[Federal Register Volume 91, Number 141 (Friday, July 24, 2026)]
[Notices]
[Pages 46795-46797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-14995]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-R6-ES-2026-2641, FXGO166009DR000-267-FF09D00000]
National Wildlife Refuge System; Request for Information on
Implementation of Drain Tile Setbacks
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice; request for information and comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service (Service) requests
information regarding the Service's process for calculating setbacks
for the placement of drain tile by landowners on property where the
Service owns wetland easements.
DATES: Comments will be accepted on or before August 7, 2026. Comments
submitted electronically using the Federal eRulemaking Portal (see
ADDRESSES, below) must be received by
[[Page 46796]]
11:59 p.m. eastern time on the closing date.
To ensure your comment is received and considered, you must submit
it using one of the methods identified in the ADDRESSES section of this
document. Comments submitted through any method not authorized in this
document, or sent to an address not listed here, will not be
considered.
ADDRESSES: Comment submission: All submissions must include the docket
number FWS-R6-ES-2026-2641 which identifies this document. You must
submit comments using one of the following methods:
Electronic submission: Federal eRulemaking Portal at:
https://www.regulations.gov. In the Search box, enter FWS-R6-ES-2026-
2641, which is the docket number for this action. Then click the Search
button. On the resulting page, you may submit a comment by clicking on
``Comment.'' Please ensure that you have found the correct document
before submitting your comments.
U.S. mail: Public Comments Processing, Attn: Docket No.
FWS-R6-ES-2026-2641, Policy and Regulations Branch, U.S. Fish and
Wildlife Service, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church,
VA 22041-3803.
Comments submitted through any method not authorized in this
document, or sent to an address not listed here, will not be
considered. We will not accept comments via email, fax, or hand
delivery. We are not required to consider comments that are submitted
after the comment period ends or that are submitted via a method
outside of these instructions. Comments containing profanity,
vulgarity, threats, or other inappropriate content will not be
considered.
We will post all comments at https://www.regulations.gov. You may
request that we withhold personal identifying information from public
review; however, we cannot guarantee that we will be able to do so. See
Public Availability of Comments for more information. You may submit
comments by one of the following methods:
FOR FURTHER INFORMATION CONTACT: Madonna Baucum, Chief of Regulations,
U.S. Fish and Wildlife Service, by email at [email protected], or by
telephone at (703) 468-8211. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
Wetland habitat in the Prairie Pothole Region (PPR) of Iowa,
Minnesota, Montana, North Dakota, and South Dakota is important to
waterfowl and other migratory bird populations. The unique topography
of the PPR includes numerous small wetlands and potholes that were
formed through glaciation thousands of years ago. Prairie potholes are
freshwater depressions and marshes, often less than 2 feet deep and 1
acre in size, that are a permanent feature of these landscapes barring
deliberate alteration of the topography or hydrology. The seasonal
fluctuation of surface water through these permanent wetlands basins
makes the PPR biologically important to waterfowl. The PPR is
responsible for producing approximately 50 to 75 percent of the primary
species of ducks on the North American continent, providing habitat for
more than 60 percent of the breeding population. Waterfowl fledged in
the PPR are a significant natural resource that supports waterfowl
hunting and an associated industry that creates an estimated 30,000
jobs and nearly $1 billion in economic benefit.
Congress officially created the Small Wetlands Acquisition Program
on August 1, 1958, by amending the 1934 Migratory Bird Hunting Stamp
Act (commonly referred to as the Duck Stamp Act; 16 U.S.C. 718-718k).
The amendment allowed proceeds from the sale of Federal Duck Stamps to
be used to conserve and protect ``small wetland and pothole areas''
through the acquisition and establishment of areas designated as
waterfowl production areas (WPAs). The Service purchased the first fee-
title WPA in South Dakota in 1959 and began to purchase wetland
easements soon thereafter.
A wetland easement is a voluntary legal agreement wherein the
Service makes a one-time payment to landowners to permanently protect
wetlands located on their property. Currently, each easement purchased
is annotated on a map that is properly recorded as a legal instrument.
Easements purchased prior to 1976 were not mapped at the time of
purchase but have been after the initial purchase. The easement
contains restrictions on the use or development of the land to protect
its conservation values. The Service's wetland easements are intended
to be minimally restrictive meaning that they have a minimal impact on
the property value and limited impact on the landowner's use and
enjoyment of the property. Landowners who sell a wetland easement to
the Service agree that wetlands protected by an easement cannot be
drained, filled, leveled, or burned. If these wetlands dry up
naturally, they can be farmed, grazed, or hayed. However, the Service
also places restrictions on how landowners may utilize lands not
covered by the wetland easement in order to avoid adverse impacts to
the easement-covered wetlands allowing the Service to regulate a larger
property interest than it acquired. The Service is seeking to strike
the right balance between preserving the wetland interests it has
legally acquired and recognizing the property rights retained by the
landowner.
