June 3, 2004

Andrea Fowler, USDA FOIA Officer
United States Department of Agriculture
Office of Communications
1400 Independence Avenue, SW
Room 440AA
Washington, DC 20250

Brigette Beaton, FOIA Officer
Natural Resources Conservation Service
1720 Peachtree Road N.W.
Suite 446 North
Altanta, GA 30309

Edward M. Biggers, Jr., Acting FOIA Officer
Natural Resources Conservation Service
5601 Sunnyside Ave.
Beltsville, MD 20705-5000

Barbara McLean, FOIA/PA Paralegal Specialist
USDA - Farm Service Agency
1400 Independence Ave. SW
Washington, D.C. 20250-1300

Diane Flores Korwin, FOIA/PA Paralegal Specialist
USDA - Farm Service Agency
1400 Independence Ave. SW
Mailstop 0506, Room 3623S
Washington, D.C. 20250-1300

Re:
Request for Records Related to the Environmental Quality Incentives Program

Dear USDA FOIA Personnel:

Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and United States Department of Agriculture ("USDA") regulations, 7 C.F.R. Part 1, Subpart A, Defenders of Wildlife hereby requests records from USDA relating to the Environmental Quality Incentives Program. The specific request is described below.

In connection with this request we seek the following records from USDA or any agency of USDA, including Natural Resources Conservation Service ("NRCS") and Farm Service Agency ("FSA"). We understand and intend the term "record" as defined at 5 U.S.C. §552(f)(2) to apply to each specific request.

Under USDA’s regulations, "agencies shall provide the record in any form or format the requester specifies, if the record is readily reproducible in that form or format." 7 C.F.R. Part 1.15. Pursuant to this authority, we additionally request that all data produced in response to the following requests be provided in a form or format that specifies the amount of EQIP funds distributed per individual contract, separately and individually for each contract; specifies both the Government share and producer share of any contracts, separately and individually for each contract; and specifies the full value of any contract in addition to annual contract obligations, separately and individually for each contract.

If any record requested contains information that constitutes a trade secret, is commercial or financial information obtained from a person, or is privileged or confidential under section 552 of title 5, United States Code, any reasonably segregable portion of a record shall be provided after deletion of the portions which are rightfully exempt under the law. The amount of information deleted shall be indicated on the released portion of the record. If technically feasible, the amount of information deleted shall be indicated at the place in the record where such deletion is made.

The amount of EQIP funds distributed per individual contract or any other form of agreement, separately and individually for each contract or agreement that totals $100,000 or more including both Government share and producer share, entered into since May 13, 2002, the date the Farm Security and Rural Investment Act or 2002 ("the Farm Bill") was signed into law, for any of the following practices, broken out individually by practice by individual contract or agreement:

Waste Management System

Waste Storage Facility

Composting Facility

Waste Treatment Lagoon

Waste Storage Pond

Waste Utilization

Manure Transfer

Waste Field Storage Area

Anaerobic Digester, Ambient Temperature

Anaerobic Digester, Controlled Temperature

Animal Mortality Facility

Aquaculture Pond

Closure of Waste Impoundments

Feed Management

Waste Facility Cover

The amount of EQIP funds distributed per agency project or initiative since May 13, 2002 for any of the following practices, broken out individually by practice:

Waste Management System

Waste Storage Facility

Composting Facility

Waste Treatment Lagoon

Waste Storage Pond

Waste Utilization

Manure Transfer

Waste Field Storage Area

Anaerobic Digester, Ambient Temperature

Anaerobic Digester, Controlled Temperature

Animal Mortality Facility

Aquaculture Pond

Closure of Waste Impoundments

Feed Management

Waste Facility Cover

Every EQIP contract or agreement, in full, including all attachments and supporting records, and every approved EQIP application, in full, including all attachments and supporting records, for practices cumulatively costing $100,000 or more, including both Government share and producer share, entered into since May 13, 2002, the date the Farm Security and Rural Investment Act or 2002 ("the Farm Bill") was signed into law, that include any of the following practices:

Waste Management System

Waste Storage Facility

Composting Facility

Waste Treatment Lagoon

Waste Storage Pond

Waste Utilization

Manure Transfer

Waste Field Storage Area

Anaerobic Digester, Ambient Temperature

Anaerobic Digester, Controlled Temperature

Animal Mortality Facility

Aquaculture Pond

Closure of Waste Impoundments

Feed Management

Waste Facility Cover

Every EQIP project or initiative description document, in full, including all attachments and supporting records, for practices cumulatively costing $100,000 or more, including both Government share and producer share, entered into since May 13, 2002 that include any of the following practices:

Waste Management System

Waste Storage Facility

Composting Facility

Waste Treatment Lagoon

Waste Storage Pond

Waste Utilization

Manure Transfer

Waste Field Storage Area

Anaerobic Digester, Ambient Temperature

Anaerobic Digester, Controlled Temperature

Animal Mortality Facility

Aquaculture Pond

Closure of Waste Impoundments

Feed Management

Waste Facility Cover

Every Comprehensive Nutrient Management Plan (CNMP) submitted to USDA or any agency or office of USDA or any other entity or individual in connection with any EQIP contract or agreement for practices cumulatively costing $100,000 or more, including both Government share and producer share, since May 13, 2002.

