Protection of Wetlands Final Rule
[Federal Register: November 17, 1997 (Volume 62, Number 221),
Rules and Regulations Page 61215-61217]
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 650
Protection of Wetlands
AGENCY: Natural Resources Conservation Service, USDA.
ACTION: Final rule.
SUMMARY: Pursuant to Government Performance Results Act, the Natural
Resources Conservation Service (NRCS) is removing obsolete, unnecessary, or
redundant regulations from the Code of Federal Regulations. This action removes
the regulations found at 7 CFR 650.26 concerning the NRCS wetland technical
assistance policy.
EFFECTIVE DATE: November 17, 1997.
FOR FURTHER INFORMATION CONTACT: Warren
Lee (202) 720-3534.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This document does not meet the criteria for a significant regulatory action
as specified in E.O. 12866.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not applicable
to this rule because NRCS is not required by 5 U.S.C. 553 or any other provision
of law to publish a notice of proposed rule making with respect to the subject
matter of this rule.
Environmental Evaluation
This final rule will have no significant effect on the human environment and
is categorically exempt under 7 CFR 1b.3(a)(6), therefore neither an
environmental assessment nor an environmental impact statement is required.
Paperwork Reduction Act
This rule does not contain reporting or record keeping requirements subject
to the Paperwork Reduction Act.
Background
Pursuant to the Administration effort to review existing agency regulations
and remove unnecessary regulations from the Code of Federal Regulations, the
NRCS has determined that the regulation found at 7 CFR part 650.26, ``Protection
of Wetlands,'' is unnecessary because the regulation addresses a matter of
internal agency policy, does not regulate any member of the public, conflicts
with agency implementation of the wetland conservation provisions of the Food
Security Act of 1985, as amended, 16 U.S.C. 3801 et seq., and utilizes a
superseded classification of wetlands.
Executive Order 11990
Wetlands provide fish and wildlife habitats, maintain ground water supplies
and water quality, protect shorelines from erosion, store floodwaters and trap
sediments, and provide recreational and educational opportunities. Historically,
wetlands have been converted at a rapid rate with the concomitant loss of the
functions and values that they provide to the Nation. In some cases, activities
of the Federal government contributed to the loss of the Nation's wetlands. To
minimize adverse impacts on wetlands resulting from Federally-sponsored
activities, President Carter in 1977 issued an Executive Order to protect
wetlands. Executive Order 11990 established the policy that, to the extent
authorized by law, the Executive Branch would avoid direct or indirect support
of new construction in wetlands wherever there exists a practicable alternative.
Pursuant to the Soil Conservation and Domestic Allotment Act of 1935, 16
U.S.C. 590a et seq., the Soil Conservation Service (SCS) of the United States
Department of Agriculture provided technical assistance to landowners for the
protection of natural resources on private lands. Technical assistance included
the personnel and support resources needed to conduct planning and conservation
practice survey, layout, design, installation and certification. Among
activities conducted prior to 1977, SCS provided technical assistance related to
the construction of drainage ditches and other structures that resulted in the
conversion of wetlands.
Section 6 of Executive Order 11990 requires agencies to issue or amend their
existing procedures to comply with the policies of the order, and accordingly,
SCS revised its policy regarding technical assistance in 1977. These changes
restricted the situations in which SCS employees could provide technical
assistance to clients related to new construction in wetlands. In 1979, SCS
codified the wetland technical assistance policy at 7 CFR 650.26. SCS modified
this regulation in 1982 to enable SCS employees to provide assistance for new
construction in wetlands when denial of such assistance would lead to
``detrimental consequences on soil and water resources or on human welfare and
safety.'' 47 FR 34111 (August 6, 1982).
Since 1982, SCS updated its technical assistance policy several times, but
such updates did not require amendments to the regulation at 7 CFR 650.26.
Pursuant to Departmental reorganization in 1994, SCS was abolished and the
Natural Resources Conservation Service (NRCS) assumed most of the statutory and
regulatory responsibilities of the SCS, including the provision of technical
assistance on private lands.
The Conflict With the Wetland Conservation Provisions
The wetland conservation provisions of the Food Security Act of 1985 (the
1985 Act), as amended, 16 U.S.C. 3801 et seq., encourage participants in United
States Department of Agriculture (USDA) programs to adopt land management
measures that protect wetland functions and values by linking eligibility for
USDA program benefits to farming practices on converted wetlands. In particular,
the wetland conservation (WC) provisions of the 1985 Act provide that after
December 23, 1985, a program participant is ineligible for certain USDA program
benefits for the production of an agricultural commodity on a converted wetland,
or after November 28, 1990, for the conversion of a wetland that makes the
production of an agricultural commodity possible. The 1985 Act, however, affords
relief to program participants who meet certain conditions identified under the
1985 Act by exempting such actions from the ineligibility provisions.
The current version of the wetland technical assistance rule, 7 CFR 650.26,
allows NRCS to provide technical assistance to a producer that could place the
producer in violation of the WC provisions. In particular, the rule allows NRCS
personnel to provide technical assistance for certain construction in types 1
and 2 wetlands under the Circular 39 classification of wetlands. The wetland
classification system in Circular 39 was established by the Fish and Wildlife
Service (FWS), United States Department of the Interior, and used by state and
Federal agencies. Currently, the FWS and other agencies do not use Circular 39.
Many types 1 and 2 wetlands correlate with the NRCS definition of ``farmed
wetlands''. A producer can be found ineligible for USDA program benefits if the
drainage on farmed wetlands is increased beyond that which existed on or before
December 23, 1985. Thus, under the current wetland technical assistance rule,
NRCS could help design the drainage system that causes the producer to lose
program benefits and also would violate Section 404 of the Clean Water Act if
the drainage activities were not permitted by the Army Corps of Engineers.
