Wetlands Reserve Program

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Chapter VI and Part 620

RIN 0578-AA15

Wetlands Reserve Program

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: Title XIV of the Food Agriculture, Conservation, and Trade Act

of 1990 (the 1990 Act), enacted on November 28, 1990, amended the Food

Security Act of 1985 to provide for the establishment of the Wetlands

Reserve Program (WRP). Under the WRP, the secretary of Agriculture is

authorized to purchase easements from owners of eligible land who

voluntarily agree to restore and protect farmed wetlands or converted

wetlands and eligible adjacent acres. The Department of Agriculture

Reorganization Act of 1994, authorized the establishment of the Natural

Resources Conservation service (NRCS) and transferred responsibility

for the WRP from the Consolidated Farm Service Agency to the NRCS,

formerly the Soil Conservation Service (SCS). This interim rule

provides the process by which the WRP will be administered within the

NRCS. This rule also amends 7 CFR Chapter VI to reflect the

establishment of the NRCS and the abolishment of the SCS.

DATES: Effective date: June 1, 1995.

Comments should be received on or before July 31, 1995.

ADDRESSES: Comments should be sent to National Wetlands Team, Natural

Resources Conservation Service, Cotton Annex, Mezzanine One, Post

Office Box 2890, Washington, DC 20013.

[[Page 28512]] FOR FURTHER INFORMATION CONTACT:

Bob Misso (202) 720-3534.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

The Office of Management and Budget (OMB) has determined that this

interim rule is significant.

Regulatory Flexibility Act

It has been determined that the Regulatory Flexibility Act is not

applicable to this rule because the NRCS is not required by 5 U.S.C.

553 or any other provision of law to publish a notice of proposed

rulemaking with respect to the subject matter of this rule.

Environmental Evaluation

It has been determined through an environmental review that this

action is a modification of the existing WRP and is covered under the

NRCS 1990 Environmental Assessment entitled, ``Wetlands Reserve

Program-Environmental Assessment: Wetlands Reserve Provision of the

Conservation Program Improvements Act of 1990.'' Copies of the

environmental assessment are available upon request from: Bob Misso,

Program Manager, National Wetlands Team, Natural Resources Conservation

Service, Mezzanine One, Cotton Annex, Post Office Box 2890, Washington,

DC 20250.

Executive Order 12372

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

Order 12372 because it involves direct payments to individuals and not

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

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

Federal Domestic Assistance Program

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

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

applies are: Wetlands Reserve Program--10.072.

Paperwork Reduction Act

The information collection requirements contained in this interim

rule will be submitted to the Office of Management and Budget (OMB) for

review under the Paperwork Reduction Act of 1980.

Executive Order 12778

This interim rule has been reviewed in accordance with Executive

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

Furthermore, except as provided at 16 U.S.C. 3837a(e)(2), the

provisions of this interim rule preempt State and local laws to the

extent such laws are inconsistent with this interim rule. Before an

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

administrative appeal rights afforded persons at 7 CFR Part 614 must be

exhausted.

Unfunded Mandates Reform Act of 1995

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

which the President signed into law on March 22, 1995, the affects of

this rulemaking action on State, local, and tribal governments, and the

public have been assessed. This action does not compel the expenditure

of $100 million or more by any State, local or tribal governments, or

anyone in the private sector, and therefore a statement under section

202 of the Unfunded Mandates Reform act of 1995 is not required.

Discussion of Program

Under the WRP, the Natural Resources Conservation Service (NRCS)

will purchase easements from persons voluntarily agreeing to allow for

the restoration of farmed or converted wetlands. The 1990 Act (16

U.S.C. 3837 et seq.) created an umbrella program called the

Agricultural Resource Conservation Program which includes the

Environmental Conservation Acreage Reserve Program. The Environmental

Conservation Acreage Reserve Program includes the Conservation Reserve

Program (CRP) and the WRP.

The current regulations implementing the WRP were published by the

Consolidated Farm Service Agency as a final rule on November 23, 1994

(59 FR 60297) and are codified at 7 CFR Part 703. This rule establishes

a new part (7 CFR part 620) for WRP, and pursuant to the Department of

Agriculture Reorganization Act of 1994, Public Law 103-354, the NRCS

assumes responsibility for administrating the WRP. Funds will be

allocated based on landowner interest, amount of restorable wetland

acres, environmental benefits, cost of acquisition and restoration, and

other factors as determined by the Chief, NRCS, in consultation with

the U.S. Fish and Wildlife Service.

Section 3837 of Title 16, United States Code, specifies that

eligible land will include farmed or converted wetlands, but not

wetlands converted after December 23, 1985, together with adjacent

lands on which the wetlands are functionally dependent so long as the

likelihood of successful restoration of such land and the wetland

values merit inclusion in the program taking into account the cost of

restoring the wetlands. NRCS is also permitted to include in the

program: (1) farmed or converted wetlands and adjoining lands that are

enrolled in the CRP with the highest wetland functions and values and

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

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

determined that inclusion in the program would significantly add to the

value of the easement; and (3) riparian areas that link wetlands that

are protected by easements or by some other device or circumstance that

achieves the same purpose as an easement.

The NRCS shall not enroll lands that: (1) are converted wetlands if

the conversion was commenced after December 23, 1985, (2) contain

timber stands established under a CRP contract, (3) are owned by an

agency of the United States, (4) are subject to a deed restriction of

30 years or more prohibiting the production of agricultural

commodities, or (5) are subject to on-site or off-site conditions that

preclude successful long term restoration.

With respect to owner eligibility, 16 U.S.C. 3837e provides that no

WRP easement shall be created on land that has changed ownership in the

preceding 12 months unless: (1) the new ownership was acquired by will

or succession as a result of the death of the previous owner; or, (2)

the Secretary determines that the land was acquired under circumstances

that give adequate assurances that such land was not acquired for the

purpose of placing it in the WRP.

