[Federal Register Volume 59, Number 225 (Wednesday, November 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28598]


[[Page Unknown]]

[Federal Register: November 23, 1994]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Chapter VII and Part 703

RIN 0560-AD59

 

Wetlands Reserve Program

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: Title XII, section 1237 of the Food Security Act of 1985 (1985 
Act), 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 final rule: 
adopts, with changes, the interim rule published in the Federal 
Register on January 27, 1994; makes other minor modifications for 
clarity and ease of administration, and; revises the policy regarding 
the eligibility of certain land for enrollment in the WRP. In addition, 
this rule amends 7 CFR Chapter VII to reflect the abolishment of ASCS 
and the establishment of the Farm Service Agency in the recent 
Department of Agriculture reorganization.

EFFECTIVE DATE: November 23, 1994.

FOR FURTHER INFORMATION CONTACT: James R. McMullen, Farm Service 
Agency, P.O. Box 2415, room 4714-S, Washington, DC 20013-2415; 
telephone 202-720-6221.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This final rule was submitted to the Office of Management and 
Budget (OMB) for review under Executive Order 12866. It has been 
determined significant because of the need for interagency 
coordination.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because FSA is not required by 5 U.S.C. 553 or 
any other provision of law to publish a notice of proposed rulemaking 
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, neither an environmental impact 
statement nor environmental assessment is 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 final rule at 7 CFR 
part 703 have been approved through January 31, 1997, by OMB under 
provisions of 44 U.S.C. 33. 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 final rule has been reviewed in accordance with Executive 
Order 12778. The provisions of this final rule are not retroactive and 
preempt State and local laws to the extent such laws are inconsistent 
with the provisions of this final 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 an interim 
rule on January 27, 1994 (59 FR 3772), implemented the 1994 WRP, which 
is authorized by Title XII of the 1985 Act. Under the WRP, FSA 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 
land. 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, FSA, in consultation with 
the Natural Resource Conservation Service and the Fish and Wildlife 
Service. Land eligible for enrollment in the WRP includes farmed 
wetlands, prior converted croplands, but not land 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 and the cost of acquiring an easement. 
FSA is also permitted to include in the program:
    (1) Farmed wetlands, prior converted croplands, substantially 
altered lands, and 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 with respect to the 
same acreage. ECP payments received with respect to 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 final 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).

Discussion of Comments

    FSA received 4 letters containing 23 comments concerning the 
interim rule published January 27, 1994. Entities responding included 
national wildlife and conservation organizations and one State farm 
organization.
    Changes in this final rule from the interim rule of January 27, 
1994, are minor. Changes have been made for clarity, editorial 
purposes, and to facilitate the application of the regulations. In 
addition, reference has been added to the provisions in Sec. 703.6 with 
respect to the eligibility of foreign persons to participate in the WRP 
and provisions for eligible land have been revised in Sec. 703.7.
    A comment was received from one respondent who recommended that FSA 
use a more open process than what was used during the first WRP signup 
period. Specifically, ranking factors and weights and any State level 
modifications should be available and understandable. FSA had already 
adopted this policy, effective for the second signup period.
    Another respondent recommended that FSA mount a campaign to educate 
landowners about WRP. FSA has made significant efforts to educate 
landowners about WRP through formal public meetings, informal question 
and answer sessions, and other information activities, such as, press 
releases. Meetings were held with nongovernment organizations, 
including farm and commodity groups, conservation and environmental 
organizations, attorneys, lenders, and appraisers, where the 
organizations were encouraged to distribute information to their 
constituents.
    One respondent was pleased to see more explicit environmental 
criteria in the rule and more discretion given to State level Federal 
officials and resource professionals.
    Another respondent recommended that the Federal government help pay 
for the maintenance of the acreage enrolled in WRP. Neither the 1985 
Act nor the laws governing real estate acquisition by the Federal 
government provide authority to adopt this recommendation. Landowners 
will be fully informed by FSA personnel of maintenance requirements 
prior to filing the easement and the landowner may withdraw from the 
WRP, without the assessment of any penalty, at any time prior to the 
filing of the WRP easement.
    Several comments were received regarding the appraisal process. 
Respondents generally accepted the appraisal process. However, one 
respondent was concerned about the logistics of obtaining and paying 
for appraisals for all applicants. FSA will not appraise all sites on 
which an intention was submitted. Appraisals will be performed only on 
sites that are tentatively selected through the evaluation process and 
have been agreed to by the landowner.
    Another respondent believes that local governments will lose a 
source of revenue as property in WRP may be devalued. The respondent 
recommends the Federal government supplement local governments with the 
tax money that is lost. FSA has no authority to implement this 
recommendation. It should also be noted that in a number of cases, land 
enrolled in the WRP yields an increased land value.
    One respondent inquired about landowners requirements with capital 
gains tax on land entered into the WRP. FSA has no responsibilities 
regarding this and other tax issues. Landowners are advised to seek 
assistance from their attorney or State and Federal tax officials.
    The discussion that follows is organized in the same sequence as 
the final rule.

