Sec. 2301. Agricultural Conservation Easement Program
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Title XII of the Food Security Act of 1985 is amended by adding at the end the following: The Secretary shall establish an Agricultural Conservation Easement Program for the conservation of eligible land and natural resources through easements or other interests in land. The purposes of the program are to— combine the purposes and coordinate the functions of the wetlands reserve program established under section 1237, the grassland reserve program established under section 1238N, and the farmland protection program established under section 1238I; restore, protect, and enhance wetland on eligible land; protect the agricultural use, viability, and related conservation values of eligible land by limiting nonagricultural uses of that land; and protect grazing uses and related conservation values by restoring and conserving eligible land.
In this subtitle: The term agricultural land easement means an easement or other interest in eligible land that— is conveyed for the purposes of protecting natural resources and the agricultural nature of the land, and of promoting agricultural viability for future generations; and permits the landowner the right to continue agricultural production and related uses subject to an agricultural land easement plan. The term eligible entity means— an agency of State or local government or an Indian tribe (including farmland protection board or land resource council established under State law); or an organization that is— organized for, and at all times since the formation of the organization has been operated principally for, 1 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; an organization described in section 501(c)(3) of that Code that is exempt from taxation under section 501(a) of that Code; or described in— paragraph
(1)or
(2)of section 509(a) of that Code; or section 509(a)(3) of that Code and is controlled by an organization described in section 509(a)(2) of that Code. The term eligible land means private or tribal land that is— in the case of an agricultural land easement, agricultural land, including land on a farm or ranch— that is subject to a pending offer for purchase from an eligible entity; that— has prime, unique, or other productive soil; contains historical or archaeological resources; or the protection of which could, consistent with the purposes of the program— further a State or local policy; or conserve grassland or agricultural landscapes of significant ecological value; and that is— cropland; rangeland; grassland or land that contains forbs, or shrubland for which grazing is the predominant use; pastureland; or nonindustrial private forest land that contributes to the economic viability of an offered parcel or serves as a buffer to protect such land from development; in the case of a wetland reserve easement, a wetland or related area, including— farmed or converted wetland, together with the adjacent land that is functionally dependent on that land if the Secretary determines it— is likely to be successfully restored in a cost effective manner; and will maximize the wildlife benefits and wetland functions and values as determined by the Secretary in consultation with the Secretary of the Interior at the local level; cropland or grassland that was used for agricultural production prior to flooding from the natural overflow of a closed basin lake or pothole, as determined by the Secretary, together (where practicable) with the adjacent land that is functionally dependent on the cropland or grassland; farmed wetland and adjoining land that— is enrolled in the conservation reserve program; has the highest wetland functions and values; and is likely to return to production after the land leaves the conservation reserve program; riparian areas that link wetland that is protected by easements or some other device that achieves the same purpose as an easement; or other wetland of an owner that would not otherwise be eligible if the Secretary determines that the inclusion of such wetland in such easement would significantly add to the functional value of the easement; and in the case of both an agricultural land easement or wetland reserve easement, other land that is incidental to eligible land if the Secretary determines that it is necessary for the efficient administration of the easements under this program. The term program means the Agricultural Conservation Easement Program established by this subtitle. The term wetland reserve easement means a reserved interest in eligible land that— is defined and delineated in a deed; and stipulates— the rights, title, and interests in land conveyed to the Secretary; and the rights, title, and interests in land that are reserved to the landowner. The Secretary shall facilitate and provide funding for— the purchase by eligible entities of agricultural land easements and other interests in eligible land; and technical assistance to provide for the conservation of natural resources pursuant to an agricultural land easement plan. The Secretary shall provide cost-share assistance to eligible entities for purchasing agricultural land easements to protect the agricultural use, including grazing, and related conservation values of eligible land. Subject to subparagraph (C), an agreement described in paragraph
(4)shall provide for a Federal share determined by the Secretary of an amount not to exceed 50 percent of the fair market value of the agricultural land easement or other interest in land, as determined by the Secretary using— the Uniform Standards of Professional Appraisal Practices; an area-wide market analysis or survey; or another industry approved method. Subject to subparagraph (C), under the agreement, the eligible entity shall provide a share that is at least equivalent to that provided by the Secretary. An eligible entity may include as part of its share a charitable donation or qualified conservation contribution (as defined by section 170(h) of the Internal Revenue Code of 1986) from the private landowner if the eligible entity contributes its own cash resources in an amount that is at least 50 percent of the amount contributed by the Secretary. In the case of grassland of special environmental significance, as determined by the Secretary, the Secretary may provide up to 75 percent of the fair market value of the agricultural land easement. For purposes of subparagraph (B)(ii), the