RULES AND REGULATIONSRULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 138e]
Agricultural Conservation Easement Purchase Program
[27 Pa.B. 6782] The Department of Agriculture (Department), Bureau of Farmland Protection, amends Chapter 138e (relating to agricultural conservation easement purchase program).
The amendments are offered under authority of section 15 of the Agricultural Area Security Law (act) (3 P. S. § 915), which requires the Department to promulgate regulations necessary for the efficient, uniform and Statewide enforcement of the act. That same section allows for the use of interim guidelines by the Department until no later than December 31, 1997, by which time the Department is to have regulations in place to supplant the interim guidelines.
The interim guidelines permitted under section 15 of the act were published at 25 Pa.B. 5253 (November 25, 1995) as the ''Interim Guidelines for Implementation of the Agricultural Area Security Law'' (Interim Guidelines), and have been used by the Department to effectively implement various provisions of the act with respect to which there were no attendant regulations or with respect to which regulations had been rendered inadequate as a result of statutory amendment.
These final-form regulations accomplish two objectives: 1) They supplant the various provisions of the Interim Guidelines with identical regulatory provisions; and 2) They accomplish an updating and streamlining of the Interim Guidelines to reflect the experience of the Department in administering the Agricultural Conservation Easement Purchase Program to date.
Comments
Notice of proposed rulemaking was published at 27 Pa.B. 3751 (July 26, 1997) and provided for a 30-day public comment period.
Comments were received from the House Agriculture and Rural Affairs Committee (House Committee), the Minority Chairperson of the House Committee (Minority Chairperson), the Independent Regulatory Review Commission (IRRC) and the Pennsylvania Builders Association (PBA).
Comment: The House Committee suggested that § 138e.3 (relating to definitions) be revised to include the definition of ''agricultural security area'' from section 3 of the act (3 P. S. § 903). IRRC also raised this comment, noting the use of this term in § 138e.16(a)(1) (relating to minimum criteria for applications).
Response: The Department has made the suggested addition in the final-form regulations.
Comment: The House Committee expressed concern over the definition of ''conservation plan'' in § 138e.3. The primary concern was with the requirement that the plan have a ''nutrient management component.'' The House Committee noted there is no authority in the act to require the implementation of a nutrient management plan as a prerequisite to the sale of an agricultural conservation easement. A separate statute, the Nutrient Management Act (3 P. S. §§ 1701--1718), sets forth the circumstances under which a nutrient management plan is required. The House Committee believed the requirement of a nutrient management component in a conservation plan might be interpreted as requiring a landowner to develop a nutrient management plan that would not otherwise have been required under the Nutrient Management Act.
The House Committee also noted references to ''nutrient management'' in proposed §§ 138e.15(e)(4)(iii), 138e.61(b)(9), 138e.70(b)(6) and 138e.241, and suggested consideration be given to modifying the definition of ''nutrient management plan'' or deleting references to nutrient management.
Response: Section 14.1(d)(1)(iii) of the act (3 P. S. § 914.1(d)(1)(iii)) requires consideration be given to nutrient management practices in assessing the stewardship of the land with respect to which an agricultural conservation easement purchase is proposed. In light of this requirement, the Department declines to remove the references to nutrient management described in the two preceding paragraphs. The Department agrees the regulations should not require a landowner to develop a nutrient management plan if the plan is not required under the Nutrient Management Act. Rather than deleting references to ''nutrient management'' in the final-form regulations, though, the Department has revised the definition of ''conservation plan'' in § 138e.3 of the final-form regulations to describe the required nutrient management component of the plan.
Comment: The House Committee suggested § 138e.3 be revised so the term ''farmland tract'' reads ''farmland tract or tract.'' IRRC concurred with this comment.
Response: The Department has implemented the House Committee's suggestion in the final-form regulations.
Comment: Proposed § 138e.14(4) (relating to county statement of purpose) provided that one of the purposes of a county agricultural land preservation program (county program) is to protect normal farming operations from complaints of public nuisance against normal farming operations. The House Committee noted this regulatory requirement predated the proposed rulemaking, but questioned whether it is appropriate or legal to impose this requirement on county programs. Although the House Committee noted section 11(b) of the act (3 P. S. § 911(b)) imposes a similar restriction with respect to public nuisance ordinances enacted by municipalities or political subdivisions, it did not feel this statutory provision justified the referenced regulatory language.
