Forest Legacy Program implementation guidelines: USDA Forest Service, state & private forestry, cooperative forestry

August 15, 1996
Forest Legacy Program Implementation Guidelines USDA Forest Service
State & Private Forestry Cooperative Forestry
I. Introduction to the Revised Implementation Guidelines The Forest Legacy Program (FLP) identifies and protects environmentally important private forestlands that are threatened by conversion to non-forest uses. Recent legislation provides for optional grants for States to carry out the FLP. These guidelines include direction for implementation of the new program authority for the FLP.
The guidelines are organized in THREE PARTS:
PART 1 - General Program Guidelines: Program direction applicable to all aspects of the FLP.
PART 2 - Federal Acquisition Program Guidelines: Program direction applicable to States and Forest Service (FS) units selecting the Federal acquisition and ownership process, where ownership of lands or interests in lands is vested in the United States (U.S.).
PART 3 - State Grant Program Guidelines: Program direction applicable to States and FS units where the State has elected the State grant option and acquisitions result in non-Federal ownership.
PART 1 - General Program Guidelines
I. Authority and Purpose of the Forest Legacy Program
A. Authority
The Cooperative Forestry Assistance Act (CFAA) of 1978, as amended, (16 U.S.C. 2103c et.seq.) provides authority for the U.S. Secretary of Agriculture 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), also referred to as the 1990 Farm Bill, amended the CFAA and allows the Secretary to establish the FLP to protect environmentally important forest areas that are threatened by conversion to non-forest 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
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participating State, to make a grant to the State to carry out the FLP in the State, including the acquisition by the State of lands and interests in lands.
B. Purpose of the Forest Legacy Program
The CFAA recognizes that the majority of the Nation's productive forest lands are in private ownership; that private landowners are facing increased pressure to convert their forest lands to other uses; that greater population density and user demands are placing increased pressures on private lands to provide a wide variety of products and services including fish and wildlife habitat, aesthetic qualities, timber and recreational opportunities; and that good stewardship of privately held forest lands requires a long-term commitment that can be fostered through a partnership of Federal, State, and local government efforts.
In 1990, the FLP was one of several programs established to promote the long-term integrity of forestlands. The Secretary was directed to establish a FLP in cooperation with State, regional, and other units of government. In carrying out this mandate, the Secretary is authorized to acquire lands and interests in lands in perpetuity for inclusion in the FLP. Landowner participation in the FLP, including the sale of lands and interests in lands, is entirely voluntary.
II. Description of Terms
Conservation easements are partial interests in lands conveyed by deed from a landowner to an easement holder with the intent of restricting present and future owners of the property in order to achieve conservation objectives.
Fair Market Value is generally defined by the Uniform Appraisal Standards for Federal Land Acquisitions as being the amount in cash, or on terms reasonably equivalent to cash, for which in all probability the property would be sold by a knowledgeable owner willing but not obligated to sell to a knowledgeable purchaser who desired but is not obligated to buy. (Uniform Appraisal Standards for Federal Land Acquisitions: Interagency Land Acquisition Conference, 1992, p.4.)
Federal Appraisal Standards are those standards contained in the publication entitled "Uniform Appraisal Standards for Federal Land Acquisitions: Interagency Land Acquisition Conference, 1992." These standards are available for purchase from the Superintendent of Documents, U.S. Government Printing Office, Washington D.C. 20402-9328 (ISBN 0-16-038050-2).
Federal Acquisition Procedures, as listed below, must be followed when Federal funds are used to complete an acquisition of land or interests in land using Forest Legacy authority: 1. Federal appraisal standards must be met; 2. The landowner must be informed of the fair market value and that sale of the property is strictly voluntary; 3. The landowner must be notified in writing that the property will NOT be purchased if negotiations do not result in amicable agreement; 4. Payment to the landowner for lands or interests in lands is not more than the fair market value determined under #1; 5. Assure title is free and unencumbered or that title insurance is secured for the full value of the encumbered property; and 6. If relocation is involved the requirements in PL 91646 must be followed.
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Forest Legacy Area (FLA) is a forested area with important environmental values, that satisfies identified eligibility criteria and has been delineated, described, and mapped in a State's Assessment of Need for the FLP. Acquisition of lands and interests in lands for the FLP can only occur within approved FLA's.
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Full fee purchase is a land conveyance where a vendor conveys all rights, title and interest in a property to a purchaser.
