    [Federal Register Volume 85, Number 168 (Friday, August 28, 2020)]
    [Rules and Regulations]
    [Pages 53137-53152]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2020-18626]

    =======================================================================
    -----------------------------------------------------------------------

    DEPARTMENT OF AGRICULTURE

    Office of the Secretary

    7 CFR Part 12

    [Docket ID NRCS-2018-0010]
    RIN 0578-AA65

    Highly Erodible Land and Wetland Conservation

    AGENCY: Office of the Secretary, USDA.

    ACTION: Final rule.

    -----------------------------------------------------------------------

    SUMMARY: The United States Department of Agriculture (USDA) is issuing
    a final rule for the Highly Erodible Land and Wetland Conservation
    provisions of the Food Security Act of 1985, as amended (the 1985 Farm
    Bill). USDA published an interim rule, with request for comments, on
    December 7, 2018, to clarify how USDA delineates, determines, and
    certifies wetlands located on subject land in a manner sufficient for
    making determinations of ineligibility for certain USDA program
    benefits. USDA received comments from 65 commenters who provided 354
    comments in response to the interim rule. Additionally, one of the 65
    comments was submitted by an organization that submitted a spreadsheet
    of 15,094 substantively identical comments. This rule makes permanent
    many of the changes made in the interim rule, responds to comments
    received, and makes further adjustments in response to some of the
    comments received.

    DATES: This rule is effective August 28, 2020.

    FOR FURTHER INFORMATION CONTACT: For specific questions about this
    rulemaking, please contact Jason Outlaw, (202) 720-7838, or by email at
    jason.outlaw@usda.gov. Persons with disabilities who require
    alternative means for communication should contact the USDA Target
    Center at (202) 720-2600 (voice).

    SUPPLEMENTARY INFORMATION:

    Background

        Title XII of the 1985 Farm Bill, encourages participants in USDA
    programs to adopt land management and conservation measures by linking
    eligibility for USDA program benefits to farming practices on highly
    erodible land and wetlands. In particular, the highly erodible land
    conservation (HELC) provisions of the 1985 Farm Bill 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
    field in which highly erodible land is predominant, unless such
    production is in compliance with an approved conservation system.
    Additionally, the wetland conservation (WC) provisions of the 1985 Farm
    Bill 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
    agriculture commodity possible, unless an exemption applies. The
    Agricultural Act of 2014 amended the 1985 Farm Bill to expand the HELC/
    WC requirements to encompass crop insurance benefits, and thus, USDA
    program participants obtaining Federally reinsured crop insurance must
    be in compliance with an Natural Resources Conservation Service (NRCS)-
    approved conservation plan for all highly erodible land; not plant or
    produce an agricultural commodity on a wetland converted after February
    7, 2014; and not have converted a wetland after February 7, 2014, to
    make possible the production of an agricultural commodity. The 1985
    Farm Bill, however, affords relief to program participants who meet
    certain conditions identified under the 1985 Farm Bill by exempting
    certain actions from the ineligibility provisions. The USDA regulations
    implementing the HELC and WC provisions of the 1985 Farm Bill are found
    at 7 CFR part 12.
        On December 7, 2018, USDA published in the Federal Register (83 FR
    63046-63052) an interim rule that amended 7 CFR part 12 to provide
    transparency to USDA program participants and stakeholders concerning
    how USDA delineates, determines, and certifies wetlands. The interim
    rule also provided information

    [[Page 53138]]

    to program participants to better understand whether their actions may
    result in ineligibility for USDA program benefits. The interim rule
    made the following changes to 7 CFR part 12:
         Added definitions, for ``Best drained condition,''
    ``Normal climatic conditions,'' ``Playa,'' ``Pocosin,'' ``Pothole,''
    and ``Wetland hydrology;''
         Revised the definition for ``Wetland determination'' with
    respect to farmed wetland, farmed wetland pasture, and prior-converted
    cropland (PC);
         Revised the provision related to potentially highly
    erodible land to encompass the use of light detection and ranging
    (LiDAR) or other elevation data of an adequate resolution to make slope
    length and steepness measurements;
         Identified that if a person disagrees with an offsite
    determination on potentially highly erodible soils, NRCS would make an
    onsite determination;
         Clarified that wetland determinations will be done on a
    field or sub-field basis;
         Confirmed that wetland determinations made after November
    28, 1990, and before July 3, 1996, are certified wetland determinations
    if the determination was issued on the June 1991 version of Forms NRCS-
    CPA-026 or SCS-CPA-026, the person was notified that the determination
    had been certified, and that the map document was of sufficient quality
    to determine ineligibility for program benefits;
         Identified that in order for a wetland determination map
    to be of sufficient quality to determine ineligibility for program
    benefits, the map document must be legible to the extent that areas
    that are determined wetland can be discerned in relation to other
    ground features;
         Clarified that:
        [cir] The wetland determination process includes three distinct
    steps,
        [cir] Wetland hydrology consists of inundation or saturation by
    surface or ground water during a growing season at a frequency and
    duration sufficient to support a prevalence of hydrophytic vegetation,
        [cir] When a wetland is affected by drainage manipulations that
    occurred prior to December 23, 1985, wetland hydrology will be
    identified on the basis of the best drained condition resulting from
    such drainage manipulations, and
        [cir] Wetland hydrology determination will be made in accordance
    with the current Federal wetland delineation methodology in use by NRCS
    at the time of the determination; and when making a decision on wetland
    hydrology, NRCS will utilize a fixed precipitation date range of 1971
    through 2000 for determining normal climatic conditions; and
         Identified that minimal effect determinations will be
    based upon a functional assessment of functions and values of the
    subject wetland through an onsite evaluation and that an assessment of
    related wetlands in the area may be made based on an onsite evaluation
    or through a general knowledge of wetland conditions in the area.

    Summary of Public Comments

        The interim rule had a 60-day comment period ending February 6,
    2019. USDA received 65 timely responses to the rule. Additionally, one
    organization submitted 15,094 substantively identical responses which
    were also considered.
        USDA received some comments that were either not relevant to the
    interim rule or lacked a direct connection to any specific component of
    the interim rule. Some of these comments cited the various benefits of
    wetlands. Others cited the benefits to humanity of increased drainage.
    Several alleged a lack of due process. Some wanted the Fourth Amendment
    to the U.S. Constitution to apply to onsite wetlands determinations. A
    few comments suggested specific testing criteria and alleged that NRCS
    carried an evidentiary burden. USDA also received comments that
    expressed support for the interim rule in general and comments that
    expressed a general lack of support for the interim rule.
        USDA also received comment that provided the commenters'
    understanding about the history of the WC provisions, representations
    about Congressional intent, the nature of NRCS implementation of the WC
    provisions, and an overview of the purposes of particular Federal
    legislation, including the Administrative Procedure Act (APA), the
    Endangered Species Act (ESA), and the National Environmental Policy Act
    (NEPA). USDA does not respond to the commenters' characterization of
    these Federal statutes or representations about NRCS intent as far as
    its past implementation efforts, but has responded to comment where
    appropriate when this legal framework and prior NRCS implementation
    relates to the interim rule or this final rule.
        USDA appreciates the level of public interest that comes with
    wetlands. They are an important resource. NRCS follows the appropriate
    process for issuing rules consistent with statutory language in section
    1246 of the 1985 Farm Bill. Onsite wetland determinations and aerial
    imagery do not constitute an unreasonable search or seizure. Wetland
    determinations conducted for eligibility in voluntary USDA programs is
    not a part of a criminal law proceeding. A USDA program participant or
    applicant consents to the review of his or her land for HELC/WC
    purposes by applying for assistance from USDA. USDA appreciates the
    comments in support of the interim rule. For any comments that lacked a
    direct application to the interim rule and were not addressed in this
    preamble, USDA appreciates the consideration with which such comments
    were developed and provided, and, to the extent practicable, will
    consider those comments in the development of future rulemakings or
    applicable policies.
        In this preamble, the comments have been organized alphabetically
    by topic. The topics include:
         Abandonment;
         APA;
         Appeals;
         Area of request for certified wetland determinations;
         Best drained condition;
         Certification map quality;
         Certification status of pre-1996 wetland determinations;
         Climate references in rulemaking;
         Commenced conversion;
         Definitions;
         Endangered Species Act consultation;
         Farmed under natural conditions;
         Mitigation;
         National Environmental Policy Act;
         Navigable Waters Protection Rule applicability;
         Normal climatic conditions;
         Offsite analysis of potentially highly erodible land;
         Offsite analysis of wetland minimal effect;
         Seasonal wetlands;
         Setback distances; and
         Wetland hydrology indicators.
        The topics that generated the greatest response include the
    certification status of wetland determinations between 1990 through
    1996, wetland hydrology indicators, normal climatic conditions, and the
    offsite analysis of wetland minimal effect. This final rule responds to
    comments received during the public comment period and incorporates
    changes, as determined appropriate by USDA.

    Abandonment of Farmed Wetland and Farmed Wetland Pasture

        Comment: USDA received comment expressing concern that a person has
    a right to maintain hydrologic conditions on farmed wetland and farmed
    wetland pasture that was converted to crop

    [[Page 53139]]

    production prior to the 1985 Farm Bill, regardless of abandonment.
        Response: No changes were made in the interim rule with respect to
    abandonment of farmed wetlands and farmed wetland pasture (7 CFR
    12.33(c)). Abandonment applies to farmed wetland and farmed-wetland
    pasture when wetland conditions return after December 23, 1985, unless
    certain conditions are met. This is a part of long-standing policy and
    regulation. USDA also affirms that USDA program participants may
    continue to farm farmed wetlands and farmed wetland pasture under
    natural conditions without risk of losing their eligibility for USDA
    program benefits, as long as additional hydrological manipulations do
    not occur.

    Administrative Procedure Act (APA)

        Comment: USDA received comment related to the applicability of the
    APA to USDA implementation of the highly erodible land and wetland
    conservation provisions.
        Response: USDA is not required by any statute to promulgate 7 CFR
    part 12 pursuant to notice and comment rulemaking under the APA.
    Section 1246 of the Food Security Act of 1985, as amended by the
    Agricultural Act of 2014, specified that the promulgation of
    regulations and administration of programs under this title shall be
    made as an interim rule effective on publication with an opportunity
    for notice and comment. The APA requirements for notice and comment, 5
    U.S.C. 553, do not apply to a matter relating to public property,
    loans, grants, benefits, or contracts (5 U.S.C. 553(a)(2)). The matters
    identified in the December 2018 interim rule relate to USDA program
    grants and other benefits and thus notice and comment rulemaking are
    not required under the APA even without the specific statutory
    exemption.
        Comment: USDA received comment that wished to remind NRCS that NRCS
    must respond in a reasoned manner to comments that raise significant
    issue with rules, and that failure to do so would be arbitrary and
    capricious.
        Response: USDA has reviewed the comment received to the interim
    rule, summarizes the significant comment, and responds to such herein.