Section 703.3--Definitions

    For clarity, a definition for ``restoration'' has been added to 
read ``restoration means the restoration of both the hydrology and 
native vegetation that occurred on the site prior to the conversion of 
a wetland.

Section 703.7--Eligible land

    One respondent commented that easements should be accepted on lands 
where existing hydrologic conditions exist for wetlands to be restored 
or where such hydrologic conditions will be restored. FSA has 
previously adopted this provision.
    Another commented that Sec. 703.7(a)(1)(ii) needed to include the 
phrase ``and cost of acquiring the easement'' at the end of the 
sentence to be consistent with Sec. 703.2(f)(1). FSA agreed and has 
amended this section accordingly.

Section 703.9--Transfer of lands from the CRP to the WRP

    One respondent suggested the rule be modified to allow Water Bank 
Program (WBP) lands to be enrolled in the WRP similar to the process 
used for CRP. FSA does not have the authority to implement this 
recommendation. The 1985 Act includes references to land enrolled in 
the CRP, but not WBP acreage, as ``other eligible land.''

Section 703.12--Obligations of the Landowner

    Three respondents commented on the easement length. One recommended 
FSA modify the rule to allow the use of 30-year easements in States 
where permanent easements are prohibited; another recommended the 
duration of the easements should remain perpetual but allow for 
landowners to buy back land after 30 years if the purpose of the 
easement no longer exists; and the third recommended allowing farmers 
to choose between perpetual and long-term easements. Interest in WRP 
with permanent easements far exceeds the appropriation levels for the 
program; therefore, FSA will continue to give priority to permanent 
easements.
    One respondent commented in support of the easement filing 
deadline. However, FSA may need some flexibility to adjust the deadline 
period. FSA believes 12 months from the end of signup is adequate time 
to have all the appropriate administrative work completed for filing an 
easement. In exceptional cases, the regulation allows the Deputy 
Administrator, FSA, to authorize additional time for completion of the 
enrollment process.
    Another respondent recommended FSA convert from a reserve interest 
deed to a ``hybrid'' type of easement used by private nonprofit 
organizations which spells out specific land use restrictions as well 
as a general prohibition on incompatible uses and relies on continuous 
monitoring by accountable local partners to assure compliance. The 
respondent believes this approach results in the enrollment of higher-
quality wetlands by appealing to more landowners and it would yield 
greater conservation benefits than the current FSA approach. The 
respondent is skeptical of the ``top-down law enforcement'' approach to 
easement compliance.
    Substantial environmental benefits have been secured through the 
filing of permanent easements since fiscal year 1992 and interest has 
far exceeded enrollment authorities. FSA believes that the greater 
environmental benefits, if any, as proposed by the respondent will be 
minimal while significant losses in assurances that the acreage will be 
maintained will be suffered. Therefore, FSA did not adopt the 
recommendation.
    Another respondent commented that the drainage on acreage 
surrounding the WRP site should not be impeded. FSA has been assured by 
the technical agencies that plans will be developed with landowners to 
ensure the landowners conservation objectives are met while ensuring 
that no acreage will be enrolled that is not a viable wetland.
    Another respondent agreed with the provision that allows landowners 
to limit public access to the WRP site.

Section 703.13--Payments to Landowners by FSA

    One respondent commented that USDA administrative guidelines should 
make clear that the cost of land appraisals required by this rule will 
be paid with Federal funds even when a landowner eventually decides not 
to enroll in WRP. FSA has previously implemented this procedure.

Section 703.15--Wetlands Reserve Plan of Operations

    Respondents were generally in favor of the provisions in this 
section. However, one respondent inquired whether landowners would be 
able to sell mineral rights on acreage enrolled in WRP. FSA has 
determined that, providing the extraction of the minerals associated 
with the sale of the mineral rights is compatible with the wetland 
functions and values, landowners may continue to utilize the rights in 
the normal manner. However, if the rights are incompatible with the 
wetland site, the site would not be accepted into the program.

Section 703.25--Appeals

    One respondent thought that withholding appraisals and supporting 
documentation from the public was inappropriate. FSA added this 
provision to conform with guidelines established in 49 CFR part 24, 
Uniform Relocation Assistance and Real Property Acquisition for Federal 
and Federally Assisted Programs. Accordingly, no change has been made 
to this regulation.

