[Federal Register Volume 59, Number 18 (Thursday, January 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1683]
[[Page Unknown]]
[Federal Register: January 27, 1994]
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DEPARTMENT OF AGRICULTURE
Agricultural Stabilization and Conservation Service
7 CFR Part 703
RIN 0560-AD59
Wetlands Reserve Program
AGENCY: Agricultural Stabilization and Conservation Service, USDA.
ACTION: Interim rule with request for comments.
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SUMMARY: Title XII, section 1237 of the Food Security Act of 1985, as
amended, was amended by the Omnibus Budget Reconciliation Act of 1993
to specify the number of acres the Secretary of Agriculture shall
enroll in the Wetlands Reserve Program (WRP). This interim rule amends
the regulations governing the WRP to comply with statutory changes;
expand the number of participating States from 9 States to 20 States;
revise the process by which the Agricultural Stabilization and
Conservation Service (ASCS) enrolls acreage in the WRP; and provide
other changes based on experience in administering the 1992 Pilot WRP.
DATES: Effective Date: Interim rule effective January 27, 1994.
Comments: Comments must be received on or before February 28, 1994, in
order to be assured of consideration.
ADDRESSES: Comments should be mailed to James R. McMullen, Director,
Conservation and Environmental Protection Division, ASCS, P.O. Box
2415, room 4714-S, Washington, DC 20013-2415; telephone 202-720-6221.
Comments received may be inspected between 9 a.m. and 4 p.m., Monday
through Friday, except holidays, in room 4714, South Agriculture
Building, United States Department of Agriculture, 14th Street and
Independence Avenue, SW., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Lois Hubbard, Conservation and
Environmental Protection Division, ASCS, P.O. Box 2415, room 4721-S,
Washington, DC 20013-2415; telephone 202-720-9563.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This interim rule was submitted to the Office of Management and
Budget for review under Executive Order 12866.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this rule because ASCS is not required by 5 U.S.C. 553 or
any other provision of law to publish a notice of proposed rule making
with respect to the subject matter of this rule.
Environmental Evaluation
It has been determined by an environmental evaluation that this
action will not have any significant adverse impact on the quality of
the human environment. Therefore, an environmental impact statement or
environmental assessment is not needed. Copies of a final environmental
evaluation are available upon request.
Executive Order 12372
This program/activity is not subject to the provisions of Executive
Order 12372 because it involves direct payments to individuals and not
to State and local officials. See notice related to 7 CFR part 3015,
subpart V, published at 48 FR 29115 (June 24, 1983).
Federal Domestic Assistance Program
The title and number of the Federal Domestic Assistance Program, as
found in the Catalog of Federal Domestic Assistance, to which this rule
applies are: Wetlands Reserve Program--10.072.
Paperwork Reduction Act
The information collection requirements of this interim rule at 7
CFR part 703 have been submitted to the Office of Management and Budget
for expedited approval under provisions of 44 U.S.C. chapter 33.
Approval of the forms is requested by February 1, 1994. The public
reporting burden for the information collections that would be required
for compliance with these regulations is estimated to average 39
minutes per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Executive Order 12778
This interim rule has been reviewed in accordance with Executive
Order 12778. The provisions of this interim rule are not retroactive
and preempt State and local laws to the extent such laws are
inconsistent with the provisions of this interim rule. Before an action
may be brought in a Federal court of competent jurisdiction, the
administrative appeal rights afforded program participants at 7 CFR
part 780 must be exhausted.
Discussion of Program
The current regulations in 7 CFR part 703, published as a final
rule on June 4, 1992 (57 FR 23908), implemented the 1992 pilot WRP,
which is authorized by title XII of the Food Security Act of 1985, as
amended (1985 Act). Under the WRP, ASCS will purchase easements, in
lump-sum payments, from persons owning cropland who voluntarily agree
to restore and protect farmed wetlands, prior converted croplands,
substantially altered lands, and eligible adjacent acres. Fund and
acreage allocations will be provided to States based on landowner
interest and other factors as determined by the Deputy Administrator,
State and County Operations, ASCS, in consultation with the Soil
Conservation Service and the Fish and Wildlife Service. Land eligible
for enrollment in the WRP includes farmed wetlands, prior converted
croplands, but not lands converted after December 23, 1985, or
substantially altered lands, together with adjacent lands on which the
wetlands are functionally dependent so long as the likelihood of
successful restoration of such land and the wetland values merit
inclusion in the program taking into account the cost of restoring the
wetlands. ASCS is also permitted to include in the program:
(1) Farmed wetlands, prior converted croplands, or substantially
altered lands and adjoining lands which are enrolled in the
Conservation Reserve Program (CRP), as authorized by title XII of the
1985 Act, with the highest wetland functions and values and that are
likely to return to production at the end of the CRP contract;
(2) Other wetlands that would not otherwise be eligible if it is
determined that inclusion in the program would add to the value of the
easement; and
(3) Riparian areas that link wetlands which are protected by
easements or by some other device or circumstance that achieves the
same purpose as an easement.
