[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Rules and Regulations]
[Page 2317-2337]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-2]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1467
RIN 0578-AA47
Wetlands Reserve Program
AGENCY: Natural Resources Conservation Service and Commodity Credit
Corporation, United States Department of Agriculture.
ACTION: Interim final rule with request for comment.
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SUMMARY: The Wetlands Reserve Program (WRP) assists owners of eligible
land in restoring and protecting wetlands. This interim final rule sets
forth how the Natural Resources Conservation Service (NRCS), an agency
of the U.S. Department of Agriculture (USDA), using the funds,
facilities, and authorities of the Commodity Credit Corporation (CCC),
will implement WRP in response to changes made to the program by the
Food, Conservation, and Energy Act of 2008. In addition, this interim
final rule incorporates other changes to the regulation for
clarification or program administration improvement.
DATES: Effective Date: The rule is effective January 15, 2009.
Comment Date: Submit comments on or before March 16, 2009.
ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08013) using any of the following methods:
Government-wide rulemaking Web site: Go to http://
www.regulations.gov and follow the instructions for sending comments
electronically.
Mail: Easements Programs Division, Natural Resources
Conservation Service, Wetlands Reserve Program Comments, P.O. 2890,
Room 6819-S, Washington, DC 20013.
Fax: 1-202-720-9689.
Hand Delivery: Room 6819-S of the USDA South Office
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between
9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays.
Please ask the guard at the entrance to the South Office Building to
call 202-720-4527 in order to be escorted into the building.
This interim final rule may be accessed via Internet.
Users can access the NRCS homepage at http://www.nrcs.usda.gov/; select
the Farm Bill link from the menu; select the Interim final link from
beneath the Final and Interim Final Rules Index title. Persons with
disabilities who require
[[Page 2318]]
alternative means for communication (Braille, large print, audio tape,
etc.) should contact the USDA TARGET Center at: (202) 720-2600 (voice
and TDD).
FOR FURTHER INFORMATION CONTACT: Robin Heard, Director, Easement
Programs Division, U.S. Department of Agriculture, Natural Resources
Conservation Service, Room 6819, P.O. Box 2890, Washington, DC 20013-
2890; Phone: (202) 720-1854; Fax: (202) 720-9689; or e-mail:
WRP2008@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) reviewed this interim
final rule and determined that this interim final rule is an
economically significant regulatory action since it results in an
annual effect on the economy of $100 million or more. Pursuant to
Executive Order 12866, NRCS conducted a cost-benefit analysis of the
Wetlands Reserve Program. The administrative record is available for
public inspection in Room 5831 South Building, USDA, 14th and
Independence Avenue, SW., Washington, DC. A summary of the economic
analysis can be found at the end of this preamble and a copy of the
analysis is available upon request from the Director, Easement Programs
Division, Natural Resources Conservation Service, Room 6819,
Washington, DC 20250-2890 or electronically at: http://
www.nrcs.usda.gov/programs/wrp/ under the Program Information title.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this interim
final rule because the Commodity Credit Corporation (CCC) is not
required by 5 U.S.C. 553, or by any other provision of law, to publish
a notice of proposed rulemaking with respect to the subject matter of
this rule.
Environmental Analysis
A programmatic environmental assessment has been prepared in
association with this rulemaking. The analysis has determined that
there will not be a significant impact to the human environment and as
a result an Environmental Impact Statement is not required to be
prepared (40 CFR part 1508.13). The Environmental (EA) Analysis and
Finding of No Significant Impact (FONSI) are available for review and
comment for 60 days from the date of publication of this interim final
rule in the Federal Register. A copy of the EA and FONSI may be
obtained from the following Web site: http://www.nrcs.usda.gov/
programs/Env_Assess/. A hard copy may also be requested from the
following address and contact: National Environmental Coordinator,
Natural Resources Conservation Service, Ecological Sciences Division,
1400 Independence Ave., SW., Washington DC 20250. Comments from the
public should be specific and reference that comments provided are on
the EA and FONSI. Public comment may be submitted by any of the
following means: (1) e-mail comments to NEPA2008@wdc.usda.gov, (2) e-
mail to e-gov Web site www.regulations.gov, or (3) written comments to:
National Environmental Coordinator, Natural Resources Conservation
Service, Ecological Sciences Division, 1400 Independence Ave., SW.,
Washington DC 20250.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis that the
issuance of this rule discloses no disproportionately adverse impacts
for minorities, women, or persons with disabilities. Copies of the
Civil Rights Impact Analysis are available, and may be obtained from
the Director, Easement Programs Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or
electronically at http://www.nrcs.usda.gov/programs/WRP.
Paperwork Reduction Act
Section 2904 of the Food, Conservation and Energy Act of 2008
requires that the implementation of this provision be carried out
without regard to the Paperwork Reduction Act, Chapter 35 of title 44,
United States Code. Therefore, NRCS is not reporting recordkeeping or
estimated paperwork burden associated with this interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act and the Freedom to E-File Act, which require government
agencies in general and NRCS in particular, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988, Civil Justice Reform. The provisions of this
interim final rule are not retroactive and preempt State and local laws
to the extent that such laws are inconsistent with this interim final
rule. Before an action may be brought in a Federal court of competent
jurisdiction, the administrative appeal rights afforded persons at 7
CFR parts 11, 614, and 780 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), NRCS classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), USDA assessed the effects of this interim final rule
on State, local, and Tribal governments, and the public. This rule does
not compel the expenditure of $100 million or more by any State, local,
or Tribal governments or anyone in the private sector; therefore, a
statement under section 202 of the Unfunded Mandates Reform Act is not
required.
Small Business Regulatory Enforcement Fairness Act of 1996
This interim final rule is a major rule as defined by Section 804
of the Small Business Regulatory Enforcement Fairness Act of 1996. This
interim final rule will not result in an annual effect on the economy
of $100 million or more, a major increase in costs or prices, or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based companies to
compete in domestic and export markets. However, Section 2904(b) and
(c) of the Food, Conservation, and Energy Act of 2008 requires that the
Secretary use the authority in section 808(2) of title 5, United States
Code, which allows an agency to forego SBREFA's usual 60-day
Congressional Review delay of the effective date of a major regulation
if the agency finds that there is a good cause to do so. NRCS hereby
determines that it has good cause to implement this regulation as an
interim final rule and have the rule effective immediately in order to
meet the Congressional intent to have the conservation programs
authorized or amended by Title II in effect as soon as possible.
Accordingly, this rule is effective upon filing for public inspection
by the Office of the Federal Register.
Executive Order 13132
E.O. 13132 requires NRCS to develop an accountable process to
ensure ``meaningful and timely input by State
[[Page 2319]]
and local officials in the development of regulatory policies that have
federalism implications.'' E.O. 13132 defines the term ``Policies that
have federalism implications'' to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' Under
E.O. 13132, NRCS may not issue a regulation that has federalism
implication, that imposes substantial direct compliance costs, and that
is not required by statute, unless the Federal government provides the
funds necessary to pay the direct compliance costs incurred by State
and local governments, or NRCS consults with State and local officials
early in the process of developing the proposed regulation. NRCS shows
sensitivity to Federalism concerns by requiring the State
Conservationist to meet with and provide opportunities for involvement
of State and local governments through the State Technical Committee.
This interim final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government as specified in E.O. 13132. Thus, the
Executive Order does not apply to this rule.
Executive Order 13175
This interim final rule has been reviewed in accordance with
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. NRCS has assessed the impact of this interim final rule on
Indian Tribal Governments and has concluded that this rule will not
negatively affect communities of Indian Tribal governments. The rule
will neither impose substantial direct compliance costs on Indian
Tribal governments, nor preempt Tribal law.
Section 2904 of the Food, Conservation, and Energy Act of 2008
This interim final rule with request for comment amends the
existing Wetlands Reserve Program (WRP) regulations. The Commodity
Credit Corporation and the Natural Resources Conservation Service
(NRCS), an agency of the United States Department of Agriculture
(USDA), publishes this interim final rule with request for comment to
incorporate programmatic changes as authorized by amendments in the
Food, Conservation, and Energy Act of 2008 (2008 Act). The Commodity
Credit Corporation (CCC) and the Natural Resources Conservation Service
(NRCS) are not required by 5 U.S.C. 553 or by any other provision of
law, to publish a notice of proposed rulemaking with respect to the
subject matter of this rule. Section 2904 of the 2008 Act requires
regulations to be published within 90 days after the date of enactment
and authorizes CCC and NRCS to promulgate an interim final rule
effective upon publication with an opportunity for notice and comment.
