FLP_Implementation_Guidelines_see_Section_16.pdf

Forest Legacy Program Implementation Guidelines a

United States Department of Agriculture

Forest Legacy Program Implementation Guidelines

Forest Service FS-1088 May 2017

Forest Legacy Program Implementation Guidelines

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA’s TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.

html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) mail:

U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

http://www.ascr.usda.gov/complaint_filing_cust.html http://www.ascr.usda.gov/complaint_filing_cust.html mailto:program.intake%40usda.gov?subject=

Forest Legacy Program Implementation Guidelines 1

United States Department of Agriculture

Forest Legacy Program

Forest Service FS-1088 May 2017

Forest Legacy Program Implementation Guidelines 3

Table of Contents

Part I – Forest Legacy Program Overview 9

1. Background and History 9

2. Purpose and Authority 10

3. Other Related Laws 11

Part II – Forest Legacy Program Structure and Funding 15

4. Options for State Participation 15

5. Roles and Responsibilities 15

6. State Forest Action Plans 18

7. Forest Legacy Program and Project Funds 22

Part III – Forest Legacy Program: Project Eligibility and Selection 25

8. Project Eligibility and Development 25

9. Project Selection Process 32

Part IV – Forest Legacy Program Procedures and Grant Requirements 35

10. Grant Requirements for States 35

11. Federal Acquisition Procedures 40

12. Cost-Share and Donated Tracts 42

Part V – Land Acquisition Process and Requirements 45

13. Due Diligence for Acquisition 45

14. Conservation Easement Language 48

15. Fee Simple Purchase Deed Language 56

16. Appraisal and Appraisal Review 61

17. Multi-Resource Management Plans 63

Part VI – Post-Acquisition Requirements 67

18. Forest Legacy Information System 67

19. Recordkeeping Policy 69

20. Stewardship of Forest Legacy Program Tracts 73

21. Other Post-Acquisition Considerations 76

22. Amendments to Conservation Easements 77

23. Extinguishment of a Conservation Easement; Disposal of Fee

Land; Reimbursement 81

Forest Legacy Program Implementation Guidelines4

Part VII – Program Oversight 87

24. Forest Legacy Program Reviews 87

25. Quality Assurance Inspections 87

Part VIII –Forest Legacy Program Glossary of Terms and Acronyms 91

26. Glossary of Terms 91

27. Forest Legacy Program Acronyms 99

Part IX – Appendixes 103 Appendix A – Authorizing Legislation for the Forest Legacy Program 103 Appendix B – National Environmental Policy Act (NEPA) Categorical

Exclusion Letter 107 Appendix C – USDA Forest Service Map 109 Appendix D – Landowner Application 110 Appendix E – Examples of Forest and Nonforest Uses 116 Appendix F – Compatibility Analysis Tool 119 Appendix G – Forest Legacy Program Project Selection Cycle 122 Appendix H – Grant and Cost-Share Requirements 123 Appendix I – Forest Legacy Program Award Provisions 125 Appendix J – Examples of Cost-Share Calculations 131 Appendix K – Baseline Documentation Report Sample 133 Appendix L – Amicable Agreement Acknowledgment Letter 136 Appendix M – Conservation Easement Language Examples 137 Appendix N – Guide to Evaluating Appraisal Risk Factors 145 Appendix O – Sample Content of a Multi-Resource Management Plan 147 Appendix P – T ract Boundary Submission Standards for Forest Legacy

Information System 149 Appendix Q – Forest Legacy Program Recordkeeping 150 Appendix R – Supplemental Amendment Information 156 Appendix S – State Forest Legacy Program Reviews 158 Appendix T – �Forest Service Regions/Northeastern Area/International

Forest Legacy Program Implementation Guidelines 5

General Information for Landowners

The Forest Legacy Program (FLP) uses both fee-simple land purchases and permanent conservation easements to protect important forest areas from development and fragmentation in order to ensure conservation of the important public benefits that forests provide. The FLP is implemented as a grant program with State agencies, and those agencies hold the interest in the land acquired with FLP funds. The FLP operates on a willing buyer-willing seller basis, and the FLP may not use condemnation if negotiation does not result in a mutually acceptable agreement.

With fee transactions, the landowner conveys all his or her interest in the land by selling the land. In the case of a conservation easement, the landowner chooses to perpetually restrict certain uses of his or her land. Conservation easements restrict development, limit uses that impact the conservation values, and require adherence to a Multi-Resource Management Plan to protect values such as soil and water, biological diversity, recreation, timber, and more.

Projects are selected for funding through a competitive process—first at the State level and then at the national level. The process of applying, being selected, receiving funding, and conducting due diligence (appraisal and appraisal review, title review, survey, etc.) on a project can take several years. It requires a high degree of commitment from landowners and partners.

