Overview

Natural disasters can have varying effects on the landscape. For agricultural producers, natural disasters are part of the inherent risk of doing business. The federal role for mitigating weather risk is primarily through federal crop insurance and a suite of agricultural disaster assistance programs to address a producer's crop or livestock production loss.¹

Other, separate U.S. Department of Agriculture (USDA) programs are designed to repair agricultural and forest land following a natural disaster and potentially mitigate future risk. These programs offer financial and technical assistance to producers to repair, restore, and mitigate damage on private land. Agricultural land assistance programs include the Emergency Conservation Program (ECP), the Emergency Forest Restoration Program (EFRP), and the Emergency Watershed Protection (EWP) program. In addition to these programs, USDA also has flexibility in administering other programs that allow for support and repair of damaged cropland in the event of an emergency.

This report describes these emergency agricultural land assistance programs. It presents background on the programs—purpose, activities, authority, eligibility requirements, and authorized program funding levels—as well as current congressional issues.

Federal Emergency Assistance for Agricultural and Rural Land

Agricultural land assistance programs help producers rehabilitate crop and forest land following natural disasters. These programs are described below.

Emergency Conservation Program

Purpose, Activities, and Authority

The Emergency Conservation Program (ECP) assists landowners in restoring land used in agricultural production when damaged by a natural disaster. This can include removing debris, restoring fences and conservation structures, and providing water for livestock in drought situations. Restoration practices are authorized by the Farm Service Agency (FSA) county committee, with approval from state FSA committees, and the FSA national office.²

Payments are made to individual producers based on a share of the cost of completing the practice. This can be up to 75% of the cost, or up to 90% of the cost if the producer is considered to be a limited-resource, socially disadvantaged, or beginning farmer or rancher.³ Total payments for a single event may not exceed 50% of the agricultural value of the land. Payments are made following completion and inspection of the practice. Producers have the option to receive up to 25% of the cost of a practice before the restoration is carried out. Any funds not used within 60 days must be returned.⁴

The ECP was created under Title IV of the Agricultural Credit Act of 1978 (P.L. 95-334) and codified at 16 U.S.C. Sections 2201-2205. The program is permanently authorized, subject to appropriations. Authorized funding is for "such funds as may be necessary," and once appropriated, funds are typically available until expended.

Eligible Land

Land eligibility is determined by the FSA county committee except in the event of a drought, in which case the national FSA office authorizes the use of funds. Following an on-site inspection, the land may be considered eligible if it is determined that the lack of treatment would

• impair or endanger the land;
• materially affect the productive capacity of the land;
• lead to damage that is unusual in character and, except for wind erosion, is not the type that would recur frequently in the same area; and
• be so costly to rehabilitate that future federal assistance is or would be required to return the land to productive agricultural use.⁵

Land conservation issues that existed prior to the natural disaster are not eligible for assistance. Land subject to frequent damage or susceptible to severe damage may also be considered ineligible.⁶ Federally and state-owned land is eligible only if leased by an eligible participant who would directly benefit from ECP assistance.⁷

Eligible Participant

An eligible participant is defined as an agricultural producer with an interest in the land affected by the natural disaster. The applicant must be a landowner or user in the area where the disaster occurred and must be a party who will incur the expense that is the subject of the ECP cost-share application. Participants are limited to $500,000 per natural disaster event.⁸

Federal agencies and states, including all agencies and political subdivisions of a state, are ineligible to participate in ECP.

Funding and Allocation

Funding for ECP varies widely from year to year. Funding is provided through supplemental appropriations acts and annual appropriations as emergency spending. Table 1 provides a funding history for ECP since FY2014.

