[Federal Register Volume 60, Number 105 (Thursday, June 1, 1995)]
[Rules and Regulations]
[Pages 28511-28520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13161]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Chapter VI and Part 620
RIN 0578-AA15
Wetlands Reserve Program
AGENCY: Natural Resources Conservation Service, USDA.
ACTION: Interim rule with request for comments.
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SUMMARY: Title XIV of the Food Agriculture, Conservation, and Trade Act
of 1990 (the 1990 Act), enacted on November 28, 1990, amended the Food
Security Act of 1985 to provide for the establishment of the Wetlands
Reserve Program (WRP). Under the WRP, the secretary of Agriculture is
authorized to purchase easements from owners of eligible land who
voluntarily agree to restore and protect farmed wetlands or converted
wetlands and eligible adjacent acres. The Department of Agriculture
Reorganization Act of 1994, authorized the establishment of the Natural
Resources Conservation service (NRCS) and transferred responsibility
for the WRP from the Consolidated Farm Service Agency to the NRCS,
formerly the Soil Conservation Service (SCS). This interim rule
provides the process by which the WRP will be administered within the
NRCS. This rule also amends 7 CFR Chapter VI to reflect the
establishment of the NRCS and the abolishment of the SCS.
DATES: Effective date: June 1, 1995.
Comments should be received on or before July 31, 1995.
ADDRESSES: Comments should be sent to National Wetlands Team, Natural
Resources Conservation Service, Cotton Annex, Mezzanine One, Post
Office Box 2890, Washington, DC 20013.
[[Page 28512]] FOR FURTHER INFORMATION CONTACT:
Bob Misso (202) 720-3534.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
interim rule is significant.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this rule because the NRCS is not required by 5 U.S.C.
553 or any other provision of law to publish a notice of proposed
rulemaking with respect to the subject matter of this rule.
Environmental Evaluation
It has been determined through an environmental review that this
action is a modification of the existing WRP and is covered under the
NRCS 1990 Environmental Assessment entitled, ``Wetlands Reserve
Program-Environmental Assessment: Wetlands Reserve Provision of the
Conservation Program Improvements Act of 1990.'' Copies of the
environmental assessment are available upon request from: Bob Misso,
Program Manager, National Wetlands Team, Natural Resources Conservation
Service, Mezzanine One, Cotton Annex, Post Office Box 2890, Washington,
DC 20250.
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 contained in this interim
rule will be submitted to the Office of Management and Budget (OMB) for
review under the Paperwork Reduction Act of 1980.
Executive Order 12778
This interim rule has been reviewed in accordance with Executive
Order 12778. The provisions of this interim rule are not retroactive.
Furthermore, except as provided at 16 U.S.C. 3837a(e)(2), the
provisions of this interim rule preempt State and local laws to the
extent such laws are inconsistent with this interim rule. Before an
action may be brought in a Federal court of competent jurisdiction, the
administrative appeal rights afforded persons at 7 CFR Part 614 must be
exhausted.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
which the President signed into law on March 22, 1995, the affects of
this rulemaking action on State, local, and tribal governments, and the
public have been assessed. This action does not compel the expenditure
of $100 million or more by any State, local or tribal governments, or
anyone in the private sector, and therefore a statement under section
202 of the Unfunded Mandates Reform act of 1995 is not required.
Discussion of Program
Under the WRP, the Natural Resources Conservation Service (NRCS)
will purchase easements from persons voluntarily agreeing to allow for
the restoration of farmed or converted wetlands. The 1990 Act (16
U.S.C. 3837 et seq.) created an umbrella program called the
Agricultural Resource Conservation Program which includes the
Environmental Conservation Acreage Reserve Program. The Environmental
Conservation Acreage Reserve Program includes the Conservation Reserve
Program (CRP) and the WRP.
The current regulations implementing the WRP were published by the
Consolidated Farm Service Agency as a final rule on November 23, 1994
(59 FR 60297) and are codified at 7 CFR Part 703. This rule establishes
a new part (7 CFR part 620) for WRP, and pursuant to the Department of
Agriculture Reorganization Act of 1994, Public Law 103-354, the NRCS
assumes responsibility for administrating the WRP. Funds will be
allocated based on landowner interest, amount of restorable wetland
acres, environmental benefits, cost of acquisition and restoration, and
other factors as determined by the Chief, NRCS, in consultation with
the U.S. Fish and Wildlife Service.
Section 3837 of Title 16, United States Code, specifies that
eligible land will include farmed or converted wetlands, but not
wetlands converted after December 23, 1985, 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. NRCS is also permitted to include in the
program: (1) farmed or converted wetlands and adjoining lands that are
enrolled in the CRP 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 significantly add to the
value of the easement; and (3) riparian areas that link wetlands that
are protected by easements or by some other device or circumstance that
achieves the same purpose as an easement.
The NRCS shall not enroll lands that: (1) are converted wetlands if
the conversion was commenced after December 23, 1985, (2) contain
timber stands established under a CRP contract, (3) are owned by an
agency of the United States, (4) are subject to a deed restriction of
30 years or more prohibiting the production of agricultural
commodities, or (5) are subject to on-site or off-site conditions that
preclude successful long term restoration.
With respect to owner eligibility, 16 U.S.C. 3837e provides that no
WRP easement shall be created on land that has changed ownership in the
preceding 12 months unless: (1) the new ownership was acquired by will
or succession as a result of the death of the previous owner; or, (2)
the Secretary determines that the land was acquired under circumstances
that give adequate assurances that such land was not acquired for the
purpose of placing it in the WRP.
In return for participation in the program, a landowner will
receive financial compensation from the NRCS for the easement itself,
and the NRCS will bear all or a portion of the cost of restoring the
functions and values of the enrolled land. In each State, the State
Conservationist, with the assistance of the State Technical Committee,
shall determine easement payment rates to be applied to specific
geographic areas within the State or to individual easement areas. In
order to provide for better uniformity among States, the Regional
Conservationist may review and adjust, as appropriate, any easement
payment rates established within a region.
