eNVIRONMeNTAL DeFeNse FUND finding the ways that work April 17, 2009 Financial Assistance Programs Division Natural Resources Conservation Service Wildlife Habitat Incentive Program Comments P.O. Box 2890 Room 5237-S Washington, DC 20013 Environmental Defense Fund submits these comments on the Interim Final Rule for the Wildlife Habitat Incentives Program, published January 16, 2009, and corrected on March 12, in the Federal Register. Since the Wildlife Habitat Incentives Program was established in the 1996 Farm Bill, NRCS has effectively used the program to improve fish and wildlife habitat across the country. As stated in the preamble to the interim final rule, NRCS has historically focused the majority of WHIP funds on private lands, except in situations where "significant wildlife habitat gains could only be achieved by installing practices on non-Federal public land." The use of non-Federal public land has been critical to advancing larger-scale projects involving multiple partners in efforts to restore habitat for targeted species in areas that include federal, state, local and private land. Unfortunately, Section 2602(a) ofthe 2008 Farm Bill restricts eligibility for WHIP funding to "the development ofwildlife habitat on private agricultural land, nonindustrial private forest land, and tribal lands." This new restriction will eliminate the ability for NRCS to use WHIP to effectively advance large scale habitat improvement initiatives that involve public lands, and may also interfere with the ability ofNRCS to use WHIP for in-stream restoration projects. One example of a WHIP-funded project that will now be prohibited from receiving funds under the new statute is a project to improve rangeland health on Utah's Awapa Plateau (known locally as Parker Mountain). This area features over a quarter million acres of contiguous sagebrush that provides crucial habitat to sage grouse, threatened Utah prairie dogs, and pronghorn. The vast majority of this land is owned by the state or federal government and leased by ranchers for grazing cattle and sheep. WHIP provided cost-share assistance for brush treatments on the state-owned lands that have improved plant diversity, benefiting both wildlife and livestock. Unfortunately, producers who lease land from the state and federal government in the Parker Mountain area will no longer be able to participate in WHIP due to the changes made to program eligibility in the 2008 Farm Bill. While USDA is required by the statute to restrict eligibility for WHIP to privately owned agricultural land, non-industrial private forestland, and tribal lands, the agency should do everything within its discretion to minimize the impacts ofthese changes, and to otherwise improve delivery of the program. An inclusive definition ofprivately owned agricultural land will help to ensure that WHIP can continue to be used to the maximum extent possible. Definition ofagricultural lands: Agricultural lands in Sec. 636.3 of the rule are defined as "cropland, grassland, rangeland, pasture, and other land determined by NRCS to be suitable for fish and wildlife habitat development, on which agricultural and forest-related products or livestock are produced. Agricultural lands may include cropped woodland, marshes, incidental areas included in the agricultural operation, and other types of land used for production oflivestock." (Emphasis added.) The words "are produced" imply that only agricultural lands where agricultural production is actively occurring can be enrolled in WHIP. In the past, WHIP has funded habitat restoration activities on marginal or degraded lands, abandoned crop, pasture, or hayland, and streams on these types ofland. In some cases only a portion of the agricultural operation may not be in active use, but in other cases the entire operation may not be in use at that time, therefore the inclusion of "incidental lands" in the definition does not adequately cover the full range of these lands. These lands are often the best location to do fish and wildlife habitat restoration, and should be clearly included in the definition of agricultural lands. We suggest that NRCS should use the following definition of agricultural lands: • Agricultural lands means cropland, grassland, rangeland, pasture, hayland, cropped woodland, marshes, streams, incidental areas and other land determined by NRCS to be suitable for fish and wildlife habitat development, that is associated with a farm or ranch operation. We understand and generally support the desire on the part of NRCS to harmonize definitions across programs to the extent possible. We strongly believe, however, that the unique nature of WHIP, the successes associated with the program in the past, and the need for the agency to minimize the potential negative - and perhaps to some degree unintended - effects of last minute legislative changes made in the 2008 farm bill should override this desire for harmonization among definitions. Section 636.4(c) lists land "that is public land" as ineligible for WHIP cost-sharing. We believe the intent of the change made to WHIP eligibility was to eliminate the use of WHIP funds on land areas owned by the Federal or state government. However, the way this restriction is delineated here may also inadvertently exclude restoration projects involving streambeds under navigable streams, which in many states are considered to be "public land" or land with a public use easement. We suggest NRCS use language similar to that used to define ineligible public land in the Wetlands Reserve Program Interim Final Rule (Sec. 1467.4(g): • "(i) Lands owned in fee title by an agency of the United States, other than land held in trust for Indian Tribes, and (ii) lands owned in fee title by a State, including an agency or a subdivision of a State, or a unit oflocal government." Definition of at-risk species At-risk species. The preamble to the interim final rule requests public input on the definition for "at-risk species." We believe the definition in the interim final rule needs significant revision in order to maximize WHIP's effectiveness in preserving species and habitats most in need of conservation. Specifically, the