COMMENTARY:  Sec. 256, H.R. 2646

SEC. 1239. DEFINITIONS.

Describes the terms "agreement," "contracting agency," "eligible lands," and "Farmland Stewardship Program."

Agreements may be made for the conservation of private lands such as cropland, pastureland, grazing lands, timberlands and other lands the Secretary may specify

Benefits that may be provided through the program include conservation of soil and water, water quality protection, control of invasive or exotic species, wetland protection, wildlife habitat, preservation of prime farmland and other conservation purposes

Proposed language based on Sec. 256, S. 1673--

ADDS: (2) "SERVICE CONTRACTS" - This concept is a basic "building block" for the Farmland Stewardship Program. Service contracts commit parties to performance and specify sanctions -- or patience if there is a misstep. They have specificity and consequences for shortfalls. They are "enforceable" on a number of very specific levels.

The idea of a "service contract" developed over a long period of time, through working groups and workshops, with representatives from agencies at all levels of government providing input. It was widely embraced by all agency representatives that participated in the workshops used from 1996-1998 to develop the Farmland Stewardship concept, since every agency that has contracting authority can hire a "vendor" to perform specific "services." Also, any agency with contracting authority will readily be able to see that they can enter into a service contract with a private party, and thus leverage the federal funding available, providing the services are consistent with its mission and a budget item can be identified for funding.

Here are the benefits of a service contract:

1.              The contract form is very simple and familiar to any attorney and agency.

2.              It conforms to the KISS rule (Keep it Simple S....)

3.              The contract provides complete flexibility for the contracting agency to enter into an agreement with a private landowner to obtain a specific "service" that fits within its mission and funding authority.

4.              The contract allows more than one agency to participate, through cooperative agreement. This allows the contract to be used as a "blending tool." 

5.              This also allows the contract to "fill in gaps" when existing conservation programs do not address a particular need on an individual parcel of property.

6.              It provides a precise mechanism through which existing conservation programs can be more precisely tailored to and targeted at the specific conservation needs and opportunities presented by individual parcels of property, because the "services" to be provided by each conservation program can be described in relationship to the property in question. 

7.              Everything about each individual "service" can be precisely defined: 
-- the purposes and objectives of each service
-- what the owner/operator will do
-- how the owner/operator will do it
-- when the owner/operator will do it
-- what standards or criteria must be met in the performance of each service
-- how performance will be measured
-- what criteria (or market prices) will be used for calculating payments
-- what type of reporting will be required
-- what monitoring will take place
-- how results will be evaluated
-- what steps will be taken if performance does not meet specific criteria
-- what "bonuses" can be offered if performance exceeds specific criteria

8.              It can be used as a "one stop" conservation contract to apply for and implement any type of conservation program on private lands. As a result, it offers a means of making existing programs more accessible to owners and operators.

9.              It can be used as a model by local governments to initiate contracts of their own to "buy services" from private owners/operators without tapping into any federal funds. 

10.          In short, if there is something society wants a private owner or operator to do, this form of contract offers a way to "hire" an owner/operator to do it, because the basic contract form can accommodate the criteria necessary to perform -- and measure the results derived from -- any service.

CHANGES: (3) "CONTRACTING AGENCY" - Expanded list of local groups that can be designated as contracting agencies by the Secretary by adding "extension service office, nonprofit organizations and state-chartered stewardship entity."  The "state-chartered stewardship entity" comes from a concept that originated in Wisconsin, where a commodity group -- the local corn growers for example -- receive a charter from the state to carry out conservation in a specific region and the group assumes responsibility for ALL of its members. More details on this can be found on the project website at www.privatelands.org/state_programs.htm

ADDS TO (4) "ELIGIBLE AGRICULTURAL LAND" - Several additions have been suggested. Four suggestions came from environmental groups: "(vi) survival and recovery of listed species or candidate species," "(viii) increased participation in federal agricultural or forestry programs in an area or region that has traditional under-representation in such programs," "(ix) provision of a structure for interstate cooperation to address environmental that overlap state boundaries," and "(x) improvements to the environment of the area, region or corridor." This language comes from proposals these groups made for the "Conservation Corridor" section of Rep. Kind's bill (HR 2375).