Compensation for easements acquired by the Secretary under the WRP
must be an agreed upon amount, but not to exceed the fair market value
of the land less the fair market value of such land encumbered by the
easement, a method of valuation known as the before and after value of
the land. In response to this requirement and the further desire to
ensure that the program focus is [[Page 28513]] largely to maximize net
environmental benefits per expenditure of federal funds, the
compensation for the easements is limited to the agricultural value of
the lands. Based upon acquisition experience, the effect of the WRP
easement is largely to eliminate agricultural uses of the land.
Therefore, to utilize the agricultural value of the land is equivalent
to the value of the easement utilizing the traditional before and after
method of valuation. Under this calculation of compensation, other
speculative and higher uses are not considered in the determination of
compensation rates. Furthermore, any compatible agricultural use of the
easement area is limited to such level and timing of use as is integral
to achieving and maintaining optimum wetland restoration benefits, and
not for the purpose of achieving economic profit.
Therefore, the easement value rates will be determined using the
best information which is readily available for assessing the values of
land for agricultural purposes. Such information may include soil
types, cropping histories, production histories, location, real estate
market values, appraisals and market analyses, and tax rates and
assessments.
To achieve program cost efficiency in relation to the ecological
benefits to be achieved, the restoration of wetlands which maximize net
environmental benefits per expenditure of federal funds will be
emphasized. One source of accomplishing this cost-efficiency goal is to
establish maximum easement payments for the State or geographic areas
of the State. Maximum easement payment limitations may be available for
public review prior to the sign-up period. No easement payment shall
exceed the fair market value of the land rights being acquired.
Section 3837a of Title 16, United States Code, provides that the
easements purchased under the WRP shall be in a recordable form and
shall be for 30 years, permanent, or the maximum duration allowed under
applicable State laws. Section 3837c(c) provides that in determining
the acceptability of offers, consideration may be given to the extent
to which the purposes of the program can be accomplished on the land,
the productivity of the land, and the on-farm and off-farm
environmental threats if the land is used for the production of
agricultural commodities. In addition, section 3837c(d) provides that
to the extent practicable, taking into consideration costs and future
agricultural and food needs, the Secretary shall give priority to
obtaining permanent easements before shorter term easements and, in
consultation with the Secretary of the Interior, shall place priority
on acquiring easements based on the value of the easement for restoring
and protecting habitat for migratory birds and other wildlife. In order
to accomplish this goal, Sec. 620.6 and Sec. 620.8(b)(5) of the interim
rule provide that permanent easements will be preferred whenever
possible.
Before proceeding to acquire a non-permanent easement, the State
Conservationist will first seek to acquire any permanent easement offer
that is determined to have the ecological and cost characteristics that
warrant acquisition. After the effort to acquire permanent easements is
completed, and provided that funding continues to be available, the
State Conservationist, following review and approval of the request by
the Regional Conservationist and the Chief, may pursue the acquisition
of non-permanent easements.
The Regional Conservationist and the Chief, when considering the
request of the State Conservationist, will simultaneously consider any
backlog of unaccepted permanent easements offers that may exist in
other areas of the region and Nation before approval of the acquisition
of non-permanent easements is granted.
On land encumbered by permanent easements, the law establishing WRP
allows for the Secretary to pay all the restoration costs or to cost-
share with the landowner. The cost-share formula recognizes that the
ecological benefits associated with a non-permanent easement is
significantly less than that which would be associated with a permanent
easement on the same land. Thus, 16 U.S.C. 3837c(b) provides for a
smaller cost-share payment-rate on land encumbered with non-permanent
easements than on land encumbered with permanent easements. In
particular, section 3837c(b) provides for cost-share payments on non-
permanent easements to range from 50 percent to 75 percent of
restoration costs, whereas the cost-share payments on areas with
permanent easements range from 75 percent to 100 percent of restoration
costs (16 U.S.C. 3837c(b)). These restoration cost-share rates apply to
NRCS expenditures and do not prohibit the landowner from obtaining
cost-share assistance from other entities.
Under this rule, this statutory distinction between cost-share
payments made for permanent versus non-permanent easements is
replicated in the payment for the easements. For a given easement on a
particular area of land, payments for non-permanent easements will be
between 50 percent and 75 percent of that which would be paid for a
permanent easement. Easement payments for a short-term, 30-year
easement will be 50 percent of that which would have been paid for a
permanent easement. Such reduced easement payments are consistent with
the significant reduction in ecological benefits and cost efficiency
associated with non-permanent easements.
Landowners will be allowed to apply for transfer of eligible land
from the CRP to WRP. Enrollment in WRP will not require the refund of
past payments or require a reduced WRP easement payment. CRP contracts
will be terminated at the time of enrollment in WRP.
This is a voluntary program designed to achieve cost-effective,
long-lasting wetland restoration, and the NRCS shall not acquire
easements by eminent domain or other non-voluntary acquisition
procedures. As a means of improving selection competitiveness,
landowners may accept cost-share or easement payments less than that
which may be determined applicable for the particular easement.
During announced sign-up periods, interested landowners will be
able to apply for enrollment by stating on an NRCS form their intention
to participate. This Application for Participation must be submitted
during an announced period for submissions. Sign-up periods may be
announced periodically by the NRCS.
The State Conservationist, with the assistance of the State
Technical Committee, will develop a ranking process. Each of the
applications that are submitted by eligible landowners for eligible
lands shall be evaluated according to the following factors: (1)
Duration of the easement, (2) wetland functions and values, (3) habitat
for migratory birds and other wildlife, particularly at risk species,
(4) location significance, (5) wetland management requirements, (6)
likelihood of success of restoration, (7) easement purchase and
restoration costs borne by the NRCS, and (8) other environmental (e.g.
water quality) or cost factors determined appropriate by the NRCS.
