[Federal Register Volume 61, Number 158 (Wednesday, August 14, 1996)]
[Rules and Regulations]
[Pages 42137-42143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20623]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 158 / Wednesday, August 14, 1996 /
Rules and Regulations
[[Page 42137]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
Natural Resources Conservation Service
7 CFR Parts 620 and 1467
RIN 0578-AA16
Wetlands Reserve Program
AGENCY: Commodity Credit Corporation, Natural Resources Conservation
Service, USDA.
ACTION: Final rule.
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SUMMARY: The Commodity Credit Corporation (CCC) and the Natural
Resources Conservation Service (NRCS) are issuing its final rule for
the Wetlands Reserve Program. This rule adopts as final the interim
rule for the Wetlands Reserve Program published on June 1, 1995,
responds to comments received from the public during the comment
period, and incorporates specific changes required by the Federal
Agriculture Improvement and Reform Act of 1996. The final rule will
provide the process by which the Wetlands Reserve Program is
administered by the NRCS.
EFFECTIVE DATE: August 14, 1996.
FOR FURTHER INFORMATION CONTACT:
Robert Misso, (202) 720-3534.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
final rule is significant and was reviewed by the Office of Management
and Budget under Executive Order 12866. Pursuant to Sec. 6(a)(3) of
Executive Order 12866, CCC and NRCS prepared a cost-benefit assessment
of the potential impact of the program. The assessment concluded that
several mechanisms at the State and National level of the agency are in
place to ensure environmental benefits are maximized for each Federal
dollar spent in the WRP. These mechanisms include a comprehensive
prioritization and ranking procedure for each site offered for
enrollment in the program and the requirement for locally-determined
easement payment caps based on the agricultural land value. These
mechanisms are developed and implemented on a state-by-state basis,
with guidance and coordination from the National level of the agency,
to ensure that regional and geophysical variations are addressed. The
WRP costs data indicate that the procedures in place are promoting
cost-effectiveness. Copies of the cost-benefit assessment are available
upon request from Robert Misso, Program Manager, Watersheds and
Wetlands Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, DC 20250.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this rule because neither the CCC or NRCS are 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.'' NRCS supplemented the
environmental assessment to evaluate the changes to the program made
pursuant to the Federal Agriculture Improvement and Reform Act of 1996.
Copies of the environmental assessment with supplement are available
upon request from: Robert Misso, Program Manager, Watersheds and
Wetlands Division, Natural Resources Conservation Service, 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
No substantive changes have been made in this final rule which
affect the recordkeeping requirements and estimated burdens previously
reviewed and approved under OMB control number 0578-0013.
Executive Order 12778
This final rule has been reviewed in accordance with Executive
Order 12778. The provisions of this final rule are not retroactive.
Furthermore, except as provided at 16 U.S.C. 3837a(e)(2), the
provisions of this final rule preempt State and local laws to the
extent such laws are inconsistent with this final 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
The NRCS published the current regulations for the Wetlands Reserve
Program as an interim rule on June 1, 1995 (60 FR 28511). Enacted on
April 4, 1996, the Federal Agriculture Improvement and Reform Act (the
1996 Act) authorized the enrollment of non-easement acres into the
program through the use of restoration cost-share agreements and made
other minor changes to the focus of the program. This final rule adopts
the procedures outlined in the interim rule with the
[[Page 42138]]
addition of the few changes recommended during public comment and/or
required by the 1996 Act. These changes are described below. Minor
editorial changes have also been made for clarification and
administrative purposes. The 1996 Act amended the Food Security Act of
1985 (the 1985 Act), Pub. L. 99-198, to provide that the WRP should be
funded by CCC. Accordingly, this final rule is issued by CCC and NRCS.
Discussion of Comments
The NRCS received 16 comments concerning the interim rule during
the 60-day public comment period that ended July 31, 1995. Respondents
included national wildlife and conservation organizations, state
agencies, public utilities, and one State farm organization. Two of the
comments simply indicated support for the WRP and did not offer
specific suggested changes.