Other additions to the list of public benefits under eligible lands include -- carbon sequestering, phytoremediation, production of biofuels and bioproducts, establishment of experimental and innovative crops, use of existing crops or crop byproducts in experimental innovative ways, and maintenance of experimental or innovative crops until such time that a viable market is created, or until the conclusion of the agreement, whichever occurs first.

Several environmental groups at first objected to the inclusion of these terms. But that objection was solved by making it clear in Sec. 1239A(c)(1)(A) that the funding authorities of existing programs can be used only for the conservation purposes listed in Sec. 1239(4)(A) and (B)(i through x). This means that other funding sources must be found to fund the biofuels "services." This point is emphasized again in (2) of Sec. 1239A(c).

There are two reasons for including these "services." One very compelling reason is to provide another means of ensuring the economic viability of small and medium size farms. That is one of the principal reasons these provisions were included.

Also, while indirect, it has major conservation implications. If the nation continues to lose its small farms to consolidation (and continue losing our large farms to development), then many opportunities for conservation on these lands are lost.

Numerous energy companies, utilities and chemical companies are actively exploring the use of biofuels and bioproducts that can replace non-renewable petroleum-based products with natural, biodegradable products in the manufacture of packaging materials, adhesives, solvents and chemical activators. Cargill-Dow is one company that is using agricultural materials (such as corn) to produce biodegradable alternatives to synthetic clothing, such as fleece lining, hollowfill insulation and nylon fabric. This has major conservation implications.

Many utilities and other companies that are interested in moving in this direction, however, cannot make the necessary infrastructure and R&D (research and development) investments to develop these new technologies and put them into general use without having an assured supply of the appropriate green plant materials and agricultural byproducts available for experimentation and use. It's a major catch 22, which the language in the eligibility section of the Farmland Stewardship Program is meant to fix. Funding for these "services" would not come from any of the Farm Bill programs, but would instead come from programs being developed by the Departments of Energy, Commerce and Interior and by private companies such as Cargill-Dow to promote the expanded use of biomass, biofuels and bioproducts.

ADDS DEFINITIONS - Definitions are included for each of the new terms as they relate to the Farmland Stewardship Program, including carbon sequestering, phytoremediation, biofuels, bioproducts, and state-chartered stewardship entity.

COMMENTARY: Sec. 256, H.R. 2646

SEC. 1239A. ESTABLISHMENT AND PURPOSE OF PROGRAM

The House-passed version of the Farmland Stewardship Program gives the Secretary of Agriculture authority to implement and combine together the features of the Wetlands Reserve Program (WRP), the Wildlife Habitat Incentives Program (WHIP), the Forest Land Enhancement Program (FLEP), the Farmland Protection Program (FPP) and other conservation programs administered by other federal agencies or state and local governments that may want to cooperate in the FSP.

Funding for the FSP will come from these programs and appropriated accounts. The Farmland Stewardship Program does not "take away" money from existing programs. It uses the money dedicated to these programs to implement the programs in the most efficient, cost-effective way possible, and to allow these programs to do a better job of addressing conservation needs on individual parcels of property.

The FSP will require funding contributions by state, regional or local agencies and divisions of governments and private funding sources. As a result, the FSP is designed so that every federal dollar put into the program will create enough leverage to pay a producer as much as $2 (or more) for the services and practices that are implemented on his or her property.

The Secretary is authorized to use the Natural Resources Conservation Service to carry out FSP. The Secretary may use technical assistance made available in § 1243(d) to assist the owner or operator in carrying out agreements

Proposed language based on Sec. 256, S. 1673--

MODIFIES: (b) RELATION TO OTHER CONSERVATION PROGRAMS - Revised language allows the Secretary to implement or combine together the features of ANY conservation program administered by the Secretary (which also includes the Conservation Reserve Program (CRP), Environmental Quality Incentives Program (EQIP) and the new Grasslands Reserve Program (GRP) and any other program that may be developed now or in the future).

The Farmland Stewardship Program is designed to ensure that the producer's conservation plan, each one tailored to meet the specific needs of each individual operation, will drive programs, not the reverse.  Because a variety of different programs may have to be assembled to carry out a producer’s conservation plan, the Farmland Stewardship Program gives authority to the "contracting agency" to assemble these programs on behalf of the producer, and allows the producer to participate in these programs through a one-stop, one-application process. Limiting the programs that qualify for inclusion in the Farmland Stewardship Program would defeat the purpose of the program.

