may include a forest stewardship plan, as specified in
section 5 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C.
2103a); another practice plan approved by the State Forester; or
another plan determined appropriate by the State Conservationist. The
plan complies with applicable Federal, State, Tribal, and local laws,
regulations and permit requirements.
Historical and archaeological resources mean resources that are:
(1) Listed in the National Register of Historic Places (established
under the National Historic Preservation Act (NHPA), 16 U.S.C. 470, et
seq.),
(2) Formally determined eligible for listing in the National
Register of Historic Places (by the State Historic Preservation Officer
(SHPO) or Tribal Historic Preservation Officer (THPO) and the Keeper of
the National Register in accordance with section 106 of the NHPA),
(3) Formally listed in the State or Tribal Register of Historic
Places of the SHPO (designated under section 101(b)(1)(B) of the NHPA)
or the THPO (designated under section 101(d)(1)(C) of the NHPA), or
(4) Included in the SHPO or THPO inventory with written
justification as to why it meets National Register of Historic Places
criteria.
Imminent harm means easement violations or threatened violations
that, as determined by the Chief, would likely cause immediate and
significant degradation to the conservation values; for example, those
violations that would adversely impact agriculture use, productivity,
and related conservation values or result in the erosion of topsoil
beyond acceptable levels as established by NRCS.
Indian Tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.,
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians (25 U.S.C. 450(b)(e)).
Land Evaluation and Site Assessment System (LESA) means the land
evaluation system approved by the NRCS State Conservationist used to
rank land for farm and ranch land protection purposes, based on soil
potential for agriculture, as well as social and economic factors, such
as location, access to markets, and adjacent land use. (For additional
information see the Farmland Protection Policy Act rule at 7 CFR part
658.)
Landowner means a person, legal entity, or Indian Tribe having
legal ownership of land, and those who may be buying eligible land
under a purchase agreement. The term ``landowner'' may include all
forms of collective ownership including joint tenants, tenants-in-
common, and life tenants. State governments, local governments, and
non-governmental organizations that qualify as eligible entities are
not eligible as landowners.
Natural Resources Conservation Service (NRCS) means an agency of
the United States Department of Agriculture.
Non-governmental organization means any organization that:
(1) Is organized for, and at all times since the formation of the
organization, has been operated principally for one or more of the
conservation purposes specified in clause (i), (ii), (iii), or (iv) of
section 170(h)(4)(A) of the Internal Revenue Code of 1986;
(2) Is an organization described in section 501(c)(3) of that Code
that is exempt from taxation under 501(a) of that Code; and
(3) Is described--
(i) In section 509(a)(1) and (2) of that Code; or
(ii) Is described in section 509(a)(3) of that Code and is
controlled by an organization described in section 509(a)(2) of that
Code.
Other interests in land include any right in real property other
than easements that are recognized by State law. FRPP funds shall only
be used to purchase other interests in land with prior approval from
the Chief.
[[Page 2820]]
Other productive soils means farm and ranch land soils, in addition
to prime farmland soils that include unique farmland and farm and ranch
land of statewide and local importance.
Pending offer means a written bid, contract, or option extended to
a landowner by an eligible entity to acquire a conservation easement
before the legal title to these rights has been conveyed for the
purpose of limiting non-agricultural uses of the land.
Prime farmland means land that has the best combination of physical
and chemical characteristics for producing food, feed, fiber, forage,
oilseed, and other agricultural crops with minimum inputs of fuel,
fertilizer, pesticides, and labor, without intolerable soil erosion, as
determined by the Secretary.
Purchase price means the appraised fair market value of the
easement minus the landowner donation.
Right of enforcement means an interest in real property set forth
in the conservation easement deed, equal in scope to the right of
inspection and enforcement granted to the grantee, that the United
States Government may exercise under specific circumstances in order to
enforce the terms of the conservation easement.
Secretary means the Secretary of the United States Department of
Agriculture.
State Technical Committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861 and 7 CFR part 610,
subpart C.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area (Puerto
Rico and the Virgin Islands), or the Pacific Island Area (Guam,
American Samoa, and the Commonwealth of the Northern Mariana Islands).