It is the intention of the NRCS in ranking the applications to
enroll the wetlands that provide the greatest environmental benefits
while taking into consideration the cost of restoration, easement
purchase, and associated costs. The ranking process will emphasize
factors that (1) Ensure the effectiveness of the restored wetland
functions and values, and (2) incorporate regional and State ecological
priorities. The Chief, NRCS, may identify and accept certain
[[Page 28514]] easements that advance the national goals of the WRP,
even if such lands would not otherwise receive priority under the
regional or State ranking procedures. For example, the Chief may
allocate funds for purposes related to special pilot programs for
wetland management and monitoring, cooperative agreements with other
Federal or State agencies for program implementation, or for
coordination of easement enrollment across State boundaries.
All landowners who want to enroll land in the WRP shall: (1) Grant
to the United States a reserved interest easement on the land; (2)
agree to the implementation of a Wetlands Reserve Plan of Operation
(WRPO); (3) provide for the creation and recordation of a deed
restriction covering the easement area; and (4) ensure consent to the
easement from persons holding a security interest in the property. The
WRPO will be completed in consultation with the U.S. Fish and Wildlife
Service and the Conservation District. The WRPO specifies the manner in
which the enrolled land will be restored, operated, and maintained to
accomplish the goals of the program.
Section 3837a(b) of Title 16, United States Code, requires, in
addition, that the easement allow: (1) Repairs, improvements, and
inspections on such lands that are necessary to maintain existing
public drainage systems; and (2) landowners to control public access on
the easement area while identifying access routes to be used for
wetland restoration activities, management and monitoring. Section
3837a(b) also requires that the terms of the easement prohibit such
activities as spraying with chemicals or mowing of the land except as
allowed to comply with Federal or State noxious weed laws or Federal or
State emergency pest treatment programs. These provisions have been
incorporated into Sec. 620.10 of this interim rule.
A major program participation requirement contained in Sec. 620.10
is the inclusion in the easement of the right of the United States to
determine if a specific use of the easement area may be permitted as
compatible. For a use to be considered compatible, the Chief or
designee must determine that the use is consistent with the long term
protection and enhancement of the wetland resources for which the
easement was established.
The uses commonly considered compatible include hunting and
fishing, haying, grazing, and harvest of timber. Hunting and fishing
are generally considered compatible where the activities are carried
out under the established State and Federal regulations that govern
such uses. Haying, grazing, and timbering, because of the potential for
substantial and adverse impacts upon the vegetative conditions of the
easement area, may only be considered compatible under specifically
prescribed circumstances that are directly associated with site-
specific conditions as influenced by soil productivity, time of year,
short and long term weather patterns, and other factors that may from
time to time be pertinent. The type, method, timing, duration, and
extent of a use, to be deemed compatible, must be an integral and
positive part of the overall management plan for the easement area. For
example, in a restored forested wetland easement area, a salvage cut to
remove diseased or damaged trees may be appropriate. A selective
harvest of overstory trees which opens up the canopy to provide for
understory vegetative diversity may also be compatible in specific
cases. A clear cutting approach to timber harvest, however, for the
purpose of achieving economic gain at the expense of wetland functions
and values would not be compatible with forested wetland functions and
values.
Section 3837a(g) of Title 16, United States Code, provides that in
the case of any violation of the terms and conditions of the easement
or WRPO, the easement shall remain in force and the owner may be
required to refund all or part of the payments made together with
interest. Accordingly, this requirement has been incorporated into
Sec. 620.14 of this interim rule.
Once an easement has been recorded, a landowner can request
modifications that do not adversely affect the functions and values for
which the easement was established. Any modification, however, must
result in equal or greater environmental and economic values to the
United States, as determined by the NRCS in consultation with the U.S.
Fish and Wildlife Service.
During the 1994 WRP sign-up, landowners in only 20 States could
participate in the WRP. In fiscal year 1995 and subsequent years, no
specific geographic limitation is required and eligible landowners in
all 50 States and territories and possessions of the United States may,
subject to a determination by the Chief, be given the opportunity to
participate in the WRP.
This interim rule establishes a new part in chapter VI, title 7 of
the Code of Federal Regulations, and makes the following changes to the
administration of the program:
(1) Identifies possible enrollment availability in all 50 States,
the District of Columbia, the Commonwealth of Puerto Rico, Guam, the
Virgin Islands of the United States, American Samoa, the Commonwealth
of the Northern Mariana Islands, and the Trust Territory of the Pacific
Islands;
(2) Expands land eligibility to certain agricultural lands that do
not have a cropping history, such as former or degraded wetlands
presently used for pasture and hayland;
(3) Provides a non-permanent easement option;
(4) Makes other changes to the administration of the program to
become consistent with NRCS structure, policies, and procedures; and
(5) Delegates additional decision-making authority to the NRCS
Regional Conservationists and State Conservationists with assistance
provided by the State Technical Committees.
List of Subjects in 7 CFR Part 620
Administrative practices and procedures, Natural resources,
Wetlands.
CHAPTER VI--NATURAL RESOURCES CONSERVATION SERVICE, DEPARTMENT OF
AGRICULTURE
Accordingly, 7 CFR chapter VI is amended as follows:
1. The heading of Chapter VI is revised to read as set forth above.
2. In 7 CFR Chapter VI (consisting of parts 600-663), all
references to ``Soil Conservation Service'' are revised to read
``Natural Resources Conservation Service,'' and all references to
``SCS'' are revised to read ``NRCS.''
3. A new part 620 is added to read as follows:
PART 620--WETLANDS RESERVE PROGRAM
Sec.
620.1 Purpose and scope.
620.2 Definitions.
620.3 Administration.
620.4 Program requirements.
620.5 Application procedures.
620.6 Establishing priority for enrollment of properties in WRP.
620.7 Enrollment.
620.8 Compensation for easements.
620.9 Cost-share payments.
620.10 Program participation requirements.
620.11 The WRPO development.
620.12 Modifications.
620.13 Transfer of land.
620.14 Violations and remedies.
620.15 Payments not subject to claims.
620.16 Assignments.
620.17 Appeals.
620.18 Scheme and device.
Authority: 16 U.S.C. 590a et seq., 3837 et seq. [[Page 28515]]
Sec. 620.1 Purpose and scope.
