[Federal Register Volume 67, Number 78 (Tuesday, April 23, 2002)]
[Proposed Rules]
[Pages 19699-19710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9700]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / 
Proposed Rules  

[[Page 19699]]


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DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 12

RIN 0578-AA27


Wetland Conservation

AGENCY: Office of the Secretary, USDA.

ACTION: Notice of Proposed Rulemaking with request for comments.

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SUMMARY: The United States Department of Agriculture (USDA) is issuing 
a proposed rule setting out certain categorical minimal effect 
exemptions (CMWs) under the wetland conservation provisions of the Food 
Security Act of 1985, as amended. This proposed rule identifies five 
(5) wetland conversion activities, which due to the type of wetlands or 
other criteria, would only have a minimal effect upon wetland functions 
and values, and thus would not render a producer ineligible for certain 
USDA program benefits. USDA is seeking comments from the public that 
will be considered in developing a final rule.

DATES: Comments must be received by June 24, 2002.

ADDRESSES: All comments concerning this proposed rule should be 
addressed to Watersheds and Wetlands Division, Natural Resources 
Conservation Service, PO Box 2890, Washington, DC 20013-2890, 
Attention: CMW rule, or by e-mail: [email protected], Attention: CMW 
rule. This rule may also be accessed, and comments submitted, through 
the Internet. Users can access the NRCS Federal Register home page and 
submit comments to the Web site http://www.nrcs.usda.gov. From the 
menu, select ``Farm Bill.''

FOR FURTHER INFORMATION CONTACT: Floyd Wood, Watersheds and Wetlands 
Division, Natural Resources Conservation Service, Phone: (202) 690-1588 
or Fax: (202) 720-2143.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule was determined to be significant and was reviewed by the 
Office of Management and Budget (OMB) under Executive Order 12866. 
Pursuant to section 6(a)(3) of Executive Order 12866, the Commodity 
Credit Corporation (CCC) and Natural Resources Conservation Service 
(NRCS) conducted an economic analysis of the potential impacts 
associated with this proposed rule. The economic analysis concluded 
that the past 11 years of experience in implementing the minimal effect 
exemptions demonstrates that the provisions will reduce the compliance 
burden upon landowners while protecting wetland functions and values. 
CCC and NRCS believe that identification of categorical minimal effects 
will improve implementation of the wetland conservation provisions by 
reducing unnecessary administrative burdens on producers and the USDA 
agencies. NRCS estimates that the use of the CMWs will reduce clients' 
savings of approximately 27,000 hours per year. Similar savings would 
be realized by NRCS in a reduction of resources necessary to prepare 
and analyze wetland conservation provision exemptions. A copy of this 
cost-benefit analysis is available upon request from Floyd Wood, 
Watersheds and Wetlands Division, Natural Resources Conservation 
Service, PO Box 2890, Washington, DC 20013-2890.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule since 
it does not contain a major proposal requiring preparation of a 
regulatory analysis under the E.O. This regulation will not have a 
significant economic impact on a substantial number of small entities. 
This proposal will not alter or expand the wetland conservation 
provisions but allow activities already eligible for minimal effect 
exemptions to be reviewed and approved in a more expedited manner.

National Environmental Policy Act

    It was determined through an environmental assessment that the 
issuance of this proposed rule will not have a significant impact upon 
the human environment. Copies of the environmental assessment may be 
obtained from Floyd Wood, Watersheds and Wetlands Division, Natural 
Resources Conservation Service, PO Box 2890, Washington, DC 20013-2890.

Paperwork Reduction Act

    No substantive changes were made by this proposed rule that affect 
the record keeping requirements and estimated burdens previously 
reviewed and approved under OMB control number 0560-0004.

Executive Order 12788

    This proposed rule has been reviewed in accordance with Executive 
Order 12778. The provisions of this proposed rule are not retroactive. 
Furthermore, the provisions of this proposed rule preempt State and 
local laws to the extent such laws are inconsistent with this proposed 
rule except that private persons and entities may be subject to such 
State and local laws outside of the Food Security Act of 1985. Before 
an action may be brought in a Federal court of competent jurisdiction, 
the administrative appeal rights afforded persons at CFR parts 11, 614, 
780, and 1900 Subpart B of this title, as appropriate, must be 
exercised and exhausted.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
Pub. L. 104-4, the effects of this rulemaking action on State, local, 
and Tribal governments, and the public have been assessed. This action 
does not compel the expenditure of $100 million or more by any State, 
local, or Tribal governments, or anyone in the private sector; 
therefore a statement under Sec. 202 of the Unfunded Mandates Reform 
Act of 1995 is not required.