Unique farmland means land other than prime farmland that is used
for the production of specific high-value food and fiber crops, as
determined by the Secretary. It has the special combination of soil
quality, location, growing season, and moisture supply needed to
economically produce sustained high quality or high yields of specific
crops when treated and managed according to acceptable farming methods.
Examples of such crops include citrus, tree nuts, olives, cranberries,
fruits, and vegetables. Additional information on the definition of
prime, unique, or other productive soil can be found in 7 CFR part 657
and 7 CFR part 658.
Sec. 1491.4 Program requirements.
(a) Under FRPP, the Chief, on behalf of CCC, shall provide funding
for the purchase of conservation easements or other interests in
eligible land that is subject to a pending offer from an eligible
entity for the purpose of protecting the agricultural use and related
conservation values of the land by limiting nonagricultural uses of the
land. Eligible entities submit applications to NRCS State Offices to
partner with NRCS to acquire conservation easements on farm and ranch
land. NRCS enters into cooperative agreements with selected entities
and provides funds for up to 50 percent of the fair market value of the
easement. In return, the entity agrees to acquire, hold, manage, and
enforce the easement. A Federal right of enforcement must also be
included in each FRPP funded easement deed for the protection of the
Federal investment.
(b) The term of all easements shall be in perpetuity unless
prohibited by State law. In states that limit the term of the easement,
the term of the easement must be the maximum allowed by State law.
(c) To be eligible to receive FRPP funding, an entity must meet the
definition of ``eligible entity'' as listed in Sec. 1491.3. In
addition, eligible entities interested in receiving FRPP funds must
demonstrate:
(1) A commitment to long-term conservation of agricultural lands;
(2) A capability to acquire, manage, and enforce easements;
(3) Sufficient number of staff dedicated to monitoring and easement
stewardship; and
(4) The availability of funds.
(d) To be eligible as a ``certified entity,'' an entity must be
qualified to be an ``eligible entity'' and have demonstrated, as
determined by the Chief:
(1) The ability to complete acquisition of easements in a timely
fashion;
(2) The ability to monitor easements on a regular basis;
(3) The ability to enforce the provisions of easement deeds;
(4) Experience enrolling parcels in the Farm and Ranch Lands
Protection Program (FRPP) or the Farmland Protection Program (FPP);
(5) For non-governmental organizations, the existence of a
dedicated fund for the purposes of easement management, monitoring, and
enforcement where such fund is sufficiently capitalized in accordance
with NRCS standards. The dedicated fund must be dedicated to the
purposes of managing, monitoring, and enforcing each easement held by
the eligible entity; and
(6) Other certification criteria, including having a plan for
administering easements enrolled under this part, as determined by the
Chief.
(e) Review and Revocation of Certification.
(1) The Chief shall conduct a review of certified entities every
three years to ensure that the certified entities are meeting the
certification criteria established in Sec. 1491.4(d).
(2) If the Chief finds that the certified entity no longer meets
the criteria in Sec. 1491.4(d), the Chief may:
(i) Allow the certified entity a specified period of time, at a
minimum 180 days, in which to take such actions as may be necessary to
meet the criteria; and
(ii) Revoke the certification of the entity, if after the specified
period of time, the certified entity does not meet the criteria
established in Sec. 1491.4(d).