Establishment of the Farm Service Agency

    Pursuant to Public Law 103-354, the Federal Crop Insurance Reform 
and Department of Agriculture Reorganization Act of 1994, the Secretary 
of Agriculture issued Secretary's Memorandum 1010-1, Reorganization of 
the Department of Agriculture, on October 20, 1994. That memorandum 
orders the abolishment of the Agricultural Stabilization and 
Conservation Service and the establishment of the Farm Service Agency, 
which assumes the functions previously performed by the Agricultural 
Stabilization and Conservation Service. This rule includes amendments 
to 7 CFR chapter VII which are necessary to bring agency regulations 
into alignment with the departmental reorganization.

List of Subjects in 7 CFR Part 703

    Administrative practices and procedures, Appraisals, Compliance 
procedures, Easements, Natural resources, Technical assistance and 
Wetlands Reserve Plan of Operations (WRPO).

    Accordingly 7 CFR Chapter VII and part 703 are amended as follows:
    1. The heading of 7 CFR chapter VII is revised to read as follows:
CHAPTER VII--FARM SERVICE AGENCY, DEPARTMENT OF AGRICULTURE
    2. In 7 CFR chapter VII, all references to ``Agricultural 
Stabilization and Conservation Service'' are revised to read ``Farm 
Service Agency'', and all references to ``ASCS'' are revised to read 
``FSA''.
    3. The interim rule published on January 27, 1994 (59 FR 3772), is 
adopted as final with the following changes set forth below, and part 
703 is further amended as follows:

PART 703--WETLANDS RESERVE PROGRAM

    A. The authority citation for 7 CFR part 703 continues to read as 
follows:

    Authority: 16 U.S.C. 3837 et seq.


Sec. 703.1  [Amended]

    B. In Sec. 703.1, the introductory paragraph (a) is amended by 
removing the words ``shall be'' in the second sentence and inserting 
the word ``was'' in their place, and paragraph (b) is amended by adding 
``riparian areas,'' after ``prior converted croplands,'' in the first 
sentence.
    C. Section 703.3 (b) is amended by adding the definition of 
``Restoration'' to read as follows:


Sec. 703.3  Definitions.

* * * * *
    (b) * * *
* * * * *
    Restoration means the restoration of both the hydrology and native 
vegetation that occurred on the site prior to conversion to a wetland.
* * * * *
    D. Section 703.6 is revised to read as follows:


Sec. 703.6  Eligible person.

    To be eligible to offer land for the WRP, a person must:
    (a) Be a U.S. citizen or otherwise meet the provisions in 7 CFR 
part 1498;
    (b) Be the owner of the eligible property for which enrollment is 
sought;
    (c) Have been the owner of such land for at least the preceding 12 
months prior to the end of the period in which the intent to 
participate is declared, as provided in this part, unless:
    (1) It is determined by FSA that the land was acquired by will or 
succession as a result of the death of the previous owner; or
    (2) It is determined by FSA that adequate assurances have been 
presented that the new owner of such land did not acquire such land for 
the purpose of placing it in the WRP.
    5. Section 703.7 is amended by revising paragraphs (a)(1)(i), 
(a)(2)(i) and (d)(2) 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, substantially altered lands, or any former wetland 
intensively managed for a food or forage crop; and
    (ii) Merits inclusion in the program based on the likelihood of 
successful restoration of the enrolled land and the resultant wetland 
values when considering restoration cost and the cost of acquiring the 
easement.
    (2) * * *
    (i) Have been annually planted or considered planted to an 
agricultural commodity or have produced any other crop intensively 
managed for food or forage as approved by the Deputy Administrator in 
at least 1 of the 5 crop years 1986 through 1990, and have been capable 
of being cropped in 1992 or 1993;
* * * * *
    (d) * * *
    (2) Land adjacent to the restored wetland, which would contribute 
significantly to the restoration of adjacent wetlands, but not more 
than 25 percent of the total easement area as needed to protect the 
functions and values of wetlands restored under this part, unless the 
Deputy Administrator determines a larger area is necessary to meet the 
objectives of the WRP. These areas are limited to buffer areas, 
inclusions, and noncropped natural wetlands;
* * * * *


Sec. 703.8  [Amended]

    6. Section 703.8(b) is amended by removing the words ``timber 
stands or''.


Sec. 703.13  [Amended]

    7. In Sec. 703.13, the introductory text of paragraph (a) is 
amended by adding the words ``after an easement is filed'' at the end 
of the first sentence.


Sec. 703.16  [Amended]

    8. Section 703.16 is amended by adding the words ``as previously 
determined by the technical agency'' at the end of the paragraph.

    Signed at Washington, DC, on November 10, 1994.
R.E. Rominger,
Acting Administrator, Farm Service Agency and Deputy Secretary, United 
States Department of Agriculture.
[FR Doc. 94-28598 Filed 11-22-94; 8:45 am]
BILLING CODE 3410-05-P