[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]


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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.

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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 
[email protected]. 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: [email protected] 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