If a landowner is interested in participating in the FLP by selling his or her land or conveying a conservation easement, the first step is to get in touch with the State contact for the FLP in the State where the property is located to discuss general and State-specific program requirements. (General discussion of eligibility can be found in Section 8.) A list of State contacts can be found at https://www.fs.fed.us/spf/coop/library/flp_all_contacts.pdf).

Forest Legacy Program Implementation Guidelines 7

The Forest Legacy Program (FLP) was established in 1990 through an amendment to the Cooperative Forestry Assistance Act (CFAA) of 1978 (16 USC 2101 et seq.). The purpose of the FLP is to identify and protect environmentally important private forestlands that are threatened by conversion to nonforest uses and provide the opportunity for continuation of traditional forest uses, such as forest management activities and outdoor recreation.

Landowner participation in the FLP, including the sale of lands and interests in lands, is entirely voluntary. The U.S. Department of Agriculture, Forest Service, implements the FLP through State participation, consistent with these National FLP Implementation Guidelines, and as described in each State Forest Action Plan. The Forest Service and States also cooperate with tribal and local governments, other Federal agencies, forest landowners, land trust organizations, and other partners to implement the FLP.

The primary intended audience for these Guidelines are Forest Service and State program coordinators. These Guidelines provide direction to the Forest Service and State partners for implementation of the FLP.

Landowners may refer to Part 1, Sections 1 and 2, for general program information and Part III, Section 8 for discussion of project eligibility. Program implementation varies by State, so please go to https://www.fs.fed.us/spf/coop/programs/loa/flp.shtml website to find appropriate FLP contacts and information.

These Guidelines were first issued in 1992, and then updated in 1996, 2003, and 2011 in consultation with the States. This version replaces all previous versions and applies to future FLP activities. Open FLP grants that were awarded prior to the issuance of these revised Guidelines must follow the version in effect at the time of the grant award, or alternatively, existing grants could be modified to be guided by these new Guidelines. This document is organized into nine parts:

Part I – Forest Legacy Program Overview Part II – Forest Legacy Program Structure and Funding Part III – Forest Legacy Project Eligibility and Selection Part IV – Forest Legacy Program Procedures and Grants Management Part V – Land-Acquisition Process and Requirements Part VI – Post-Acquisition Requirements Part VII – Program Oversight Part VIII – Forest Legacy Program Glossary of Terms and Acronyms Part IX – Appendixes

I. Introduction to the Forest Legacy Program

Pa rt

I

Forest Legacy Program Implementation Guidelines 9

1. Background and History In the late 1980s, industrial timber land sales in northern New England caused New Englanders to realize that “paper company” lands, which had traditionally been open for public access and had provided timber products to numerous mills in the region, were in danger of conversion to other uses. This threat led Congress to direct the U.S. Department of Agriculture, Forest Service, to study the timberland resources of New York, Vermont, New Hampshire, and Maine, an area referred to as the Northern Forest Lands. The Governors of these four States commissioned a task force to work with the Forest Service in the development of the study. The task force’s purpose was to assess the resources, ownership patterns, and the impacts of conversion of timberlands in this area, and then identify strategies to protect their long-term integrity and traditional uses. One of the strategies identified in the Northern Forest Lands was to acquire lands and conservation easements to permanently protect key parcels from conversion to nonforest uses.

The Forest Legacy Program (FLP) was established in 1990 through an amendment to the Cooperative Forestry Assistance Act (CFAA) of 1978 (16 USC 2101 et seq.) to promote the long-term integrity of forestlands. This amendment recognized that:

• The majority of the Nation’s forest lands are in private ownership;

• Private landowners face increased pressure to convert their forest lands to other uses;

• � Private lands provide a wide variety of products and services from working forests, including timber and other forest commodities, fish and wildlife habitat, watershed function, water supply and quality, aesthetic qualities, historical and cultural resources, and recreational opportunities; and

• � Good stewardship of privately held forest lands requires a long-term commitment that can be fostered through a partnership of Federal, State, local government, and individual efforts.

When the FLP was originally authorized in the 1990 Farm Bill, initial FLPs were established in the States of Maine, New York, New Hampshire, and Vermont in furtherance of the recommendations in the Northern Forest Lands Study, and in the State of Washington. The law also directed the Secretary of Agriculture to establish additional FLPs throughout the country upon the completion of assessments of need for such programs.

The Secretary of Agriculture was directed to establish the FLP in cooperation with State, regional, and other units of government. The Secretary then delegated this authority to the Forest Service to carry out this mandate. The Forest Service is authorized to acquire lands and interests in lands in perpetuity for inclusion in the FLP. The FLP acquires and accepts donations of perpetual conservation easements that permanently limit property interests and uses of forest land to protect specific conservation values. In these cases, the properties remain in private ownership. The FLP also purchases and accepts as donations forested

Part I – Forest Legacy Program Overview

Forest Legacy Program Implementation Guidelines10 properties in full fee. These properties are acquired by State or local governments and can become new State parks, State forests, wildlife management areas, and other public land.