CCC and NRCS have determined that an interim final rule is necessary to
expedite the effective date of rulemaking in order to meet the intent
of Section 2904 of the 2008 Act.
Economic Analysis--Executive Summary
Pursuant to Executive Order 12866, Regulatory Planning and Review,
the Natural Resources Conservation Service (NRCS) has conducted a
benefit-cost analysis of the Wetlands Reserve Program (WRP) as
formulated for the Interim Final Rule. This requirement provides
decision makers with the opportunity to develop and implement a program
that is beneficial, cost effective, and that minimizes negative impacts
to health, human safety, and the environment. Congress passed
amendments to the program that requires the Secretary of Agriculture,
within 90 days after the enactment of the WRP amendments, to promulgate
regulations necessary to carry out the program.
In considering alternatives for implementing WRP, the United States
Department of Agriculture (USDA) followed the legislative intent to
optimize environmental benefits, address natural resource concerns and
problems, establish an open participatory process, and provide flexible
assistance to producers who apply appropriate conservation measures
that enable the satisfaction of Federal and State environmental
requirements. Because WRP is a voluntary program, the program will not
impose any obligation or burden upon agricultural producers who choose
not to participate. The program has been authorized by the Congress
with an acreage target for program participation. Funding for WRP comes
from the Commodity Credit Corporation.
The WRP provides technical and financial assistance to eligible
landowners to address wetland, wildlife habitat, soil, water, and
related natural resource concerns on private lands in an
environmentally beneficial and cost-effective manner. As will be
discussed later, WRP program costs are the main costs to consider in
this analysis. The WRP is an important tool in restoring and protecting
wetlands along with the efforts of other governmental agencies, non-
profit organizations, and landowners. Land enrolled in WRP can produce
substantial improvements in on-site resource conditions and at the same
time substantial off-site environmental benefits for the public-at-
large can also accrue. These on site and off-site benefits could
include: Creation of high value wetlands, control of sheet and rill
erosion as lands are converted form cropland to wetlands, creation and
protection of habitat for fish and wildlife, including threatened and
endangered species and migrating birds; improving water quality by
filtering sediments and chemicals; reducing flooding; recharging
groundwater; protecting biological diversity; controlling invasive
species with planting of natural vegetation; as well as providing
opportunities for educational, scientific, and recreational activities.
To some extent, air quality could be improved by reduced wind erosion
and by an increase in carbon stored in the soil and reestablished
vegetation, leading to reduced atmospheric amounts of carbon. Many of
these benefits are difficult to quantify, although several studies have
attempted to do so. One such study, published in 2008, found that the
``public willingness to pay to enroll an additional acre of typical
fresh water marsh in the WRP is about $425 annually.'' Capitalizing
this benefit flow at a seven percent rate produced a per acre value of
over $5,800 for permanent easement agreements; a value of over $5,200
for 30-year easement agreements; and a value of almost $3,000 on 10-
year restoration agreements. Using a three percent discount rate, these
values become $10,935, $8,330, and $3,625, for the three types of
agreements discussed above, respectively. These values take into
consideration private benefits that may be derived, such as income from
any fishing, hunting fees, and other recreational activities that may
be realized by WRP landowners.
The main program costs include the purchase of easements and
wetland restoration expenses with the program. Although agricultural
production ceases from lands enrolled in WRP, this output effect is
expected to be small given that WRP parcels are usually marginal
agricultural lands poorly suited for efficient agricultural production.
Agricultural production from lands better suited to agricultural use
can easily compensate for reduced production from newly enrolled WRP
land. Approximately 89.8 percent of the WRP funding has been used for
[[Page 2320]]
permanent easement projects; about 7.9 percent for 30-year easement
projects and about 2.4 percent for restoration cost-share agreement
projects. The associated FY 2007 average per acre program costs for
these projects were estimated at $3,000 for permanent easements, almost
$1,100 for 30-year easements, and nearly $670 for restoration cost-
share agreements.
A comparison of total economic benefits and costs related to
restoring and protecting wetlands on a ``typical acre'' suggests that
WRP can produce substantial economic net benefits.
Method of Analysis and Key Results
The method of analysis for this study relied heavily on program
managers' experience and assumptions. For example, the analysis team
relied on program managers to identify important variables to consider
when developing plausible scenarios. The analysis team took this
information and constructed a small spreadsheet model. The current
policy scenario for this analysis is program performance similar to
those in FY 2007 persisting throughout FY 2009-FY 2012. A key variable
in this scenario was the FY 2007 easement acquisition valuation
methodology: Primarily by an appraisal of the fair market value of a
parcel before the easement was in place minus the fair market value of
the parcel after the easement was in place--an approach adopted by NRCS
on recommendations from the USDA Inspector General's Office. Program
managers felt that the post-FY 2007 valuation methodology was the main
driver that caused the appraised value of parcels in many states to
fall below the state's geographic cap and in turn causing a shift in
program acres across states as compared to past years. These changes
shifted WRP acreage from states with relatively low acquisition costs
to those with relatively high acquisition costs which increased average
national per acre WRP costs significantly. The switch in methodology
did not result in NRCS paying more for the same easement than it would
have paid under the old methodology, but rather significantly reduced
the amount the agency could offer to landowners for an easement in some
states, causing landowners to lose interest in the program. The current
policy scenario assumes that the FY 2007 valuation method will be
employed and drives model results that suggest total national WRP
acreage would only increase by 294,200 acres over the FY 2009-FY 2012
period.
The changes in the 2008 Act return the valuation methodology to the
valuation practices used before FY 2007. As a result, program mangers
expect the distribution of acres enrolled in the program to revert back
to its previous pattern. This geographic re-positioning is expected to
be associated with lower average easement costs (assumed to be the fair
market value of land using the Uniform Standards of Professional
Appraisal Practices or an area-wide market analysis) and for geographic
caps to be the primary means used to determine compensation rates. With
the lower geographic per acre project costs becoming more relevant
(assumed to be 25 percent lower than FY 2007 levels and those assumed
in the baseline scenario), WRP acreage is expected to increase by
600,000 acres over the FY 2009-FY 2012 period--a substantial increase
over the continuation of the existing valuation method.
Because per acre benefits exceed costs regardless of policy
scenario assumed, all model results suggest that net benefits from WRP
are positive.
Conclusions
This WRP benefit-cost analysis assumes that the major driver in
program costs over the FY 2009-FY 2012 period will be the method of
easement evaluation. The single discretionary policy item available to
NRCS does not alter this result. This item pertains to the creation of
the Wetland Reserve Enhancement Program (WREP) that would allow States,
non-governmental organizations, or Indian tribes to partner with USDA
in the selection and funding of contracts, as long as selected
contracts meet the purposes of WRP.
Data on past WRP enrollment suggests that the 2008 Act changes
related to easement compensation could lead to lower national average
per-acre offer prices paid for easements when compared to pre-fiscal
year (FY) 2007. This prediction is dependent upon where acreage is
predominantly enrolled. NRCS anticipates that the new compensation
methodology will encourage re-establishment of historic enrollment
patterns. The assumptions in this analysis suggest the per-acre acre
average costs on WRP could be reduced by about 25 percent. Although
costs are expected to be reduced, there are no environmental studies to
suggest that environmental benefits from such a change will be altered.
Additional technical information from such sources as the Conservation
Effects Assessment Project, plus empirical data on the nature of the
types of environmental benefits being generated on WRP land across the
United States would be necessary.
Although benefits of wetlands have been estimated on specific sites
in a generalized fashion, researchers of many of these past studies
caution in transferring benefits to other areas or to be interpreted as
``average'' values of a typical wetland type. That caveat
notwithstanding, the conclusions of this analysis suggests that the
monetary and non-monetary benefits from WRP in restoring and placing
easements on wetlands can exceed total program costs.
Discussion of Program
Background
Wetlands have long been recognized as critical to the environment
and ecosystem health. They provide a protective buffer for our towns
and cities against floods and storm surges; they are the habitat for
hundreds of species; and they connect aquatic and terrestrial
ecosystems. The Nation's wetlands provide an array of benefits to
society and affect the Nation's economic, ecological, and cultural
heritage.