In return for participation in the program, a landowner will

receive financial compensation from the NRCS for the easement itself,

and the NRCS will bear all or a portion of the cost of restoring the

functions and values of the enrolled land. In each State, the State

Conservationist, with the assistance of the State Technical Committee,

shall determine easement payment rates to be applied to specific

geographic areas within the State or to individual easement areas. In

order to provide for better uniformity among States, the Regional

Conservationist may review and adjust, as appropriate, any easement

payment rates established within a region.

Compensation for easements acquired by the Secretary under the WRP

must be an agreed upon amount, but not to exceed the fair market value

of the land less the fair market value of such land encumbered by the

easement, a method of valuation known as the before and after value of

the land. In response to this requirement and the further desire to

ensure that the program focus is [[Page 28513]] largely to maximize net

environmental benefits per expenditure of federal funds, the

compensation for the easements is limited to the agricultural value of

the lands. Based upon acquisition experience, the effect of the WRP

easement is largely to eliminate agricultural uses of the land.

Therefore, to utilize the agricultural value of the land is equivalent

to the value of the easement utilizing the traditional before and after

method of valuation. Under this calculation of compensation, other

speculative and higher uses are not considered in the determination of

compensation rates. Furthermore, any compatible agricultural use of the

easement area is limited to such level and timing of use as is integral

to achieving and maintaining optimum wetland restoration benefits, and

not for the purpose of achieving economic profit.

Therefore, the easement value rates will be determined using the

best information which is readily available for assessing the values of

land for agricultural purposes. Such information may include soil

types, cropping histories, production histories, location, real estate

market values, appraisals and market analyses, and tax rates and

assessments.

To achieve program cost efficiency in relation to the ecological

benefits to be achieved, the restoration of wetlands which maximize net

environmental benefits per expenditure of federal funds will be

emphasized. One source of accomplishing this cost-efficiency goal is to

establish maximum easement payments for the State or geographic areas

of the State. Maximum easement payment limitations may be available for

public review prior to the sign-up period. No easement payment shall

exceed the fair market value of the land rights being acquired.

Section 3837a of Title 16, United States Code, provides that the

easements purchased under the WRP shall be in a recordable form and

shall be for 30 years, permanent, or the maximum duration allowed under

applicable State laws. Section 3837c(c) provides that in determining

the acceptability of offers, consideration may be given to the extent

to which the purposes of the program can be accomplished on the land,

the productivity of the land, and the on-farm and off-farm

environmental threats if the land is used for the production of

agricultural commodities. In addition, section 3837c(d) provides that

to the extent practicable, taking into consideration costs and future

agricultural and food needs, the Secretary shall give priority to

obtaining permanent easements before shorter term easements and, in

consultation with the Secretary of the Interior, shall place priority

on acquiring easements based on the value of the easement for restoring

and protecting habitat for migratory birds and other wildlife. In order

to accomplish this goal, Sec. 620.6 and Sec. 620.8(b)(5) of the interim

rule provide that permanent easements will be preferred whenever

possible.

Before proceeding to acquire a non-permanent easement, the State

Conservationist will first seek to acquire any permanent easement offer

that is determined to have the ecological and cost characteristics that

warrant acquisition. After the effort to acquire permanent easements is

completed, and provided that funding continues to be available, the

State Conservationist, following review and approval of the request by

the Regional Conservationist and the Chief, may pursue the acquisition

of non-permanent easements.

The Regional Conservationist and the Chief, when considering the

request of the State Conservationist, will simultaneously consider any

backlog of unaccepted permanent easements offers that may exist in

other areas of the region and Nation before approval of the acquisition

of non-permanent easements is granted.

On land encumbered by permanent easements, the law establishing WRP

allows for the Secretary to pay all the restoration costs or to cost-

share with the landowner. The cost-share formula recognizes that the

ecological benefits associated with a non-permanent easement is

significantly less than that which would be associated with a permanent

easement on the same land. Thus, 16 U.S.C. 3837c(b) provides for a

smaller cost-share payment-rate on land encumbered with non-permanent

easements than on land encumbered with permanent easements. In

particular, section 3837c(b) provides for cost-share payments on non-

permanent easements to range from 50 percent to 75 percent of

restoration costs, whereas the cost-share payments on areas with

permanent easements range from 75 percent to 100 percent of restoration

costs (16 U.S.C. 3837c(b)). These restoration cost-share rates apply to

NRCS expenditures and do not prohibit the landowner from obtaining

cost-share assistance from other entities.

Under this rule, this statutory distinction between cost-share

payments made for permanent versus non-permanent easements is

replicated in the payment for the easements. For a given easement on a

particular area of land, payments for non-permanent easements will be

between 50 percent and 75 percent of that which would be paid for a

permanent easement. Easement payments for a short-term, 30-year

easement will be 50 percent of that which would have been paid for a

permanent easement. Such reduced easement payments are consistent with

the significant reduction in ecological benefits and cost efficiency

associated with non-permanent easements.

Landowners will be allowed to apply for transfer of eligible land

from the CRP to WRP. Enrollment in WRP will not require the refund of

past payments or require a reduced WRP easement payment. CRP contracts

will be terminated at the time of enrollment in WRP.

This is a voluntary program designed to achieve cost-effective,

long-lasting wetland restoration, and the NRCS shall not acquire

easements by eminent domain or other non-voluntary acquisition

procedures. As a means of improving selection competitiveness,

landowners may accept cost-share or easement payments less than that

which may be determined applicable for the particular easement.

During announced sign-up periods, interested landowners will be

able to apply for enrollment by stating on an NRCS form their intention

to participate. This Application for Participation must be submitted

during an announced period for submissions. Sign-up periods may be

announced periodically by the NRCS.

The State Conservationist, with the assistance of the State

Technical Committee, will develop a ranking process. Each of the

applications that are submitted by eligible landowners for eligible

lands shall be evaluated according to the following factors: (1)

Duration of the easement, (2) wetland functions and values, (3) habitat

for migratory birds and other wildlife, particularly at risk species,

(4) location significance, (5) wetland management requirements, (6)

likelihood of success of restoration, (7) easement purchase and

restoration costs borne by the NRCS, and (8) other environmental (e.g.

water quality) or cost factors determined appropriate by the NRCS.

