Wetlands Reserve Program

DEPARTMENT OF AGRICULTURE

Agricultural Stabilization and Conservation Service

7 CFR Part 703

RIN 0560-AD59

Wetlands Reserve Program

AGENCY: Agricultural Stabilization and Conservation Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: Title XII, section 1237 of the Food Security Act of 1985, as

amended, was amended by the Omnibus Budget Reconciliation Act of 1993

to specify the number of acres the Secretary of Agriculture shall

enroll in the Wetlands Reserve Program (WRP). This interim rule amends

the regulations governing the WRP to comply with statutory changes;

expand the number of participating States from 9 States to 20 States;

revise the process by which the Agricultural Stabilization and

Conservation Service (ASCS) enrolls acreage in the WRP; and provide

other changes based on experience in administering the 1992 Pilot WRP.

DATES: Effective Date: Interim rule effective January 27, 1994.

Comments: Comments must be received on or before February 28, 1994, in

order to be assured of consideration.

ADDRESSES: Comments should be mailed to James R. McMullen, Director,

Conservation and Environmental Protection Division, ASCS, P.O. Box

2415, room 4714-S, Washington, DC 20013-2415; telephone 202-720-6221.

Comments received may be inspected between 9 a.m. and 4 p.m., Monday

through Friday, except holidays, in room 4714, South Agriculture

Building, United States Department of Agriculture, 14th Street and

Independence Avenue, SW., Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Lois Hubbard, Conservation and

Environmental Protection Division, ASCS, P.O. Box 2415, room 4721-S,

Washington, DC 20013-2415; telephone 202-720-9563.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This interim rule was submitted to the Office of Management and

Budget for review under Executive Order 12866.

Regulatory Flexibility Act

It has been determined that the Regulatory Flexibility Act is not

applicable to this rule because ASCS is not required by 5 U.S.C. 553 or

any other provision of law to publish a notice of proposed rule making

with respect to the subject matter of this rule.

Environmental Evaluation

It has been determined by an environmental evaluation that this

action will not have any significant adverse impact on the quality of

the human environment. Therefore, an environmental impact statement or

environmental assessment is not needed. Copies of a final environmental

evaluation are available upon request.

Executive Order 12372

This program/activity is not subject to the provisions of Executive

Order 12372 because it involves direct payments to individuals and not

to State and local officials. See notice related to 7 CFR part 3015,

subpart V, published at 48 FR 29115 (June 24, 1983).

Federal Domestic Assistance Program

The title and number of the Federal Domestic Assistance Program, as

found in the Catalog of Federal Domestic Assistance, to which this rule

applies are: Wetlands Reserve Program--10.072.

Paperwork Reduction Act

The information collection requirements of this interim rule at 7

CFR part 703 have been submitted to the Office of Management and Budget

for expedited approval under provisions of 44 U.S.C. chapter 33.

Approval of the forms is requested by February 1, 1994. The public

reporting burden for the information collections that would be required

for compliance with these regulations is estimated to average 39

minutes per response, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information.

Executive Order 12778

This interim rule has been reviewed in accordance with Executive

Order 12778. The provisions of this interim rule are not retroactive

and preempt State and local laws to the extent such laws are

inconsistent with the provisions of this interim rule. Before an action

may be brought in a Federal court of competent jurisdiction, the

administrative appeal rights afforded program participants at 7 CFR

part 780 must be exhausted.

Discussion of Program

The current regulations in 7 CFR part 703, published as a final

rule on June 4, 1992 (57 FR 23908), implemented the 1992 pilot WRP,

which is authorized by title XII of the Food Security Act of 1985, as

amended (1985 Act). Under the WRP, ASCS will purchase easements, in

lump-sum payments, from persons owning cropland who voluntarily agree

to restore and protect farmed wetlands, prior converted croplands,

substantially altered lands, and eligible adjacent acres. Fund and

acreage allocations will be provided to States based on landowner

interest and other factors as determined by the Deputy Administrator,

State and County Operations, ASCS, in consultation with the Soil

Conservation Service and the Fish and Wildlife Service. Land eligible

for enrollment in the WRP includes farmed wetlands, prior converted

croplands, but not lands converted after December 23, 1985, or

substantially altered lands, together with adjacent lands on which the

wetlands are functionally dependent so long as the likelihood of

successful restoration of such land and the wetland values merit

inclusion in the program taking into account the cost of restoring the

wetlands. ASCS is also permitted to include in the program:

(1) Farmed wetlands, prior converted croplands, or substantially

altered lands and adjoining lands which are enrolled in the

Conservation Reserve Program (CRP), as authorized by title XII of the

1985 Act, with the highest wetland functions and values and that are

likely to return to production at the end of the CRP contract;

(2) Other wetlands that would not otherwise be eligible if it is

determined that inclusion in the program would add to the value of the

easement; and

(3) Riparian areas that link wetlands which are protected by

easements or by some other device or circumstance that achieves the

same purpose as an easement.

