Federal funding of land management activities on private property is coming into question over the concept of federal nexus. This ominous buzzword buried in the Endangered Species Act (ESA) has pinched a new wrinkle in the application of programs like USDA's Environmental Quality Incentives Program (EQIP). See story on page 50.
“While at this point, federal nexus is not worth losing sleep over, it bears very, very close watching,” says Myra Hyde, Washington, D.C. She is the endangered species subcommittee staff director for the National Cattlemen's Beef Association.
“When a nexus — or relationship created between the landowner and federal government — exists, we're seeing where the landowner may be required to enter into formal consultation with the U.S. Fish and Wildlife Service (FWS) before undertaking a cost-share activity,” says Hyde.
According to the ESA, federal agencies like USDA's Natural Resources Conservation Service (NRCS) are required to enter into ESA Section 7 “habitat effect” consultations with the FWS before undertaking actions with a federal nexus.
“Ag producers may acquire quasi-government status when they enter into agreements that require a federal authorization, permit, license or funding,” explains Hyde.
Under the ESA, “critical habitat” refers to specific geographic areas essential for the conservation of a threatened or endangered species. These areas may require special management considerations or protection. A critical habitat designation does not affect land ownership and only applies to situations where federal funding, authorization or land is involved.
Section 7 consultations have been a common occurrence around the country for many years. But, the nexus issue has blossomed recently with increased critical habitat designation and expanded federal farm programs.
How Deep Does It Go?
As the nexus issue swirls around the country, it's become especially volatile in southeastern Wyoming and adjacent areas of Colorado and Nebraska. There, a lawsuit filed by several private conservation groups and individuals resulted in a court-mediated settlement designating critical habitat for the Preble's meadow jumping mouse and the Topeka shiner.
The FWS maintains that critical habitat designation for the Preble's mouse would have little effect on the agricultural community as most activities associated with ag production would not have a federal nexus. It also explains that critical habitat designation does not affect situations in which a federal agency is not involved. For example, a landowner undertaking a project on private land that involves no federal funding or permits would not be affected.
But, what about projects on private land that do involve federal funding?
“That's exactly the question we've been asking — how deep does the nexus issue go,” says Matt Hoobler, Cheyenne, agricultural farm program coordinator for the Wyoming Agriculture Department.
“We're not trying to undermine what are very useful programs like EQIP,” he explains. “We just want to get some questions answered on behalf of private property owners as to what constitutes a nexus and who should ultimately make that determination.”
If there's anyone who needs to answer these questions, it's the FWS, says Hoobler. “The other federal ag agencies are asking the same questions of the FWS.”
The FWS says it's “automatic” that nexus exists when critical habitat is coupled with a voluntary NRCS program, Army Corps of Engineers water program, emergency feed assistance payments, various range and pasture management programs or a number of other federally-related activities.
NRCS maintains that their programs are voluntary at the request of the landowner. It also maintains that it has the authority to determine if a land management activity — or if a landowner's activity in any other federal program — will affect a listed species or its habitat.
FWS tested that authority this past fall when the agency made a nexus determination in the case of government assistance provided to Laramie County landowners through the drought emergency feed program.
“The FWS made a ‘will not affect’ determination in that case,” explains Hoobler. “The point, though, is that while that determination is good for Laramie County producers, the FWS is making the determination of nexus over a voluntary program.”
Wary Wyoming Landowners
Hoobler says it's critical that federal agencies come together to resolve the nexus determination issue. Meanwhile, some landowners are becoming wary about getting involved with government farm programs.
There have been instances in which landowners had to go into Section 7 consultation over projects that involve listed species — not even necessarily critical habitat for the species. In Wyoming's Goshen County, for example, an NRCS cost-share project came under scrutiny when it was found that Preble's mice might be present.
“The kicker is that NRCS made a ‘will not affect’ determination,” says Hoobler. “But, the FWS rejected NRCS's determination and has held up the project since late last summer.”
Thus, farmers and ranchers are becoming gun-shy. In Wyoming, EQIP funding and emergency feed assistance is being turned back because producers are afraid they'll be “in a nexus” with the FWS.
“The landowners are really becoming concerned about intrusion into their private property rights,” says Hoobler. “That's why we're working so hard to determine what constitutes a Section 7 nexus.”
Wyoming's endangered species coordinator, Jody Levin, Cheyenne, has been asked to pull the agencies together and get the nexus issue resolved in her state. But easier said than done — a nexus could open up a proverbial can of worms.
“The fear is that if we get very deep into this, it will open up the commodity provisions in the farm bill,” says Levin. “But, we need answers so federal conservation programs can be effectively continued.”