Indirect costs relate to the management and administration of the FLP. Indirect costs, unlike salary, which is a direct cost, are defined as costs not readily assignable to the cost objectives specifically benefited. Examples of indirect costs would be overhead, secretarial, and vehicular costs.
In-kind contributions are non-cash contributions, including third-party contributions. Inkind contributions must be necessary to accomplish program activities, and allowable if the Federal Government were required to pay for them.
Non-forest uses are uses of the land inconsistent with traditional forest uses including, but not limited to, residential subdivisions, commercial development, extensive pasture (generally meaning more than 10 percent), cultivated farmland, and mining that causes extensive surface disturbance.
Pass-through as used herein describes a land transaction whereby a third party, such as a land trust, acquires interests in lands with the intent to convey such interests to a government. The transaction can include a full or partial donation, or sale at fair-market value.
Secretary is the U.S. Secretary of Agriculture.
State Forest Stewardship Coordinating Committees (SFSCC) are chaired and administered by the State Foresters, or equivalent State officials, with membership composed of representatives from the following agencies, organizations, or individuals: Forest Service; Natural Resources Conservation Service; Farm Services Agency; Cooperative, State, Research, Education, and Extension Service; local government; consulting foresters; environmental organizations; forest products industry; forest land owners; land trusts; conservation organizations; the State fish and wildlife agency; and others determined appropriate by the Secretary.
State Lead Agency is responsible for coordinating the establishment and implementation of the FLP in the State. The State lead agency may be a forestry agency, or other natural resource agency as designated by the Governor or pursuant to State law.
Stewardship Management Plans, or multi-resource management plans, are prepared with the purpose of achieving long-term stewardship of forest land. Such plans identify landowner objectives and describe actions the landowner may take to protect and manage soil, water, range, aesthetic quality, recreation, timber, and fish and wildlife resources. Plans are to be prepared by a professional resource manager. A Forest Stewardship Plan that meets the requirements of the Forest Stewardship Program or a multi-resource management plan is required for FLP qualification. Either plan's content must be acceptable to the State.
III. National Environmental Policy Act (NEPA)
NEPA applies to certain proposed actions of the Federal Government. NEPA does not apply to the independent actions of States or private property owners. It has no applicability to a private property owner's use or development of his/her property rights.
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It could apply on private property if the U.S. acquired a right to permit or deny certain land uses and then proposed to exercise that right, but in such an instance it would be the U.S. that would be required to satisfy NEPA requirements, not the private owner.
A Programmatic Environmental Assessment was completed for the FLP at the Washington, D.C., Office level.
Under the FS NEPA regulations, the acquisition of an individual Forest Legacy tract and/or easement may be categorically excluded from the preparation of an Environmental Impact Statement or an Environmental Assessment unless scoping indicates extraordinary circumstances exist.
IV. Eligibility Criteria for Areas Included in the FLP
The CFAA directs the Secretary to establish eligibility criteria for the designation of Forest Legacy Areas (FLA), in consultation with the State Forest Stewardship Coordinating Committees (SFSCC). These criteria are developed based upon the State lead agency's Assessment of Need (AON) for establishing a State FLP.
FLA boundaries must encompass forestlands with significant environmental and other resource-based values. Areas may also include non-forested areas such as farms and villages if they are an integral part of the landscape and are within the logical boundaries. Since FLA boundaries may not correspond to property boundaries, tracts located partially within the geographically defined FLA are eligible for the FLP, upon approval of a boundary adjustment.
Indian reservations and tribal lands are an important feature of the forested landscape. Indian tribes and States are encouraged to collaborate to consider tribal lands and reservations for designation as, or inclusion within, an FLA.
To be eligible for the FLP, the proposed area must meet the following National criterion:
Be an environmentally important forest area that is threatened by conversion to non-forest uses.
Individual States are responsible for determining their definition of "threatened" and the definition of "environmentally important forest areas."
Environmentally important forest areas shall contain one or more of the following important public values, as defined by the States:
1. Scenic resources; 2. Public recreation opportunities; 3. Riparian areas; 4. Fish and wildlife habitat; 5. Known threatened and endangered species; 6. Known cultural resources; 7. Other ecological values; and/or
Provide opportunities for the continuation of traditional forest uses, such as forest management, timber harvesting, other commodity use, and outdoor recreation, as defined in the AON.