Landowners are not eligible to receive funding under both the

Emergency Conservation Program (ECP) and the WRP on the same acreage.

ECP payments received on acreage offered for WRP must be refunded,

provided the ECP practice is still within its lifespan provisions,

before any WRP payment will be disbursed.

This interim rule does not impact the Emergency Wetlands Reserve

Program as authorized by the Emergency Supplemental Appropriations for

Relief From the Major, Widespread Flooding in the Midwest Act of 1993

(Pub. L. 103-75).

Statutory Changes

During fiscal year 1992, WRP was authorized in the following

States: California, Iowa, Louisiana, Minnesota, Mississippi, Missouri,

New York, North Carolina, and Wisconsin. Section 1237 of the 1985 Act

was amended by the Omnibus Budget Reconciliation Act of 1993 to specify

that the Secretary shall enroll in the WRP a total of not less than

330,000 acres by the end of 1995 and a total of not less than 975,000

acres during 1991 through 2000. Congress has appropriated $66,675,000

to be used to enroll no more than 75,000 acres in fiscal year 1994.

This interim rule amends 7 CFR part 703 for WRP to:

(1) With respect to fiscal year 1994 only, identify enrollment

availability in 20 States, including the nine States in the fiscal year

1992 pilot program;

(2) Provide for the appraisal for easements by licensed appraisers

who are also approved by ASCS; and

(3) Make other changes based on experience gained from

administering the pilot WRP in fiscal year 1992.

List of Subjects in 7 CFR Part 703

Administrative practices and procedures, Appraisals, Compliance

procedures, Easements, Natural resources, Technical assistance,

Wetlands Reserve Plan of Operations (WRPO).

Accordingly, 7 CFR part 703 is amended as follows:

PART 703--WETLANDS RESERVE PROGRAM

1. The authority citation for 7 CFR part 703 is revised to read as

follows:

Authority: Public Law 99-198, 107 Stat. 739; 16 U.S.C. 3837 et.

seq.

2. Section 703.1 is revised to read as follows:

Sec. 703.1 Applicability.

(a) The regulations in this part govern the Wetlands Reserve

Program (WRP). For fiscal year 1992 only, the WRP shall be available to

producers in California, Iowa, Louisiana, Minnesota, Mississippi,

Missouri, New York, North Carolina, and Wisconsin. For fiscal year 1994

only, the WRP shall be available in these nine States and in Arkansas,

Illinois, Indiana, Kansas, Nebraska, Oregon, South Dakota, Tennessee,

Texas, Virginia, and Washington. These states have been determined to

have a high incidence of:

(1) Significant acreage of hydric cropland;

(2) Potential capacity of restoration;

(3) Diversity in kinds of wetlands; or

(4) Substantial benefits for migratory birds and other wildlife.

(b) Under the WRP, ASCS will accept voluntary offers of acreage for

the purchase of easements from eligible persons who have eligible land

with respect to which they agree to restore and protect farmed

wetlands, prior converted croplands, or substantially altered lands,

and eligible adjacent lands. Such voluntary easements will be for the

purpose of restoring the hydrology and vegetation and protecting the

functions and values of wetlands for wildlife habitat, water quality

improvement, flood water retention, ground water recharge, open space,

aesthetic values, environmental education, and other values determined

appropriate by ASCS.

Sec. 703.2 [Amended]

3. In Sec. 703.2, paragraph (f)(1) is amended by removing the words

``cost of the restoration'' and adding in their place, the words

``costs of restoration and of acquiring the easement'', and paragraph

(f)(2) is amended by inserting the word ``not'' after the word

``will''.

4. Section 703.3(b) is amended by:

A. Revising the definitions of ``Bid'', ``Non-permanent easement'',

``Participant'', and ``Permanent easement'', and

B. Adding ``Appraisal'', ``Preliminary plan'', and ``Substantially

altered lands'' to read as follows:

Sec. 703.3 Definitions.

* * * * *

(b) * * *

* * * * *

Appraisal means the agriculture value of the easement area on an

``as is'' bases as determined by an appraiser licensed by the State in

which the appraisal is made and who is also approved by ASCS.

* * * * *

Bid, for the 1992 Pilot Program, unless the context indicates

otherwise, means the total payment requested by the owner for granting

an easement.

* * * * *

Non-permanent easement means a temporary deed restriction that is

acquired by ASCS from an eligible landowner that requires the

protection and maintenance of wetland restoration on designated

acreage.

Participant means a landowner who has an approved contract.

