Farm Protection Program: Status and Current Issues

Farm Protection Program: Status and Current Issues

Order Code RS22565
January 5, 2007
Farm Protection Program:
Status and Current Issues
Renée Johnson
Analyst in Agricultural Economics
Resources, Science, and Industry Division
Summary
The Farm Protection Program (FPP) is a voluntary federal program that provides
funding to buy conservation easements from farmers and ranchers in an effort to limit
conversion of farmland to nonagricultural uses. FPP provides matching funds to state
and local governments and private organizations working with established farm and
ranch land protection programs, in partnership with the U.S. Department of Agriculture
(USDA). Since 1996, the program has protected more than 449,000 acres throughout
the United States. Authority for FPP expires September 30, 2007. Although demand to
participate in FPP continues to grow, exceeding available funding, there are concerns
about how the program has been implemented. Among these concerns are land use
limitations and the federal government’s “contingent right” on land under FPP-funded
easements. During the 109th Congress, several bills were introduced to amend the FPP
statute and to raise program funding, but legislation was not enacted. Similar legislation
may be considered in the 110th Congress and in the anticipated 2007 farm bill debate.
This report will be updated as events warrant.
Background
The Farm Protection Program (FPP), also called the Farm and Ranch Land
Protection Program or FRPP, is a voluntary federal program that provides funding toward
the purchase of conservation easements from farmers and ranchers to limit conversion of
farmland to nonagricultural uses. Under FPP, a landowner sells the development rights
to his/her property, thereby limiting certain types of uses or preventing development from
taking place on the land, while still allowing the owner to retain other ownership rights,
including the right to farm. The program provides matching funds to state, tribal, or local
governments and nongovernmental organizations working with established farm and
ranch land protection programs, in partnership with the U.S. Department of Agriculture
(USDA). The program is managed by USDA’s Natural Resources Conservation Service
(NRCS). FPP was initially authorized in Section 388 of the Federal Agriculture
Improvement and Reform Act of 1996 (P.L. 104-127) and was reauthorized through
FY2007 and amended in Section 2503 of the Farm Security and Rural Investment Act of

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2002 (P.L. 107-171, 2002 farm bill).1 Amendments to FPP in the 2002 farm bill both
raised authorized funding levels and expanded eligibility under the program.
Eligibility. The original FPP statute identifies eligible lands under the program as
“land with prime, unique or other productive soil.”2 The 2002 farm bill expanded the
types of eligible land under the program to include cropland, rangeland, grassland,
pastureland, and forestland that is part of an agricultural operation, along with other types
of land resources. The 2002 farm bill also expanded the types of entities eligible to
participate in the program to include Indian tribes and qualified nonprofit organizations
operated for conservation purposes. To qualify under FPP, as outlined by USDA,3 the
land offered must be part or all of a farm or ranch and must (1) contain prime, unique, or
other productive soil or historical or archaeological resources; (2) be included in a
pending offer from a state, tribal, or local government or nongovernmental organization’s
farmland protection program; (3) be privately owned; (4) be covered by a conservation
plan for any highly erodible land; (5) be large enough to sustain agricultural production;
(6) be accessible to markets for what the land produces; (7) be surrounded by parcels of
land that can support long-term agricultural production; and (8) be owned by an individual
or entity that does not exceed the adjusted gross income (AGI) limitation.4 Land that
cannot be converted to nonagricultural uses because of existing deed restrictions or other
legal constraints is not eligible for FPP.
Other Requirements. Two main issue areas under the program have raised
concerns by major stakeholders, including land use limitations and requirements
pertaining to the federal government’s contingent right under the program. Land use
limitations on farm and ranch land under FPP-funded easements extend beyond the basic
restriction against nonagricultural development. Construction inside the easement area
is generally prohibited and any new farm structures need NRCS approval. Structures
including phone towers and wind turbines are generally considered nonagricultural and
would not be allowed. Subdivision of the land is prohibited. Impervious surfaces are also
limited inside the easement area and may not exceed 2% of the FPP easement area, as
further promulgated by USDA in a July 2006 rulemaking.5 Such restrictions are generally
regarded by USDA as consistent with language in the FPP statute describing the program
“for the purpose of protecting topsoil by limiting nonagricultural uses of the land,” and
as consistent with USDA’s characterization of FPP as an “agricultural soils protection”
1 Authorized as FPP in the Farm Security and Rural Investment Act of 2002, and renamed FRPP
by USDA to distinguish it from the old program. The name has not been changed in statute.
2 16 U.S.C. § 3838i (a).
3 USDA, NRCS, “Farm Bill 2002, Farm and Ranch Lands Protection Program,” September 2004,
at [http://www.nrcs.usda.gov/PROGRAMS/farmbill/2002/pdf/FRPPFct.pdf].
4 Applies to individuals or entities with an average AGI exceeding $2.5 million for the three tax
years immediately preceding the year the contract is approved. Exemptions apply in cases where
75% of the AGI is derived from farming, ranching, or forestry operations.
5 71 Federal Register 42567, July 27, 2006; NRCS, FRPP Manual, CPM Part 519, June 2003.
Impervious surfaces include residential and agricultural buildings (with and without flooring) and
paved areas both inside and outside the conservation easement’s building envelopes.

