Selected Articles from the LAND Newsletter
THE NEW CONSERVATION SECURITY PROGRAM -
Is it really “free” money? What strings will be attached?
By LeAnn M. Harner, LAND Executive Director
NRCS is now accepting comments on their 100+ pages of proposed rules for implementing the Conservation Security Program (CSP). This is called a “capped entitlement.” That means Congress hasn’t appropriated sufficient dollars to make payments promised by the bill. Instead, the first CSP contract will be offered in priority watersheds.
There’s $41 million in the newly approved budget for CSP in FY ‘04. Congress also lifted the funding cap which restored nearly $3 billion taken away in FY ‘03. OMB has yet to apportion funding, but there’s potential for this to be a VERY big program.
Eligibility is in three tiers:
Tier 1 - The applicant must address water and soil quality to the minimum level of treatment on part of their ag operation. - Payments limited to a total of $20,000 annually.
Tier 2 - The applicant must address all nationally significant resource concerns to the minimum level of treatment on their entire operation. - Payments limited to a total of $35,000 annually.
Tier 3 - The applicant must address all resource concerns listed in Section III of the NRCS Field Office Technical Guide (FOTG) with a resource management system that meets the minimum level of treatment on the entire operation. - Payments limited to a total of $45,000 annually.
The programs focuses on the “agricultural operation” defined as “all agricultural land, whether contiguous or noncontiguous, under the control of the participant and constituting a cohesive management unit where the participant provides active personal management of the operation.” The operator must have “control of the land for the life of the CSP.” If the applicant can not show control of a parcel of land for the life of the contract, that part of the operation doesn’t qualify for any payment components of the program. However, the land is still considered part of the contract and must be maintained at the same conservation standard as the rest of the operation.
The proposed rules suggest that participants should be active farmers, ranchers, or otherwise “share, or be entitled to share, in the crop or livestock available for marketing from the operation.” This suggests that landlords paid with cash rent will not be eligible to participate in the program. The rules require CSP payments to be divided among tenants and sharecroppers in “a manner deemed equitable.”
The rules call for landowners to self-determine their eligibility for the program, including establishing which tier criteria they meet. This is part of the initial enrollment process. Participants are responsible for obtaining the authorities, permits, easements or other approvals.
Once in the program, the contract specifies participants “must operate and maintain the conservation practice(s) for the life span of the practice(s) or refund any of the cost-share, maintenance, or enchancement payments made under the contracts.” “Any authorized NRCS representative” (Remember, with the ‘Technical Service Provider’ program, an NRCS representative may be a crop consultant, land improvement contractor, or staff member of wildlife groups such as Ducks Unlimited, The Nature Conservancy, Sierra Club, etc.) has the right to enter an operating unit for the purposes of verifying compliance with the CSP contract. This may include periodic inspections of the conservation practices during the life span of the practice(s), even after the contract is closed.
What happens to the land after the contract ends? If the participant planted trees, what’s a reasonable lifespan for those trees? What happens if they’re flooded out? When the land is sold, or otherwise changes hands, who is responsible for maintenance or compliance with the CSP contract after the close of the contract?
If the land changes hands, will the new landowner be notified of any such requirements BEFORE the sale, lease, etc. takes place? What is the extend of the new landowner’s responsibilities? If, in the above example, the trees are flooded year after year because of extreme weather conditions, does the new landowner bear the burden of replacing the trees? What are the “life spans” of other conservation practices? Can those “life spans” be changed with a change in the FOTG, or does the contract stipulate definitions according to the FOTG used at the time of the contract signing? Could these be, in effect, easements?
How will NRCS handle cases where a landowner loses a lease on property he had under CSP contract? Will that landowner be required to pay back all cost-share and other funds? Will there be additional penalties? Will that landowner be required to pay back any funding received on other portions of his operation under CSP?
What happens if there’s a natural disaster (i.e. tornado) that tears out field windbreaks or destroys the no-till field? There are also questions about a landowner with a current CSP contract beginning one year, who purchases or leases land under a different CSP contract which was signed under a different enrollment period. These contracts may have different requirements or criteria.
What happens if a participant in Tiers 2 or 3 (Someone really concerned about conservation and doing a great job as steward of their land.) purchases or leases land which does not meet the criteria? Should that participant be subject to penalties because they no longer meet the eligibility requirements? Should their contract(s) be modified to accept the new property? Should the new property be exempted from the operation? USDA Secretary Ann Venneman says this program is designed for working lands, but the program needs to provide flexibility for changes in ownership or operators.
NRCS is developing criteria for the enrollment categories such as soil conditioning index, soil and water quality conservation practices and systems and grazing land condition. They are proposing to give funding priority to operators who are willing to undertake enhancement activities, such as addressing “locally identified resource concerns or providing important assessment and evaluation information.” They will also consider funding research or demonstration programs, and those proposals which show cooperation with other producers to implement watershed or regional resource conservation plans involving at least 75% of producers in the area.
LAND has been told that producers will never be held to additional requirements once the contract is signed. But what do the rules (and the contract) say? Can definitions change? Will different administrators view contracts differently? What happens to the producer with land in more than one county or more than one state? Producers living along borders are often faced with that scenario.
Participants in the program should be aware that, if there are disputes, they must go through the administrative review process, before any judicial action is taken. That means you’ll go to an NRCS “court” and appeal NRCS rules to NRCS. Administrative courts do not generally favor the applicant. There are many instances of landowners being tied up in administrative court for years before finally getting to a jury of their peers. Even worse, the CSP has a list of decisions that can NOT be appealed - ANYWHERE! Do you want to sign a contract with that clause?
LAND applauds the limitation of contracts to either five or ten year periods, and annual payments under the contracts. But enforcement of contract provisions AFTER the close of the contract is very troubling. We’ve learned that definitions used by an agency one year may change in the next. We’ve seen many cases where landowners signed up land for easements, then sold the property and the next landowner got the headaches. It’s vital to study these programs and make comments.
PLEASE TAKE TIME TO VISIT WITH OTHER LANDOWNERS and encourage them to make comments. Even more importantly, if you are considering a CSP contract, read the fine print VERY CAREFULLY.