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Since many tracts may qualify for the FLP, once State eligibility criteria are established States may need to establish additional criteria to prioritize acquisition proposals. Lands and interests in lands identified within a FLA may be acquired under FLP authority by the FS, State or unit of State or local government, only on a willing seller/willing buyer basis.
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V. Assessment of Need and Identification of Forest Legacy Areas
A State lead agency or other designated entity in conducting a State-wide AON must cooperate with the SFSCC. Federally recognized Indian tribes must cooperate with the SFSCC when conducting an AON over tribal lands. The purposes of the AON are: 1. To document the need for a FLP; 2. To identify and delineate the boundaries of forest areas meeting the eligibility requirements for designation as FLA's; and 3. to recommend areas to the FS/Secretary for inclusion in the FLP.
State lead agencies may utilize the services of land trusts or other entities in preparing the assessment. Information from existing sources may be used to prepare the AON, instead of initiating new studies that would duplicate existing data. Examples of appropriate sources include State Forest Resources Plans, State Comprehensive Outdoor Recreation Plans, growth management studies, cultural site inventories in State Historic Planning Offices, inventories of threatened and endangered species, and other State, regional or local plans, studies or reports. The AON should include relevant information about both public and private lands, and address the issue of how best to maintain the integrity of forestlands for future generations. The document should address pertinent issues as identified by the States, but be kept as succinct as possible.
At a minimum, the AON should address the following as they relate to the purpose of the FLP:
1. Forested areas threatened by conversion to non-forest use, in both the near and long term;
2. Forest resources including:
a. Aesthetic and scenic values; b. Fish and wildlife habitat, including threatened and endangered species; c. Minerals resource potential; d. Public recreation opportunities; e. Soil productivity; f. Timber management opportunities; and g. Watershed values.
3. Historic uses of forest areas, and trends and projected future uses of forest resources;
4. Current ownership patterns and size of tracts, and trends and projected future ownership patterns;
5. Cultural resources that can be effectively protected;
6. Outstanding geological features;
7. Demographic trends as they relate to conversion of forest areas; and
8. Other ecological values.
Using the above information the AON should include the following:
1. Specific goals and objectives to be accomplished by the FLP;
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2. Guidelines to be used by the State in determining the priority of interests in lands to be acquired;
3. Identification of applicable eligibility criteria; and
4. Identification of specific FLA(s) for designation.
The AON must reflect the direction set forth in the CFAA to give priority to lands which can be effectively protected and managed, and which have important scenic or recreational values, timber, riparian areas, fish and wildlife values including threatened and endangered species, or other ecological values.
Public participation and involvement is a State responsibility. In the absence of established State procedures, NEPA will serve as an appropriate model for public involvement. The State lead agency will solicit involvement and comments on the AON from the public including State and local governments.
The composition of the SFSCC is defined in the CFAA. This committee cooperates with the State lead agency in the preparation of the AON, identification of eligibility criteria, identification of proposed FLA's, and selection of priority lands and interests in lands to be considered for enrollment in the Program.
Based on the State-wide AON, the State lead agency in consultation with the SFSCC identifies specific geographic FLA's that meet the eligibility criteria, and recommends them to the FS for designation of a FLA.
The identification of proposed FLA's includes:
1. Identification of each geographic area on a map;
2. Description of each important forest area;
3. Summary of the important environmental values and how they will be protected and conserved in each FLA;
4. List of public benefits that will be derived from establishing each FLA;
5. Identification of the governmental entity or entities that may be assigned management responsibilities for the lands enrolled in the program; and
6. Documentation of the analysis and public involvement process.
Once designated, FLA's and resulting map of FLA's may be modified or amended upon recommendation by the State lead agency if future conditions make changes necessary. Proposed revisions shall be recommended to the appropriate FS Region/Area/Institute for approval before taking effect.
VI. Multi-State Identification of Forest Legacy Areas
Two or more States or Indian tribes may elect to identify and recommend one or several FLA's that cross State or tribal boundaries. States may elect to jointly use an existing or new multi-State entity to identify FLA's that cross State boundaries. The multi-State entity must be a government-established organization, whose jurisdiction encompasses
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all or portions of the land area of the States involved. Regional entities may prepare the documentation for identifying a FLA if they are multi-State in nature.
The entity conducting a multi-State identification of FLA's is responsible for:
1. Obtaining approval from the appropriate States or Indian tribes for FLA's within their boundaries, and
2. Obtaining public comments on the identification of FLA's and complying with all other requirements of these guidelines.
