[Federal Register Volume 62, Number 221 (Monday, November 17, 1997)]
[Rules and Regulations]
[Pages 61215-61217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29996]


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DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 650


Protection of Wetlands

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Final rule.

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SUMMARY: Pursuant to Government Performance Results Act, the Natural 
Resources Conservation Service (NRCS) is removing obsolete, 
unnecessary, or redundant regulations from the Code of Federal 
Regulations. This action removes the regulations found at 7 CFR 650.26 
concerning the NRCS wetland technical assistance policy.

EFFECTIVE DATE: November 17, 1997.

FOR FURTHER INFORMATION CONTACT: Warren M. Lee (202) 720-3534.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This document does not meet the criteria for a significant 
regulatory action as specified in E.O. 12866.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because NRCS 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

    This final rule will have no significant effect on the human 
environment and is categorically exempt under 7 CFR 1b.3(a)(6), 
therefore neither an environmental assessment nor an environmental 
impact statement is required.

Paperwork Reduction Act

    This rule does not contain reporting or record keeping requirements 
subject to the Paperwork Reduction Act.

Background

    Pursuant to the Administration effort to review existing agency 
regulations and remove unnecessary regulations from the Code of Federal 
Regulations, the NRCS has determined that the regulation found at 7 CFR 
part 650.26, ``Protection of Wetlands,'' is unnecessary because the 
regulation addresses a matter of internal agency policy, does not 
regulate any member of the public, conflicts with agency implementation 
of the wetland conservation provisions of the Food Security Act of 
1985, as amended, 16 U.S.C. 3801 et seq., and utilizes a superseded 
classification of wetlands.

Executive Order 11990

    Wetlands provide fish and wildlife habitats, maintain ground water 
supplies and water quality, protect shorelines from erosion, store 
floodwaters and trap sediments, and provide recreational and 
educational opportunities. Historically, wetlands have been converted 
at a rapid rate with the concomitant loss of the functions and values 
that they provide to the Nation. In some cases, activities of the 
Federal government contributed to the loss of the Nation's wetlands. To 
minimize adverse impacts on wetlands resulting from Federally-sponsored 
activities, President Carter in 1977 issued an Executive Order to 
protect wetlands. Executive Order 11990 established the policy that, to 
the extent authorized by law, the Executive Branch would avoid direct 
or indirect support of new construction in wetlands wherever there 
exists a practicable alternative.
    Pursuant to the Soil Conservation and Domestic Allotment Act of 
1935, 16 U.S.C. 590a et seq., the Soil Conservation Service (SCS) of 
the United States Department of Agriculture provided technical 
assistance to landowners for the protection of natural resources on 
private lands. Technical assistance included the personnel and support 
resources needed to conduct planning and conservation practice survey, 
layout, design, installation and certification. Among activities 
conducted prior to 1977, SCS provided technical assistance related to 
the construction of drainage ditches and other structures that resulted 
in the conversion of wetlands.
    Section 6 of Executive Order 11990 requires agencies to issue or 
amend their existing procedures to comply with the policies of the 
order, and accordingly, SCS revised its policy regarding technical 
assistance in 1977. These changes restricted the situations in which 
SCS employees could provide technical assistance to clients related to 
new construction in wetlands. In 1979, SCS codified the wetland 
technical assistance policy at 7 CFR 650.26. SCS modified this 
regulation in 1982 to enable SCS employees to provide assistance for 
new construction in wetlands when denial of such assistance would lead 
to ``detrimental consequences on soil and water resources or on human 
welfare and safety.'' 47 FR 34111 (August 6, 1982).
    Since 1982, SCS updated its technical assistance policy several 
times, but such updates did not require amendments to the regulation at 
7 CFR 650.26. Pursuant to Departmental reorganization in 1994, SCS was 
abolished and the Natural Resources Conservation Service (NRCS) assumed 
most of the statutory and regulatory responsibilities of the SCS, 
including the provision of technical assistance on private lands.