Response: The Department declines to revise or delete the requirement in § 138e.14(4). Section 15 of the act (3 P. S. § 915) grants the Department authority to adopt regulations necessary to promote the ''efficient, uniform and Statewide'' administration of the act. Section 11(b) of the act requires that political subdivisions protect normal farming operations in agricultural security areas from being legally defined as public nuisances. A county program is a creation of the county governing body. The requirement that a county program protect normal farming operations from complaints of public nuisance is consistent with the duty placed upon counties by section 11(b) of the act.
Comment: IRRC recommended deleting the comma that appeared in proposed § 138e.15(a) (relating to farmland ranking system).
Response: The Department implemented this recommendation in the final-form regulations.
Comment: IRRC noted the acronym ''LESA'' is used only once--in proposed § 138e.15(c)--and suggested deleting it and using only full words in its place.
Response: The acronym ''LESA'' is a well-known acronym used throughout this Commonwealth. Although the term ''Land Evaluation and Site Assessment'' is used only once, the Department believes the insertion of the acronym ''LESA'' following that term adds clarity for the benefit of those county program personnel who are affected by the final-form regulations. For this reason the Department declined to implement IRRC's suggestion.
Comment: IRRC recommended adding the phrase ''site assessment'' beneath ''clustering potential'' in the chart in proposed § 138e.15(c). This would be consistent with the other entries on that chart.
Response: The Department agrees the chart in proposed § 138e.15(c) is unclear. The ambiguity was the result of the format of the chart as it was published in the proposed rulemaking, rather than its substantive content. This chart has been revised in the final-form regulations, without adding or deleting language, to make it identical to the chart which appeared in the corresponding subsection of the Interim Guidelines, and which the Department submitted to the Legislative Reference Bureau for publication in the proposed rulemaking.
Comment: IRRC suggested the headings of proposed §§ 138e.15(d), (d)(4), (e)(1)(i)--(iii), (e)(3) and (4)--(6) be revised to include both the complete term and the acronym, as is done at proposed § 138e.15(c).
Response: The Department accepts IRRC's suggestion and has implemented it in the final-form regulations.
Comment: IRRC recommended deleting the word ''total'' from where it first appears in proposed § 138e.15(d)(3), for the reason this would add clarity to that paragraph.
Response: The Department believes the use of the word ''total'' is appropriate in each of the two instances it is used in this paragraph, and that implementing IRRC's suggestion would not add clarity. In addition, the Department has not encountered any confusion over the use of this word in this paragraph in the nearly 2 years it has administered the Interim Guidelines. For these reasons, the Department declined to implement IRRC's suggestion.
Comment: Both IRRC and the House Committee noted the use of the term ''commercial agriculture'' in proposed § 138e.15(e)(1)(iii) and (5)(iii), and suggested that term either be defined or replaced with the term ''normal farming operation.''
Response: The Department accepted the commentators' suggestion, and has replaced the term ''commercial agriculture'' with ''normal farming operations''--a term that is defined in § 138e.3 of the final-form regulations.
Comment: The PBA reviewed proposed § 138e.15 (e)(3)(ii) and (iv), and questioned the appropriateness of assigning a higher ranking to farmland in an area which has or will have access to public water and sewer, and assigning a higher ranking to farmland adjoining or in the area of nonagricultural uses. The PBA opined that the agricultural conservation easement purchase program should not be used as a tool to halt growth and economic development by purchasing easements in growth areas.
Response: Section 14.1(d)(1)(ii) of the act requires a county program to consider the likelihood that farmland will be converted to nonagricultural use in assessing whether to recommend the purchase of an agricultural conservation easement with respect to that farmland. The market for nonfarm use or development of the farmland is relevant in this consideration.
The farmland ranking system in § 138e.15 provides a county program with a basic framework addressing all of the topics which the act requires a county program to consider in determining whether to recommend the purchase of a particular agricultural conservation easement. A county program is then free to customize its county program to give greater proportional emphasis to those areas it feels are the most important. Although a county program must rank farmland on a 100 point scale, it has a great deal of flexibility in determining the emphasis it will put on land evaluation (between 40% and 70%), development potential (between 10% and 40%), farmland potential (between 10% and 40%) and clustering potential (between 10% and 40%). In addition, a county program is free to develop additional factors under each of the foregoing categories.