(a) The regulations in this part set forth the policies,
procedures, and requirements for the Wetlands Reserve Program (WRP) as
administered by the Natural Resources Conservation Service (NRCS) for
program implementation and processing outstanding and new applications
for enrollment during calendar year 1995 and thereafter.
(b) The Chief, NRCS, may implement WRP in any of the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin
Islands of the United States, American Samoa, the Commonwealth of the
Northern Mariana Islands, and the Trust Territories of the Pacific
Islands.
Sec. 620.2 Definitions.
The following definitions shall be applicable to this part:
Agricultural commodity means any crop planted and produced by
annual tilling of the soil or on an annual basis by one trip planters,
or alfalfa and other multi-year grasses and legumes in rotation as
approved by the Secretary. Land shall be considered planted to an
agricultural commodity during a crop year if, as determined by the
NRCS, an action of the Secretary prevented land from being planted to
the commodity during the crop year.
Chief means the Chief of the Natural Resources Conservation Service
or the person delegated authority to act for the Chief.
Commenced conversion wetland means a wetland or converted wetland
for which the Consolidated Farm Service Agency has determined that the
wetland manipulation was contracted for, started, or for which
financial obligation was incurred before December 23, 1985.
Conservation District is a subdivision of a State or local
government organized pursuant to applicable State law to promote soil
and water conservation practices.
Conservation Reserve Program (CRP) means the program administered
by the Secretary of Agriculture and referenced at 7 CFR Parts 704 and
1410.
Consolidated Farm Service Agency (CFSA) is an agency of the United
States Department of Agriculture.
Contract means the NRCS document that specifies the obligations and
rights of any person who has been accepted for participation in the
program.
Converted wetland means a wetland that has been drained, dredged,
filled, leveled, or otherwise manipulated (including the removal of
woody vegetation, or any activity that results in impairing or reducing
the flow, circulation, or reach of water) for the purpose, or that has
the effect, of making the production of an agricultural commodity
possible if such production would not have been possible but for such
action.
Cost-share payment means the payment made by the NRCS to achieve
the restoration of the wetland functions and values of the easement
area in accordance with the WRPO.
Easement means a reserved interest easement which is an interest in
land defined and delineated in a deed whereby the landowner conveys all
rights, title, and interests in a property to the grantee, but the
landowner retains those rights, title, and interests in the property
which are specifically reserved to the landowner in the easement deed.
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an
easement conveyed to the United States under the WRP.
Farmed wetland means wetlands that were manipulated and used to
produce an agricultural commodity prior to December 23, 1985, but had
not been converted prior to that date and, therefore, are not prior
converted croplands. These areas include potholes, playas, and pocosins
that still meet the wetland criteria, and other wetlands that are
seasonally ponded or flooded for an extended period of time during the
growing season.
Farmed wetland pasture means wetlands that were manipulated and
managed for pasture or hayland prior to December 23, 1985, but still
meet wetland criteria and are not abandoned, or were prior converted
croplands or farmed wetlands that were not cropped for 5 successive
years, but were used for forage production during that time and have
not been abandoned.
Forest Service is an agency of the United States Department of
Agriculture.
Landowner means a person or persons having legal ownership of
farmland, including those who may be buying farmland under a purchase
agreement. Landowner may include all forms of collective ownership
including joint tenants, tenants in common, and life tenants and
remaindermen in a farm property.
Lands substantially altered by flooding means areas where flooding
has created wetland hydrologic conditions which, with a high degree of
certainty, will develop wetland soil and vegetation characteristics
over time.
Natural Resources Conservation Service (NRCS) is an agency of the
United States Department of Agriculture, formerly called the Soil
Conservation Service.
Permanent easement means an easement that lasts in perpetuity.
Person means one or more individuals, partnerships, associations,
corporations, estates or trusts, or other business enterprises or other
legal entities and, whenever applicable, a State, a political
subdivision of a State, or any agency thereof.
Practice means a restoration measure necessary or desirable to
accomplish the desired program objectives.
Prior converted cropland means wetlands that before December 23,
1985, were drained, dredged, filled, leveled, or otherwise manipulated
including the removal of woody vegetation, for the purpose, or to have
the effect, of making the production of an agricultural commodity
possible and an agricultural commodity has been produced at least once
before December 23, 1985.
Riparian areas means areas of land that occur along streams,
channels, rivers, and other water bodies. These areas are normally
distinctly different from the surrounding lands because of unique soil
and vegetation characteristics, may be identified by distinctive
vegatative communities which are reflective of soil conditions normally
wetter than adjacent soils, and generally provide a corridor for the
movement of wildlife.
State Technical Committee means a committee established by the
Secretary of the U.S. Department of Agriculture in a State pursuant to
16 U.S.C. 3861. For the purposes of the WRP, the State Conservationist
will be the chairperson of the State Technical Committee.
U.S. Fish and Wildlife Service is an agency of the United States
Department of the Interior.
Wetland means land that:
(1) Has a predominance of hydric soils;
(2) Is inundated or saturated by surface or groundwater at a
frequency and duration sufficient to support a prevalence of
hydrophytic vegetation typically adapted for life in saturated soil
conditions; and
(3) Does support a prevalence of such vegetation under normal
circumstances. For purposes of WRP, wetland shall also refer to
adjacent lands that contribute to wetland functions and values.
Wetland functions and values means the hydrological and biological
characteristics of wetlands and the social worth placed upon these
characteristics, including:
(1) Habit for migratory birds and other wildlife, in particular at
risk species;
(2) Protection and improvement of water quality; [[Page 28516]]
(3) Attenuation of water flows due to flood;
(4) The recharge of ground water;
(5) Protection and enhancement of open space and aesthetic quality;
(6) Protection of flora and fauna which contributes to the Nation's
natural heritage; and
(7) Contribution to educational and scientific scholarship.