Landowner participation in the FLP is entirely voluntary.

Originally, all lands or interests in lands acquired through the FLP were held by the Federal Government. In 1996, Congress amended the law to permit the Forest Service to make FLP acquisition grants to States. This “State grant option” allows lands or interests in lands to be held by the State or local units of government.

The FLP is funded through the Land and Water Conservation Fund (LWCF). These funds are generated through royalties from off-shore drilling activities. Congress determines the FLP budget as part of the annual Forest Service appropriation.

Since 1990, the FLP has expanded across the country to include 49 States and 4 Territories.

In the first 25 years of the program (1990–2015), 2.5 million acres were protected.

2. Purpose and Authority Purpose of the Forest Legacy Program The purpose of the FLP is to identify and protect environmentally important forest areas that are threatened by conversion to nonforest uses and to promote forestland protection and other conservation opportunities. Desired outcomes include the protection of important scenic, cultural, fish, wildlife, and recreational resources, riparian areas, and other ecological values. Traditional forest uses, including timber management, as well as hunting, fishing, hiking, and similar recreational uses are consistent with purposes of the FLP. The FLP acquires and accepts donations of perpetual conservation easements that permanently limit property interests and uses to protect forest values. The FLP also purchases and accepts as donations forestland in full fee. The FLP only works with willing sellers or donors.

Authority The CFAA of 1978, as amended, (16 USC 2101 et seq.) provides authority for the Secretary of Agriculture (Secretary) to provide financial, technical, educational, and related assistance to States, communities, and private forest landowners. Section 1217 of Title XII of the Food, Agriculture, Conservation and Trade Act of 1990 (P.L. 101-624:104 stat.3359; 16 U.S.C.

2103c), also referred to as the 1990 Farm Bill, amended the CFAA and directs the Secretary to establish the FLP to protect environmentally important forest areas that are threatened by conversion to nonforest uses. This authority continues indefinitely. Through the 1996 Farm Bill (Federal Agricultural Improvement and Reform Act of 1996; Public Law 104-127;

Title III - Conservation; Subtitle G - Forestry; Section 374, Optional State Grants for Forest Legacy Program), the Secretary is authorized, at the request of a participating State, to make a grant to the State to carry out the FLP in that State, including the acquisition by the State of lands and interests in lands. (See Appendix A – Authorizing Legislation for the Forest Legacy Program for a copy of the authorizing language for the FLP from the CFAA.)

Delegations of Authority The Secretary has delegated authority to administer all aspects of the FLP to the Under Secretary for Natural Resources and Environment (7 CFR 2.20(a)(2)(xvi)), who in turn has delegated the authority to the Chief of the Forest Service (7 CFR 2.60(a)(16)). These delegations only apply within the U.S. Department of Agriculture and its agencies.

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3. Other Related Laws The following laws and regulatory requirements guide and inform Federal actions and land acquisition activities. The applicability of these laws to FLP implementation is described below.

Uniform Act The Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970 (“Uniform Act’’; 42 USC 4601, et seq.) provides guidance and procedures for the acquisition of real property by the Federal Government, including relocation benefits to displaced persons. Department of Transportation regulations implementing the Uniform Act (49 CFR

24) have been adopted by the Department of Agriculture (7 CFR 21). However, the FLP is exempt from the Uniform Act regulatory impacts because the program meets the following criteria stated at 49 CFR 24.101(b)(1):

(i) No specific site or property needs to be acquired, although the Agency may limit its search for alternative sites to a general geographic area. Where an Agency wishes to purchase more than one site within a general geographic area on this basis, all owners are to be treated similarly. (See Appendix A of the Uniform Act, §24.101(b)(1)(i).)

(ii) The property to be acquired is not part of an intended, planned, or designated project area where all or substantially all of the property within the area is to be acquired within specific time limits.

(iii) The Agency will not acquire the property if negotiations fail to result in an amicable agreement, and the owner is so informed in writing.

(iv) The Agency will inform the owner in writing of what it believes to be the market value of the property. (See Appendix A of the Uniform Act, §24.101(b)(1)(iv) and (2)(ii).)

National Environmental Policy Act FLP project grants are subject to National Environmental Policy Act (NEPA) (NEPA; Public Law 91-190; 42 USC §4321) and will comply with Forest Service NEPA implementing procedures as described in 36 CFR 220, as well as the Council on Environmental Quality’s NEPA procedures at 40 CFR 1500-1508. Since FLP grants are to be used for transferring title and ownership of private lands to third parties and will not fund any ground-disturbing activities, FLP grants fall under the categorical exclusion provided in the Forest Service’s NEPA procedures for “acquisition of land or interest in land’’ 36 CFR 220.6(d) (6). As a result, FLP project grants are excluded from documentation requirements of an environmental assessment or impact statement. (See Appendix B – National Environmental Policy Act Categorical Exclusion Letter for a copy of the categorical exclusion letter.)

