Wetlands Reserve Program

DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Chapter VII and Part 703

RIN 0560-AD59

Wetlands Reserve Program

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

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

Act), 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 final rule:

adopts, with changes, the interim rule published in the Federal

Register on January 27, 1994; makes other minor modifications for

clarity and ease of administration, and; revises the policy regarding

the eligibility of certain land for enrollment in the WRP. In addition,

this rule amends 7 CFR Chapter VII to reflect the abolishment of ASCS

and the establishment of the Farm Service Agency in the recent

Department of Agriculture reorganization.

EFFECTIVE DATE: November 23, 1994.

FOR FURTHER INFORMATION CONTACT: James R. McMullen, Farm Service

Agency, P.O. Box 2415, room 4714-S, Washington, DC 20013-2415;

telephone 202-720-6221.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule was submitted to the Office of Management and

Budget (OMB) for review under Executive Order 12866. It has been

determined significant because of the need for interagency

coordination.

Regulatory Flexibility Act

It has been determined that the Regulatory Flexibility Act is not

applicable to this rule because FSA 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 by an environmental evaluation that this

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

the human environment. Therefore, neither an environmental impact

statement nor environmental assessment is 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 final rule at 7 CFR

part 703 have been approved through January 31, 1997, by OMB under

provisions of 44 U.S.C. 33. 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 final rule has been reviewed in accordance with Executive

Order 12778. The provisions of this final rule are not retroactive and

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

with the provisions of this final 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 an interim

rule on January 27, 1994 (59 FR 3772), implemented the 1994 WRP, which

is authorized by Title XII of the 1985 Act. Under the WRP, FSA 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

land. 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, FSA, in consultation with

the Natural Resource Conservation Service and the Fish and Wildlife

Service. Land eligible for enrollment in the WRP includes farmed

wetlands, prior converted croplands, but not land 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 and the cost of acquiring an easement.

FSA is also permitted to include in the program:

(1) Farmed wetlands, prior converted croplands, substantially

altered lands, and 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 with respect to the

same acreage. ECP payments received with respect to 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 final 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).

Discussion of Comments

FSA received 4 letters containing 23 comments concerning the

interim rule published January 27, 1994. Entities responding included

national wildlife and conservation organizations and one State farm

organization.

Changes in this final rule from the interim rule of January 27,

1994, are minor. Changes have been made for clarity, editorial

purposes, and to facilitate the application of the regulations. In

addition, reference has been added to the provisions in Sec. 703.6 with

respect to the eligibility of foreign persons to participate in the WRP

and provisions for eligible land have been revised in Sec. 703.7.

A comment was received from one respondent who recommended that FSA

use a more open process than what was used during the first WRP signup

period. Specifically, ranking factors and weights and any State level

modifications should be available and understandable. FSA had already

adopted this policy, effective for the second signup period.

Another respondent recommended that FSA mount a campaign to educate

landowners about WRP. FSA has made significant efforts to educate

landowners about WRP through formal public meetings, informal question

and answer sessions, and other information activities, such as, press

releases. Meetings were held with nongovernment organizations,

including farm and commodity groups, conservation and environmental

organizations, attorneys, lenders, and appraisers, where the

organizations were encouraged to distribute information to their

constituents.

One respondent was pleased to see more explicit environmental

criteria in the rule and more discretion given to State level Federal

officials and resource professionals.

Another respondent recommended that the Federal government help pay

for the maintenance of the acreage enrolled in WRP. Neither the 1985

Act nor the laws governing real estate acquisition by the Federal

government provide authority to adopt this recommendation. Landowners

will be fully informed by FSA personnel of maintenance requirements

prior to filing the easement and the landowner may withdraw from the

WRP, without the assessment of any penalty, at any time prior to the

filing of the WRP easement.

Several comments were received regarding the appraisal process.

Respondents generally accepted the appraisal process. However, one

respondent was concerned about the logistics of obtaining and paying

for appraisals for all applicants. FSA will not appraise all sites on

which an intention was submitted. Appraisals will be performed only on

sites that are tentatively selected through the evaluation process and

have been agreed to by the landowner.

Another respondent believes that local governments will lose a

source of revenue as property in WRP may be devalued. The respondent

recommends the Federal government supplement local governments with the

tax money that is lost. FSA has no authority to implement this

recommendation. It should also be noted that in a number of cases, land

enrolled in the WRP yields an increased land value.