Discussion of Wetland Conservation Provisions

    Title XII of the Food Security Act of 1985, as amended (the 1985 
Act), encourages participants in USDA programs to protect highly 
erodible land and wetlands by linking eligibility for certain USDA 
program benefits to farming practices on highly erodible land and 
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.

[[Page 19700]]

    However, the 1985 Act also provides that certain activities can be 
conducted in wetlands, so long as those activities have a minimal 
effect on the wetland's functions and values. That is, an action 
individually and in connection with all other similar actions, will 
have a minimal effect on the functional hydrological and biological 
values of the wetlands in the area, including the values to waterfowl 
and wildlife. Each NRCS State Office is led by a State conservationist, 
one of whose duties is to ensure that minimal effect determinations are 
completed according to the 1985 Act. NRCS conducts functional 
assessments of wetlands, using acceptable methodology for the area 
where the action is proposed, to ascertain the effects of the action on 
the hydrological and biological functions. The decision to grant a 
minimal effect exemption is based primarily on the magnitude of change 
in wetland functions as a result of the action.
    The USDA issued a final rule implementing the WC provisions of the 
1985 Act on September 17, 1987. These regulations, found at 7 CFR part 
12, provided the terms of program ineligibility, described the several 
exemptions from ineligibility, outlined the responsibilities of the 
several USDA agencies involved in implementing the provisions, and 
generally established the framework for administration of the 
provisions. The field offices of NRCS have operated under the final 
rule since September 17, 1987, in making minimal effects determinations 
through functional assessment procedures.
    The Food, Agriculture, Conservation, and Trade Act of 1990 (the 
1990 Act), amended the 1985 Act and made some significant modifications 
to the WC provisions. In particular, the amendments made by the 1990 
Act provided that in addition to the planting on a converted wetland 
violation rule, any person who in any crop year after November 28, 
1990, converts a wetland by draining, dredging, filling, leveling, or 
any other means for the purpose, or to have the effect of making the 
production on an agricultural commodity possible, shall be ineligible 
for certain USDA program benefits for that crop year and all subsequent 
crop years until the wetland is restored or mitigated, unless 
exemptions to the Act apply.
    The Federal Agriculture Improvement and Reform Act (the 1996 Act), 
enacted April 4, 1996, made several changes to increase the options 
available so producers could comply with WC provisions in their farming 
and ranching activities. USDA adopted these changes in an interim final 
rule for Part 12, published September 6, 1996, in the Federal Register 
Volume 61, Number 174, pages 47019-47038.
    To increase program participants' certainty about whether an 
activity would qualify for a minimal effect exemption and to reduce the 
need for site-specific determinations, Congress required the Secretary 
of Agriculture to promulgate a regulation identifying categories of 
activities determined to minimally effect wetland functions and values. 
Section 322(c) of the 1996 Act, 16 U.S.C. 3822 d), directs the 
Secretary of Agriculture to identify, by regulation, ``categorical 
minimal effect exemptions on a regional basis to assist persons in 
avoiding a violation'' of the wetland conservation provisions. This 
change was not included in the interim final regulation, as it required 
additional technical analysis by USDA. This proposed rule implements 
the mandate found in section 322(c) of the 1996 Act and codified at 16 
U.S.C. 3822(d). The CMW rule would also remain a separate rule to 
facilitate future modification, if necessary.
    Categorical minimal effect exemptions are those categories of 
actions that can be taken in wetlands without loss of eligibility for 
certain USDA programs, because they have routinely been determined to 
have only a minimal effect on the functions of wetlands associated with 
that category. To qualify as a categorical minimal effect exemption 
under the 1996 Act, a proposed action must historically have been 
determined by NRCS, individually and collectively with all other 
similar actions authorized by the Secretary in the area, to have a 
minimal effect on the hydrological and biological functions of wetlands 
in the area, including values to waterfowl and wildlife. The presence 
of hydrological and biogeochemical functions is critical to the 
presence and maintenance of wetland floral and faunal communities and 
habitat. Additionally, NRCS uses the original scope and effect of prior 
hydrologic manipulation as a baseline to determine whether maintenance 
activities exceed the original scope and effect. Activities exceeding 
the original scope and effect will still be allowed when the 
manipulation qualifies for an USDA exemption, including the CMWs. 
Therefore, a decision to include a particular CMW is based on a 
historical analysis by NRCS at the local level on the presence and 
degree of hydrological and biogeochemical functions, the impact on 
those functions caused by installation of the proposed CMW, and the 
subsequent effects on associated floral and faunal communities.