In § 138e.15, the least amount of emphasis a county program could put on a farmland tract's proximity to sewer and water lines, or its proximity to nonagricultural uses, in arriving at a numerical ranking for that tract would be 1%. This would occur if a county program contained 10 development potential factors (as it is permitted to do under § 138e.15(e)(3)(i)) and afforded only 10% of its overall ranking score to development potential (as it is permitted to do under § 138e.15(c)). Each of the 10 development potential factors would then account for 1% of the overall numerical ranking score.
Under § 138e.15, the greatest amount of emphasis a county program could put on a farmland tract's proximity to sewer and water lines, or its proximity to nonagricultural uses, in arriving at a numerical ranking for that tract would be 13.33%. This would occur if a county program contained only three development potential factors (the minimum required under § 138e.15(e)(3)(i)) and afforded 40% of its overall ranking score to development potential (as it is permitted to do under § 138e.15(c)). Each of the three development potential factors would then account for 13.33% of the overall numerical ranking score.
The Department believes proximity of a farmland tract to sewer and water lines and proximity of a farmland tract to nonagricultural uses are two good indicators--but certainly not the only indicators--of the development potential of that tract. The act requires a county program to give consideration to development potential in assessing whether to recommend the purchase of an agricultural conservation easement with respect to that tract. The Department believes § 138e.15 of the final-form regulations strikes a reasonable balance: it requires a county program to consider all of the factors prescribed by the act, but allows a county program to give the greatest emphasis to those factors which the county board determines are most important in that particular county. In light of the foregoing, the Department declines to revise this numerical ranking system in response to PBA's comment.
Comment: Both IRRC and the Minority Chairperson noted the use of the term ''productive farmland'' in proposed § 138e.15(e)(4)(ii), and asked whether that term refers to the capability of the land or its actual use. Both commentators requested this term be clearly defined.
Response: The term ''productive farmland'' refers to the actual use to which land is put--and not its potential. The Department believes the term is sufficiently clear in the context within which it is used. The term is followed by the clarifying phrase ''--harvested cropland, pasture and grazing land--.'' ''Harvested cropland'' is defined in § 138e.3, and relates to the use to which land is being put. Although the term ''pasture and grazing land'' is not defined, the Department is satisfied the term is commonly accepted as referring to the present use of land, rather than its potential use. In light of the foregoing, the Department declined to further define this term.
Comment: The House Committee noted that § 14.1(d)(1)(iii) of the act requires a county program consider the extent to which best land management practices are used in its evaluation of a prospective agricultural conservation easement purchase. In light of this statutory language, both IRRC and the House Committee recommended the word ''best'' precede ''land management practices'' in § 138e.15(e)(4)(iii).
Response: The Department agreed the recommended revision is consistent with the act, and has implemented it in the final-form regulations.
Comment: Both IRRC and the House Committee suggested the term ''optimum acreage'' be defined or otherwise clarified. This term is used in § 138e.15(e)(4)(iv).
Response: The Department accepted this suggestion and has deleted the term ''optimum acreage'' from § 138e.15(e)(4)(iv) of the final-form regulations and clarified that a county program must consider the acreage of a tract in determining its farmland potential under the farmland ranking system.
Comment: IRRC and the House Committee suggested the semicolon in § 138e.15(e)(5)(ii) be removed.
Response: The referenced semicolon has been removed from the final-form regulations.
Comment: Proposed § 138e.15(e)(5)(iii) required a county program consider--in evaluating the proposed easement purchase--the proximity of the proposed easement purchase to other lands already subject to the easements. Although that subparagraph addressed the possibility that nearby easements might be owned by the State, county, joint State/county or nonprofit land conservation organization, it did not address the possibility an agricultural conservation easement might be held by a unit of local government. This is provided for in the definition of ''agricultural conservation easement'' in section 3 of the act. The House Committee recommended § 138e.15(e)(5)(iii) be revised to address the possibility a unit of local government might own an agricultural conservation easement.