(f) Eligible land:
(1) Must be privately owned land on a farm or ranch and contain at
least 50 percent prime, unique, Statewide, or locally important
farmland, unless otherwise determined by the State Conservationist;
contain historical or archaeological resources; or furthers a State or
local policy consistent with the purposes of the program; and is
subject to a pending offer by an eligible entity;
(2) Must be cropland, rangeland, grassland, pasture land, or forest
land that contributes to the economic viability of an agricultural
operation or serves as a buffer to protect an agricultural operation
from development;
(3) May include land that is incidental to the cropland, rangeland,
grassland, pasture land, or forest land if the incidental land is
determined by the Secretary to be necessary for the efficient
administration of a conservation easement;
(4) May include parts of or entire farms or ranches;
(5) Must not include forest land of greater than two-thirds of the
easement area. Forest land that exceeds the greater of 10 acres or 10
percent of the easement area shall have a forest management plan before
closing;
(6) NRCS shall not enroll land in FRPP that is owned in fee title
by an agency of the United States, a State or local government, or by
an entity whose purpose is to protect agricultural use and related
conservation values, including those listed in the statute under
eligible land, or land that is already subject to an easement or deed
restriction that limits the conversion of the land to nonagricultural
use, unless otherwise determined by the Chief;
(7) Must be owned by landowners who certify that they do not exceed
the adjusted gross income limitation
[[Page 2821]]
eligibility requirements set forth in part 1400 of this title;
(8) Must possess suitable on-site and off-site conditions which
will allow the easement to be effective in achieving the purposes of
the program. Suitability conditions may include, but are not limited
to, hazardous substances on or in the vicinity of the parcel, land use
surrounding the parcel that is not compatible with agriculture, and
highway or utility corridors that are planned to pass through or
immediately adjacent to the parcel; and
(9) May be land on which gas, oil, earth, or other mineral rights
exploration has been leased or is owned by someone other than the
applicant may be offered for participation in the program. However, if
an applicant submits an offer for an easement project, USDA will assess
the potential impact that the third party rights may have upon
achieving the program purposes. USDA reserves the right to deny funding
for any application where there are exceptions to clear title on any
property.
(g) Prior to FRPP fund disbursement, the value of the conservation
easement must be appraised. Appraisals must be completed and signed by
a State-certified general appraiser and must contain a disclosure
statement by the appraiser. The appraisal must conform to the Uniform
Standards of Professional Appraisal Practices or the Uniform Appraisal
Standards for Federal Land Acquisitions, as selected by the entity.
State Conservationists will provide the guidelines through which NRCS
will review appraisals for quality control purposes.
(h) The landowner shall be responsible for complying with the
Highly Erodible Land and Wetland Conservation provisions of the Food
Security Act of 1985, as amended, and 7 CFR part 12.
Sec. 1491.5 Application procedures.
(a) An entity shall submit an application to the State
Conservationist in the State where parcels are located in order to
determine if the entity is eligible to participate in FRPP.
(b) The Chief shall determine whether an eligible entity is a
certified entity based on the criteria set forth in Sec. 1491.4(d);
information provided by the entity's application; and data in the
national FRPP database.
(c) The State Conservationist shall notify each entity if it has
been determined eligible, certified, or ineligible.
(d) Entities with cooperative agreements entered into after the
effective date of this part will not have to resubmit an annual
application for the duration of the cooperative agreement. Entities may
reapply for eligibility when their cooperative agreements expire.
(e) Throughout the fiscal year, eligible entities may submit to the
appropriate NRCS State Conservationist applications for parcels, in
that State, with supporting information to be scored, ranked, and
considered for funding.
(f) At the end of each fiscal year, the lists of pending, unfunded
parcels shall be cancelled unless the entity requests that specific
parcels be considered for funding in the next fiscal year. Entities
must submit a new list of parcels each fiscal year in order to be
considered for funding unless they request that parcels from the
previous fiscal year be considered.
Sec. 1491.6 Ranking considerations and proposal selection.
(a) Before the State Conservationist can score and rank the parcels
for funding, the eligibility of the landowner and the land must be
assessed.
(b) The State Conservationist shall use National and State criteria
to score and rank parcels. The national ranking criteria will be
established by the Chief and the State criteria will be determined by
the State Conservationist, with advice from the State Technical
Committee. The national criteria shall comprise at least half of the
ranking system score.
(c) When funds are available, the State Conservationist shall
announce the date on which ranking of parcels shall occur. A State
Conservationist may announce more than one date of ranking in a fiscal
year.
(d) All parcels submitted throughout the fiscal year shall be
scored. All parcels will be ranked together in accordance with the
national and state ranking criteria before parcels are selected for
funding.
