NGPC WHIP Interim Rule Comments, Electronic Submission, April 17, 2009

Nebraska Game and Parks Commission
2200 N. 33rd St. / P.O. Box 30370 / Lincoln, NE 68503-0370
Phone: 402-471-0641/ Fax: 402-471-5528/ http://www.ngpc,state.ne.us

Wildlife Habitat Incentives Program (WHIP) Comments

General Comments:

The Commission appreciates the opportunity to provide comments on USDA's Wildlife
Habitat Incentives Program (WHIP). By far, the WHIP is one of the most widely used
conservation programs among landowners across the country for addressing concerns
and issues related to fish, wildlife, and their habitats. Congress made some dramatic
changes to the program in the 2008 Farm Bill that could adversely affect fish and wildlife
conservation initiative efforts, and landowners' ability, to address fish and wildlife
concerns. We look forward to working diligently with the Natural Resources Conservation Service (NRCS) to assist in delivering this important program to landowners and its benefits to the American taxpayers.

We support the current interpretation of the definition of agricultural lands being used in
implementation of this rule. The current interpretation is fully inclusive of all lands which comprise part of an agricultural operation. However, to provide clarity and consistency in implementation, we've recommended modifications to the definition of eligible land in the rule. Without explicit de!inition in the rule, alternate interpretations at the national or state level could adversely affect landowner participation and NRCS's ability to
implement WHIP.

USDA is to be commended for the continuation of the national priority to restore native
fish and wildlife; as a focus on non-domesticated species is critical to meeting the
program's purpose. However, new changes in the law may require more creativity from
NRCS state and local offices implementing WHIP in order to accomplish the program
purposes while meeting Congressional intent. More explicit limitations tied to landownership
will make implementing wildlife practices focused on habitat/species/priority
areas more difficult, especially in rivers, streams, and other aquatic systems where the
watercourses are considered a public resource, even though they are surrounded by
privately owned lands. WHIP needs the flexibility to produce desirable benefits and
outcomes for fish and wildlife that do not place an unfair burden on participants. The
ability to offer WHIP cost-share and activity payments to agricultural operators is
needed, as wildlife practices are often an additional cost for producers that do not
provide any cost-benefit to the landowners operation. Therefore, creative uses of cost-share, activity and other payments would make participation in these initiatives more
appealing and make it financially possible for more producers to complete wildlife
practices and help fish, wildlife, and their habitats.

SECTION BY SECTION COMMENTS AND RECOMMENDATIONS:

Administration.

(c) "... NRCS may make payments pursuant to said agreements for program
implementation and for other goals consistent with the program provided for in this
Part."

We fully support and appreciate the flexibility granted to enter into agreements with
Federal and State agencies as well as Indian tribes to assist with program implementation. WHIP is not utilized more by landowners in the past because of insufficient marketing and outreach efforts. It will be beneficial to landowners, NRCS and its conservation partners to clarify in policy that marketing and outreach components are eligible for, and should be included in, agreements to assist with program implementation.

636.3 Definitions.

• Agricultural lands: As written this definition will limit the program's utility on a
producer's operation and potentially leave holes where conservation practices and
benefits are desperately needed but no tool is available for deployment. We
commend NRCS for its use of WHIP to address vital fish habitat restoration work
and improve habitat for many fish and wildlife species which was based on strategic
habitat conservation goals and needs. These activities not only improve conditions
for fish, wildlife, and their habitats but also may help reduce producers' potential
threats from regulatory actions associated with threatened and endangered species.
We recommend the following modifications to the definition for incorporation into the
final rule and to improve the program's utility across the agricultural landscape:

o Agricultural lands means cropland, grassland, rangeland, pasture, and other
associated land determined by NRCS to be suitable for fish and wildlife
habitat development. Agricultural lands may include, but are not restricted to, associated woodlands, wetlands, riparian areas, and in-stream habitats, other incidental areas. and other types of land used for agricultural production of livestock or land that is suitable for the agricultural production of livestock.

• At-risk species: NRCS continues to work with Federal and State partners to
increase benefits delivered for fish, wildlife, and their habitats through their
conservation programs. For consistency, we recommend using the definition jointly
developed and included in the signed MOU between Association of Fish and Wildlife
Agencies (AFWA), NRCS and the US Fish and Wildlife Service (FWS) to proactively
conserve at-risk species and their habitats:

o At-risk species means any plant and animal species that are listed as endangered or threatened under ESA; proposed or candidates for listing under ESA; likely to become candidates for listing in the near future; species listed as endangered or threatened (or similar classification) under State law; State species of conservation concern; and any plant or animal species as determined by the State Conservationist, with advice from the State Technical Committee, needing direct intervention to halt its population decline.