Permanent easement means a deed restriction that lasts through

perpetuity, acquired by ASCS from an eligible landowner, and which

requires the protection and maintenance of wetland restoration

practices on designated acreage.

* * * * *

Preliminary plan means a plan jointly developed by a landowner,

SCS, and FWS to provide the landowner with an estimate of the extent

and cost of restoration activities, and to obtain adequate information

to prioritize intentions to participate.

* * * * *

Substantially altered lands means lands which have not been and are

not now wetlands, but with a high degree of certainty will likely

develop wetland characteristics as a result of natural flooding.

* * * * *

5. Section 703.5 is revised to read as follows:

Sec. 703.5 Maximum acreage limitation.

ASCS will attempt to enroll into the WRP during the 1991-2000

calendar years:

(a) A total of not less than 330,000 acres through 1995; and

(b) A total of not less than 975,000 acres through 2000.

6. Section 703.7 is amended by revising paragraphs (a)(1)(i),

(a)(2)(i), (a)(2)(ii), and (a)(2)(iii) to read as follows:

Sec. 703.7 Eligible land.

(a)(1) * * *

(i) Is wetland farmed under natural conditions, a farmed wetland,

prior converted cropland except that converted lands shall not be

eligible for enrollment if the conversion was not commenced prior to

December 23, 1985, or substantially altered land; and

(2) * * *

(i) Have been annually planted or considered planted to an

agricultural commodity in at least 1 of the 5 crop years 1986 through

1990, and have been capable of being cropped in 1992 or 1993;

(ii) If enrolled under a CRP contract, or under a Federal or State

wetland restoration program without an easement of at least 30 years,

have been planted to an agricultural commodity 2 of the 5 crop years,

1981 through 1985; and

(iii) Not be used as a mitigation site for Federal, State or local

permit conditions or program participation requirements, or public or

private mitigation banks.

* * * * *

Sec. 703.8 [Amended]

7. Section 703.8(a) is amended by revising ``Converted wetlands''

to read ``Prior converted croplands''.

8. Section 703.9(b) is revised to read as follows:

Sec. 703.9 Transfer of lands from the CRP to WRP.

* * * * *

(b) The application for such transfer into the WRP is agreed to by

ASCS. If such transfer is requested by the owner and agreed to by ASCS,

then the CRP contract for the property shall be terminated or otherwise

modified subject to such terms and conditions as are mutually agreed

upon. Transfers from CRP to WRP after the second available WRP signup

period will only be permitted if the owner agrees to refund all

payments received under the CRP since the close of the second available

WRP signup. Further, Emergency Wetlands Reserve Program signup periods

are not considered WRP signup periods.

9. Section 703.10 is revised to read as follows:

Sec. 703.10 Easement priority.

(a) ASCS shall, to the extent practicable, in determining which

areas to accept, take into account the cost of restoration, the cost of

acquiring the easement, and environmental benefits which would be

acquired through the purchase of the easement.

(b) In evaluating the value of obtaining an easement, different

weights may be given to the factors for determining the priority by

ASCS to accomplish the goals of the WRP.

(c) ASCS will rank the areas offered, based on environmental

benefits relative to the government expenditure using the following

factors for determining the priority:

(1) Habitat for migratory birds, threatened or endangered species,

fish, and other wildlife;

(2) Wetland functions and values;

(3) Location significance;

(4) Wetland management requirements;

(5) Physical conditions of the site including the likelihood of

developing or restoring wetland characteristics;

(6) Costs of restoration and of acquiring the easement; and

(7) Other environmental or cost factors as determined appropriate

by ASCS to accomplish the goals of the WRP that may also incorporate

ASCS State office goals and objectives.

10. Section 703.11 is amended by revising the section heading and

revising paragraphs (b)(1), (b)(2), (c), and (d) to read as follows:

Sec. 703.11 Statement of intention to participate.

* * * * *

(b) * * *

(1) Obtains a preliminary plan; and

(2) Accepts the amount offered by ASCS in return for enrollment in

WRP and agrees to other conditions for participation that may be

required by ASCS, including the creation of an easement on the

property. Such acceptance must be made no later than 15 calendar days

after notification by ASCS of the purchase value of the easement unless

a later date is agreed to by ASCS. The determination of which areas to

accept shall be at the exclusive discretion of ASCS.

(c) A person submitting a statement of intention to participate

shall not be obligated to accept an easement.

(d) An offer is considered accepted only if agreed to by all owners

of the property or their duly authorized representative.

11. Section 703.12 is amended by:

A. Revising paragraph (a) introductory text,

B. Revising paragraphs (a)(1)(iv) and (a)(1)(v),

C. Adding paragraph (a)(1)(vi),

D. Revising paragraphs (a)(13), (a)(14), (a)(17), and (a)(18), and

E. Adding paragraph (a)(19) to read as follows:

Sec. 703.12 Obligations of the landowner.