(e) The parcels selected for funding shall be listed on the
agreements of the entities that submitted the parcels and the
agreements shall be signed by the State Conservationist and the
eligible entity. Funds for each fiscal year's parcels shall be
obligated with a new signature each year on an amendment to the
agreement. Parcels funded on each fiscal year's amendment shall have a
separate deadline for closing and requesting reimbursement.
(f) The national ranking criteria are:
(1) Percent of prime, unique, and important farmland in the parcel
to be protected;
(2) Percent of cropland, pastureland, grassland, and rangeland in
the parcel to be protected;
(3) Ratio of the total acres of land in the parcel to be protected
to average farm size in the county according to the most recent USDA
Census of Agriculture;
(4) Decrease in the percentage of acreage of farm and ranch land in
the county in which the parcel is located between the last two USDA
Censuses of Agriculture;
(5) Percent population growth in the county as documented by the
United States Census;
(6) Population density (population per square mile) as documented
by the most recent United States Census;
(7) Proximity of the parcel to other protected land, such as
military installations land owned in fee title by the United States or
a State or local government, or by an entity whose purpose is to
protect agricultural use and related conservation values, or land that
is already subject to an easement or deed restriction that limits the
conversion of the land to nonagricultural use;
(8) Proximity of the parcel to other agricultural operations and
infrastructure; and
(9) Other additional criteria as determined by the Chief.
(g) State or local criteria, as determined by the State
Conservationist, with advice of the State Technical Committee, may
include:
(1) The location of a parcel in an area zoned for agricultural use;
(2) The performance of an entity experience in managing and
enforcing easements. Performance must be measured by the closing
efficiency or percentage of monitoring that is reported. Years of an
entity's existence shall not be used as a ranking factor;
(3) Multifunctional benefits of farm and ranch land protection
including social, economic, historical and archaeological, and
environmental benefits;
(4) Geographic regions where the enrollment of particular lands may
help achieve National, State, and regional conservation goals and
objectives, or enhance existing government or private conservation
projects;
(5) Diversity of natural resources to be protected;
(6) Score in the Land Evaluation and Site Assessment (LESA) system.
This score serves as a measure of agricultural viability (access to
markets and infrastructure);
(7) Existence of a farm or ranch succession plan or similar plan
established to encourage farm viability for future generations; and
(8) Landowner willingness to allow public access for recreational
purposes.
[[Page 2822]]
(h) State ranking criteria will be developed on a State-by-State
basis. The State Conservationist will make available a full listing of
applicable National and State ranking criteria.
Subpart B--Cooperative Agreements and Conservation Easement Deeds
Sec. 1491.20 Cooperative agreements.
(a) NRCS, on behalf of CCC, shall enter into a cooperative
agreement with those entities selected for funding. Once a proposal is
selected by the State Conservationist, the entity must work with the
State Conservationist to finalize and sign the cooperative agreement,
incorporating all necessary FRPP requirements. The cooperative
agreement must address:
(1) The interests in land to be acquired, including the United
States' right of enforcement as well as the form and other terms and
conditions of the easement deed;
(2) The management and enforcement of the rights on lands acquired
with FRPP funds;
(3) The responsibilities of NRCS;
(4) The responsibilities of the eligible entity on lands acquired
with FRPP funds;
(5) The allowance of parcel substitution upon mutual agreement of
the parties; and
(6) Other requirements deemed necessary by NRCS to meet the
purposes of this part or protect the interests of the United States.
(b) The term of cooperative agreements shall be a minimum of five
years for certified entities and three years for other eligible
entities.
(c) The cooperative agreement shall also include an attachment
listing the parcels accepted by the State Conservationist. This list
shall include landowners' names and addresses, acreage, the estimated
fair market value, the estimated Federal contribution, and other
relevant information. An example of a cooperative agreement shall be
made available by the State Conservationist.
Sec. 1491.21 Funding.
(a) Subject to the statutory limits, the State Conservationist, in
coordination with the cooperating entity, shall determine the NRCS
share of the cost of purchasing a conservation easement or other
interest in the land.