MODIFIES: (c) FUNDING SOURCES -

(1)(A) - This language ensures that the FSP can be funded through existing conservation programs, but specifies that the funding only can be used for the purposes listed in Sec. 1239(6)(A) and (B)(i through x).

ADDS: (1)(B) - This language ensures that technical assistance funds can be used in assembling the FSP

ADDS: (1)(C) - This language ensures that funds can be appropriated specifically to carry out the Farmland Stewardship Program. This funding authority is important, since “start up” funds may be needed in the future to “prime the pump” by allowing advance work with producers to develop conservation plans and by providing resources to review the provisions of the diverse array of existing programs at the federal, state and local levels; to assemble these programs together in a way that will carry out each producer’s individual conservation plan; and to "fill in the gaps" when existing conservation programs do not fulfill all needs of the producer’s conservation plan.

MODIFIES: (2) COST SHARING - Language has been added to make it clear that funds from existing programs ONLY can be used for the purposes for which those programs were established. There was concern from some groups that current language in Sec. 256 of HR 2646 would allow funding from existing conservation programs to be used for other purposes. This makes it clear it can't, and that funding for other purposes must come from other sources.

COMMENTARY: Sec. 256, H.R. 2646

SEC. 1239A. ESTABLISHMENT AND PURPOSE OF PROGRAM (continued)  

Possible conflicts between the Natural Resources Conservation Service (NRCS) and Farm Services Agency (FSA) in the programs the administer is removed through the language added under (e) State Level Coordination.  It is the local contracting agencies and states that will be responsible for program assembly, so they will deal directly with NRCS on NRCS programs, directly with FSA on FSA programs, directly with Interior on Department of Interior programs, etc.  This avoids turf wards, conflicts and potential inter-agency land mines. 

Proposed language based on Sec. 256, S. 1673--

MODIFIES: (d) PERSONNEL COSTS - The language in this paragraph limits NRCS's role solely to federal oversight of the program. It specifies that the program must be carried out in cooperation with a "designated state agency" within each state. This will avoid putting NRCS in the role of assembling or taking any actions regarding programs administered by other agencies.

ADDS: (e) STATE LEVEL COORDINATION - This language was developed in cooperation with the National Governor's Association, National Association of State Departments of Agriculture and International Association of Fish and Wildlife Agencies, with input from several other farm and conservation groups.

The intent here is to specifically avoid the turf wars, competition and land mines that exist between federal departments -- and between agencies within those departments. State level cooperation is the only way to get down out of the line of fire, so one agency at a time can be dealt with on the programs that are specific to that agency, and any requests for exceptions can be sent directly to the Secretary or Administrator who has authority and responsibility for the program in question.

Federal oversight will rest with NRCS. That is the agency that was overwhelmingly chosen as the best federal agency to administer the Farmland Stewardship Program by all the people who contributed input to the projects and meetings in Florida and other states that led to the development of the FSP.

An attempt was made to craft language to limit NRCS's role, while ensuring accountability and recognizing (and accommodating) the reality of current political and administrative competition among some agencies.

The Farmland Stewardship Program will be operated primarily at the state level by a "designated state agency" that must submit a request to the Secretary for designation as such and may enter into an memorandum of understanding (MOU) specifying the state's responsibilities. Also, this agency must "consult with the agencies with management authority and responsibility for the resources affected on properties on which Farmland Stewardship Agreements are negotiated and assembled."

ADDS: (f) ANNUAL REPORTS - This language is meant to ensure complete accountability. Annual reports are required to document the progress achieved, funds expended, the purpose for which funds are expended and monitoring and evaluating results, and to describe future plans and objectives for the Farmland Stewardship Program in the State.  

MODIFIES: (g) TECHNICAL ASSISTANCE - This language is meant to ensure accountability, and to ensure that the bulk of all funding gets down to the ground where it can benefit owners/operators and put conservation measures in place.  Technical assistance funding is specifically directed toward local contracting agencies to ensure they have the necessary staff and financial resources to research programs, assemble agreements to meet the needs and opportunities offered by different parcels of land, and monitor agreements.  The language also specifies that funds are to be made available for state and federal oversight and coordination. 