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program.6 However, such land use limitations are often perceived by landowners as
creating additional and, in some cases, conflicting restrictions to easement terms already
developed and used by some established state, local and private protection programs.7 A
2004 informal survey of Northeast and mid-Atlantic state and local farmland protection
agencies, conducted by the American Farmland Trust (AFT), shows that states use a
variety of strategies to manage new construction on protected lands. Some states already
have specific policies regarding impervious surfaces.8 All of the agencies surveyed by
AFT expressed some concern about USDA’s 2% impervious surface limit; respondents
in Pennsylvania claimed the 2% limit may affect future FPP participation in that state.
Public comments submitted to USDA show that some conservation organizations,
including the New Jersey Conservation Foundation and The Nature Conservancy,
continue to support limiting the level of impervious surfaces on FPP-funded easements.
Language in the FPP statute instructing NRCS to “purchase conservation easements
or other interests in eligible lands”9 has been interpreted to mean that the federal
government retains a “contingent right” in FPP-funded conservation easements. USDA
clarified this position in a July 2006 rulemaking, identifying the federal government as
a grantee (co-holder) on FPP-funded easements and outlining the need for possible
requirements including additional easement and title review and indemnification for
federal acquisition of real property.10 To date, NRCS has not exercised its enforcement
rights or taken title to any FPP lands. However, these requirements have been perceived
by some as adding levels of bureaucracy and burdensome administrative requirements,
which may discourage some farmers from participating in FPP.11
Funding. Before 2002, authorized funding for the program totaled $35 million for
the purchase of conservation easements on 170,000-340,000 acres. The 2002 farm bill
authorized funding for FPP as follows: $50 million in FY2002, $100 million in FY2003,
$125 million each in FY2004 and FY2005, $100 million in FY2006, and $97 million in
FY2007. FPP is one of the mandatory spending programs that is funded under the
borrowing authority of USDA’s Commodity Credit Corporation and is not subject to
annual appropriations. However, in recent years, annual agriculture appropriations acts
have included language limiting FPP spending to below the authorized amounts.12 Actual
spending for FPP totaled $112 million in FY2005 and $74 million in FY2006.
6 16 U.S.C. § 3838i (a); 71 Federal Register 42567, July 27, 2006. In the notice, USDA states
that “conversion of the soils conflicts with the clear purpose of the statute.”
7 CRS staff communication with AFT, Dec. 2006; AFT, “Farm and Ranch Lands Protection
Program,” [http://www.farmland.org/programs/campaign/newpolicyrecommendations.asp].
8 AFT, “Survey of Northeast and Mid-Atlantic State and Local Farmland Protection Programs’
Impervious Surface and Construction Policies.” Survey based on 12 state/local organizations.
9 16 U.S.C. § 3838i (a).
10 71 Federal Register 42567, July 27, 2006. USDA regards this interpretation as consistent with
FPP’s statutory authority and the Department of Justice’s Title Standards.
11 CRS staff communication with AFT, Dec. 2006; AFT, “Farm and Ranch Lands Protection
Program,” [http://www.farmland.org/programs/campaign/newpolicyrecommendations.asp].
12 See also CRS Report RS22243, Mandatory Funding for Agriculture Conservation Programs,
by Jeffrey Zinn.

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Program Costs and Benefits. Federal outlays for FPP have totaled $454 million
over the past decade. This has paid for FPP easements on approximately 449,000 acres
on 2,290 farms in all states, except Mississippi. The total cumulative easement value of
this land is estimated at $1.1 billion.13 States with the greatest overall FPP spending are
Maryland ($30 million), New Jersey ($27 million), Pennsylvania ($26 million), California
($22 million), and Massachusetts ($21 million).14 Figure 1 shows FY2006 allocations
by state and illustrates that most FPP funds are allocated among the northeastern states
and California, which are states with the oldest and most active programs. Among the
reasons why some states may have more limited participation are lack of a qualified state
conservation program; difficulty obtaining matching funds; less experience with,
acceptance of, or interest in efforts to protect farmland using easements; perceived
burdensome administrative requirements and restrictive land use limitations; and a
backlog of unfunded applications under current funding levels.
Figure 1. FY2006 FPP Allocations to States
Source: USDA, NRCS, at [http://www.nrcs.usda.gov/programs/frpp/].
A survey of landowners participating in FPP, conducted by the University of
Nebraska,15 shows a high level of satisfaction among current program participants, most
of whom have continued to farm on their land. The survey shows that 97% of surveyed
landowners have at least part of their FPP land in agricultural production. Roughly half
13 USDA, “Farm Bill Forum: Farm and Ranch Lands Preservation,” March 2006, at [http://www.
usda.gov/documents/FARM_AND_RANCH_LANDS_PRESERVATION.pdf].
14 AFT, “Federal FRPP Allocations,” October 2006, at [http://www.farmlandinfo.org/documents/
31159/FRPP_table_11-06.pdf]. Data for 1996-2006.
15 J. D. Esseks, J. M. Nelson, and M. E. Stroe, Evaluation of USDA’s Farm and Ranch Lands
Protection Program, University of Nebraska, [http://www.aftresearch.org/current/results/detail.
php?id=170]. Survey of 422 landowners interviewed June-December 2005 (73% response rate).