• Indian land: Because of the legal complexity of lands owned by Indian tribes and to
be as inclusive of those lands as possible across all 50 states, we recommend 
incorporating the following definition of "Trust land" as well as "Indian land" in the in
the final rule:

o Trust lands means:
(A) is held in trust by the United States for Native Americans;
(B) is subject to restrictions on alienation imposed by the United States
on Indian lands (including native Hawaiian homelands);
(C) is owned by a Regional Corporation or a Village Corporation, as
such terms are defined in section 3(g) and 3(j) of the Alaska Native
Claims Settlement Act, respectively (43 U.S.C. 1602 (g),(j)); or
(D) is on any island in the Pacific Ocean if such land is, by cultural
tradition, communally-owned land, as determined by the Secretary
bullets from 38 USC (Veteran's Benefits) Section 3765 Definitions

• Indian tribe: Because of the diversity of Indian tribes and to be as inclusive as
possible across all 50 states and territories, we recommend incorporating
"including Hawaiian Homelands and Pacific Insular Areas" into the definition of
Indian tribe in the final rule.

• Resource concern: The rule utilizes the term "participant" throughout the rule. For
consistency with the rest of the rule, we recommend striking "by producers" at
the end of the definition and substituting "by participant."

• Wildlife: To be as inclusive as possible, we recommend adding "including
mollusks" to the definition.

636.4 Program requirements.

• (b) Eligible land includes: Because of the complexity and diversity of lands owned
by Indian tribes and to be as inclusive of those lands as possible across all 50 states
and territories, we recommend adding a new (b)(4) for "Trust land" after "Indian land"
in the final rule.

o Recommendation, add: "(b)(4) Trust land."

• (b) Eligible land includes: The current definition of land eligibility leaves gaps that
needs to be clarified in the final rule to avoid creating problems for both participants
and NRCS staff in program implementation. The Manager's Report provides guidance to the Secretary to "provide priority to projects that address issues raised by State, regional, and national conservation initiatives," and "intend(s) the Secretary to consider the goals and objectives identified in relevant fish and wildlife conservation initiatives when establishing State and national program priorities, scoring criteria, focus areas, or other special initiatives." Streams, rivers and waterways on private land provide important habitat for many wildlife species (including species of greatest conservation need), are vital to ecosystem health, and often require management to provide important habitat while maintaining the integrity of a participant's land, field, and profitability which could be affected by erosion, stream bank destabilization and other instream factors. Landowners need
an option to address these issues through WHIP. Therefore, streams, rivers, instream modifications and the like must be included as eligible land because they are an integral part of private lands, the landscape, and must be included in the conservation plan even in States where waterways are considered property of the State. A landowner who is willing to perform instream modifications, improve aquatic habitat and conduct streambank stabilization that benefits the both the participant and wildlife should be eligible for cost-share funds for such activities through WHIP. The Association recommends adding the following provision to the final rule to address these problems:

o Recommendation, add: "(b)(5) The land and waterways therein is a working component of the participant's agricultural or forestry operation, and is private land on which habitat development would benefit fish and wildlife."

• (b) Eligible land includes: We recommend adding the following provision in the final
rule in this section to fully encompass the range of agricultural operations and
situations encountered where habitat development on private lands would be both
mutually beneficial and appropriate.

o Recommendation add: "(b)(6) Lands leased by private landowners who have control over the land for the contract period."

• (C) Ineligible land. NRCS does not have the staffing capacity or extensive
expertise required to make decisions about land ineligibility that could affect at-risk
species conservation without collaboration with State and federal fish and wildlife
professionals on the varied, diverse, and often-complicated wildlife issues. In cases
where NRCS makes ineligible land determinations, they should coordinate with the
State fish and wildlife agency and the FWS to ensure at-risk species, conservation
practices or important habitat components would not be adversely affected by a land
ineligibility determination. We recommend modifying this provision as follows to
reflect the needed coordination with other government agencies who can assist
NRCS in this process:

o Recommendation: NRCS, after coordination with the state fish and
wildlife agency and the FWS, shall not provide cost-share assistance with
respect to conservation practices on land:

• (c)(1) To clarify eligibility and improve consistency in implementation across the
country, we recommend adding the word "Currently" at the beginning of this
provision so that it reads as follows:

o Recommendation: "Currently enrolled in a program where fish and wildlife
habitat objectives have been sufficiently achieved, as determined by NRCS."