Funding is generally appropriated to remain available until expended. In some instances, Congress has required that ECP funding be used for specific disasters, activities, or locations. For example, a portion of funding appropriated in FY2016 was to be used for major disasters declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).⁹ Since ECP does not typically require a Stafford Act declaration, this requirement limits the use of ECP funds to select locations as well as for future disasters. For further discussion, see the "Issues for Congress" section. A permanent restriction on funding was added in the Agricultural Act of 2018 (2018 farm bill, P.L. 115-334), requiring that 25% of all ECP funding made available in a fiscal year must be set aside until April 1 of that year for repair and replacement of fencing. This set-aside could potentially reserve funding for an activity that may not be a relevant practice for all natural disasters, while other projects may have to wait for the reserved funds to be released.

Once funding is appropriated, the FSA national office generally allocates ECP funds to the FSA state offices. Funding is prioritized by FSA according to several factors, such as type and degree of damage, type of practices needed, availability of funds and technical assistance, and environmental and safety concerns.¹⁰

Emergency Forest Restoration Program (EFRP)

Purpose, Activities, and Authority

The Emergency Forest Restoration Program (EFRP) provides cost-share assistance to private forestland owners to repair and rehabilitate damage caused by natural disasters on nonindustrial private forest land. Natural disasters include wildfires, hurricanes or excessive winds, drought, ice storms or blizzards, floods, or other resource-impacting events, as determined by USDA. The program is administered by FSA.

FSA provides financial assistance for emergency restoration measures that would restore forest health and related resources following a disaster. Financial assistance is calculated as the lesser of 75% of the participant's actual cost of restoration measures or the FSA-established not-to-exceed rate times the extent of restoration measures performed. The minimum qualifying cost of restoration is generally $1,000 per participant but may be higher in some states.¹¹

The EFRP was created under Section 8203 of the Food, Conservation, and Energy Act of 2008 (2008 farm bill, P.L. 110-246), by adding a new Section 407 to Title IV of the Agricultural Credit Act of 1978. It is codified at 16 U.S.C. Section 2206 and is permanently authorized, subject to appropriations. Authorized funding is for "such funds as may be necessary," and once appropriated, funds are typically available until expended.

Eligible Land

For land to be eligible for EFRP, it must be nonindustrial private forest land and must

• have existing tree cover or have had tree cover immediately before the natural disaster and be suitable for growing trees;
• have damage to natural resources caused by a natural disaster, that, if not treated, would impair or endanger the natural resources on the land and would materially affect future use of the land; and
• be physically located in a county in which EFRP has been implemented.¹²

Land is ineligible if it is owned or controlled by the federal government, a state, a state agency, or a political subdivision of a state.

Eligible Participant

Eligible recipients include owners of nonindustrial private forest land, defined as rural land with existing tree cover or that is suitable for growing trees that is owned by an individual, group, association, corporation, Indian Tribe, or other private legal entity.¹³ Owners or lessees principally engaged in the primary processing of raw wood products are not eligible. A payment limitation of $500,000 per person or legal entity applies per natural disaster event.

Funding and Allocation

Funding for EFRP varies widely from year to year. Funding is provided through supplemental appropriations acts and annual appropriations as emergency spending. Table 2 provides a funding history for EFRP since FY2014.

Emergency Watershed Protection (EWP) Program

Purpose, Activities, and Authority

The Emergency Watershed Protection (EWP) program assists sponsors, landowners, and operators in implementing emergency recovery measures for runoff retardation and erosion prevention to relieve imminent hazards to life and property created by natural disasters. Eligible activities may include removing debris from stream channels, road culverts, and bridges; reshaping and protecting eroded banks; correcting damaged drainage facilities; establishing cover on critically eroding lands; removing carcasses; and repairing levees and structures.

EWP funds cannot be used to perform operation or maintenance for existing structures or to repair, rebuild, or maintain private or public transportation facilities or public utilities. The EWP is administered by both USDA's Natural Resources Conservation Service (NRCS) and the U.S. Forest Service (USFS).

The federal contribution toward the implementation of emergency measures may not exceed 75% of the construction cost. This can be raised to 90% if the area is considered to be a limited-resource area.¹⁴

The EWP was created under Title IV of the Agricultural Credit Act of 1978 (P.L. 95-334) and codified at 16 U.S.C. Sections 2203-2205. The program is permanently authorized, subject to appropriations. Authorized funding is for "such funds as may be necessary," and once appropriated, funds are typically available until expended.