    Appeals

        Comment: USDA received comment concerned with which delineation
    methodology for wetland determinations would be used following a
    successful appeal. USDA also received comment that sought a right for
    taxpayers other than the USDA program participants to have a right to
    appeal wetlands determinations by NRCS.
        Response: As detailed in the NRCS appeal procedures at 7 CFR part
    614, an initial certified wetland determination is issued as a
    preliminary technical determination which is made using the delineation
    methodology in place at the time it is issued. If the preliminary
    wetland determination is appealed, then it may remain unchanged or be
    revised by NRCS and issued as a final technical determination. If any
    changes are made between the preliminary and final technical
    determinations, the original delineation methodology is used even if
    procedures have changed. However, if the final technical determination
    is appealed to the USDA National Appeals Division and is remanded to
    NRCS due to agency error, a new preliminary determination would be
    conducted following the current delineation methodology (assuming any
    changes in methodology had occurred). The same principle would apply to
    any wetland determination remanded to NRCS through Federal court
    proceedings.
        With respect to taxpayer appeals, taxpayers (aside from the
    affected producer) are not party to wetland determinations. The entire
    framework of 7 CFR part 12 relates to the eligibility of persons to
    receive USDA program benefits. As such, there is no right set forth in
    either statute or case law for someone other than the affected person
    to challenge final agency action on an administrative decision such as
    a wetlands determination. The administrative appeal procedures are
    predicated upon review of an adverse decision that affects persons as
    USDA program participants, and taxpayers in general do not have
    standing for purposes of the appeal procedures.

    Area of Request for Certified Wetland Determinations

        Comment: USDA received comment identifying that a USDA program
    participant should be able to request a certified wetland determination
    for their entire tract. Comment also raised concern that the interim
    rule implied that the reference to field/subfield meant that NRCS would
    apply this scope of a certified wetland determination retroactively.
        Response: USDA confirms that a certified wetland determination may
    be conducted for an entire tract if requested to do so by the USDA
    program participant. The change in the interim rule of identifying that
    certified wetland determinations would be made on a field or subfield
    basis was made in order to remove the strict ``whole tract''
    requirement. Due to limited resources, NRCS has commonly prioritized
    certified wetland determination requests to those fields on which USDA
    program participants are planning to conduct, or have already
    conducted, land manipulations which may affect their eligibility, and
    this practice is expected to continue. USDA did not intend to imply
    that the scope of a certified wetland determination would be applied
    retroactively. Therefore, this final rule adds language to Sec.
    12.30(a)(3) to clarify that wetland determinations, delineations, and
    certifications may be done on a tract, field, or sub field basis, and
    has adjusted the language in Sec.  12.30(c)(1) accordingly.

    Best Drained Condition

        Comment: USDA received comment related to the definition and use of
    the term ``best drained condition,'' including comments that expressed:
    General support for the definition; concerns that identification of the
    best drained condition be based on sound documentation; that the
    benefit of the doubt should be given to the USDA program participant;
    and concern that the interim rule preamble reference to abandonment
    contradicts the statutory interpretation that once land is identified
    as PC, it remains always as PC, ``once PC, always PC.'' The comment
    further recommended that USDA clarify this principle and that under the
    rule that PC is no longer considered wetland.
        Response: The interim rule introduced and defined the term ``best
    drained condition'' to provide clarity regarding a long-standing and
    practiced statutory concept that is fundamental to the identification
    of wetlands that experienced drainage manipulations prior to enactment
    of the 1985 Farm Bill, and to meet congressional intent to provide
    certainty to persons concerning the status of such land and its future
    use. This long-standing concept provides that a person has the
    statutory right to maintain those hydrologic conditions that existed on
    wetlands that were converted to crop production prior to the 1985 Farm
    Bill to the extent that those conditions existed on or before December
    23, 1985, due to drainage in its ``as-built'' condition.
        Regarding the identification of the best drained condition, NRCS
    makes this decision based upon the best available evidence, which can
    include remote resources such as historical aerial imagery or other
    evidence such as drainage records found in USDA records or provided by
    a USDA program participant.
        Section 12.31(c) is clarified as to the limited instance when
    abandonment

    [[Page 53140]]

    occurred before and existed as of December 23, 1985; in such instance,
    NRCS will not consider best drained condition. NRCS will not identify
    wetland hydrology based on the best drained condition when a wetland
    supported woody vegetation such that production of an agricultural
    commodity was not possible on December 23, 1985. This is in keeping
    with the definitions of ``prior-converted cropland'' and ``farmed
    wetland'' established in the interim rule published on September 6,
    1996, (61 FR 47019-47038), which specifies that PC and farmed wetland
    cannot support woody vegetation as of December 23, 1985. By excluding
    the consideration of best drained condition on such lands, section
    12.31(c) ensures that they are properly identified as wetland in step
    one of the wetland identification process described at 7 CFR
    12.30(c)(7), and thus outside the definition of either ``prior-
    converted cropland'' or ``farmed wetland''.
        This final rulemaking is not intended to change past implementation
    of the ``once PC, always PC'' concept and provides a narrow scope to
    which abandonment applies to the consideration of best drained
    condition which is consistent with the September 6, 1996 interim rule
    and which was not affected by the December 2018 interim rule. NRCS
    understands the desire to simplify regulatory criteria utilizing short-
    hand language that seems to explain a concept more readily, such as
    ``once PC, always PC''. However, the statutory structure identifies
    particular actions that will either result in a person being determined
    ineligible for USDA program benefits or result in them being determined
    exempt from ineligibility. The regulation reflects this structure.
    However, NRCS can confirm that as long as land remains in agricultural
    use, lands identified as PC in an NRCS certified wetland determination
    will not be considered converted wetlands for purposes of determining
    program ineligibility under the WC provisions.
        Regarding the concern that PC is no longer wetland, USDA agrees
    that this is the case in the majority of situations, but a blanket
    statement as such cannot be made. Even so, as the WC provisions do not
    impose ineligibility with respect to the use of PC, there is no reason
    for USDA to identify whether PC is any longer a wetland.

    Certification Status of Pre-1996 Wetland Determinations

        Comment: USDA received comment related to the certification status
    of wetland determinations conducted before July 3, 1996. These
    comments:
         Expressed concern over the quality of data used to make
    determinations before 1996 and that such determinations are thus
    inaccurate, and that any action to accept as certified any pre-1996
    ``inventory maps'' was contrary to Congressional intent;
         Suggested that NRCS should deem pre-November 28, 1990
    determinations as certified as well or consider criteria for which a
    determination conducted prior to 1990 could be considered certified;
         Expressed concern that the interim rule failed to provide
    clarity on the commenters' understanding of the impetus for the
    rulemaking, namely the status of pre-1996 ``official'' wetland
    determinations; and
         Expressed support for the interim rule on this issue.
    Several comments simply sought further clarification.
        Response: As a reminder, this rulemaking is intended as a
    codification and clarification of existing practice rather than a
    substantive change of overall regulatory framework or policy with
    regard to the certification status of wetland determinations. The
    interim rule did not change the legal status of any certified wetland
    determination made between 1990 and 1996, nor does NRCS have discretion
    to change any previously issued certified wetland determinations except
    under the limited circumstances identified in the regulations.
        Certification of wetland determinations was initiated in the Food
    Agriculture Conservation and Trade Act of 1990 (1990 Farm Bill), which
    made all determinations completed after the 1990 Farm Bill's enactment
    date that were provided with a certification statement by a USDA
    official and appeal rights certified as a matter of law. The 1990 Farm
    Bill defined certification by directing, upon providing notice to
    affected owners or operators, the Secretary shall certify each such map
    as sufficient for the purpose of making determinations of ineligibility
    for program benefits and shall provide an opportunity to appeal such
    delineations to the Secretary prior to making such certification final.
    Further, the conference report to accompany the 1990 Farm Bill provided
    that the Managers agree that the certification process is to provide
    farmers with certainty as to which of their lands are to be considered
    wetlands for purposes of Swampbuster. On April 23, 1991, USDA issued
    regulations implementing the changes to the WC provisions in the 1990
    Farm Bill. Language on certification was contained in Sec.  12.30(c)
    which stated, the wetland determination and wetland delineation shall
    be certified as final by the SCS official 45 days after providing the
    person notice or, if appeal is filed with SCS, after a final appeal
    decision is made by SCS. Beginning in June 1991, certification was
    accomplished by completion of the SCS-CPA-026 form. This form required
    that the District Conservationist certify by signature that ``I certify
    that the above determination is correct and adequate for use in
    determining eligibility for USDA program benefits . . .'' and provided
    appeal rights on the back side of the ``Person Copy'' of the form.
        The Federal Agriculture Improvement and Reform Act of 1996 (1996
    Farm Bill) further clarified certification by, among other items,
    providing that a final certification . . . shall remain valid and in
    effect as long as the area is devoted to an agricultural use or until
    such time as the person affected by the certification requests review
    of the certification by the Secretary. In turn, these 1996 Farm Bill
    clarifications were codified in the September 6, 1996 interim rule in 7
    CFR 12.30(c)(1). The 1996 interim rule specified that all wetland
    determinations made after July 3, 1996, will be done on a tract basis
    and will be considered certified wetland determinations. The 1996
    interim rule also specified that determinations made prior to July 3,
    1996 were subject to the regulations in place at the time of the
    determination, and the preamble emphasized that if NRCS certified a
    wetland determination prior to July 3, 1996, the certification will
    remain valid.
        The language in the 2018 interim rule with respect to the
    certification status of pre-1996 wetland determinations simply
    clarified their status as it exists and has existed under the
    regulations in place at the time the wetland determinations were
    originally conducted and certified, irrespective of any hindsight
    determination as to the quality of data upon which those determinations
    were made. Unlike the assumption by commenters, one of the purposes of
    the interim rule was to correct misunderstandings regarding the
    certification status of pre-1996 wetland determinations and was not to
    change the legal status of wetland determinations conducted prior to
    1996. Certified wetland determinations conducted today, as well as
    those that have been certified since 1990, are completed using the
    methods and data required at the time of issuance, and any subsequent
    judgement as to their sufficiency as certified wetland determinations
    solely based on these methods or data is not authorized under the
    applicable legal framework.

    [[Page 53141]]