VII. AON Approval and Designation of FLA's
The State lead agency, Indian tribe(s), or multi-State entity must submit the AON and identification of proposed FLA's to the FS. The FS reviews the AON, identification of eligibility criteria, and identification of proposed FLA's. The Secretary provides final approval, which establishes the FLP for the State(s) or Indian tribe(s), establishes eligibility criteria, and designates FLA's.
VIII. Fund Allocation Process
Funds for the program will fall into one of these categories: Program Administration Funds, Project Funds, Unspent Funds, or AON Preparation Funds.
A. Program Administration Funds are the portion of funds used for day-to-day program management and activities leading up to tract acquisition, including, but not limited to appraisals and surveys. As a goal, a maximum of 15 percent of FLP funds will be used for program administration. These funds will be used by FS headquarters, Regions/Area/Institute, and either granted to the State or allocated to the FS unit as appropriate.
B. Project Funds are funds equal to the value to be paid to landowners for lands or interests in land joining the FLP, plus title work for those tracts. Also funds expended to facilitate donations of land or interests in lands to a qualified and willing donee for FLP purposes, by paying for expenses directly related to the donation, including but not limited to: land surveys, title work, appraisals, etc. When Federal funds are used, appraisal and acquisition work procedures shall meet Federal standards. Project funds are to be distributed to FS units (Regions/Area/Institute) and may fall into two categories: base level and other funds.
Active Regions/Area/Institute with State consultation will recommend to FS headquarters on an annual basis the following three items:
(1) The portion of project funds based on equal distribution among participating States (base level funds). The base level fund portion may not be less than 50 percent of available project funds. Funds will either be granted to States or allocated to the FS unit performing acquisition work, as appropriate;
(2) The portion, if any, of project funds remaining after base level allocation (other funds), to be distributed based on considerations such as equity among
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States, forested areas in greatest need of protection, lands that can be effectively protected and managed, and other considerations and
(3) To which Region/Area/Institute the "Other Funds" should be allocated.
C. Unspent Funds have not been spent, or contractually obligated, by the end of time period allowed and revert to the appropriate FS Region/Area/Institute for reallocation at the discretion of the FS in consultation with State partners.
D. AON Preparation Funds may be granted to States or Indian tribes to help defray the cost of preparing the AON.
IX. Cost-Sharing
The CFAA directs that, to the extent practicable, the maximum Federal contribution for total program costs may not exceed 75 percent. The FS position is that at least 25 percent of these costs may be matching funds or in-kind contributions from non-Federal sources, including States and non-profit organizations. Non-Federal contributions may include direct costs and indirect costs associated with any of the planning, acquisition, capital improvement, management, or administrative activities.
Donations of land or interests in land must be documented. The title does not have to be transferred to the Federal Government in order for the donation to qualify. The value of donations may be included as part of the non-Federal cost-share match if:
1. The donation contributes to the objectives and priorities of the State FLP as set forth in the AON;
2. All or part of the donation is within the boundaries of a FLA;
3. The donor specifically requests that the value of the interests be used as a non-Federal match for the FLP at the time of transfer;
4. The donation of an interest in land must contain perpetual covenants to assure that the tract will be managed in a manner compatible with the goals for which the FLA was established;
5. The deed contains a clause that directs all of the easement holder's proceeds from a subsequent sale or exchange of the easement be used in a manner consistent with the conservation purposes of the easement;
6. The donation must not have been previously credited towards any other FLP non-Federal match; and
7. The State lead agency approves the donation as contributing to the costshare match.
A. Federal Acquisition Option Cost-Sharing
States may use up to five years of direct, indirect and in-kind contributions associated with the management of specific Forest Legacy tracts for cost-share matching. States may use the total anticipated five-year costs for the first year
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of program matching, or choose to prorate expenses over the future five-year period.
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Eligibility for cost-share credit shall be:
(I) Initial Forest Legacy States: Two (2) years prior to signing the FS/State Memorandum of Understanding, or other agreement (henceforth MOU means all similar instruments that document an agreement between entities), but no earlier than November 23, 1990.
(ii) Other States: Two (2) years prior to signing the FS/State MOU.