Eligible Land

Private, state, tribal, and federal lands are eligible for EWP. EWP is administered by NRCS on state, tribal, and private lands and by USFS on National Forest System lands. EWP assistance funded by NRCS may not be provided on any federal lands if the assistance would augment the appropriations of another federal agency.¹⁵

Eligible Participant

All projects under EWP must have a sponsor. Sponsors must be a state or political subdivision, qualified Indian tribe or tribal organization, or unit of local government. Private entities or individuals may receive assistance only through the sponsorship of a governmental entity.¹⁶

Sponsors are responsible for

• obtaining necessary land rights and permits to do repair work;
• providing the nonfederal portion of cost-share assistance;
• completing the installation of all emergency measures; and
• carrying out any operation and maintenance responsibilities that may be required.¹⁷

Funding and Allocation

Funding for EWP varies widely from year to year. Most funding is provided through supplemental appropriations acts and annual appropriations as emergency spending. Table 3 provides a funding history for EWP since FY2014.

NRCS provides assistance based upon a determination by the NRCS state conservationist¹⁸ that the current condition of the land or watershed impairment poses a threat to health, life, or property. Sponsors must submit a formal request to the NRCS state conservationist within 60 days of the natural disaster or 60 days from the date when access to the site becomes available. No later than 60 days from receipt of the request, the state conservationist will investigate the situation and prepare an initial cost estimate to be forwarded to the NRCS national office. Before release of any funds, the project sponsor must sign a cooperative agreement with NRCS that details the responsibilities of the sponsor (e.g., funding, operation, and maintenance). No funding is provided for activities undertaken before the cooperative agreement is signed.

Approval of funding is based on the following rank order:

• exigency situations;¹⁹
• sites where there is a serious (but not immediate) threat to human life; and
• sites where buildings, utilities, or other important infrastructure components are threatened.²⁰

Emergency Watershed Protection (EWP) Program—Floodplain Easements

Purpose, Activities, and Authority

Floodplain easements under EWP are administered separately from the general EWP program. The easements are meant to safeguard lives and property from future floods, drought, and the consequences of erosion through the restoration and preservation of the land's natural values. USDA holds all EWP floodplain easements in perpetuity. Floodplain easements are purchased as an emergency measure and on a voluntary basis. If a landowner offers to sell a permanent conservation easement, then NRCS has the full authority to restore and enhance the floodplain's functions and values. This includes removing all structures, including buildings, within the easement boundaries and providing up to 100% of restoration costs. In exchange, the landowner receives the smallest of the three following values as an easement payment:

• 1. a geographic area rate cap established by the NRCS state conservationist;
• 2. the fair-market value based on an area-wide market analysis or an appraisal completed according to the Uniform Standards of Professional Appraisal Practices (USPAP); or
• 3. the landowner's offer.

Section 382 of the Federal Agricultural Improvement and Reform Act of 1996 (1996 farm bill, P.L. 104-127) amended the EWP authorization to include the purchase of floodplain easements. The Agricultural Act of 2014 (2014 farm bill, P.L. 113-79) amended the floodplain easement section of the EWP program to allow USDA to modify or terminate floodplain easements when the landowner agrees and the change "addresses a compelling public need for which there is no practical alternative, and is in the public interest." Modification or termination requires a compensatory arrangement determined by USDA.

Similar to the general EWP program, EWP floodplain easements are authorized under Title IV of the Agricultural Credit Act of 1978 (P.L. 95-334) and codified at 16 U.S.C. Sections 2203-2205. The authorization of appropriations is for "such funds as may be necessary" and does not expire.