The number of CNMPs submitted to USDA or any agency or office of USDA or any other entity or individual in connection with any EQIP contract or agreement, by county, by state, and nationally.

Every state nutrient management plan containing records related to any EQIP contract or agreement for practices cumulatively costing $100,000 or more, including both Government share and producer share, developed since May 13, 2002.

Every Plan of Operations submitted to USDA, any agency or office of USDA, or any other entity or individual in connection with any EQIP contract or agreement for practices cumulatively costing $100,000 or more, including both Government share and producer share, since May 13, 2002.

Any record relating to EQIP from NRCS or any other agency of USDA to the National Pork Producers Council and any record relating to EQIP from the National Pork Producers Council to NRCS or any other agency of USDA, since January 1, 2002.

Any record relating to EQIP from NRCS or any other agency of USDA to any livestock organization (including, but not limited to: the National Cattlemen’s Beef Association, National Turkey Federation, American Egg Board, United Egg Producers, United States Poultry and Egg Association, National Broiler Council, National Aquaculture Association) and any record relating to EQIP from any livestock organization to NRCS or any other agency of USDA, since January 1, 2002.

Every environmental review or environmental analysis, in full, whether developed pursuant to the National Environmental Policy Act or any other law, regulation, rule, guidance, manual, or instructions, and whether developed on the national, state, regional, county, or local level, relating to EQIP, including environmental review records relating to individual contracts, state systems for ranking EQIP applications, and distribution of EQIP funds developed since May 13, 2002.

NRCS, in responding to concern that NRCS’s NEPA analysis of its EQIP rule is inadequate under the law, has pointed to a tiered analysis approach, stating that site-specific action proposed for EQIP funding would be appropriately analyzed in a NEPA record that is tiered to the national programmatic NEPA record. See, e.g., NRCS’s Supplement to the Environmental Quality Incentives Program Environmental Assessment, Feb. 2002, and NRCS Deputy Chief for Programs Jose J. Acevedo and NRCS Deputy Chief for Science and Technology Lawrence E. Clark’s letter dated March 2, 2004 to Susan Prolman, Government Relations Counsel, Defenders of Wildlife. This request seeks every environmental review record or environmental analysis relating to EQIP that has been developed or is being developed since the 2002 Farm Bill was signed into law on May 13, 2002, with the exception of the Environmental Quality Incentives Program Environmental Assessment and FONSI released in April, 2003. An example of a record responsive to this request is a NEPA environmental review document examining a site-specific action proposed for EQIP funding. Another example of a record responsive to this request is a NEPA environmental review document examining a state system developed to rank EQIP applications. These examples are given solely for illustrative purposes and are not intended to in any way limit the scope of this request.

The number and type (environmental assessment or environmental impact statement) of environmental reviews developed pursuant to the National Environmental Policy Act relating to EQIP, by county, by state, and nationally.

Any record explaining, providing guidance on, or otherwise relating to the question of when a comprehensive nutrient management plan is required for a producer, applicant, or farm to be eligible to receive EQIP funding.

Any record relating to state policies that do not permit the expenditure of EQIP funds for concentrated animal feeding operations and relating to state policies that do permit the expenditure of EQIP funds for concentrated animal feeding operations.

The FOIA requests above are in addition to earlier FOIA requests made by Defenders of Wildlife in a document dated November 20, 2003. On April 2, 2004, Defenders of Wildlife appealed NRCS’s response to the November 20, 2003 FOIA requests, as NRCS failed to fully supply the requested information, including, inter alia, information on the dollar amounts of EQIP funds promised, allocated, or dispersed in Fiscal Years 2002 and 2003 for manure-related practices, separately by practice for each individual contract. At this time, NRCS is late in responding to this appeal.

The requests above repeat the substance of our FOIA request dated November 20, 2003, and brings that request up into the present. NRCS staff have not responded legally or adequately to the initial November 20, 2003 FOIA request or its April 2, 2004 appeal. This may be due to NRCS’s professed confusion regarding how to comply with the FOIA in terms of providing appropriate information in a timely manner. See e.g. Telephone conversation between Brigette Beaton, NRCS FOIA Officer, and Susan Prolman, Defenders of Wildlife Government Relations Counsel (June 2, 2004).