Response: The recommended revision has been implemented in the final-form regulations.
Comment: IRRC recommended the example in proposed § 138e.15(e)(6) be reworked from a narrative format into a tabular format.
Response: The Department declined to implement this recommendation. Although the Department agreed the table proposed by IRRC was clear and easy to follow, it believed the current narrative example more clearly describes the process by which an SA score is to be calculated.
Comment: The Minority Chairperson suggested that proposed § 138e.17 (relating to planing and development map) be revised to require that the map be an officially adopted map, to preclude the possibility that a farmland tract would be rejected from consideration for agricultural conservation easement purchase on the basis of a temporary or pending map that had not yet been adopted as the official map.
Response: The Department accepted this suggestion and has revised § 138e.17(a) of the final-form regulations accordingly.
Comment: IRRC noted that proposed § 138e.61(d) (relating to application) would require a color-coded soils map of the farmland tract being offered for agricultural conservation easement purchase, while proposed § 138e.91(1)(vi) (relating to recommendation for purchase) would require an uncolored soils map. IRRC recommended the Department review these two sections to determine whether they should be modified so that one soils map could meet the requirements of both sections.
Response: The Department declined to revise the separate requirements of the sections referenced in the comment. The referenced soils maps are required in two separate contexts. The color-coded map is required in the context of county board review of an agricultural conservation easement purchase application. The uncolored map is required in the context of State Board review of an easement purchase recommendation. The Department noted the section heading of proposed § 138e.91, ''application for review,'' erroneously described the function of the State Board and might cause a reader to confuse that section with the ''application'' referenced in § 138e.61. For this reason, the Department has retitled and revised § 138e.91, and revised § 138e.92 (relating to review and decision), to more accurately describe the function of the State Board.
Comment: Both IRRC and the House Committee noted the erroneous insertion of a comma in proposed § 138e.62 (relating to evaluation of application) and suggested it be removed.
Response: The Department has implemented this suggestion in the final-form regulations.
Comment: IRRC recommended revising the second sentence of proposed § 138e.66(a)(3) (relating to offer of purchase by county board) to delete language that also appears in the first sentence and add a beginning such as ''An example would be the landowner...''. IRRC believed this revision would add clarity.
Response: The Department declined to implement this suggested revision. Although the Department agrees the language of the second sentence restates language appearing in the first sentence, this repetition is by design, and should preclude any confusion.
Comment: The House Committee concluded proposed § 138e.67(f)(1) and (2) (relating to requirements of the agricultural conservation easement deed) did not belong within the context of the other material in that section, and suggested the substance of those paragraphs be set forth elsewhere in the final-form regulations.
Response: The Department accepted this suggestion and has set forth the substance of the referenced paragraphs in a new § 138e.72 (relating to transactions affecting ownership of easement).
Comment: In the context of its comment with respect to proposed § 138e.67, the House Committee suggested language be added to the final-form regulations to require that money restored to the Agricultural Conservation Easement Purchase Fund as a result of condemnation of an agricultural conservation easement be redirected to easement purchases in the county in which the condemnation occurred.
Response: The Department does not believe the act provides adequate legal authority for the Department to earmark funds returned to the Agricultural Conservation Easement Purchase Fund as the result of the condemnation of an agricultural conservation easement for expenditure for easement purchases in the county in which the condemnation occurred. For this reason, the Department declined to implement the House Committee's suggestion.
Comment: IRRC recommended paragraph (8) under proposed § 138e.70(c) (relating to summary report) be deleted and that § 138e.70(c) be revised to characterize the items listed in paragraphs (1)--(7) as comprising the minimum information to be included in the appendix of the summary report.
Response: The Department accepted this recommendation, and has implemented it in the final-form regulations.
Comment: IRRC recommended § 138e.71 (relating to notification of owners of land adjoining proposed easement purchase) be revised to specify a deadline by which a county board must notify owners of land adjoining a proposed agricultural conservation easement purchase of the State Board meeting at which the easement purchase is to be considered. IRRC also suggested the Department consider the same 14-day advance notice requirement § 138e.226(9) (relating to procedure for review of request to subdivide restricted land).