Secretary may waive any portion of the eligible entity cash contribution requirement for projects of special significance, subject to an increase in the private landowner donation that is equal to the amount of the waiver, if the donation is voluntary. The Secretary shall establish evaluation and ranking criteria to maximize the benefit of Federal investment under the program. In establishing the criteria, the Secretary shall emphasize support for— protecting agricultural uses and related conservation values of the land; and maximizing the protection of areas devoted to agricultural use. If the Secretary determines that 2 or more applications for cost-share assistance are comparable in achieving the purpose of the program, the Secretary shall not assign a higher priority to any of those applications solely on the basis of lesser cost to the program. The Secretary shall enter into agreements with eligible entities to stipulate the terms and conditions under which the eligible entity is permitted to use cost-share assistance provided under this section. An agreement shall be for a term that is— in the case of an eligible entity certified under the process described in paragraph (5), a minimum of 5 years; and for all other eligible entities, at least 3, but not more than 5 years. An eligible entity shall be authorized to use its own terms and conditions for agricultural land easements so long as the Secretary determines such terms and conditions— are consistent with the purposes of the program; are permanent or for the maximum duration allowed under applicable State law; permit effective enforcement of the conservation purposes of such easements, including appropriate restrictions depending on the purposes for which the easement is acquired; include a right of enforcement for the Secretary if terms of the easement are not enforced by the holder of the easement; subject the land in which an interest is purchased to an agricultural land easement plan that— describes the activities which promote the long-term viability of the land to meet the purposes for which the easement was acquired; requires the management of grassland according to a grassland management plan; and includes a conservation plan, where appropriate, and requires, at the option of the Secretary, the conversion of highly erodible cropland to less intensive uses; and include a limit on the impervious surfaces to be allowed that is consistent with the agricultural activities to be conducted. An agreement shall allow, upon mutual agreement of the parties, substitution of qualified projects that are identified at the time of the proposed substitution. If a violation occurs of a term or condition of an agreement under this subsection— the agreement may be terminated; and the Secretary may require the eligible entity to refund all or part of any payments received by the entity under the program, with interest on the payments as determined appropriate by the Secretary. The Secretary shall establish a process under which the Secretary may— directly certify eligible entities that meet established criteria; enter into long-term agreements with certified eligible entities; and accept proposals for cost-share assistance for the purchase of agricultural land easements throughout the duration of such agreements. In order to be certified, an eligible entity shall demonstrate to the Secretary that the entity will maintain, at a minimum, for the duration of the agreement— a plan for administering easements that is consistent with the purposes of the program described in paragraphs
(3)and
(4)of section 1265(b); the capacity and resources to monitor and enforce agricultural land easements; and policies and procedures to ensure— the long-term integrity of agricultural land easements on eligible land; timely completion of acquisitions of easements; and timely and complete evaluation and reporting to the Secretary on the use of funds provided under the program. The Secretary shall conduct a review of eligible entities certified under subparagraph
(A)every 3 years to ensure that such entities are meeting the criteria established under subparagraph (B). If the Secretary finds that the certified entity no longer meets the criteria established under subparagraph (B), the Secretary may— 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 revoke the certification of the entity, if after the specified period of time, the certified entity does not meet such criteria. The Secretary may provide technical assistance, if requested, to assist in— compliance with the terms and conditions of easements; and implementation of an agricultural land easement plan. The Secretary shall provide assistance to owners of eligible land to restore, protect, and enhance wetland through— easements and related wetland reserve easement plans; and technical assistance. The Secretary shall enroll eligible land through the use of— 30-year easements; permanent easements; easements for the maximum duration allowed under applicable State laws; or as an option for Indian tribes only, 30-year contracts. The Secretary may not acquire easements on— land established to trees under the conservation reserve program, except in cases where the Secretary determines it would further the purposes of the program; and farmed wetland or converted wetland where the conversion was not commenced prior to December 23, 1985. No easement shall be created on land that has changed ownership during the preceding 12-month period unless— the new ownership was acquired by will or succession as a result of the death of the previous owner; the ownership change occurred because of foreclosure on the land; and immediately before the foreclosure, the owner of the land exercises a right of redemption from the mortgage holder in accordance with State law; or the Secretary determines that the land was acquired under circumstances that give adequate assurances that such land was not acquired for the purposes of placing it in the program. The Secretary shall establish evaluation and ranking criteria to maximize the benefit of Federal investment under the program. When evaluating offers from landowners, the Secretary may consider— the conservation benefits of obtaining an easement or 30-year contract, including the potential environmental benefits if the land was removed from agricultural production; the cost-effectiveness of each easement or 30-year contract, so as to maximize the environmental benefits per dollar expended; whether