In a case where a State or private landowner owns land within the boundary of a National Forest, National Park, National Wildlife Refuge, or other Federal reserve, and wishes to donate it to the Federal Government, the value of the donation may be credited as part of the non-Federal cost-share match, even though the donation is not in a designated FLA, provided that:
1. The Federal agency agrees to accept the donation; and
2. The owner of the tract specifically requests the value of the land be used as a non-Federal cost-share match for the FLP at the time of transfer.
B. State Grant Option Cost-Sharing
Only allowable costs actually incurred during the grant period may be included in the non-Federal share of grant costs. A grant may have a maximum duration of five (5) years. To the extent practicable, the Federal share of the total costs of a grant shall not exceed 75 percent, including any in-kind contributions. Allowable costs for the non-Federal share may include, but are not limited to, those associated with planning, administration, property acquisition, property management, and in-kind contributions. Allowable costs shall be determined in accordance with 7 Code of Federal Regulations Part 3016 (7 CFR 3016), Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and any amendments to this regulation.
X. Landowner Participation
Landowner participation in the program is voluntary and shall consist of two elements: 1. Conveyance of interests in lands to achieve the land conservation objectives of the FLP; and
2. Preparation of a Stewardship Management Plan or a multi-resource management plan. The management plan must be prepared and approved prior to signing the acquisition of the easement. Future modifications of the plan must be agreed to by the State lead agency. A plan is not needed if the landowner does not retain the right to harvest timber or conduct other land or resource management activities, or if lands are sold in fee.
Landowners may submit to the State lead agency an application for enrollment of interests in their lands in the FLP. All owners of private forest lands within the designated FLA are eligible to submit an application.
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For a landowner to participate in the program, it is not required that their tracts be completely forested. However, priority will generally be given to tracts that are currently forested or are identified to be forested in the landowner Stewardship Management Plan or multi-resource management plan.
Application requirements for landowner participation in the FLP shall be developed by the State lead agency. Landowners or their designated representatives may submit their applications to the State lead agency and will be asked to supply information about the property proposed for entry into the Program (see Appendix A).
The State lead agency, with involvement of the SFSCC, shall cooperatively review the applications and establish State acquisition priorities and continue with landowner consultation. Priority for FLP acquisitions shall be given to lands which can be effectively managed; and which have important scenic or recreational values, riparian areas, timber, fish and wildlife values, including threatened and endangered species, or other ecological values.
The FLP respects the rights of private property holders. Under no circumstances shall the right of eminent domain be used for the unwilling "taking" of any private property rights. Conservation easements or deed reservations acquired or reserved pursuant to the FLP may allow forest management activities deemed consistent with Forest Legacy purposes.
The FLP adheres to language contained in Section 14 of the CFAA, STATEMENT OF LIMITATION: "This Act shall not authorize the Federal Government to regulate the use of private land or to deprive owners of land of their rights to property or to income from the sale of property, unless such property rights are voluntarily conveyed or limited by contract or other agreement. This Act does not diminish in any way the rights and responsibilities of the States and political subdivisions of States." Purchase or donation of rights does not limit enforcement of regulations that would otherwise apply.
XI. Acquisition of Lands or Interests in Lands
If any Federal funds are used in the acquisition of a tract, including pre-acquisition work, the following shall apply:
1. Federal appraisal standards must be met; 2. The landowner must be informed of the fair market value and that sale
of the property is strictly voluntary; 3. The landowner must be notified in writing that the property will NOT
be purchased if negotiations do not result in amicable agreement; 4. Payment to the landowner for lands or interests in lands is not
more than the fair market value determined under item 1; 5. Assure title is free and unencumbered or that title insurance is
secured for the full value of the encumbered property; and 6. If relocation is involved the requirements in PL 91-646 must be
followed.
All FLP acquisitions are perpetual and are binding on subsequent owners who may acquire from the present landowner those rights that the present landowner retains. Future owners of the rights
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that are not acquired shall be subject only to those restrictions, which the present landowner has sold to the Federal, State, or local government.
Cultivated farmland and extensive pasture (generally meaning more than 10 percent) are desirable land uses in many areas and may be intermingled with FLP parcels. FLP funds should not be used to conserve farmland, pasture and similar land uses. Other programs are available for such purposes.
States and landowners may choose to display signs on the FLP property using the signs suggested in Appendix C.
During the development of tract specific conservation easements, a determination shall be made as to whether the acquisition of mineral rights would be necessary in order to protect the other rights that are being considered for acquisition. In some situations, it may be impossible to protect environmentally important forest areas pursuant to the purpose of the FLP without acquiring the mineral rights.