The WRP is a voluntary program providing technical and financial
assistance to eligible landowners to restore and protect wetlands.
Protecting wetlands provides wildlife habitat, as well as enhancement
of soil, water, plants, and related natural resource concerns.
Floodplain forests, prairie potholes, and coastal marshes are among the
wetlands restored through WRP. More than 2 million acres have been
enrolled in WRP since the program's inception.
Title XIV of the Food Agriculture, Conservation, and Trade Act of
1990 (the 1990 Farm Bill), amended the Food Security Act of 1985 to
provide for the establishment of the Wetlands Reserve Program. The
Secretary of Agriculture delegated responsibility for the WRP to the
Agricultural Stabilization and Conservation Service (ASCS), and ASCS
published a proposed rule followed by a final rule in 1992. Thereafter,
ASCS implemented a pilot program effort in 9 States.
In 1994, ASCS expanded the pilot program implementation of WRP to
20 States and published an interim final rule for the program. Also in
1994, the Department of Agriculture Reorganization Act of 1994 (the
Reorganization Act) authorized the establishment of NRCS as the
successor agency to the Soil Conservation Service. The Reorganization
Act also transferred responsibility for the WRP to NRCS, and NRCS
published an interim final rule in June 1995.
[[Page 2321]]
Under the NRCS interim final rule, NRCS expanded the program to all
50 States, and made other program adjustments to align WRP with real
property acquisition policies. These changes included providing
participants with a single payment at easement closing, and the holding
of the easement deed by the United States of America in accordance with
the Department of Justice Title Standards.
The Federal Agriculture Improvement and Reform Act of 1996 (the
1996 Farm Bill), Public Law 104-387, modified several aspects of WRP,
including offering enrollment through a non-easement option, placing
equal enrollment priority among the three enrollment methods, and
requiring that eligible lands maximize wildlife benefits.
In the August 1996 final rule, NRCS incorporated the changes
mandated by the 1996 Farm Bill and responded to comments received to
the 1995 interim final rule. The Farm Security and Rural Investment Act
of 2002 (the 2002 Farm Bill), Public Law 107-171, expanded the ability
of the Secretary to grant a waiver for ownership changes due to
foreclosure on the land when the owner of the land exercises a right of
redemption from the mortgage holder, in accordance with State law,
immediately before the foreclosure. NRCS incorporated this non-
discretionary change in a direct final rule published in the Federal
Register in June 2002.
The 2008 Act made a number of changes to WRP, including raising the
enrollment cap to 3,041,200 acres through 2012; limiting program
eligibility to private lands and acreage owned by Indian Tribes;
determining the rate of compensation for easements or 30-year contracts
enrolled in the program; requiring ownership of the land for 7 years
under the easement enrollment option; expanding the ranking criteria;
and adding a 30-year contract enrollment option on acreage owned by
Indian Tribes. In addition, the 2008 Act revises the authority for the
Wetlands Reserve Enhancement Program and a grazing rights pilot within
that revised program, and makes agricultural lands flooded from the
natural overflow of a closed basin lake or pothole within the Prairie
Pothole Region eligible for enrollment without requiring that the land
be a farmed wetland or converted wetland.
The 2008 Act incorporated two specific changes limiting the
participation of public agencies in the implementation of WRP after
September 30, 2008. First, the 2008 Act limited enrollment of eligible
land to private land and acreage owned by Indian Tribes. In this
manner, lands owned by a State Department of Natural Resources could
not be enrolled in the program, even if the operator of those lands was
a private individual. Previously, such lands were eligible for
enrollment.
Second, Section 1603(f)(6) of the 1985 Act, as amended by Title I
of the 2008 Act, provides that a State or local government is not
eligible to receive any payment, benefit, or loan under Title XII of
the 1985 Act. This prohibition includes WRP easement and restoration
payments. Therefore, NRCS identifies how it will address these
limitations upon public agency participation dependent upon which stage
of the process a project was as of October 1, 2008.
For land that was enrolled in WRP and was owned by a public entity
prior to October 1, 2008, NRCS will complete the acquisition and
restoration of the project and make appropriate payment to the public
entity. The rationale for completing the acquisition and restoration is
that a recent change in the NRCS business process, which separates the
dates of obligation of acquisition and restoration and thereby results
in the obligation for restoration to occur several months later than
the obligation for acquisition, has delayed obligation of restoration
funds beyond the control of state and local governments. Although
restoration funds for the project will not be obligated to such
projects until after October 1, 2008, NRCS has determined that
restoration payments are appropriate because government entities were
eligible to receive restoration payments when the land was enrolled or
purchased because the restrictions on public lands eligibility in the
WRP statute and on payments to government entities in Section
1603(f)(6) of the 1985 Act, as amended by the 2008 Act, did not go into
effect until October 1, 2008. The WRP statute authorizes NRCS to cost-
share to the extent the Agency determines that cost-share is
appropriate and in the public interest.
For land that was enrolled in WRP and was owned by a private person
or legal entity or Indian Tribe prior to October 1, 2008, but on or
after October 1, 2008, the private landowner or Tribe transfers
ownership of the land to a public entity, NRCS will cancel the
enrollment if the easement acquisition has not been completed.
For land that was enrolled in WRP and was owned by a private person
or legal entity or Indian Tribe prior to October 1, 2008, but on or
after October 1, 2008, the private landowner or Tribe transfers
ownership of the land to a public entity, and NRCS has completed the
easement acquisition and made payment to the private landowner, NRCS
will not cancel the enrollment. The easement will remain in place; and
no refund will be sought from the private landowner. However, NRCS will
not obligate funds to restore the land encumbered by the easement
because NRCS has determined that it is not authorized to make payment
to the public entity owner because of the restrictions in Section
1603(f)(6) of the 1985 Act, as amended by the 2008 Act. NRCS will work
with the new public entity landowner to encourage the public entity to
implement the provisions of the NRCS-approved WRPO at its own expense.
If the private land or acreage owned by an Indian tribe is enrolled
after September 30, 2008, and prior to completion of the restoration
activities the land is acquired by a public entity, NRCS will not
obligate funds for restoring the land encumbered by the easement
because NRCS has determined that it is not authorized to make payment
to the public entity owner because of the restrictions in Section
1603(f)(6) of the 1985 Act, as amended by the 2008 Act. Further, NRCS
will consider failure to complete restoration of the wetlands a
violation of the terms of enrollment. As a violation, under the WRP
statute, NRCS has the right to have the easement remain in force and to
seek a refund of payments made in furtherance of the enrollment. A
violation may be avoided if the new public entity landowner implements
all provisions of the NRCS-approved WRPO at its own expense.
Summary of 2008 Act Changes
The 2008 Act amended the Wetlands Reserve Program to:
Add a new enrollment method for Tribal lands through 30-
year contracts;
Expand land eligibility under WRP to cropland or grassland
that was used for agricultural production prior to flooding from the
natural overflow of a closed basin lake or pothole, as determined by
the Secretary, together (where practicable) with the adjacent land that
is functionally dependent on the cropland or grassland;
Require that an easement cannot be created on land that
changed ownership within the previous 7-year period. Previously, the
ownership requirement was for 12 months;
Limit eligible land to private or tribal land;
Add restoration, protection and enhancement of wetlands as
WRP purposes;
[[Page 2322]]
Revise the authority for the Wetlands Reserve Enhancement
Program;
Require NRCS to conduct a survey of the prairie pothole
regions to inform the allocation process of WRP funds to that region;
Base easement compensation on the lowest of three values:
The fair market value of the land determined through either an
appraisal or market analysis; a geographic cap; or the landowner offer;
Establish an easement compensation payment schedule
depending upon the value of the easement;
Require a yearly payment limitation for restoration cost-
share agreements of $50,000 per year and to clarify that the $50,000
yearly restoration cost-share payment limitation applies to any person
or legal entity;
Extend the existing waiver of the $50,000 yearly payment
limitation to 30-year contracts;
Identify that maintenance is an activity eligible for
cost-share assistance;
Add ranking criteria regarding maximizing environmental
benefits; and
Allow the spraying or mowing of land enrolled in the
program if necessary to meet habitat needs of specific wildlife
species.