Eligible Land

Lands are considered eligible for an EWP floodplain easement if they are

• floodplain lands that were damaged by flooding at least once within the previous calendar year or have been subject to flood damage at least twice within the previous 10 years;
• other lands within the floodplain that would contribute to the restoration of the flood storage and flow, erosion control, or would improve the practical management of the easement; or
• lands that would be inundated or adversely impacted as a result of a dam breach.

Land is considered ineligible if

• restoration practices would be futile due to "on-site" or "off-site" conditions;
• the land is subject to an existing easement or deed restriction that provides sufficient protection or restoration of the floodplain's functions and values; or
• the purchase of an easement would not meet the purposes of the program.²¹

Eligible Participants

EWP participants must have ownership of the land. Unlike the general EWP program, EWP floodplain easements generally do not require a project sponsor if on agricultural or open lands. However, a project sponsor is required for lands primarily used for residential housing. In the case of land with residential housing, NRCS will purchase a floodplain easement only as part of a larger strategy intended to minimize future flood damage. A project sponsor is required to purchase the land after structures are removed.²²

Funding and Allocation

Funding for EWP floodplain easements varies from year to year. Most funding is provided through supplemental appropriations acts and annual appropriations as emergency spending. Funding for floodplain easements is generally an unspecified subset of the total funding provided for EWP (see Table 3). Funds are allocated to floodplain projects based on available funding and need, as determined by NRCS. Through the end of FY2021, NRCS reported enrolling a total of 1,760 easements on 199,621 acres, including 1,671 closed easements on 185,489 acres.²³

Other Programs

Emergency Disaster Loans

Emergency disaster (EM) loans are available through the FSA when a county has been declared a disaster area by either the President or the Secretary of Agriculture.²⁴ Agricultural producers in the declared county and contiguous to the county may become eligible for low-interest EM loans. EM loan funds may be used to help eligible farmers, ranchers, and aquaculture producers recover from production losses (when the producer suffers a significant loss of an annual crop) or from physical losses (such as repairing or replacing damaged or destroyed structures or equipment or replanting permanent crops such as orchards). A qualified applicant can then borrow up to 100% of actual production or physical losses (not to exceed $500,000) at low interest rates.²⁵

Conservation Programs

In addition to the authorized land assistance programs, USDA uses a number of existing conservation programs to assist with rehabilitating land following natural disasters. In many cases this assistance comes through the use of waivers and flexibility provided to the Secretary of Agriculture. The following section discusses programs used by USDA to offer assistance.

Conservation Reserve Program (CRP)

The Conservation Reserve Program (CRP) provides annual payments to agricultural producers to take highly erodible and environmentally sensitive land out of production and install resource-conserving practices for 10 or more years. Limited haying and grazing may be conducted on CRP land in response to drought or other emergencies. Emergency haying and grazing generally is authorized due to drought conditions when a county is designated as level D2 (severe) drought intensity or higher according to the U.S. Drought Monitor.²⁶ Requests for emergency haying and grazing may also be initiated by the county FSA committee.²⁷ Emergency haying and grazing is allowed—with restrictions—outside of the primary nesting season for birds.²⁸ During primary nesting season, emergency grazing is allowed with a reduction in carrying capacity. Certain CRP acres are ineligible for emergency haying and grazing, including acres under easements; land within 20 feet to a stream or permanent water body; and any acres where haying and grazing would cause long-term damage to the established vegetative cover.

Environmental Quality Incentives Program (EQIP)

The Environmental Quality Incentives Program (EQIP) is a voluntary program that provides financial and technical assistance to agricultural producers to address natural resource concerns on agricultural and forest land. In the past, USDA has announced special EQIP sign-ups for farmers and ranchers in areas affected by natural disasters. EQIP may also be used to proactively mitigate potential damage from natural disasters through the use of conservation practices (e.g., residue management to improve the soil's capacity to be more drought-resilient, or vegetative buffer strips along waterways to reduce erosion and crop damage in the event of a flood).

Issues for Congress

Funding Mechanisms

Historically, the majority of emergency assistance for agriculture was funded through supplemental appropriations or as an add-on to regular annual appropriations. A supplemental appropriation provides additional budget authority during the current fiscal year either to finance activities not funded in the regular appropriation or to provide funds when the regular appropriation is deemed insufficient.

