Water Bank Program

Federal RegisterSep 16, 1997

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DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 633

Water Bank Program

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Final Rule.

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SUMMARY: The Department of Agriculture Reorganization Act of 1994

authorized the establishment of the Natural Resources Conservation

Service (NRCS) and transferred responsibility for the Water Bank

Program (WBP) from the Agricultural Stabilization (ASCS) and

Conservation Service to the NRCS, formerly the Soil Conservation

Service (SCS). This final rule provides the process by which the WBP

will be administered within the NRCS.

DATES: Effective date: September 16, 1997.

FOR FURTHER INFORMATION CONTACT: Robert Misso (Program Manager), (202)

720-3534.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

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

final rule is not 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. Further,

because this rule merely reflects a statutory change in administrative

responsibility, publication for public comment is unnecessary.

Environmental Evaluation

This regulatory action, which merely recognizes a transfer in

administrative responsibilities, is categorically excluded by 7

CFR1b.3(a)(1). Therefore, neither an environmental assessment nor an

environmental impact statement is needed.

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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: Water Bank Program 10.062.

Paperwork Reduction Act

No substantive changes have been made in this final rule which

affect the recordkeeping requirements and estimated burdens previously

reviewed and approved under OMB control number 0578-0013.

Executive Order 12778

This final rule has been reviewed in accordance with Executive

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

Furthermore, the provisions of this final rule preempt State and local

laws to the extent such laws are inconsistent with this final rule.

Before an action may be brought in a Federal court of competent

jurisdiction, the administrative appeal rights afforded persons at 7

CFR part 614 must be exhausted.

Unfunded Mandates Reform Act of 1995

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

Public Law 104-4, NRCS assessed the affects of this rulemaking action

on State, local, and tribal governments. This action does not compel

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

governments, or anyone in the private sector, and therefore a statement

under section 202 of the Unfunded Mandates Reform Act of 1995 is not

required.

Discussion of Program

The Agricultural Stabilization and Conservation Service (ASCS)

issued the current regulations for implementation of WBP, and the

regulations are codified at 7 CFR part 752. Pursuant to the Department

of Agriculture Reorganization Act of 1994, Pub. L. 103-354, the Natural

Resources Conservation Service (NRCS) assumed responsibility for

administering the WBP and this final rule establishes a new part (7 CFR

part 633) for implementation of the WBP under NRCS. Under this rule,

NRCS will administer agreements entered into by persons with ASCS and,

as funds are made available, new agreements entered into by persons

with NRCS. This final rule adopts most of the policies as found in 7

CFR part 752, except that the administration, enforcement, monitoring,

and management of the program is now under the jurisdiction of the

Chief, NRCS, or designee. NRCS believes that issuance of a final rule

without a public comment period is appropriate because of the pending

removal of 7 CFR part 752 and the need to maintain a regulatory

framework for the program. More importantly, the changes made by this

rule merely transfer administrative responsibilities. This final rule

does not relieve any person of any obligation or liability incurred

under 7 CFR part 752, nor otherwise deprive any person of any rights

received or accrued under the provisions of 7 CFR part 752. Therefore,

no person's rights shall be adversely impacted as a result of this

action.

WBP was developed in accordance with the Water Bank Act, enacted in

1970. The purpose of the program is to conserve water, preserve and

improve the condition of migratory waterfowl habitat and other wildlife

resources, and secure other wildlife benefits through 10-year land use

agreements with landowners and operators in important migratory

waterfowl nesting and breeding areas.

The program operates primarily in the northern part of the Central

flyway and the northern and southern parts of the Mississippi flyway,

which are the major migratory water routes used by waterfowl. WBP also

operates along other flyways in States where the program is authorized.

NRCS currently administers WBP agreements in Arkansas, California,

Kentucky, Louisiana, Minnesota, Mississippi, Montana, Nebraska, North

Dakota, Ohio, South Dakota, and Wisconsin.

Unlike other Federal wetland laws, the Water Bank Act defines

wetlands in accordance with Circular 39, Wetlands of the United States,

published by the Department of the Interior. WBP agreements encompass

inland fresh areas (types 1 through 7) as described in Circular 39, and

artificially developed inland fresh water areas that meet the

description of inland fresh water areas (types 1 through 7).

List of Subjects in 7 CFR Part 633

Administrative practices and procedures, Contracts, Natural

Resources, Technical assistance.

Accordingly 7 CFR Chapter VI is amended as follows:

A new part 633 is added to read as follows:

PART 633--WATER BANK PROGRAM

Sec.

