Department of Agriculture--Conservation Security Program
Highlights
The Department of Agriculture was not authorized to make annual payments to Conservation Security Program participants that exceeded the annual payment limits imposed by 16 U.S.C. sect. 3838c(b)(2). Any payment that exceeded the annual payment limit is improper and should be promptly resolved.
B-307720, Department of Agriculture--Conservation Security Program, September 27, 2007
The Honorable Robert F. Bennett
Ranking Minority Member
Subcommittee on Agriculture, Rural Development,
Food and Drug Administration, and Related Agencies
Committee on Appropriations
United States Senate
Subject: Department of Agriculture—Conservation Security Program
Dear Mr. Bennett:
In April 2006, at your request, GAO issued a report examining increased cost estimates and cost controls for the Department of Agriculture's Conservation Security Program (CSP). GAO, Conservation Security Program: Despite Cost Controls, Improved USDA Management Is Needed to Ensure Proper Payments and Reduce Duplication with Other Programs, GAO-06-312 (
Our practice when rendering legal opinions is to obtain the views of the relevant federal agency to establish a factual record and to elicit the agency's legal position in the matter. GAO, Procedures and Practices for Legal Decisions and Opinions, GAO'06-1064SP (
BACKGROUND
Congress authorized CSP in Public Law 107-171[1] to provide assistance to agricultural producers who advance the conservation and improvement of the quality of soil, water, air, energy, plant and animal life. 16 U.S.C. sect. 3838a. CSP provides financial assistance to agricultural producers who meet defined standards of conservation and environmental management in their operations. See 16 U.S.C. sections 3838–3838c. Administered by the Natural Resources Conservation Service (NRCS), the program encourages qualifying producers to continue their high level of stewardship that meets the standards to qualify for CSP assistance. GAO-06-312, at 2.
Under CSP, the department and an eligible agricultural producer enter into a conservation security contract after agreeing to a conservation security plan. 16 U.S.C. sect. 3838a(e). Under these contracts, the agricultural producers agree to implement the plan in exchange for the department making annual payments to the producers. 16 U.S.C. sect. 3838a(b),(d). Contracts are categorized under a three-tier system under which the length of contract and payment scheme may vary. 16 U.S.C. sect. 3838a(d)(5). Tier I contracts are 5-year contracts and include conservation practices that address at least one significant resource of concern, such as water conservation, for a portion of an agricultural operation at an appropriate nondegradation standard. 16 U.S.C. sect. 3838a(d)(5)(A). Tier II contracts are 5- to 10'year contracts and include conservation practices that address at least one significant resource of concern for an entire agricultural operation at an appropriate nondegradation standard. 16 U.S.C. sect. 3838a(d)(5)(B). Tier
In fiscal year 2004, NRCS made payments under CSP contracts described as advance enhancement payments. See GAO-06-312, at 31–32. NRCS officials explained that because of lower than anticipated participation in CSP in fiscal year 2004, NRCS did not need all of the funding that Congress appropriated to the department to make payments under the program.
The department concedes that NRCS, in fiscal year 2004, made annual payments to 409 CSP participants that were above the statutory maximums allowed for their tiers. Shelton Letter, at 3–4, referring to GAO-06-312, at 31–32. The department asserts, however, that its regulations allowed NRCS to advance a portion of the annual contract payment in the first year of the CSP contract.
According to the department, the enhancement payment consists of two components—the benchmark portion, based upon efforts already undertaken and identified during a benchmark inventory process to determine program eligibility, and an other exceptional conservation efforts portion, based upon future efforts.
DISCUSSION
At issue here is whether NRCS, during the course of a year, may make payments to agricultural producers under a CSP contract that exceed the statutory limits on annual payments in the CSP authorizing act. In the CSP authorizing act, Congress provided that—
the Secretary shall make an annual payment, directly or indirectly, to an individual or entity covered by a conservation security contract in an amount not to exceed--(i) in the case of a Tier I conservation security contract, $20,000;
(ii) in the case of a Tier II conservation security contract, $35,000; or
(iii) in the case of a TierIII conservation security contract, $45,000.
16 U.S.C. sect. 3838c(b)(2)(A) (emphasis added).
Here, the language of section 3838c(b)(2) is clear: annual payments cannot exceed the amounts listed for each tier. When the language of a law is clear and unambiguous on its face, it is the plain meaning of that language that controls. See Connecticut National Bank v. Germain, 503
The department argues that its regulations allow NRCS to advance the enhancement payment portion. The department's regulation, 7 C.F.R. sect. 1469.23(d)(7), provides that payment for [e]nhancements above the minimum criteria for the resource concern . . . may be included in the first CSP payment.
The department also argues that because NRCS had enough money in fiscal year 2004 to cover advance payments, the department acted within its authority.
The appropriations act contains no language that could be construed to repeal the annual payment limits per contract within section 3838c(b)(2). Reading the appropriations act and section 3838c(b)(2) together, we find no difficulty in giving effect to both. The amounts available to the department in fiscal year 2004 were available for use only in a manner that was consistent with the CSP authorizing statute, 16 U.S.C. sections 3838–3838c. The fact that the level of participation in the CSP program did not require the $41,443,000 that Congress made available for obligation and expenditure does not allow the department to circumvent Congress's clear direction that the department make annual payments to agricultural producers that do not exceed prescribed amounts depending upon a participant's qualifying tier.
The department has conceded that NRCS made payments in excess of the annual limits in section 3838c(b)(2) in 409 CSP contracts. See
We note that the department has taken administrative measures to ensure that statutory annual payment limits are respected in the future. The department adjusted its CSP sign-up notices for subsequent fiscal years to state clearly that any annual contract payment, including any advance enhancement portion, would not exceed statutory limitations. See Notice, Natural Resources Conservation Service Conservation Security Program, 71 Fed. Reg. 6250, 6252 (
CONCLUSION
The department was not authorized to make payments that exceed the annual payment limits established by 16 U.S.C. sect. 3838c(b)(2). Accordingly, the 409 contract payments that exceeded the statutory annual limits were improper payments. To the extent that such improper payments will not be resolved with the fiscal year 2008 payment to CSP recipients, the department should take action to resolve any remaining improper payment balance yet to be recovered.
Sincerely yours,
Gary L. Kepplinger
General Counsel
DIGEST
The Department of Agriculture was not authorized to make annual payments to Conservation Security Program participants that exceeded the annual payment limits imposed by 16 U.S.C. sect. 3838c(b)(2). Any payment that exceeded the annual payment limit is improper and should be promptly resolved.
[1] Pub. L. No. 107-171, title II, subtitle A, sect. 2001, 116 Stat. 134, 223 (
[2] The other two parts are a base payment, 16 U.S.C. sect. 3838c(b)(1)(C)(i), and an amount calculated by reference to the county costs for operations, 16 U.S.C. sect. 3838c(b)(1)(C)(ii).
[3] For fiscal years 2002 through 2007, Congress directed that the department shall use the funds, facilities, and authorities of the Credit Commodity Corporation to carry out CSP. 16 U.S.C. sect. 3841.