Identification of CMWs

    NRCS has 14 years of experience in making minimal effect 
determinations in the field, using approved functional assessment 
procedures, on a case-by-case basis. To begin the process of developing 
CMWs, each NRCS State conservationist reviewed past minimal effect 
activities to identify categories of where exemptions were routinely 
granted, developed proposed CMWs, and reviewed the proposed CMWs with 
the State Technical Committee (STC). The STC includes members of other 
Federal agencies, state natural resource agencies, producer 
organizations, and other groups, organizations, and private 
individuals. Each STC reviewed and made recommendations to their 
respective State conservationist about the proposed CMWs. The State 
conservationists then decided which CMWs would be proposed and 
forwarded them to the NRCS National Office for consideration. Based on 
the records of prior minimal effect determinations available to them, 
the State Conservationists proposed a total of 16 CMWs.
    The NRCS National Office assembled an interdisciplinary team with 
representatives from each NRCS region and an U. S. Fish and Wildlife 
Service employee to review the 16 proposed CMWs to ensure they met 
statutory and regulatory requirements. NRCS requested that the U.S. 
Fish and Wildlife Service participate with this team to address the 
impacts of the alternatives on the wildlife habitat requirements, as 
well as to help satisfy potential impacts to species subject to the 
provisions of the Endangered Species Act. This review included all 
proposed CMWs as well as identifying any additional conditions 
necessary to ensure a CMWs had only minimal effects on wetland 
functions and values. In addition, all public comments concerning CMWs 
provisions received during the comment period for the Highly Erodible 
Lands/Wetland Interim Final Rule published September 6, 1996, were 
reviewed. As part of the review, the team used the NRCS Land Resource 
Regions and Major Land Resource Areas map to determine the regional 
applicability of the proposed CMWs. Each of the CMWs in the proposed 
rule has the applicable region identified based on the Land Resource 
Area and Major Land Resource Area codes, as well as a reference map. 
After review, the team agreed that the following 5 of the proposed 16 
CMWs meet the requirements set forth in the 1996 Act. This rule 
proposes to amend subpart C of 7 CFR part 12 to include

[[Page 19701]]

the 5 CMWs. USDA finds that the identification of the following CMWs 
will improve the implementation of the WC provisions of the 1985 Act, 
as amended:

CMW #1--Removal of Woody Vegetation, Including Stumps from Natural 
Herbaceous Wetlands

    USDA determined that small areas have developed into woody 
vegetation on prairie soils, usually through lack of maintenance 
practices. These areas exist because natural events such as wildfire 
and grazing, which would have resulted in the succession of a non-woody 
vegetative community, may no longer occur. The action implicates the 
application of the WC provisions because the removal of woody 
vegetation makes possible the production of an agricultural commodity 
in a wetland area. However, USDA determined that such action, when 
conducted under specified conditions identified in the proposed rule, 
will not have a significant impact on wildlife and fish habitat, will 
enhance the ``prairie wetland'' function by returning these areas to a 
more natural seral stage, and will not otherwise implicate the WC 
provisions. For sites where cropping is allowed to resume, cropping 
history will be verified using official USDA records, or in cases where 
records are not available, photographic evidence or other 
documentation.