Definitions
NRCS received two comments requesting slight modifications to the
definitions in Sec. 620.2 of the interim rule. One comment suggested
that the definition for ``State Technical Committee'' be changed to
allow the State Conservationist flexibility in delegating the chair
position to other members of the committee. Currently, the State
Conservationist may delegate the chair position to other NRCS
personnel. Even so, implementation of the WRP at the state level
remains the responsibility of the State Conservationist and therefore,
no changes were made to the definition of State Technical Committee.
The commenter also suggested that the definition of ``wetland functions
and values'' be revised from ``social worth placed upon these
characteristics'' to ``the socioeconomic value placed upon these
characteristics.'' This change clarifies the intent of the interim rule
and is adopted in this final rule.
NRCS also received a comment from a state forestry agency
requesting that ``timber'' be included in the definition for ``wetland
functions and values.'' NRCS did not adopt this change because the
concept is incorporated in the current definition but the actual term
is too specific for a nationwide program which enrolls many different
types of wetlands with differing wetlands functions and values.
Another commenter indicated that the definition of ``Conservation
Districts'' be modified to reflect better the mission of conservation
districts. The NRCS adopts the suggested language as an improvement to
the clarity of the definition. Additionally, section 620.3(f) is
modified to include conservation districts by specific reference to
clarify that NRCS values the special partnership that it has with
conservation districts in the effort to improve the Nation's soil,
water, and other natural resources, and NRCS will continue to seek
input from conservation districts in the administration of its
programs.
The Consolidated Farm Service Agency (CFSA) is now known as the
Farm Service Agency (FSA). The rule is amended to reflect this name
change.
Utility Easements
NRCS received two comments from utility companies, both of which
expressed concern about how NRCS would approach the overlapping of a
WRP easement with a utility easement. Utility easements are addressed
during the title clearance process. During that process, the NRCS must
determine whether: (1) NRCS can obtain a subordination agreement from
the utility easement holder; (2) the exercise of the utility easement
holder's rights would be consistent with the purposes of the WRP
easement; or, (3) the exercise of the utility easement holder's rights
would undermine the purposes for which the WRP easement would be
established. If the NRCS is unable to obtain a subordination agreement
from the utility easement holder and the exercise of that easement
holder's rights would undermine the WRP easement, then the NRCS will
not purchase a WRP easement on that property. One of these commenters
also expressed support for the preference given permanent easements by
the interim rule.
Water Quality
One utility company commenter requested that the impact on drinking
water sources be a ranking factor for giving priority to purchasing a
particular easement. One of the conservation organizations also urged
that easements that provided water quality functions receive priority
treatment. Because water quality is one of the wetland functions for
which the easement is being established, the NRCS considers in its
ranking process, directly or indirectly, the impact an easement would
have on drinking water sources. Currently, each State Conservationist,
in consultation with the State Technical Committee, will determine the
weight that water quality in general, and impact on drinking water
specifically, should receive in the ranking process. In the future,
NRCS along with other agencies with wetland responsibilities will use a
system (Hydrogeomorphic Modeling (HGM)) to evaluate wetland functions
and values more objectively. NRCS will be better able to rank wetland
sites for WRP that differ, thus providing for more consistency within
and between States.
Compatible Uses
NRCS received four letters from State forestry organizations and
one letter from a State farm organization which expressed opposition to
language placed in the preamble to the WRP interim rule regarding
compatible economic uses of the easement area as it related to forest
management activities. NRCS also received a comment, however, from a
conservation organization which supported the language used in the
preamble, suggesting that some management approaches may not be
consistent with the long-term protection of wetland resources.
According to the WRP authorizing language at 16 U.S.C. 3837a(d),
compatible economic uses, including forest management, are permitted if
consistent with the long-term protection and enhancement of the
wetlands resources for which the easement was established. In the
preamble, NRCS simply indicated that harvesting methods which are not
consistent with the long-term protection and enhancement of wetland
functions and values on a particular easement area will not be
considered a compatible use. Upon request by a landowner, the NRCS will
evaluate the particular site on an easement area and will make a
determination of what silvicultural approach, timing, intensity, and
duration may be considered compatible with the wetland functions and
values.