This language specifies that the bulk of technical assistance funding is to be directed to the local "contracting agency" that has been designated by the Secretary to work with individual producers to develop conservation plans and implement the Farmland Stewardship Program.  The language also specifies that limited funding is to be made available for administration and coordination through the NRCS headquarters office, NRCS state offices, state departments of agriculture (or the "designated state agency"), state conservation district offices, and for the Farmland Stewardship Council created in Sec. 1239E, which is specifically directed to work in cooperation with (and complement the efforts of) the existing State Technical Committees. 

ADDS: (h) ENSURING AVAILABILITY OF FUNDS - This language is intended to ensure that all agencies participating in a Farmland Stewardship Agreement pursue the means available to them to ensure that all funds necessary to carry out their obligations under the Farmland Stewardship Agreement for its full term are committed to this purpose upon execution of the agreement.

COMMENTARY: Sec. 256, H.R. 2646

SEC.  1239B. USE OF FARMLAND STEWARDSHIP AGREEMENTS  

Objectives of agreements with owners and operators will be to protect and maintain natural resources by implementing a conservation program or a series of programs together for conservation management through agreements that combine existing programs and to expand conservation practices on properties where conservation opportunities cannot be met through current programs.

Proposed language based on Sec. 256, S. 1673--

ADDS: (b) LEGAL BASIS - This language establishes the legal basis for the use of "service contracts" by specifying that the agreement "shall operate in all respects as a service contract.”  It also specifies that “Any agency participating in the Farmland Stewardship Program that has the authority to enter into service contracts and to expend public funds under such contracts may enter into or participate in the funding of an agreement “

ADDS TO (c) BASIC PURPOSES - Two basic purposes have been added:

ADDS: (2) This language makes it clear that Farmland Stewardship Agreements (FSAs) can be used to assemble and blend one or more conservation programs together through a one-stop, one-application process. It also specifies that a FSA can be used to comply with permits and other regulations, where possible and feasible, through the same a one-stop, one-application process.  It also makes it clear that, if it is not possible to combine all programs together through one application or one contract, “then an attempt shall be made to assemble as many programs, requirements and regulations into as few applications and agreements as possible.”

ADDS: (5) This language provides additional information on the purposes and intents of the Farmland Stewardship Program, and makes it clear that the FSP can be used to install or maintain best management practices (BMPs), and to improve compliance with public health, safety and environmental regulations. 

COMMENTARY: Sec. 256, H.R. 2646

SEC. 1239B. USE OF FARMLAND STEWARDSHIP AGREEMENTS

Proposed language based on Sec. 256, S. 1673--

MODIFIES: (d) MODIFICATION OF OTHER CONSERVATION PROGRAM ELEMENTS - This language originally caused several questions -- and concerns -- since it did not go far enough in explaining how requests for exceptions could be carried out. It also used the term “waiver,” which some people interpreted as an “open door” for weakening or undermining current law.  The term “waiver” has been eliminated.  Language also has been added to clarify how requests for exceptions are to be handled and to whom requests should be directed (the Secretary or Administrator who oversees the program in question).

This language was developed to overcome the round-peg, square-hole problems that sometimes prevents, and often limits, the use of existing conservation programs at the local level, because of top-down, one-size-fits-all restrictions that were written to address conditions in one part of the country, but do not apply to another locality. The language is designed to remove unnecessary bureaucratic and administrative obstacles that cost taxpayers money, but deliver neither technical assistance nor financial assistance to producers.

The substitute language makes it clear that requests for exceptions are to be reviewed only on a case-by-case basis. The language also makes it clear that requests for exceptions can be granted to allow additional flexibility in tailoring conservation programs to the specific needs, opportunities and challenges offered by individual parcels of property, and to remove administrative and regulatory obstacles if they do not make sense for the property in question or if they act as a obstacle to implementing sound conservation practices under local conditions. The language specifies that requests for exceptions may be granted ONLY if the purposes to be achieved by the program remain consistent with the purposes for which the program was established after the exception is granted.