Civil Rights Act Agencies that grant funds will ensure that their recipients and sub-recipients comply with Title VI of the Civil Rights Act of 1964 (prohibiting race, color, and national origin discrimination), Section 504 of the Rehabilitation Act of 1973 (prohibiting disability discrimination), Title IX of the Education Amendments of 1972 (prohibiting sex discrimination in education and training programs), the Age Discrimination Act of 1975 (prohibiting age discrimination in the provision of services), and a variety of program-specific statutes with nondiscrimination requirements. In the case of FLP grants, the Forest Service will:

• � Make sure our partners/recipients/sub-recipients read and comply with the body of Civil Rights laws, maintaining signed assurances for all who receive Federal money.

Forest Legacy Program Implementation Guidelines12

• � Ensure the proper display of the “And Justice for All” U.S. Department of Agriculture poster (AD-475C) in the grant recipient’s public reception areas or other areas visible to the public, providing copies when requested.

• � Ensure inclusion of the most current U.S. Department of Agriculture statement about nondiscrimination and how to file a complaint in your publications and outreach materials.

• � Ensure a credit of affiliation with the Forest Service and recognition of the grant.

• � Ensure efforts are made to provide FLP materials in alternative formats and language (for persons with disabilities or limited English proficiency).

• � Comply with other administrative and accessibility requirements listed in Grants and Agreements pamphlet FS-850.

Endangered Species Act The Endangered Species Act (ESA) of 1973 (ESA; 16 USC §1531 et seq.) is designed to protect critically impaired species from extinction. This law requires Federal agencies, in consultation with the U.S. Fish and Wildlife Service (USFWS) and/or the National Oceanic and Atmospheric Administration (NOAA) Fisheries Service, to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species. Actions that may result in adverse modification require biological assessment and consultation with USFWS and/or NOAA. Federally funded FLP acquisitions do not negatively affect impaired species but rather can provide permanent protection of critical habitat by restricting activities that convert forests to other uses.

Since the FLP only funds acquisition of land and interests in land, and does not fund management activities, ESA consultation procedures do not apply to FLP grants.

Americans with Disabilities Act and Other Related Laws The Americans with Disabilities Act (ADA) of 1990 (ADA; Public Law 101-336, 104 Stat. 328) prohibits discrimination on the basis of disability in the private and State and local government sectors. The Architectural Barriers Act (ABA) of 1968 and the Rehabilitation Act of 1973 require programs and activities using Federal funds to provide an equal opportunity for individuals with disabilities to participate as independently as possible. The United States Access Board develops and maintains accessibility guidelines for the construction and alteration of public facilities covered by these laws. For outdoor developed areas, such as campgrounds, picnic areas, viewing areas, and public trails, the Board has issued requirements that apply only to sites developed by the Federal Government. These requirements do not currently apply to Federal grants or loans, but this is subject to future rulemaking.

The FLP does not fund construction or alteration of any buildings, facilities, or outdoor developed areas, and thus the receipt of FLP grant funds does not trigger these Federal laws per se. However, if a completed project includes the construction or alteration of any facilities for public use, even though these activities are not funded by the FLP, the property owners (State and local government or private) should ensure they comply with all relevant ADA standards and guidelines.

Forest Legacy Program Implementation Guidelines 13

See the following useful resources to help design accessible facilities and outdoor developed areas:

• � U.S. Access Board Guidelines and Standards: www.access-board.gov/ guidelines-and-standards

• � USDA Forest Service Accessibility Guidebook for Outdoor Recreation and Trails, August 2012 (FS publication 1223-2806P-MTDC)

Section 106 National Historic Preservation Act Section 106 of the National Historic Preservation Act (NHPA) of 1966 (NHPA; Public Law 89-665; 16 USC 470 et seq.) requires Federal agencies to consider the effects of their undertakings on historic properties. Regulations (36 CFR Part 800) issued by the Advisory Council on Historic Preservation outline the historic preservation review process mandated by Section 106. Federally funded FLP acquisitions do not negatively affect historic resources but rather provide permanent protection by restricting activities that convert forests to other uses. Since the FLP only funds acquisition of land and interests in land, and does not fund management activities, Section 106 procedures do not apply to FLP grants.

However, if a State plans to conduct other activities, such as construction of trails or harvest of timber, on an FLP tract and there is a potential impact on historic resources, then the State should consult with its State historic preservation officer on appropriate procedures and public involvement. This does not apply to conservation easements on private lands unless the landowner receives Federal funds for the activity in question. In those cases, the landowner should coordinate with the applicable Federal agency to determine if Section 106 requirements apply.

Federal and State Tax Laws The FLP projects for which the landowner expects to receive tax benefits are subject to complex Federal and/or State tax law requirements that must be met in addition to the requirements of the FLP. These Guidelines do not provide advice regarding Federal or State tax law requirements. Landowners interested in qualifying for tax benefits should consult appropriate legal counsel.