Response: The Department declined to implement these suggestions in the final-form regulations. Although § 138e.91(5) (relating to recommendation for purchase) of the final-form regulations requires a county board certify it has provided adjoining landowners adequate notice of the State Board meeting, the Department believes a measure of flexibility should be afforded a county board as to the appropriate time frame for this notice.
Comment: IRRC noted that proposed § 138e.91(1)(ii) required a ''narrative summary report'' as part of the summary report. IRRC could not discern whether the summary report referenced in this section is the same report which is described in detail in § 138e.70. If it is, IRRC recommended a cross reference to § 138e.70 so the county board will know what information to provide.
Response: The Department has deleted the term ''report'' from ''narrative summary report'' in § 138e.91(l)(ii) to clarify the summary is not intended to be the same ''summary report'' described in § 138e.70.
Comment: IRRC suggested proposed § 138e.91(1)(iii) be revised to clarify that the USGS map referenced in that section be a ''currently applicable'' USGS map that ''clearly and legibly'' shows the items specified.
Response: The Department accepted this suggestion, and has implemented it in the final-form regulations.
Comment: The House Committee suggested the phrase ''the approval or disapproval of'' be deleted from § 138e.226(9) (relating to procedure for review of request to subdivide restricted land). IRRC added the recommendation that, in the event the Department adopts the House Committee's suggestion, it also include language addressing whether the notice described in that provision would be required if the State Board intended to table consideration of the agricultural conservation easement purchase recommendation.
Response: The Department accepted the House Committee's suggestion, and has revised the final-form regulations accordingly. The Department declined to implement IRRC's suggested revision.
The Department believes § 138e.226(9) clearly states the degree of State Board consideration of an easement purchase recommendation which would trigger the requirement of advance notice: consideration of the approval or disapproval of the recommendation. In the few instances the State Board has tabled its consideration of an easement purchase recommendation, that action has not been a planned action on the meeting agenda. Notice that the State Board plans to consider a particular easement purchase at a particular meeting always leaves open the possibility that consideration will be tabled at that meeting. As a practical matter, if there is some mistake, deficiency, question or objection with respect to a particular easement purchase recommendation, Department personnel routinely raise and resolve that mistake, deficiency, question or objection with the county program before the recommendation is placed on the agenda for the State Board's consideration.
Comment: IRRC suggested § 138e.226(9) be revised to contain a provision requiring notification of owners of lands adjoining farmland under an agricultural conservation easement in the event the State Board intends to consider approving a subdivision of that restricted farmland.
Response: The Department declined to implement this suggestion. The State Board's approval of the subdivision of restricted land is but one of several approvals that would be required in order for the restricted farmland to be subdivided. The Department is satisfied the concerns of adjoining landowners regarding subdivision are more properly addressed before the local authorities charged with reviewing and approving or disapproving subdivision plans. In addition, adjoining landowners have the opportunity to appear before the State Board at the time that body considers the initial easement purchase recommendation. The Department is not inclined to extend, by regulation, the requirements imposed upon it by the Commonwealth Court's decision in Lenzi v. Agricultural Land Preservation Board, 602 A.2d 396 (1992) any further than are set forth in that decision.
Comment: The House Committee forwarded several general comments it received from Committee members and other Legislators. Suggestions were made that the Agricultural Conservation Easement Purchase Program place greater emphasis on the preservation of farm buildings, that it not allow restricted farmland to lie idle and that it compel landowners to use the money they receive from the sale of an agricultural conservation easement for purposes related to agricultural production in this Commonwealth.
Response: Although the Department will consider these comments from the Legislature as it administers the Agricultural Conservation Easement Purchase Program, it declines to attempt to implement any of the suggested changes in the final-form regulations. Each of the suggestions represents a pronounced change from the way the Department has administered the Program to date. In addition, the Department may be without statutory authority to implement these changes. On balance, the Department believes it advisable to consider these comments outside of the context of this final-form regulations.
On its own initiative, the Department modified several provisions in the final-form regulations to add clarity without enlarging the purpose of the proposed amendments. These revisions are described as follows:
The definition of ''applicant'' in § 138e.3 was revised to reflect the possibility an applicant might wish to donate an agricultural conservation easement.