Wetland restoration means the rehabilitation of degraded or lost
habitat in a manner such that:
(1) The original vegetation community and hydrology are, to the
extent practical, re-established; or
(2) A community different from what likely existed prior to
degradation of the site is established. The hydrology and native self-
sustaining vegetation being established will substantially replace
original habitat functions and values but does not involve more than 30
percent of the wetland restoration area.
WRP means the Wetlands Reserve Program.
WRPO means the Wetlands Reserve Plan of Operations.
Sec. 620.3 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief.
(b) The Chief is authorized to modify or waive a provision of this
part if the Chief deems the application of that provision to a
particular limited situation to be inappropriate and inconsistent with
the environmental and cost-efficiency goals of the WRP. This authority
cannot be further delegated. The Chief may not modify or waive any
provision of this part which is required by applicable law.
(c) As determined by the Chief and the Administrator of the
Consolidated Farm Service Agency, the NRCS will seek the agreement of
the Consolidated Farm Service Agency in establishing policies,
priorities, and guidelines related to the implementation of this part.
(d) The State Conservationist will consult with the State Technical
Committee on the development of the rates of compensation for an
easement, a priority ranking process, and related policy matters.
(e) The NRCS may delegate at any time easement management,
monitoring, and enforcement responsibilities to other Federal or State
agencies.
(f) The NRCS may enter into cooperative agreements with Federal or
State agencies and with private conservation organizations to assist
the NRCS with educational efforts, easement management and monitoring,
and program implementation assistance.
(g) The NRCS shall consult with the U.S. Fish and Wildlife Service
in the implementation of the program and in establishing program
policies. The NRCS may consult with other Federal and State agencies
and other organizations in program administration. No determination by
the U.S. Fish and Wildlife Service, Federal, or State agency shall
compel the NRCS to take any action which the NRCS determines will not
serve the purposes of the program established by this part.
(h) The Chief may allocate funds for such purposes related to
special pilot programs for wetland management and monitoring,
emergencies, cooperative agreements with other Federal or State
agencies for program implementation, coordination of easement
enrollment across State boundaries, or for other goals of the WRP found
in this part.
Sec. 620.4 Program requirements.
(a) General. Under the WRP, the NRCS will purchase conservation
easements from eligible landowners who voluntarily cooperate in the
restoration and protection of wetlands and associated lands. To
participate in WRP, a landowner will agree to the implementation of a
Wetlands Reserve Plan of Operations (WRPO), the effect of which is to
restore, protect, enhance, maintain, and manage the hydrologic
conditions of inundation or saturation of the soil, native vegetation,
and natural topography of eligible lands. The NRCS may provide cost-
share assistance for the activities that promote the restoration,
protection, enhancement, maintenance, and management of wetland
functions and values. Specific restoration, protection, enhancement,
maintenance, and management actions may be undertaken by the landowner
or other NRCS designee.
(b) Acreage limitations.
(1) Except for areas devoted to windbreaks or shelterbelts after
November 28, 1990, no more than 25 percent of the total cropland in any
county, as determined by the Consolidated Farm Service Agency, may be
placed in the Environmental Conservation Acreage Reserve Program, 16
U.S.C. 3830, and no more than 10 percent of the total cropland in the
county may be subject to an easement.
(2) The NRCS and the Consolidated Farm Service Agency shall concur
before a waiver of either the 25 percent limit or the 10 percent limit
of this subsection can be approved for an easement proposed for
enrollment in the WRP. Such a waiver will only be approved if it will
not adversely affect the local economy.
(c) Landowner eligibility. To be eligible to participate in the
WRP, a person must:
(1) Be the landowner of eligible land for which enrollment is
sought;
(2) Have been the landowner of such land for the 12 months prior to
the time the intention to participate is declared unless it is
determined by the State Conservationist that the land was acquired by
will or succession as a result of the death of the previous landowner,
or that adequate assurances have been presented to the State
Conservationist that the new landowner of such land did not acquire
such land for the purpose of placing it in the WRP; and
(3) Agree to provide such information to the NRCS as the agency
deems necessary or desirable to assist in its determination of
eligibility for program benefits and for other program implementation
purposes.
(d) Eligible land.
(1) The NRCS shall determine whether land is eligible for
enrollment and whether, once found eligible, the lands may be included
in the program based on the likelihood of successful restoration of
wetland functions and values when considering the cost of acquiring the
easement and restoration, protection, enhancement, maintenance, and
management costs.
(2) Land which meets the eligibility requirements of this section
shall only be considered for enrollment in WRP if the NRCS determines,
in consultation with the U.S. Fish and Wildlife Service, that the
wetland functions and values can and will be restored, protected,
enhanced, maintained, and managed.
(3) The following land is eligible for enrollment in the WRP, which
land may have been determined by the NRCS pursuant to regulations and
implementing policies is pertaining to wetland conservation found at 7
CFR 12.30-12.33, as:
(i) Wetlands farmed under natural conditions, farmed wetlands,
prior converted cropland, commenced conversion wetlands, farmed wetland
pastures, and lands substantially altered by flooding so as to develop
wetland functions and values;
(ii) Former or degraded wetlands that occur on lands that have been
used or are currently being used for the production of food and fiber,
including rangeland and forest production lands, where the hydrology
has been significantly degraded or modified and will be substantially
restored;
(iii) Riparian areas along streams or other waterways that link or,
after restoring the riparian area, will link wetlands which are
protected by an [[Page 28517]] easement or other device or circumstance
that achieves the same objectives as an easement:
(iv) Land adjacent to the restored wetland which would contribute
significantly to wetland functions and values including buffer areas,
wetland creations, and non-cropped neutral wetlands, but not more than
the State Conservationist, in consultation with the State Technical
Committee, determines is necessary for such contribution;
(v) Other wetlands that would not otherwise be eligible but would
significantly add to the wetland functions and values; and
(vi) Wetlands that have been restored under a private, State, or
Federal restoration program with an easement or deed restriction with a
duration of less than 30 years.