CMW #2--Removal of Scattered Woody Vegetation, Including Stumps

    USDA determined that based on past functional assessments, the 
removal of scattered woody vegetation, including stumps, from farmed, 
hayed, or grazed wetlands will have minimal effect on wetland functions 
and values, as long as the criteria for obtaining the exemption from 
ineligibility are followed. CMW #2 will apply to the removal of 
vegetation and stumps in wetlands that have already been significantly 
degraded, and are farmed, hayed, or grazed. This CMW shall only apply 
if woody vegetation is scattered within the wetland and comprises less 
than 5 percent canopy cover, when measured vertically on the subject 
portion of the wetland to be cleared. It shall not apply to any 
forested wetlands that were logged within 3 years previous to 
conducting the categorical minimal effect determinations, where such 
areas comprised trees 20 feet or taller that composed 30 percent or 
more of the dominant vegetation. These wetlands typically have reduced 
functions and values because of previous manipulation. Because of tree 
size, farmers will use other than normal farming operations to remove 
the trees and stumps, and the removal will generally be by mechanical 
means, such as bulldozers or trackhoes.
    However, chemicals could also be used. USDA believes the direct 
impact will be the removal of scattered trees and stumps, along with 
the possibility of more tillage. Other impacts may include minor 
changes to wildlife and fish habitat, possible small changes in 
precipitation run-off, and removal of some invasive woody species.

CMW #3--Installation of Grassed Waterways for Erosion Control on non-
Highly Erodible Croplands

    USDA determined that this activity is carried out to control 
erosion in concentrated flow wetland areas, located in or between non-
highly erodible fields. USDA determined that the direct impacts include 
short-term construction disturbance, decrease in erosion and sediment 
delivery, improvement in run-off water quality, and possibly some loss 
of degraded wetlands. USDA believes that the impacts to wildlife and 
fish habitat should be positive, since eroding areas will be 
permanently revegetated to native or other approved species. Based on 
past functional assessments, USDA determined that the installation of 
grassed waterways in these wetlands will have minimal effect on wetland 
functions and values, as long as all conditions as set forth in the 
proposed rule are met.

CMW #4--Terrace Construction for Erosion Control on Erodible Cropland

    Since this activity may result in the manipulation of wetlands, a 
person could violate the wetland conservation provisions. Typically, 
these wetlands have already been altered in the past. USDA determined 
that the direct impacts include control of erosion, reduction of 
sediment moving off-site, and improvement of water quality. Other 
impacts may include partial diversion of runoff waters from wetlands 
located down slope from the activity. USDA has consistently found that 
impacts to wildlife and fisheries habitat will be minimal, since most 
of these areas are already in cropland. However, the activity may 
result in placement of fill within wetlands. Based on past functional 
assessments, USDA determined that the installation of terraces through 
these wetlands will have minimal effect on wetland functions and 
values, as long as all conditions set forth in the proposed rule are 
met.

CMW #5--Control or Removal of Exotic Invasive Woody Species, Including 
Stumps

    USDA determined that the species listed under this CMW are either 
invasive or exotic, and generally have a negative environmental impact 
on wetland ecology. Most of these species colonize wetlands after some 
earlier disturbance has taken place. In many areas, the species invade 
the wetland and riparian zones, some of the most important and limited 
wildlife habitat. These species do not replace the habitat value of 
native vegetative species. In addition, the exotic species have minimal 
value for erosion control and bank stabilization, and may contribute to 
water quality and quantity problems.
    The CMW provides that no additional alterations to the hydric 
conditions are allowed. USDA determined that these wetlands would 
function at an equal or higher level after the removal of the exotic 
invasive species, and when the wetland is being managed according to 
the criteria in the proposed rule. In addition, USDA believes indirect 
impacts from removal of these exotic species are positive because of 
protection from invasion to adjacent natural areas. Impacts to wildlife 
and fish habitat should be positive, since invasive, noxious vegetative 
species will be removed.
    Some of these wetlands have been previously converted back to 
cropland or pastureland, with the approval of the Corps of Engineers, 
Fish and Wildlife Service, and NRCS. Based on assessment of these 
conversions, USDA determined that the removal of the species listed 
would have minimal effect on wetland functions and values, as long as 
all criteria are followed.

Mandatory Conditions of Exemption Eligibility

    The proposed CMW exemptions are required by statute to provide 
farmers, ranchers and other landowners with needed flexibility to 
perform routine land maintenance on cropland and pastureland in a 
manner that will result in only minimal impacts to wetland functions. 
During the development of each CMW, specific conditional requirements 
were incorporated, which must be rigidly adhered to for an exemption to 
apply. These conditions will result in the safeguarding of threatened 
and endangered species habitat, protection of adjacent wetlands, 
streams and water bodies, enhancement of bio-diversity for native 
wetland flora, and assure exemption-related activities are implemented 
according to science-based standards and specifications. Of