XII. Tax Implications
The FS has no jurisdiction to make tax determinations or render advice as to the tax implications of transactions. Since tax implications differ from person to person, landowners may need to seek independent counsel from local assessors, tax lawyers, or accountants.
Taxes on private lands are determined by local assessors based on the fair market value of the property. When a government or other qualified entity purchases an interest in lands, the value of the property rights retained by the landowner may be reduced. Local officials may, at their discretion and in accordance with applicable State laws, assess the landowner on the value of the land with rights removed.
Many States already have a current use assessment or use valuation program where lands are taxed according to their productivity and income-producing ability. This means that managed forest land is taxed by its ability to produce income, from activities such as timber harvesting and not by its ability to generate income should it be subdivided into residential lots. Therefore, if the easement does not affect income production capability, the taxation may be unaffected by the easement. Other States base the assessed value on the highest and best use of the land. In this case, present use, i.e., forest management, may not be the highest valued use of the land and the assessed value might be based upon the developed use of the land. It should be noted, however, that the highest and best use of the land needs to be based on present or probable future use. The probable future use should be based on realistic near term uses and not highly speculative long term uses.
Conservation easements are increasingly being used as a tool to allow forest lands to be passed on from generation to generation. Federal estate taxes are assessed on the market value of land, often resulting in taxes that are so high that some or all of the land must be sold to pay the taxes. Since estate taxes are assessed on the market value of land rights held by the landowner, sale of an easement that lowers the market value may allow the land to remain in the family without generating a huge tax burden. Landowners who are interested in easements as an estate planning tool may wish to participate in the FLP; but, as previously mentioned, landowners should seek professional tax advice to determine how enrollment of their lands in the FLP might effect their estate taxes and
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private property taxes. Neither Federal nor State Government officials administering the FLP are authorized or qualified to assess personal tax implications.
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PART 2 - Federal Acquisition Program Guidelines
I. Federal Acquisition Process
In the furtherance of the purposes of the FLP, the State lead agency with involvement of the SFSCC and the FS will review property owner applications, prioritize tracts, obtain State approval, and submit properties to the appropriate FS Region/Area/Institute for approval. Upon approval, the FS will proceed to acquire from willing sellers conservation easements and/or other interests in land including fee acquisition.
Certain land areas are not eligible for the Federal ownership option under FLP authority because other authorities and funding sources are available for acquisition of lands or interests in lands within these Federally established areas. These include lands or interests in lands located within National Forests, National Parks, National Wildlife Refuges, or other Federal Government boundaries. Proximity to Federal lands or the inclusion of Federal lands within a proposed FLA does not disqualify an area for program eligibility.
Federal laws governing public lands do not apply to private property rights not acquired by the Federal Government from willing private landowners. Interests in lands retained by private landowners, not conveyed to the Federal Government under the FLP, are subject to the same requirements of the Endangered Species Act (ESA) that existed prior to their participation in the FLP. Conveyance of interests in lands to the Federal Government neither enhances nor diminishes the landowner's responsibility under the ESA. Any interests in lands acquired by the Federal Government under the FLP shall be subject to the same requirements of the ESA as are other Federal lands.
II. Memorandum of Understanding for Coordination of the FLP
An MOU will be used to coordinate the FLP where Federal acquisition option resulting in Federal ownership of FLP acquisitions occurs. The MOU will define and facilitate partnerships between the State lead agency, FS, and other participating entities in implementing the program, acquiring interests in lands, and sharing the costs of the program. The MOU shall determine how costs are shared between parties, including administrative, management, monitoring, and capital improvement expenses. The terms of a MOU will determine which party is responsible for costs incurred following the tract's five-year cost-share write off period.
If individual Forest Legacy tract MOU's are needed, they become an addendum to the State level "umbrella" MOU.
The umbrella MOU between the State lead agency and the FS shall be developed following the Secretary's approval of the State AON and the establishment of the State's FLP.
The FS/State MOU is for the purpose of specifying roles and responsibilities for implementing the program, and may address the following items:
1. Costs and Funding:
a. Identify direct and indirect costs expected to be incurred in establishing the FLP, and acquiring and administering interests in lands during the first
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five years of the program. Revise or renew these cost estimates as appropriate.
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b. Identify and propose sources of cost-share matches.