The document granting permission for forest management activities,
or any other request for a compatible use, specifies the amount,
method, timing, intensity, and duration of the use being granted. The
NRCS, however, reserves its ability to modify a particular use should
easement area conditions change. The management plan for an easement
area is a ``living document'' and may be updated with additional
compatible use requests as they are received from a landowner over
time.
For example, the wetland functions and values that are established
by the WRP restoration efforts are not available for mitigation
purposes. However, at a later date, the landowner may request
permission from the NRCS to enhance further the functions and values
established by the WRP restoration effort. If the NRCS determines that
the enhancement action is a compatible use and is clearly beyond the
scope of restoration actions that would be feasible under any
subsequent WRP
[[Page 42139]]
restoration efforts, the additional increment of functions and values
which directly result from the landowner's approved enhancement action
may be available to meet mitigation requirements under other federal,
state, or local law.
No matter the use, the test remains: ``Is a particular proposed use
consistent with the long-term protection and enhancement of the
wetlands resources for which the easement was established and Federal
funds expended?'' This approach is consistent with the WRP statute and
does not require any change to the WRP rule.
Non-permanent Easements
The NRCS received four comments in which the commenters expressed
concern that the interim rule gave such priority to the enrollment of
permanent easements that the enrollment of non-permanent easements
would be completely excluded from the program. One commenter expressed
the concern that the priority placed on permanent easements
overshadowed the other priority mandated by statute. In particular, the
WRP authorizing legislation at 16 U.S.C. 3837c(d) provides that
priority should be placed on acquiring easements based on the value of
the easement for protecting and enhancing habitat for migratory birds
and other wildlife.
Sections 620.8(b)(4) and (5) of the rule require that the NRCS
consider whether any permanent easement offer has the ecological and
cost characteristics which warrants acquisition before proceeding to
acquire a non-permanent easement. The commenters recognized that non-
permanent easements receive a different easement payment than a
permanent easement, but either did not express specific opposition to
the differentiated payment rate or expressed support for it. The 1996
Act amendments require, to the extent practicable after October 1,
1996, that NRCS enroll one-third of total program acres through the use
of 30-year easements.
In response to the comments received and explicit direction from
statute, NRCS has removed Secs. 620.8(b)(4) and (5) and thus eliminated
these particular constraints upon the enrollment of non-permanent
easements. The 1996 amendments also provided that the restoration cost-
share rate for a 30-year easement should be from 50 to 75 percent. The
interim rule provided that the easement payment rate for a non-
permanent easement should parallel the restoration cost-share rate.
Therefore, Sec. 620.8(b)(3) has been amended to indicate that the
easement payment for a 30-year easement shall be between 50 percent and
75 percent of that which would have been paid for a permanent easement.
One commenter noted that the $50,000 annual easement payment
limitation discriminated unduly against the acquisition of less than
permanent easements. The interim final rule had established the $50,000
annual easement payment cap for all non-permanent easement
acquisitions. However, by statute, the $50,000 annual easement payment
limitation for non-permanent easements is a discretionary cap. As such,
the NRCS has determined that in special circumstances involving
projects with partnership funding or participation, a greater annual
easement payment amount may be available. Additionally, the statute
provides that payments are exempted from the payment limitation if the
payment is received by a State, political subdivision, or agency
thereof in connection with agreements entered into under a special
wetland and environmental enhancement program carried out by that
entity that has been approved by NRCS. The final rule is amended
accordingly.
Section 620.17 addresses the administrative appeal procedures to be
used when a person desires review of an administration determination
concerning eligibility for participation. The interim final rule for
the National Appeals Division (NED) Rules of Procedures, 60 FR 67298
(December 29, 1995), amended Sec. 620.17 to include reference to 7 CFR
Part 780 and 7 CFR Part 11. The NAD interim final rule also amended 7
CFR Part 614, the NRCS appeals procedures originally referenced in
Sec. 620.17. Part 614, as amended, references the other appeal
procedures at 7 CFR Part 780 and 7 CFR Part 11, and their additional
mention in Sec. 620.17 is therefore redundant. This final rule amends
Sec. 620.17 to remove the redundant reference to 7 CFR Part 780 7 CFR
Part 11.