        This principle applies even when the Soil Conservation Service
    (SCS) or NRCS issued a certified wetland determination which may have
    been supported by a ``wetland inventory'' prepared prior to 1996. The
    process for conducting wetland inventories began in the late 1980's as
    a means for USDA to better meet the workload demand and assure timely
    response to requests for wetland determinations and was only completed
    in some States. The primary sources of information used to develop
    wetland inventory maps were USDA soil survey and hydric soils lists,
    United States Fish and Wildlife Service (USFWS) National Wetland
    Inventory maps, United States Geological Survey Topographic maps, and
    aerial imagery. Following the 1990 Farm Bill amendments, when the SCS
    or later the NRCS received a wetland determination request, the agency
    would review wetland inventory maps, if available, for completeness and
    accuracy. The Agency could use a wetland inventory map as the basis for
    preparing a certified wetland determination, after adjusting the
    depiction of the presence of potential wetlands based on additional
    information such as a field visit, evidence provided by the farmer such
    as drainage records, and other information such as new aerial imagery
    or updated soil surveys. It is clear that Congress was aware of this
    process from the conference report to accompany the 1990 Farm Bill:
        The Managers note that the current USDA wetland delineation process
    involves the use of substantial materials to make an initial
    determination in the field office, developed in consultation with other
    appropriate Federal and State agencies. Wetlands identified in this
    process are delineated on maps which are then mailed to producers for
    review. If the producer finds such map to be in error, and the USDA
    agrees that an error has been made, then the map is corrected. If the
    USDA does not agree that there is an error in the map, and the producer
    continues to believe so, then the producer may appeal such
    determination. The Managers find that this process is adequate for
    certification of any new maps delineated after the date of enactment of
    this Act.
        Rather than rejecting this process in 1996, Congress confirmed that
    a producer could rely upon prior certified determinations regardless if
    they were supported by wetland inventory maps or onsite data collected
    during a field visit. In fact, section 1222(a) as amended by the 1996
    Farm Bill stated explicitly that no person shall be adversely affected
    because of having taken an action based on a previous certified wetland
    delineation by the Secretary. The delineation shall not be subject to a
    subsequent wetland certification or delineation by the Secretary,
    unless requested by the person. Further, in the 1996 Farm Bill,
    Congress also removed the previous requirement for periodic review and
    update of wetland delineations, demonstrating Congressional support for
    the concept of certification first enacted in the 1990 Farm Bill.
        The interim rule was silent with respect to the certification
    status of pre-1990 wetland determinations. The certification of wetland
    determinations requirement was established in the Food, Agriculture,
    Conservation, and Trade Act of 1990 (1990 Farm Bill). When conducting
    new certified wetland determinations, NRCS considers all available
    information, including pre-1990 wetland determinations and the
    documentation associated with any field visits that occurred associated
    with any appeal and onsite review.
        Comment: USDA received comment that expressed concern over whether
    NRCS followed NEPA in 2013 for an alleged policy change, identified in
    a March 2013 Decision Memorandum, to deem these determinations as
    certified.
        Response: NRCS developed the March 2013 Decision Memorandum to
    obtain Secretarial approval to: (1) Update immediately NRCS internal
    agency policy to describe more fully, but not change, the wetland
    determination methods as they were being implemented by staff across
    the Nation; and (2) develop an interim rule for the Secretary's
    consideration. There was no basis in law to prepare NEPA documentation
    for the preparation of a decision memorandum about whether to conduct
    rulemaking or to clarify existing policy. The 2013 Decision Memorandum
    made clear that NRCS was only clarifying the long-standing national
    policy instituted under the statutory mandate of certification so
    plainly provided in the 1990 Farm Bill and revised in the 1996 Farm
    Bill.
        Comment: USDA received comment that suggested that NRCS not
    decertify and conduct revised determinations based on new mapping
    technology unless the USDA program participant raises the issue;
        Response: The interim rule did not make any changes regarding
    potential revision of determinations that are considered certified.
    NRCS confirms that certified wetland determinations are subject to
    revision only under limited circumstances, namely if the land in
    question has been removed from agricultural use, upon request of the
    USDA program participant, or when a violation of the WC provisions has
    occurred.
        Comment: USDA received comment that the WC provisions provided that
    only those actions taken based on previous certified determinations
    would be exempt from adverse agency action under 16 U.S.C. 3822(a)(6)
    and that actions taken based upon previous ``final'' or ``official''
    determinations were not so exempted.
        Response: As discussed above, USDA does not agree that 1990 through
    1996 determinations are ``final'' or ``official'' or any other
    designation other than ``certified'' or not. USDA concurs that the WC
    provisions specify that no person can be adversely affected because of
    having taken an action based on a previous certified wetland
    delineation by the Secretary. However, the interim rule did not change
    the ability of a producer who has a non-certified determination to seek
    equitable relief under 7 CFR 12.11. A producer's ability to seek
    equitable relief under 7 CFR 12.11 was first established in the April
    23, 1991 regulations which provided that an action of a person which
    would form the basis of any ineligibility under this part was taken by
    such person in good-faith reliance on erroneous advice, information, or
    action of any other authorized representative of USDA, the appropriate
    agency may make such benefits available to the extent that similar
    relief would be allowed under 7 CFR part 718.
        Comment: USDA received comment that the interim rule restates
    NRCS's established policy that pre-1996 determinations are considered
    certified if the person was notified that the determination had been
    certified, and the map document was of sufficient quality to determine
    ineligibility for program benefits, but fails to identify the
    requirement that the producer must have been given notice of their
    appeal rights when the determination was issued. The comment also
    opined that any policy NRCS would consider implementing that would
    allow the agency to accept as certified pre-1996 wetland determinations
    without additional evidence of their accuracy or that appeal rights
    were given at the time the determination was made would be contrary to
    Congress' intent.
        Response: USDA did not fail to identify the requirement that a
    producer had been given notice of their appeal rights. In particular,
    as explained in the interim rule preamble, USDA issued in June 1991 a
    revised CPA-026 form that included certification language in the agency
    signature block and contained the applicable appeal rights on the back
    side of the producer's copy. Section

    [[Page 53142]]

    12.30(c)(1), as amended by the interim rule, then identified that
    determinations made after November 28, 1990, and before July 3, 1996,
    are certified wetland determinations if the determination was issued on
    the June 1991 version of form NRCS-CPA-026 or SCS-CPA-026, which, given
    the forms' content, confirms that a producer was provided their appeal
    rights. The interim rule then also specifies that if the wetland
    determination was issued on a different version of the form, that
    wetland determination is certified if there is other documentation that
    the person was notified of the certification, provided appeal rights,
    and the map document was of sufficient quality to make the
    determination. The interim rule did not certify any of these pre-1996
    wetland determinations that were not already certified pursuant to the
    procedures under the 1991 final rule, nor is NRCS considering adopting
    any policy with respect to certification of wetland determinations
    contrary to Congressional intent.
        Comment: USDA received comment asserting that when pre-1996 wetland
    determinations are not considered certified, there are no circumstances
    consistent with statute that NRCS could use outdated wetland
    delineation methods to review and certify an old determination and
    specified that NRCS should remove the provision from the interim rule
    and instead make clear that determinations of wetland hydrology will be
    made in accordance with the wetland delineation methodology currently
    in use by NRCS.
        Response: USDA generally agrees with the comment; however, no
    revisions to the rule are necessary. The interim rule established that
    in order for a wetland determination made after November 28, 1990, and
    before July 3, 1996 to be considered certified, the determination must
    have been formally issued by NRCS, certifying the determination was of
    sufficient quality to determine ineligibility for program benefits,
    along with all appeal rights. The only exception is in situations where
    the previously issued certified wetland determination map document
    maintained by the producer or in the NRCS case file is now of such poor
    quality to render it impossible to locate wetlands on the farm. In
    these situations, a new certified wetland determination map, utilizing
    current methods, will be provided with appeal rights. Further, specific
    to 1991 through 1996 determinations, the amendments provided in the
    1990 Farm Bill, as supported by the 1991 rule, directed NRCS to
    certify, at the time of issuance, the wetland determination meets all
    quality and administrative mandates in effect at the time of issuance
    and certification. The interim rule did not certify any pre-1996
    wetland determinations, and NRCS policy has always been, and remains,
    that wetland determinations are made and certified as accurate and
    sufficient in accordance with the wetland delineation methods in effect
    at the time of certification, with the minor exception that is
    explained above under wetland determinations which have been appealed.
        Comment: USDA received comment that NRCS statements contemporaneous
    with the 1996 interim rule demonstrate that the agency understood its
    statutory mandate to require a review of previous wetland
    determinations to ensure their ``accuracy'' and that NRCS was
    considering establishing a specific time frame for completing the
    evaluation of existing wetland determinations.
        Response: The comment does not provide the full context under which
    such statements were made in the 1996 interim rule. In particular, as
    explained in the preamble of the 1996 interim rule, NRCS was
    considering conducting a review of wetland determinations in
    collaboration with other agencies who had entered into the Wetlands
    Memorandum of Agreement (MOA) in 1994. The 1994 MOA was to facilitate
    the use of NRCS wetland determinations for the Clean Water Act. The
    ``certification'' under the MOA aimed to ensure the accuracy of wetland
    delineations conducted prior to November 28, 1990 for the purposes of
    the WC provisions, as well as providing a useful basis for establishing
    reliance on wetland delineations for Clean Water Act purposes. It was
    in this context that the MOA agencies recognized the importance of
    providing certainty for the agricultural community as to the status of
    their wetland determinations which have not been certified for use for
    both the WC provisions and the Clean Water Act, and that the Agencies
    were considering the establishment of a specific time frame for
    completing the evaluation of existing wetland determinations, and that
    based on the evaluation landowners would be notified whether their
    current wetland determinations are acceptable for both the WC
    provisions and the Clean Water Act. (61 FR 47025). It is important to
    note that the discussion on the MOA and evaluation of existing wetland
    determinations in the 1996 rule preamble follows the statement, If NRCS
    certified a wetland determination prior to July 3, 1996, the
    certification will remain valid (61 FR 47025). As such, it is clear
    that the evaluation applied to wetland determinations conducted prior
    to 1990.
        This evaluation was limited to portions of five states in the
    prairie pothole region of the United States and was not a comprehensive
    study of the WC program for purposes of WC certification. The purpose
    of the evaluation was to apply the different off-site wetland
    determination methods used in the different states at the time and to
    determine the consistency, not the accuracy, of the findings. The
    evaluation team did not review the quality of any previously issued
    certified wetland determinations or any older non-certified
    determinations. After the 1996 Farm Bill amendments definitively closed
    any opportunity for review and update of previously issued certified
    determinations, the Agency remained challenged on how to treat pre-1990
    non-certified wetland determinations. Following the findings from the
    evaluation and facing the 1995 moratorium on wetland determinations
    which had been imposed by Secretary Glickman in response to bi-partisan
    Congressional legislation, the Agency recommended to the Department to
    end the practice of reviewing and updating previously completed wetland
    determinations. In a 1997 Informational Memorandum, the Agency proposed
    that wetland determinations would be conducted only on request, when a
    manipulation is planned, or in cases of potential violations, adhering
    to the 1996 statutory changes. Thereafter, the Secretary lifted the
    moratorium on wetland determinations.
        At no point in the preamble or the regulation part of the 1996 rule
    did the Secretary provide NRCS the authority to review and update
    proactively any certified wetland determination, including those
    determinations issued and certified by the Agency prior to 1996. In
    fact, the practice was explicitly prohibited in the statement in the
    preamble if NRCS certified a wetland determination prior to July 3,
    1996, the certification will remain valid. The certainty discussed in
    length in the 1990 Conference Report, enacted into law in the 1990
    Amendments, and strengthened in the 1996 amendments, provided assurance
    to USDA program participants that once certified, a wetland
    determination would never be changed by USDA except for limited
    circumstances identified above. The clarification provided in the 2017
    amendment to the NRCS National Food Security Act Manual (NFSAM), as
    codified in regulation in the 2018 interim rule, supports this
    assurance.

    [[Page 53143]]

    Certified Wetland Determination Map Quality Concerns

        Comment: USDA received comment concerning the quality of wetland
    determination maps and requesting that NRCS clarify what constitutes a
    map of sufficient quality for making determinations of ineligibility
    benefits.
        Response: In the interim rule, USDA identified that in order for a
    1990 through 1996 wetland determination to be considered certified, the
    map document must be of sufficient quality to determine ineligibility
    for program benefits. The purpose of the wetland determination map is
    so that the USDA program participant can accurately self-certify that
    they are in compliance with the WC provisions, and USDA can respond to
    questions regarding eligibility. There are rare situations where
    certified wetland determination maps produced prior to development of
    computer map production capabilities and quality document reproduction
    technologies are of such poor quality that neither the person, nor USDA
    can accurately discern the location of wetlands on the map. As
    explained in the language in the interim rule, such a map would not be
    considered of sufficient quality for eligibility determination
    purposes.