2. Planning: a. Document the amount of work that was required to complete the AON and identification of FLA's.
b. Define a process for revising existing landowner Stewardship Management Plans, or multi-resource forest management plans.
c. Identify how specific tract-by-tract acquisition needs and priorities shall be established by the State.
3. Acquisition:
a. Identify who is responsible for title work, appraisals, surveys, and similar pre-acquisition work.
b. Define a process for determining the value of donated interests in lands.
4. Management:
a. Define responsibilities for management of interests in lands acquired or dedicated to the program.
b. Identify possible activities needed to enhance, restore, or maintain resources to meet the intent of the program and general responsibilities in carrying out such activities.
5. Administration:
a. Estimate the staff work required to implement the Program.
b. Define responsibilities for processing applications to the FLP.
c. Establish procedures for monitoring the terms of reserved interest deeds and easements and identify who will be responsible.
d. Identify responsibilities for periodic reports summarizing the achievement of FLP goals in the State.
III. Administration of Federal Acquisitions
The FS will administer any interests in lands acquired by the Federal Government in FLA's. The FS may delegate or assign management and enforcement responsibilities over federally owned lands and interests in lands acquired under the FLP only to other Federal agencies or State or local government entities. Such delegation or assignment of responsibility shall be documented by a written agreement. The governmental entity responsible for management and enforcement of the conservation easement may in turn delegate or assign monitoring authority to other parties, to include land trusts, conservation groups, and other governmental entities. Such delegation or assignment of authority shall be adequately documented and the FS shall be notified for approval prior
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to such delegation or assignment. Similarly, management activities conducted pursuant to
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the easement and in furtherance of the purposes of the FLP may be delegated or assigned by the responsible governmental entity to another party, to include land trusts, conservation groups, and other governmental entities. This delegation or assignment of authority shall also be adequately documented and the FS shall be notified for approval prior to such delegation or assignment for approval.
Optimal management of tracts in FLA's is based upon partnerships between landowners, private non-profit organizations owning or managing lands, and State and Federal officials. Land trusts and other private organizations will continue to manage their own easements and lands within designated FLA's, and while they may not manage federally owned interests in lands, the Secretary may contract or cooperate with them for monitoring and to implement specific management activities. Management of federally owned interests in lands is reserved to the FS, but may be assigned to State or local governments. Although delegable, enforcement actions for easements will generally be conducted by the easement holder, i.e., the Federal Government/FS.
IV. Participation of Land Trusts
Land trusts are nonprofit corporations having the general objective of preserving and protecting land to achieve conservation objectives. They often operate by acquiring land and interests in land. Land trusts have an important and appropriate role to play in the FLP. The following considerations apply to land transactions between the Federal Government and land trusts.
1. Land trusts cannot execute contracts for acquisition of interests in lands on behalf of the Federal Government. Land trusts may work as intermediaries for eventual Federal acquisition, but without an accepted land purchase option and contract with the FS there is no guarantee of Federal acquisition. No passthrough transactions shall be done without prior consultation with the FS.
2. Lands and interests in lands acquired by land trusts (pursuant to Final Guidelines Part 1, Section IX) may be counted toward the non-Federal costshare contribution, provided that the interests in lands permanently contribute to the goals of the FLA.
3. The monitoring of easements within FLA's may be performed by land trusts in accordance with the umbrella MOU for the FLP and individual MOU's for specific tracts.
V. Payment in Lieu of Taxes (PILT)
Where lands are acquired in fee by the Federal Government under the FLP, the Federal Government will pay PILT to the local taxing authority. No PILT will be paid on conservation easements.
VI. Other Implementation Procedures
If the Secretary specifies a window of opportunity for the submission of FLP applications, the Secretary will give reasonable advance notice of the opportunity to the State lead agency.
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The number of applications for the FLP may be beyond the ability of the Secretary to fund them. The State lead agency may indicate which applications to the FLP are highest priority and make recommendations for the Secretary's consideration. The Secretary will make final decisions
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about interests in lands that will be acquired with Federal funds, with preference for interests in lands with important environmental values that can be effectively protected and managed. The Secretary may also assign priority to applications with the greatest proportion of non-Federal cost-share match.
Once interests in lands are acquired, the State lead agency, FS, and others as appropriate, may negotiate tract-specific MOU's as necessary to specify management and monitoring responsibilities for the interests in lands.
PART 3 - State Grant Program
The State lead agency elects the State grant option of the FLP, in writing, to the appropriate FS Region/Area/Institute.