Ultimately, Defenders of Wildlife seeks basic transparency and accountability so that our organization and the greater public can be sure that EQIP funds are being used in a manner that will improve environmental quality, rather than to fund practices that have the potential to degrade it. To give one example of the information we seek, Defenders of Wildlife has been informed that the Virginia NRCS office approved for Fiscal Year 2004 sixteen "animal waste" contracts totaling $2.402 million, with an average of $150,125 per contract. Given only this information, however, it is not possible to determine the amount per individual contract or what practices these funds, individually by contract, are funding. It is clear, however, that these "animal waste" contracts are substantially larger than the Fiscal Year 2003 average dollars per contract for all "Livestock- related practices" in Virginia ($31,764). Information regarding EQIP contracts and other records should be made public pursuant to this FOIA request. The Farm Bill makes clear that information available includes all information, except that which is "proprietary" under the FOIA's exemption (b)(4), and even then, payment information (including payment amounts and the names and addresses of recipients of payments) is available. Farm Security and Rural Investment Act of 2002, § 1244(b)(1)(A) & (C). If any record requested contains "proprietary" information, any reasonably segregable portion of a record shall be provided after deletion of the portions which are rightfully exempt under the law. The amount of

information deleted shall be indicated on the released portion of the record. If technically feasible, the amount of information deleted shall be indicated at the place in the record where such deletion is made. Since a "general statutory provision...cannot trump the clear language of the more specific," Dep’t of Housing and Urban Development v. Rucker, 535 U.S. 125, 134 (n.5)(2002), it holds that the information Defenders of Wildlife is seeking, regarding EQIP funding and other records, should be made available to the public. Defenders of Wildlife is primarily concerned with the potential negative environmental impacts of practices listed in requests one, two, three, and four, and with the use of EQIP funds for, at, or associated with the largest operations, concentrated animal feeding operations.

Pursuant to FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and USDA regulations, 7 C.F.R. Part 1.5(a), we request that all charges (e.g., search, review, and duplication fees) incurred in connection with this request be waived. We are entitled to a fee waiver because, as explained below, disclosure of the requested records is likely to contribute significantly to public understanding of government operations and activities, while the requester has no commercial interest that will be furthered by such disclosure. See Judicial Watch v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (reiterating that the FOIA fee waiver provisions are to be "liberally construed in favor of waivers for noncommercial requesters").

Defenders of Wildlife is a national nonprofit organization dedicated to the protection of native wild animals and plants in their natural communities. Defenders uses a combination of education, research, litigation, and advocacy to advance its mission. We intend to use the requested records: (1) to ensure EQIP funds are used in a manner that promotes environmental quality and optimizes environmental benefits; and (2) to share important information related to conservation with the public, including our more than 450,000 members and supporters, through our website, electronic news bulletins, quarterly magazine, and other publications, all of which are available free of charge to interested parties, about the. Thus, the requested records bear directly on identifiable operations and activities of the USDA and its agencies and offices, including NRCS and FSA, and other government entities, will contribute significantly to a broad public understanding of important matters relating to government functioning and compliance with federal laws, and will not serve any commercial interest on the part of Defenders. Under these circumstances, Defenders fully satisfies the criteria for a fee waiver.

Alternatively, even if Defenders does not qualify for a fee waiver, which we believe it clearly does, Defenders qualifies at a minimum for a reduced fee as a "representative of the news media." Under FOIA, "when records are not sought for commercial use and the request is made by ... a representative of the new media," any fees charged are to be limited to duplication costs only. 5 U.S.C. § 552(a)(4)(A)(ii)(II). In other words, such requests are not subject to search and review fees.

The term "representative of the news media" has been interpreted broadly to mean, "in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that

work to an audience." National Security Archive v. Department of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989). Under this definition, Defenders plainly qualifies as a representative of the news media. Defenders is involved in gathering information about the impacts of manure management structures and practices funded pursuant the EQIP rule on the natural environment, wildlife, and habitat, and in disseminating that information to our members, as well as to the general public and other interested parties. Such information is distributed through a range of media outlets, including the quarterly publication, Defenders, the Defenders’ online Defend Environment Network, and published papers and reports. Thus, in the event that Defenders is not entitled to a complete fee waiver, Defenders is entitled to a reduced fee limited only to the costs of duplication.

Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), and 7 C.F.R. Part 1.7(a), we hereby request that NRCS respond within twenty business days of receipt of this letter. Accordingly, we look forward to hearing from you promptly. In the meantime, please feel free to contact us if you have any questions.

Sincerely,

Bill Snape, Vice President and Chief Counsel

Susan Prolman, Government Relations Counsel

Aimee Delach, Senior Program Associate, Species Conservation

DEFENDERS OF WILDLIFE
1130 17th Street, NW
Washington, DC 20036

cc:

Bruce Knight
Chief
USDA/Natural Resources Conservation Service
14^th and Independence Avenue
South Agriculture Building
Washington, D.C. 20250

Jose Acevedo
Deputy Chief for Programs
USDA/Natural Resources Conservation Service
14^th and Independence Avenue
South Agriculture Building
Washington, D.C. 20250

Tom Christensen
Director, Animal Husbandry and Clean Water Response Division
USDA/Natural Resources Conservation Service
14^th and Independence Avenue
South Agriculture Building
Washington, D.C. 20250