Discussion of the Federal Agriculture Improvement and Reform Act
The Federal Agriculture Improvement and Reform Act (the 1996 Act)
was enacted on April 4, 1996. The 1996 Act amended the Food Security
Act of 1985, 16 U.S.C. 3801 et seq., to re-authorize the Environmental
Conservation Acreage Reserve Program as the umbrella conservation
program encompassing the Conservation Reserve Program (16 U.S.C. 3831-
3836), the newly-created Environmental Quality Incentives Program (16
U.S.C. 3840), and the Wetlands Reserve Program (16 U.S.C. 3837 et
seq.). Under the Environmental Conservation Acreage Reserve program,
the Secretary of Agriculture may designate areas as conservation
priority areas to assist landowners to meet nonpoint source pollution
requirements and other conservation needs.
The 1996 Act effects several changes to the administration of the
WRP. In particular, the 1996 Act amendments authorize the enrollment of
land into the Wetlands Reserve Program until 2002, establishes a
program cap at 975,000 acres, and provides that eligible land must
maximize wildlife benefits and wetland functions and values.
The 1996 Act amendments also require that, to the extent
practicable beginning October 1, 1996, one-third of the remaining
program acres be enrolled through the use of permanent easements, one-
third through the use of 30-year easements, and one-third through the
use of restoration cost-share agreements. Further, after October 1,
1996, no new permanent easement can be enrolled until at last 75,000
acres of non-permanent easement are enrolled in the program. Section
721 of the agriculture Appropriations Act, enacted August 6, 1996,
stated that this condition on enrollment ``shall be deemed met upon the
enrollment of 43,333 acres through the use of temporary easements:
Provided further that the Secretary shall not enroll acres * * *
through the use of new permanent easements in fiscal year 1998 until
the Secretary has enrolled at least 31,667 acres in the program through
the use of temporary easements.'' In recognition that the NRCS must
enroll lands that maximize wildlife benefits and other wetland
functions and values, achieve cost-efficient restoration, and provide
the three identified enrollment approaches, the NRCS will emphasize
enrolling lands that have the least likelihood of being reconverted.
The NRCS will work with landowners and other conservation partners to
achieve these lasting benefits for wetland resources.
Through several public forums across the county, the NRCS received
comments from the public about the new conservation programs and the
changes to existing conservation programs as a result of the enactment
of the 1996 Act. The NRCS greatly appreciates the input provided by the
public through the forums and written comments submitted to the agency.
The NRCS will consider these comments during the formulation of its
policies and guidelines.
Many of the changes to the WRP required by the 1996 Act are
directives to the agency which do not impact the
[[Page 42140]]
WRP rule. Some of the amendments, however, require specific, non-
discretionary changes to the WRP regulations. Since these changes are
mandatory and do not require agency interpretation, the CCC and NRCS
have incorporated them into this final rule. The following sections and
parts are impacted:
Section 620.2
The 1966 Act made several changes to other programs which relate to
WRP, including the wetland conservation provisions, 7 CFR Part 12, and
the Conservation Reserve Program, 7 CFR Parts 704 and 1410. Therefore,
certain definitions are removed from this part to avoid any
inconsistencies with the implementation of these other provisions.
Section 620.3
The 1996 Act requires the Department of Agriculture to avoid
duplication of conservation plans required for the implementation of
the highly erodible land conservation provisions of the Food Security
Act of 1985, CRP, and the WRP. In response to this requirement,
Sec. 620.3(h) is amended to include coordination of the development of
conservation plans as an additional goal in the administration of the
WRP. The 1996 Act amendments also provide that areas may be designated
as conservation priority areas to help producers comply with nonpoint
source pollution requirements and other conservation needs. Therefore,
a new sentence is added to Sec. 620.3(h) that the Secretary of
Agriculture may designate areas as conservation priority areas to
assist landowners to meet nonpoint source pollution requirements and
other conservation needs.
Section 620.4
The 1996 Act amendments authorize the enrollment of acres into the
WRP through the use of restoration cost-share agreements. Therefore,
the first sentence of Sec. 620.4 has been amended to include the term
``restoration cost-share agreements.''
