The task of protecting our nation's grasslands from the plow and paving machine has always been difficult.

From 1850 to 1990, grasslands west of the Mississippi River declined by almost 290 million acres, according to the American Agricultural Economics Association. From 1950 to 1990, the loss of grasslands outpaced the gains in cropland by more than 1.5 acres to 1 — pointing to an increase in grassland conversion to uses other than cropland. National Resources Inventory data indicate that between 1982 and 1997, more than 22 million acres of rangelands were converted to other uses.

Two years ago, an unlikely alliance took a stab at doing what other programs had failed to do — stem the loss of America's grassland resources. The National Cattlemen's Beef Association (NCBA) and The Nature Conservancy (TNC) formulated the Grassland Reserve Program (GRP) as a statute in the 2002 farm bill.

The law allows landowners to receive compensation from USDA for not converting their grasslands to cropland, or turn to residential, commercial, or industrial development. Voluntary participants have the option of “renting” 10-, 15-, 20- or 30-year conservation easements, or selling 30-year or permanent easements.

USDA's Natural Resources Conservation Service (NRCS) and Farm Services Agency (FSA) are working from Maine to California to recruit landowners into the program. FSA has the lead on rental agreements. NRCS has the lead on easement projects.

But, the program has been sputtering in the face of considerable landowner interest in the program. The problem to date has been mostly due to lack of funding.

GRP was first offered when USDA announced the availability of $49 million for fiscal year (FY) 2003. In Kansas, for example, more than 1,000 landowners applied to enroll nearly a half-million acres. By September 2003, only 12 Kansas landowners had received a “tentative notice of approval” of acceptance for enrolling approximately 6,300 acres.

In FY 2003, the South Dakota NRCS received 1,010 applications requesting $95 million in conservation work. The agency was able to fund 10 applications for $1.7 million, says Janet Oertly, Huron, SD, NRCS state conservationist.

USDA announced earlier this year that nearly $70 million is available for the FY 2004 program — $54.2 million for financial assistance and $15.3 million for technical assistance.

“This year, about $2.2 million is available for South Dakota landowners to enroll grasslands,” Oertly says. “Any eligible landowner can sign up for GRP, but due to our funding limits and workload in 2004, we will only process applications from the identified priority area.”

Like in other states, FY 2004 applications will be rated based on ranking and selection criteria developed in the states following broad national guidelines.

The devil's in the rules

While lack of funding has stemmed the initial thrust of the legislation, the longer-term success of GRP hinges on its long-term direction — of which the initial instigators of GRP are unhappy.

“The relatively simple notion of keeping grass intact reflects the interest of our groups in seeing that program money gets spent on the narrow, though critical, goal of the program,” says Jeff Eisenberg, Washington, D.C., NCBA's director of federal lands. “We're concerned USDA is moving away from this basic concept in its implementation of the program.”

Eisenberg and others contend that as GRP guiding rules evolved, they weren't sufficiently respectful of the rights of private landowners. They worry GRP funds might be soaked up by attention to “ancillary activities” like hunting, fishing, hiking, camping, bird watching and other non-motorized recreation.

“We're hopeful USDA will be friendlier to private landowners' interests as this program evolves,” Eisenberg says.

“As much legislation does, it got caught up in the sausage grinder,” explains Lynne Sherrod, executive director of the Colorado Cattlemen's Ag Land Trust.

“We don't want to burn bridges with the USDA,” she says. “But, much of what's come out of GRP is being interpreted differently from what was intended by the people who wrote it.”

GRP holds huge potential to protect an imperiled, ever-diminishing resource, she says. “At the same time, it provides opportunities for landowners previously overlooked.”

Land trusts left hanging

A key goal of the legislation was to extend the reach of conservation to producers who don't normally participate in government programs. USDA misconstrued the provision authorizing USDA to transfer ownership of program easements and contracts to qualified third-party land trusts — and barred them from owning program easements and contracts.

“A number of our producers are not comfortable selling an easement that will be held by the government,” Eisenberg notes. “These producers would be more likely to enroll in the program if a non-federal entity owned the easement.”

Nevertheless, it's within USDA's authority to correctly apply these provisions through rulemaking, Eisenberg says.