When a State elects the State grant option, all future FLP acquisitions shall be transacted by the State with title vested in the State or a unit of State or local government. There are three exceptions: 1. Active cases predating the State grant option request, where all parties agree that the case should be completed by the FS and title vested in the U.S.; 2. Donations where the donor may wish to make a donation to a land trust, local, or Federal Government and the donee agrees to accept the donation, and to manage the lands or interests in lands in perpetuity for FLP purposes; and 3. At the request of the State and at the discretion of the FS, individual tracts may be acquired by the FS with title vested in the U.S. in accordance with Part 2 of these guidelines.
I. Grants
If a State elects the optional State grants Forest Legacy Program, the FS will provide a Federal grant to the State that is consistent with the uniform administrative requirements established in 7 CFR 3016. States will generally be reimbursed for costs incurred with cash advances limited to the minimum amounts needed and timed to be in accord only with the actual, immediate cash requirements of the State in carrying out the FLP. The timing and amount of cash advances shall be as close as is administratively feasible to the actual cash outlay by the State for direct program costs and the proportionate share of any allowable indirect costs.
A. Conditions of the Grant
1. States must submit annual performance and financial status reports. A final performance report and financial status report is required prior to close out of the grant.
2. Funds appropriated for the FLP shall not be included in consolidatedpayment grants made under authority of Section 12 of the CFAA.
3. The State shall maintain current and complete financial records in accordance with requirements contained in the latest Federal Aid Manual and OMB Circular (Appendix B).
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B. Eligible Activities
The following activities are eligible uses of funds granted to States for the FLP:
1. Purchase of lands or interests in lands from willing sellers for inclusion in the FLP;
2. Facilitation of donations of lands or interests in lands to a qualified and willing donee for FLP purposes; and
3. Program administration expenses, including indirect costs and direct acquisition related expenses relating to lands and interests in lands acquired under Forest Legacy authority.
C. Availability of Funds
Funds shall be available only for the first two (2) years of a grant to insure that Federal funds are spent promptly. However, the grant period may extend beyond two years to allow for non-Federal cost-sharing to occur. In no case shall the grant period exceed five (5) years.
II. Acquisition of Lands and Interests in Lands by States
All Forest Legacy acquisitions including the acquisition of lands or interests in lands, shall be made in accordance with Federal appraisal and acquisition standards and procedures. Partial interests in land acquired for Forest Legacy shall be adequate for Forest Legacy purposes and be perpetual. Title to such lands or interests in lands will be vested in the State or unit of State or local government. These lands or interests in lands will be managed and administered for goals consistent with Forest Legacy conservation purposes by State agencies or their assigns. The State shall be ultimately responsible for all administrative and other costs assoc iated with the acquisition and management of lands for FLP purposes.
Where title is to be vested to the State, lands and interests in lands located within a FLA and within other Federal boundaries (e.g. national forest, national park, or national wildlife refuge) are eligible for the FLP.
If a State has passed legislation that extinguishes claims to or restrictions on real property, the State shall use all available authorities, including that of acting as an agent of the U.S., to achieve the purposes of section 7(K)(2) of the CFAA.
III. Reversion of Funds for Forest Legacy Inconsistency
In the event that lands or interests in lands acquired with Federal funding are ever sold, exchanged, or otherwise disposed of, and after notification of the FS, the State shall:
1. Reimburse the FS for the current market value in proportion to the original Federal investment; or
2. Substitute other lands or interests in lands of at least equal fair market value and of reasonably equivalent location, with public purposes that equal or exceed those of the disposed tract, with FS approval.
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IV. Transition to State Grant Option Program Once the State grant option is elected, if there are active cases in the State that predate the option and all parties (FS, State, and landowner) agree that a case should be completed by the State, then: 1. For Federal fiscal year 1996, the FS may provide a Federal grant to the State in an amount not to exceed the funds currently allocated for expenditure in the State for the FLP. If funds have already been obligated for a tract, the obligation may be voided and the funds transferred to the State in a grant at the request of the State;
2. For fiscal year 1997 and beyond, the State grant shall be determined as described in Part 1, Section VIII, Fund Allocation Process; and 3. To facilitate State acquisitions, the FS may provide the State with copies of any
appraisals, appraisal reviews, title reports, option contracts and other preacquisition materials for lands, which have been under negotiation by the FS within the State for the FLP.
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