The 1996 Act amendments links eligibility for WRP easement or cost-
share payments to the highly erodible land and wetland conservation
provisions of the 1985 Act, 16 U.S.C. 3801 et seq., 7 CFR part 12.
Therefore, landowner eligibility, Sec. 620.4(c), is amended to reflect
that a person may not be eligible for participation in WRP if the
requirements of 7 CFR part 12 have not been met.
The 1996 Act amendments specify that the 25 percent county
enrollment cap and the 10 percent county easement cap only apply to
acres enrolled in the Conservation Reserve Program (CRP) and the WRP,
and not all acres enrolled in the Environmental Conservation Acreage
Reserve Program. Therefore, the reference to the Environmental
Conservation Acreage Reserve Program in Sec. 620.4(b)(1) has been
replaced with specific reference to the CRP and the WRP. In addition to
consideration of any adverse effect on the local economy, the 1996 Act
amendments require that a waiver from the county caps can only be
approved if operators in the county are having difficulties complying
with the conservation plans implemented under 16 U.S.C. 3812.
Therefore, Sec. 620.4(b)(2) has been amended to incorporate this new
criterion.
The 1996 Act amendments expanded the eligibility criteria to
require specifically that land enrolled in the program maximize
wildlife benefits. Therefore, Sec. 620.4(d) is amended to incorporate
the additional eligibility criterion.
The 1985 Act provides that pasture land established to trees under
the CRP is ineligible for enrollment in the WRP. Even though such lands
were not enrolled in the program, specific mention of this
ineligibility provision was not made in the interim rule. Section
620.4(e) is amended to incorporate specifically this statutory
provision.
Section 620.7
The 1996 Act amendments require that after October 1, 1996, to the
extent practicable, the NRCS enroll one-third of the acres through the
use of permanent easements, one-third of the acres through the use of
30-year easements, and one-third of the acres through the use of
restoration cost-share agreements. The NRCS has considered land
enrolled in the program at the time the NRCS determines that a
landowner's offer is eligible, funds are committed to acquire that
particular easement, and the landowner agrees to continue in the
program. Because the 1996 Act amendments require that the NRCS track
the total acres enrolled through the use of permanent easements, 30-
year easements, and restoration cost-share agreements, Sec. 620.7(b) is
amended to clarify that enrollment occurs at this stage in the process.
Sections 620.8 and 620.13
The 1996 Act amends 16 U.S.C. 3837a(f) to eliminate the specific
reference to lump sum payments for permanent easements only, and
further provides that annual compensation for any easement may be in
not less than 5 nor more than 30 annual payments of either equal or
unequal size. Therefore, Sec. 620.8(e) and Sec. 620.13(b)(1), which
incorporated the original statutory provisions as to payments, are
amended to reflect this specific change in law regarding easement
payments.
Section 620.9 and 620.10
To reflect that the NRCS shall enroll land into the WRP through the
use of restoration cost-share agreements, section 620.9 is amended by
adding specific reference to restoration cost-share agreements and
making associated editorial adjustments to this new type of enrollment
mechanism. Additionally, the 1996 Act amendments provide that the cost-
share rate for restoration associated with 30-year easements shall be
no less than 50 nor more than 75 percent. Section 620.9(a) incorporates
this new statutory provision.
Likewise, the requirements in Sec. 620.10, such as the granting of
an easement to the United States, are specific to enrollment into the
program through the use of an easement and not restoration cost-share
agreements. Therefore, the heading to Sec. 620.10 reflects that the
section is no longer applicable as ``Program requirements'' but now
more appropriately refers to easement enrollment requirements.
Section 620.11
The 1996 Act amendments provide that the development of the
restoration plan shall be made through the local NRCS representative,
in consultation with the State Technical Committee. The 1996 Act
amendments also removes the specific requirement that consultation with
the Department of the Interior means agreement at the local level and
consultation at the State level. Therefore, NRCS has added these
changes to Sec. 620.11 by 1) by removing the regulatory language in
paragraph (a) which required agreement with the U.S. Fish and Wildlife
Service at the local level, and 2) replacing the language with a new
paragraph (a) which now references the development of the plan by the
local NRCS representative.