the landowner or another person is offering to contribute financially to the cost of the easement or 30-year contract to leverage Federal funds; and such other factors as the Secretary determines are necessary to carry out the purposes of the program. The Secretary shall place priority on acquiring easements based on the value of the easement for protecting and enhancing habitat for migratory birds and other wildlife. To be eligible to place eligible land into the program through a wetland reserve easement, the owner of such land shall enter into an agreement with the Secretary to— grant an easement on such land to the Secretary; authorize the implementation of a wetland reserve easement plan; create and record an appropriate deed restriction in accordance with applicable State law to reflect the easement agreed to; provide a written statement of consent to such easement signed by those holding a security interest in the land; comply with the terms and conditions of the easement and any related agreements; and permanently retire any existing cropland base and allotment history for the land on which the easement has been obtained. A wetland reserve easement shall include terms and conditions that— permit— repairs, improvements, and inspections on the land that are necessary to maintain existing public drainage systems; and owners to control public access on the easement areas while identifying access routes to be used for restoration activities and management and easement monitoring; prohibit— the alteration of wildlife habitat and other natural features of such land, unless specifically authorized by the Secretary; the spraying of such land with chemicals or the mowing of such land, except where such spraying or mowing is authorized by the Secretary or is necessary— to comply with Federal or State noxious weed control laws; to comply with a Federal or State emergency pest treatment program; or to meet habitat needs of specific wildlife species; any activities to be carried out on the owner’s or successor’s land that is immediately adjacent to, and functionally related to, the land that is subject to the easement if such activities will alter, degrade, or otherwise diminish the functional value of the eligible land; and the adoption of any other practice that would tend to defeat the purposes of the program, as determined by the Secretary; provide for the efficient and effective establishment of wetland functions and values; and include such additional provisions as the Secretary determines are desirable to carry out the program or facilitate the practical administration thereof. On the violation of the terms or conditions of the easement, the easement shall remain in force and the Secretary may require the owner to refund all or part of any payments received by the owner under the program, together with interest thereon as determined appropriate by the Secretary. Land subject to a wetland reserve easement may be used for compatible economic uses, including such activities as hunting and fishing, managed timber harvest, or periodic haying or grazing, if such use is specifically permitted by the wetland reserve easement plan and is consistent with the long-term protection and enhancement of the wetland resources for which the easement was established. The Secretary may include in the terms and conditions of an easement a provision under which the owner reserves grazing rights if— the Secretary determines that the reservation and use of the grazing rights— is compatible with the land subject to the easement; is consistent with the historical natural uses of the land and long-term protection and enhancement goals for which the easement was established; and complies with the wetland reserve easement plan; and the agreement provides for a commensurate reduction in the easement payment to account for the grazing value, as determined by the Secretary. The relevant provisions of this paragraph shall also apply to a 30-year contract. The Secretary shall pay as compensation for a permanent easement acquired an amount necessary to encourage enrollment in the program based on the lowest of— the fair market value of the land, as determined by the Secretary, using the Uniform Standards of Professional Appraisal Practices or an area-wide market analysis or survey; the amount corresponding to a geographical cap, as determined by the Secretary in regulations; or the offer made by the landowner. Compensation for a 30-year contract or 30-year easement shall be not less than 50 percent, but not more than 75 percent, of the compensation that would be paid for a permanent easement. Compensation shall be provided by the Secretary in the form of a cash payment, in an amount determined under subparagraph (A). For easements valued at $500,000 or less, the Secretary may provide easement payments in not more than 10 annual payments. For easements valued at more than $500,000, the Secretary may provide easement payments in at least 5, but not more than 10 annual payments, except that, if the Secretary determines it would further the purposes of the program, the Secretary may make a lump sum payment for such an easement. The Secretary shall provide financial assistance to carry out the establishment of conservation measures and practices and protect wetland functions and values, including necessary maintenance activities, as set forth in a wetland reserve easement plan. The Secretary shall— in the case of a permanent easement, pay an amount that is not less than 75 percent, but not more than 100 percent, of the eligible costs; and in the case of a 30-year contract or 30-year easement, pay an amount that is not less than 50 percent, but not more than 75 percent, of the eligible costs. The Secretary shall assist owners in complying with the terms and conditions of easements and 30-year contracts. The Secretary may enter into 1 or more contracts with private entities or agreements with a State, non-governmental organization, or Indian tribe to carry out necessary restoration, enhancement or maintenance of an easement if the Secretary determines that the contract or agreement will advance the purposes of the program. The Secretary may enter into 1 or more agreements with a State (including a political subdivision or agency of a State), nongovernmental organization, or Indian tribe to carry out a special wetland enhancement option that the Secretary determines would advance the purposes of the program. The Secretary shall