II

Forest Legacy Program Implementation Guidelines 15

4. Options for State Participation State Grant Option The Forest Legacy Program (FLP) authorization was updated in the 1996 Farm Bill to include a “State grant option” which allows the U.S. Department of Agriculture, Forest Service, to provide grants to States for acquisition and allows States to hold the title to lands or interests in lands acquired with those funds. Each State, Territory, and Commonwealth (hereafter referred to as States) electing to participate in the FLP must assign a lead State agency to oversee FLP administration through a Governor-level designation or pursuant to State law. The State Lead Agency is usually a forestry agency, but may be another natural resource or land management agency. Each State wishing to enroll in the FLP must also complete a State Forest Action Plan that includes the required FLP elements. (See Section 6 – State Forest Action Plans for information on plan requirements; see Section 7 – Forest Legacy Program and Project Funds for information on the different types of grant funds; and Section 10 – Grant Requirements for States for guidance on grant requirements.)

Federal Acquisition Option When the FLP was first authorized in the 1990 Farm Bill, only the Federal Government, acting through the Forest Service, could hold the title to lands or interests in lands acquired through the FLP. The State maintained the responsibility to manage lands and monitor conservation easements that were acquired through the FLP. After the State grant option was established in 1996, most acquisitions have been through the State grants, although occasionally a State has asked the Forest Service to hold the title to lands or interests in lands acquired through the FLP. All FLP Federal acquisitions must be requested by and coordinated with the State Lead Agency. (See Section 11 – Federal Acquisition Procedures for Federal acquisition procedures.)

5. Roles and Responsibilities Forest Legacy Program Participation Private Landowners Both nonindustrial and industrial private landowners can participate in the FLP. Projects are selected based on the tract qualities and benefits, in accordance with the national project selection criteria (see Section 9 – Project Selection Process). Selection is “blind” to landowner financial status, gender, ethnicity, race, sexual orientation, corporate status, and other landowner information. Participation in the FLP is voluntary, and a landowner can choose to withdraw a project from funding consideration at any time before the final closing and legal transfer of ownership/interests.

Landowners with completed FLP conservation easements on their property(s) have the long-term responsibility for managing their land in a manner consistent with the purposes of the FLP and the terms specified in the conservation easement and Multi-Resource Management

Part II – Forest Legacy Program Structure and Funding

Forest Legacy Program Implementation Guidelines16

Plan. Landowners who purchase or inherit properties with FLP conservation easements also assume these long-term roles.

State and Local Governments The State Lead Agency (as designated by the Governor) is responsible for overseeing FLP administration and can hold land or interests in land acquired through the FLP. Other State agencies and local units of government may participate in the FLP through agreements made with the State Lead Agency to help facilitate transactions, hold title to land, or hold the conservation easement. Governmental entities that hold title to land or conservation easements purchased through FLP have the long-term responsibility for managing their land in a manner consistent with the purposes of FLP and in accordance with the terms specified in the conservation easement and Multi-Resource Management Plan.

Tribal Governments Federal- or State-recognized tribes can participate in the FLP in partnership with the State Lead Agency under either the State grant or Federal acquisition option. Only nontrust tribal allotment lands can qualify for protection using FLP funds. The FLP funds cannot be granted directly to a Tribal government but may be granted to the State Lead Agency in support of a project as proposed by a Tribal entity. In accordance with limitations in the FLP statute, FLP acquisition funds can only be granted to a State Lead Agency and the purchased land, or interests in land, must be held by a unit of State government.

Land Trusts and Other Nonprofit Organizations Nonprofit entities, such as land trusts, are not eligible to hold land or interests in land that are purchased with FLP funds. However, qualified nonprofit organizations can hold land and interests in land for fully donated tracts enrolled in the FLP. Nonprofits can also work on behalf of State Lead Agencies to help facilitate project development, due diligence, and monitoring. Nonprofit roles vary in each State and may include:

• Identifying projects,

• Developing project applications,

• Serving on the State Forest Stewardship Coordinating Committee (SFSCC),

• Facilitating negotiations on behalf of the landowner or the State,

• Helping to secure sufficient cost share,

• Facilitating project completion,

• � Acting as an intermediary to purchase and hold lands or interests in lands at the request of the State,

• Holding and managing cost-share properties,

• Monitoring conservation easements through agreements with the State, and

• Owning fee title or holding conservation easements for donated tracts.

Forest Legacy Program Administration The FLP is administered through two Forest Service levels and through State Lead Agencies:

Washington Office refers to the Forest Service State and Private Forestry staff located within the Washington, DC, office. National roles include:

• Overseeing national FLP budget, including national redirection and reprogramming,

• � Coordinating with Office of Management and Budget and Congress during Federal budget and appropriations development, Forest Legacy Program Implementation Guidelines 17

• Overseeing policy development,

• Providing leadership and oversight on national FLP issues,

• � Coordinating with the National Association of State Foresters (NASF) and other national partners,

• Managing national competitive selection of projects, and

• Conducting regional FLP program reviews.