It is the intention of the NRCS in ranking the applications to

enroll the wetlands that provide the greatest environmental benefits

while taking into consideration the cost of restoration, easement

purchase, and associated costs. The ranking process will emphasize

factors that (1) Ensure the effectiveness of the restored wetland

functions and values, and (2) incorporate regional and State ecological

priorities. The Chief, NRCS, may identify and accept certain

[[Page 28514]] easements that advance the national goals of the WRP,

even if such lands would not otherwise receive priority under the

regional or State ranking procedures. For example, the Chief may

allocate funds for purposes related to special pilot programs for

wetland management and monitoring, cooperative agreements with other

Federal or State agencies for program implementation, or for

coordination of easement enrollment across State boundaries.

All landowners who want to enroll land in the WRP shall: (1) Grant

to the United States a reserved interest easement on the land; (2)

agree to the implementation of a Wetlands Reserve Plan of Operation

(WRPO); (3) provide for the creation and recordation of a deed

restriction covering the easement area; and (4) ensure consent to the

easement from persons holding a security interest in the property. The

WRPO will be completed in consultation with the U.S. Fish and Wildlife

Service and the Conservation District. The WRPO specifies the manner in

which the enrolled land will be restored, operated, and maintained to

accomplish the goals of the program.

Section 3837a(b) of Title 16, United States Code, requires, in

addition, that the easement allow: (1) Repairs, improvements, and

inspections on such lands that are necessary to maintain existing

public drainage systems; and (2) landowners to control public access on

the easement area while identifying access routes to be used for

wetland restoration activities, management and monitoring. Section

3837a(b) also requires that the terms of the easement prohibit such

activities as spraying with chemicals or mowing of the land except as

allowed to comply with Federal or State noxious weed laws or Federal or

State emergency pest treatment programs. These provisions have been

incorporated into Sec. 620.10 of this interim rule.

A major program participation requirement contained in Sec. 620.10

is the inclusion in the easement of the right of the United States to

determine if a specific use of the easement area may be permitted as

compatible. For a use to be considered compatible, the Chief or

designee must determine that the use is consistent with the long term

protection and enhancement of the wetland resources for which the

easement was established.

The uses commonly considered compatible include hunting and

fishing, haying, grazing, and harvest of timber. Hunting and fishing

are generally considered compatible where the activities are carried

out under the established State and Federal regulations that govern

such uses. Haying, grazing, and timbering, because of the potential for

substantial and adverse impacts upon the vegetative conditions of the

easement area, may only be considered compatible under specifically

prescribed circumstances that are directly associated with site-

specific conditions as influenced by soil productivity, time of year,

short and long term weather patterns, and other factors that may from

time to time be pertinent. The type, method, timing, duration, and

extent of a use, to be deemed compatible, must be an integral and

positive part of the overall management plan for the easement area. For

example, in a restored forested wetland easement area, a salvage cut to

remove diseased or damaged trees may be appropriate. A selective

harvest of overstory trees which opens up the canopy to provide for

understory vegetative diversity may also be compatible in specific

cases. A clear cutting approach to timber harvest, however, for the

purpose of achieving economic gain at the expense of wetland functions

and values would not be compatible with forested wetland functions and

values.

Section 3837a(g) of Title 16, United States Code, provides that in

the case of any violation of the terms and conditions of the easement

or WRPO, the easement shall remain in force and the owner may be

required to refund all or part of the payments made together with

interest. Accordingly, this requirement has been incorporated into

Sec. 620.14 of this interim rule.

Once an easement has been recorded, a landowner can request

modifications that do not adversely affect the functions and values for

which the easement was established. Any modification, however, must

result in equal or greater environmental and economic values to the

United States, as determined by the NRCS in consultation with the U.S.

Fish and Wildlife Service.

During the 1994 WRP sign-up, landowners in only 20 States could

participate in the WRP. In fiscal year 1995 and subsequent years, no

specific geographic limitation is required and eligible landowners in

all 50 States and territories and possessions of the United States may,

subject to a determination by the Chief, be given the opportunity to

participate in the WRP.

This interim rule establishes a new part in chapter VI, title 7 of

the Code of Federal Regulations, and makes the following changes to the

administration of the program:

(1) Identifies possible enrollment availability in all 50 States,

the District of Columbia, the Commonwealth of Puerto Rico, Guam, the

Virgin Islands of the United States, American Samoa, the Commonwealth

of the Northern Mariana Islands, and the Trust Territory of the Pacific

Islands;

(2) Expands land eligibility to certain agricultural lands that do

not have a cropping history, such as former or degraded wetlands

presently used for pasture and hayland;

(3) Provides a non-permanent easement option;

(4) Makes other changes to the administration of the program to

become consistent with NRCS structure, policies, and procedures; and

(5) Delegates additional decision-making authority to the NRCS

Regional Conservationists and State Conservationists with assistance

provided by the State Technical Committees.

List of Subjects in 7 CFR Part 620

Administrative practices and procedures, Natural resources,

Wetlands.

CHAPTER VI--NATURAL RESOURCES CONSERVATION SERVICE, DEPARTMENT OF

AGRICULTURE

Accordingly, 7 CFR chapter VI is amended as follows:

1. The heading of Chapter VI is revised to read as set forth above.

2. In 7 CFR Chapter VI (consisting of parts 600-663), all

references to ``Soil Conservation Service'' are revised to read

``Natural Resources Conservation Service,'' and all references to

``SCS'' are revised to read ``NRCS.''

3. A new part 620 is added to read as follows:

PART 620--WETLANDS RESERVE PROGRAM

Sec.

620.1 Purpose and scope.

620.2 Definitions.

620.3 Administration.

620.4 Program requirements.

620.5 Application procedures.

620.6 Establishing priority for enrollment of properties in WRP.

620.7 Enrollment.

620.8 Compensation for easements.

620.9 Cost-share payments.

620.10 Program participation requirements.

620.11 The WRPO development.

620.12 Modifications.

620.13 Transfer of land.

620.14 Violations and remedies.

620.15 Payments not subject to claims.

620.16 Assignments.

620.17 Appeals.

620.18 Scheme and device.

Authority: 16 U.S.C. 590a et seq., 3837 et seq. [[Page 28515]]

Sec. 620.1 Purpose and scope.

