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

Dear Sir or Madam:

On behalf of Trout Unlimited's 140,000 members nationwide, we thank you for the
opportunity to comment on the interim-final rule that will guide the Wildlife Habitat
Incentive Program (WHIP). The mission of Trout Unlimited (TU) is to conserve, protect,
and restore coldwater resources and their watersheds. Partnering with farmers and
ranchers to protect, re-connect, and restore habitat on their lands is one of the most
important aspects of our conservation efforts.

Thus, Farm Bill conservation programs, and WHIP in particular, are vital to TU's
conservation work. We are heavily invested in helping make sure this program remains
successful. In the past our local chapters and professional conservation staff have
partnered with numerous landowners and NRCS offices across the country to help
implement critical aquatic habitat restoration projects. These efforts almost always
leverage additional significant resources from other state, local government, and private
entities. WHIP fills an important niche in restoring fish and wildlife habitat on private
lands and we hope our specific comments below are useful in shaping the program to be
the most constructive and useful as possible. 

Because WHIP has been so valuable to us, we were disappointed by the major limitations
that were placed on the program by provisions ofthe 2008 Farm Bill. Specifically, 1)
narrowing the program's eligibility to only private agricultural lands, nonindustrial
private forest lands and Tribal lands; and 2) requiring a $50,000 payment limitation for
projects, undermines the longstanding fish and wildlife conservation purposes of the
program. Allowing for at least a small number of strategically-located projects on private
nonagricultural or on state or local public lands, as WHIP allowed prior to the 2008 Farm
Bill amendments, served the program and the nation well. Some of the very best fish
habitat restoration WHIP proj ects were on lands that will now be off limits under the new
WHIP. 

Similarly, the $50,000 payment limitation will eliminate opportunities for larger-scale
fish habitat projects that would have provided some ofthe best resource returns on WHIP
dollars. Again, some of the larger, more expensive WHIP projects authorized under
earlier versions of WHIP provided some of the highest fisheries benefits.

We urge NRCS, USDA and the Obama Administration to go to Congress and seek
practical fixes to WHIP that will reduce the harm of the new limitations. NRCS should
have flexibility to allow at least limited use of WHIP dollars for larger projects that are
not on agricultural lands.

The following are our comments on the interim final rule.

• Priorities: We commend NRCS' identified national priorities for WHIP as
identified in the Interim Final Rule (i.e., promote the restoration of declining or
important native fish and wildlife habitats; protect, restore, develop, or enhance
fish and wildlife habitat to benefit at-risk species). Also, we strongly agree with
giving the Secretary authority to set priorities that will help fulfill state, regional
and national habitat initiatives, such as the National Fish Habitat Action Plan
(NFHAP) and the State Wildlife Action Plans. TU is an active participant in
several of the regional Fish Habitat Partnerships created under NFHAP, such as
the Eastern Brook Trout, Driftless Area, and Western Native Trout partnerships.
WHIP dollars spent on projects identified by these initiatives will help maximize
the resource gains, as WHIP dollars will work synergistically with an array of
other funding sources.

• Definition of agricultural lands: It should be clarified in the definition that
"incidental areas included in the agricultural operation" should be interpreted to
explicitly include streams, riparian areas, wetlands, woodlands and other areas
that provide ecological and other services to the agricultural operation such as
surface water filtration, groundwater recharge, pollinator habitat, and visual
buffers, etc ...

• Definition of applicant: The interim final rule definition of applicant "means a
person, legal entity or joint operation that has an interest in an agricultural
operation, as defined in 7 CFR part 1400, who has requested in writing to
participate in WHIP." The phrase "private non-industrial forest land or" should
be included before "an agricultural operation." The inclusion of private nonindustrial
forest landowners is clearly the intent ofthe statutory language and is
explicit or implied through the rest ofthe WHIP rules. As currently stated
however, it is ambiguous at best whether private non-industrial landowners are
eligible to apply. A very narrow interpretation of those eligible to apply could
exclude many potential program participants.

• Definition of at-risk species: NRCS explicitly requested in the Federal Register
input on the definition of "at-risk species," which in the current interim rule is
determined by the respective State Conservationist. TU recommends that "at-risk
species" instead be defined as any species that is listed, a candidate, or proposed
for listing under the federal Endangered Species Act or an analogous state species
of concern designation; or is identified in any regional, state, or local plan as
declining or otherwise at-risk in a portion or all of its native range. The intent
here is to link the determination to a scientifically-defensible plan but be broad
enough to allow for at-risk species to include those that may be in decline in a
localized area but perhaps not at a state or larger level.

• Ineligibility of public lands: The new statutory intent of WHIP is clearly to
exclude public lands from a program designed to benefit fish and wildlife habitat
on private lands. However, this could result in an unintended consequence that
would disallow certain stream projects on private lands. The status of ownership
of stream and river bottoms varies and in some states are under the jurisdiction of
the state or federal government. TU doubts that it was intent of the lawmakers to
exclude potentially good projects on agricultural lands as a result of the legal
status of stream bottoms. We recommend that NRCS include some clarifying
language that would ensure that common sense prevail and allow stream and
wetland restoration projects on private land proceed regardless of the jurisdiction
or ownership status of the wetted bottoms. This could be accomplished by adding
a phrase after § 636.4 (c)(4) describing ineligible public land such as "except for
streams and river bottoms that are determined by state statute to be under the
jurisdiction of the state but are otherwise adjacent to private land."

• Cost-share payments: Section 636.7 Cost-share Payments states that "The cost-share
payment to a participant shall be reduced proportionately below 75 percent
to the extent that direct Federal financial assistance is provided to the participant
from sources other than NRCS, except for certain cases that merit additional cost-share
assistance to achieve the intended goals of the program...." We recommend that NRCS readily grant this waiver, particularly as it relates to declining or at risk species, because there is often little financial incentive for an agricultural producer to participate in activities that do not, inherently, result in increased agricultural profitability. If NRCS and other partners can eliminate the cost of this type of habitat work the landowner may be willing to allow the habitat to be restored or enhanced. This can help recover declining species and prevent Endangered Species Act listings.

We commend NRCS for its good work on the interim final rule. Thank you for the
opportunity to comment on it.

Sincerely,

/Laura Hewitt/
Laura Hewitt
Watershed Programs Director

/Steve Moyer/
Steve Moyer
Vice-President of Government Affairs