Forest Service regions/Northeastern Area/International Institute of Tropical Forestry (R/A/I) refers to the units of the Forest Service responsible for FLP management and oversight within the Forest Service regions, Northeastern Area, or International Institute of Tropical Forestry (IITF). (See Appendix C – USDA Forest Service Map for a map of each R/A/I). Roles include:

• � Identifying a program manager to serve as the primary point of contact for the State Lead Agency;

• � Overseeing R/A/I FLP program budget, including administrative and acquisition grant allocations and regional redirection,

• � Providing oversight and assistance for FLP and project implementation, appraisal services, project eligibility and documentation, and State Forest Action Plan updates,

• Participating in the review and selection of projects,

• Awarding and monitoring grants to States,

• Coordinating national, regional, and State-level FLP priorities and issues,

• Coordinating with regional and State partners, and

• � Conducting State FLP program reviews and coordinate Quality Assurance Inspections

(QAI).

North, South, and West regions refer to the broad geographic regions where R/A/Is and State Lead Agencies (see Appendix C – USDA Forest Service Map) work together to conduct regional FLP program meetings, training sessions, and pre-reviews of project proposals. These geographic regions mirror the regional divisions of the NASF.

State Lead Agency can only receive FLP funds after completion and approval of a State Forest Action Plan that meets all FLP requirements (see Section 6 – State Forest Action Plans). State roles include:

• Consulting with the SFSCC to achieve FLP purposes,

• Preparing and updating the FLP components of the State Forest Action Plan,

• Requesting, receiving, and managing FLP grants for FLP administration and acquisitions,

• � Soliciting project proposals and obtaining the review and ranking of proposals by the

SFSCC,

• Submitting projects for Forest Service consideration through the national process,

• Maintaining long-term project records,

• Coordinating completion of due diligence work for project development and completion,

• � Conducting or coordinating long-term monitoring and enforcement of FLP conservation easements and report findings to the Forest Service,

• � Assuring long-term management of FLP properties in accordance with Multi-Resource Management Plans, and

Forest Legacy Program Implementation Guidelines18

• � Overseeing other agencies or units of government that hold land or interest in land acquired through the FLP to ensure that the land is managed in accordance with the purposes for which it entered the FLP.

State Forest Stewardship Coordinating Committees are established in each State in accordance with Section 19 of the Cooperative Forestry Assistance Act (CFAA) of 1978.

Each committee should include, to the extent practicable, individuals representing the following: local governments, consulting foresters, environmental organizations, forest products industry, forest landowners, land-trust organizations, conservation organizations, State fish and wildlife agency, and the USDA Natural Resource Conservation Service’s State Technical Committee. States are encouraged to broaden this composition to include other relevant interests. SFSCC roles in implementation of the FLP include:

• Advising the State Lead Agency to help achieve FLP objectives;

• � Providing input and advice for development and updates to the State Forest Action Plan, including establishing State FLP goals, FLP priority areas (Forest Legacy Areas), eligibility requirements and selection criteria;

• Reviewing and recommending project proposals at the State level; and

• � Reviewing significant changes to projects that occur before the project closes, and providing recommendations on whether the project should still proceed.

6. State Forest Action Plans Since the creation of the FLP in the 1990 Farm Bill, States interested in participating in the FLP have been required to demonstrate eligibility through development of an Assessment of Need (AON) that is approved by the U.S. Secretary of Agriculture through the Forest Service. The 2008 Farm Bill amended the CFAA to require each State to complete a Statewide Forest Resource Assessment and Long-Term Forest Resource Strategy (commonly known as a State Forest Action Plan) in order to receive funds under the CFAA. This includes both FLP project and administrative funds. The 2008 Farm Bill also states that, once approved, the State Forest Action Plans “shall be deemed to be sufficient to satisfy all relevant State planning and assessment requirements” under the Act. As a result, the previous FLP planning requirements that were manifested in the AON must now be incorporated into the State Forest Action Plan.

Forest Legacy Assessment and Identification of Forest Legacy Areas In order to participate in the FLP, a State documents its need for inclusion in the FLP through an evaluation of current forests, forest uses, and the trends and forces causing conversion to nonforest uses as part of its State Forest Action Plan, as required by the 2008 Farm Bill.

These elements must be incorporated into the State Forest Action Plan in one of two ways:

1. All required elements are integrated into the State Forest Action Plan. This is the preferred process, particularly if the lead agency is the State forestry agency.

2. A separate, standalone Forest Legacy Assessment document is developed and included as an appendix of the State Forest Action Plan.

If the State Lead Agency is not the State forestry agency, the State Lead Agency must coordinate with the State forestry agency to ensure all required FLP elements are included in the State Forest Action Plan.

For the purposes of the FLP, the State Forest Action Plan must define eligibility criteria that the State will use to identify and delineate important forest areas as Forest Legacy Areas, identify goals for each FLA, and outline the State’s project evaluation and prioritization procedures.