Section 138e.64(a) (relating to appraisal) was revised to clarify that a county board may ordinarily expect to be reimbursed for the costs of appraising an agricultural conservation easement that is ultimately purchased.
Section 138e.70(b)(2) has been revised to make appropriate reference to ''soils available for agricultural production''--as the term is defined in § 138e.3.
Section 138e.70(c)(4) and (5) has been revised to reflect the Department's current practice of not requiring a crop report or livestock report unless the report is required under the county program.
Statement of Need
These final-form regulations are needed for the Department to comply with the statutory requirement that it supplant the Interim Guidelines with regulations by December 31, 1997, to update its regulatory authority to reflect changes to the act and to further the efficient, uniform and Statewide administration of the act. The final-form regulations are consistent with Executive Order 1996-1 (relating to regulatory review and promulgation).
Fiscal Impact
Commonwealth The final-form regulations will impose no costs and will have no fiscal impact upon the Commonwealth.
Political Subdivisions The final-form regulations will impose no costs and will have no fiscal impact upon political subdivisions.
Private Sector The final-form regulations will impose no costs and will have no fiscal impact on the private sector.
General Public The regulations will impose no costs and will have no fiscal impact upon the general public.
Paperwork Requirements
The regulations are not expected to result in an appreciable increase in paperwork.
Contact Person
Further information is available by contacting the Department of Agriculture, Attention: Raymond C. Pickering, Director, Bureau of Farmland Protection, Pennsylvania Department of Agriculture, 2301 North Cameron Street, Harrisburg, PA 17110-9408.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on July 16, 1997, the Department submitted a copy of the notice of proposed rulemaking published at 27 Pa.B. 3751 to IRRC and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Commit-tees with copies of the comments received as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House and Senate Committees on November 13, 1997, and were approved by IRRC on November 20, 1997, in accordance with section 5(c) of the Regulatory Review Act.
Findings
The Department of Agriculture finds that:
(1) Public notice of intention to adopt the regulations encompassed by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) Public comment period was provided as required by law and that the comments received were considered.
(3) The modifications that were made to these regulations in response to comments received do not enlarge the purpose of the proposal published at 27 Pa.B. 3751.
(4) The adoption of the final-form regulations in the manner provided in this order is necessary and appropriate for the administration of the authorizing statute.
Order
The Department, acting under authority of the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 138e, are amended by amending §§ 138e.1, 138e.2, 138e.11--138e.14, 138e.16, 138e.18--138e.20, 138e.41--138e.43, 138e.61, 138e.63, 138e.65, 138e.66, 138e.68, 138e.69, 138e.101--138e.103, 138e.201--1383.206, 138e.221--138e.225, 138e.241 and Appendix A; and by adding §§ 138e.21, 138e.44, 138e.71, 138e.104, 138e.207, 138e.227 and Appendix B to read as set forth that 27 Pa.B. 3751; and by amending §§ 138e.3, 138e.15, 138e.17, 138e.62, 138e.64, 138e.67, 138e.91, 138e.92 and 138e.226; and by adding §§ 138e.70 and 138e.72 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order, 27 Pa.B. 3751 and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify this order, 27 Pa.B. 3751 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
SAMUEL E. HAYES, JR.
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6385 (December 6, 1997).)
Fiscal Note: Fiscal Note 2-97 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART V-C. FARMLAND AND FOREST LAND
CHAPTER 138e. AGRICULTURAL CONSERVATION EASEMENT PURCHASE PROGRAM
GENERAL § 138e.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Agricultural Area Security Law (3 P. S. §§ 901--915).
Agreement or agreement of sale--A document executed by a landowner and the county board to purchase a specific agricultural conservation easement as part of the county board's recommendation for purchase, and that includes all of the materials referenced and incorporated into the agreement, in accordance with section 14.1(h)(8.2) of the act (3 P. S. § 914.1(h)(8.2)).
Agricultural conservation easement or easement--An interest in land, less than fee simple, which interest represents the right to prevent the development or improvement of the land for a purpose other than agricultural production. The easement may be granted by the owner of the fee simple to a third party or to the Commonwealth, to a county governing body or to a unit of local government. It shall be granted in perpetuity, as the equivalent of covenants running with the land. The exercise or failure to exercise any right granted by the easement will not be deemed to be management or control of activities at the site for purposes of enforcement of the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
Agricultural production--The production for commercial purposes of crops, livestock and livestock products, including the processing or retail marketing of the crops, livestock or livestock products if more than 50% of the processed or merchandised products are produced by the farm operator.