(a) The regulations in this part set forth the policies,

procedures, and requirements for the Wetlands Reserve Program (WRP) as

administered by the Natural Resources Conservation Service (NRCS) for

program implementation and processing outstanding and new applications

for enrollment during calendar year 1995 and thereafter.

(b) The Chief, NRCS, may implement WRP in any of the 50 States, the

District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin

Islands of the United States, American Samoa, the Commonwealth of the

Northern Mariana Islands, and the Trust Territories of the Pacific

Islands.

Sec. 620.2 Definitions.

The following definitions shall be applicable to this part:

Agricultural commodity means any crop planted and produced by

annual tilling of the soil or on an annual basis by one trip planters,

or alfalfa and other multi-year grasses and legumes in rotation as

approved by the Secretary. Land shall be considered planted to an

agricultural commodity during a crop year if, as determined by the

NRCS, an action of the Secretary prevented land from being planted to

the commodity during the crop year.

Chief means the Chief of the Natural Resources Conservation Service

or the person delegated authority to act for the Chief.

Commenced conversion wetland means a wetland or converted wetland

for which the Consolidated Farm Service Agency has determined that the

wetland manipulation was contracted for, started, or for which

financial obligation was incurred before December 23, 1985.

Conservation District is a subdivision of a State or local

government organized pursuant to applicable State law to promote soil

and water conservation practices.

Conservation Reserve Program (CRP) means the program administered

by the Secretary of Agriculture and referenced at 7 CFR Parts 704 and

1410.

Consolidated Farm Service Agency (CFSA) is an agency of the United

States Department of Agriculture.

Contract means the NRCS document that specifies the obligations and

rights of any person who has been accepted for participation in the

program.

Converted wetland means a wetland that has been drained, dredged,

filled, leveled, or otherwise manipulated (including the removal of

woody vegetation, or any activity that results in impairing or reducing

the flow, circulation, or reach of water) for the purpose, or that has

the effect, of making the production of an agricultural commodity

possible if such production would not have been possible but for such

action.

Cost-share payment means the payment made by the NRCS to achieve

the restoration of the wetland functions and values of the easement

area in accordance with the WRPO.

Easement means a reserved interest easement which is an interest in

land defined and delineated in a deed whereby the landowner conveys all

rights, title, and interests in a property to the grantee, but the

landowner retains those rights, title, and interests in the property

which are specifically reserved to the landowner in the easement deed.

Easement area means the land encumbered by an easement.

Easement payment means the consideration paid to a landowner for an

easement conveyed to the United States under the WRP.

Farmed wetland means wetlands that were manipulated and used to

produce an agricultural commodity prior to December 23, 1985, but had

not been converted prior to that date and, therefore, are not prior

converted croplands. These areas include potholes, playas, and pocosins

that still meet the wetland criteria, and other wetlands that are

seasonally ponded or flooded for an extended period of time during the

growing season.

Farmed wetland pasture means wetlands that were manipulated and

managed for pasture or hayland prior to December 23, 1985, but still

meet wetland criteria and are not abandoned, or were prior converted

croplands or farmed wetlands that were not cropped for 5 successive

years, but were used for forage production during that time and have

not been abandoned.

Forest Service is an agency of the United States Department of

Agriculture.

Landowner means a person or persons having legal ownership of

farmland, including those who may be buying farmland under a purchase

agreement. Landowner may include all forms of collective ownership

including joint tenants, tenants in common, and life tenants and

remaindermen in a farm property.

Lands substantially altered by flooding means areas where flooding

has created wetland hydrologic conditions which, with a high degree of

certainty, will develop wetland soil and vegetation characteristics

over time.

Natural Resources Conservation Service (NRCS) is an agency of the

United States Department of Agriculture, formerly called the Soil

Conservation Service.

Permanent easement means an easement that lasts in perpetuity.

Person means one or more individuals, partnerships, associations,

corporations, estates or trusts, or other business enterprises or other

legal entities and, whenever applicable, a State, a political

subdivision of a State, or any agency thereof.

Practice means a restoration measure necessary or desirable to

accomplish the desired program objectives.

Prior converted cropland means wetlands that before December 23,

1985, were drained, dredged, filled, leveled, or otherwise manipulated

including the removal of woody vegetation, for the purpose, or to have

the effect, of making the production of an agricultural commodity

possible and an agricultural commodity has been produced at least once

before December 23, 1985.

Riparian areas means areas of land that occur along streams,

channels, rivers, and other water bodies. These areas are normally

distinctly different from the surrounding lands because of unique soil

and vegetation characteristics, may be identified by distinctive

vegatative communities which are reflective of soil conditions normally

wetter than adjacent soils, and generally provide a corridor for the

movement of wildlife.

State Technical Committee means a committee established by the

Secretary of the U.S. Department of Agriculture in a State pursuant to

16 U.S.C. 3861. For the purposes of the WRP, the State Conservationist

will be the chairperson of the State Technical Committee.

U.S. Fish and Wildlife Service is an agency of the United States

Department of the Interior.

Wetland means land that:

(1) Has a predominance of hydric soils;

(2) Is inundated or saturated by surface or groundwater at a

frequency and duration sufficient to support a prevalence of

hydrophytic vegetation typically adapted for life in saturated soil

conditions; and

(3) Does support a prevalence of such vegetation under normal

circumstances. For purposes of WRP, wetland shall also refer to

adjacent lands that contribute to wetland functions and values.

Wetland functions and values means the hydrological and biological

characteristics of wetlands and the social worth placed upon these

characteristics, including:

(1) Habit for migratory birds and other wildlife, in particular at

risk species;

(2) Protection and improvement of water quality; [[Page 28516]]

(3) Attenuation of water flows due to flood;

(4) The recharge of ground water;

(5) Protection and enhancement of open space and aesthetic quality;

(6) Protection of flora and fauna which contributes to the Nation's

natural heritage; and

(7) Contribution to educational and scientific scholarship.