    Climate References in Rulemaking

        Comment: USDA received comment suggesting that reference to climate
    and environment not be used in rulemaking.
        Response: USDA will continue to use terminology that is necessary
    or facilitates the implementation of its responsibilities in concert
    with the scientific understanding of meteorological, atmospheric,
    hydrological, and soil health issues facing USDA program participants
    and agricultural operations of the United States.

    Commenced Conversion

        Comment: USDA received comment related to commenced conversion
    wetlands, identifying that it appears that the interim rule changed the
    original statutory commenced conversion language as the interim rule
    uses the term ``occurred'' when referencing wetland conversions prior
    to December 23, 1985, while the statute uses the term commenced.
        Response: USDA did not make any change in the interim rule that
    affected the treatment of commenced conversion wetlands under 7 CFR
    part 12. As specified in the September 6, 1996, interim rule, a person
    seeking a commenced conversion exemption must have completed the
    conversion activity on or before January 1, 1995. As the commenced
    conversion exemption is no longer available, USDA uses the term
    ``occurred'' to simplify explanation of the WC provisions.

    Definitions

        Comment: USDA received comment seeking surety that the term
    ``farmed wetland'' meets all three criteria for wetland. USDA also
    received comment about the definitions of pothole, playa, and pocosin,
    which sought to expand the definition of potholes to cover the Great
    Plains; or to clarify the definition of a pothole. Comment on certain
    definitions or their aspects, such as hydrology criteria for farmed
    wetlands, are addressed in their own sections of this preamble.
        Response: The definition of wetland is a general term, whereas
    farmed wetland and farmed wetland pasture are specific types of
    wetlands identified as having been manipulated prior to December 23,
    1985, but still retaining wetland characteristics. USDA affirms that
    farmed wetland and farmed wetland pasture must meet all three wetland
    criteria: Soil, vegetation under normal circumstances, and the
    hydrology criteria identified in regulation. USDA does not agree that
    additional specificity in their definitions is needed, as each
    definition starts out with the requirement that they are a wetland. As
    described in the wetland determination process in Sec.  12.30(c)(7),
    wetland type is identified in step 2, which is after the determination
    of the three wetland criteria, and the definition of wetland in both
    statute and regulation require all three criteria.
        USDA appreciates the support it has received for adding definitions
    of potholes, playas, and pocosins. As provided in the preamble to the
    interim rule, the definitions of pothole, playa, and pocosin provided
    in the interim rule were unchanged from definitions provided in agency
    policy since the early 1990s. There is no scientific basis to amend the
    definitions set forth in the interim rule and USDA does not wish to
    alter the long-standing scope of protections for these types of
    wetlands at this time.
        In order to gain consistency in the construction of the definitions
    of farmed wetland, farmed wetland pasture, and PC, minor adjustments
    are being made in Sec.  12.2. The phrase, at least once before December
    23, 1985, is added in reference to the frequency that an agricultural
    commodity must have been produced on farmed wetland to be consistent
    with the definition of PC. USDA affirms that only one instance of
    agricultural commodity crop production prior to December 23, 1985, is
    and has always been needed in order to qualify for either the farmed
    wetland or PC designations. Similarly, although the definition for
    farmed wetland pasture has always specified that it must have been
    managed for pasture or hayland, clarification is added that it also was
    not used to produce an agricultural commodity at least once before
    December 23, 1985, which allows USDA and the public an easier
    juxtaposition between this and the farmed wetland designation, and is
    consistent with long-standing application of these definitions.
    Finally, the phrase, prior to December 23, 1985, is relocated in the
    definition of farmed wetland pasture to be consistent with its location
    in the definition of farmed wetland.

    Endangered Species Act Consultation

        Comment: USDA received comment that USDA must undertake
    consultation under the ESA with respect to the potential impacts to
    listed species and their habitat before implementing the interim rule
    and alleging that USDA is currently in ongoing violation of the ESA and
    its implementing regulations.
        Response: USDA disagrees consultation under section 7 of the ESA
    was required for its rulemaking action. ESA section 7(a)(2) requires
    agencies, in consultation with either the Secretary of the Interior or
    Commerce, to ensure that any action authorized, funded, or carried out
    by an agency is not likely to jeopardize species listed under the Act
    or designated critical habitat (16 U.S.C. 1536(a)(2)). As discussed
    further below, the procedural and substantive requirements of the Act
    are not triggered here because: (1) Wetland determinations are not an
    ``action'' that ``authorizes, funds, or carries out'' activities by
    producers impacting protected species or critical habitat; (2) neither
    the interim rule nor this final rulemaking are an affirmative ``agency
    action'' for the purposes of the ESA, only a clarification of long-
    standing policy; and (3) even if the interim rule or this final rule
    were an affirmative agency action, USDA does not have discretion to
    deviate from the requirements set forth by Congress. For these reasons,
    the requirements of ESA section 7(a)(2) are not triggered here.
        First, NRCS provides technical assistance to USDA program
    participants in the form of wetland determinations to assist them to
    comply with the WC provisions. Producers choose whether to comply with
    the WC provisions based on their desire to participate voluntarily in
    covered USDA programs and other factors. NRCS can

    [[Page 53144]]

    neither prohibit nor permit USDA program participants from converting
    wetlands potentially used by ESA-listed species to agricultural
    production; therefore, NRCS' technical determinations are not agency
    actions that trigger the consultation requirements of ESA section
    7(a)(2). Further, as established by a memorandum (FWS/AES/DCHR/007178)
    dated April 2, 2001 from the USFWS's Acting Deputy Director to the
    Regional Directors, ``consultation under section 7(a)(2) of the
    Endangered Species Act is not required when the Natural Resources
    Conservation Service conducts official wetland determinations or
    delineations on private lands under the Food Security Act of 1985, as
    amended.'' Additionally, section 1223 of the 1985 Farm Bill previously
    required consultation with USFWS on the identification of wetlands and
    the determination of exemptions, but such consultation was specifically
    removed in the 1996 Farm Bill. While the consultation referenced
    previously in section 1223 was not specific to ESA consultation, its
    removal identifies that Congress did not believe consultation with
    USFWS was needed on any wetland determination related concerns. Thus,
    wetland determinations themselves are not ``agency actions'' that
    trigger the requirements of ESA section 7(a)(2).
        Second, because wetland determinations themselves are not agency
    actions that trigger the requirements of ESA Section 7(a)(2), guidance
    or clarification from USDA is also not an agency action that triggers
    the Act's requirements. Neither the interim rulemaking, this final
    rulemaking, nor the technical methods by which NRCS makes wetland
    determinations have the potential to adversely impact protected species
    or critical habitat. Additionally, the interim rule and this final rule
    are codifying long-standing policy and this codification does not alter
    the status quo. Thus, NRCS has determined that the rule would have no
    effect on any listed species. When an action will have ``no effect'' on
    listed species, consultation requirements are not triggered.
        Third, ESA only applies to actions over which the agency has
    discretionary control sufficient to impose measures for the benefit of
    protected species. Most of rule implements statutory requirements
    prescribed by Congress, such that NRCS has no discretionary control.
    Further, NRCS' provision of technical assistance to agricultural
    producers in the form of a wetland determination carries no authority
    to prevent producers for converting wetlands to agricultural
    production. Where an agency is required to act in particular manner,
    there is no utility in ESA consultation and the requirement is not
    triggered.
        Comment: USDA received comment that stated that by permitting
    producers to certify inaccurate wetland determinations and convert
    improperly delineated wetlands to agricultural use without penalty,
    NRCS's actions at the very least ``may affect'' listed species by
    facilitating the destruction of important habitat for endangered
    migratory birds and other animals that frequent agricultural wetlands.
    The comment also asserts that the interim rule, as a change in policy,
    reversed the incentive to preserve such wetlands and thus necessarily
    affects listed species.
        Response: As described above, the interim rule and this final rule
    do not facilitate the destruction of habitat or otherwise affect listed
    species because USDA is not authorizing producers to take any
    activities, these rulemakings are only a clarification of long-standing
    policy and not a change in policy, and USDA does not have discretion to
    deviate from the requirements set forth by Congress. The comment
    mischaracterizes the certification process as the producer does not
    ``certify'' wetland determinations, whether the commenter considers
    such wetland determination accurate or not. Comment may be based upon
    misinterpretation of the internal 2013 Decision Memorandum that made
    reference to producer review of pre-1996 certified wetland
    determinations (discussed above). NRCS certifies wetland determinations
    in accordance with statutory, regulatory, and policy guidance. The 2013
    Decision Memorandum simply reflected this legal framework where prior
    certified wetland determinations remain certified unless a new
    determination is requested by the producer; however, the new
    determination process that follows any such request is conducted by the
    agency and such review does not in any way mean that the producer is
    certifying the wetland determination.
        Further, as previously noted above, a memorandum (FWS/AES/DCHR/
    007178) dated April 2, 2001 from the USFWS's Acting Deputy Director to
    the Regional Directors stated, ``consultation under section 7(a)(2) of
    the Endangered Species Act is not required when the Natural Resources
    Conservation Service conducts official wetland determinations or
    delineations on private lands under the Food Security Act of 1985, as
    amended.'' Additionally, as described elsewhere in this preamble, the
    interim rule did not effect a change in policy, and therefore does not
    meet the definition of ``action'' under ESA section 7.
        For all these reasons, the agency has not taken an action that
    would affect listed species and trigger the consultation requirements
    of ESA section 7(a)(2). USDA thus has determined that the rule will
    have no effect on listed species.

    Farmed Under Natural Conditions

        Comment: USDA received comment related to farmed under natural
    conditions requesting that NRCS reiterate that farming under natural
    conditions is allowed.
        Response: USDA affirms that USDA program participants may continue
    to farm wetlands under natural conditions without risk of losing their
    eligibility for USDA program benefits. As first stated in the 1986
    interim rule and still existing in Sec.  12.32(b)(1), destruction of
    herbaceous hydrophytic vegetation shall not be considered an action
    that destroys a natural wetland characteristic.

    Mitigation

        Comment: USDA received comment urging NRCS to encourage mitigation
    efforts, and in doing so, amend its regulations generally not to
    require more than a one-to-one ratio for mitigation.
        Response: In the Agriculture Improvement Act of 2018 (2018 Farm
    Bill), Congress reauthorized the availability of funding for NRCS to
    support wetland mitigation banks, and such funds have been made
    available. USDA believes the availability of wetland mitigation banks
    for WC mitigation purposes will greatly encourage wetland mitigation
    efforts. The WC statutory provisions identify that wetland and the
    wetland values, acreage, and functions must be mitigated, and that a
    person can appeal any ratio greater than a one-to-one. No changes were
    made in response to this comment.