Agricultural security area--A unit of 250 or more acres of land used for the agricultural production of crops, livestock and livestock products under the ownership of one or more persons and designated as such by the procedures in the act or designated as such under the act of January 19, 1968 (1967 P. L. 992, No. 442) (32 P. S. §§ 5001--5012) prior to the February 12, 1989 effective date of the act of December 14, 1988 (P. L. 1202, No. 149), by the governing body of the county or governing body of the municipality in which the agricultural land is located on the basis of criteria and procedures which predate February 12, 1989: provided that an owner of land designated as such under the authority of the act of January 19, 1968 (1967 P. L. 1992, No. 442) may withdraw the land from an agricultural security area by providing written notice of withdrawal to the county governing body or governing body of the municipality in which the land is located within 180 days of February 12, 1989.
Agricultural value--The sum of the following:
(i) The farmland value determined by the applicant's appraisal.
(ii) One-half of the difference between the farmland value determined by the State or county board's appraiser and the farmland value determined by the applicant's appraiser if the farmland value determined by the State or county board's appraiser exceeds the farmland value determined by the applicant's appraiser.
Allocation--The State Board's designation of funds to eligible counties under section 14.1 of the act. An allocation is an accounting procedure only and does not involve certifying, reserving, encumbering, transferring or paying funds to eligible counties.
Annual easement purchase threshold--An amount annually determined by the State Board which equals at least $10 million to be allocated among eligible counties.
Applicant--A person offering to convey an easement on a farmland tract.
Appropriation--The irrevocable commitment of a specific amount of money by the county governing body exclusively for the purchase of easements.
Comparable sales--Market sales of similar land. In locating comparable sales, first priority will be given to farms within the same municipality as the subject land. The second priority will be farms located within other municipalities in the same county as the subject land. The lowest priority will be given to farms located outside the same county as the subject land.
Conservation plan--A plan describing land management practices which, when completely implemented, will improve and maintain the soil, water and related plant and animal resources of the land. A conservation plan shall include the following:
(i) An installation schedule.
(ii) A maintenance program.
(iii) A nutrient management component consisting of a statement of whether a nutrient management plan required under the Nutrient Management Act (3 P. S. §§ 1701--1718) and, if required, confirmation that a plan is in place or will be in place prior to conveyance of the agricultural conservation easement. If a nutrient management plan is not required under the Nutrient Management Act, the nutrient management component shall consist of a description of the amounts and types of nutrients generated on the farmland tract and a description of any current and planned measures or procedures for containment, use, disposal or other disposition of the nutrients described.
Contiguous acreage--All portions of one operational unit as described in the deed whether or not the portions redivided by streams, public roads, bridges, and whether or not described as multiple tax parcels, tracts, purparts, or other property identifiers. The term includes supportive lands such as unpaved field access roads, drainage areas, border strips, hedgerows, submerged lands, marshes, ponds and streams.
Contract of sale--A legally enforceable agreement in a form provided by the State Board obligating the landowner to sell, and the Commonwealth or a county, or both, to purchase an agricultural conservation easement on a specified farmland tract.
County board--The county agricultural land preservation board as appointed by the county governing body under the act.
County fiscal year--The period from January 1 through December 31 of a particular calendar year.
County governing body--The county board of commissioners or, under home rule charters, another designated council of representatives.
County matching funds--Money appropriated by the county governing body for the purchase of easements.
County program--A county agricultural land preservation program for the purchase of easements authorized and approved by the county governing body, and approved by the State Board under section 14.1(a)(3)(xi) and (xiv) of the act.
Crops, livestock and livestock products--The term includes:
(i) Field crops, including corn, wheat, oats, rye, barley, hay, potatoes and dry beans.
(ii) Fruits, including apples, peaches, grapes, cherries and berries.
(iii) Vegetables, including tomatoes, snap beans, cabbage, carrots, beets, onions and mushrooms.