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State Lead Agencies may utilize the services of land trusts or other entities to develop the required FLP information for inclusion in the State Forest Action Plan. Information from existing sources may be used, rather than initiating new studies that would duplicate existing data. Examples of appropriate sources include Wildlife Action Plans, State Comprehensive Outdoor Recreation Plans, growth management studies, State cultural site inventories, inventories of threatened and endangered species, and other State, regional, or local plans, studies, or reports. The State Forest Action Plan shall include relevant information about both public and private lands, address the issue of how best to maintain the integrity of forestlands for future generations, and address pertinent issues as identified by the State.

At a minimum, the State Forest Action Plan must address the following as they relate to the purpose of the FLP:

a. Forest resources and benefits including:

• Aesthetic and scenic values,

• Fish and wildlife habitat,

• Public recreation opportunities,

• Soil productivity,

• Forest products and timber management opportunities, and

• Watershed values including water-quality protection.

b. � The present and future threat—as defined by the State—of conversion of forest areas to nonforest uses;

c. � Historic or traditional uses of forest areas, and trends and projected future uses of forest resources;

d. � Current ownership patterns and size of tracts, and trends and projected future ownership patterns;

e. Cultural resources that can be effectively protected;

f. Outstanding geological features;

g. Threatened and endangered species;

h. Other ecological values;

i. Mineral resource potential;

j. � Protected land in the State, to the extent practical, including Federal, State, municipal lands, and private conservation organization lands; and

k. Issues identified by the SFSCC and through the public-involvement process.

Using the above information the State Forest Action Plan shall include the following:

a. Identification of applicable eligibility criteria;

b. Identification of specific FLA(s) for designation;

c. Specific goals and objectives to be accomplished by the FLP; and

d. � Process to be used by the State Lead Agency to evaluate and prioritize projects to be considered for inclusion in the FLP.

Eligibility Criteria Identification The CFAA directs the Secretary to establish eligibility criteria for the designation of FLAs, in consultation with the SFSCC. These criteria should be based upon the FLP purpose to

Forest Legacy Program Implementation Guidelines20 protect environmentally important forest areas that are threatened by conversion to nonforest uses, and these criteria should be further developed through the State Forest Action Plan.

States are responsible for determining what defines “threatened” and “environmentally important forest areas” in the State. However, environmentally important forest areas shall contain one or more of the following important public values, as defined by the States:

a. Timber and other forest commodities;

b. Scenic resources;

c. Public recreation opportunities;

d. Riparian areas;

e. Fish and wildlife habitat;

f. Known threatened and endangered species;

g. Known cultural resources; and

h. Other ecological values.

Identification of Forest Legacy Areas Based on the State Forest Action Plan, the State Lead Agency, in consultation with the SFSCC, identifies specific geographic FLAs that meet the eligibility criteria, and recommends them to the Forest Service for designation as an FLA.

The identification of proposed FLAs must include:

a. � Location of each geographic area on a map and a written description of the proposed FLA boundary;

b. � Summary of the analysis used to identify the FLA and its consistency with the eligibility criteria;

c. � Identification of important environmental values and how they will be protected and conserved;

d. The conservation goals or objectives in each FLA;

e. List of public benefits that will be derived from establishing each FLA;

f. � Identification of the governmental entity or entities that may hold lands or interests in lands (State grant option) or may be assigned management responsibilities for the lands and interests in lands enrolled in the FLP (Federal option); and

g. Documentation of the public involvement process and analysis of the issues raised.

FLA boundaries must encompass forestlands with significant environmental and other resource-based values. Areas may also include nonforested areas, such as farms and towns if they are an integral part of the landscape and are within logical boundaries.

State Project Evaluation and Prioritization Process The project evaluation and prioritization process outlined in the State Forest Action Plan should reflect the direction set forth in the CFAA to give priority to lands that can be effectively protected and managed, and that have important scenic or recreational values, riparian areas, fish and wildlife values including threatened and endangered species, or other ecological values.

Traditional forest uses, such as forest management activities, including timber management, and outdoor recreation opportunities are considered consistent with purposes of the FLP and are encouraged on FLP tracts when consistent with the State’s Forest Action Plan and the

Forest Legacy Program Implementation Guidelines 21 conservation purposes for FLP tract acquisition. The prioritization process should implement a strategy that enhances existing protected forestlands or local and State conservation strategies, as outlined in the State Forest Action Plan.

Role of the SFSCC and Public Participation The SFSCC should cooperate with the State Lead Agency in the identification of FLA eligibility criteria, the identification of proposed FLAs from which lands may be entered into the FLP, and recommendation of priority lands to be considered for enrollment in the FLP.

(For more information about the composition and roles of the SFSCC, see Section 5 – Roles and Responsibilities).