633.1 Purpose and scope.

633.2 Definitions.

633.3 Administration.

633.4 Program requirements.

633.5 Application procedures.

633.6 Program participation requirements.

633.7 Annual payments.

633.8 Cost-share payments.

633.9 Conservation plan.

633.10 Modifications.

633.11 Transfer of an interest in an agreement.

633.12 Termination of agreements.

633.13 Violations and remedies.

633.14 Debt collection.

633.15 Payments not subject to claims.

633.16 Assignments.

633.17 Appeals.

633.18 Scheme and device.

Authority: 16 U.S.C. 1301-1311.

Sec. 633.1 Purpose and scope.

The regulations in this part set forth the policies, procedures,

and requirements for the Water Bank Program (WBP) as administered by

the Natural Resources Conservation Service (NRCS) for program

implementation.

Sec. 633.2 Definitions.

The following definitions shall be applicable to this part:

Adjacent land means land on a farm which adjoins designated types 1

through 7 wetlands and is considered essential for the protection of

the wetland or for the nesting, breeding, or feeding of migratory

waterfowl. Adjacent land need not be contiguous to the land designated

as wetland, but cannot be located more than one quarter of a mile away.

Agreement means the document that specifies the obligations and

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

WBP.

Annual payment means the consideration paid to a participant each

year for entering an agreement with the NRCS under the WBP.

Chief means the Chief of the Natural Resources Conservation Service

or the person delegated authority to act for the Chief.

Conservation District is a subdivision of a State government

organized pursuant to applicable State law to promote and undertake

actions for the conservation of soil, water, and other natural

resources.

Conservation plan means a written record of the land user's

decision on the use and management of the wetland and adjacent areas

covered by the agreement.

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

the protection of the wetland functions

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and values of the agreement area in accordance with the conservation

plan.

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.

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

United States Department of Agriculture, formerly called the Soil

Conservation Service.

Operator means the person who is in general control of the farming

operations on the farm during the crop year.

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 measure necessary or desirable to accomplish the

desired program objectives.

State Technical Committee means a committee established by the

Secretary of the United States Department of Agriculture in a State

pursuant to 16 U.S.C. 3861. 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.

Wetlands mean the inland fresh areas defined under 16 U.S.C. 1302

and described as types 1 through 7 in Circular 39, Wetlands of the

United States, as published by the United States Department of the

Interior.

Wetlands functions and values mean the hydrological and biological

characteristics of wetlands and the social worth placed upon these

characteristics, including:

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

at risk species;

(2) Protection and improvement of water quality;

(3) Attenuation of water flows due to flooding;

(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.

WBP means the Water Bank Program.

Sec. 633.3 Administration.

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

general supervision and direction of the Chief.

(b) As determined by the Chief and the Administrator of the Farm

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

Agency in establishing policies, priorities, and guidelines related to

the implementation of this part.

Technical Committee, on program administration and related policy

matters. No determination by the State Technical Committee shall compel

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

the purposes of the program established by this part.

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

State agencies and with private conservation organizations to assist

the NRCS with educational efforts, agreement management and monitoring,

program implementation assistance, and to assure a solid technical

foundation for the program.

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

in the implementation of the program and in establishing program

policies.

(f) 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 enrollment across

State boundaries, or for other goals of the WBP found in this part.

Sec. 633.4 Program requirements.

(a) General. Under the WBP, the NRCS will enter 10-year agreements

with eligible persons who voluntarily cooperate in the protection of

wetlands and associated lands. To participate in WBP, a person will

agree to the implementation of a conservation plan, the effect of which

is to 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 protection of wetland

functions and values. Specific protection actions may be undertaken by

the participant or other NRCS designee.

(b) Participant eligibility. To be eligible to participate in the

WBP, a person must:

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

sought; or

(2) Have possession of the land by written lease over all

designated acreage in the agreement for at least two years preceding

the date of the agreement and will have possession over the all

designated acreage for the agreement period.

eligible for enrollment and whether, once found eligible, the lands may

be included in the program based on the likelihood of successful

protection of wetland functions and values when considering the cost of

entering the agreement and protection costs. Land placed under an

agreement shall be specifically identified and designated for the

period of the agreement.

(2) The following land is eligible for enrollment in the WBP:

(i) Privately owned inland fresh wetland areas of types 1 through

(ii) Privately owned inland fresh wetland areas of types 1 through

7 which are under a drainage easement with the U.S. Department of the

Interior or with a State government which permits agricultural use; or

(iii) Other privately owned land which is adjacent to or within one

quarter mile of designated types 1 through 7 wetlands and which is

determined by the State Conservationist to be essential for the

nesting, breeding, or feeding of migratory waterfowl, or for the

protection of wetland.