Section by Section Analysis
Section 1467.1 Applicability
The term ``Department'' is changed to ``NRCS'' where it occurs in
Sec. 1467.1 and throughout the regulation to clarify that NRCS
implements the program and disburses payments to participants. Prior to
2002, the Farm Service Agency (FSA) disbursed WRP payments on behalf of
CCC. In 2002, NRCS assumed responsibility for disbursing WRP payments.
The reference to processing outstanding and new applications for
enrollment during calendar year 1995 has been removed as moot. There
are no longer any outstanding applications from prior to 1995. The
reference to the Trust Territories of the Pacific Islands has been
removed to reflect more accurately the geographic scope of the program.
Section 1467.2 Administration
Section 1467.2(c) that required concurrence between NRCS and FSA
related to WRP policies, priorities and guidelines is removed,
reflecting that the program has been delegated to NRCS. NRCS and FSA
concurrence remains a program requirement under Section 246 of the
Department of Agriculture Reorganization Act (Pub. L. 103-354; 7 U.S.C.
6962(c)). NRCS and FSA will continue its working relationship regarding
coordination of WRP policies with FSA activities, especially in the
case where CRP and WRP enrollment are impacted by the county acreage
cap limitations.
Section 1467.2(d) is re-designated as Sec. 1467.2(c) and revised
to clarify that the role of the State Technical Committee is to advise
rather than consult with NRCS in program implementation. Given the
regulatory connotation associated with consultation requirements under
the Endangered Species Act, NRCS determined that the term ``advice''
better reflects the relationship between NRCS and the State Technical
Committees. Additionally, this paragraph is revised to clarify that the
advice of the State Technical Committee will be sought in the
development of the geographic area rate caps of compensation which is
addressed more fully in Sec. 1467.8.
Section 1467.2(e) is re-designated as Sec. 1467.2(d) and revised
to clarify that other Federal and State agencies to which NRCS may
delegate easement management responsibilities must have the needed
authority, expertise, and resources to carry out the responsibilities.
This clarification will ensure that this authority is implemented as
intended by statute. Throughout WRP program implementation, NRCS has
worked in close partnership with other Federal and State agencies
regarding management of adjacent and contiguous conservation areas, and
will continue to do so.
Section 1467.2(f) is re-designated as Sec. 1467.2(e) and
incorporates the term ``technical assistance'' in the language
regarding the use of cooperative agreements to obtain services from
other agencies and organizations. ``Technical assistance'' is defined
in section 2001 of the 2008 Act, and is used in this regulation to
cover the various forms of assistance that other parties may provide
rather than listing specific types of assistance.
Section 1467.2(g) is re-designated as Sec. 1467.2(f) and clarifies
that the role of the U.S. Department of the Interior's Fish and
Wildlife Service (FWS) is in consultation regarding land eligibility.
The additional references to FWS and the Forest Service are removed,
because the authority to consult with other Federal or State agencies
on issues related to WRP implementation is covered in other parts of
the regulation and is redundant here. References to the U.S. Department
of the Interior's Fish and Wildlife Service have been changed to
``FWS'' where it occurs throughout the regulation to streamline
terminology.
Section 1467.2 (h) is re-designated as Sec. 1467.2(g) and expands
authority for the Chief of NRCS to allocate funding pools to encourage
program participation among historically underserved producers as
authorized by Section 1244 of the Food Security Act of 1985, as amended
(16 U.S.C. 3844).
Section 1467.3 Definitions
Definitions of the terms used in this regulation are set forth in
Sec. 1467.3 to provide consistent interpretations for the public and
for NRCS personnel. These definitions are consistent with statutory
changes and with the revisions to 7 CFR part 1467 contained herein.
The term ``Acreage owned by Indian Tribes'' is added to define the
term as used by the amendment made by the 2008 Act. The term is defined
broadly to include lands held in trust for Indian Tribes, and to
increase program accessibility and to allow for the greatest
opportunity for Indian Tribal participation in the program through the
use of 30-year contracts, which may be more conducive to requirements
on trust lands, which are owned by the Tribe, but held in trust by
another agency or entity.
The term ``Activity'' is added to define the meaning of the term
used in the regulation and refer to maintenance and management
activities that are essential parts of a restoration agreement. The
statute specifies that cost-share payments may be provided for
management and maintenance activities, which does not always involve a
full conservation practice.
The term ``Agreement'' is added to specify that it is a legal
document that describes the rights and obligations of NRCS and program
participants.
The term ``Agricultural commodity'' is revised to reflect the
definition provided in Sec. 1201(a)(1) of the Food Security Act of
1985, as amended, providing consistency with other Title XII programs.
The term ``Beginning farmer or rancher'' is added to clarify who is
eligible to be enrolled under provisions specific to historically
underserved producers, which is referenced under Sec. 1467.2(g).
The term ``Conservation district'' is revised to reflect the
definition provided in Sec. 1201(a)(5) of the Food Security Act of
1985, providing consistency with other Title XII programs.
The term ``Conservation practice'' replaces the term ``practice,''
and clarifies that conservation practices implemented in WRP meet NRCS
[[Page 2323]]
standards and specifications, and provides a consistent definition
across all easement programs.
The term ``Contract'' is revised to clarify that it is a legal
document that specifies the rights and obligations of NRCS and program
participants.
The term ``30-year Contract'' is added to reflect the statutory
addition of the 30-year contract enrollment option for acreage owned by
Indian Tribes.
The term ``Converted wetland'' is revised to reflect the definition
in Sec. 1201(a)(7) of the Food Security Act of 1985, as amended,
providing consistency with other Title XII programs.
The term ``Cost-share payment'' is revised to clarify that payments
are made to carry out conservation practices and activities on enrolled
lands.
The term ``Department'' is removed. References to ``Department''
throughout 7 CFR part 1467 are replaced with ``NRCS,'' the Natural
Resources Conservation Service, an agency of the U.S. Department of
Agriculture responsible for carrying out the program.
The term ``Easement payment'' is revised to include the
consideration paid to an Indian Tribe or to tribal members
participating through the 30-year contract option, because the managers
expressed that the 30-year contract option would provide the same
payment as a 30-year easement, but would not be a real property
transaction.
The term ``Easement Restoration Agreement'' is added to specify
that an easement restoration agreement will be the agreement used to
implement the Wetland Restoration Plan of Operations (WRPO) for
easements and 30-year contracts and mechanism for providing cost-share
assistance to participants to carry out restoration and maintenance as
planned in the WRPO under such enrollments.
The term ``Forest Service'' is removed as it is duplicative to all-
inclusive references to ``other Federal and State agencies'' throughout
the regulation.
The term ``Fish and Wildlife Service (FWS)'' replaces the term
``U.S. Fish and Wildlife Service'' and such term refers to the same
agency within the United States Department of the Interior.
The term ``Historically underserved producer'' is added to refer to
the specific groups of producers to which the Chief may direct funding
through funding pools specifically to encourage participation, and to
provide consistency with related conservation programs administered by
NRCS.
The term ``Indian Tribe'' is added and adopts the definition in
Sec. 4(e) of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450b(e)).
The term ``Landowner'' is revised to reflect that such term
includes legal entities and refines the applicability of the term from
the overly broad term ``farmland'' to eligible land since the 2008 Act
amended the WRP statute to limit eligibility to private and Tribal
lands, including lands held in trust for Indian tribes. ``Remaindermen
in a farm property'' is removed because remaindermen in a property do
not have a current legal ownership of the land.
The term ``Legal entity'' is added to respond to statutory changes,
which limit eligible land to private and Tribal land and place a
payment limitation to a person or a legal entity. The term ``limited
resource farmer or rancher'' is added to clarify who is eligible to be
enrolled under provisions specific to historically underserved
producers at Sec. 1467.2(g).
The term ``Maintenance'' is added to reflect statutory changes that
incorporate maintenance as a cost-sharable activity.
The term ``Natural Resources Conservation Service'' is revised to
clarify that NRCS carries out program implementation using the funds,
facilities, or authorities of the Commodity Credit Corporation (CCC).
In the definition ``Department'' is replaced with ``NRCS'' and
reference to the Soil Conservation Service is removed.
The term ``Option agreement to purchase'' is added to describe the
legal document used to authorize NRCS to proceed with the easement
acquisition process and which binds the landowner to sell a
conservation easement upon exercise of the option by NRCS.