develop a wetland reserve easement plan for eligible land subject to a wetland reserve easement, which will include the practices and activities necessary to restore, protect, enhance, and maintain the enrolled land. The Secretary may delegate any of the easement management, monitoring, and enforcement responsibilities of the Secretary to other Federal or State agencies that have the appropriate authority, expertise and resources necessary to carry out such delegated responsibilities or to other conservation organizations if the Secretary determines the organization has similar expertise and resources. The Secretary shall not delegate any of the monitoring or enforcement responsibilities under the program to conservation organizations. The Secretary shall provide payment for obligations incurred by the Secretary under this section— with respect to any easement restoration obligation as soon as possible after the obligation is incurred; and with respect to any annual easement payment obligation incurred by the Secretary as soon as possible after October 1 of each calendar year. If an owner who is entitled to a payment dies, becomes incompetent, is otherwise unable to receive such payment, or is succeeded by another person or entity who renders or completes the required performance, the Secretary shall make such payment, in accordance with regulations prescribed by the Secretary and without regard to any other provision of law, in such manner as the Secretary determines is fair and reasonable in light of all of the circumstances. The Secretary may not acquire an easement under the program on— land owned by an agency of the United States, other than land held in trust for Indian tribes; land owned in fee title by a State, including an agency or a subdivision of a State, or a unit of local government; land subject to an easement or deed restriction which, as determined by the Secretary, provides similar protection as would be provided by enrollment in the program; and land where the purposes of the program would be undermined due to on-site or off-site conditions, such as risk of hazardous substances, proposed or existing rights of way, infrastructure development, or adjacent land uses. In evaluating applications under the program, the Secretary may give priority to land that is currently enrolled in the conservation reserve program in a contract that is set to expire within 1 year and— in the case of an agricultural land easement, is grassland that would benefit from protection under a long-term easement; and in the case of a wetland reserve easement, is a wetland or related area with the highest functions and values and is likely to return to production after the land leaves the conservation reserve program. The Secretary may subordinate, exchange, terminate, or modify any interest in land, or portion of such interest, administered by the Secretary, either directly or on behalf of the Commodity Credit Corporation under the program when the Secretary determines that— it is in the Federal Government’s interest to subordinate, exchange, modify or terminate the interest in land; the subordination, exchange, modification, or termination action— will address a compelling public need for which there is no practicable alternative, or such action will further the practical administration of the program; and the subordination, exchange, modification, or termination action will result in comparable conservation value and equivalent or greater economic value to the United States. The Secretary shall work with the current owner, and eligible entity if applicable, to address any subordination, exchange, termination, or modification of the interest, or portion of such interest in land. At least 90 days before taking any termination action described in paragraph (1), the Secretary shall provide written notice of such action to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate. The Secretary may terminate or modify an existing contract entered into under section 1231(a) if eligible land that is subject to such contract is transferred into the program. Land enrolled in the wetlands reserve program, grassland reserve program, or farmland protection program shall be considered enrolled in this program. . Before an eligible entity or owner of eligible land may receive assistance under subtitle H of title XII of the Food Security Act of 1985, the eligible entity or person shall agree, during the crop year for which the assistance is provided and in exchange for the assistance— to comply with applicable conservation requirements under subtitle B of title XII of that Act ( 16 U.S.C. 3811 et seq. ); and to comply with applicable wetland protection requirements under subtitle C of title XII of that Act ( 16 U.S.C. 3821 et seq. ). Section 1244 of the Food Security Act of 1985 ( 16 U.S.C. 3844 ) is amended— in subsection (c)— in paragraph (1)— by inserting and at the end of subparagraph (A); by striking and at the end of subparagraph (B); and by striking subparagraph (C); by redesignating paragraph
(2)as paragraph (3); and by inserting after paragraph
(1)the following: the Agricultural Conservation Easement Program established under subtitle H; and ; and in subsection (f)— in paragraph (1)— in subparagraph (A), by striking programs administered under subchapters B and C of chapter 1 of subtitle D and inserting conservation reserve program established under subchapter B of chapter 1 of subtitle D and the Agricultural Conservation Easement Program under subtitle H using wetland reserve easements under section 1265C ; and in subparagraph (B), by striking subchapter C of chapter 1 of subtitle D and inserting the Agricultural Conservation Easement Program under subtitle H using wetland reserve easements under section 1265C ; and by striking paragraph
(4)and inserting the following: The limitations established under paragraph
(1)shall not apply to cropland that is subject to an easement under subchapter C of chapter 1 that is used for the establishment of shelterbelts and windbreaks. For the purposes of enrolling land in a wetland reserve easement under subtitle H, the limitations established under paragraph
(1)shall not apply to cropland designated by the Secretary with subclass w in the land capability classes IV through VIII because of severe use limitations due to soil saturation or inundation. . The amendments made by this section shall take effect on October 1, 2013.
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