[Federal Register Volume 59, Number 18 (Thursday, January 27, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-1683] [[Page Unknown]] [Federal Register: January 27, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE Agricultural Stabilization and Conservation Service 7 CFR Part 703 RIN 0560-AD59 Wetlands Reserve Program AGENCY: Agricultural Stabilization and Conservation Service, USDA. ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY: Title XII, section 1237 of the Food Security Act of 1985, as amended, was amended by the Omnibus Budget Reconciliation Act of 1993 to specify the number of acres the Secretary of Agriculture shall enroll in the Wetlands Reserve Program (WRP). This interim rule amends the regulations governing the WRP to comply with statutory changes; expand the number of participating States from 9 States to 20 States; revise the process by which the Agricultural Stabilization and Conservation Service (ASCS) enrolls acreage in the WRP; and provide other changes based on experience in administering the 1992 Pilot WRP. DATES: Effective Date: Interim rule effective January 27, 1994. Comments: Comments must be received on or before February 28, 1994, in order to be assured of consideration. ADDRESSES: Comments should be mailed to James R. McMullen, Director, Conservation and Environmental Protection Division, ASCS, P.O. Box 2415, room 4714-S, Washington, DC 20013-2415; telephone 202-720-6221. Comments received may be inspected between 9 a.m. and 4 p.m., Monday through Friday, except holidays, in room 4714, South Agriculture Building, United States Department of Agriculture, 14th Street and Independence Avenue, SW., Washington, D.C. FOR FURTHER INFORMATION CONTACT: Lois Hubbard, Conservation and Environmental Protection Division, ASCS, P.O. Box 2415, room 4721-S, Washington, DC 20013-2415; telephone 202-720-9563. SUPPLEMENTARY INFORMATION: Executive Order 12866 This interim rule was submitted to the Office of Management and Budget for review under Executive Order 12866. Regulatory Flexibility Act It has been determined that the Regulatory Flexibility Act is not applicable to this rule because ASCS is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rule making with respect to the subject matter of this rule. Environmental Evaluation It has been determined by an environmental evaluation that this action will not have any significant adverse impact on the quality of the human environment. Therefore, an environmental impact statement or environmental assessment is not needed. Copies of a final environmental evaluation are available upon request. Executive Order 12372 This program/activity is not subject to the provisions of Executive Order 12372 because it involves direct payments to individuals and not to State and local officials. See notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983). Federal Domestic Assistance Program The title and number of the Federal Domestic Assistance Program, as found in the Catalog of Federal Domestic Assistance, to which this rule applies are: Wetlands Reserve Program--10.072. Paperwork Reduction Act The information collection requirements of this interim rule at 7 CFR part 703 have been submitted to the Office of Management and Budget for expedited approval under provisions of 44 U.S.C. chapter 33. Approval of the forms is requested by February 1, 1994. The public reporting burden for the information collections that would be required for compliance with these regulations is estimated to average 39 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Executive Order 12778 This interim rule has been reviewed in accordance with Executive Order 12778. The provisions of this interim rule are not retroactive and preempt State and local laws to the extent such laws are inconsistent with the provisions of this interim rule. Before an action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded program participants at 7 CFR part 780 must be exhausted. Discussion of Program The current regulations in 7 CFR part 703, published as a final rule on June 4, 1992 (57 FR 23908), implemented the 1992 pilot WRP, which is authorized by title XII of the Food Security Act of 1985, as amended (1985 Act). Under the WRP, ASCS will purchase easements, in lump-sum payments, from persons owning cropland who voluntarily agree to restore and protect farmed wetlands, prior converted croplands, substantially altered lands, and eligible adjacent acres. Fund and acreage allocations will be provided to States based on landowner interest and other factors as determined by the Deputy Administrator, State and County Operations, ASCS, in consultation with the Soil Conservation Service and the Fish and Wildlife Service. Land eligible for enrollment in the WRP includes farmed wetlands, prior converted croplands, but not lands converted after December 23, 1985, or substantially altered lands, together with adjacent lands on which the wetlands are functionally dependent so long as the likelihood of successful restoration of such land and the wetland values merit inclusion in the program taking into account the cost of restoring the wetlands. ASCS is