FHWA Ag Policy Paper

FHWA/CALTRANS BROWN BAG MEETING 9/8/05

FHWA participation in Farmland Mitigation Issue Paper

1. Fundamental Question: Broached to FHWA, California Division Legal Staff, and Headquarters Staff; “Impacts to prime farmland is defined as a significant impact under the California Environmental Quality Act (CEQA) and, as such, must be mitigated for. Given that this mitigation requirement is clearly pursuant to State law, why then would FHWA not participate in this mandated project requirement?”

2. Answer: FHWA participation is appropriate

3. Application: This participation applies to direct impacts (loss due to construction/alignment or loss due to isolation) of Prime, Unique and Farmland of Statewide Importance (as defined by the California Department of Conservation and the U.S. Natural Resources Conservation Service (see Caltrans SER, Chapter 23). FHWA compensatory mitigation applies to the mitigation required to mitigate to under the level of significance pursuant to CEQA. This CEQA analysis would undoubtedly involve coordination with the California Department of Conservation and local jurisdictions. This is the approach that was utilized in the Brawley Bypass (Dist. 11, Emp. 78/111) EIS.

4. Types of Mitigation: Fee simple or Agricultural Conservation Easements (ACE) would be appropriate. An ACE is a voluntary, legally recorded deed restriction that is placed on a specific property used for agricultural production and, as such, remains in effect even when the land changes ownership. Such an easement typically prohibits in perpetuity practices that would damage or interfere with the agricultural use of the land. These easements are usually administered by land trusts or other non-profit entities. The conservation purposes of these easements are recognized by the following governmental conservation policies:

●The Farmland Protection Policy Act, P.L. 97-98, 7 U.S.C. section 4201, et seq., whose purpose is “to minimize the extent to which Federal programs and policies contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses, and to assure that Federal programs are administered in a manner that, to the extent practicable, will be compatible with State, unit of local government and private programs and policies to protect farmland;”

●The federal Farmland Protection Program, authorized by P.L. 104-127, 16 U.S.C. 3830, section 388, whose purpose is to authorize the Secretary of Agriculture to purchase conservation easements or other interests in land with prime, unique, or other productive soil for the purpose of protecting topsoil by limiting non-agricultural uses of the land;

●Section 815 of the California Civil Code, which defines perpetual conservation easements;

●California Constitution Article XIII, section 8, California Revenue and Taxation Code, sections 421.5 and 422.5, and California Civil Code section 815.1, under which this Agricultural Conservation Easement is an enforceable restriction, requiring that the Property’s tax valuation be consistent with restriction of its use for purposes of food and fiber production and conservation of natural resources.

●Division 10.2 (sections 10200, et seq.) of the California Public Resources Code, which creates the California Farmland Conservancy Program;

●Section 51220 of the California Government Code, which declares a public interest in the preservation of agricultural lands;

●The California General Plan law, section 65300 et seq., and section 65400 et seq. of the California Government Code, which includes as one of its goals to protect all viable farmlands designated as prime, of statewide importance, unique, or of local importance from conversion to and encroachment of non-agricultural uses.

Other Resources:

●Sample Agricultural Conservation Easement Language utilized by the California Department of Conservation can be found at:

http://www.consrv.ca.gov/DLRP/cfcp/Documents/CFCP_example_ezmt_language....