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

enrollment in the WBP:

(1) Converted wetlands if the conversion was in violation of 16

U.S.C. 3821 et seq.;

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

(3) Land which is set aside or diverted under any other program

administered by the Department of Agriculture;

(4) Land which is harvested in the first year of the agreement

period prior to being designated, except for land on which timber is

harvested in accordance with a Forest Management Plan which is included

in the conservation plan and is approved by the State forester or

equivalent State official;

(5) Lands where implementation of agreement practices would be

futile due to on-site or off-site conditions; and

(6) Land on which the ownership has changed during the 2-year

period preceding the first year of the agreement period unless:

(i) The new ownership was acquired by will or succession as a

result of the death of the previous owner,

(ii) The land was acquired by the owner or operator to replace

eligible land from which he was displaced because of its acquisition by

any

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Federal, State, or other agency having the right of eminent domain, or

(iii) The new owner operated the land to be designated for as long

as 2 years preceding the first year of the agreement and has control of

such land for the agreement period.

Sec. 633.5 Application procedures.

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

person must submit an application for participation in the WBP.

(b) Preliminary agency actions. The NRCS must certify that the

designated acreage that would be placed under an agreement constitutes

a viable wetland unit, contains sufficient adjacent land to protect the

wetland, and provides essential habitat for the nesting, breeding or

feeding of migratory waterfowl.

requests which are filed, the State Conservationist, in consultation

with the State Technical Committee, may establish ranking criteria and

limit the approval of requests for agreements in accordance with the

ranking scheme. Any ranking scheme shall consider estimated costs of

the agreement, costs of protection, availability of matching funds,

significance of wetland functions and values, and estimated success of

protection measures.

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

regions of the State where the protection of wetlands may better

achieve NRCS State and regional goals and objectives.

(e) 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 protection of the wetlands and those adjacent landowners are

unwilling to participate.

Sec. 633.6 Program participation requirements.

(a) WBP Agreement. An agreement shall be executed for each

participating farm. The agreement shall be signed by the owner of the

designated acreage and any other person who, as landlord, tenant, or

share cropper, will share in the payment or has an interest in the

designated acreage. There may be more than one agreement for a farm.

(b) Agreement period. The agreement period shall:

(1) Be for a term of 10 years;

(2) Become effective on January 1 of the year in which the

agreement is approved except that the agreement shall become effective

on January 1 of the next succeeding year in cases where, at the time

the agreement is approved, the NRCS determines that the agreement

signers will be unable to comply with the provisions of paragraph (c)

of this section in the year in which such agreement is approved.

agreement shall:

(1) Be maintained for the agreement period in a manner which will

preserve, restore, or improve the wetland character of the land;

(2) Not be drained, burned, filled, or otherwise used in a manner

which would destroy the wetland character of the acreage, except that

the provisions of this paragraph shall not prohibit the carrying out of

management practices which are specified in a conservation plan for the

farm;

(3) Not be used as a dumping area for draining other wetlands,

except where the State Conservationist determines that such use is

consistent with the sound management of wetlands and is specified in

the conservation plan;

(4) Not be used as a source of irrigation water;

(5) Not be used for the harvesting of a crop;

(6) Not be hayed except for during periods of severe drought and

only under conditions prescribed by the State Conservationist in

consultation with the Secretary of the Interior or his designee; and

(7) Not be grazed, except as may be specified in the conservation

plan.

Sec. 633.7 Annual payments.

(a) Person on the farm having an interest in the designated

acreage, including tenants and sharecroppers, shall be eligible for an

annual payment in the manner agreed upon by them as representing their

respective contributions to compliance with the agreement. The State

Conservationist shall not approve an agreement if it is determined that

the proposed division of payment is not fair and equitable.

(b) The annual per acre payment rates for wetlands and for adjacent

land shall be determined for each county by the State Conservationist,

based on recommendations of the State Technical Committee.

are expended to maximize program benefits, the State Conservationist,

in consultation with the State Technical Committee, may establish

uniform maximum annual payment limits for agreements within a State or

for geographic areas within a State.

(d) Preliminary estimates of annual payments. Upon request prior to

filing an application for enrollment, a person may be apprised of the

maximum annual payment rates.

(e) Adjustment of annual rates.

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

Technical Committee, shall reexamine the payment rates with respect to

each agreement at the beginning of the fifth year of any ten-year

initial or renewal period and before the renewal expires.