(b) NRCS may provide up to 50 percent of the appraised fair market
value of the conservation easement, as determined in Sec. 1491.4(g).
An entity shall share in the cost of purchasing a conservation easement
in accordance with the limitations of this part.
(c) A landowner may make donations toward the acquisition of the
conservation easement.
(d) The entity must provide a minimum of 25 percent of the purchase
price of the conservation easement.
(e) FRPP funds may not be used for expenditures such as appraisals,
surveys, title insurance, legal fees, costs of easement monitoring, and
other related administrative and transaction costs incurred by the
entity.
(f) If the State Conservationist determines that the purchase of
two or more conservation easements are comparable in achieving FRPP
goals, the State Conservationist shall not assign a higher priority to
any one of these conservation easements solely on the basis of lesser
cost to FRPP.
(g) Environmental Services Credits.
(1) NRCS asserts no direct or indirect interest in environmental
credits that may result from or be associated with an FRPP easement.
(2) NRCS retains the authority to ensure that the requirements for
FRPP-funded easements are met and maintained consistent with this part.
(3) If activities required under an environmental credit agreement
may affect land covered under a FRPP easement, landowners are
encouraged to request a compatibility assessment from the eligible
entity prior to entering into such agreements.
Sec. 1491.22 Conservation easement deeds.
(a) Under FRPP, a landowner grants an easement to an eligible
entity with which NRCS has entered into an FRPP cooperative agreement.
The easement shall require that the easement area be maintained in
accordance with FRPP goals and objectives for the term of the easement.
(b) Pending offers by an eligible entity must be for acquiring an
easement in perpetuity, except where State law prohibits a permanent
easement. In such cases where State law limits the term of a
conservation easement, the easement term shall be for the maximum
allowed under state law.
(c) The entity may use its own terms and conditions in the
conservation easement deed, but a conservation easement deed template
used by the eligible entity shall be submitted to the NRCS National
Headquarters within 30 days of the signing of the cooperative
agreement. The conservation easement deed templates must be reviewed
and approved by the NRCS National Headquarters in advance of use. NRCS
reserves the right to require additional specific language or to remove
language in the conservation easement deed to protect the interests of
the United States.
(d) The conveyance document must include a ``right of enforcement''
clause for the United States. NRCS shall specify the terms for the
``right of enforcement'' clause to read as set forth in the FRPP
cooperative agreement. The right of enforcement provides that the NRCS
has the right to inspect and enforce the easement, if the eligible
entity fails to uphold the easement, as determined by NRCS. This right
is a vested interest in real property and cannot be condemned by State
or local government.
(e) As a condition for participation, a conservation plan shall be
developed by NRCS in consultation with the landowner and implemented
according to the NRCS Field Office Technical Guide. NRCS may work
through the local conservation district in the development of the
conservation plan. The conservation plan will be developed and managed
in accordance with the Food Security Act of 1985, as amended, 7 CFR
part 12 or subsequent regulations, and other requirements as determined
by the State Conservationist. To ensure compliance with this
conservation plan, the easement shall grant to the United States,
through NRCS, its successors or assigns, a right of access to the
easement area.
(f) The cooperating entity shall acquire, hold, manage and enforce
the easement. The cooperating entity may have the option to enter into
an agreement with governmental or private organizations to carry out
easement stewardship responsibilities.
(g) Prior to easement closing, NRCS must sign an acceptance of the
conservation easement, concurring with the terms of the conservation
easement and accepting its interest in the conservation easement deed.
(h) All conservation easement deeds acquired with FRPP funds must
be recorded. Proof of recordation shall be provided to NRCS by the
cooperating entity.
(i) Impervious surfaces shall not exceed two percent of the FRPP
easement area, excluding NRCS-approved conservation practices. The NRCS
State Conservationist may waive the two percent impervious surface
limitation on a parcel by parcel basis, provided that no more than ten
percent of the easement area is covered by impervious surfaces. Before
waiving the two percent limitation, the State Conservationist must
consider, at a minimum: population density; the ratio of open prime
other important farmland versus impervious surfaces on the easement
area; the impact to water
[[Page 2823]]
quality concerns in the area; the type of agricultural operation; and
parcel size. All FRPP easements must include language limiting the
amount of impervious surfaces within the easement area.