Section 620.14
During the implementation of the program under the interim rule,
confusion arose regarding the language in Sec. 620.14 about
``associated'' contract. The term ``associated'' was intended to mean a
contract ``associated with the program'' other than the easement deed.
As stated, the term ``associated'' inadvertently created the mistaken
conclusion that the contract is attached to the easement deed.
Therefore, the term ``associated'' has been removed to improve the
clarity of this section.
[[Page 42141]]
Parts 620 and 1467
Because funds of the Commodity Credit Corporation shall be used for
administration of the WRP, the WRP rule is moved from Part 620 to Part
1467 of Title VII of the CFR. Furthermore, certain administrative
responsibilities may be assumed by other agencies with the Department
of Agriculture, and the rule is modified accordingly.
List of Subjects in 7 CFR Part 1467
Administrative practice and procedure, Agriculture, Soil
conservation, Wetlands.
Accordingly, the interim rule establishing 7 CFR part 620 which was
published at 60 FR 28511 on June 1, 1995, is adopted as a final rule
with the following changes:
1. In 7 CFR, chapter VI, part 620 is re-designated as chapter XIV,
part 1467, and the sections are re-designated as set forth below:
------------------------------------------------------------------------
New
Old section section
------------------------------------------------------------------------
620.1....................................................... 1467.1
620.2....................................................... 1467.3
620.3....................................................... 1467.2
620.4....................................................... 1467.4
620.5....................................................... 1467.5
620.6....................................................... 1467.6
620.7....................................................... 1467.7
620.8....................................................... 1467.8
620.9....................................................... 1467.9
620.10...................................................... 1467.10
620.11...................................................... 1467.11
620.12...................................................... 1467.12
620.13...................................................... 1467.13
620.14...................................................... 1467.14
620.15...................................................... 1467.15
620.16...................................................... 1467.16
620.17...................................................... 1467.17
620.18...................................................... 1467.18
------------------------------------------------------------------------
PART 1467--WETLANDS RESERVE PROGRAM
2. The authority citation for re-designated part 1467 continues to
read as follows:
Authority: 16 U.S.C. 590a, et seq.; and 16 U.S.C. 3837, et seq.
3. Section 1467.1 is amended by revising the heading to the section
to read as follows:
Sec. 1467.1 Applicability.
* * * * *
4. Section 1467.2 is amended by revising paragraphs (c), (f), and
(h) and amending paragraph (g) by revising the second and third
sentences to read as follows:
Sec. 1467.2 Administration.
* * * * *
(c) As determined by the Chief and the Administrator of the Farm
Service Agency, the NRCS and the Farm Service Agency will seek
agreement in establishing policies, priorities, and guidelines related
to the implementation of this part.
* * * * *
(f) The Department may enter into cooperative agreements with
Federal or State agencies, conservation districts, and private
conservation organizations to assist the NRCS with educational efforts,
easement management and monitoring, outreach efforts, and program
implementation assistance.
(g) * * * The NRCS may consult with the Forest Service, other
Federal or State agencies, conservation districts or other
organizations in program administration. No determination by the U.S.
Fish and Wildlife Service, the Forest Service, Federal or State agency,
conservation district, or other organization shall compel the NRCS to
take any action with 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;
acquisition of wetland easements with emergency funding; cooperative
agreements with other Federal or State agencies for program
implementation; coordination of easement enrollment across State
boundaries; coordination of the development of conservation plans; or,
for other goals of the WRP found in this part. The Department may
designate areas as conservation priority areas where environmental
concerns are especially pronounced and to assist landowners in meeting
nonpoint source pollution requirements and other conservation needs.
5. Section 1467.3 is amended by removing the definitions for
``Farmed wetland'', ``Farmed wetland pasture'', and ``Prior converted
cropland''; by revising the definitions for ``Conservation District'',
``Conservation Reserve Program'', ``Contract'', ``Person'' and the
introductory text of ``Wetlands functions and values''; and by adding a
definition for ``Department'' to read as follows:
Sec. 1467.3 Definitions.