(4) To be enrolled in the program, eligible land must be configured
in a size and with boundaries that allow for the efficient management
of the area for easement purposes and otherwise promote and enhance
program objectives.
(e) Ineligible land. The following land is not eligible for
enrollment in the WRP:
(1) Converted wetlands if the conversion was commended after
December 23, 1985;
(2) Land that contains timber stands established under a CRP
contract;
(3) Lands owned by an agency of the United States;
(4) Land subject to an easement or deed restriction with a duration
of 30 years or more prohibiting the production of agricultural
commodities; and,
(5) Lands where implementation of restoration practices would be
futile due to on-site or off-site conditions.
(f) Enrollment of CRP lands. Land subject to an existing CRP
contract may be enrolled into the WKP only if the land and landowner
meet the requirements of this part, and the enrollment is requested by
the landowner and agreed to by the NRCS. To enroll in WRP, the CRP
contract for the property shall be terminated or otherwise modified
subject to such terms and conditions as are mutually agreed upon by the
Consolidated Farm Service Agency and the landowner.
Sec. 620.5 Application procedures.
(a) Application for participation. To apply for enrollment, a
landowner must submit an Application for Participation in the WRP. The
application must be submitted during an announced period for such
submissions.
(b) Preliminary agency actions. By filing an Application for
Participation, the landowner consents to an NRCS representative
entering upon the land for purposes of assessing the wetland functions
and values, and for other activities such as the development of the
preliminary WRPO that are necessary or desirable for the NRCS to make
offers of enrollment. The landowner is entitled to accompany an NRCS
representative on any site visits.
(c) Voluntary reduction in compensation. In order to enhance the
probability of enrollment in WRP, a landowner may voluntarily offer to
accept a lesser payment than is being offered by the NRCS.
Sec. 620.6 Establishing priority for enrollment of properties in WRP.
(a) Ranking considerations. Based on applications for
participation, the State Conservationist, in consultation with the U.S.
Fish and Wildlife Service and the State Technical Committee, will rank
properties based on: estimated costs of restoration and easement
acquisition, availability of matching funds, significance of wetland
functions and values, estimated success of restoration measures, and
the duration of a proposed easement with permanent easements being
given priority over non-permanent easements.
(b) The NRCS may place higher priority on certain geographic
regions of the State where restoration of wetlands may better achieve
NRCS State and regional goals and objectives.
(c) Notwithstanding any limitation of this part, the State
Conservationist may enroll eligible lands at any time in order to
encompass total wetland areas subject to multiple ownership or
otherwise to achieve program objectives. Similarly, the State
Conservationist may, at any time, exclude otherwise eligible lands if
the participation of the adjacent landowners is essential to the
successful restoration of the wetlands and those adjacent landowners
are unwilling to participate.
Sec. 620.7 Enrollment.
(a) Offers of enrollment. Based on the priority ranking, the NRCS
will notify an affected landowner of tentative acceptance into the
program for which the landowner has 15 calendar days to sign a letter
of intent to continue. NRCS will select lands to maximize environmental
benefits per expenditure of Federal funds.
(b) Effect of letter of intent to continue (tentative acceptance).
An offer of tentative acceptance into the program does not bind the
NRCS or the United States to acquire an easement, nor does it bind the
landowner to convey an easement or agree to WRPO activities. However,
receipt of an executed letter of intent to continue will authorize the
NRCS to proceed.
(c) Acceptance of offer of enrollment. A contract will be presented
by the NRCS to the landowner, which will describe the easement area;
the easement terms and conditions; and other terms and conditions for
participation that may be required by the NRCS. A landowner accepts
enrollment in the WRP by signing contract.
(d) Effect of the acceptance of the offer. After the contract is
executed by NRCS and the landowner, the NRCS will proceed with various
easement acquisition activities, which may include conducting a survey
of the easement area, securing necessary subordination agreements,
procuring title insurance, and conducting other activities necessary to
record the easement or implement the WRPO.
(e) Withdrawal of offers. Prior to execution by the United States
and the landowner of the contract, the NRCS may withdraw its offer
anytime due to availability of funds, inability to clear title, or
other reasons. The offer to the landowner shall be void if not executed
by the landowner within the time specified. The date of the offer shall
be the date of notification to the landowner of tentative acceptance.
Sec. 620.8 Compensation for easements.
(a) Establishment of rates.
(1) The State Conservationist, in consultation with the State
Technical Committee, shall determine easement payment rates to be
applied to specific geographic areas within the State or to individual
easement areas.
(2) In order to provide for better uniformity among States, the
Regional Conservationist and Chief may review and adjust, as
appropriate, State or other geographically based easement payment
rates.
(b) Determination of easement payment rates.
(1) Easement payment rates will be based upon analyses of the
values of the lands when used for agricultural purposes. The landowner
will receive the lesser of the following:
(i) the geographic area rate;
(ii) the value based on a market appraisal analysis/assessment; or
(iii) the landowner offer.
(2) Each State Conservationist will determine the easement payment
rates using the best information which is readily available in that
State for assessing the values of land for agricultural purposes. Such
information may include: soil types, type(s) of crops capable of being
grown, production [[Page 28518]] history, location, real estate market
values, appraisals and market analyses, and tax rates and assessments.
The State Conservationist may consult with other Federal agencies, real
estate market experts, appraisers, local tax authorities, and other
entities or persons which may provide information on productivity and
market conditions.
(3) Easement payments for non-permanent easements will be less than
those for permanent easements because the quality and duration of the
ecological benefits derived from a non-permanent easement are
significantly less than those derived from a permanent easement on the
same land. Easement payments for a non-permanent easement shall be
determined by the Chief at between 50 percent and 75 percent of that
which would have been paid for a permanent easement, with the actual
percentage of compensation being determined by the Chief based upon the
extent to which full restoration and ecological benefits can be
achieved when compared to a permanent easement. Easement payments for
the short-term 30-year easements shall be 50 percent of that which
would have been paid for a permanent easement.