The acquisition of wetland easements accelerated across the PPR
following the passage of the 1961 Wetlands Loan Act (Pub. L. 87-383),
which authorized appropriations to advance funding for the purchase of
wetland easements. Wetland easements are part of the National Wildlife
Refuge System, governed by the National Wildlife Refuge System
Administration Act (16 U.S.C. 668dd et seq.).
Traditionally, the purpose of subsurface agricultural drainage has
been to lower the water table of poorly drained soils with the goal of
improving soil aeration. Recently, advanced drainage systems have been
promoted as a way to manipulate soil water content during the growing
season. Subsurface drainage systems typically remove water through
perforated pipe (commonly referred to as drain tile) placed below the
soil surface.
Drain tile positioned adjacent to wetland areas can result in
reduced hydroperiods (periods of inundation) depending on several
factors, such as the depth of tile in relation to the wetland area. The
amount and timing of precipitation intercepted by subsurface drainage
systems will vary depending on soil properties, topography (low/high
topographic relief), placement of tile relative to the wetland area
(horizontal distance, elevation), and the relation between the wetland
area and groundwater (i.e., recharge, discharge). Direct drainage of a
wetland area by placing perforated tile and surface inlet pipes through
(beneath) the wetland area would have a detrimental effect on wetland
hydrology regardless of other factors.
Drain tile setback distances and easement conditions vary widely
because they depend on the specific soils, topography, and wetland
characteristics of each site. Drainage systems placed near a wetland
can
[[Page 46797]]
influence how water moves toward or away from that wetland, but the
extent of this influence changes from one easement to another. In low-
relief areas, drain tiles may draw groundwater laterally toward the
pipe, while in higher-relief areas, drainage tile systems may intercept
water flowing toward the wetland. Because these factors differ across
the landscape, the potential effects of drainage and the resulting
setback calculations are determined by the unique environmental
conditions of each easement. Many property owners take issue with the
fact they are not compensated for the loss of the use of their private
property outside the easement that was originally purchased based on
the area that is determined by the Fish and Wildlife Service as needed
to stop drainage of the wetland. In most cases these drain tile setback
distances were not provided to the landowner at the time the easement
was purchased. In these cases, the landowner believed he was agreeing
to limit his use of the land within the easement boundary itself.
On May 13, 2024, the Service issued a final rule that codified the
process by which landowners could request, and the Service would
provide drain tile setbacks under wetland easement contracts (89 FR
41336). This rule was effective on June 12, 2024. The regulations
applied only to setbacks provided by the Service beginning on the
effective date of the 2024 rule. See the 2024 rule for a complete
discussion on the history of the PPR, wetland easements, and drain tile
setbacks.
Prior to finalizing the 2024 rule, the Service issued both internal
setback guidance for administering drain tile setback requests and
calculating drain tile setback distances, as well as a February 2020,
guidance memo, ``Drain Tile Setbacks and Legal Action on U.S. Fish and
Wildlife Service Wetland Easements.'' For a full discussion of the
guidance memo and its key aspects, see the 2024 rule (89 FR 41336 at
41337, May 13, 2024).
Purpose of This Request for Information (RFI)
The purpose of this RFI is to gather information pertaining to
easement lands protected by a Service easement for waterfowl management
(commonly referred to as a wetland easement) in the PPR, and how the
Service should calculate drain tile setbacks when requested to do so by
a landowner. The Service especially invites information regarding:
Efficacy of the 2024 rule ``National Wildlife Refuge
System; Drain Tile Setbacks'' (89 FR 41336, May 13, 2024).
How the current rule did or did not work as intended.
How the Service should calculate drain tile setbacks when
requested by a landowner.
Request for Information
The Service invites the public to provide information on any aspect
of the Service's 2024 regulation pertaining to drain tile setbacks on
lands covered by wetland easement contracts, or the process by which
the Service calculates recommended setbacks. Commenters may respond to
the questions above or provide other relevant information. Submitters
are encouraged to provide specific examples, geographies, dates, and
any relevant supporting materials.
Public Availability of Comments
All information received in response to this RFI will be posted on
https://www.regulations.gov and may include personal identifying
information. Do not include information you do not wish to make
publicly available.
Authority
The authority for this RFI is the National Wildlife Refuge
Administration Act of 1966 (16 U.S.C. 668dd et seq.), as amended by the
National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-
57), governing the administration and public use of refuges.
Brian R. Nesvik,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2026-14995 Filed 7-23-26; 8:45 am]
BILLING CODE 4333-15-P