(iv) Horticultural specialties, including nursery stock ornamental shrubs, ornamental trees and flowers.
(v) Livestock and livestock products, including cattle, sheep, hogs, goats, horses, poultry, furbearing animals, milk, eggs and furs.
(vi) Timber, wood and other wood products derived from trees.
(vii) Aquatic plants and animals and their by-products.
Crops unique to the area--The term includes crops which historically have been grown or have been grown within the last 5 years in the region, and which are used for agricultural production in the region. For example, orchard or vineyard crops that have historically been produced in a particular county might be considered crops unique to the area.
Curtilage--The area surrounding a residential structure used for a yard, driveway, onlot sewerage system or other nonagricultural purposes.
Department--The Department of Agriculture of the Commonwealth.
Easement value--The difference between the nonagricultural value and agricultural value of a farm. If solely the county or State appraisal is used, nonagricultural value and agricultural value are equal to market value and farmland value, respectively. If the landowner obtains an independent appraisal, nonagricultural value and agricultural value shall be calculated according to section 14.1(f) of the act.
Economic viability of farmland for agricultural production--The capability of a particular tract of restricted land, other than a tract of 2 acres or less upon which construction and use of the landowner's principal residence or housing for seasonal or full-time farm employes is permitted under section 14.1(c)(6)(iv) of the act, to meet the criteria in § 138e.16(a) (relating to minimum criteria for applications).
Eligible counties--Counties whose county programs have been approved by the State Board. For the purpose of annual allocations, an eligible county shall have its county program approved by the State Board by January 1 of the year in which the annual allocation is made. Counties of the first class are not eligible under any circumstances.
Encumber--The reservation by the Commonwealth or a county of previously-allocated funds to pay all or part of the costs of purchasing a specific easement under a specific agreement of sale.
Farm--Land in this Commonwealth which is being used for agricultural production as defined in the act.
Farmland tract or tract--Land constituting all or part of a farm with respect to which easement purchase is proposed. A farmland tract may consist of multiple tracts of land that are identifiable by separate tax parcel numbers, separate deeds or other methods of property identification.
Farmland value--The price as of the valuation date for property used for normal farming operations which a willing and informed seller who is not obligated to sell would accept for the property, and which a willing and informed buyer who is not obligated to buy would pay for the property.
Fund--The Agricultural Conservation Easement Purchase Fund established by section 7.2 of the act of June 15, 1982 (P. L. 549, No. 159) (3 P. S. § 1207.2).
Grant funds--Funds allocated to a county by the State Board under section 14.1(h)(2) and (5)(ii) of the act, the expenditure of which is not contingent upon the appropriation and expenditure of county matching funds.
Grantee--The person or entity to whom an easement is conveyed under the act.
Grazing or pasture land--Land, other than land enrolled in the USDA Conservation Reserve Program, used primarily for the growing of grasses and legumes which are consumed by livestock in the field and at least 90% of which is clear of trees, shrubs, vines or other woody growth not consumed by livestock.
Harm the economic viability of the farmland for agricultural production--To cause a particular tract of restricted land to fail to meet the criteria in § 138e.16(a) or to create, through subdivision, a tract of restricted land, other than a tract of 2 acres or less upon which construction and use of the landowner's principal residence or housing for seasonal or full-time farm employes is permitted under section 14.1(c)(6)(iv) of the act, that would fail to meet the criteria in § 138e.16(a).
Harvested cropland--Land, other than land enrolled in the USDA Conservation Reserve Program, used for the commercial production of field crops, fruit crops, vegetables and horticultural specialties, such as Christmas trees, flowers, nursery stock, ornamentals, greenhouse products and sod. The term does not include land devoted to production of timber and wood products.
Immediate family member--A brother, sister, son, daughter, stepson, stepdaughter, grandson, granddaughter, father or mother of the landowner.
LCC--Land Capability Class--A group of soils designated by either the county soil survey, as published by USDA-NRCS in cooperation with the Pennsylvania State University and the Department, or the Soil and Water Conservation Technical Guide maintained and updated by USDA-NRCS.
Land development--One of the following activities:
(i) The improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving a group of two or more residential buildings, whether proposed initially or cumulatively.
(ii) A subdivision of land.
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