One respondent inquired about landowners requirements with capital

gains tax on land entered into the WRP. FSA has no responsibilities

regarding this and other tax issues. Landowners are advised to seek

assistance from their attorney or State and Federal tax officials.

The discussion that follows is organized in the same sequence as

the final rule.

Section 703.3--Definitions

For clarity, a definition for ``restoration'' has been added to

read ``restoration means the restoration of both the hydrology and

native vegetation that occurred on the site prior to the conversion of

a wetland.

Section 703.7--Eligible land

One respondent commented that easements should be accepted on lands

where existing hydrologic conditions exist for wetlands to be restored

or where such hydrologic conditions will be restored. FSA has

previously adopted this provision.

Another commented that Sec. 703.7(a)(1)(ii) needed to include the

phrase ``and cost of acquiring the easement'' at the end of the

sentence to be consistent with Sec. 703.2(f)(1). FSA agreed and has

amended this section accordingly.

Section 703.9--Transfer of lands from the CRP to the WRP

One respondent suggested the rule be modified to allow Water Bank

Program (WBP) lands to be enrolled in the WRP similar to the process

used for CRP. FSA does not have the authority to implement this

recommendation. The 1985 Act includes references to land enrolled in

the CRP, but not WBP acreage, as ``other eligible land.''

Section 703.12--Obligations of the Landowner

Three respondents commented on the easement length. One recommended

FSA modify the rule to allow the use of 30-year easements in States

where permanent easements are prohibited; another recommended the

duration of the easements should remain perpetual but allow for

landowners to buy back land after 30 years if the purpose of the

easement no longer exists; and the third recommended allowing farmers

to choose between perpetual and long-term easements. Interest in WRP

with permanent easements far exceeds the appropriation levels for the

program; therefore, FSA will continue to give priority to permanent

easements.

One respondent commented in support of the easement filing

deadline. However, FSA may need some flexibility to adjust the deadline

period. FSA believes 12 months from the end of signup is adequate time

to have all the appropriate administrative work completed for filing an

easement. In exceptional cases, the regulation allows the Deputy

Administrator, FSA, to authorize additional time for completion of the

enrollment process.

Another respondent recommended FSA convert from a reserve interest

deed to a ``hybrid'' type of easement used by private nonprofit

organizations which spells out specific land use restrictions as well

as a general prohibition on incompatible uses and relies on continuous

monitoring by accountable local partners to assure compliance. The

respondent believes this approach results in the enrollment of higher-

quality wetlands by appealing to more landowners and it would yield

greater conservation benefits than the current FSA approach. The

respondent is skeptical of the ``top-down law enforcement'' approach to

easement compliance.

Substantial environmental benefits have been secured through the

filing of permanent easements since fiscal year 1992 and interest has

far exceeded enrollment authorities. FSA believes that the greater

environmental benefits, if any, as proposed by the respondent will be

minimal while significant losses in assurances that the acreage will be

maintained will be suffered. Therefore, FSA did not adopt the

recommendation.

Another respondent commented that the drainage on acreage

surrounding the WRP site should not be impeded. FSA has been assured by

the technical agencies that plans will be developed with landowners to

ensure the landowners conservation objectives are met while ensuring

that no acreage will be enrolled that is not a viable wetland.

Another respondent agreed with the provision that allows landowners

to limit public access to the WRP site.

Section 703.13--Payments to Landowners by FSA

One respondent commented that USDA administrative guidelines should

make clear that the cost of land appraisals required by this rule will

be paid with Federal funds even when a landowner eventually decides not

to enroll in WRP. FSA has previously implemented this procedure.

Section 703.15--Wetlands Reserve Plan of Operations

Respondents were generally in favor of the provisions in this

section. However, one respondent inquired whether landowners would be

able to sell mineral rights on acreage enrolled in WRP. FSA has

determined that, providing the extraction of the minerals associated

with the sale of the mineral rights is compatible with the wetland

functions and values, landowners may continue to utilize the rights in

the normal manner. However, if the rights are incompatible with the

wetland site, the site would not be accepted into the program.

Section 703.25--Appeals

One respondent thought that withholding appraisals and supporting

documentation from the public was inappropriate. FSA added this

provision to conform with guidelines established in 49 CFR part 24,

Uniform Relocation Assistance and Real Property Acquisition for Federal

and Federally Assisted Programs. Accordingly, no change has been made

to this regulation.