[[Page 19702]]

the five proposed CMWs, No.'s 1, 2, 3 and 4 may only be used where 
farmed wetlands and farmed wetland pastures occur. These landuse 
wetlands have been previously and significantly degraded through normal 
agricultural activities such as annual tillage, haying or grazing. 
Additionally, many of the activities associated with the application of 
CMWs will result in direct benefits to wetlands, fish and wildlife 
habitat, and water quality. For example, CMW # 5 will allow the removal 
of exotic, invasive woody plants that have invaded wetlands and 
riparian zones. CMWs No.'s 3 and 4 will result in improved water 
quality by reducing erosion and sediment delivery to downstream 
wetlands, streams and tributaries.
    Since each CMW was developed by incorporating numerous, mandatory 
restrictive conditions that should result in only limited impacts to 
wetland ecosystems, NRCS believes there is no need for the application 
of additional acreage limitations such as the one-half acre limitation 
used by the Corps for implementing nationwide permits under section 404 
of the Clean Water Act. However, in order to enhance programmatic 
consistency between all other Federal, state and local wetland 
protection laws and the 1985 Act, NRCS is specifically soliciting 
comments from the public regarding possible acreage limitations for any 
or all of the CMWs.

Continued Coordination With Other Federal Agencies

    Consistent with the intent expressed in the preamble to the current 
interim final rule (Federal Register Volume #61, Number 174), the 
changes proposed in this rule ``do not supersede the wetland protection 
authorities and responsibilities of the Environmental Protection Agency 
(EPA) or the Corps of Engineers (COE) under section 404 of the Clean 
Water Act.'' This proposed rule is promulgated under the authority of 
the 1985 Act, as amended, and therefore, does not affect the 
obligations of any person under other Federal statutes, or the legal 
authorities of any other Federal agency including, for example, EPA's 
authority to determine the geographic scope of Clean Water Act 
jurisdiction. Nonetheless, NRCS, the COE and EPA place a high priority 
on adopting procedures and policies that minimize duplication and 
inconsistencies between the wetland conservation provisions of the 1985 
Act and the Clean Water Act section 404 programs. Any one who wishes to 
utilize the CMWs described in this proposed rule is advised to contact 
the local COE and State officials to ensure that activities meet any 
compliance requirements. Further, anyone wishing to come within the 
coverage of any of the CMWs must ensure that actions comply with all of 
the conditions set forth for the particular CMW.

List of Subjects in 7 CFR Part 12

    Administrative practices and procedures, Wetlands.

PART 12--[AMENDED]

    Accordingly, Title 7 of the Code of Federal Regulations is amended 
as follows:
    1. The authority citation for Part 12 continues to read as follows:

    Authority: 16 U.S.C. 3801 et seq.

    2. Section 12.31 is amended by a new paragraph (e)(5) to read as 
follows:


Sec. 12.31  On-site wetland identification criteria.

* * * * *
    (e) * * *
    (5) Specific categorical minimal effect exemptions:
    (i) Categorical minimal effect exemptions (CMWs) are those actions 
that have, individually and in connection with all other similar 
actions authorized by the Secretary in the area, a minimal effect on 
the functional hydrological and biological value of the wetlands in the 
area, including the value to waterfowl and wildlife. Both the 
hydrogeomorphic wetland classification system and the 1996 Act wetland 
determination labels identify the wetland types eligible for use with 
each CMW.
    (ii) When participating in certain USDA programs, it is the 
person's responsibility to comply with applicable statutes and 
regulations. Caution should be exercised when manipulating or 
converting wetlands, to ensure that the actions taken meet the 
requirements of this part, including the specific conditions for an 
applicable CMW, in order to be in compliance with this part.
    (iii) CMW #1--Removal of woody vegetation, including stumps from 
natural herbaceous wetlands:
    (A) Purpose. CMW # 1 allows clearing of wetland areas that 
developed under native prairie vegetation, but have been invaded by 
woody vegetation.
    (B) 1996 Act trigger. The removal of woody vegetation (trees and 
stumps) makes possible the production of an agricultural commodity.
    (C) Scope. CMW #1 shall only be applicable to the following land 
resource regions and Major Land Resource Areas (MLRAs): M, N, F, and G 
(58C & D, 60A, 61, 62, 63A and B, 64, 65, and 66). See Map #1.