The current version of the wetland technical assistance rule also hinders the
ability of NRCS to assist producers with WC provisions compliance. Since
December 23, 1985, program participants are farming in a more
environmentally-oriented manner, resulting in more wetlands remaining available
to perform the myriad of functions and values for the Nation. Meeting the
objectives of the WC provisions, however, has been difficult for some producers.
Wherever possible, USDA has helped individual program participants address their
unique resource concerns in a manner that meets the requirements of the WC
provisions.
The Federal Agriculture Improvement and Reform Act (the 1996 Act), enacted
April 4, 1996, made several amendments to the WC provisions which were intended
to increase USDA's ability to meet these producers' situations in a more
flexible manner. These amendments provide producers who wish to convert a
wetland with greater flexibility to mitigate the loss of wetland functions and
values through restoration, enhancement, or creation of wetlands.
The WC provisions provide that a person may remain eligible for USDA program
benefits even if their action results in the conversion of a wetland if the
wetland functions and values are adequately mitigated, as determined by NRCS,
and the mitigation: is in accordance with a mitigation plan approved by NRCS; is
in advance of, or concurrent with, the wetland conversion; is not at the expense
of the Federal government; occurs on lands in the same general area of the local
watershed as the converted wetlands; is on lands for which the owner has granted
an easement to USDA, and recorded the easement on public land records; and
provides the equivalent functions and values that will be lost as a result of
the wetland conversion. A person may also remain eligible for USDA program
benefits if the action has been permitted by the Army Corps of Engineers after
December 23, 1985, via the individual permit process.
This increased mitigation flexibility for producers creates confusion between
NRCS responsibilities under the WC provisions and under the current technical
assistance rules. Under the WC provisions, NRCS must approve a mitigation plan
if the producer meets the requirements identified above, whether or not the
impact to wetlands from the conversion activity could have been minimized or
avoided. However, when NRCS delivers technical assistance, the current technical
assistance rule applies. Accordingly, NRCS cannot provide technical assistance
to a client for the conversion activity unless there is no practicable
alternative to the construction and the proposed conversion actions includes all
practicable measures to minimize harm to wetlands which may result from such
use.
Since 1987, USDA has identified the threshold characteristics that define:
when a wetland has been manipulated sufficiently to make the production of an
agricultural commodity possible; when a wetland is ``converted;'' which
conditions meet a particular exemption identified under the WC provisions; or
when a producer has expanded the drainage system beyond that which existed prior
to December 23, 1985. The current wetland technical assistance rule is outdated
because it fails to recognize these distinctions, utilizes a superseded
classification system, and describes identical terms differently from the
current prevailing methodologies and scientific understanding of wetland
systems.
The removal of this regulation will not have any effect on the public, any
private enterprise, or any other Government agency. This action will result in
the removal of an unnecessary regulation from the Code of Federal Regulations.
As a matter related to internal agency management, the policies and procedures
related to the subject matter of the wetland technical assistance rule is
currently addressed through agency manuals, handbooks, and directives.
The Revised NRCS Wetland Technical Assistance Policy
It is the policy of NRCS to protect and promote wetland functions and values
in all NRCS planning and application assistance. NRCS recognizes the beneficial
and varied functional attributes of the different wetland types, and as such,
strives to reconcile the need for wetland protection with that of promoting
viable agricultural enterprises. NRCS supports the restoration, enhancement,
creation, and preservation of wetlands as important and realistic components of
comprehensive conservation plans, not only on a farm-by-farm basis, but also on
a watershed or landscape basis. When providing technical assistance, NRCS will
conduct an environmental evaluation, considering the objectives of the client in
the context of environmental, economic, and other pertinent factors.
Upon conducting an environmental evaluation, NRCS will identify whether any
practicable alternatives exist that will either adequately maintain or improve
the wetland functions and values, or avoid or minimize the harm to wetlands. If
practicable alternatives exist, NRCS will inform and advise the client of the
available options and explain the benefits of conducting the desired activity in
a manner that will achieve the objectives of the client, while adequately
maintaining or improving the functions and values of wetland resources in the
area.
If the client selects one of the practicable alternative options, NRCS may
provide technical assistance for the conversion activity, as well as the
development of a mitigation plan. If the findings of the environmental
evaluation show that no practicable alternatives exist, NRCS may provide
technical assistance which allows for the conversion of the wetland and develop
a mitigation plan for compensation of the functions and values that were lost
through the conversion activity. Prior to or concurrent with NRCS assistance,
the client will obtain all necessary permits or approvals related to the
conversion activity.
If the client chooses to pursue an activity other than a practicable
alternative, NRCS should advise the client about eligibility criteria under the
WC provisions of the Food Security Act, as amended.
The regulation at 7 CFR 650.26 defines wetlands in accordance with Circular
39 of the Fish and Wildlife Service, and not the current definition recognized
by all Federal agencies with wetland responsibilities. Additionally, the former
wetland technical assistance policy and regulation allowed NRCS employees to
provide technical assistance to producers which placed such producers in
violation of the wetland conservation provisions of the Food Security Act of
1985, as amended (FSA). The removal of the regulation will prevent the
implementation of inconsistent policies.
List of Subjects in 7 CFR Part 650.26
Technical Assistance, wetlands.
Sec. 650.26 [Removed]
In consideration of the above, 7 CFR part 650.26 is removed.
Signed at Washington, D.C. on November 6, 1997.
Paul W. Johnson,
Chief, Natural Resources Conservation Service.
[FR Doc. 97-29996 Filed 11-14-97; 8:45 am]
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