“Our main interest was that land trusts like ours would be able to work with landowners and the NRCS to hold easements and to bring comprehensive land conservation into the program,” Sherrod says.

USDA can transfer the easement to a third party, she explains. The easement would already be negotiated, though, and she's not confident it would contain language agreeable to both the landowner and the land trust.

“We're hearing from USDA that for the rules to be changed, the law would have to be changed,” Sherrod adds.

Writing rules on the fly

While the under-funded GRP limps along — and USDA keeps advertising for customers — a host of interest groups are trying to maneuver the program back to its original channel.

An interim final rule for GRP was published in the Federal Register May 21, and the public had until July 20 to comment. USDA is currently developing the final rule.

“We see in many of the comments submitted that land trusts should have the ability to be involved in easement negotiations throughout the process,” says Adrienne Wojciechowski. She's the government relations associate for TNC based in Arlington, VA.

“They want to be able to ‘hold’ an easement in their name rather than only enforce and administer it,” she says.

Eisenberg and Sherrod, along with Nita Vail, California Land Trust executive director, submitted comments outlining a host of concerns with the interim final rule (see sidebar on right). Their written comments follow numerous face-to-face meetings with USDA.

“We're trying to get together with them again,” Sherrod says. “I don't think we're being ignored. I think they just have a lot going on. We're waiting to see what the final rules on the program will be — and hope USDA will consider the concerns we've submitted.”

“Native” vs. “natural”

Conservation and wildlife groups are afraid that a focus on “native” grasslands is being ignored as GRP develops under rulemaking.

“We're dealing with a very limited amount of acreage that can be enrolled, and the National Wildlife Federation [NWF] believes native grasslands should be the first place we focus this program,” says Malia Hale, NWF senior legislative representative in Washington, D.C.

“Native grasslands are both uniquely valuable and endangered,” Hale adds. “And exotic grasses and forbs do not support the full complement of native biodiversity like native grasslands.”

NWF believes that landowners who've kept their native grasslands intact have played a key role in safeguarding our nation's native plant and wildlife species. “But, they've gotten no support from previous farm bills for this valuable conservation service,” Hale reports.

TNC's position is that the rule should be revised to carry the clear distinction between “native” and “natural” with preference given to native grassland enrollments. The current definition of natural includes invasive species.

“It appears from the rule that equal weight is given to native and natural grasslands,” explains Louise Milkman, TNC's acting director of government relations. “We strongly urge NRCS to give preference to native over natural grasslands when it establishes priority for the enrollment of properties.”

Milkman contends that native habitats will nearly always better achieve the program's goal of maintaining and improving plant and animal biodiversity. Therefore, TNC wants “natural” to be replaced with “naturalized” for the purposes of excluding plants listed as invasive or noxious.

As the wrinkles in the GRP rules are ironed out, Sherrod remains confident USDA can achieve the original goals of GRP — supporting grazing operations, protecting plant and animal diversity and preserving land under the greatest threat of conversion.

“But, it needs to be done in a way ranchers can live with in the future,” she explains. “We feel very strongly about this. We think the landowner deserves to get paid for whatever he's prepared to give up for perpetuity and the benefit of society in general.”

Key areas of GRP concern

There's ample justification for major and substantial federal investment in helping conserve the grasslands owned and operated by livestock producers, says Jeff Eisenberg, director of federal lands for the National Cattlemen's Beef Association.

Eisenberg, one of the principle authors of the statute establishing the Grasslands Reserve Program (GRP), lists major areas of concern about USDA's interpretation of the law and the development of the interim-final rule that now guides the program:

  • Ownership of easements

    The statute authorizes USDA to transfer ownership of program easements and contracts to qualified third-party land trusts. But, USDA has barred ownership of program easements and contracts by third-party land trusts.

  • Project management

    This rule requires each participant to have a conservation plan to preserve the viability of the enrolled grassland. Inclusion of conservation plans was explicitly considered and rejected by Congress during the drafting of the GRP.

  • Reserve interest deed

    This rule requires landowners to use a standard deed under which all “interest” in the easement area is granted to USDA. The original intent of the legislation was not to strip landowners of their deeded interest in the land.