    Navigable Waters Protection Rule

        Comment: USDA received comment expressing confusion about the
    wetland conservation provisions of the 1985 Farm Bill and the Federal
    Clean Water Act.
        Response: It should be emphasized that this final rule, in part,
    governs the identification of wetlands for the purpose of implementing
    the wetland conservation provisions of the 1985 Farm Bill. This
    rulemaking does not affect the identification of waters subject to the
    Federal Clean Water Act or the

    [[Page 53145]]

    implementation of any other Federal, State, or local provision
    protecting or regulating wetlands or any other land or water resources.
    At times, NRCS wetland determinations may encompass wetlands that are
    also subject to Clean Water Act regulations, including Clean Water Act
    section 404 discharge of dredged or fill material permitting
    requirements. However, due to the unique statutory provisions of the
    1985 Farm Bill, while NRCS wetland determinations may identify certain
    areas as exempt under the 1985 Farm Bill, those same areas may have the
    potential to be jurisdictional under the Clean Water Act.
        The U.S. Environmental Protection Agency (EPA) and the Department
    of the Army (Army) have recently revised the definition of ``waters of
    the United States'' in the Navigable Waters Protection Rule, which
    establishes the scope of Federal jurisdiction under the Clean Water
    Act. See 85 FR 22250-22342 (April 21, 2020). In the rulemaking to
    revise the definition of ``waters of the United States,'' the EPA and
    the Army have retained their long-standing definition of ``wetlands''
    and have defined ``prior-converted cropland'' for purposes of the Clean
    Water Act, including when these lands would no longer be excluded from
    the definition of ``waters of the United States.'' NRCS notes that this
    rule defines ``prior-converted cropland'' differently for 1985 Farm
    Bill purposes than the definition that is identified in the EPA and the
    Army ``waters of the United States'' rulemakings for Clean Water Act
    purposes. Further, NRCS also notes that this final rule for 1985 Farm
    Bill purposes is entirely separate from the EPA and the Army ``waters
    of the United States'' rulemakings.
        USDA recognizes that USDA program participants may be confused
    between the sometimes-differing requirements of the 1985 Farm Bill and
    the Clean Water Act. To avoid confusion, NRCS clearly informs USDA
    program participants that NRCS wetland determinations are for purposes
    of implementing the 1985 Farm Bill's wetland conservation provisions
    only, and that the participant should contact the U.S. Army Corps of
    Engineers for clarification about whether a particular activity will
    require a Clean Water Act section 404 permit.

    National Environmental Policy Act (NEPA) Compliance

        Comment: USDA received comment on the Environmental Assessment (EA)
    for the interim rule that it had failed to meet its NEPA
    responsibilities by not identifying sufficient alternatives, failing to
    conduct an Environmental Impact Statement (EIS) due to several factors
    the commenters' identified that should have triggered such analysis,
    failure to provide a ``hard'' look, and failing to meet other NEPA
    requirements.
        Response: Much of this criticism rests upon the mischaracterization
    of the interim rule. The provisions of the rule regarding certification
    of wetland determinations made between 1990 and 1996, only clarify
    existing policy that itself implements statutory language that NRCS
    lacks discretion to change. The remainder of the rule clarifies and
    codifies existing NRCS policy and procedures with regard to the methods
    NRCS uses to identify wetlands and does not change the status quo.
    Thus, NRCS properly prepared an EA and reached a Finding of No
    Significant Impact (FONSI).
        In the 1990 Amendments to the Farm Bill, Congress directed USDA to
    establish a process for certifying wetlands determinations. To
    implement this mandate, SCS developed the process of certification
    through completion of the SCS-CPA-026 form, which certifies that the
    maps are sufficient for determination of ineligibility and notifies the
    farmer of his or her appeal rights. In 1996, Congress expressly
    circumscribed NRCS's discretion to revise prior determinations,
    providing that a previous certified wetland delineation shall not be
    subject to a subsequent wetland certification or delineation by the
    Secretary unless requested by the person.
        While NRCS had some initial discretion to establish a process for
    certifying wetland determinations in the wake of the 1990 Amendments--
    discretion it used to develop the SCS-CPA-026 form process--Congress
    expressly removed any discretion to revisit those certifications in the
    1996 Amendments. Thus, if a determination was certified between 1990
    and 1996 under the criteria applicable at that time, the 1996
    Amendments left the NRCS with no discretion except to continue
    recognizing those determinations as certified.
        One discretionary addition made in the interim rule is for NRCS to
    continue to use the 1971 through 2000 precipitation dataset in its
    decisions on whether wetland hydrology criteria are met under normal
    circumstances rather than begin to use the currently available 1981
    through 2010 precipitation dataset and establish a precedent to
    continue to update the dataset used every 10 years. Because the 1971
    through 2000 precipitation dataset has been the one NRCS has used since
    it began making certified wetland determinations, codifying the
    continued use of that dataset also does not represent a change from the
    status quo. Further, because the term ``normal circumstances'' as used
    in the 1985 Farm Bill includes hydrology manipulations that occurred
    before the date of enactment, NRCS must have enough years of pre-1985
    precipitation data available to use in making decisions on wetland
    hydrology.
        NRCS was not required to prepare an EIS because the interim rule
    only clarified and did not change existing NRCS policy and procedures
    and because NRCS lacks discretion to change policy in a manner that
    would revisit certifications made between 1990 and 1996. Further, NEPA
    has no specific requirement regarding the number of alternatives an
    agency must develop and analyze; at a minimum, an agency must carry
    forward one action alternative and the no-action alternative. An agency
    is not required to consider alternatives that have substantially
    similar consequences. As described in the EA, a 1991 National Resources
    Inventory (NRI) completed a wetlands survey that confirmed wetland
    conversions to agriculture had slowed compared to those occurring
    before the 1985 Farm Bill and noted that agricultural activities
    seemingly had less impact on wetland conversions than expected (Schnepf
    2008). The EA also cites the 2010 NRI Summary Report (Sucik and Marks
    2014) analysis of data showing the status and recent trends of wetlands
    in four regions of the U.S. The report documents wetland losses in the
    northeast and southeast, primarily resulting from urban development,
    not conversion to agriculture. Further, the central and western regions
    have experienced a gain in wetland acres, primarily on agricultural
    lands.
        Because conversion to agriculture is only one cause of wetland
    losses, and NRCS has no information indicating conversion to
    agriculture is currently a primary cause, NRCS does not expect the
    precipitation dataset used to help make determinations on the presence
    or absence of wetland hydrology to make a significant difference in the
    amount of wetlands identified as subject to the wetland conservation
    provisions. Because an alternative that considered decadal updates to
    the precipitation dataset would have substantially similar
    environmental consequences as the proposed action retaining use of the
    1971 through 2000 dataset, the no action and proposed action
    alternatives were sufficient.

    [[Page 53146]]

    Normal Climatic Conditions and Precipitation Data

        Comment: USDA received comment on the information that NRCS uses to
    determine ``normal circumstances'' to meet the hydrology component of
    the wetland definition that the land ``under normal circumstances''
    does support a prevalence of hydrophytic vegetation. In particular,
    USDA received comment related to:
         Support for the definition of normal climatic conditions
    in Sec.  12.2(a);
         Requesting a change from hydrologic inputs to
    precipitation;
         Increased clarity as to when to seek information in
    Climate Analysis for Wetlands Tables (WETS Tables) as opposed to the
    Field Office Technical Guide (FOTG);
         Concern about how NRCS uses data collected by the National
    Oceanic and Atmospheric Administration in establishing normal climatic
    condition for the WETS Tables.
         Concern about maintaining current precipitation data,
    including--
        [cir] Support for NRCS using the 1971 through 2000 data set;
        [cir] Recommendation to use only pre-1985 data, including only
    normal rainfall data from years prior to 1985;
        [cir] Recommendations about how to use the existing data set
    situationally;
        [cir] Recommendation to use the 1981 through 2010 data set since
    the 1971 through 2000 data set was associated with a drier time period;
        [cir] Use 1971 through 2000 data set for wetland determinations
    with pre-1985 manipulations and current precipitation data for new land
    being brought into production;
        [cir] Limiting use of the 1971 through 2000 data set to only those
    situations where the producer can demonstrate the existence of special
    circumstances, such as where the use of the new dataset would create a
    demonstrably unfair result.
         Seeking a connection between the definitions of normal
    climatic conditions and normal circumstances;
         Conduct an analysis of the hydrologic conditions that
    occurred prior to 1985;
         Clarify how the precipitation data dates were chosen and
    how they will be applied.
        Response: USDA appreciates the support it has received for the
    definition of ``normal climatic conditions'' as defined in the interim
    rule and will retain that language in this final rule. NRCS understands
    the comment about focusing on precipitation but hydrologic inputs can
    include other sources of water such as floodwater from an adjacent
    stream that may require consideration in the FOTG.
        The definition of normal climatic conditions does not itself
    provide guidance as to when WETS Tables or the FOTG is appropriate. The
    determination of normal climatic conditions will typically be
    determined with the use of WETS Table data as provided in the NRCS
    Engineering Field Handbook. If other methods are used, such as those to
    account for hydrologic inputs other than precipitation, that data and
    methods for its use will be provided in the FOTG. This flexibility is
    necessary to assure the accuracy of wetland determinations being issued
    across the highly diverse ecoregions contained within the United
    States.
        The term ``normal circumstances'' is part of the statutory wetland
    definition but is not defined itself in statute or in 7 CFR part 12.
    Agency policy explains that there are two considerations in the
    determination of normal circumstances. One is consideration of pre and
    post December 23, 1985, disturbance and the other is consideration of
    climate. The term ``normal climatic conditions'' is applied to the
    latter, and specifically requires that wetland identification be based
    on conditions that are present under normal climate, not those
    conditions which are present due to abnormally wet or dry conditions.
        USDA appreciates the concerns expressed by the commenters critical
    of NRCS' continued use of the 1971 through 2000 data set. NRCS'
    National Water and Climate Center (NWCC) has prepared WETS Tables to
    help assess normal climatic conditions. The WETS Tables display monthly
    rainfall data as the monthly average (50th percentile), and the values
    at which there is a 30 percent chance that the rainfall will be less or
    more than those values (30th and 70th percentiles). The range between
    the 30th and 70th percentiles defines normal monthly rainfall. Rainfall
    records from a defined period preceding the date of onsite or remotely
    sensed (for example, aerial photograph) evidence can be compared with
    these values to determine if observed conditions were reflective of
    what would be expected under ``normal climatic conditions.'' This data
    is stored in the Agricultural Applied Climate Information System
    (AgACIS) which is a public repository for data collected at stations in
    the National Weather Service (NWS) Cooperative Network. Data and
    several standard summary reports are available. Historically, the most
    common summary reports used in NRCS are Temperature and Precipitation
    Summary, Frost-Free Days, Growing Season, and WETS Tables. AgACIS
    brings historical climate information (used for the 1971 through 2000
    WETS Tables and other historical datasets) and near real-time data
    together under one umbrella system where they are fused into quality
    products to assess historical climate trends, enhance daily operational
    decisions, or assist with any number of climate dependent activities.
    USDA believes that the data quality and control processes used by the
    NWS are adequate and that the NWS Cooperative Network encompasses
    enough geographic coverage to fully represent the agricultural
    landscape.
        For data sets that are used to document local climatic conditions,
    such as daily rainfall and temperature records, climatologists
    recognize a 30-year period of record as a minimum for statistical
    accuracy. Because NRCS must consider best drained conditions that
    existed on or before December 23, 1985, it must use the 1971 through
    2000 data set to have enough years of data to evaluate observations of
    hydrology indicators. The 1981 through 2010 data set would not allow
    for enough years prior to December 23, 1985, to be able to assess
    normal climatic conditions for many determinations. To assure fair and
    consistent application of this process and predictability for USDA
    program participants, NRCS has maintained its use of the 1971 through
    2000 data set. NRCS received comment that use of a 30-year average was
    reasonable, and NRCS agrees that such an average is accurate while not
    being influenced by shorter term climatic variability. Regarding the
    use of a more contemporary dataset for the evaluation of land currently
    being brought into production, USDA appreciates this comment but feels
    that providing consistency in the process and predictability for USDA
    program participants, correlated to the statutory date of December 23,
    1985, is an important aspect of implementation of the WC provisions,
    and that the continued use of the 1971 through 2000 data set is
    appropriate in all situations.