(4) Before proceeding to acquire a non-permanent easement, the
State Conservationist shall first seek to acquire any permanent
easement offer that is determined to have the ecological and cost
characteristics that warrant acquisition. After the effort to acquire
permanent easements is completed, and provided that funding continues
to be available, the State Conservationist, in consultation with the
State Technical Committee and following review and approval of the
request by the Regional Conservationist and the Chief, may pursue the
acquisition of non-permanent easements.
(5) The Regional Conservationist and the Chief, when considering
the request of the State Conservationist for approval to acquire a non-
permanent easement, will simultaneously consider any backlog of
unaccepted permanent easement offers that may exist in other areas of
the region and Nation before approval of the acquisition of non-
permanent easements is granted.
(c) Maximum payments. In order to ensure that limited program funds
are expended to maximize program benefits, the State Conservationist,
in consultation with the State Technical Committee, may establish a
maximum easement payment for any one easement within a State or for
geographic areas within a State.
(d) Preliminary estimates of easement payments. Upon request of the
landowner prior to filing an application for enrollment, a landowner
may be appraised of the maximum easement payment rates.
(e) Acceptance of offered easement compensation.
(1) The NRCS will not acquire any easement unless the landowner
accepts the amount of the easement payment which is offered by the
NRCS. The easement payment may or may not equal the fair market value
of the interests and rights to be conveyed by the landowner under the
easement. By voluntarily participating in the program, a landowner
waives any claim to additional compensation based on fair market value.
(2) For permanent easements, the NRCS may make one lump-sum cash
easement payment after the easement is recorded.
(3) For non-permanent easements, the easement payment shall be made
in no less than 5 annual payments or no more than 20 annual payments.
(f) Reimbursement of a landowner's expenses. For completed easement
conveyances, the NRCS will reimburse landowners for their fair and
reasonable expenses, if any, incurred for surveying and related costs,
as determined by the NRCS. The State Conservationist, in consultation
with the State Technical Committee, may establish maximum payments to
reimburse landowners for reasonable expenses.
(g) Tax implications of easement conveyances. Subject to applicable
regulations of the Internal Revenue Service, a landowner may be
eligible for a bargain sale tax deduction which is the difference
between the fair market value of the easement conveyed to the United
States and the easement payment made to the landowner. The NRCS
disclaims any representations concerning the tax implications of any
easement or cost-share transaction.
(h) Payment limitation on non-permanent easements. With respect to
non-permanent easements, the annual amount of easement payments to any
person shall not exceed $50,000.
(i) If easement payments are calculated on a per acre basis,
adjustment to stated easement payment will be made based on final
determination of acreage.
Sec. 620.9 Cost-share payments.
(a) In addition to easement payments, the NRCS may share the cost
with landowners of restoring the enrolled land as provided in the WRPO
after the easement is recorded. The amount and terms and conditions of
the cost-share assistance shall be subject to the following
restrictions on the costs of establishing or installing practices
specified in the WRPO:
(1) On enrolled land subject to a permanent easement, the NRCS
shall offer to pay not less than 75 percent nor more than 100 percent
of such costs; and
(2) On enrolled land subject to a non-permanent easement, the NRCS
shall offer to pay not less than 50 percent nor more than 75 percent of
such costs. Cost-share payments offered by NRCS for the short-term, 30-
year easements shall be 50 percent.
(b) Cost-share payments may be made only upon a determination by
the NRCS that an eligible practice or an identifiable unit of the
practice has been established in compliance with appropriate standards
and specifications. Identified practices may be implemented by the
landowner or other designee.
(c) Cost-share payments may be made for the establishment and
installation of additional eligible practices, or the maintenance or
replacement of an eligible practice, but only if NRCS determines the
practice is needed to meet the objectives of the easement, and the
failure of the original practices was due to reasons beyond the control
of the landowner.
(d) A landowner may seek additional cost-share assistance from
other public or private organizations as long as the activities funded
are in compliance with this part. In no event shall the landowner
receive an amount which exceeds 100 percent of the total actual cost of
the restoration.
Sec. 620.10 Program participation requirements.
(a) To enroll land in WRP, a landowner shall grant an easement to
the United States. The easement shall require that the easement area be
maintained in accordance with WRP goals and objectives for the duration
of the term of the easement, including the restoration, protection,
enhancement, maintenance, and management of wetland and other land
functions and values.
(b) For the duration of its term, the easement shall require, at a
minimum, that the landowner, and the landowner's heirs, successors and
assigns, shall cooperate in the restoration, protection, enhancement,
maintenance, and management of the land in accordance with the easement
and with the terms of the WRPO. In addition, the easement shall grant
to the United States, through the NRCS:
(1) A right of access to the easement area; [[Page 28519]]
(2) The right to permit compatible uses of the easement area,
including such activities as hunting and fishing, managed timber
harvest, or periodic haying or grazing, if such use is consistent with
the long-term protection and enhancement of the wetland resources for
which the easement was established;
(3) All rights, title and interest in the easement area subject to
compatible uses reserved to the landowner; and,
(4) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the easement area.
(c) The landowner shall convey title to the easement which is
acceptable to the NRCS. The landowner shall warrant that the easement
granted to the United States is superior to the rights of all others,
except for exceptions to the title which are deemed acceptable by the
NRCS.
(d) The landowner shall:
(1) Comply with the terms of the easement;
(2) Comply with all terms and conditions of any associated
contract;
(3) Agree to the permanent retirement of any existing cropland base
and allotment history for the easement area under any program
administered by the Secretary, as determined by the Consolidated Farm
Service Agency;
(4) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the easement in accordance with the
terms of the easement and related agreements;
(5) The landowner may have the option to enter into an agreement
with governmental or private organizations to assist in carrying out
any landowner responsibilities on the easement area; and,
(6) Agree that each person who is subject to the easement shall be
jointly and severally responsible for compliance with the easement and
the provisions of this part and for any refunds or payment adjustment
which may be required for violation of any terms or conditions of the
easement or the provisions of this part.