Landowners are not eligible to receive funding under both the
Emergency Conservation Program (ECP) and the WRP on the same acreage.
ECP payments received on acreage offered for WRP must be refunded,
provided the ECP practice is still within its lifespan provisions,
before any WRP payment will be disbursed.
This interim rule does not impact the Emergency Wetlands Reserve
Program as authorized by the Emergency Supplemental Appropriations for
Relief From the Major, Widespread Flooding in the Midwest Act of 1993
(Pub. L. 103-75).
Statutory Changes
During fiscal year 1992, WRP was authorized in the following
States: California, Iowa, Louisiana, Minnesota, Mississippi, Missouri,
New York, North Carolina, and Wisconsin. Section 1237 of the 1985 Act
was amended by the Omnibus Budget Reconciliation Act of 1993 to specify
that the Secretary shall enroll in the WRP a total of not less than
330,000 acres by the end of 1995 and a total of not less than 975,000
acres during 1991 through 2000. Congress has appropriated $66,675,000
to be used to enroll no more than 75,000 acres in fiscal year 1994.
This interim rule amends 7 CFR part 703 for WRP to:
(1) With respect to fiscal year 1994 only, identify enrollment
availability in 20 States, including the nine States in the fiscal year
1992 pilot program;
(2) Provide for the appraisal for easements by licensed appraisers
who are also approved by ASCS; and
(3) Make other changes based on experience gained from
administering the pilot WRP in fiscal year 1992.
List of Subjects in 7 CFR Part 703
Administrative practices and procedures, Appraisals, Compliance
procedures, Easements, Natural resources, Technical assistance,
Wetlands Reserve Plan of Operations (WRPO).
Accordingly, 7 CFR part 703 is amended as follows:
PART 703--WETLANDS RESERVE PROGRAM
1. The authority citation for 7 CFR part 703 is revised to read as
follows:
Authority: Public Law 99-198, 107 Stat. 739; 16 U.S.C. 3837 et.
seq.
2. Section 703.1 is revised to read as follows:
Sec. 703.1 Applicability.
(a) The regulations in this part govern the Wetlands Reserve
Program (WRP). For fiscal year 1992 only, the WRP shall be available to
producers in California, Iowa, Louisiana, Minnesota, Mississippi,
Missouri, New York, North Carolina, and Wisconsin. For fiscal year 1994
only, the WRP shall be available in these nine States and in Arkansas,
Illinois, Indiana, Kansas, Nebraska, Oregon, South Dakota, Tennessee,
Texas, Virginia, and Washington. These states have been determined to
have a high incidence of:
(1) Significant acreage of hydric cropland;
(2) Potential capacity of restoration;
(3) Diversity in kinds of wetlands; or
(4) Substantial benefits for migratory birds and other wildlife.
(b) Under the WRP, ASCS will accept voluntary offers of acreage for
the purchase of easements from eligible persons who have eligible land
with respect to which they agree to restore and protect farmed
wetlands, prior converted croplands, or substantially altered lands,
and eligible adjacent lands. Such voluntary easements will be for the
purpose of restoring the hydrology and vegetation and protecting the
functions and values of wetlands for wildlife habitat, water quality
improvement, flood water retention, ground water recharge, open space,
aesthetic values, environmental education, and other values determined
appropriate by ASCS.
Sec. 703.2 [Amended]
3. In Sec. 703.2, paragraph (f)(1) is amended by removing the words
``cost of the restoration'' and adding in their place, the words
``costs of restoration and of acquiring the easement'', and paragraph
(f)(2) is amended by inserting the word ``not'' after the word
``will''.
4. Section 703.3(b) is amended by:
A. Revising the definitions of ``Bid'', ``Non-permanent easement'',
``Participant'', and ``Permanent easement'', and
B. Adding ``Appraisal'', ``Preliminary plan'', and ``Substantially
altered lands'' to read as follows:
Sec. 703.3 Definitions.
* * * * *
(b) * * *
* * * * *
Appraisal means the agriculture value of the easement area on an
``as is'' bases as determined by an appraiser licensed by the State in
which the appraisal is made and who is also approved by ASCS.
* * * * *
Bid, for the 1992 Pilot Program, unless the context indicates
otherwise, means the total payment requested by the owner for granting
an easement.
* * * * *
Non-permanent easement means a temporary deed restriction that is
acquired by ASCS from an eligible landowner that requires the
protection and maintenance of wetland restoration on designated
acreage.