also permitted to include in the program: (1) Farmed wetlands, prior converted croplands, or substantially altered lands and adjoining lands which are enrolled in the Conservation Reserve Program (CRP), as authorized by title XII of the 1985 Act, with the highest wetland functions and values and that are likely to return to production at the end of the CRP contract; (2) Other wetlands that would not otherwise be eligible if it is determined that inclusion in the program would add to the value of the easement; and (3) Riparian areas that link wetlands which are protected by easements or by some other device or circumstance that achieves the same purpose as an easement. Landowners are not eligible to receive funding under both the Emergency Conservation Program (ECP) and the WRP on the same acreage. ECP payments received on acreage offered for WRP must be refunded, provided the ECP practice is still within its lifespan provisions, before any WRP payment will be disbursed. This interim rule does not impact the Emergency Wetlands Reserve Program as authorized by the Emergency Supplemental Appropriations for Relief From the Major, Widespread Flooding in the Midwest Act of 1993 (Pub. L. 103-75). Statutory Changes During fiscal year 1992, WRP was authorized in the following States: California, Iowa, Louisiana, Minnesota, Mississippi, Missouri, New York, North Carolina, and Wisconsin. Section 1237 of the 1985 Act was amended by the Omnibus Budget Reconciliation Act of 1993 to specify that the Secretary shall enroll in the WRP a total of not less than 330,000 acres by the end of 1995 and a total of not less than 975,000 acres during 1991 through 2000. Congress has appropriated $66,675,000 to be used to enroll no more than 75,000 acres in fiscal year 1994. This interim rule amends 7 CFR part 703 for WRP to: (1) With respect to fiscal year 1994 only, identify enrollment availability in 20 States, including the nine States in the fiscal year 1992 pilot program; (2) Provide for the appraisal for easements by licensed appraisers who are also approved by ASCS; and (3) Make other changes based on experience gained from administering the pilot WRP in fiscal year 1992. List of Subjects in 7 CFR Part 703 Administrative practices and procedures, Appraisals, Compliance procedures, Easements, Natural resources, Technical assistance, Wetlands Reserve Plan of Operations (WRPO). Accordingly, 7 CFR part 703 is amended as follows: PART 703--WETLANDS RESERVE PROGRAM 1. The authority citation for 7 CFR part 703 is revised to read as follows: Authority: Public Law 99-198, 107 Stat. 739; 16 U.S.C. 3837 et. seq. 2. Section 703.1 is revised to read as follows: Sec. 703.1 Applicability. (a) The regulations in this part govern the Wetlands Reserve Program (WRP). For fiscal year 1992 only, the WRP shall be available to producers in California, Iowa, Louisiana, Minnesota, Mississippi, Missouri, New York, North Carolina, and Wisconsin. For fiscal year 1994 only, the WRP shall be available in these nine States and in Arkansas, Illinois, Indiana, Kansas, Nebraska, Oregon, South Dakota, Tennessee, Texas, Virginia, and Washington. These states have been determined to have a high incidence of: (1) Significant acreage of hydric cropland; (2) Potential capacity of restoration; (3) Diversity in kinds of wetlands; or (4) Substantial benefits for migratory birds and other wildlife. (b) Under the WRP, ASCS will accept voluntary offers of acreage for the purchase of easements from eligible persons who have eligible land with respect to which they agree to restore and protect farmed wetlands, prior converted croplands, or substantially altered lands, and eligible adjacent lands. Such voluntary easements will be for the purpose of restoring the hydrology and vegetation and protecting the functions and values of wetlands for wildlife habitat, water quality improvement, flood water retention, ground water recharge, open space, aesthetic values, environmental education, and other values determined appropriate by ASCS. Sec. 703.2 [Amended] 3. In Sec. 703.2, paragraph (f)(1) is amended by removing the words ``cost of the restoration'' and adding in their place, the words ``costs of restoration and of acquiring the easement'', and paragraph (f)(2) is amended by inserting the word ``not'' after the word ``will''. 4. Section 703.3(b) is amended by: A. Revising the definitions of ``Bid'', ``Non-permanent easement'', ``Participant'', and ``Permanent easement'', and B. Adding ``Appraisal'', ``Preliminary plan'', and ``Substantially altered lands'' to read as follows: Sec. 703.3 Definitions. * * * * * (b) * * * * * * * * Appraisal means the agriculture value of the easement area on an ``as is'' bases as determined by an appraiser licensed by the State in which the appraisal is made and who is also approved by ASCS. * * * * * Bid, for the 1992 Pilot Program, unless the context indicates otherwise, means the total payment requested by the owner for granting an easement. * * * * * Non-permanent easement means a temporary deed restriction that is acquired by ASCS from an eligible landowner that requires the protection and maintenance of wetland