Establishment of the Farm Service Agency

Pursuant to Public Law 103-354, the Federal Crop Insurance Reform

and Department of Agriculture Reorganization Act of 1994, the Secretary

of Agriculture issued Secretary's Memorandum 1010-1, Reorganization of

the Department of Agriculture, on October 20, 1994. That memorandum

orders the abolishment of the Agricultural Stabilization and

Conservation Service and the establishment of the Farm Service Agency,

which assumes the functions previously performed by the Agricultural

Stabilization and Conservation Service. This rule includes amendments

to 7 CFR chapter VII which are necessary to bring agency regulations

into alignment with the departmental reorganization.

List of Subjects in 7 CFR Part 703

Administrative practices and procedures, Appraisals, Compliance

procedures, Easements, Natural resources, Technical assistance and

Wetlands Reserve Plan of Operations (WRPO).

Accordingly 7 CFR Chapter VII and part 703 are amended as follows:

1. The heading of 7 CFR chapter VII is revised to read as follows:

CHAPTER VII--FARM SERVICE AGENCY, DEPARTMENT OF AGRICULTURE

2. In 7 CFR chapter VII, all references to ``Agricultural

Stabilization and Conservation Service'' are revised to read ``Farm

Service Agency'', and all references to ``ASCS'' are revised to read

``FSA''.

3. The interim rule published on January 27, 1994 (59 FR 3772), is

adopted as final with the following changes set forth below, and part

703 is further amended as follows:

PART 703--WETLANDS RESERVE PROGRAM

A. The authority citation for 7 CFR part 703 continues to read as

follows:

Authority: 16 U.S.C. 3837 et seq.

Sec. 703.1 [Amended]

B. In Sec. 703.1, the introductory paragraph (a) is amended by

removing the words ``shall be'' in the second sentence and inserting

the word ``was'' in their place, and paragraph (b) is amended by adding

``riparian areas,'' after ``prior converted croplands,'' in the first

sentence.

C. Section 703.3 (b) is amended by adding the definition of

``Restoration'' to read as follows:

Sec. 703.3 Definitions.

* * * * *

(b) * * *

* * * * *

Restoration means the restoration of both the hydrology and native

vegetation that occurred on the site prior to conversion to a wetland.

* * * * *

D. Section 703.6 is revised to read as follows:

Sec. 703.6 Eligible person.

To be eligible to offer land for the WRP, a person must:

(a) Be a U.S. citizen or otherwise meet the provisions in 7 CFR

part 1498;

(b) Be the owner of the eligible property for which enrollment is

sought;

(c) Have been the owner of such land for at least the preceding 12

months prior to the end of the period in which the intent to

participate is declared, as provided in this part, unless:

(1) It is determined by FSA that the land was acquired by will or

succession as a result of the death of the previous owner; or

(2) It is determined by FSA that adequate assurances have been

presented that the new owner of such land did not acquire such land for

the purpose of placing it in the WRP.

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

(a)(2)(i) and (d)(2) 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, substantially altered lands, or any former wetland

intensively managed for a food or forage crop; and

(ii) Merits inclusion in the program based on the likelihood of

successful restoration of the enrolled land and the resultant wetland

values when considering restoration cost and the cost of acquiring the

easement.

(2) * * *

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

agricultural commodity or have produced any other crop intensively

managed for food or forage as approved by the Deputy Administrator in

at least 1 of the 5 crop years 1986 through 1990, and have been capable

of being cropped in 1992 or 1993;

* * * * *

(d) * * *

(2) Land adjacent to the restored wetland, which would contribute

significantly to the restoration of adjacent wetlands, but not more

than 25 percent of the total easement area as needed to protect the

functions and values of wetlands restored under this part, unless the

Deputy Administrator determines a larger area is necessary to meet the

objectives of the WRP. These areas are limited to buffer areas,

inclusions, and noncropped natural wetlands;

* * * * *

Sec. 703.8 [Amended]

6. Section 703.8(b) is amended by removing the words ``timber

stands or''.

Sec. 703.13 [Amended]

7. In Sec. 703.13, the introductory text of paragraph (a) is

amended by adding the words ``after an easement is filed'' at the end

of the first sentence.

Sec. 703.16 [Amended]

8. Section 703.16 is amended by adding the words ``as previously

determined by the technical agency'' at the end of the paragraph.

Signed at Washington, DC, on November 10, 1994.

R.E. Rominger,

Acting Administrator, Farm Service Agency and Deputy Secretary, United

States Department of Agriculture.

[FR Doc. 94-28598 Filed 11-22-94; 8:45 am]

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