• (c)(3) To help address issues raised by state, regional and national wildlife
conservation initiatives and to preclude the need to list more species under the
Endangered Species Act, we recommend modifying this provision so that it reads:

o "On which habitat for threatened or endangered species, as defined in Section 3
of the Endangered Species Act (ESA); plant or animal species that are
proposed or candidates for listing under the ESA; species likely to become
candidates for listing in the near future; species listed as endangered or
threatened (or similar classification) under State law; or State species of
conservation concern, would be adversely affected."

• (c)(4) To avoid confusion and increase consistency in implementation, we
recommend changing this provision to read as follows:

o "That is public land, excluding lands owned by a state that are held in trust
for the beneficiaries of a state's education system."

636.6 Establishing priority for enrollment in WHIP.

• c(8): This provision prOVides conditions that would appear to be unenforceable in a
WHIP contract and will be impossible for the agency to manage effectively. A more
constructive approach would be to allow State NRCS offices to offer higher cost-share
rates to expediently implement and complete conservation practices. In some
instances where cultural resources are a concern, a survey for cultural resources
may take longer than 2 years to complete; thus putting these participants at an unfair
disadvantage. Consequently, this provision should be removed.

o Instead, we propose NRCS should provide each State Conservationist the
flexibility to offer higher cost-share rates during certain years of a contract
to motivate completion of conservation practices or encourage completion
of more complex conservation projects that take longer than 2 years to complete.

636.7 Cost-share payments

• (a)(1) WHIP has been successful in assisting in the conservation of threatened or
endangered species by implementing conservation practices that are tied to federal
or state threatened or endangered species recovery plans, and serving a vital role in
important or critical habitat development were it is most needed. It is important to
note that the succession of plant communities varies widely across the country, and
climates with higher rainfall have faster rates of plant community succession.
Consequently, a stringent restriction on higher cost-share rates that apply only to 15-year
contracts could unintentionally and adversely affect conservation efforts in
areas of higher rainfall. Because of plant community succession rates, rainfall, and
other climate conditions, there are some conservation practices that must be
implemented every 5 years in order to maintain their habitat and conservation
benefits for target species. We recommend modifying this provision as follows for
inclusion in the final rule:

o Recommendation: NRCS shall allow up to 90% cost-share if the conservation practice is tied to a federal or state threatened or endangered species recovery plan, including those cost-share agreements that are 5-15 years or more in length.

• (a)(1) We commend NRCS for the forethought of the language in this provision and
strongly supports the flexibility granted to State Conservationists to provide"...
additional cost-share assistance to achieve the intended goals of the program"
where merits warrant such actions. We recommend maintaining this language as
written in the final rule.

636.7 Cost-share payments

• (d) We recommend NRCS modify this provision to allow input from the State
Technical Committee, encompass working lands activities, and to read as follows:

o (d) NRCS, in consultation with the STC, will identify and provide public notice of the conservation practices eligible for payment under the program. Conservation practice payments may consider foregone income eligible for payment under the program may include development and implementation of conservation activity plans for practices such as
including deferred grazing/haying, crop stubble management, and forestry planning/ and management if they are necessary to enhance or maintain fish and wildlife habitat.

• (f) The provision needs clarification to avoid confusion in interpretation. While
this annual payment limitation will reduce the program's effectiveness and applicability for some strategic habitat initiatives and fish and wildlife conservation priorities across the country, the change in rule reflects a change in the law made by Congress.

o NRCS should clarify in rule and policy that "a multiple year contract may exceed $50,000 provided the payments made or attributed to a participant, directly or indirectly, may not exceed, in the aggregate, $50,000 per year."

• (h) The forethought of the language in this provision and strongly supports its
incorporation as written in the final rule. This flexibility is much needed and will
be much appreciated by program participants.

• (k) NRCS should track the 25 percent designation of funds allocated for contracts
for a term of at least 15 years at the National program level. Because of the
relatively small amount of WHIP funds allocated to each State and the need to
have as much flexibility at the state level as possible to address the varying
wildlife issues; it would be onerous and could adversely affect conservation
activities to require 25% of State WHIP funds be allocated for contracts that are
for a term of at least 15 years. We recommend the following:

o (k) NRCS, for a fiscal year, may use up to 25 percent of National WHIP funds to carry out cost-share agreements described in Section 636.9(c).