restoration on designated acreage. Participant means a landowner who has an approved contract. Permanent easement means a deed restriction that lasts through perpetuity, acquired by ASCS from an eligible landowner, and which requires the protection and maintenance of wetland restoration practices on designated acreage. * * * * * Preliminary plan means a plan jointly developed by a landowner, SCS, and FWS to provide the landowner with an estimate of the extent and cost of restoration activities, and to obtain adequate information to prioritize intentions to participate. * * * * * Substantially altered lands means lands which have not been and are not now wetlands, but with a high degree of certainty will likely develop wetland characteristics as a result of natural flooding. * * * * * 5. Section 703.5 is revised to read as follows: Sec. 703.5 Maximum acreage limitation. ASCS will attempt to enroll into the WRP during the 1991-2000 calendar years: (a) A total of not less than 330,000 acres through 1995; and (b) A total of not less than 975,000 acres through 2000. 6. Section 703.7 is amended by revising paragraphs (a)(1)(i), (a)(2)(i), (a)(2)(ii), and (a)(2)(iii) to read as follows: Sec. 703.7 Eligible land. (a)(1) * * * (i) Is wetland farmed under natural conditions, a farmed wetland, prior converted cropland except that converted lands shall not be eligible for enrollment if the conversion was not commenced prior to December 23, 1985, or substantially altered land; and (2) * * * (i) Have been annually planted or considered planted to an agricultural commodity in at least 1 of the 5 crop years 1986 through 1990, and have been capable of being cropped in 1992 or 1993; (ii) If enrolled under a CRP contract, or under a Federal or State wetland restoration program without an easement of at least 30 years, have been planted to an agricultural commodity 2 of the 5 crop years, 1981 through 1985; and (iii) Not be used as a mitigation site for Federal, State or local permit conditions or program participation requirements, or public or private mitigation banks. * * * * * Sec. 703.8 [Amended] 7. Section 703.8(a) is amended by revising ``Converted wetlands'' to read ``Prior converted croplands''. 8. Section 703.9(b) is revised to read as follows: Sec. 703.9 Transfer of lands from the CRP to WRP. * * * * * (b) The application for such transfer into the WRP is agreed to by ASCS. If such transfer is requested by the owner and agreed to by ASCS, then the CRP contract for the property shall be terminated or otherwise modified subject to such terms and conditions as are mutually agreed upon. Transfers from CRP to WRP after the second available WRP signup period will only be permitted if the owner agrees to refund all payments received under the CRP since the close of the second available WRP signup. Further, Emergency Wetlands Reserve Program signup periods are not considered WRP signup periods. 9. Section 703.10 is revised to read as follows: Sec. 703.10 Easement priority. (a) ASCS shall, to the extent practicable, in determining which areas to accept, take into account the cost of restoration, the cost of acquiring the easement, and environmental benefits which would be acquired through the purchase of the easement. (b) In evaluating the value of obtaining an easement, different weights may be given to the factors for determining the priority by ASCS to accomplish the goals of the WRP. (c) ASCS will rank the areas offered, based on environmental benefits relative to the government expenditure using the following factors for determining the priority: (1) Habitat for migratory birds, threatened or endangered species, fish, and other wildlife; (2) Wetland functions and values; (3) Location significance; (4) Wetland management requirements; (5) Physical conditions of the site including the likelihood of developing or restoring wetland characteristics; (6) Costs of restoration and of acquiring the easement; and (7) Other environmental or cost factors as determined appropriate by ASCS to accomplish the goals of the WRP that may also incorporate ASCS State office goals and objectives. 10. Section 703.11 is amended by revising the section heading and revising paragraphs (b)(1), (b)(2), (c), and (d) to read as follows: Sec. 703.11 Statement of intention to participate. * * * * * (b) * * * (1) Obtains a preliminary plan; and (2) Accepts the amount offered by ASCS in return for enrollment in WRP and agrees to other conditions for participation that may be required by ASCS, including the creation of an easement on the property. Such acceptance must be made no later than 15 calendar days after notification by ASCS of the purchase value of the easement unless a later date is agreed to by ASCS. The determination of which areas to accept shall be at the exclusive discretion of ASCS. (c) A person submitting a statement of intention to participate shall not be obligated to accept an easement. (d) An offer is considered accepted only if agreed to by all owners of the property or their duly authorized representative. 