    Office of Inspector General Audit Report in 2017

        Comment: USDA received comment asserting that the interim rule
    failed to address the 2017 Office of Inspector General (OIG) Audit
    Report, ``USDA Wetland Conservation Provisions in the Prairie Pothole
    Region.'' Some of the comment concerning the content of the OIG Report
    are addressed in the Certification Status of pre-1996 Wetland
    Determinations section of this preamble. The remainder are addressed
    below.

    [[Page 53147]]

        Response: As documented in the NRCS response contained in the
    report, USDA disagrees with much of the content of the 2017 OIG report
    and the report's characterizations of NRCS actions taken. As is common
    to all audits, matters are identified as needing improvement and if
    significant, warrant a recommendation. The 2017 OIG report only issued
    two recommendations. The first recommendation was for the Agency to
    issue clarity on certification. The agency agreed to release
    ``additional policy clarification providing specific guidance to
    evaluate the certification status of determinations issued prior to
    1996.'' In good-faith, NRCS released its clarification in a 2017
    amendment to the NFSAM, and in the December 2018 interim rule. NRCS was
    not required to reference the OIG report itself in the interim rule.
        As noted above, NRCS has long recognized that determinations made
    between 1990 and 1996 on a properly completed CPA-026 form are
    certified. In 2010 through 2012, however, NRCS realized that staff in
    the four prairie pothole States were incorrectly applying national
    policy and not recognizing certified determinations made between 1990
    and 1996. Between 2012 and 2013, NRCS National Office staff worked with
    these four States to better explain the statute, regulations, and
    policy regarding certification. In 2013, NRCS leadership in those
    states asked staff to align the application of certification in support
    of the statute and the 1991 and 1996 regulations. In 2013, NRCS
    proposed, in a Decision Memorandum to the Secretary of Agriculture,
    that the certification issue be clarified in the preamble of an
    upcoming proposed rule. However, in the wake of the Agricultural Act of
    2014, the proposed clarification of certification policy in a rule was
    not made due to other priorities--namely the recoupling of crop
    insurance benefits to the highly erodible land and wetland conservation
    provision requirements.
        In March 2014, OIG received a complaint alleging that NRCS
    officials were improperly directing officials in the prairie pothole
    states to treat wetland determinations from 1990 through 1996 as
    certified rather than making new wetland determinations. During OIG's
    investigation, NRCS explained to the OIG auditors the 28-year history
    of certification, including the initiation of certification subsequent
    to enactment of the 1990 Farm Bill, the amendments on certification in
    the 1996 Farm Bill, and the 1991 and 1996 implementing regulations. In
    2017 OIG issued a report which concluded that NRCS policy had been to
    consider wetland determinations made between 1990 through 1996 as not
    certified ``unless the determination was appealed and upheld,'' and
    that NRCS's 2013 instructions to the prairie pothole states, that 1990
    through 1996 determinations were certified if the producer had been
    notified of its right to appeal, represented a change in policy. While
    NRCS disputed the OIG's characterization of its policy, it accepted
    OIG's recommendation that NRCS eliminate confusion regarding
    certification, by issuing clarifying guidance: ``Recommendation 1--
    Issue official guidance reinforcing correct and current rules and
    clarifying procedures for making wetland determinations and
    certification, including the status of pre-1996 determinations.''
        The report's recommended management action was not to correct
    erroneous agency policy, or to change agency policy. The management
    action was for NRCS to issue guidance clarifying that two rules (the
    1991 final rule and the 1996 interim rule), apply to certified
    determinations. To determine the certification status of any previously
    issued determination, NRCS must use the rule in force at the time of
    the previously issued determination. NRCS acted on the OIG
    recommendation and issued a clarifying amendment to the NFSAM in 2017
    and the interim rule in 2018; both of which met the recommendation of
    clarifying certification, including the status of pre-1996
    determinations.

    Off-Site Analysis of Potentially Highly Erodible Land

        Comment: NRCS received comment related to potentially highly
    erodible land (PHEL), concerning the establishment of this designation,
    defining the resolution of the elevation data that NRCS may use, and
    identifying that NRCS should emphasize offsite determinations involving
    PHEL can be appealed.
        Response: NRCS identifies highly erodible land based upon the
    predominant soil map unit in a field. Where soil map units have a range
    of slope and steepness factors that could result in a soil map unit
    being determined either highly erodible or not for water erosion, NRCS
    gives that soil map unit a designation of potentially highly erodible
    land, following a process first described in the 1986 interim rule and
    still existing in Sec.  12.21(c). The final erodibility of a particular
    field that contains potentially highly erodible soil map units has been
    determined through onsite measurements of slope and steepness. However,
    USDA identified in the interim rule that NRCS could also make a
    determination of erodibility using new technological tools, including
    the use of LiDAR or other elevational data in lieu of an onsite
    measurement. The availability and type of elevational data varies
    across the United States, and NRCS has developed procedures to evaluate
    its use. Additionally, NRCS specifically added that if a person
    disagrees with an offsite determination on potentially highly erodible
    soils, a determination will be made onsite. No changes were made in
    response to these comments.

    Offsite Analysis of Wetland Minimal Effect

        Comment: USDA received comment related to the offsite analysis of
    wetland minimal effect, including the role of States in minimal effect
    analysis, recommending NRCS only conduct onsite minimal effect
    analysis, recommending NRCS conduct minimal effect analysis even after
    commencement of potential conversion activities, questioning how many
    minimal effect determinations have been issued, suggesting NRCS use
    yield records as evidence for offsite analysis, suggesting that any
    burden of establishing minimal effect post-conversion should not be on
    the person while other comment insisted that such burden remain with
    the person, recommending NRCS develop a list of categorical minimal
    effect activities, and suggesting that the interim rule left too much
    to agency discretion. Comment also asserted that NRCS could not remove
    the on-site evaluation requirement simply to make it easier to offer
    this exemption to USDA program participants and that the Agency must
    adopt specific criteria for when off-site methods can be used.
        Response: USDA appreciates the attention and support this issue has
    received. NRCS considers all useful evidence in analyzing whether an
    activity will result in a minimal effect. While onsite analysis of
    minimal effect to the wetlands in the area might provide more robust
    data, it is not always a practicable option, as NRCS may not have the
    authority to visit wetlands in the area outside the site under
    consideration of the minimal effect request. The interim rule clarifies
    that offsite analysis is an option to determine the impacts of the
    action on wetlands in the area, while an onsite visit is required to
    the site under consideration of a minimal effect exemption. Minimal
    effect analysis must happen on a case-by-case basis and the language of
    the interim rule, which is not changed in this final rule,

    [[Page 53148]]

    provides a reasonable balance between clarity and discretion to allow
    for case-by-case analysis. Once a potential conversion activity has
    commenced, an accurate and fair minimal effect determination is made
    more difficult because of disturbance which is why the burden is on the
    USDA program participant to demonstrate minimal effect in that
    situation. While NRCS will not be adopting any list of categorical
    minimal effects in this rule, the option to create such a list exists
    for future rulemakings and States would play a role in the development
    of any list.

    PC Any Land With Pre-1985 Drainage

        Comment: USDA received comment related to land with pre-1985
    drainage, identifying that if conversion had been commenced prior to
    1985, including lands identified as farmed wetlands, they should not be
    subject to the WC provisions.
        Response: Farmed wetlands have been subject to the WC provisions
    since 1987 and were formally defined in regulation in 1996. Congress
    has not altered NRCS administration of farmed wetlands since first
    described in regulation. Conversely, Congress has embraced farmed
    wetland terminology in its own explanations of the WC provisions and
    eligibility for conservation programs under Title XII of the Food
    Security Act of 1985, such as the Wetlands Reserve Program originally
    authorized in the 1990 Farm Bill. There have also been specific
    criteria for identification of commenced conversion wetlands and
    whether such wetlands are considered exempt or not from the wetland
    conservation provisions as described above. No changes have been made
    in response to these comments.

    Seasonal Wetlands

        Comment: USDA received comment that the interim rule should be
    withdrawn because it systematically imposes several changes to NRCS's
    wetlands identification policies that, when considered cumulatively
    with existing practices, result in the exclusion of seasonal wetlands
    in wetlands determinations. The comment identifies that seasonal
    wetlands have been excluded through the wetland maps that form the
    basis for producer compliance, asserting that the rule certified pre-
    1996 wetland determinations and that these consistently excluded
    seasonal wetlands. Additionally, the comment also claims that the older
    determinations utilize precipitation data from a historically dry
    period (1990 through 2000) that limits the number and size of seasonal
    wetlands subject to the wetland conservation compliance requirements
    and that there is no scientific analysis of the impact of the use of
    such information.
        Response: As explained above, the interim rule did not make any
    changes, and thus does not have an impact, cumulatively or otherwise,
    on seasonal wetlands. Additionally, the interim rule did not certify
    any pre-1996 wetland determinations but simply clarified the
    certification status of wetland determinations made prior to 1996. With
    respect to the precipitation dataset used, this comment is addressed in
    the NEPA compliance section. In particular, because the 1971 through
    2000 precipitation dataset has been the one NRCS has used since it
    began making certified wetland determinations, codifying the continued
    use of that dataset also does not represent a change from the status
    quo. Further, because the term ``normal circumstances'' as used in the
    1985 Farm Bill includes hydrology manipulations that occurred before
    the date of enactment, NRCS must have enough years of pre-1985
    precipitation data available to use in making decisions on wetland
    hydrology.
        Comment: USDA received comment asserting that the interim rule
    unduly relies on satellite imagery from the hottest time of the year
    when seasonal wetlands have likely dried out. The comment recommended
    that any NRCS wetland determination should account for the use of
    summer imagery and promote investments in more accurate spring imagery
    to ensure that identification of seasonal wetlands which fill early in
    the spring, which is when they provide their most important flood
    storage and wildlife benefits, particularly for migrating and nesting
    waterfowl.
        Response: Neither the interim rule nor this final rule addresses
    the specific timing of aerial imagery used for making wetland
    determinations. NRCS utilizes all available data including data
    collected with new technologies. While spring imagery is helpful in
    identifying seasonal wetlands, it does not always exist. Aerial imagery
    taken in the summer months is often available and used, and indicators
    of spring wetness are commonly evident on imagery taken later in the
    growing season. Guidance on interpretation of these indicators is
    provided in technical methods such as State Off-Site Methods for
    wetland identification and the U.S. Army Corps of Engineers Wetlands
    Delineation Manual (Corps Manual) regional supplements.

    Setback Distance Concerns

        Comment: USDA received comment related to setback distance
    concerns, recommending that NRCS adopt a system that avoids site-
    specific analysis to provide better notice and consistency to USDA
    program participants.
        Response: When a USDA program participant wishes to install
    drainage tile in a field, NRCS provides technical assistance regarding
    the appropriate distance from a wetland or farmed wetland that they may
    install the drainage tile without risk of violating the WC provisions.
    Site-specific analysis is sometimes unavoidable due to the variations
    of soils, hydrology, and geographic position of wetlands on the
    landscape. While NRCS will continue to evaluate many requests using a
    site-specific analysis, NRCS is also currently pursuing improvements to
    the methods which are used to provide setback distances to USDA program
    participants and will consider this comment in their development.