Finally, its is made clear that: “If a request for an exception is declined, such finding shall have no impact upon the ability of a designated state agency or local contracting agency to include the affected program or other programs in a Farmland Stewardship Agreement.”  In this case, “The contracting agency or landowner/operator may choose to include a program in which a request for an exception is declined, if the program still can be utilized as it exists with no changes in the Farmland Stewardship Agreement, or to leave the program out and to proceed with the Farmland Stewardship Agreement by assembling other programs.”

COMMENTARY: Sec. 256, H.R. 2646

SEC. 1239B. USE OF FARMLAND STEWARDSHIP AGREEMENTS (continued)

Proposed laguage based on Sec. 256, S. 1673--

ADDS: (e) SHORT-TERM CONTRACTS - This is an important new tool to help establish conservation plans for private lands  -- and, thus, lay the groundwork for assembling conservation programs to carry out these plans. This paragraph stipulates that short-term service contracts may be used during a two-year planning period to provide payments to private owners and operators and to the "contracting agency" responsible for the agreement while data is gathered, documents are prepared and the agreement is negotiated. This ensures that funding will be available for all technical services necessary to develop conservation plans and establish agreements on individual properties.

ADDS: (f) PAYMENTS - This explains how payments are to be made to owners/operators from existing conservation programs and provides that payments may be collected and combined together into a single annual payment. The language ensures that term and permanent easements can be combined into, or used as a basis for, a Farmland Stewardship Agreement. It specifies that owners/operators enrolled in the Farmland Stewardship Agreement shall receive an annual base payment, a condition that shall be considered to be satisfied if the owner/operator receives an annual payment from another conservation program. It also specifies that owners/operators shall receive a fee based on the cost of providing each service, or alternatively, an annual per-acre stewardship fee based on the services provided, or the quantity of benefits provided, with higher fees for greater benefits that can be quantified.

Some groups question the language in paragraph (D) OTHER INCENTIVES. The purpose behind this language is to provide possible options to state and local governments to provide compensation to private landowners and thus help leverage every $1 put into the program from other sources. The intent is to get more conservation on the ground for every $1 invested. Also, the paragraph establishes the idea that agencies should consider offering a "menu" of possible compensation options which will help fit the needs of a greater number of owners and operators, and thus make conservation attractive to more of these owners/operators.

MODIFIES: (h) STATE AND LOCAL CONSERVATION PRIORITIES - Agreements should address the conservation priorities established in states or localities in which agricultural lands are located. Language recommended by Defenders of Wildlife has been added to clarify that a pre-existing state or regional plan or strategy MAY be adopted for this purpose.

COMMENTARY: Sec. 256, H.R. 2646

SEC. 1239C. PARTNERSHIP APPROACH TO PROGRAM

The Secretary may administer the FSP using partnerships with federal, state or local agencies whose programs are part of the FSP. Local conservation district offices, agencies, and nongovernmental organizations may be designated a contracting agency after complying with certain standards such as monitoring compliance with owners and operators.

Proposed language based on Sec. 256, S. 1673--

MODIFIES: (a) AUTHORITY OF SECRETARY EXERCISED THROUGH PARTNERSHIPS - Language has been added to ensure that the Farmland Stewardship Program is administered "in partnership with state departments of agriculture or other designated state agencies."

MODIFIES: (b) DESIGNATION AND USE OF CONTRACTING AGENCY - Amendments to clarify language. Repeats similar paragraph in Sec. 1239(3) under DEFINITIONS (see above).

ADDS: (d) DELEGATION OF RESPONSIBILITY - Provides that the Secretary MAY delegate responsibility for reviewing and approving applications for local "contracting agencies" to the "designated state agency" with responsibility for operating the Farmland Stewardship Program in the state in question. The criteria to be followed by the "designated state agency" are explained.

COMMENTARY: Sec. 256, H.R. 2646

SEC. 1239D. PARTICIPATION OF OWNERS AND OPERATORS OF ELIGIBLE AGRICULTURAL LANDS.

Owners and operators wanting to enter into an FSP agreement must submit an application outlining the management plan the owner or operator will carry out under the agreement.

Local conservation districts, state or federal agencies, or nongovernmental organizations may enter into farmland stewardship agreements with agricultural producers on behalf of the Secretary of Agriculture.