The Conflict With the Wetland Conservation Provisions

    The wetland conservation provisions of the Food Security Act of 
1985 (the 1985 Act), as amended, 16 U.S.C. 3801 et seq., encourage 
participants in United States Department of Agriculture (USDA) programs 
to adopt land management measures that protect wetland functions and 
values by linking eligibility for USDA program benefits to farming 
practices on converted wetlands. In particular, the wetland 
conservation (WC) provisions of the 1985 Act provide that after 
December 23, 1985, a program participant is ineligible for certain USDA 
program benefits for the production of an agricultural commodity on a 
converted wetland, or after November 28, 1990, for the conversion of a 
wetland that makes the production of an agricultural commodity 
possible. The 1985 Act, however, affords relief to program participants 
who meet certain conditions identified under the 1985 Act by exempting 
such actions from the ineligibility provisions.
    The current version of the wetland technical assistance rule, 7 CFR 
650.26, allows NRCS to provide technical assistance to a producer that 
could place the producer in violation of the WC provisions. In 
particular, the rule allows NRCS personnel to provide technical 
assistance for certain construction in types 1 and 2 wetlands under the 
Circular 39 classification of wetlands. The wetland classification 
system in

[[Page 61216]]

Circular 39 was established by the Fish and Wildlife Service (FWS), 
United States Department of the Interior, and used by state and Federal 
agencies. Currently, the FWS and other agencies do not use Circular 39.
    Many types 1 and 2 wetlands correlate with the NRCS definition of 
``farmed wetlands''. A producer can be found ineligible for USDA 
program benefits if the drainage on farmed wetlands is increased beyond 
that which existed on or before December 23, 1985. Thus, under the 
current wetland technical assistance rule, NRCS could help design the 
drainage system that causes the producer to lose program benefits and 
also would violate Section 404 of the Clean Water Act if the drainage 
activities were not permitted by the Army Corps of Engineers.
    The current version of the wetland technical assistance rule also 
hinders the ability of NRCS to assist producers with WC provisions 
compliance. Since December 23, 1985, program participants are farming 
in a more environmentally-oriented manner, resulting in more wetlands 
remaining available to perform the myriad of functions and values for 
the Nation. Meeting the objectives of the WC provisions, however, has 
been difficult for some producers. Wherever possible, USDA has helped 
individual program participants address their unique resource concerns 
in a manner that meets the requirements of the WC provisions.
    The Federal Agriculture Improvement and Reform Act (the 1996 Act), 
enacted April 4, 1996, made several amendments to the WC provisions 
which were intended to increase USDA's ability to meet these producers' 
situations in a more flexible manner. These amendments provide 
producers who wish to convert a wetland with greater flexibility to 
mitigate the loss of wetland functions and values through restoration, 
enhancement, or creation of wetlands.
    The WC provisions provide that a person may remain eligible for 
USDA program benefits even if their action results in the conversion of 
a wetland if the wetland functions and values are adequately mitigated, 
as determined by NRCS, and the mitigation: is in accordance with a 
mitigation plan approved by NRCS; is in advance of, or concurrent with, 
the wetland conversion; is not at the expense of the Federal 
government; occurs on lands in the same general area of the local 
watershed as the converted wetlands; is on lands for which the owner 
has granted an easement to USDA, and recorded the easement on public 
land records; and provides the equivalent functions and values that 
will be lost as a result of the wetland conversion. A person may also 
remain eligible for USDA program benefits if the action has been 
permitted by the Army Corps of Engineers after December 23, 1985, via 
the individual permit process.
    This increased mitigation flexibility for producers creates 
confusion between NRCS responsibilities under the WC provisions and 
under the current technical assistance rules. Under the WC provisions, 
NRCS must approve a mitigation plan if the producer meets the 
requirements identified above, whether or not the impact to wetlands 
from the conversion activity could have been minimized or avoided. 
However, when NRCS delivers technical assistance, the current technical 
assistance rule applies. Accordingly, NRCS cannot provide technical 
assistance to a client for the conversion activity unless there is no 
practicable alternative to the construction and the proposed conversion 
actions includes all practicable measures to minimize harm to wetlands 
which may result from such use.
    Since 1987, USDA has identified the threshold characteristics that 
define: when a wetland has been manipulated sufficiently to make the 
production of an agricultural commodity possible; when a wetland is 
``converted;'' which conditions meet a particular exemption identified 
under the WC provisions; or when a producer has expanded the drainage 
system beyond that which existed prior to December 23, 1985. The 
current wetland technical assistance rule is outdated because it fails 
to recognize these distinctions, utilizes a superseded classification 
system, and describes identical terms differently from the current 
prevailing methodologies and scientific understanding of wetland 
systems.
    The removal of this regulation will not have any effect on the 
public, any private enterprise, or any other Government agency. This 
action will result in the removal of an unnecessary regulation from the 
Code of Federal Regulations. As a matter related to internal agency 
management, the policies and procedures related to the subject matter 
of the wetland technical assistance rule is currently addressed through 
agency manuals, handbooks, and directives.