636.9 Cost-share agreements. 

• (c)(2): The term "critical habitat" often invokes thoughts and actions associated
with implementation of the ESA. To reduce confusion, avoid formal "consultations" under the ESA where they are not warranted, and to avoid unintentionally limiting the program to only species listed under the ESA, the phrase "essential or important plant and animal habitat" should be used instead of "critical plant or animal habitat." NRCS actions should be coordinated with the State fish and wildlife agency and the FWS, and we offer the following
modifications for incorporation into the final rule:

o Recommendation: (2) Protects and restores essential or important plant and animal habitat, as determined by NRCS, as determined in coordination with the State fish and wildlife agency and the FWS; and

• (8) Under this provision, we encourage NRCS to include in policy language
articulating that:

(8) "deferment shall be eligible for payments for foregone income when deferment of use is needed to meet habitat needs and achieve the objectives of the program."

• To ensure NRCS's compliance with NEPA and the program participant's compliance with local, state and federal permitting laws that are associated with certain conservation practices, the following provision should be added to the final rule:

o (9) No cost share payment shall be made to a participant until all local, state, and federal permits are obtained and on file with NRCS.

636.10 Modifications

(b) We commend NRCS for the forethought of the language in this provision and strongly supports its incorporation as written in the final rule. It will ensure that contract modifications must meet and support the programs' purpose and objectives.

636.11 Transfer of interest in a cost-share agreement.

• (a)We noted that there is no time limit associated with this provision. In order for
NRCS to meets is administrative responsibilities, we recommend the following modification to facilitate administration of the program:

o Recommendation: " ... covered by a WHIP cost-share agreement during the term of the agreement."

• (b) The term "participant" is used throughout the rule instead of "producer." For
consistency, "producer" should be changed to "participant" in this section to be consistent with the rest of the rule.

• (d) NRCS should clarify who will be required to refund payment in the case where a cost-share agreement is terminated. For instance, it would be unfair to ask a new landowner to repay funds received by the previous landowner. The Association supports the following modifications to the provision:

o Recommendation, add: " ...require that all cost-share payments may be forfeited, refunded, or both by the original participant."

636.17 Compliance with regulatory measures.

(a) Because NRCS does not require documentation of permits required for projects,
the potential exists for NRCS to fund projects that have not been permitted by the
appropriate regulatory agency. This is particularly important and applicable to
instream modifications. To facilitate NRCS's ability to meet NEPA requirements as it
pertains to paying for activities with federal funds that are subject to local, state and
federal permitting requirements. We recommend adding to this section that:

... no cost-share payments should be made to a participant until all necessary
permits have been obtained by the applicant and copies of the permits are
received and on file by NRCS (see also our recommendation under 636.9 Cost
share agreements, add #9.).

636.18 Technical services provided by qualified personnel not affiliated with USDA.

(c) The term "participant" is used throughout the rule instead of "producer." For
consistency, we recommend changing "producer" to "participant" in this provision to be consistent with the rest of the rule.

336.19 Access to operating unit.

• For clarification purposes, we recommend adding "including TSPs" after "NRCS
representative in the first sentence" so that program participants know TSPs shall
have the right to enter the premises.

• We recommend changing "agricultural operation or tract" in the first sentence
to "a participant's property" to more accurately reflect the types of lands eligible.

636.21 Environmental services credits for conservation improvements.

We recommend utilizing the language issued in the Healthy Forest Reserve Program rule in this section because of its inclusive nature provided it is modified to reflect WHIP cost-share payments instead of easement payments as follows:

"Environmental Services Credits for Conservation Improvements. USDA
recognizes that environmental benefits will be achieved by implementing
conservation practices, measures, and activities funded through [WHIP] and
that environmental credits may be gained as a result of implementing
activities compatible with the purposes of a [WHIP] cost-share agreement,
contract or restoration agreement. NRCS asserts no direct or indirect interest
on these credits. However, NRCS retains the authority to ensure the
requirements of a [WHIP] contract, cost-share agreement, or restoration plan
are met consistent. Where activities required under an environmental credit
agreement may affect land covered under a [WHIP] restoration cost-share
agreement, or contract, an amendment to the restoration agreement or
contract, or a compatible use approval may be required and participants are
highly encouraged to request a compatibility assessment from NRCS prior to
entering into such environmental credit agreements."

Thank you for the opportunity to provide comments on these important issues.


/Timothy McCoy/
Timothy McCoy, Ag Program Manager
On behalf of the Nebraska Game and Parks Commission