Proposed language based on Sec. 256, S. 1673--  

ADDS: (c) DELEGATION OF RESPONSIBILITY - Same as in 1239C(d) above, except this language provides that the Secretary may delegate responsibility to the "designated state agency" for approving applications to participate in the FSP on behalf of an owner or operator. 

COMMENTARY: Sec. 256, H.R. 2646

Proposed language based on Sec. 256, S. 1673--

ADDS: SEC. 1239E - CREATION OF A FARMLAND STEWARDSHIP COUNCIL REGARDING PROGRAM -

Ok.  I know.  What the world needs is yet another advisory council. But there are very sound reasons for this one. First, it expands on an existing advisory body -- the State Technical Committees -- by creating a "national technical committee" to facilitate cooperation and communication between the existing State Technical Committee and (where one exists, the) Resource Advisory Committee in each state. It will operate on the federal level in the same manner, with the same roles and responsibilities and the same membership requirements as provided in the policies and guidelines governing State Technical Committees.

It has very specific duties that will be key to ensuring that the Farmland Stewardship Program is as effective as possible, responds to place-based needs, and is carried out in a manner that allows the program to be improved, perfected and adapted to local needs through administrative means, in consultation with the Secretary.

The Farmland Stewardship Council also will provide the personnel and resources to ensure adequate communication and coordination on all matters related to the Farmland Stewardship Program with all federal agencies, state agency organizations and private interest members serving on the council, and the constituencies represented by these agencies, organizations and members.

It will ensure communication and coordination with the State Technical Committee and Resource Advisory Committee in each state; solicit input from the owners/operators of ag, forestry and woodland operations; and take into consideration the needs and interests of producers of different agricultural commodities and forest products in different regions of the nation.

The annual report will ensure accountability. The council will remain in force for as long as the Secretary administers the Farmland Stewardship Program, except that the council will terminate in 2011 unless renewed by Congress in the next Farm Bill.

COMMENTARY: Sec. 256, S. 1673  

The following language is NOT included in the conference committee language, although it was part of S. 1673.

Additional language from Sec. 256, S. 1673

ADDS: SEC. 1239F - STATE BLOCK GRANT PROGRAM

This is the centerpiece of the Farm Bill recommendations for the Conservation Title from the National Association of State Departments of Agriculture. 

In a dialog that was conducted on this issue last August (www.privatelands.org/defenders_dialog.htm), one person in particular made some compelling arguments in favor of the state block grant program. His comments are included below. 

Jeff Smoller, Wisconsin Department of Natural Resources, Madison, Wisconsin, wrote:

"As an employee of a state natural resources agency I have been following, with interest and encouragement your exchange of perspectives. I first applaud all parties for engaging in this historic process that has such great potential.

"I am hopeful that the last remaining obstacles to agreement, particularly the block grant issue, might not be considered deal breakers for several reasons

"1.       The bill is underpinned by the philosophy of performance-driven, placed-based, adaptive management approaches, which may require the flexibility of at least an optional block grant relationship with the states, particularly if the states have the capacity, will and integrity to address compelling problems that are beyond the ability of linear programs. (Because Wisconsin DNR is an environmental regulator as well as conservation agency we often see problems that could be addressed through an integrated -- so-called green and brown -- approach, but EPA's linear, media-driven governing statutes and conservation laws present obstacles.)

"2.       The [revised language for the Farmland Stewardship Program] provides for (although this is a may, not shall) through its required state planning processes the kind of consultation that insures the incorporation of multiple perspectives but checks and balances.

"3.       The [revised language for the Farmland Stewardship Program] provides for mandatory reporting of results, expenditures and future plans.

"4.       The Farmland Stewardship Council's duties include developing guidelines, monitoring progress and recommending modifications, presumably all potentially affecting Block Grant issues and other points of discomfort (but not deal breakers) in the draft bill. The Council has proposed membership that can be a credible and constructive watchdog. A suggestion: If the block grant privilege is abused by some objective standard, there might be consideration of a default position.

"In brief, while the plan, do, check, and act language in the draft may not conform precisely with total quality management, the intent is there. With the designed-in reporting of performance, multi-party participation in evaluation, transparency and enlightened auditing, the concern for accountability that often is the under pinning fear of block grants may be mitigated.”