The term ``Participant'' is added to simplify reference throughout
the regulations to persons or legal entities who have been accepted to
participate in the program.
The term ``Person'' is revised in response to statutory changes
that eliminated governmental entity eligibility under the program. The
term ``person'' now refers only to a natural person, a legal entity, or
an Indian Tribe, but does not include governments or their political
subdivisions.
The term ``Prairie Pothole Region'' is added to reflect statutory
changes requiring an assessment of program demand in the ``Prairie
Pothole Region'' and consideration of those needs in allocation
formulas. The definition establishes the geographic scope of the
prairie pothole region, as it existed on June 18, 2008.
The term ``Private land'' is added to reflect statutory changes
that excluded land owned by State and local governments from being
eligible to enroll in the program.
The term ``Restoration Cost-Share Agreement'' is added to clarify
that the restoration agreement is the contract used to describe the
rights and obligations of participants who have been accepted to
participate in the WRP restoration cost-share enrollment option. This
agreement is used to carry out the WRPO and to identify the cost-share
assistance NRCS will provide to the participant for implementing the
conservation practices and activities in the Wetland Restoration Plan
of Operations.
The term ``Riparian areas'' is revised to correct the spelling of
the word ``vegetative.''
The term ``Socially disadvantaged farmer or rancher'' is added to
clarify who is eligible to be enrolled under provisions specific to
historically underserved producers at Sec. 1467.2(g).
The term ``State technical committee'' is revised to remove
unnecessary reference to the State Conservationist as the chair of the
committee; this role is established through regulations found at 7 CFR
610.22(a).
The term ``United States Department of Agriculture (USDA)''
replaces the use of the term ``U.S. Department of Agriculture.''
The term ``Wetland'' is amended to remove adjacent lands from the
definition of wetland for consistency with the statute. Adjacent
uplands, while they may be eligible for the program, are technically
not wetlands.
The term ``WRP'' has been removed as unnecessary since the term is
adequately described in Sec. 1467.1.
The term ``Wetlands Reserve Plan of Operations (WRPO)'' is revised
to add the definition of the WRPO and describe the purpose of this
conservation plan. In particular, the WRPO is the conservation plan
that identifies how the wetland functions and values will be restored,
improved, and protected and which is approved by NRCS.
Section 1467.4 Program Requirements
Section 1467.4(a) is revised to incorporate the statutory addition
of the 30-year contract enrollment option available only on acreage
owned by Indian Tribes. Additionally, Sec. 1467.4(a) is revised to
clarify that cost-share assistance under the easement or 30-year
enrollment option will be provided through the easement restoration
agreement and that cost-share assistance under the restoration cost-
share enrollment option will be provided
[[Page 2324]]
through the restoration cost-share agreement.
Section 1467.4(b) is revised to remove reference to CRP easements
with respect to a county cap limitation since this enrollment option is
not provided through the existing CRP. Additionally, the 2008 Act
removed the ability to waive the 10% limitation of cropland that can be
enrolled through an easement option under WRP. Therefore, this
paragraph has been revised to reflect the 2008 Act amendments.
Section 1467.4(c) is revised to clarify that eligible program
participants are persons or legal entities or Indian Tribes and are
subject to the adjusted gross income (AGI) limitation and highly
erodible land and wetland compliance provisions of the Food Security
Act of 1985, as amended. Indian Tribes are exempted from the AGI and
payment limitations by 7 CFR Part 1400.600(g).
Section 1467.4(c)(2) is revised to reflect the statutory change in
required ownership period from 12 months to 7 years. NRCS will
determine the 7-year ownership requirement at the time NRCS determines
the eligibility of the land offered for enrollment. Previously, NRCS
measured ownership duration at the time of application. However, NRCS
determined that as an eligibility criterion, ownership duration should
be determined as part of the eligibility review of a project.
A new Sec. 1467.4(d)) is added to specify that land that is
accepted for enrollment in an easement, but is sold or transferred
prior to the easement being perfected will be removed from enrollment.
The new landowner may file a new application so that all landowner
eligibility criteria may be examined and documented appropriately.
However, the land eligibility, ranking, and other administrative
determinations that relate to the land will remain valid for the
remainder of the funding cycle.
Section 1467.4(d) is redesignated as Sec. 1467.4(e) and is revised
to reflect the requirement made by the 2008 Act amendments that land
must be private land or acreage owned by Indian Tribes to be eligible
for WRP.
Section 1467.4(e)(3), formerly Sec. 1467.4(d)(2), is revised to
provide the new eligible land category for flooded lands within a
closed basin lake or pothole as established by the amendments in the
2008 Act. This change authorizes the enrollment of lands that are
currently inundated.
Section 1467.4(e)(4) is revised to add clarity related to lands
that may be considered farmed wetland or converted wetland, and conform
to revisions made in Sec. 1467.4(e)(3). The lands identified were
previously identified in regulation but the revision ties their
identification more clearly to statutory criteria.
Section 1467.4(e)(5) Prairie Pothole Region adds new language to
provide eligibility criteria for land being enrolled under the new
eligibility category of flooded lands in a closed basin located in the
Prairie Pothole Region as defined in Sec. 1467.3. The Prairie Pothole
Region is defined as the counties designated as part of the Prairie
Pothole National Priority Area for CRP as of June 18, 2008. This
designation is chosen because it is clearly delineated and is already
an established and well-known designation. The 2008 Act amendments
require that lands under this section maximize wildlife benefits and
wetland values and functions and be restorable. In order for a wetland
to be restorable, the soils must be hydric, and the depth of the water
cannot exceed 6.5 feet because water over this level is considered open
water, not a wetland. The minimum size requirement of 20 contiguous
acres is included to focus enrollment on lands that are not eligible
under the Conservation Reserve Program Flooded Farmland program, which
allows enrollment of parcels under 20 contiguous acres in size.
Section 1467.4(e)(6) restructures language previously under Sec.
1467.4(d)(3)(iii) through (vi) regarding eligibility of lands adjacent
to land eligible under Sec. 1467.4(e)(3). The change results in
increased cohesiveness in the description of eligible lands and more
clearly comports with statutory intent by rewording the existing
language. Land identified in this paragraph may include types of land
that could be considered eligible under Sec. 1467.4(e)(3). For
example, paragraph (e)(6) identifies restored wetlands as eligible
adjacent lands. However, some restored wetlands that are not adjacent
to eligible land may be identified as farmed wetlands and thus eligible
under Sec. 1467.4(e)(3), while other restored wetlands may not have an
agricultural history, and thus would only be eligible as adjacent
eligible land under paragraph (e)(6). The identification of restored
wetlands under paragraph (e)(6) is not intended to preclude the
enrollment of restored agricultural wetlands under Sec. 1467.4(e)(3),
but to facilitate the enrollment of restored adjacent non-agricultural
wetlands if their enrollment furthers the functions and values of
eligible agricultural wetlands.
Section 1467.4(e)(7) is revised to clarify that eligible land must
be configured with boundaries that allow for efficient management for
the program purposes, as determined by NRCS, by changing the term
``easement'' to ``program.''
Section 1467.4(g)(3) is revised by clarifying that land held in
trust for Indian Tribes, though owned by an agency of the United
States, is not ineligible. Section 1467.4(g)(4) adds language
incorporating the statutory change that lands owned by State and local
units of government are not eligible for WRP. Section 1467.4(g)(5) also
revises the language describing when an existing deed restriction
causes land to be ineligible for participation to provide more
administrative flexibility to determine whether wetland functions and
values are adequately protected by such restrictions. When existing
restrictions provide adequate wetland protection benefits, WRP
enrollment is superfluous and unnecessary. In Section 1467.4(g)(6) NRCS
provides examples of the types of lands where implementation of
restoration practices would be undermined due to on-site or off-site
conditions.
Section 1467.5 Application Procedures
The requirement that applications must be submitted during an
announced period for such submissions is removed from Sec. 1467.5(a),
because NRCS provides for continuous enrollment in WRP.
In Sec. 1467.5(b) the term ``Department'' is replaced with
``NRCS.''
NRCS has removed paragraph (c) since the criteria about reduced
easement cost as a ranking factor is addressed in revisions made to
Sec. 1467.6.