(j) The conservation easement deed must include an indemnification
clause requiring the landowner (grantor) to indemnify and hold harmless
the United States from any liability arising from or related to the
property enrolled in FRPP.
(k) The conservation easement deed must include an amendment clause
requiring that any changes to the easement deed after its recordation
must be consistent with the purposes of the conservation easement and
this part.
Subpart C--General Administration
Sec. 1491.30 Violations and remedies.
(a) In the event of a violation of the terms of the easement, the
eligible entity shall notify the landowner. The landowner may be given
reasonable notice and, where appropriate, an opportunity to voluntarily
correct the violation in accordance with the terms of the conservation
easement.
(b) In the event that the entity fails to enforce any of the terms
of the conservation easement, as determined in the sole discretion of
the Chief, the Chief and his or her successors or assigns may exercise
the United States' rights to enforce the terms of the conservation
easement through any and all authorities available under Federal or
State law.
(c) Notwithstanding paragraph (a) of this section, NRCS, upon
notification to the landowner, reserves the right to enter upon the
easement area at any time to monitor conservation plan implementation
or remedy deficiencies or easement violations, as it relates to the
conservation plan. The entry may be made at the discretion of NRCS when
the actions are deemed necessary to protect highly erodible soils and
wetland resources. The landowner will be liable for any costs incurred
by the NRCS as a result of the landowner's negligence or failure to
comply with the easement requirements as it relates to conservation
plan violations.
(d) The United States shall be entitled to recover any and all
administrative and legal costs from the participating entity, including
attorney's fees or expenses, associated with any enforcement or
remedial action as it relates to the enforcement of the FRPP easement.
(e) In instances where an easement is terminated or extinguished,
NRCS shall collect CCC's share of the conservation easement based on
the appraised fair market value of the conservation easement at the
time the easement is extinguished or terminated. CCC's share shall be
in proportion to its percentage of original investment.
(f) In the event NRCS determines it must exercise the United
States' right to enforce the terms of, or taking a property interest
in, the conservation easement, NRCS shall provide written notice by
certified mail to the grantee at the grantee's last known address. The
notice will set forth the nature of the noncompliance by the grantee
and a 60-day period to cure. If the grantee fails to cure within the
60-day period, the United States shall take the action specified under
the notice. The United States reserves the right to decline to provide
a period to cure if NRCS determines that imminent harm may result to
the conservation easement deed or the conservation values it seeks to
protect.
Sec. 1491.31 Appeals.
(a) A person or eligible entity which has submitted an FRPP
proposal and is therefore participating in FRPP may obtain a review of
any administrative determination concerning eligibility for
participation utilizing the administrative appeal regulations provided
in 7 CFR part 614.
(b) Before a person or eligible entity may seek judicial review of
any administrative action taken under this part, the person or eligible
entity must exhaust all administrative appeal procedures set forth in
paragraph (a) of this section, and for the purposes of judicial review,
no decision shall be a final Agency action except a decision of the
Chief of the NRCS under these provisions.
(c) Enforcement action undertaken by the NRCS in furtherance of its
vested property rights are under the jurisdiction of the Federal
District Court and not subject to review under administrative appeal
regulations.
Sec. 1491.32 Scheme or device.
(a) If it is determined by the NRCS that a cooperating entity has
employed a scheme or device to defeat the purposes of this part, any
part of any program payment otherwise due or paid such a cooperating
entity during the applicable period may be withheld or be required to
be refunded with interest thereon, as determined appropriate by NRCS on
behalf of CCC.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person or entity of
payments for easements for the purpose of obtaining a payment to which
a person would otherwise not be entitled.
Signed this 9th day of 2009 in Washington, DC.
Arlen L. Lancaster,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. E9-829 Filed 1-15-09; 8:45 am]
BILLING CODE 3410-16-P