Wetland restoration means the rehabilitation of degraded or lost

habitat in a manner such that:

(1) The original vegetation community and hydrology are, to the

extent practical, re-established; or

(2) A community different from what likely existed prior to

degradation of the site is established. The hydrology and native self-

sustaining vegetation being established will substantially replace

original habitat functions and values but does not involve more than 30

percent of the wetland restoration area.

WRP means the Wetlands Reserve Program.

WRPO means the Wetlands Reserve Plan of Operations.

Sec. 620.3 Administration.

(a) The regulations in this part will be administered under the

general supervision and direction of the Chief.

(b) The Chief is authorized to modify or waive a provision of this

part if the Chief deems the application of that provision to a

particular limited situation to be inappropriate and inconsistent with

the environmental and cost-efficiency goals of the WRP. This authority

cannot be further delegated. The Chief may not modify or waive any

provision of this part which is required by applicable law.

(c) As determined by the Chief and the Administrator of the

Consolidated Farm Service Agency, the NRCS will seek the agreement of

the Consolidated Farm Service Agency in establishing policies,

priorities, and guidelines related to the implementation of this part.

(d) The State Conservationist will consult with the State Technical

Committee on the development of the rates of compensation for an

easement, a priority ranking process, and related policy matters.

(e) The NRCS may delegate at any time easement management,

monitoring, and enforcement responsibilities to other Federal or State

agencies.

(f) The NRCS may enter into cooperative agreements with Federal or

State agencies and with private conservation organizations to assist

the NRCS with educational efforts, easement management and monitoring,

and program implementation assistance.

(g) The NRCS shall consult with the U.S. Fish and Wildlife Service

in the implementation of the program and in establishing program

policies. The NRCS may consult with other Federal and State agencies

and other organizations in program administration. No determination by

the U.S. Fish and Wildlife Service, Federal, or State agency shall

compel the NRCS to take any action which the NRCS determines will not

serve the purposes of the program established by this part.

(h) The Chief may allocate funds for such purposes related to

special pilot programs for wetland management and monitoring,

emergencies, cooperative agreements with other Federal or State

agencies for program implementation, coordination of easement

enrollment across State boundaries, or for other goals of the WRP found

in this part.

Sec. 620.4 Program requirements.

(a) General. Under the WRP, the NRCS will purchase conservation

easements from eligible landowners who voluntarily cooperate in the

restoration and protection of wetlands and associated lands. To

participate in WRP, a landowner will agree to the implementation of a

Wetlands Reserve Plan of Operations (WRPO), the effect of which is to

restore, protect, enhance, maintain, and manage the hydrologic

conditions of inundation or saturation of the soil, native vegetation,

and natural topography of eligible lands. The NRCS may provide cost-

share assistance for the activities that promote the restoration,

protection, enhancement, maintenance, and management of wetland

functions and values. Specific restoration, protection, enhancement,

maintenance, and management actions may be undertaken by the landowner

or other NRCS designee.

(b) Acreage limitations.

(1) Except for areas devoted to windbreaks or shelterbelts after

November 28, 1990, no more than 25 percent of the total cropland in any

county, as determined by the Consolidated Farm Service Agency, may be

placed in the Environmental Conservation Acreage Reserve Program, 16

U.S.C. 3830, and no more than 10 percent of the total cropland in the

county may be subject to an easement.

(2) The NRCS and the Consolidated Farm Service Agency shall concur

before a waiver of either the 25 percent limit or the 10 percent limit

of this subsection can be approved for an easement proposed for

enrollment in the WRP. Such a waiver will only be approved if it will

not adversely affect the local economy.

(c) Landowner eligibility. To be eligible to participate in the

WRP, a person must:

(1) Be the landowner of eligible land for which enrollment is

sought;

(2) Have been the landowner of such land for the 12 months prior to

the time the intention to participate is declared unless it is

determined by the State Conservationist that the land was acquired by

will or succession as a result of the death of the previous landowner,

or that adequate assurances have been presented to the State

Conservationist that the new landowner of such land did not acquire

such land for the purpose of placing it in the WRP; and

(3) Agree to provide such information to the NRCS as the agency

deems necessary or desirable to assist in its determination of

eligibility for program benefits and for other program implementation

purposes.

(d) Eligible land.

(1) The NRCS shall determine whether land is eligible for

enrollment and whether, once found eligible, the lands may be included

in the program based on the likelihood of successful restoration of

wetland functions and values when considering the cost of acquiring the

easement and restoration, protection, enhancement, maintenance, and

management costs.

(2) Land which meets the eligibility requirements of this section

shall only be considered for enrollment in WRP if the NRCS determines,

in consultation with the U.S. Fish and Wildlife Service, that the

wetland functions and values can and will be restored, protected,

enhanced, maintained, and managed.

(3) The following land is eligible for enrollment in the WRP, which

land may have been determined by the NRCS pursuant to regulations and

implementing policies is pertaining to wetland conservation found at 7

CFR 12.30-12.33, as:

(i) Wetlands farmed under natural conditions, farmed wetlands,

prior converted cropland, commenced conversion wetlands, farmed wetland

pastures, and lands substantially altered by flooding so as to develop

wetland functions and values;

(ii) Former or degraded wetlands that occur on lands that have been

used or are currently being used for the production of food and fiber,

including rangeland and forest production lands, where the hydrology

has been significantly degraded or modified and will be substantially

restored;

(iii) Riparian areas along streams or other waterways that link or,

after restoring the riparian area, will link wetlands which are

protected by an [[Page 28517]] easement or other device or circumstance

that achieves the same objectives as an easement:

(iv) Land adjacent to the restored wetland which would contribute

significantly to wetland functions and values including buffer areas,

wetland creations, and non-cropped neutral wetlands, but not more than

the State Conservationist, in consultation with the State Technical

Committee, determines is necessary for such contribution;

(v) Other wetlands that would not otherwise be eligible but would

significantly add to the wetland functions and values; and

(vi) Wetlands that have been restored under a private, State, or

Federal restoration program with an easement or deed restriction with a

duration of less than 30 years.