Since most agricultural land assistance programs do not receive the level of attention that triggers a standalone supplemental appropriation bill, annual appropriation bills are increasingly seen as a vehicle for funding these programs. The change in funding mechanism from standalone supplemental appropriations to annual appropriations has presented a challenge for agricultural land assistance programs. The timing of annual appropriations bills may not coincide with natural disasters and the subsequent requests for assistance. This can increase the time between eligible disasters and funding availability. Disaster funds are typically provided to remain available until expended, which has allowed smaller, more localized disasters to be addressed in years without appropriations. However, despite this flexibility, the inconsistent funding has left some agricultural land assistance programs without funding during times of high request volume.

Beginning in the 2008 farm bill, and continued in the 2014 farm bill, Congress authorized a series of permanent disaster assistance programs that receive mandatory funding, rather than relying on supplemental appropriations.²⁹ These programs assist with crop and livestock production loss and are generally authorized at funding amounts that are "such sums as necessary" and by their mandatory nature are not subject to annual appropriations. For the three agricultural land rehabilitation programs discussed in this report, however, funding remains discretionary and is provided on an ad hoc basis.

The variability of funding for agricultural land rehabilitation has led some to suggest that these programs have been left behind in favor of providing assistance for crop and livestock production loss rather than for land rehabilitation and natural resources degradation. Some have suggested that the use of permanent mandatory funding could be expanded beyond production to include land rehabilitation assistance. Others point out that permanent mandatory funding would likely require offsets under the current budgetary rules.

Restrictions on Funding

Congress occasionally restricts funding for the agricultural land rehabilitation programs by a named disaster event (e.g., Hurricanes Michael and Florence), disaster event type (e.g., wildfires), year, or disaster declaration. Disaster declarations are frequently limited to major disasters declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act, 42 U.S.C. §§5121-5207).³⁰ These restrictions are included to direct USDA fund distribution or are related to budget scorekeeping requirements.³¹

Since emergency agricultural land rehabilitation programs do not normally require a federal disaster declaration from either the President or a state official, the Stafford Act requirement can become a limiting factor in the way agricultural land rehabilitation programs work, potentially limiting assistance to fewer natural disaster events. For example, droughts are traditionally not declared as major disaster events under the Stafford Act.³² However, droughts are one of the eligible natural disasters for land rehabilitation programs—primarily to assist livestock producers to provide water to animals. Since agricultural land rehabilitation program funds are typically available until expended, the Stafford Act requirement, as well as other event- or year-specific requirements, also limits what areas may receive future assistance with any remaining funding.

For example, the FY2016 appropriated levels for agricultural land rehabilitation programs classify only a portion of the funding provided as disaster relief and therefore limited to major disasters declared pursuant to the Stafford Act. The remaining funds are not subject to a Stafford Act declaration and may be used according to the authorities of the program.

Mitigation

Another potential issue for federal land assistance programs is mitigation. Mitigation actions are steps taken to reduce risk before a natural disaster occurs. Currently, one mitigation program exists for emergency agricultural land assistance—the EWP floodplain easement program (described above). This program purchases floodplain easements on agricultural land that has a history of flooding (2 of the previous 10 years). Under the program, the land is permanently taken out of production and restored to a natural function. This program has been authorized since 1997. Prohibitions in prior year appropriations acts have limited available funding for the program. Initially, most of the purchased floodplain easements were underdeveloped agricultural lands and a small portion that included rural residences or other structures. According to USDA, in recent years, the number of easements on urban and suburban land with residences has significantly increased.³³

Some have questioned the use of federal restoration funds in areas with a high risk of damage from natural disasters, arguing that it encourages poor land use decisions. While the alternative of mitigation can potentially reduce the future cost of federal assistance, the initial cost of the permanent easement and restoration is sometimes viewed as too expensive.³⁴