Section 1467.6 Establishing Priority for Enrollment of Properties in
WRP
Section 1467.6(a) is removed to eliminate duplicative language
related to enrollment priorities from this regulation. Section
1467.6(b) is re-designated as Sec. 1467.6(a) and clarifies that the
same ranking considerations apply to all enrollment options. Language
is added to reflect additional ranking considerations added to the WRP
statute by the 2008 Act. Section 1467.6 now reflects the priorities
identified in the WRP statute, including: The conservation benefits of
obtaining an easement, or other interest in the land; the cost
effectiveness of each easement or other interest in eligible land, so
as to maximize the environmental benefits per dollar expended; whether
the landowner or another person is offering to contribute financially
to the cost of the easement or other interest in the land to leverage
Federal funds; the extent to which the purposes of the easement program
would be achieved on the land; the productivity of the land; and the
on-
[[Page 2325]]
farm and off-farm environmental threats if the land is used for the
production of agricultural commodities.
Section 1467.6(b) is added to reflect existing statutory language
that, in consideration of the costs and future agricultural food needs,
gives priority to permanent easements over shorter-term easements, and
acquiring easements based on habitat value for migratory birds and
other wildlife, to the extent practicable. The language was added
because it had not been previously clearly addressed in the regulation.
Section 1467.6(c) is revised to include consultation with the State
Technical Committee when placing higher priority on specific geographic
areas. This change is intended to incorporate State, local, and non-
governmental organization input when designating a priority area.
Section 1467.6(d) is revised to remove reference to enrolling
eligible lands at any time to achieve the program objectives. WRP
operates on a continuous enrollment basis so this language is
unnecessary. This paragraph is also revised to clarify that eligible
land may be excluded from enrollment if the adjacent land is needed for
successful restoration of the property and the adjacent landowner,
though willing to participate, is ineligible to participate.
Section 1467.6(e) is added to provide guidelines for the Prairie
Pothole Region Assessment and Reallocation as required by the statute.
These guidelines and the rationale for the changes are included in the
description of the changes to Sec. 1467.4(e)(5).
Section 1467.7 Enrollment Process
Section 1467.7 is revised to include changes to the NRCS business
process as a result of experience gained in operating the WRP. These
revisions require steps related to land valuation, preliminary title
work, and all appropriate inquiries and record searches to be completed
prior to the offer to the landowner. These steps had previously been
performed after the obligation of NRCS funds and resulted in de-
obligation of funds when issues related to these steps could not be
resolved. These revisions streamline program implementation and are
intended to help reduce the number of applicants having to exit the
enrollment process due to irresolvable issues, such as title issues and
hazardous substance problems.
In addition, Sec. 1467.7 is revised to confirm that land is
enrolled in the program when the landowner and NRCS enter into an
option agreement to purchase an easement, a 30-year contract, or a
restoration cost-share agreement. Previously, when acreage enrollment
goals were by calendar year and funding availability by fiscal year,
land was enrolled in WRP when the landowner executed a notice of intent
to continue in response to the NRCS offer of tentative acceptance into
the program. The 2008 Act modified the acreage enrollment goals to be
by fiscal year, and thus NRCS determined that it improved
administrative consistency to have the time of enrollment to coincide
when funds were obligated to a project through the execution of a
program agreement.
Section 1467.7(c) is revised to clarify that the option agreement
to purchase, which becomes the contract for sale when signed by NRCS,
stipulates the NRCS and landowner obligations and responsibilities,
particularly regarding restoration and future sales. This is necessary,
in part, to describe NRCS and landowner responsibilities if the land is
sold to a party who is unwilling to assume restoration or is ineligible
for NRCS cost-share assistance for restoration. The option agreement to
purchase may also include payment schedules for easements valued at
more than $500,000, consistent with the payment schedule for such
easements authorized by the 2008 Act.
Additionally, this section is expanded to incorporate additional
material regarding enrollment through a 30-year contract or a
restoration cost-share agreement. In particular, a participant accepts
enrollment in the program by signing the 30-year contract or the
restoration cost-share agreement.
The existing Sec. 467.7(d) is revised and incorporated into the
new Sec. 1467.7(c) described above.
The existing Sec. 1467.7(e) is re-designated as Sec. 1467.7(d)
and is revised to clarify under what conditions NRCS may withdraw an
offer of enrollment. Sale of the land enrolled prior to easement
closing or risk of hazardous substances are added as examples of such
conditions.
Section 1467.8 Compensation for Easements and 30-Year Contracts
The caption for Sec. 1467.8 is changed from ``Compensation for
easements'' to ``Compensation for easements and 30-year contracts'' to
reflect the addition by the 2008 Act of the 30-year contract enrollment
option for acreage owned by Indian Tribes. The statute requires that
compensation for 30-year contracts and 30-year easements be equivalent.
Section 1467.8 is also revised to reflect the statutory easement
compensation language in the 2008 Act, which became effective
immediately upon enactment. In particular, the 2008 Act provided that
NRCS shall pay as compensation the lowest of the following: (i) The
fair market value of the land using the Uniform Standards for
Professional Appraisal Practices, or based on an area-wide market
analysis or survey; (ii) the geographic area rate cap determined under
paragraph (a)(4) of this section; or (iii) the landowner offer. The
revisions to Sec. 1467.8 implement the new compensation methods,
including the equivalence of 30-year contracts and 30-year easements,
as required by statute. This section is also revised to clarify the
process for setting and approving the geographic area rate cap. The
actual method and data sources for determining a geographic rate cap
have not changed from the existing regulation. The changes were made to
require that the State Technical Committee provide advice on
establishment of the caps, and that the caps for each state must be
approved by the Chief. In this manner, NRCS may ensure nationwide
consistency and equitable treatment of participants across State
boundaries. Advice on establishment of the geographic rate cap is
limited to the State Technical Committee to ensure consistency among
states in developing fair compensation rates which will encourage
participation while ensuring prudent investment of the public dollar.
Payment schedule and payment limitations are revised to reflect the
2008 Act. This section is also revised to address when a waiver to
installment payments is allowed for easements that cost in excess of
$500,000. NRCS will make a single payment when such payment will result
in the restoration, protection, or enhancement of wetlands on eligible
land, unless installment payments are requested by the landowner.
Single payments facilitate the administrative efficiency of the
program, especially in situations where the landowner must negotiate
subordination of mortgages or other liens in order to provide clear
title to the easement area.
Section 1467.8(b) contains language related to the acceptance of
easement compensation that previously existed at Sec. 1467.8(e).
Additionally, this section is revised to incorporate the payment timing
and method prescribed by statute.
Section 1467.8(c), previously Sec. 1467.8(f), includes minor
changes to provide clarity that reimbursement for surveys are for legal
boundary surveys.
Language in the existing regulation at Sec. 1467.8(h) regarding
payment limitations is deleted and incorporated in new Sec.
1467.10(a)(3).
[[Page 2326]]
Remaining sections have been re-designated to accommodate the above
section re-designations.
Section 1467.9 Wetlands Reserve Enhancement Program
Section 1467.9, Cost-share Payments, is re-designated as Sec.
1467.10. A new Sec. 1467.9 is added to incorporate provisions for
implementing the new Wetlands Reserve Enhancement Program (WREP)
created by the statute. WREP provides the authority to enter into
agreements with States (or subdivisions), nongovernmental
organizations, and Indian Tribes to advance the purposes of WRP. WREP
will operate through an announcement of funding in the Federal
Register. Proposals will be submitted to the appropriate State
Conservationist for initial review, and recommended proposals will be
provided to the Chief by the State Conservationists for nationwide
ranking and final selection. NRCS believes that WREP will facilitate
the identification of unique enrollment opportunities that are of
regional or National significance, and thus beyond the normal purview
of State-level selection processes. However, selected proposals and
associated funding will be provided through the applicable State
Conservationists in order to enter into the WREP agreement with the
eligible partner.
Section 1467.9(b) includes language for implementing a reserved
rights pilot authorized by the statute. Participants in the reserved
rights pilot are subject to the general eligibility and program
administration requirements established for this part. Under the
reserved rights pilot, landowners who wish to reserve grazing rights in
the grazing rights pilot deed or 30-year contract must comply with a
WRPO which includes the location, timing, intensity, frequency, and
duration of grazing. The Managers Report language states that
activities occurring under a reserved rights easement or 30-year
contract shall be covered by a conservation plan that is developed and
approved by NRCS. NRCS intends to compile, evaluate, and make available
information acquired through its monitoring of projects enrolled
through WREP in general, and the reserved rights pilot specifically, to
ascertain the benefits gained through these programmatic options.