* * * * *
Conservation District is a subdivision of a State government
organized pursuant to applicable State law to promote and undertake
actions for the conservation of soil, water, and other natural
resources.
Conservation Reserve Program (CRP) means the program administered
by the Commodity Credit Corporation pursuant to 16 U.S.C. 3831-3836.
* * * * *
Contract means the document that specifies the obligations and
rights of any person who has been accepted for participation in the
program.
* * * * *
Department means the United States Department of Agriculture (USDA)
and includes the Commodity Credit Corporation or any USDA agency or
instrumentality delegated program responsibility by the Secretary of
Agriculture.
* * * * *
Person means an individual, partnership, association, corporation,
estate or trust, or other business enterprise or other legal entity
and, whenever applicable, a State, a political subdivision of a State,
or any agency thereof.
* * * * *
Wetland functions and values means the hydrological and biological
characteristics of wetlands and the socioeconomic value placed upon
these characteristics, including: * * *
* * * * *
6. Section 1467.4 is amended by revising the first sentence of
paragraph (a), and revising paragraphs (b)(1), the second sentence of
(b)(2), the introductory text of (c), paragraph (d)(2), the
introductory text of (d)(3), and paragraph (e)(2) to read as follows:
Sec. 1467.4 Program requirements.
(a) General. Under the WRP, the Department may purchase
conservation easements from, or enter into restoration cost-share
agreements with, eligible landowners who voluntarily cooperate in the
restoration and protection of wetlands and associated lands. * * *
(b) * * *
(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 Farm Service Agency, may be enrolled in
the CRP and the WRP, and no more than 10 percent of the total cropland
in the county may be subject to an easement acquired under the CRP and
the WRP.
(2) * * * Such a waiver will only be approved if it will not
adversely affect the local economy, and operators in the county are
having difficulties complying with the conservation plans implemented
under 16 U.S.C. 3812.
(c) Landowner eligibility. The NRCS may determine that a person is
not eligible to participate in the WRP or receive any WRP payment
because the person did not comply with the
[[Page 42142]]
provisions of 7 CFR part 12. To be eligible to enroll an easement in
the WRP, a person must: * * *
* * * * *
(d) * * *
* * * * *
(2) Land shall only be considered eligible for enrollment in the
WRP if the NRCS determines, in consultation with the U.S. Fish and
Wildlife Service, that:
(i) Such land maximizes wildlife benefits and wetland values and
functions;
(ii) The likelihood of the successful restoration of such land and
the resultant wetland values merit inclusion of such land in the
program, taking into consideration the cost of such restoration; and
(iii) Such land meets the criteria of paragraph (d)(3) of this
section.
(3) The following land may be eligible for enrollment in the WRP,
which land may be identified by the NRCS pursuant to regulations and
implementing policies pertaining to wetland conservation found at 7 CFR
part 12, as: * * *
* * * * *
(e) * * *
(2) Land that contains timber stands established under a CRP
contract or pasture land established to trees under a CRP contract.
* * * * *
7. In Sec. 1467.6, paragraphs (a) through (c) are re-designated as
paragraphs (b) through (d), a new paragraph (a) is added to read as
follows:
Sec. 1467.6 Establishing priority for enrollment of properties in WRP.
(a) The NRCS shall place priority on the enrollment of those lands
that will maximize wildlife values (especially related to enhancing
habitat for migratory birds and other wildlife); have the least
likelihood of re-conversion and loss of these wildlife values at the
end of the WRP enrollment period; and that involve State, local, or
other partnership matching funds and participation.
* * * * *
8. Section 1467.7 is amended by revising the heading to the section
and the heading to paragraph (b) to read as follows:
Sec. 1467.7 Enrollment of easements.
* * * * *
(b) Effect of letter of intent to continue (enrollment). * * *
* * * * *
9. Section 1467.8 is amended by
(a) Revising paragraph (b)(3);
(b) Removing paragraphs (b)(4), (b)(5), and (e)(2);
(c) Re-designating paragraph (e)(3) as (e)(2);
(d) Revising re-designated paragraph (e)(2); and,
(e) Revising paragraph (h).
The revisions read as follows:
Sec. 1467.8 Compensation for easements.