[[Page 19703]]

[GRAPHIC] [TIFF OMITTED] TP23AP02.009

    (D) Wetland types. CMW #1 may only be used on farmed wetlands and 
farmed wetland pastures, where such wetlands are identified as 
depressions, lacustrine fringe, riverine, or slope wetlands under the 
hydrogeomorphic classification system.
    (E) Conditions necessary to obtain exemption from ineligibility. 
The removal of the woody vegetation from the natural herbaceous 
wetlands must:
    (1) Disturb only the soil necessary to complete the activity;
    (2) Result in woody materials not being placed in waters of the 
United States;
    (3) Not encompass greater than \1/2\ acre of manipulation of woody 
vegetation per Farm Tract.
    (4) Be on soils that formed under mid and tall grass prairie 
conditions;
    (5) Not be cropped unless the majority of the manipulated portion 
of the wetland has a cropping history; and
    (6) Not be applied within occupied Federally protected threatened 
and endangered species habitat, or within Federally designated critical 
habitat.
    (iv) CMW #2--Removal of scattered woody vegetation, including 
stumps:
    (A) Purpose. CMW # 2 allows clearing of scattered woody vegetation 
in wetland areas that have previously been manipulated and are 
currently cropped, hayed, or grazed.
    (B) 1996 Act trigger. The removal of scattered woody vegetation and 
stumps from a wetland through means other than normal tillage 
operations.
    (C) Scope. CMW #2 shall only be applicable to the following land 
resource regions and MLRAs: A, B, C, I, J, K, L, M, N, O, P, R, S, T, 
and U. See Map #2.

[[Page 19704]]

[GRAPHIC] [TIFF OMITTED] TP23AP02.010

    (D) Wetland types. CMW #2 may only be used on farmed wetlands and 
farmed wetland pastures, where such wetlands are identified as 
depressions, lacustrine fringe, mineral soil flats, organic soil flats, 
riverine, or slope wetlands under the hydrogeomorphic classification 
system.
    (E) Conditions necessary to obtain exemption from ineligibility. 
The removal of scattered woody vegetation, including stumps must:
    (1) Result in the stems and stumps not being placed in a waters of 
the United States;
    (2) Be on wetland areas currently cropped, grazed or hayed;
    (3) Disturb only the minimum area and soil necessary to complete 
the stem and stump removal;
    (4) Be on areas where the woody vegetation is scattered, not 
clustered, and where woody vegetation comprises less than 5 percent 
canopy cover within the wetland, when measured vertically.
    (5) Ensure that woody vegetation will be maintained adjacent to 
streams and water bodies at the minimum width as found in the NRCS 
Field Office Technical Guide Practice Standard ``Riparian Forest 
Buffer'', which may be obtained at any local NRCS office;
    (6) Be by means other than normal tillage operations;
    (7) Not be applied within occupied Federally protected threatened 
and endangered species habitat, or within Federally designated critical 
habitat; and
    (8) Be used on other than clumps of woody vegetation.
    (F) Additional criteria. Must not be on areas that have been logged 
within 3 years prior to conducting the categorical minimal effects 
determination, on sights where woody vegetation comprised of trees, 20 
feet or taller that composed 30 percent or more of the dominant 
vegetation.
    (v) CMW #3--Installation of grassed waterways for erosion control 
on non-highly erodible croplands:
    (A) Purpose. CMW #3 allows grading, shaping, and revegetating areas 
for grassed waterways installation in or between non-highly erodible 
croplands to convey run-off water without causing erosion. In some 
instances, construction may include installation of non-perforated 
drainage tile in the grassed waterway, to convey water causing drainage 
area erosion.
    (B) 1996 Act trigger. The installation of a grassed waterway has 
the potential of converting adjacent wetland areas and making possible 
the production of an agricultural commodity. Additionally, the grading 
and shaping of the wetland for a grassed waterway may make the graded 
and shaped area capable of producing an agricultural commodity.
    (C) Scope. CMW #3 shall be available in the following land resource 
regions