The Managers Report also states that NRCS should explore different
types of warranty easement deeds consistent with the purposes of the
program, which will allow landowners to retain the right to use the
land for grazing purposes. The reserved rights pilot will use template
deeds and 30-year contracts, which will be made public concurrent with
the announcement of availability of the pilot.
Section 1467.9(b)(4) on compensation describes that the value of
retained grazing rights will be considered in establishing
compensation. The value of the retained grazing rights, set by either a
Uniform Standards for Professional Appraisal Practices (USPAP)
appraisal or a market survey, is subtracted from the fair market value
of the land; in setting geographic area rate caps, a value for grazing
rights must be subtracted from the established geographic rate cap for
the area.
Section 1467.10 Cost-Share Payments
As mentioned above, Sec. 1467.9 ``Cost-share payments'' is re-
designated as Sec. 1467.10 and revised to incorporate 30-year
contracts and to improve readability.
Language is included throughout this section to accommodate the
inclusion of maintenance as an activity that is eligible for cost-
share. Changes throughout this section clarify that conservation
practices and activities, as defined in Sec. 1467.3, are eligible for
cost-share. Maintenance is included in the definition of activity under
Sec. 1467.3.
Section 1467.10(a)(3) is added to provide language for implementing
the $50,000 annual payment limitation for restoration cost-share
agreements, consistent with the statutory requirements of the 2008 Act
amendments.
Sections 1467.10(b), (c), and (d) are revised to more fully
describe the items for which cost-share is available within the WRPO.
These items include measures, activities, and components of
conservation practices which may be necessary for alleviating problems
or improving a conservation treatment, including as a maintenance
activity.
Section 1467.10(e) is added to clarify that the participant with
the contractual obligation with NRCS will be responsible for completing
restoration if land enrolled in WRP is sold to a new landowner who is
unwilling, ineligible, or unable to complete the restoration. Eligible
new landowners who agree to the transfer of the responsibilities under
the easement restoration agreement or restoration cost-share agreement,
as applicable, may receive cost-share assistance for restoration if all
requirements for payment are met. NRCS will seek refund of payments if
the participant with the contractual obligation or the new landowner
fail to implement the required restoration as specified in the WRPO.
Section 1467.11 Easement and 30-Year Contract Participation
Requirements
Section 1467.10, Easement participation requirements, is re-
designated as Sec. 1467.11. This section is revised by adding a new
Sec. 1467.11(b) to make the requirements also applicable to 30-year
contracts. The requirements for participation under the 30-year
contract option mirror the easement participation requirements, except
where necessary to reflect that the 30-year easement is not a real
property right such as an easement but a contractual arrangement
between NRCS and an Indian Tribe or tribal member. Additional minor
revisions are made to Sec. 1467.11 for administrative clarity and
streamlining. This section is also modified to clarify that the
restoration of lands enrolled in WRP is the responsibility of the
participant.
Section 1467.11(e) is added to include the requirement that for all
lands enrolled in WRP, NRCS shall develop a WRPO, which will be
implemented by the participant. This WRPO will be signed by both NRCS
and the participant. This language is added to further clarify the
participant responsibilities when enrolled in the WRP.
Section 1467.12 The WRPO Development
Section 1467.11 is re-designated as Sec. 1467.12. This section
contains only minor changes to clarify that NRCS is the USDA agency
with responsibility for developing the WRPO.
Section 1467.13 Modifications
Section 1467.12 is re-designated as Sec. 1467.13, Modifications.
Section 1467.13(a)(4) clarifies that the Chief will approve
modifications and under what circumstances modifications may be
approved; this language was previously included in the WRP Manual and
is now being incorporated in the rule to provide clarification for the
level of approval for modifications. The Chief reserves the authority
to approve modifications to ensure the long-term integrity of NRCS
easements.
Section 1467.13(b) is revised to require agreement and signatures
from the participant and NRCS for a modification to the WRPO. These
changes will ensure protection of the Federal investment.
Section 1467.14 Transfer of Land
Section 1467.13 is re-designated as Sec. 1467.14. Section
1467.14(a) clarifies what constitutes a transfer of land and the impact
of the transfer. In cases
[[Page 2327]]
where the transfer of land meets conditions described under Sec.
1467.4(c)(2), the State Conservationist must cancel the application;
however, the new landowner may re-apply so that a determination of
landowner eligibility may be made and properly documented. The land
eligibility, ranking, and other administrative determinations that
relate to the land will remain valid for the remainder of the funding
cycle. This revision is made to comply with the 7-year ownership
language added by the 2008 Act amendments. Language previously included
in the existing regulation under payments to landowners is revised and
moved to Sec. 1467.10(e).
Section 1467.15 Violations and Remedies
Section 1467.14 is re-designated as Sec. 1467.15 and is re-
structured to provide separate language for violations of easements,
30-year contracts, and restoration cost-share agreements consistent
with the statutory language. New language is also added to provide for
cost recovery of payments, plus interest, when agreements or contracts
are terminated.
Section 1467.16 Payments Not Subject to Claims
Section 1467.15 is re-designated as Sec. 1467.16 and the term
``contract'' is added to the list of payment types to reflect the
statutory change to include a 30-year contract option for acreage owned
by Indian Tribes.
Section 1467.17 Assignments
Section 1467.16 is re-designated as Sec. 1467.17.
Section 1467.18 Appeals
Section 1467.17 is re-designated as Sec. 1467.18. Section
1467.18(b) is revised to clarify that appeals procedures apply to
administrative actions such as determination of eligibility.
Section 1467.18(d) is added to further clarify that enforcement
actions taken by NRCS are not subject to review under administrative
appeal regulations because a landowner's activities related to easement
deed restrictions are subject to rights held by the United States, and
thus a landowner cannot be adversely affected in an administrative
sense by the enforcement of these Federal rights. This language is
consistent with the appeal regulations at 7 CFR part 614 and federal
real property law.
Section 1467.19 Scheme and Device
Section 1467.18 is re-designated as Sec. 1467.19 and revised at
Sec. 1467.19(b) to include 30-year contracts in the list of payment
types to reflect the statutory addition of the 30-year contract option
for acreage owned by Indian Tribes.
Section 1467.20 Market-Based Conservation Initiatives
Section 1467.20 is a new section. Section 1467.20(a) is added to
address the Secretary's new authority to accept and use contributions.
Section 2702 of the 2008 Act authorizes the Secretary to accept and use
contributions of non-Federal funds to support the purposes of the
program. The statutory language provides that these funds are available
to the Secretary without further appropriation and until expended, to
carry out the program.
Section 1467.20(b) is added to clarify that the NRCS does not
assert any interest in the generation of environmental credits such as
carbon, water quality, biodiversity, or wetlands preservation on land
enrolled in the program other than to ensure that activities performed
by the participant to obtain these credits are not contradictory to the
purposes of the program.
Section 2708, ``Compliance and Performance'', of the 2008 Act added
a paragraph to Section 1244(g) of the 1985 Act entitled,
``Administrative Requirements for Conservation Programs,'' which states
the following:
``(g) Compliance and performance.--For each conservation program
under Subtitle D, the Secretary shall develop procedures--
(1) To monitor compliance with program requirements;
(2) To measure program performance;
(3) To demonstrate whether long-term conservation benefits of the
program are being achieved;
(4) To track participation by crop and livestock type; and
(5) To coordinate activities described in this subsection with the
national conservation program authorized under section 5 of the Soil
and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).''
This new provision presents in one place the accountability
requirements placed on the Agency as it implements conservation
programs and reports on program results. The requirements apply to all
programs under Subtitle D, including the Wetlands Reserve program, the
Conservation Security Program, the Conservation Stewardship Program,
the Farm and Ranch Lands Protection Program, the Grassland Reserve
Program, the Environmental Quality Incentives Program (including the
Agricultural Water Enhancement Program), the Wildlife Habitat Incentive
Program, and the Chesapeake Bay Watershed initiative. These
requirements are not directly incorporated into these regulations,
which set out requirements for program participants. However, certain
provisions within these regulations relate to elements of Section
1244(g) of the 1985 Act and the Agency's accountability
responsibilities regarding program performance. NRCS is taking this
opportunity to describe existing procedures that relate to meeting the
requirements of Section 1244(g) of the 1985 Act, and Agency
expectations for improving its ability to report on each program's
performance and achievement of long-term conservation benefits. Also
included is reference to the sections of these regulations that apply
to program participants and that relate to the Agency accountability
requirements as outlined in Section 1244(g) of the 1985 Act.