Public participation and involvement in the development of the State Forest Action Plan and identification of FLAs is a State responsibility. In the absence of established State procedures, the National Environmental Policy Act (NEPA) may serve as an appropriate model for public involvement. The State Lead Agency must solicit involvement and comments from the public, including State and local governments. The goals of public involvement include hearing concerns and views from interested and affected individuals and organizations, receiving new information, and identifying and clarifying issues.

Forest Action Plan Approval – Forest Legacy Program Requirements The State Lead Agency must submit the State Forest Action Plan, including proposed FLAs and eligibility criteria, to the R/A/I for review and recommendation of approval. The R/A/I reviews the State Forest Action Plan for compliance with FLP requirements and works with the State Lead Agency to revise the plan if necessary. Once finalized, the plan is submitted to the Forest Service Washington Office (WO) for the Secretary’s approval. The Secretary or designee approves or remands the State Forest Action Plan for additional work. Final approval establishes the FLP for the State.

Information related to the FLP within the State Forest Action Plan shall be periodically reviewed (at least at 5-year intervals) by the State Lead Agency and the SFSCC to assess whether amendments or updates are necessary. Review procedures must be determined by the State Lead Agency and the results of reviews must be provided in writing to the R/A/I.

Forest Action Plan Amendments The State Forest Action Plan may be updated to make significant amendments or minor changes related to FLP implementation.

Significant FLP-related amendments include the following:

a. The identification of a new FLA and the associated conservation goals and objectives;

b. � Major FLA boundary adjustments (more that 10 percent of the current FLA size or more than 10,000 acres);

c. Revision of the FLA eligibility criteria;

d. Significant changes in policies or conditions affecting forestlands or existing FLAs.

Significant amendments require consultation with the SFSCC and with appropriate public involvement. FLAs and project evaluation criteria shall be of a scale and detail to effectively focus delivery of the FLP.

Significant amendments to the FLP components of a State Forest Action Plan will be reviewed and recommended for approval by the R/A/I. The Chief of the Forest Service, or designee, provides final approval of a significant amendment to a State Forest Action Plan.

Note – State Lead Agencies should seek guidance from Forest Service R/A/I staff regarding the most current submission and approval process for State Forest Action Plan amendments and revisions.

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Minor FLP-related changes include the following:

a. � FLA boundary adjustment less than 10 percent of the current FLA size and less than 10,000 acres.

b. Changes to the State project prioritization process.

These minor changes must be coordinated with the SFSCC and need review and approval by an R/A/I line officer (Regional Forester, Northeastern Area Director, International Institute of Tropical Forestry Director).

7. Forest Legacy Program and Project Funds Allocation of Funds Following passage of annual appropriations by Congress, the Forest Service WO allocates funds to the R/A/I for distribution. The R/A/I subsequently grants funds as applicable to State Lead Agencies. Funds are allocated in three categories: project funds, administration funds, and assessment funds.

Project Funds Allocation of project funds is based on the results of the national project selection process and the final appropriations bill. Under the State grant option, R/A/Is award grants to States for the specific, identified projects that were reviewed and recommended for FLP funding by the National Panel. (See Section 9 – Project Selection Process for more details on this process.) Project funds may be expended by the State Lead Agency or the Forest Service, as applicable, to implement the specified project. (See Section 10 – Grant Requirements for States for eligible uses of project funds.)

Administration Funds The WO distributes administration funds to R/A/Is. Each R/A/I requests these funds in consultation with the States to meet their FLP needs. Administration funds are granted to States under the State grant option separately from project funds. Administration funds are also used by the WO and R/A/Is to fund FLP management functions and activities that further the purposes of the FLP. As a goal, the WO strives to keep administration funds nationwide under 15 percent of the total funds appropriated. (See Section 10 – Grant Requirements for States for eligible uses of administration funds.)

Assessment Funds Assessment funds may be made available to States to help defray the cost of preparing or amending the FLP portions of the State Forest Action Plan. Assessment funds may be provided either through an FLP administration grant or through a separate grant award.

Reprogramming Congress defines reprogramming as the reallocation of funds from one budget activity to another. For FLP, reprogramming constitutes the reallocation of funds from one project to another and is subject to the specific language in the applicable appropriations year. A reprogramming request should be made only when an unforeseen situation arises, and then only if postponement of the project until the next appropriation year would result in actual loss or damage.

If a project fails or if there are cost savings from a project, then the R/A/Is will deobligate the grant funds accordingly. These funds will be returned to the WO, who may choose to seek reprogramming authority from Congress to shift funds to another FLP project.

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II

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8. Project Eligibility and Development A proposed project’s eligibility to be included in the Forest Legacy Program (FLP) is determined by both the Federal requirements included in this section plus any requirements identified by a State Forest Action Plan or other pertinent State law. For the purposes of these implementation guidelines, a proposed FLP tract meets the minimum eligibility if:

• It is within, or partially within, a designated FLA;

• � It has a minimum of 75 percent forestland or a…