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of those surveyed were smaller-sized farms with reported total gross farm sales under
$100,000 per year. The survey shows that nearly three-fourths of surveyed owners either
believe they have “definitely” made the right decision to participate in the program or
would recommend FPP “without reservations” to other landowners.
USDA reports that demand for the program exceeds available funding by about
300%, based on the number of unfunded applications. In 2005, there were 542 unfunded
applications for FPP easements, covering about 127,800 acres at an estimated federal cost
of $263 million. This backlog is up from 2004, when there were 216 unfunded
applications covering about 48,000 acres at a cost of $101 million. In 2005, the number
of unfunded FPP acres exceeded 10,000 acres each in Montana, Florida, and Colorado
(see Figure 2). States with the most unfunded FPP requests were Pennsylvania, South
Carolina, Connecticut, West Virginia, and Vermont.
Figure 2. FY2005 FPP Unfunded Applications (acres)
Source: USDA, NRCS [http://www.nrcs.usda.gov/programs/frpp/].
The University of Nebraska survey also gives some indication that FPP may be
achieving its intended goal of limiting conversion of farmland to nonagricultural uses.
Among those surveyed, 56% reported that their FPP land would have been vulnerable to
development within a year of closing on the easement. About 34% of those surveyed
received offers to sell their land within a year of closing on the easement; 36% report their
land is located within one-half mile of a public sewer or water line, which could have
facilitated conversion of the land to nonagricultural uses.
Issues for Congress
Despite a growing backlog of potential FPP participants and a high level of
satisfaction among current program participants, there are still certain concerns about
program implementation, particularly following the 2002 farm bill with respect to

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USDA’s policy manuals and rulemaking documents. For the 2007 farm bill debate, AFT
and the National Association of State Departments of Agriculture (NASDA) are
recommending further statutory changes to FPP, in part to address concerns about current
land use limitations and the federal government’s property interest on FPP-funded
easements. AFT and NASDA also recommend a threefold increase in funding to $300
million annually to expand the program and address the backlog of unfunded
applications.16
The principal program change recommended by AFT and NASDA is to establish a
block grant program for “qualified state or local entities.” They define such entities as
having a well-established record working with conservation easements (at least three
years of operation and holding easements on at least 10 properties), the capacity to
monitor and enforce these easements, and adequate financial resources. For non-qualified
entities, the program would operate as under current law. NASDA’s proposal currently
recommends that 80% of funding be distributed to qualified entities; AFT’s proposal does
not set a minimum or maximum percentage. Current land use restrictions would be
further addressed in recommended changes authorizing state and local entities to
“determine their own criteria and priorities” and to “use their own terms and conditions”
for conservation easements under FPP, thus deferring such decisions to the state and local
level. USDA’s role as a grantee (co-holder) would be further addressed by adding
statutory language stating that the federal government would not hold an interest in the
property, except in easement purchased by non-qualified entities, and by clarifying the
government’s role to “facilitate and fund” the program. AFT also proposes that existing
statutory language pertaining to “protecting topsoil” be eliminated.
Possible questions raised by these proposals include: What would the details of an
FPP grant program, such as program requirements and quantitative criteria to evaluate
qualified entities, look like? How would a grant program encourage broader participation
of “land with prime, unique or other productive soil,” rather than strictly favoring states
with longstanding, established programs in the Northeast and in California? Would NRCS
need additional personnel to handle the addition of a grant program for qualified entities,
along with the existing program for non-qualified entities? How would monitoring and
oversight of the easement be enforced? Who would assume responsibility for the property
in cases where the qualified entity defaults or fails to comply with the terms of the
easement? These and related questions may be raised in anticipated farm bill debate.
During the 109th Congress, several bills were introduced to amend the FPP statute
and to raise program funding. None was enacted, but similar legislation may reemerge in
the farm bill debate. Two bills (Kind, H.R. 6064, and Santorum, S. 3720) sought to enact
the program changes recommended by AFT and NASDA. H.R. 6064 would also have
raised authorized program funding to $300 million per year through FY2013. Other FPP
legislation introduced in the 109th Congress included proposals to raise funding to $300
million per year through FY2012 (Pombo, H.R. 6193) and proposals to amend FPP, but
not covering the types of changes currently proposed by AFT and NASDA (Holden, H.R.
6000, and Gerlach H.R. 1514).
16 See AFT, “Farm and Ranch Lands Protection Program,” [http://www.farmland.org/programs/
campaign/newpolicyrecommendations.asp]; NASDA, NASDA 2007 Farm Bill Recommendations
[http://www2.nasda.org/NR/exeres/BCA10C72-3D50-4EB7-ABC7-2780A8002A4E.htm]. Other
recommendations address easement valuation, among other suggested changes.