U.S. Army Corps of Engineers Modifies Nationwide Permit No. 40

Martha Noble

On March 9, 2000, the U.S. Army Corps of Engineers issued a final rule, effective on June 5, 2000, replacing Clean Water Act ("CWA") Section 404 Nationwide Permit No. 26 with five new nationwide permits and six modified nationwide permits. See 65 Fed. Reg. 12818-12899 (Mar. 9, 2000). Regarding agricultural activities in wetlands, the most significant development is the revision of Nationwide Permit No. 40 ("NWP 40"), which greatly increases the scope of activities allowed under the permit. NWP 40, previously limited to agricultural building construction, now encompasses dredge and fill activities on up to one-half acre to improve agricultural production in non-tidal wetlands, excluding non-tidal wetlands adjacent to tidal waters. The Corps includes ranching and silviculture activities in the term "agricultural production."

In addition, the revised permit uses the term "farm tract" rather than "farm" to define a single and complete project. This change will allow more than one NWP 40 to be issued for a single farming operation, where the operation is divided into multiple farm tracts. The revised NWP 40 is also subject to dual federal agency administration. If the permittee is a United States Department of Agriculture ("USDA") farm program participant, the permit is essentially administered through the USDA Natural Resources Conservation Service under standards and definitions of that agency. Regional Army Corps Districts are prohibited from placing more protective regional conditions on NWP 40 permits issued to participants in the federal farm programs. The final rule includes other nationwide permits and general conditions of interest to agricultural producers.

Now it is the states’ turn to certify the new and revised permits for use at the state level. States may impose more stringent state certification requirements on NWP 40 or completely revoke certification for NWP 40.

CONSERVATION RESERVE PROGRAM UPDATE
The USDA has recently announced significant developments in the Conservation Reserve Program ("CRP").

1. Continuous CRP Sign-up Incentives Enhanced

On April 6, 2000, the USDA announced increased incentives for the CRP continuous sign-up program. This program focuses on partial field enrollments and the establishment of conservation enhancing practices on the land enrolled in the program. The program enhancements, estimated to cost $350 million, were announced at the beginning of the year, but details were not resolved and the program did not become effective until April 6, 2000. The major new incentive is a $100 per acre one-time payment for each acre enrolled. The one-time payment bonuses are being called stewardship incentive payments ("SIPs"). They apply to field windbreaks, grass waterways, field shelterbelts, living snowfences, filter strips, and riparian buffers. The bonus is calculated as $10 per acre per year, or $100 per acre for a 10-year contract, $150 for a 15-year contract. An additional incentive – referred to as a practice incentive payment ("PIP") – will be set at 40% of the cost of installing a practice, effectively bringing the cost share rate for the establishment of conservation practices in the CRP continuous sign-up program up to 90%. PIP is available on all practices, including contour grass strips, cross wind trap strips, and shallow water areas for wildlife. Per acre maintenance rates were also increased for windbreaks, shelterbelts, living snow fences, filter strips, and riparian buffers. Rental rates were raised for marginal pasture land being enrolled as riparian buffers, with a per acre rate established for each county that runs as high as $66 per acre in the eastern corn belt.

2. Conservation Reserve Enhancement Programs Announced for Ohio and Pennsylvania

Under the Conservation Reserve Enhancement Program ("CREP"), the USDA and a state may enter into an agreement in which USDA CRP funds are targeted to state-established conservation needs. State funds are used to provide additional incentives for enrollment or additional conservation measures, such as permanent conservation easements, that are not authorized under the federal CRP. On April 13, 2000, USDA Secretary Glickman announced a CREP agreement with the State of Pennsylvania, which focuses on the watersheds of the Chesapeake Bay. Up to 100,000 acres may be enrolled. This agreement makes Pennsylvania the fourth Chesapeake Bay state with a CREP. The terms call for double payments (two times the normal rental rate) for filter strips, riparian buffers, contour grass strips, grass waterways, and wetland restoration, plus an extra $5 per acre per year to reflect maintenance burdens. These terms make it one of the more lucrative CREPs to date.

On April 18, 2000, Vice-President Gore announced an Ohio Lake Erie CREP intended to improve the water quality of Lake Erie, and streams and rivers in the Western Lake Erie watershed, by reducing the load of sediment, pesticides, and nutrients flowing into the Lake. The program goal is to establish 10- to 15-year contracts for 5,000 linear miles of filter strips and riparian buffers, including forested buffers to lower stream temperature. For filter strips, special incentive payments for the program include the normal crop land rental rate plus an additional amount of 55% of the normal crop land rental rate from the USDA, as well as a lump sum payment of $200 per acre from the state. For land devoted to wetland restoration, riparian buffer, field windbreak, wildlife habitat improvement, or hardwood trees, the special incentive payment from the USDA is the normal crop land rental rate plus 75% of this rate, as well as a lump sum payment of $500 per acre from the state. Maintenance and cost-share payments are also available. The sign-up for the Ohio Lake Erie CREP began May 1, 2000.

There are now 11 states that have entered into approved agreements with the USDA for state CREPs.

3. 20th Conservation Reserve Program Sign-Up

On April 10, 2000, the USDA announced that over 56,000 landowners offered to bid 3.5 million acres into the 20th sign-up period for the CRP. This is the primary program component of the CRP, under which agricultural commodity producers offer whole fields for program enrollment in 10- or 15-year contracts. The USDA accepts land into the program on a competitive basis, according to an environmental benefits index and the landowner’s requested rental rate for retiring the land from production. Landowners may also receive cost-share payments under this program. The average requested rental rate for the 20th sign-up was $51 per acre. More than one-third of the total acreage offered was from Minnesota, Montana, and the Dakotas. Depending on how many of these acres the USDA ultimately accepts into the program, the resulting total CRP acreage will be near to the current statutory limit of 36.4 million acres.

Note that further information on all the CRP updates can be found at the Farm Service Agency website, http://www.fsa.usda.gov/dafp/cepd/crpinfo.htm.