[[Page 19705]]

and MLRA(s): F, G, H, K (90, 91, 93, 94A), L, M, R, S. See Map #3.
[GRAPHIC] [TIFF OMITTED] TP23AP02.011

    (D) Wetland types. CMW #3 may only be used on farmed wetlands and 
farmed wetland pastures, where such wetlands are identified as slope 
wetlands under the hydrogeomorphic classification system.
    (E) Conditions necessary to obtain exemption from ineligibility. 
The installation of grassed waterways must:
    (1) Be only on drainageways carrying concentrated flow when needed 
to control gully erosion, or when the waterway is aggrading;
    (2) Be designed and constructed in accordance with NRCS Field 
Office Technical Guide (FOTG) standard, which may be obtained at any 
local NRCS office;
    (3) Not include the installation of perforated drainage tile within 
the waterway area;
    (4) Not adversely affect adjacent wetlands;
    (5) Not allow the waterway itself to be used for annual cropping;
    (6) Not allow dredge or fill material to be placed in waters of the 
United States;
    (7) Not allow the construction of a grass waterway through or 
otherwise convert depressional wetlands that occur along the waterway; 
and
    (8) Not be applied within occupied Federally protected threatened 
and endangered species habitat, or within Federally designated critical 
habitat.
    (F) Additional criteria.
    (1) CMW #3 does not apply to wooded areas.
    (2) The constructed waterway cannot reduce the size of the pre-
construction permanently vegetated area by more than 10 percent.
    (3) The waterway, once constructed, must be revegetated to an 
approved native or introduced seed mixture suitable for the site and 
accommodating wildlife needs whenever possible.
    (4) The operation and management of the grassed waterway, including 
mowing or grazing of the waterway, must be in accordance with the NRCS 
standards and restrictions for grassed waterways as found in the FOTG, 
which may be obtained at any local NRCS office.
    (vi) CMW #4--Terrace construction for erosion control on erodible 
cropland:
    (A) Purpose. CMW #4 allows terrace construction for erosion control 
on erodible cropland.
    (B) 1996 Act trigger. This may be completed for the purpose of, or 
to make possible, the production of an

[[Page 19706]]

agricultural commodity by either manipulating a wetland in the field or 
by altering the hydrology of adjacent or downslope wetlands.
    (C) Scope. CMW #4 shall be available only in the following land 
resource regions and MLRA(s): F, G, H, L, M, R, and S. See Map #4.
[GRAPHIC] [TIFF OMITTED] TP23AP02.012

    (D) Wetland types. CMW #4 may only be used on farmed wetlands and 
farmed wetland pastures, where such wetlands are identified as sloped 
wetlands under the hydrogeomorphic classification system.
    (E) Conditions necessary to obtain exemption from ineligibility. 
The terrace construction must:
    (1) Be carried out only for the purpose of erosion control in 
fields where the erosion rate is greater than the tolerable ``T'' soil 
erosion rate, as identified in the NRCS Field Office Technical Guide;
    (2) Be built with a non-erosive outlet, and according to practice 
standards in the NRCS Field Office Technical Guide, which may be 
obtained at any local NRCS office;
    (3) Be drained with non-perforated tile if underground outlets for 
terraces are installed;
    (4) Be designed to minimize adverse impacts to adjacent or 
downslope (not in the terraced field) wetlands;
    (5) Precipitation run-off normally entering a down slope wetland 
should be maintained such that the wetland hydrological conditions are 
similar to pre-construction conditions;
    (6) Be completed no closer to any off-site wetland, than the 
distance of one terrace spacing, according to NRCS Field Office 
Technical Guide; and
    (7) Not be applied within occupied Federally protected threatened 
and endangered species habitat, or within Federally designated critical 
habitat.
    (vii) CMW #5--Control or removal of exotic and/or invasive woody 
species, including stumps:
    (A) Purpose. CMW #5 allows the removal of the following species: 
Australian pine (Casuarina equisetifolia), Brazilian pepper (Schinus 
terebinthifolius), Common chinaberry (Melia azedarach), Chinese 
tallowtree (Sapium sebiferum), melaleuca (Melaleuca quinquenervia), 
Russian olive (Elaeagnus augustiflora), and Saltcedar (Tamarix 
gallica).
    (B) 1996 Act trigger. The removal of stems, stumps, and roots of 
woody, invasive or exotic species by mechanical operations may make 
possible the production of an agricultural commodity.