Participant means a landowner who has an approved contract.
Permanent easement means a deed restriction that lasts through
perpetuity, acquired by ASCS from an eligible landowner, and which
requires the protection and maintenance of wetland restoration
practices on designated acreage.
* * * * *
Preliminary plan means a plan jointly developed by a landowner,
SCS, and FWS to provide the landowner with an estimate of the extent
and cost of restoration activities, and to obtain adequate information
to prioritize intentions to participate.
* * * * *
Substantially altered lands means lands which have not been and are
not now wetlands, but with a high degree of certainty will likely
develop wetland characteristics as a result of natural flooding.
* * * * *
5. Section 703.5 is revised to read as follows:
Sec. 703.5 Maximum acreage limitation.
ASCS will attempt to enroll into the WRP during the 1991-2000
calendar years:
(a) A total of not less than 330,000 acres through 1995; and
(b) A total of not less than 975,000 acres through 2000.
6. Section 703.7 is amended by revising paragraphs (a)(1)(i),
(a)(2)(i), (a)(2)(ii), and (a)(2)(iii) to read as follows:
Sec. 703.7 Eligible land.
(a)(1) * * *
(i) Is wetland farmed under natural conditions, a farmed wetland,
prior converted cropland except that converted lands shall not be
eligible for enrollment if the conversion was not commenced prior to
December 23, 1985, or substantially altered land; and
(2) * * *
(i) Have been annually planted or considered planted to an
agricultural commodity in at least 1 of the 5 crop years 1986 through
1990, and have been capable of being cropped in 1992 or 1993;
(ii) If enrolled under a CRP contract, or under a Federal or State
wetland restoration program without an easement of at least 30 years,
have been planted to an agricultural commodity 2 of the 5 crop years,
1981 through 1985; and
(iii) Not be used as a mitigation site for Federal, State or local
permit conditions or program participation requirements, or public or
private mitigation banks.
* * * * *
Sec. 703.8 [Amended]
7. Section 703.8(a) is amended by revising ``Converted wetlands''
to read ``Prior converted croplands''.
8. Section 703.9(b) is revised to read as follows:
Sec. 703.9 Transfer of lands from the CRP to WRP.
* * * * *
(b) The application for such transfer into the WRP is agreed to by
ASCS. If such transfer is requested by the owner and agreed to by ASCS,
then the CRP contract for the property shall be terminated or otherwise
modified subject to such terms and conditions as are mutually agreed
upon. Transfers from CRP to WRP after the second available WRP signup
period will only be permitted if the owner agrees to refund all
payments received under the CRP since the close of the second available
WRP signup. Further, Emergency Wetlands Reserve Program signup periods
are not considered WRP signup periods.
9. Section 703.10 is revised to read as follows:
Sec. 703.10 Easement priority.
(a) ASCS shall, to the extent practicable, in determining which
areas to accept, take into account the cost of restoration, the cost of
acquiring the easement, and environmental benefits which would be
acquired through the purchase of the easement.
(b) In evaluating the value of obtaining an easement, different
weights may be given to the factors for determining the priority by
ASCS to accomplish the goals of the WRP.
(c) ASCS will rank the areas offered, based on environmental
benefits relative to the government expenditure using the following
factors for determining the priority:
(1) Habitat for migratory birds, threatened or endangered species,
fish, and other wildlife;
(2) Wetland functions and values;
(3) Location significance;
(4) Wetland management requirements;
(5) Physical conditions of the site including the likelihood of
developing or restoring wetland characteristics;
(6) Costs of restoration and of acquiring the easement; and
(7) Other environmental or cost factors as determined appropriate
by ASCS to accomplish the goals of the WRP that may also incorporate
ASCS State office goals and objectives.
10. Section 703.11 is amended by revising the section heading and
revising paragraphs (b)(1), (b)(2), (c), and (d) to read as follows:
Sec. 703.11 Statement of intention to participate.
* * * * *
(b) * * *
(1) Obtains a preliminary plan; and
(2) Accepts the amount offered by ASCS in return for enrollment in
WRP and agrees to other conditions for participation that may be
required by ASCS, including the creation of an easement on the
property. Such acceptance must be made no later than 15 calendar days
after notification by ASCS of the purchase value of the easement unless
a later date is agreed to by ASCS. The determination of which areas to
accept shall be at the exclusive discretion of ASCS.
(c) A person submitting a statement of intention to participate
shall not be obligated to accept an easement.
(d) An offer is considered accepted only if agreed to by all owners
of the property or their duly authorized representative.
11. Section 703.12 is amended by:
A. Revising paragraph (a) introductory text,
B. Revising paragraphs (a)(1)(iv) and (a)(1)(v),
C. Adding paragraph (a)(1)(vi),
D. Revising paragraphs (a)(13), (a)(14), (a)(17), and (a)(18), and
E. Adding paragraph (a)(19) to read as follows:
Sec. 703.12 Obligations of the landowner.