(4) To be enrolled in the program, eligible land must be configured

in a size and with boundaries that allow for the efficient management

of the area for easement purposes and otherwise promote and enhance

program objectives.

(e) Ineligible land. The following land is not eligible for

enrollment in the WRP:

(1) Converted wetlands if the conversion was commended after

December 23, 1985;

(2) Land that contains timber stands established under a CRP

contract;

(3) Lands owned by an agency of the United States;

(4) Land subject to an easement or deed restriction with a duration

of 30 years or more prohibiting the production of agricultural

commodities; and,

(5) Lands where implementation of restoration practices would be

futile due to on-site or off-site conditions.

(f) Enrollment of CRP lands. Land subject to an existing CRP

contract may be enrolled into the WKP only if the land and landowner

meet the requirements of this part, and the enrollment is requested by

the landowner and agreed to by the NRCS. To enroll in WRP, the CRP

contract for the property shall be terminated or otherwise modified

subject to such terms and conditions as are mutually agreed upon by the

Consolidated Farm Service Agency and the landowner.

Sec. 620.5 Application procedures.

(a) Application for participation. To apply for enrollment, a

landowner must submit an Application for Participation in the WRP. The

application must be submitted during an announced period for such

submissions.

(b) Preliminary agency actions. By filing an Application for

Participation, the landowner consents to an NRCS representative

entering upon the land for purposes of assessing the wetland functions

and values, and for other activities such as the development of the

preliminary WRPO that are necessary or desirable for the NRCS to make

offers of enrollment. The landowner is entitled to accompany an NRCS

representative on any site visits.

(c) Voluntary reduction in compensation. In order to enhance the

probability of enrollment in WRP, a landowner may voluntarily offer to

accept a lesser payment than is being offered by the NRCS.

Sec. 620.6 Establishing priority for enrollment of properties in WRP.

(a) Ranking considerations. Based on applications for

participation, the State Conservationist, in consultation with the U.S.

Fish and Wildlife Service and the State Technical Committee, will rank

properties based on: estimated costs of restoration and easement

acquisition, availability of matching funds, significance of wetland

functions and values, estimated success of restoration measures, and

the duration of a proposed easement with permanent easements being

given priority over non-permanent easements.

(b) The NRCS may place higher priority on certain geographic

regions of the State where restoration of wetlands may better achieve

NRCS State and regional goals and objectives.

(c) Notwithstanding any limitation of this part, the State

Conservationist may enroll eligible lands at any time in order to

encompass total wetland areas subject to multiple ownership or

otherwise to achieve program objectives. Similarly, the State

Conservationist may, at any time, exclude otherwise eligible lands if

the participation of the adjacent landowners is essential to the

successful restoration of the wetlands and those adjacent landowners

are unwilling to participate.

Sec. 620.7 Enrollment.

(a) Offers of enrollment. Based on the priority ranking, the NRCS

will notify an affected landowner of tentative acceptance into the

program for which the landowner has 15 calendar days to sign a letter

of intent to continue. NRCS will select lands to maximize environmental

benefits per expenditure of Federal funds.

(b) Effect of letter of intent to continue (tentative acceptance).

An offer of tentative acceptance into the program does not bind the

NRCS or the United States to acquire an easement, nor does it bind the

landowner to convey an easement or agree to WRPO activities. However,

receipt of an executed letter of intent to continue will authorize the

NRCS to proceed.

(c) Acceptance of offer of enrollment. A contract will be presented

by the NRCS to the landowner, which will describe the easement area;

the easement terms and conditions; and other terms and conditions for

participation that may be required by the NRCS. A landowner accepts

enrollment in the WRP by signing contract.

(d) Effect of the acceptance of the offer. After the contract is

executed by NRCS and the landowner, the NRCS will proceed with various

easement acquisition activities, which may include conducting a survey

of the easement area, securing necessary subordination agreements,

procuring title insurance, and conducting other activities necessary to

record the easement or implement the WRPO.

(e) Withdrawal of offers. Prior to execution by the United States

and the landowner of the contract, the NRCS may withdraw its offer

anytime due to availability of funds, inability to clear title, or

other reasons. The offer to the landowner shall be void if not executed

by the landowner within the time specified. The date of the offer shall

be the date of notification to the landowner of tentative acceptance.

Sec. 620.8 Compensation for easements.

(a) Establishment of rates.

(1) The State Conservationist, in consultation with the State

Technical Committee, shall determine easement payment rates to be

applied to specific geographic areas within the State or to individual

easement areas.

(2) In order to provide for better uniformity among States, the

Regional Conservationist and Chief may review and adjust, as

appropriate, State or other geographically based easement payment

rates.

(b) Determination of easement payment rates.

(1) Easement payment rates will be based upon analyses of the

values of the lands when used for agricultural purposes. The landowner

will receive the lesser of the following:

(i) the geographic area rate;

(ii) the value based on a market appraisal analysis/assessment; or

(iii) the landowner offer.

(2) Each State Conservationist will determine the easement payment

rates using the best information which is readily available in that

State for assessing the values of land for agricultural purposes. Such

information may include: soil types, type(s) of crops capable of being

grown, production [[Page 28518]] history, location, real estate market

values, appraisals and market analyses, and tax rates and assessments.

The State Conservationist may consult with other Federal agencies, real

estate market experts, appraisers, local tax authorities, and other

entities or persons which may provide information on productivity and

market conditions.

(3) Easement payments for non-permanent easements will be less than

those for permanent easements because the quality and duration of the

ecological benefits derived from a non-permanent easement are

significantly less than those derived from a permanent easement on the

same land. Easement payments for a non-permanent easement shall be

determined by the Chief at between 50 percent and 75 percent of that

which would have been paid for a permanent easement, with the actual

percentage of compensation being determined by the Chief based upon the

extent to which full restoration and ecological benefits can be

achieved when compared to a permanent easement. Easement payments for

the short-term 30-year easements shall be 50 percent of that which

would have been paid for a permanent easement.