Sec. 620.11 The WRPO development.
(a) The NRCS shall prepare the WRPO in consultation with the U.S.
Fish and Wildlife Service and the Conservation District. At the local
level, the NRCS must reach agreement with the U.S. Fish and Wildlife
Service. If agreement cannot be reached, the WRPO will be forwarded to
the State Conservationist, who, giving consideration to the information
provided by the U.S. Fish and Wildlife Service, will develop the WRPO.
In all cases of disagreement at the local level, the NRCS and the U.S.
Fish and Wildlife Service will file a report with their respective
national offices.
(b) The WRPO shall specify the manner in which the enrolled land
shall be restored, protected, enhanced, maintained, and managed to
accomplish the goals of the program.
Sec. 620.12 Modifications.
(a) Easements.
(1) After an easement has been recorded, no modification will be
made in the easement except by manual agreement with the Chief and the
landowner. The Chief will consult with the U.S. Fish and Wildlife
Service and the Conservation District prior to making any modifications
to easements.
(2) Approved modifications will be made only in an amended easement
which is duly prepared and recorded in conformity with standard real
estate practices, including requirements for title approval,
subordination of liens, and recordation.
(3) The Chief may approve modifications to facilitate the practical
administration and management of the easement area or the program so
long as the modification will not adversely affect the wetland
functions and values for which the easement was acquired.
(4) Modifications must result in equal or greater environmental and
economic values to the United States.
(b) WRPO. Insofar as is consistent with the easement and applicable
law, the Chief may approve modifications to the WRPO after consultation
with the U.S. Fish and Wildlife Service. Any WRPO modification must
meet WRP program objectives, and must result in equal or greater
environmental and economic values to the United States. Modifications
to the WRPO which are substantial and affect provisions of the easement
may require agreement from the landowner and require execution of an
amended easement.
Sec. 620.13 Transfer of land.
(a) Offers voided. Any transfer of the property prior to the
landowner acceptance into the program shall void the offer of
enrollment. At the option of the State Conservationist, an offer can be
extended to the new landowner if the new landowner agrees to the same
or more restrictive easement and contract terms and conditions.
(b) Payments to landowners.
(1) For non-permanent easements with multiple annual payments, any
remaining easement payments will be made to the original landowner
unless the NRCS receives an assignment of proceeds from the original
landowner to a successor in title.
(2) The new landowner or purchaser shall be held responsible for
assuring completion of all measures and practices required by the
contract. Eligible cost-share payments shall be made to the new
landowner upon presentation of an assignment of rights or other
evidence that title had passed.
(c) Claims to payments. With respect to any and all payments owed
to landowners, the United States shall bear no responsibility for any
full payments or partial distributions of funds between the original
landowner and the landowner's successor. In the event of a dispute or
claim on the distribution of cost-share payments, the NRCS may withhold
payments without the accrual of interest pending an agreement or
adjudication on the rights to the funds.
Sec. 620.14 Violations and remedies.
(a) In the event of a violation of the easement or any associated
contract directly involving the landowner, the landowner shall be given
reasonable notice and an opportunity to voluntarily correct the
violation within 30 days of the date of the notice, or such additional
time as the State Conservationist may allow.
(b) Notwithstanding paragraph (a) of this section, the NRCS
reserves the right to enter upon the easement area at any time to
remedy deficiencies or easement violations. Such entry may be made at
the discretion of the NRCS when such actions are deemed necessary to
protect important wetland functions and values or others rights of the
United States under the easement. The landowner shall be liable for any
costs incurred by the United States as a result of the landowner's
negligence or failure to comply with easement or contractual
obligations.
(c) In addition to any and all legal and equitable remedies as may
be available to the United States under applicable law, the NRCS may
withhold any easement and cost-share payments owing to landowners at
any time there is a material breach of the easement covenants or any
associated contract. Such withheld funds may be used to offset costs
incurred by the United States in any remedial actions or retained as
damages pursuant to court order or settlement agreement.
(d) The United states shall be entitled to recover any and all
administrative and legal costs, including attorney's fees or expenses,
associated with any enforcement or remedial action. [[Page 28520]]
Sec. 620.15 Payments not subject to claims.
Any cost-share or easement payment or portion thereof due any
person under this part shall be allowed without regard to any claim or
lien in favor of any creditor, except agencies of the United States
Government.
Sec. 620.16 Assignments.
Any person entitled to any cash payment under this program may
assign the right to receive such cash payments, in whole or in part.
Sec. 620.17 Appeals.
(a) A person participating in the WRP may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal procedures pursuant to Title II,
Subtitle B and Subtitle H of the Department of Agriculture
Reorganization Act of 1994, Public Law 103-354.
(b) Before a person may seek judicial review of any action taken
under this part, the person must exhaust all administrative appeal
procedures set forth in paragraph (a) of this section, and for purposes
of judicial review, no decision shall be a final agency action except a
decision of the Chief of NRCS under these procedures.
(c) Any appraisals, market analysis, or supporting documentation
that may be used by the NRCS in determining property value are
considered confidential information, and shall only be disclosed as
determined at the sole discretion of the NRCS in accordance with
applicable law.
Sec. 620.18 Scheme and device.
(a) If it is determined by the NRCS that a landowner has employed a
scheme or device to defeat the purposes of this part, any part of any
program payment otherwise due or paid such landowner during the
applicable period may be withheld or be required to be refunded with
interest thereon, as determined appropriate by the NRCS.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for
cost-share practices or easements for the purpose of obtaining a
payment to which a person would otherwise not be entitled.
(c) A landowner who succeeds to the responsibilities under this
part shall report in writing to the NRCS any interest of any kind in
enrolled land that is held by a predecessor or any lender. A failure of
full disclosure will be considered a scheme or device under this
section.
Signed at Washington, DC on May 19, 1995.
Gary A. Margheim,
Acting Chief, Natural Resources Conservation Service.
[FR Doc. 95-13161 Filed 5-31-95; 8:45 am]
BILLING CODE 3410-16-M