(a) All owners of land who accept ASCS' offer to enroll land in WRP
shall:
(1) * * *
(iv) Reserve to ASCS the right to permit such compatible uses of
the easement area as may be identified in the WRPO;
(v) Reserve to the landowner those compatible uses identified in
the WRPO that are permitted to be pursued by the landowner; and
(vi) Be filed in the appropriate land records office within 12
months from the end of the applicable signup period, unless otherwise
determined by the Deputy Administrator. If not filed, ASCS shall
terminate the offer to enroll in WRP.
* * * * *
(13) Not plant for harvest an agricultural commodity on the
enrolled land subsequent to the filing of an easement;
(14) Not alter the vegetation, except to harvest already planted
crops or forage, or the hydrology on such acres after the easement is
filed, except as provided in the easement or WRPO;
* * * * *
(17) Refrain from taking any action on the easement area unless
specifically authorized in the reserve interest easement or the WRPO;
(18) Secure any necessary local, State and Federal permits prior to
commencing restoration of the designated area; and
(19) Not allow WRP easements or restoration to be used as a
mitigation site for Federal, State or local permit conditions or
program participation requirements, or public or private mitigation
banks.
* * * * *
12. Section 703.13 is amended by:
A. Revising paragraph (c)(1),
B. Removing paragraph (c)(4),
C. Redesignating paragraph (c)(5) as paragraph (c)(4) and revising
redesignated paragraph (c)(4), and
D. Adding a new paragraph (e) to read as follows:
Sec. 703.13 Payments to landowners by ASCS.
* * * * *
(c)(1) ASCS shall pay, after an easement is filed, a lump-sum
amount for the easement as determined by ASCS on eligible land. For all
easements, ASCS shall withhold a portion of the payments that might
otherwise be made pending completion of the restoration plan for the
property and ASCS may condition any payment on satisfactory progress
toward completion of the plan. ASCS shall pay no more than 10 percent
per year of the total purchase price for the easement pending
completion of the restoration of the wetlands;
* * * * *
(4) No easement payment may be made which would exceed the total
amount offered for the property and payments may only be made if the
person on whose account the payment is to be made:
(i) Has agreed to all terms and conditions of the program set out
in this part;
(ii) Accepted the amount offered on the standard ASCS-approved form
for the WRP; and
(iii) Is in full compliance with the terms and conditions of the
WRP easement except to the extent that relief is authorized by this
part and is approved under guidelines issued by the Deputy
Administrator.
* * * * *
(e) Landowners may not receive payment under ECP and WRP on the
same acreage. ECP payments shall be refunded, provided the ECP practice
is within the required lifespan provisions, before a WRP payment will
be disbursed, unless otherwise determined by the Deputy Administrator.
13. Section 703.15 is amended by revising paragraphs (a), (b)(2),
and (d) to read as follows:
Sec. 703.15 Wetlands reserve plan of operations.
(a) Prior to filing an easement to enroll land in the WRP, the
landowner must have obtained an ASCS approved WRPO for the land.
* * * * *
(b)(2) Specify the manner in which the farmed wetlands or prior
converted croplands included in the enrolled land shall be restored,
operated, and maintained to accomplish the goal of the program together
with other practices which may be necessary or appropriate to
accomplish the goals of the program, including, where appropriate:
* * * * *
(d) The WRPO must be signed by SCS, FWS, CD, ASCS, and the
landowner before an easement is filed. If agreement between SCS and FWS
at the local level is not reached within 20 calendar days of acceptance
of the appraisal by the landowner, the WRPO shall be developed by the
State Conservationist of SCS in consultation with FWS.
* * * * *
14. Section 703.17(c) is revised to read as follows:
Sec. 703.17 Transfer of land.
* * * * *
(c) Any transfer of the property prior to the filing of the
easement shall void any statement of intention to participate and WRP
contract, unless the new owner agrees to be a party to the intention to
participate or the contract within 60 calendar days of the recordation
of the deed transferring the land to the new owner, or as otherwise
determined by the Deputy Administrator.
15. Section 703.25(c) is added to read as follows:
Sec. 703.25 Appeals.
* * * * *
(c) An appraisal and supporting documentation used by ASCS in
determining property value are considered confidential information, and
shall only be disclosed as determined at the sole discretion of ASCS.
Signed at Washington, DC, on January 14, 1994.
Bruce R. Weber,
Acting Administrator, Agricultural Stabilization and Conservation
Service.
[FR Doc. 94-1683 Filed 1-26-94; 8:45 am]
BILLING CODE 3410-05-P