(2) An adjustment in the payment rates shall be made for any

initial or renewal period taking into consideration the current land

rental rates and crop values in the area. No adjustment shall be made

in a payment rate which will result in a reduction of an annual payment

rate from the rate which is specified in the initial or renewal

agreement.

(3) The rate or rates of annual payments may be increased if the

program participant permits access by the general public to the

designated acreage for hunting, trapping, fishing, and hiking, subject

to applicable State and Federal regulations.

Sec. 633.8 Cost-share payments.

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

with program participants of protecting the wetland functions and

values of the enrolled land as provided in the conservation plan. The

NRCS may pay up to 75 percent of such costs.

(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

program participant or other designee.

from other public or private organizations as long as the activities

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

participant receive an amount which exceeds 100 percent of the total

actual cost of the practices.

Sec. 633.9 Conservation plan.

(a) The program participant, with assistance from NRCS and in

consultation with the Conservation District, shall prepare a

conservation plan for the acreage designated under an agreement.

(b) The conservation plan is the basis for the agreement and is

incorporated

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therein. It includes a schedule of conservation treatment and

management required to protect and to maintain the wetland and adjacent

land as a functional wetland unit for the life of the agreement.

wetland protection, wildlife habitat, or other authorized objectives

are consistent with the program objectives and priorities.

Sec. 633.10 Modifications.

The NRCS may approve modifications to the agreement or associated

conservation plan after consultation with the Conservation District.

Any modification must meet WBP program objectives, and must be in

compliance with this part.

Sec. 633.11 Transfer of interest in an agreement.

(a) If the ownership or operation of a farm changes in such a

manner that the agreement no longer contains the signatures of the

persons required by Sec. 633.6(a) to sign the agreement, the agreement

shall be modified to reflect the new interested persons and new

divisions of payments.

(b) If such persons are not willing to become parties to the

modified agreement or for any other reason a modified agreement is not

executed, the agreement shall be terminated and all unearned payments

shall be forfeited or refunded.

ownership or operation occurs shall not be considered to have been

earned unless the designated acreage is continued in the program and

there is compliance with the agreement for the full agreement year.

(d) The signatories to the agreement prior to the change of

ownership or operation shall be jointly and severally responsible for

refunding the unearned payments previously made.

Sec. 633.12 Termination of agreements.

(a) The State Conservationist may, by mutual agreement with the

parties to the agreement, consent to the termination of the agreement

where:

(1) The parties to the agreement are unable to comply with the

terms of the agreement as the result of conditions beyond their

control;

(2) Compliance with the terms of the agreement would work a severe

hardship on the parties to the agreement; or

(3) Termination of the agreement would be in the public interest.

(b) If an agreement is terminated in accordance with the provisions

of this section, the annual payment for the year in which the agreement

is terminated shall not be considered to have been earned unless there

is compliance with the terms and conditions of the agreement for the

entire calendar year.

Sec. 633.13 Violations and remedies.

(a) In the event of a violation of an agreement or any associated

conservation plan, the parties to the agreement 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) In addition to any and all legal and equitable remedies as may

be available to the NRCS under applicable law, the NRCS may withhold

any annual or cost-share payments owing to the parties of the agreement

at any time there is a material breach of the agreement or any

conservation plan. Such withheld funds may be used to offset costs

incurred by the NRCS in any remedial actions or retained as damages

pursuant to court order or settlement agreement.

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

associated with any enforcement or remedial action.

Sec. 633.14 Debt collection.

Any debts arising under this program are governed with respect to

their collection by the Federal Claims Collection Act of 1966 (31

U.S.C. 3701) and the regulations found in 4 CFR chapter II.

Sec. 633.15 Payments not subject to claims.

(a) Any payments due any person shall be determined and allowed

without regard to State land and without regard to any claim or lien

against any crop, or proceeds thereof, which may be asserted by any

creditor, except as provided in paragraph (b) of this section.

(b) The regulations governing setoffs and withholdings, in part 13

of this title, as amended, shall be applicable to this program.

Sec. 633.16 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. 633.17 Appeals.

(a) Any person may obtain reconsideration and review of

determinations affecting participation in this program in accordance

with part 614 of this chapter.

(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.

Sec. 633.18 Scheme and device.

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

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

program payment otherwise due or paid such person 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 an annual

payment or payments for cost-share practices for the purpose of

obtaining a payment to which a person would otherwise not be entitled.

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, D.C. on September 4, 1997.

Gary R. Nordstrom,

Acting Chief, Natural Resources Conservation Service.

[FR Doc. 97-24486 Filed 9-15-97; 8:45 am]

BILLING CODE 3410-16-P

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