* * * * *
(b) * * *
(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. Additionally, the economic value of the easement interests
being acquired is less for a non-permanent easement than that
associated with a permanent easement. An easement payment for the
short-term 30-year easement shall not be less than 50 percent nor more
than 75 percent of that which would have been paid for a permanent
easement.
* * * * *
(e) * * *
(2) Annual easement payments may be made in no less than 5 annual
payments and no more than 30 annual payments of equal or unequal size.
* * * * *
(h) Payment limitation on non-permanent easements. With respect to
non-permanent easements, the annual amount of easement payments to any
person may not exceed $50,000 except for:
(1) Payments made pursuant to projects involving partnership
funding or participation; or
(2) Payment received by a State, political subdivision, or agency
thereof in connection with agreements entered into under a special
wetland and environmental enhancement program carried out by that
entity that has been approved by NRCS.
* * * * *
10. In Sec. 1467.9, the first sentence of the introductory text of
paragraph (a) and paragraph (a)(2) are revised to read as follows:
Sec. 1467.9 Cost-share payments.
(a) The Department may share the cost with landowners of restoring
the enrolled land as provided in the WRPO.* * *
* * * * *
(2) On enrolled land subject to a non-permanent easement or
restoration cost-share agreement, the Department shall offer to pay not
less than 50 percent nor more than 75 percent of such costs.
Restoration cost-share payments offered by NRCS for the short-term, 30-
year easements shall be 50 to 75 percent.
* * * * *
11. In Sec. 1467.10, the heading for the section and paragraph
(d)(5) are revised to read as follows:
Sec. 1467.10 Easement participation requirements.
* * * * *
(d) * * *
(5) 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;
* * * * *
12. In Sec. 1467.11, paragraph (a) is revised and a new sentence is
added at the end of paragraph (b) to read as follows:
Sec. 1467.11 The WRPO development.
(a) The development of the WRPO shall be made through the local
NRCS representative, in consultation with the State Technical
Committee, and with consideration of site specific technical input from
the U.S. Fish and Wildlife Service and the Conservation District.
(b) * * * The WRPO shall be developed to ensure that cost-effective
restoration and maximization of wildlife benefits and wetland functions
and values will result.
13. In Sec. 1467.12, paragraph (b) is revised to read as follows:
Sec. 1467.12 Modifications.
* * * * *
(b) WRPO. Insofar as is consistent with the easement and applicable
law, the State Conservationist may approve modifications to the WRPO
that do not affect provisions of the easement in consultation with the
landowner and the State Technical Committee and following consideration
of site specific technical input from the U.S. Fish and Wildlife
Service and the Conservation District. Any WRPO modification must meet
WRP program objectives, and must result in equal or greater wildlife
benefits, wetland functions and values, ecological and economic values
to the United States. Modifications to the WRPO which are substantial
and affect provisions of the easement will require agreement from the
landowner and require execution of an amended easement.
14. Section 1467.13 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 1467.13 Transfer of land.
* * * * *
(b) * * *
(1) For easements with multiple annual payments, any remaining
easement payments will be made to the original landowner unless the
[[Page 42143]]
Department receives an assignment of proceeds.
* * * * *
15. In Sec. 1467.14, remove the word ``associated'' from paragraphs
(a) and (c).
16. Section 1467.17 is amended by revising paragraph (a) to read as
follows:
Sec. 1467.17 Appeals.
(a) A person participating in the WRP may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal regulations provided in 7 CFR part
614.
* * * * *
17. In addition to the amendments set forth above, in 7 CFR part
1467 remove the words ``Consolidated Farm Service Agency'' wherever
they appear and add, in their place, the words ``Farm Service Agency''.
18. In addition to the amendments set forth above, in 7 CFR part
1467 remove the word ``NRCS'' whenever it appears and add, in its
place, the word ``Department''.
Signed at Washington, D.C. on August 8, 1996.
Paul Johnson,
Chief, Natural Resources Conservation Service, Vice President,
Commodity Credit Corporation.
[FR Doc. 96-20623 Filed 8-13-96; 8:45 am]
BILLING CODE 3410-16-M