current definition allows the State Conservationist, in consultation with the State Technical Committee, to determine whether a species needs "direct intervention to halt its population decline." Population decline should not be the only concern; there may be stable or slowly growing populations that still need attention. The most efficient way for NRCS to ensure it targets the right species and habitats is to link the definition of "at risk species" to existing federal and state processes for identifying species that are priorities for conservation. We therefore recommend the definition be rewritten as follows: "At-risk species means any plant or animal species that is listed as endangered or threatened under the federal Endangered Species Act (ESA), is a candidate for listing under the ESA, or is likely to become a candidate for listing in the near future; any species listed as endangered or threatened (or similar classification) under State law; any State species of conservation concern (e.g., those species identified by State fish and wildlife agencies in State Wildlife Action Plans or other State conservation strategies and plans that include species identified as being in greatest need of conservation). At-risk species may also include native species identified by the Chief in consultation with the State Conservationist and State Technical Committee and with advice from the Fish and Wildlife Service, National Marine Fisheries Service, or other experts as at-risk because of population declines or population vulnerability at the federal, regional, or state level, such as declines or vulnerability due to climate change, catastrophic events, or pest/pathogen outbreaks." This last sentence will allow the Chief and State Conservationists to select species that have not yet been identified by SWAPs or other similar plans, but could be suddenly threatened by catastrophic events like fire or flooding, as priorities for conservation. National Priorities Sec. 636.5 establishes national priorities for WHIP implementation. We strongly support the addition of these national priorities, which will aid allocation of WHIP funding to states and to assist states in prioritizing applicants. The list of national priorities adequately captures the need for improvements to wildlife habitat in specific locations, but it does not specifically include wildlife corridors. Barriers to the movement ofwildlife from one part of their habitat to another are increasingly being recognized as a major challenge to wildlife conservation efforts. This raises concern that existing habitat reservoirs or protected areas may not be adequate to ensure the continued security ofwildlife populations, particularly for species that are migratory or require extensive areas. The use of WHIP to create, improve, or protect wildlife habitat corridors should be included in the national WHIP priorities. We suggest the addition ofthe following priority to the list of the national priorities: • "Protect, restore, develop, or enhance important migration and other movement corridors for wildlife." The 2008 farm bill included a new priority for conservation initiatives such as State Wildlife Action Plans or other similar initiatives, which states, "In carrying out this section, the Secretary may give priority to projects that would address issues raised by State, regional, and national conservation initiatives." In the preamble to the WHIP interim final rule, NRCS states that these initiatives are encompassed in Sec. 636.6 (c)(l) "Contribution to resolving an identified Environmental Defense Fund Comments on the Interim Final Rule for WHIP habitat concern of national, regional, or state importance." However, this enrollment criterion is optional, and not all states may choose to prioritize this. NRCS should increase the incentive for states to prioritize projects that will address issues identified in these conservation initiatives by including projects that address these initiatives in the list of national priorities. We suggest the addition of the following priority to the list of national priorities: • "Address a concern about species or habitat types identified in State, regional, or national conservation initiatives." Environmental services credits for conservation improvements Sec 1415.10(h) on Environmental Services Credits appears to be intended to facilitate the participation of WHIP participants in ecosystem services markets. EDF believes that ecosystem services markets can be an important incentive for increasing conservation on working lands and potentially a valuable source ofincome for producers. In order for these markets to create real environmental benefits, they must be administered in a way that assures that the services being purchased have not already been purchased by another entity. Although USDA is asserting no interest in the credits that may be generated due to participation in WHIP, it is possible that the rules of an ecosystem services market may preclude the purchase of credits that may have already been partially funded by the taxpayer. In almost all cases it is highly likely that USDA has only financed the creation of a portion of the credits that may be generated by an operation, and that a large percentage of the potential ecosystem service credit is being generated through ongoing labor and investment on the part of the farm operator. It would help ensure the ability of all USDA conservation program participants to sell ecosystem services credits in any ecosystem services market if USDA would calculate what portion ofthe potential credit they have financed, and what portion remains that could be sold into an ecosystem services market. This would create more stability and assurance for producers who wish to participate in these markets. Sec. 636.21 stipulates that landowners are encouraged to request a compatibility assessment before entering into an environmental credit agreement. We recommend that this assessment be required in order to ensure that the WHIP cost share agreement will not potentially be violated. Addressing Climate and Energy Concerns through WHIP In a correction to the interim final rule