    Wetland Hydrology Indicators

        Comment: USDA received comment on wetland hydrology indicators and
    other methods used to identify farmed wetland, farmed wetland pasture,
    and PC. In particular, NRCS received comment related to:
         General support for wetland hydrology indicators and
    criteria added to the definitions of farmed wetland and farmed wetland
    pasture in Sec.  12.2(a);
         Concern that the farmed wetland definition was expanded,
    and conversely results in the reduction of PC;
         Concern that the use of hydrology indicators is arbitrary,
    and hydrology should not be determined based on a single site visit;
         Concern on the use of hydrology indicators from the U.S.
    Army Corps of Engineers Wetlands Delineation Manual regional
    supplements;
         Suggesting clarification on the analytic techniques used
    to identify farmed wetland and farmed wetland pasture hydrology
    criteria;
         Suggesting analytical techniques or scientific modeling be
    the only method used to identify farmed wetland or farmed wetland
    pasture hydrology;
         Supporting the indicator approach as scientifically sound
    and consistent with the statutory definition of wetland only if in
    practice, determinations are capturing the full range of relevant
    ``observable conditions resulting from inundation or saturation,''
    during both the growing season, and the wet portion of the growing
    season to capture actual wetland hydrology;

    [[Page 53149]]

         Suggesting the inundation criteria for pothole farmed
    wetlands be removed.
        Response: USDA described in the interim rule how NRCS has long-
    determined hydrology requirements for farmed wetland and farmed wetland
    pasture and the methods used in order to bring transparency to USDA
    program participants. Additionally, USDA simplified the definition of
    ``prior-converted cropland'' in the interim rule by removing the
    previous ``was less than'' farmed wetland hydrology and stating that
    prior-converted cropland fails to meet the farmed wetland hydrology
    criteria. USDA appreciates support for the changes made by the interim
    rule and the expressed concerns. In response, USDA is making changes in
    this final rule as explained below.
        The September 6, 1996, interim rule established hydrology criteria
    for determinations of farmed wetland and farmed wetland pasture, which
    were based strictly on the quantification of the number of days that
    the subject land experienced inundation or saturation during the
    growing season. Basing the identification of farmed wetland and farmed
    wetland pasture hydrology solely on the measurement of a number of days
    is both inefficient and cost prohibitive. The agency does not routinely
    implement long-term hydrology monitoring protocols for wetland
    determinations, nor was the reference to the number of days expected at
    the time of the 1996 interim rulemaking to be based upon such long-term
    hydrology monitoring protocols.
        Rather, as supported by wetland science and long-standing
    application, NRCS predominantly used and continues to use the
    indicator-based approach to wetland identification. Accordingly, the
    agency commonly relies upon criteria that are based on observable
    conditions that result from such duration of inundation or saturation.
    Therefore, the changes made in the interim rule do not constitute an
    expansion of the identification of farmed wetland or farmed wetland
    pasture, nor a reduction in the identification of PC, but rather better
    describe how the agency makes decisions on the wetland hydrology
    criteria associated with farmed wetland, farmed wetland pasture, and
    PC.
        In particular, the use of indicators for the identification of
    farmed wetland and farmed wetland pasture hydrology is one of the
    observable conditions that the agency has long used. Other Federal
    agencies with responsibilities for wetland identification also use
    indicators as readily observable and easily quantifiable criteria that
    an area supports wetland hydrology. The agency recognizes the potential
    challenges when using hydrology indicators observed during a single
    site visit that may be outside of the growing season, and emphasizes
    caution in the use of indicators in agency training efforts, including
    reference to Federal guidance documents which offer helpful guidance in
    the use of indicators. Even so, wetland hydrology indicators remain a
    reliable and readily observable method for accurately and efficiently
    documenting the presence of wetland hydrology, and the criteria unique
    to each WC label such as farmed wetland or farmed wetland pasture. In
    contrast to long-term onsite hydrology monitoring, this process allows
    for a timely and accurate response to USDA program participants.
        The agency recognizes the concern raised by the use of wetland
    hydrology indicators as identified in other Federal guidance such as
    regional supplements to the Corps Manual, which may be modified in the
    future without consideration to its impact to the identification of
    farmed wetland and farmed wetland pasture hydrology. This final rule
    removes the required use of hydrology indicators in the regional
    supplements to the Corps Manual, and instead identifies that hydrology
    indicators used for the identification of farmed wetland that is not
    considered a playa, pocosin, or pothole, will be identified in the
    local NRCS FOTG. NRCS FOTG's contain local information such as County
    level soils and climate data. As such, farmed wetland and farmed
    wetland pasture hydrology indicators may vary be County within a State
    due to local conditions. The identification of hydrology indicators in
    the local NRCS FOTG will provide local input, through consultation with
    the NRCS State technical committee, transparency to the public, and
    allow the indicators to be reflective of local conditions which meet
    the required inundation for 15 consecutive days or more during the
    growing season or 10 percent of the growing season, whichever is less,
    in most years. Until such time as the updates to the NRCS FOTGs have
    been published and public notice provided, NRCS will continue to use
    Group B (Evidence of Recent Inundation) hydrology indicators from the
    regional supplements to the Corps Manual, as specified in the interim
    rule. NRCS expects to issue the local level hydrology indicators for
    notice and comment in the Federal Register on a State basis within six
    months of the publishing of this final rule. As detailed in the interim
    rule preamble, NRCS will continue to use the Corps Manual, the regional
    supplements to the Corps Manual, and the Food Security Act Wetland
    Identification Procedures located in the NFSAM, Part 514, to make
    wetland identification decisions as identified in Step 1 of the wetland
    determination process described in Sec.  12.30(c)(7). The use of
    hydrology indicators for farmed wetland and farmed wetland pasture
    occurs in Step 2 of that process, determination of wetland type (or
    exemption).
        When observation of wetland hydrology indicators is not reliable or
    possible due to disturbance or other factors, it may be necessary to
    use alternative information such as analytic techniques like drainage
    equations or the evaluation of monitoring data. Wetlands and the
    conditions which influence wetland hydrology are variable across the
    landscape and there are several methods which may be used, such as
    those that are provided in the NRCS Engineering Field Handbook. As
    previously discussed, wetland hydrology field indicators are a valid
    and reliable method for the identification of wetland hydrology, and it
    would not be an efficient use of resources to require the use of
    analytic techniques or onsite hydrology monitoring in every farmed
    wetland determination when other valid methods exist.
        In response to concerns raised on the identification of farmed
    wetland and farmed wetland pasture hydrology, this final rule provides
    the means by which playa, pocosin and pothole farmed wetland and all
    farmed wetland pasture hydrology are identified. As established first
    in the September 6, 1996, interim rule, playa, pocosin, and pothole
    farmed wetlands and all farmed wetland pasture have required periods of
    inundation, ponding, or saturation. Particularly with the inclusion of
    the saturation requirement, almost exclusively, all playa, pocosin, and
    pothole farmed wetlands and farmed wetland pasture hydrology criteria
    evaluations have been based on whether the area in question simply
    meets the wetland hydrology factor. The final rule change brings
    transparency and codifies the method by which these determinations have
    been made since the establishment of the farmed wetland and farmed
    wetland pasture designations, by stating that areas manipulated prior
    to December 23, 1985, but which retained wetland hydrology, as
    determined through step 1 of the wetland determination process in Sec.
    12.30(c)(7) and application of the procedures described in Sec.
    12.31(c), meet

    [[Page 53150]]

    the required hydrology criteria for playa, pocosin, and pothole farmed
    wetlands and farmed wetland pasture.
        Both inundation and saturation criteria for pothole farmed wetlands
    were established in the September 6, 1996, interim rule and USDA does
    not agree that there is a need to modify these criteria.

    The 2018 Farm Bill

        The 2018 Farm Bill made two modifications which affect
    implementation of the WC provisions. Section 2101, Duty of the
    Secretary, provides that no person shall become ineligible if it is
    determined that an exemption to the WC provisions applies, and section
    2102, On-Site Inspection Requirement, provided that a reasonable effort
    must be made to include the affected person in an onsite visit which
    must be conducted prior to any determination of ineligibility. The
    December 2018 interim rule established in the wetland determination
    process in Sec.  12.30(c)(7) that step 2 includes the determination of
    whether any exemptions apply, and no further modification in this final
    rule is needed in support of section 2101. Section 12.30(c)(4) is being
    amended to clarify that NRCS will continue to make a reasonable effort
    to include the affected person in the onsite investigation prior to
    making any determination of ineligibility.

    Effective Date, Notice and Comment, and Paperwork Reduction Act

        In general, the APA (5 U.S.C. 553) requires a notice of proposed
    rulemaking be published in the Federal Register and interested persons
    be given an opportunity to participate in the rulemaking through
    submission of written data, views, or arguments with or without
    opportunity for oral presentation, except when the rule involves a
    matter relating to public property, loans, grants, benefits, or
    contracts. This rule involves matters relating to USDA program benefits
    and therefore is exempt from the APA requirements. Further, the
    regulations to implement the programs of chapter 58 of title 16 of the
    U.S.C., as specified in 16 U.S.C. 3846, and the administration of those
    programs, are:
         To be made as an interim rule effective on publication,
    with an opportunity for notice and comment,
         Exempt from the Paperwork Reduction Act (44 U.S.C. chapter
    35), and
         To use the authority under 5 U.S.C. 808 related to
    congressional review and any potential delay in the effective date.
        For major rules, the Congressional Review Act requires a delay in
    the effect date of 60 days after publication to allow for congressional
    review. This rule is not major under the Congressional Review Act, as
    defined by 5 U.S.C. 804(2). The authority in 5 U.S.C. 808 provides that
    when an agency finds for good cause that notice and public procedure
    are impracticable, unnecessary, or contrary to the public interest, the
    rule may take effect at such time as the agency determines. This rule
    is a not major rule for purposes of the Congressional Review Act, and
    therefore USDA is not required to delay the effective date for 60 days
    from the date of publication to allow for congressional review.
    Therefore, this rule is effective on the date of publication in the
    Federal Register.

    Executive Orders 12866, 13563, 13771, and 13777

        Executive Order 12866, ``Regulatory Planning and Review,'' and
    Executive Order 13563, ``Improving Regulation and Regulatory Review,''
    direct agencies to assess all costs and benefits of available
    regulatory alternatives and, if regulation is necessary, to select
    regulatory approaches that maximize net benefits (including potential
    economic, environmental, public health and safety effects, distributive
    impacts, and equity). Executive Order 13563 emphasized the importance
    of quantifying both costs and benefits, of reducing costs, of
    harmonizing rules, and of promoting flexibility. The requirements in
    Executive Orders 12866 and 13573 for the analysis of costs and benefits
    apply to rules that are determined to be significant. Executive Order
    13777, ``Enforcing the Regulatory Reform Agenda,'' established a
    Federal policy to alleviate unnecessary regulatory burdens on the
    American people.
        The Office of Management and Budget (OMB) designated this rule as
    not significant under Executive Order 12866 and therefore, OMB has not
    reviewed this rule.
        Executive Order 13771, ``Reducing Regulation and Controlling
    Regulatory Costs,'' requires that, in order to manage the private costs
    required to comply with Federal regulations, for every new significant
    or economically significant regulation issued, the new costs must be
    offset by the savings from deregulatory actions. As this rule is
    designated not significant, it is not subject to Executive Order 13771.
    In general response to the requirements of Executive Order 13777, USDA
    created a Regulatory Reform Task Force, and USDA agencies were directed
    to remove barriers, reduce burdens, and provide better customer service
    both as part of the regulatory reform of existing regulations and as an
    on-going approach. NRCS reviews regulations and makes changes to
    improve any provision that was determined to be outdated, unnecessary,
    or ineffective.

