# Wetlands Reserve Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-28598 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 23, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 3410-05-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-28598. Public record. Not legal advice.