published March 12,2009, NRCS requested public input "on how WHIP can achieve its program purposes and further the Nation's efforts with renewable energy production, energy conservation, mitigating the effects of climate change, facilitating climate change adaptation, or reducing net carbon emissions." WHIP is the only farm bill conservation program focused solely on fish and wildlife habitat. It is critical that this remains the primary focus of WHIP, and that this unique program continues to provide an opportunity for landowners who wish to improve habitat to do so. We applaud NRCS for recognizing the urgency of climate change as a problem and the importance of ensuring that farmers, ranchers, and private forest landowners are an effective part of the solution. In those cases where mitigation or adaptation to climate change is a secondary benefit of habitat restoration or protection done through a WHIP contract, we believe NRCS should encourage the development of these benefits. It is absolutely critical that any effort by NRCS or Environmental Defense Fund other agencies within USDA to use conservation or other programs to help producers address climate change be done right. We deal separately below with the issues of (1) production of renewable energy and energy conservation; (2) mitigating the effects of climate change and/or reducing net carbon emissions; and (3) facilitating climate change adaptation. Renewable energy production and energy conservation While conserving energy and increasing the production of renewable energy on farms, ranches and private forest lands through processes that are environmentally beneficial are important national goals, we believe it is inappropriate to use WHIP to support projects focused primarily on advancing this goal. Programs authorized through the farm bill's energy title already support such projects./1 The production of renewable energy should only be supported through WHIP where such production is a co-benefit of a practice, system or approach that is being done to improve wildlife habitat. For instance, wildlife habitat in some forest ecosystems can be improved by thinning the forest or removing invasive plant or tree species. Biomass removed during the habitat improvement process could be used for renewable energy production. WHIP cost-share payments should cover the cost ofthe habitat improvement, and the landowner may also then sell the woody biomass for renewable energy production. There should not be an additional WHIP payment for the renewable energy benefits that may be provided by the thinning. Mitigating the effects ofclimate change/reducing net carbon emissions Many WHIP projects already contribute to the mitigation of climate change, by restoring vegetated habitat that sequesters carbon. We believe that any effort USDA makes to use its programs (including WHIP and other conservation programs administered by NRCS) to address climate change must be successful in facilitating and supporting the development of a market that will reward farmers, ranchers, and private forest landowners for achieving measurable and verifiable reductions in greenhouse gas (GHG) emissions and sequestration of carbon while at the same time not making landowners dependent upon long-term USDA assistance for achieving climate benefits. In those situations where habitat restoration involves the afforestation of an area, NRCS could consider funding activities to monitor and measure GHG reductions that are generated by the project but it should not make extra payments for the sequestration. Facilitating climate change adaptation Climate change has the potential to bring with it altered temperature and precipitation patterns that could in turn modifY biotic communities in myriad ways. WHIP already helps to facilitate the adaptation of fish and wildlife to climate change by improving habitats. Habitat improvement projects that bolster locally native fish and wildlife populations, making them potentially more resilient to regional climate change effects, should be encouraged. Also, projects that expand, restore, or otherwise enhance habitat quality and quantity adjacent to public lands of high conservation value should be awarded special consideration, as should projects that manage significant invasive vegetation problems to the benefit of native fish and wildlife and their habitats. Unfortunately, areas that are currently sufficient for providing habitat for particular kinds of wildlife may be less suitable for those same species in the future as temperature and precipitation patterns shift. In the past, wildlife might have been able to adapt to such changes by shifting their location (presumably northward or upslope) in response to changing climactic conditions. As a result of land uses and human activities outside of protected areas, however, the option of adapting by shifting location could be precluded. The maintenance or restoration of corridors or linkages between protected sites or sites or high wildlife significance can help to address this problem. WHIP could be used to improve wildlife corridors as a way of facilitating the adaptation of certain species to climate change. We suggest that the use of WHIP to improve, restore, or protect wildlife habitat corridors be added to the national priorities for WHIP outlined in Sec. 636.5. Sincerely, Britt Lundgren, Agricultural Policy Specialist Sara Hopper, Agricultural Policy Director Environmental Defense Fund 1875 Connecticut Ave, NW. Suite 600 Washington, DC 20009 1 For example, the Rural Energy for America Program provides grants, loans, and loan guarantees to producers for on-farm renewable energy production, in addition to supporting energy audits and improvements in energy efficiency. The Biomass Crop Assistance Program provides funds for producers to transition to growing crops for cellulosic biomass production. Other Energy Title programs fund biorefinery development and expansion, and research, development, and education about renewable energy production and use. Together these programs will provide more than $1 billion over the next 5 years to support renewable energy production and energy conservation on farms.