The Revised NRCS Wetland Technical Assistance Policy

    It is the policy of NRCS to protect and promote wetland functions 
and values in all NRCS planning and application assistance. NRCS 
recognizes the beneficial and varied functional attributes of the 
different wetland types, and as such, strives to reconcile the need for 
wetland protection with that of promoting viable agricultural 
enterprises. NRCS supports the restoration, enhancement, creation, and 
preservation of wetlands as important and realistic components of 
comprehensive conservation plans, not only on a farm-by-farm basis, but 
also on a watershed or landscape basis. When providing technical 
assistance, NRCS will conduct an environmental evaluation, considering 
the objectives of the client in the context of environmental, economic, 
and other pertinent factors.
    Upon conducting an environmental evaluation, NRCS will identify 
whether any practicable alternatives exist that will either adequately 
maintain or improve the wetland functions and values, or avoid or 
minimize the harm to wetlands. If practicable alternatives exist, NRCS 
will inform and advise the client of the available options and explain 
the benefits of conducting the desired activity in a manner that will 
achieve the objectives of the client, while adequately maintaining or 
improving the functions and values of wetland resources in the area.
    If the client selects one of the practicable alternative options, 
NRCS may provide technical assistance for the conversion activity, as 
well as the development of a mitigation plan. If the findings of the 
environmental evaluation show that no practicable alternatives exist, 
NRCS may provide technical assistance which allows for the conversion 
of the wetland and develop a mitigation plan for compensation of the 
functions and values that were lost through the conversion activity. 
Prior to or concurrent with NRCS assistance, the client will obtain all 
necessary permits or approvals related to the conversion activity.
    If the client chooses to pursue an activity other than a 
practicable alternative, NRCS should advise the client about 
eligibility criteria under the WC provisions of the Food Security Act, 
as amended.
    The regulation at 7 CFR 650.26 defines wetlands in accordance with 
Circular 39 of the Fish and Wildlife Service, and not the current 
definition recognized by all Federal agencies with wetland 
responsibilities. Additionally, the former wetland technical assistance 
policy and regulation allowed NRCS employees to provide technical 
assistance to producers which placed such producers in violation of the 
wetland conservation provisions of the

[[Page 61217]]

Food Security Act of 1985, as amended (FSA). The removal of the 
regulation will prevent the implementation of inconsistent policies.

List of Subjects in 7 CFR Part 650.26

    Technical Assistance, wetlands.


Sec. 650.26  [Removed]

    In consideration of the above, 7 CFR part 650.26 is removed.

    Signed at Washington, D.C. on November 6, 1997.
Paul W. Johnson,
Chief, Natural Resources Conservation Service.
[FR Doc. 97-29996 Filed 11-14-97; 8:45 am]
BILLING CODE 3410-16-P