(a) All owners of land who accept ASCS' offer to enroll land in WRP

shall:

(1) * * *

(iv) Reserve to ASCS the right to permit such compatible uses of

the easement area as may be identified in the WRPO;

(v) Reserve to the landowner those compatible uses identified in

the WRPO that are permitted to be pursued by the landowner; and

(vi) Be filed in the appropriate land records office within 12

months from the end of the applicable signup period, unless otherwise

determined by the Deputy Administrator. If not filed, ASCS shall

terminate the offer to enroll in WRP.

* * * * *

(13) Not plant for harvest an agricultural commodity on the

enrolled land subsequent to the filing of an easement;

(14) Not alter the vegetation, except to harvest already planted

crops or forage, or the hydrology on such acres after the easement is

filed, except as provided in the easement or WRPO;

* * * * *

(17) Refrain from taking any action on the easement area unless

specifically authorized in the reserve interest easement or the WRPO;

(18) Secure any necessary local, State and Federal permits prior to

commencing restoration of the designated area; and

(19) Not allow WRP easements or restoration to be used as a

mitigation site for Federal, State or local permit conditions or

program participation requirements, or public or private mitigation

banks.

* * * * *

12. Section 703.13 is amended by:

A. Revising paragraph (c)(1),

B. Removing paragraph (c)(4),

C. Redesignating paragraph (c)(5) as paragraph (c)(4) and revising

redesignated paragraph (c)(4), and

D. Adding a new paragraph (e) to read as follows:

Sec. 703.13 Payments to landowners by ASCS.

* * * * *

(c)(1) ASCS shall pay, after an easement is filed, a lump-sum

amount for the easement as determined by ASCS on eligible land. For all

easements, ASCS shall withhold a portion of the payments that might

otherwise be made pending completion of the restoration plan for the

property and ASCS may condition any payment on satisfactory progress

toward completion of the plan. ASCS shall pay no more than 10 percent

per year of the total purchase price for the easement pending

completion of the restoration of the wetlands;

* * * * *

(4) No easement payment may be made which would exceed the total

amount offered for the property and payments may only be made if the

person on whose account the payment is to be made:

(i) Has agreed to all terms and conditions of the program set out

in this part;

(ii) Accepted the amount offered on the standard ASCS-approved form

for the WRP; and

(iii) Is in full compliance with the terms and conditions of the

WRP easement except to the extent that relief is authorized by this

part and is approved under guidelines issued by the Deputy

Administrator.

* * * * *

(e) Landowners may not receive payment under ECP and WRP on the

same acreage. ECP payments shall be refunded, provided the ECP practice

is within the required lifespan provisions, before a WRP payment will

be disbursed, unless otherwise determined by the Deputy Administrator.

13. Section 703.15 is amended by revising paragraphs (a), (b)(2),

and (d) to read as follows:

Sec. 703.15 Wetlands reserve plan of operations.

(a) Prior to filing an easement to enroll land in the WRP, the

landowner must have obtained an ASCS approved WRPO for the land.

* * * * *

(b)(2) Specify the manner in which the farmed wetlands or prior

converted croplands included in the enrolled land shall be restored,

operated, and maintained to accomplish the goal of the program together

with other practices which may be necessary or appropriate to

accomplish the goals of the program, including, where appropriate:

* * * * *

(d) The WRPO must be signed by SCS, FWS, CD, ASCS, and the

landowner before an easement is filed. If agreement between SCS and FWS

at the local level is not reached within 20 calendar days of acceptance

of the appraisal by the landowner, the WRPO shall be developed by the

State Conservationist of SCS in consultation with FWS.

* * * * *

14. Section 703.17(c) is revised to read as follows:

Sec. 703.17 Transfer of land.

* * * * *

(c) Any transfer of the property prior to the filing of the

easement shall void any statement of intention to participate and WRP

contract, unless the new owner agrees to be a party to the intention to

participate or the contract within 60 calendar days of the recordation

of the deed transferring the land to the new owner, or as otherwise

determined by the Deputy Administrator.

15. Section 703.25(c) is added to read as follows:

Sec. 703.25 Appeals.

* * * * *

(c) An appraisal and supporting documentation used by ASCS in

determining property value are considered confidential information, and

shall only be disclosed as determined at the sole discretion of ASCS.

Signed at Washington, DC, on January 14, 1994.

Bruce R. Weber,

Acting Administrator, Agricultural Stabilization and Conservation

Service.

[FR Doc. 94-1683 Filed 1-26-94; 8:45 am]

BILLING CODE 3410-05-P