(4) Before proceeding to acquire a non-permanent easement, the

State Conservationist shall first seek to acquire any permanent

easement offer that is determined to have the ecological and cost

characteristics that warrant acquisition. After the effort to acquire

permanent easements is completed, and provided that funding continues

to be available, the State Conservationist, in consultation with the

State Technical Committee and following review and approval of the

request by the Regional Conservationist and the Chief, may pursue the

acquisition of non-permanent easements.

(5) The Regional Conservationist and the Chief, when considering

the request of the State Conservationist for approval to acquire a non-

permanent easement, will simultaneously consider any backlog of

unaccepted permanent easement offers that may exist in other areas of

the region and Nation before approval of the acquisition of non-

permanent easements is granted.

(c) Maximum payments. In order to ensure that limited program funds

are expended to maximize program benefits, the State Conservationist,

in consultation with the State Technical Committee, may establish a

maximum easement payment for any one easement within a State or for

geographic areas within a State.

(d) Preliminary estimates of easement payments. Upon request of the

landowner prior to filing an application for enrollment, a landowner

may be appraised of the maximum easement payment rates.

(e) Acceptance of offered easement compensation.

(1) The NRCS will not acquire any easement unless the landowner

accepts the amount of the easement payment which is offered by the

NRCS. The easement payment may or may not equal the fair market value

of the interests and rights to be conveyed by the landowner under the

easement. By voluntarily participating in the program, a landowner

waives any claim to additional compensation based on fair market value.

(2) For permanent easements, the NRCS may make one lump-sum cash

easement payment after the easement is recorded.

(3) For non-permanent easements, the easement payment shall be made

in no less than 5 annual payments or no more than 20 annual payments.

(f) Reimbursement of a landowner's expenses. For completed easement

conveyances, the NRCS will reimburse landowners for their fair and

reasonable expenses, if any, incurred for surveying and related costs,

as determined by the NRCS. The State Conservationist, in consultation

with the State Technical Committee, may establish maximum payments to

reimburse landowners for reasonable expenses.

(g) Tax implications of easement conveyances. Subject to applicable

regulations of the Internal Revenue Service, a landowner may be

eligible for a bargain sale tax deduction which is the difference

between the fair market value of the easement conveyed to the United

States and the easement payment made to the landowner. The NRCS

disclaims any representations concerning the tax implications of any

easement or cost-share transaction.

(h) Payment limitation on non-permanent easements. With respect to

non-permanent easements, the annual amount of easement payments to any

person shall not exceed $50,000.

(i) If easement payments are calculated on a per acre basis,

adjustment to stated easement payment will be made based on final

determination of acreage.

Sec. 620.9 Cost-share payments.

(a) In addition to easement payments, the NRCS may share the cost

with landowners of restoring the enrolled land as provided in the WRPO

after the easement is recorded. The amount and terms and conditions of

the cost-share assistance shall be subject to the following

restrictions on the costs of establishing or installing practices

specified in the WRPO:

(1) On enrolled land subject to a permanent easement, the NRCS

shall offer to pay not less than 75 percent nor more than 100 percent

of such costs; and

(2) On enrolled land subject to a non-permanent easement, the NRCS

shall offer to pay not less than 50 percent nor more than 75 percent of

such costs. Cost-share payments offered by NRCS for the short-term, 30-

year easements shall be 50 percent.

(b) Cost-share payments may be made only upon a determination by

the NRCS that an eligible practice or an identifiable unit of the

practice has been established in compliance with appropriate standards

and specifications. Identified practices may be implemented by the

landowner or other designee.

(c) Cost-share payments may be made for the establishment and

installation of additional eligible practices, or the maintenance or

replacement of an eligible practice, but only if NRCS determines the

practice is needed to meet the objectives of the easement, and the

failure of the original practices was due to reasons beyond the control

of the landowner.

(d) A landowner may seek additional cost-share assistance from

other public or private organizations as long as the activities funded

are in compliance with this part. In no event shall the landowner

receive an amount which exceeds 100 percent of the total actual cost of

the restoration.

Sec. 620.10 Program participation requirements.

(a) To enroll land in WRP, a landowner shall grant an easement to

the United States. The easement shall require that the easement area be

maintained in accordance with WRP goals and objectives for the duration

of the term of the easement, including the restoration, protection,

enhancement, maintenance, and management of wetland and other land

functions and values.

(b) For the duration of its term, the easement shall require, at a

minimum, that the landowner, and the landowner's heirs, successors and

assigns, shall cooperate in the restoration, protection, enhancement,

maintenance, and management of the land in accordance with the easement

and with the terms of the WRPO. In addition, the easement shall grant

to the United States, through the NRCS:

(1) A right of access to the easement area; [[Page 28519]]

(2) The right to permit compatible uses of the easement area,

including such activities as hunting and fishing, managed timber

harvest, or periodic haying or grazing, if such use is consistent with

the long-term protection and enhancement of the wetland resources for

which the easement was established;

(3) All rights, title and interest in the easement area subject to

compatible uses reserved to the landowner; and,

(4) The right to perform restoration, protection, enhancement,

maintenance, and management activities on the easement area.

(c) The landowner shall convey title to the easement which is

acceptable to the NRCS. The landowner shall warrant that the easement

granted to the United States is superior to the rights of all others,

except for exceptions to the title which are deemed acceptable by the

NRCS.

(d) The landowner shall:

(1) Comply with the terms of the easement;

(2) Comply with all terms and conditions of any associated

contract;

(3) Agree to the permanent retirement of any existing cropland base

and allotment history for the easement area under any program

administered by the Secretary, as determined by the Consolidated Farm

Service Agency;

(4) Agree to the long-term restoration, protection, enhancement,

maintenance, and management of the easement in accordance with the

terms of the easement and related agreements;

(5) The landowner may have the option to enter into an agreement

with governmental or private organizations to assist in carrying out

any landowner responsibilities on the easement area; and,

(6) Agree that each person who is subject to the easement shall be

jointly and severally responsible for compliance with the easement and

the provisions of this part and for any refunds or payment adjustment

which may be required for violation of any terms or conditions of the

easement or the provisions of this part.

Sec. 620.11 The WRPO development.

(a) The NRCS shall prepare the WRPO in consultation with the U.S.