11. Section 703.12 is amended by: A. Revising paragraph (a) introductory text, B. Revising paragraphs (a)(1)(iv) and (a)(1)(v), C. Adding paragraph (a)(1)(vi), D. Revising paragraphs (a)(13), (a)(14), (a)(17), and (a)(18), and E. Adding paragraph (a)(19) to read as follows: Sec. 703.12 Obligations of the landowner. (a) All owners of land who accept ASCS' offer to enroll land in WRP shall: (1) * * * (iv) Reserve to ASCS the right to permit such compatible uses of the easement area as may be identified in the WRPO; (v) Reserve to the landowner those compatible uses identified in the WRPO that are permitted to be pursued by the landowner; and (vi) Be filed in the appropriate land records office within 12 months from the end of the applicable signup period, unless otherwise determined by the Deputy Administrator. If not filed, ASCS shall terminate the offer to enroll in WRP. * * * * * (13) Not plant for harvest an agricultural commodity on the enrolled land subsequent to the filing of an easement; (14) Not alter the vegetation, except to harvest already planted crops or forage, or the hydrology on such acres after the easement is filed, except as provided in the easement or WRPO; * * * * * (17) Refrain from taking any action on the easement area unless specifically authorized in the reserve interest easement or the WRPO; (18) Secure any necessary local, State and Federal permits prior to commencing restoration of the designated area; and (19) Not allow WRP easements or restoration to be used as a mitigation site for Federal, State or local permit conditions or program participation requirements, or public or private mitigation banks. * * * * * 12. Section 703.13 is amended by: A. Revising paragraph (c)(1), B. Removing paragraph (c)(4), C. Redesignating paragraph (c)(5) as paragraph (c)(4) and revising redesignated paragraph (c)(4), and D. Adding a new paragraph (e) to read as follows: Sec. 703.13 Payments to landowners by ASCS. * * * * * (c)(1) ASCS shall pay, after an easement is filed, a lump-sum amount for the easement as determined by ASCS on eligible land. For all easements, ASCS shall withhold a portion of the payments that might otherwise be made pending completion of the restoration plan for the property and ASCS may condition any payment on satisfactory progress toward completion of the plan. ASCS shall pay no more than 10 percent per year of the total purchase price for the easement pending completion of the restoration of the wetlands; * * * * * (4) No easement payment may be made which would exceed the total amount offered for the property and payments may only be made if the person on whose account the payment is to be made: (i) Has agreed to all terms and conditions of the program set out in this part; (ii) Accepted the amount offered on the standard ASCS-approved form for the WRP; and (iii) Is in full compliance with the terms and conditions of the WRP easement except to the extent that relief is authorized by this part and is approved under guidelines issued by the Deputy Administrator. * * * * * (e) Landowners may not receive payment under ECP and WRP on the same acreage. ECP payments shall be refunded, provided the ECP practice is within the required lifespan provisions, before a WRP payment will be disbursed, unless otherwise determined by the Deputy Administrator. 13. Section 703.15 is amended by revising paragraphs (a), (b)(2), and (d) to read as follows: Sec. 703.15 Wetlands reserve plan of operations. (a) Prior to filing an easement to enroll land in the WRP, the landowner must have obtained an ASCS approved WRPO for the land. * * * * * (b)(2) Specify the manner in which the farmed wetlands or prior converted croplands included in the enrolled land shall be restored, operated, and maintained to accomplish the goal of the program together with other practices which may be necessary or appropriate to accomplish the goals of the program, including, where appropriate: * * * * * (d) The WRPO must be signed by SCS, FWS, CD, ASCS, and the landowner before an easement is filed. If agreement between SCS and FWS at the local level is not reached within 20 calendar days of acceptance of the appraisal by the landowner, the WRPO shall be developed by the State Conservationist of SCS in consultation with FWS. * * * * * 14. Section 703.17(c) is revised to read as follows: Sec. 703.17 Transfer of land. * * * * * (c) Any transfer of the property prior to the filing of the easement shall void any statement of intention to participate and WRP contract, unless the new owner agrees to be a party to the intention to participate or the contract within 60 calendar days of the recordation of the deed transferring the land to the new owner, or as otherwise determined by the Deputy Administrator. 15. Section 703.25(c) is added to read as follows: Sec. 703.25 Appeals. * * * * * (c) An appraisal and supporting documentation used by ASCS in determining property value are considered confidential information, and shall only be disclosed as determined at the sole discretion of ASCS. Signed at Washington, DC, on January 14, 1994. Bruce R. Weber, Acting Administrator, Agricultural Stabilization and Conservation Service. [FR Doc. 94-1683 Filed 1-26-94; 8:45 am] BILLING CODE 3410-05-P