[[Page 19707]]

    (C) Scope. CMW #5 shall only be available in the land resource 
regions and MLRA(s) for the particular species as described in 
paragraph (f)(5) of this section.
    (D) Wetland types. CMW #5 may be used on any wetland type, 
including all wetlands identified under the hydrogeomorphic 
classification system.
    (E) Conditions necessary to obtain exemption from ineligibility:
    (1) The control or removal of Chinese tallowtree in MLRA 150A & B, 
151, and 152B (Map #5) must:
    (i) Be carried out only on prairie soils;
    (ii) Be on areas where the existing woody canopy is 80 percent or 
more in tallowtree cover;
    (iii) Limit the soil disturbance to the minimum necessary to 
complete activity;
    (iv) Not remove any native woody species greater than 10 inches in 
diameter at breast height (dbh);
    (v) Provide that materials removed are not disposed of in waters of 
the United States;
    (vi) Maintain native woody vegetation adjacent to streams and water 
bodies at minimum widths in accordance with the NRCS Field Office 
Technical Guide Practice Standard ``Riparian Forest Buffer'', which may 
be obtained at any local NRCS office; and
    (vii) Not be applied if the area is occupied by Federally protected 
threatened and endangered species.
[GRAPHIC] [TIFF OMITTED] TP23AP02.013

    (2) The control or removal of Australian pine, Brazilian pepper, 
Common chinaberry, Chinese tallowtree, and Melaleuca in MLRA 133A, 138, 
152A, 153A, and Resource Region U (Map #6) must:
    (i) Be on areas where the existing woody canopy is 50 percent or 
more of the invasive species alone, or in combination;
    (ii) Be on areas that were previously farmed but are now considered 
abandoned;
    (iii) Not include areas identified as prior converted cropland;
    (iv) Provide that the management after removal of stems and stumps 
will include activities such as shallow water development, moist soil 
management, best management practices for water quality, and 
conservation practices for crop rotation;
    (v) Limit soil disturbance to the minimum necessary to complete 
activity;
    (vi) Provide that materials removed are not disposed of in waters 
of the United States;

[[Page 19708]]

    (vii) Prohibit cropping subsequent to removal of the invasive 
species if the area is historically wooded;
    (vii) Maintain native woody vegetation adjacent to streams and 
water bodies at the minimum width prescribed by the NRCS Field Office 
Technical Guide Practice Standard ``Riparian Forest Buffer''; and
    (ix) Not be applied if the area is occupied by Federally protected 
threatened and endangered species.
[GRAPHIC] [TIFF OMITTED] TP23AP02.014

    (3) The control or removal of Saltcedar in Resource Regions C, D, 
E, F, G, H, and I (Map #7) must:
    (i) Prohibit the removal of native woody species;
    (ii) Limit soil disturbance to the minimum necessary to complete 
activity;
    (iii) Prohibit cropping subsequent to the removal of the invasive 
species if the area is historically wooded;
    (iv) Establish, to reduce re-invasion, permanent native herbaceous 
or woody cover if the area is not historically cropped;
    (v) Provide that materials removed are not disposed of in waters of 
the United States;
    (vi) Maintain woody vegetation adjacent to streams and water bodies 
at the minimum width prescribed by the NRCS Field Office Technical 
Guide Practice Standard ``Riparian Forest Buffer'', which may be 
obtained at any local NRCS office; and
    (vii) Not be applied if the area is occupied by federally protected 
threatened and endangered species.

[[Page 19709]]

[GRAPHIC] [TIFF OMITTED] TP23AP02.015

    (4) The control or removal of Russian olive in Resource Regions A, 
B, C, D, E, F, G, H, I, J, K, and M (Map #8) must:
    (i) Prohibit the removal of native woody species;
    (ii) Limit soil disturbance to the minimum necessary to complete 
activity;
    (iii) Prohibit cropping subsequent to the removal of the invasive 
species if area is historically wooded;
    (iv) Provide that materials removed are not disposed of in waters 
of the United States; and
    (v) Maintain woody vegetation adjacent to streams and water bodies 
at the minimum width prescribed by the FOTG, NRCS Practice Standard 
``Riparian Forest Buffer'', which may be obtained at any local NRCS 
office; and
    (vi) Not be applied if the area is occupied by Federally protected 
threatened and endangered species.

[[Page 19710]]

[GRAPHIC] [TIFF OMITTED] TP23AP02.016


    Signed at Washington, DC, on April 4, 2002.
Ann M. Veneman,
Secretary.
[FR Doc. 02-9700 Filed 4-22-02; 8:45 am]
BILLING CODE 3410-16-P