Fish and Wildlife Service and the Conservation District. At the local

level, the NRCS must reach agreement with the U.S. Fish and Wildlife

Service. If agreement cannot be reached, the WRPO will be forwarded to

the State Conservationist, who, giving consideration to the information

provided by the U.S. Fish and Wildlife Service, will develop the WRPO.

In all cases of disagreement at the local level, the NRCS and the U.S.

Fish and Wildlife Service will file a report with their respective

national offices.

(b) The WRPO shall specify the manner in which the enrolled land

shall be restored, protected, enhanced, maintained, and managed to

accomplish the goals of the program.

Sec. 620.12 Modifications.

(a) Easements.

(1) After an easement has been recorded, no modification will be

made in the easement except by manual agreement with the Chief and the

landowner. The Chief will consult with the U.S. Fish and Wildlife

Service and the Conservation District prior to making any modifications

to easements.

(2) Approved modifications will be made only in an amended easement

which is duly prepared and recorded in conformity with standard real

estate practices, including requirements for title approval,

subordination of liens, and recordation.

(3) The Chief may approve modifications to facilitate the practical

administration and management of the easement area or the program so

long as the modification will not adversely affect the wetland

functions and values for which the easement was acquired.

(4) Modifications must result in equal or greater environmental and

economic values to the United States.

(b) WRPO. Insofar as is consistent with the easement and applicable

law, the Chief may approve modifications to the WRPO after consultation

with the U.S. Fish and Wildlife Service. Any WRPO modification must

meet WRP program objectives, and must result in equal or greater

environmental and economic values to the United States. Modifications

to the WRPO which are substantial and affect provisions of the easement

may require agreement from the landowner and require execution of an

amended easement.

Sec. 620.13 Transfer of land.

(a) Offers voided. Any transfer of the property prior to the

landowner acceptance into the program shall void the offer of

enrollment. At the option of the State Conservationist, an offer can be

extended to the new landowner if the new landowner agrees to the same

or more restrictive easement and contract terms and conditions.

(b) Payments to landowners.

(1) For non-permanent easements with multiple annual payments, any

remaining easement payments will be made to the original landowner

unless the NRCS receives an assignment of proceeds from the original

landowner to a successor in title.

(2) The new landowner or purchaser shall be held responsible for

assuring completion of all measures and practices required by the

contract. Eligible cost-share payments shall be made to the new

landowner upon presentation of an assignment of rights or other

evidence that title had passed.

(c) Claims to payments. With respect to any and all payments owed

to landowners, the United States shall bear no responsibility for any

full payments or partial distributions of funds between the original

landowner and the landowner's successor. In the event of a dispute or

claim on the distribution of cost-share payments, the NRCS may withhold

payments without the accrual of interest pending an agreement or

adjudication on the rights to the funds.

Sec. 620.14 Violations and remedies.

(a) In the event of a violation of the easement or any associated

contract directly involving the landowner, the landowner shall be given

reasonable notice and an opportunity to voluntarily correct the

violation within 30 days of the date of the notice, or such additional

time as the State Conservationist may allow.

(b) Notwithstanding paragraph (a) of this section, the NRCS

reserves the right to enter upon the easement area at any time to

remedy deficiencies or easement violations. Such entry may be made at

the discretion of the NRCS when such actions are deemed necessary to

protect important wetland functions and values or others rights of the

United States under the easement. The landowner shall be liable for any

costs incurred by the United States as a result of the landowner's

negligence or failure to comply with easement or contractual

obligations.

(c) In addition to any and all legal and equitable remedies as may

be available to the United States under applicable law, the NRCS may

withhold any easement and cost-share payments owing to landowners at

any time there is a material breach of the easement covenants or any

associated contract. Such withheld funds may be used to offset costs

incurred by the United States in any remedial actions or retained as

damages pursuant to court order or settlement agreement.

(d) The United states shall be entitled to recover any and all

administrative and legal costs, including attorney's fees or expenses,

associated with any enforcement or remedial action. [[Page 28520]]

Sec. 620.15 Payments not subject to claims.

Any cost-share or easement payment or portion thereof due any

person under this part shall be allowed without regard to any claim or

lien in favor of any creditor, except agencies of the United States

Government.

Sec. 620.16 Assignments.

Any person entitled to any cash payment under this program may

assign the right to receive such cash payments, in whole or in part.

Sec. 620.17 Appeals.

(a) A person participating in the WRP may obtain a review of any

administrative determination concerning eligibility for participation

utilizing the administrative appeal procedures pursuant to Title II,

Subtitle B and Subtitle H of the Department of Agriculture

Reorganization Act of 1994, Public Law 103-354.

(b) Before a person may seek judicial review of any action taken

under this part, the person must exhaust all administrative appeal

procedures set forth in paragraph (a) of this section, and for purposes

of judicial review, no decision shall be a final agency action except a

decision of the Chief of NRCS under these procedures.

(c) Any appraisals, market analysis, or supporting documentation

that may be used by the NRCS in determining property value are

considered confidential information, and shall only be disclosed as

determined at the sole discretion of the NRCS in accordance with

applicable law.

Sec. 620.18 Scheme and device.

(a) If it is determined by the NRCS that a landowner has employed a

scheme or device to defeat the purposes of this part, any part of any

program payment otherwise due or paid such landowner during the

applicable period may be withheld or be required to be refunded with

interest thereon, as determined appropriate by the NRCS.

(b) A scheme or device includes, but is not limited to, coercion,

fraud, misrepresentation, depriving any other person of payments for

cost-share practices or easements for the purpose of obtaining a

payment to which a person would otherwise not be entitled.

(c) A landowner who succeeds to the responsibilities under this

part shall report in writing to the NRCS any interest of any kind in

enrolled land that is held by a predecessor or any lender. A failure of

full disclosure will be considered a scheme or device under this

section.

Signed at Washington, DC on May 19, 1995.

Gary A. Margheim,

Acting Chief, Natural Resources Conservation Service.

[FR Doc. 95-13161 Filed 5-31-95; 8:45 am]

BILLING CODE 3410-16-M