    Regulatory Flexibility Act

        The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
    the Small Business Regulatory Enforcement Fairness Act of 1996
    (SBREFA), generally requires an agency to prepare a regulatory analysis
    of any rule whenever an agency is required by APA or any other law to
    publish a proposed rule, unless the agency certifies that the rule will
    not have a significant economic impact on a substantial number of small
    entities. This rule is not subject to the Regulatory Flexibility Act
    because no law requires that a proposed rule be published for this
    rulemaking initiative. Despite the Regulatory Flexibility Act not
    applying to this rule, the action only affects those entities who
    voluntarily participate in USDA programs and in doing so receive its
    benefits. Compliance with the provisions of 7 CFR part 12 is only
    required for those entities who choose to participate in these
    voluntary programs.

    Environmental Analysis

        NRCS conducted an EA of the interim rule and the assessment
    determined there would not be a significant impact to the human
    environment and as a result, an EIS was not required to be prepared (40
    CFR 1508.13). NRCS reviewed the comments it received to the EA and has
    responded to them in this preamble. NRCS has also reviewed the changes
    being made in this final rule, and determined that the changes do not
    alter the determinations that NRCS made in its original EA. Therefore,
    NRCS has made a finding that this final rule will not have a
    significant impact. A copy of the FONSI may be obtained from either of
    the following websites: www.regulations.gov or https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/technical/ecosciences/ec. A hard copy may also be requested in one of the
    following ways:
         Via mail: karen.fullen@usda.gov with ``Request for FONSI''
    in the subject line; or
         A written request: Karen Fullen, Environmental Compliance
    Specialist, Natural Resources Conservation Service, 9173 W Barnes Dr.,
    Suite C, Boise, ID 83709.

    [[Page 53151]]

    Executive Order 12372

        Executive Order 12372, ``Intergovernmental Review of Federal
    Programs,'' requires consultation with State and local officials that
    would be directly affected by proposed Federal financial assistance.
    The objectives of the Executive order are to foster an
    intergovernmental partnership and a strengthened Federalism, by relying
    on State and local processes for State and local government
    coordination and review of proposed Federal financial assistance and
    direct Federal development. For reasons specified in the final rule-
    related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June
    24, 1983), the programs and activities in this rule are excluded from
    the scope of Executive Order 12372.

    Executive Order 12988

        This rule has been reviewed under Executive Order 12988, ``Civil
    Justice Reform.'' This rule will not preempt State or local laws,
    regulations, or policies unless they represent an irreconcilable
    conflict with this rule. Before any judicial actions may be brought
    regarding the provisions of this rule, the administrative appeal
    provisions of 7 CFR part 11 are to be exhausted.

    Executive Order 13132

        This rule has been reviewed under Executive Order 13132,
    ``Federalism.'' The policies contained in this rule do not have any
    substantial direct effect on States, on the relationship between the
    Federal Government and the States, or on the distribution of power and
    responsibilities among the various levels of government, except as
    required by law. Nor does this rule impose substantial direct
    compliance costs on State and local governments. Therefore,
    consultation with the States is not required.

    Executive Order 13175

        This rule has been reviewed in accordance with the requirements of
    Executive Order 13175, ``Consultation and Coordination with Indian
    Tribal Governments.'' Executive Order 13175 requires Federal agencies
    to consult and coordinate with Tribes on a Government-to-Government
    basis on policies that have Tribal implications, including regulations,
    legislative comments or proposed legislation, and other policy
    statements or actions that have substantial direct effects on one or
    more Indian Tribes, on the relationship between the Federal Government
    and Indian Tribes or on the distribution of power and responsibilities
    between the Federal Government and Indian Tribes.
        The USDA has assessed the impact of this rule on Indian Tribes and
    determined that this rule may have substantial direct Tribal
    implication that may require Tribal consultation under Executive Order
    13175. Tribal consultation for this rule was included in the two 2018
    Farm Bill Tribal consultations held on May 1, 2019, at the National
    Museum of the American Indian, in Washington, DC, and on June 26
    through 28, 2019, in Sparks, NV. For the May 1, Tribal consultation,
    the portion of the Tribal consultation relative to this rule was
    conducted by Bill Northey, USDA Under Secretary for the Farm Production
    and Conservation mission area, as part of the Title II session. There
    were no specific comments from Tribes on the matter related to this
    rule during the Tribal consultation. If a Tribe requests additional
    consultation, NRCS will work with the USDA Office of Tribal Relations
    to ensure meaningful consultation is provided where changes, additions,
    and modifications identified in this rule are not expressly mandated by
    legislation.

    Unfunded Mandates

        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
    L. 104-4), requires Federal agencies to assess the effects of their
    regulatory actions on State, local, and Tribal Governments or the
    private sector. Agencies generally must prepare a written statement,
    including cost benefits analysis, for proposed and final rules with
    Federal mandates that may result in expenditures of $100 million or
    more in any 1 year for State, local or Tribal Governments, in the
    aggregate, or to the private sector. UMRA generally requires agencies
    to consider alternatives and adopt the more cost-effective or least
    burdensome alternative that achieves the objectives of the rule. This
    rule contains no Federal mandates, as defined under Title II of UMRA,
    for State, local, and Tribal Governments or the private sector.
    Therefore, this rule is not subject to the requirements of UMRA.

    E-Government Act Compliance

        USDA is committed to complying with the E-Government Act, to
    promote the use of the internet and other information technologies to
    provide increased opportunities for citizen access to Government
    information and services, and for other purposes.

    List of Subjects in 7 CFR Part 12

        Administrative practice and procedure, Coastal zone, Crop
    insurance, Flood plains, Loan programs--agriculture, Price support
    programs, Reporting and recordkeeping requirements, Soil conservation.

        Accordingly, the interim rule amending 7 CFR part 12, which was
    published on December 7, 2018 (83 FR 63046-63052), is adopted as a
    final rule with the following changes:

    PART 12--HIGHLY ERODIBLE LAND CONSERVATION AND WETLAND CONSERVATION

    0
    1. The authority citation for part 12 continues to read as follows:

        Authority: 16 U.S.C. 3801, 3811-12, 3812a, 3813-3814, and 3821-
    3824.

    0
    2. In Sec.  12.2, in paragraph (a) designate the definition for
    ``Wetland determination'' in proper alphabetical order and revise
    paragraphs (4) and (5) to read as follows:

    Sec.  12.2   Definitions.

        (a) * * *
        Wetland determination * * *
        (4) Farmed wetland is a wetland that prior to December 23, 1985,
    was manipulated and used to produce an agricultural commodity at least
    once before December 23, 1985, and on December 23, 1985, did not
    support woody vegetation, and met the following hydrologic criteria:
        (i) If not a playa, pocosin, or pothole, experienced inundation for
    15 consecutive days or more during the growing season or 10 percent of
    the growing season, whichever is less, in most years (50 percent chance
    or more), which requisite inundation is determined through:
        (A) Observation of wetland hydrology indicators as identified in
    the local NRCS Field Office Technical Guide;
        (B) Procedures identified in State Off-Site Methods for wetland
    identification set forth in the local NRCS Field Office Technical
    Guide; or
        (C) The use of analytic techniques, such as the use of drainage
    equations or the evaluation of monitoring data.
        (ii) If a playa, pocosin, or pothole experienced ponding for 7 or
    more consecutive days during the growing season in most years (50-
    percent chance of more) or saturation for 14 or more consecutive days
    during the growing season in most years (50-percent chance or more).
    Wetlands which are found to support wetland hydrology through Step 1 of
    the wetland determination process in Sec.  12.30(c)(7) and application
    of the procedures described in Sec.  12.31(c) will be determined to
    meet the requisite criteria.
        (5) Farmed-wetland pasture is a wetland that prior to December 23,

    [[Page 53152]]

    1985, was manipulated and managed for pasture or hayland, was not used
    to produce an agricultural commodity at least once before December 23,
    1985, and on December 23, 1985, experienced inundation or ponding for 7
    or more consecutive days during the growing season in most years (50-
    percent chance or more) or saturation for 14 or more consecutive days
    during the growing season in most years (50-percent chance or more).
    Wetlands which are found to support wetland hydrology through step 1 of
    the wetland determination process in Sec.  12.30(c)(7) and application
    of the procedures described in Sec.  12.31(c) will be determined to
    meet the requisite criteria.
    * * * * *

    0
    3. Amend Sec.  12.30 by revising paragraphs (a)(3) and (c)(1) and (4)
    to read as follows:

    Sec.  12.30   NRCS responsibilities regarding wetlands.

        (a) * * *
        (3) Make or approve wetland determinations, delineations and
    certifications, functional assessments, mitigation plans, categorical
    minimal effects, and other technical determinations relative to the
    implementation of the wetland conservation provisions of this part.
    Wetland determinations, delineations and certifications will be done on
    a tract, field, or sub-field basis;
    * * * * *
        (c) * * *
        (1) Certification of a wetland determination means that the wetland
    determination is of sufficient quality to make a determination of
    ineligibility for program benefits under Sec.  12.4. In order for a map
    to be of sufficient quality to determine ineligibility for program
    benefits, the map document must be legible to the extent that areas
    that are determined wetland can be discerned in relation to other
    ground features. NRCS may certify a wetland determination without
    making a field investigation. NRCS will notify the person affected by
    the certification and provide an opportunity to appeal the
    certification prior to the certification becoming final. All wetland
    determinations made after July 3, 1996, will be considered certified
    wetland determinations. Determinations made after November 28, 1990,
    and before July 3, 1996, are considered certified if the determination
    was issued on the June 1991 version of form NRCS-CPA-026 or SCS-CPA-
    026, the person was notified that the determination had been certified,
    and the map document was of sufficient quality to determine
    ineligibility for program benefits. If issued on a different version of
    the form, a determination will be considered certified if there is
    other documentation that the person was notified of the certification,
    provided appeal rights, and the map document was of sufficient quality
    to make the determination.
    * * * * *
        (4) Before any benefits are withheld, an on-site investigation of a
    potential wetland violation will be made by NRCS. NRCS will make a
    reasonable effort to include the affected person in the on-site
    investigation. The affected person will be provided an opportunity to
    appeal the on-site determination to USDA if the on-site determination
    differs from the original determination. Such action by NRCS shall be
    considered a review of the prior determination and certification of the
    delineation. If the prior determination was a certified wetland
    determination, an appeal of the NRCS on-site determination shall be
    limited to the determination that the wetland was converted in
    violation of this part.
    * * * * *

    0
    4. Amend Sec.  12.31 by revising paragraph (c)(2) to read as follows:

    Sec.  12.31   Wetland identification procedures.

    * * * * *
        (c) * * *
        (2) When a wetland is affected by drainage manipulations that
    occurred prior to December 23, 1985, and did not support woody
    vegetation on December 23, 1985, such that production of an
    agricultural commodity on that date was possible, wetland hydrology
    shall be identified on the basis of the best-drained condition
    resulting from such drainage manipulations.
    * * * * *

    Stephen L. Censky,
    Deputy Secretary, U.S. Department of Agriculture.
    [FR Doc. 2020-18626 Filed 8-27-20; 8:45 am]
    BILLING CODE 3410-16-P