Monitor compliance with program requirements. NRCS has established
application procedures to ensure that participants meet eligibility
requirements, and follow-up procedures to ensure that participants are
complying with the terms and conditions of their contractual
arrangement with the government and that the installed conservation
measures are operating as intended. These and related program
compliance evaluation policies are set forth in Agency guidance (440
CPM--519) (http://directives.sc.egov.usda.gov/).
The program requirements applicable to participants that relate to
compliance are set forth in these regulations in Sec. 1467.4,
``Program Requirements,'' Sec. 1467.10, ``Cost-Share payments,'' and
Sec. 1467.11 ``Easement and 30-year contract participation
requirements.'' These sections make clear the general program
eligibility requirements, participant obligations for implementing a
WRPO, and participant program obligations.
Measure program performance. Pursuant to the requirements of the
Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec.
1116) and guidance provided by OMB Circular A-11, NRCS has established
performance measures for its conservation programs. Program-funded
conservation activity is captured through automated field-level
business tools and the information is made publicly available at:
http://ias.sc.egov.usda.gov/PRSHOME/. Program performance also is
reported annually to Congress and the public through the annual
performance budget, annual accomplishments report and the USDA
Performance Accountability Report. Related performance
[[Page 2328]]
measurement and reporting policies are set forth in Agency guidance
(GM--340--401 and GM--340--403) (http://directives.sc.egov.usda.gov/).
The conservation actions undertaken by participants are the basis for
measuring program performance-specific actions are tracked and reported
annually, while the effects of those actions relate to whether the
long-term benefits of the program are being achieved. The program
requirements applicable to participants that relate to undertaking
conservation actions are set forth in these regulations in Sec.
1467.4, ``Program Requirements,'' Sec. 1467.10, ``Cost-Share
payments,'' and Sec. 1467.11 ``Easement and 30-year contract
participation requirements.'' These sections make clear participant
obligations for implementing, operating, and maintaining WRP-funded
conservation improvements, which in aggregate result in the program
performance that is reflected in Agency performance reports.
Demonstrate whether long-term conservation benefits of the program
are being achieved. Demonstrating the long-term natural resource
benefits achieved through conservation programs is subject to the
availability of needed data, the capacity and capability of modeling
approaches, and the external influences that affect actual natural
resource condition. While NRCS captures many measures of ``output''
data, such as acres of conservation practices, it is still in the
process of developing methods to quantify the contribution of those
outputs to environmental outcomes.
NRCS currently uses a mix of approaches to evaluate whether long-
term conservation benefits are being achieved through its programs.
Since 1982, NRCS has reported on certain natural resource status and
trends through the National Resources Inventory (NRI), which provides
statistically reliable, nationally consistent land cover/use and
related natural resource data. However, lacking has been a connection
between these data and specific conservation programs. In the future,
the interagency Conservation Effects Assessment Project (CEAP), which
has been underway since 2003, will provide nationally consistent
estimates of environmental effects resulting from conservation
practices and systems applied. CEAP results will be used in conjunction
with performance data gathered through Agency field-level business
tools to help produce estimates of environmental effects accomplished
through Agency programs, such as WRP. In 2006 a Blue Ribbon panel
evaluation of CEAP strongly endorsed the project's purpose, but
concluded ``CEAP must change direction'' to achieve its purposes. In
response, CEAP has focused on priorities identified by the Panel and
clarified that its purpose is to quantify the effects of conservation
practices applied on the landscape. Information regarding CEAP,
including reviews and current status is available at http://
www.nrcs.usda.gov/technical/NRI/ceap/. Since 2004 and the initial
establishment of long-term performance measures by program, NRCS has
been estimating and reporting progress toward long-term program goals.
Natural resource inventory and assessment, and performance measurement
and reporting policies set forth in Agency guidance (GM--290--400; GM--
340--401; GM--340--403) (http://directives.sc.egov.usda.gov/).
Demonstrating the long-term conservation benefits of conservation
programs is an Agency responsibility. Through CEAP, NRCS is in the
process of evaluating how these long-term benefits can be achieved
through the conservation practices and systems applied by participants
under the program. The program requirements applicable to participants
that relate to producing long-term conservation benefits are described
previously under ``measuring program performance,'' i.e., Sec. 1467.4,
``Program Requirements,'' Sec. 1467.10, ``Cost-Share payments,'' and
Sec. 1467.11 ``Easement and 30-year contract participation
requirements.''
Track participation by crop and livestock type. NRCS' automated
field-level business tools capture participant, land, and operation
information. This information is aggregated in the National
Conservation Planning database and is used in a variety of program
reports. Additional reports will be developed to provide more detailed
information on program participation to meet congressional needs. These
and related program management procedures supporting program
implementation are set forth in Agency guidance (440 CPM 519).
The program requirements applicable to participants that relate to
tracking participation by crop and livestock type are put forth in
these regulations in Sec. 1467.4, ``Program Requirements,'' which
makes clear program eligibility requirements, including the requirement
to provide NRCS the information necessary to implement WRP.
Coordinate these actions with the national conservation program
authorized under the Soil and Water Resources Conservation Act (RCA).
The 2008 Act reauthorized and expanded on a number of elements of the
RCA related to evaluating program performance and conservation
benefits. Specifically, the 2008 Farm Bill added a provision stating,
``Appraisal and inventory of resources, assessment and inventory of
conservation needs, evaluation of the effects of conservation
practices, and analyses of alternative approaches to existing
conservation programs are basic to effective soil, water, and related
natural resources conservation.''
The program, performance, and natural resource and effects data
described previously will serve as a foundation for the next RCA, which
will also identify and fill, to the extent possible, data and
information gaps. Policy and procedures related to the RCA are set
forth in Agency guidance (GM--290--400; M--440--525; GM--130--402)
(http://directives.sc.egov.usda.gov/).
The coordination of the previously described components with the
RCA is an Agency responsibility and is not reflected in these
regulations. However, it is likely that results from the RCA process
will result in modifications to the program and performance data
collected, to the systems used to acquire data and information, and
potentially to the program itself. Thus, as the Secretary proceeds to
implement the RCA in accordance with the statute, the approaches and
processes developed will improve existing program performance
measurement and outcome reporting capability and provide the foundation
for improved implementation of the program performance requirements of
Section 1244(g) of the 1985 Act.
List of Subjects in 7 CFR Part 1467
Administrative practice and procedure, Agriculture, Soil
conservation, Wetlands, Wetland protection.
0
For the reasons stated in the preamble, the Commodity Credit
Corporation revises Part 1467 of Title 7 of the Code of Federal
Regulations to read as follows:
PART 1467--WETLANDS RESERVE PROGRAM
Sec.
1467.1 Applicability.
1467.2 Administration.
1467.3 Definitions.
1467.4 Program requirements.
1467.5 Application procedures.
1467.6 Establishing priority for enrollment of properties in WRP.
1467.7 Enrollment process.
1467.8 Compensation for easements and 30-year contracts.
1467.9 Wetlands Reserve Enhancement Program.
[[Page 2329]]
1467.10 Cost-share payments.
1467.11 Easement participation requirements.
1467.12 The WRPO development.
1467.13 Modifications.
1467.14 Transfer of land.
1467.15 Violations and remedies.
1467.16 Payments not subject to claims.
1467.17 Assignments.
1467.18 Appeals.
1467.19 Scheme and device.
1467.20 Market-based conservation initiatives.
Authority: 16 U.S.C. 3837 et seq.
Sec. 1467.1 Applicability.
(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.
(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, and the Commonwealth of
the Northern Mariana Islands.
Sec. 1467.2 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 that is required by applicable law.
(c) The State Conservationist will seek advice from the State
Technical Committee on the development of the geographic area rate caps
of compensation for an easement, a priority ranking process, and
related policy matters.
(d) NRCS may delegate at any time easement management, monitoring,
and enforcement responsibilities to other Federal or State agencies
that have the appropriate authority, expertise, and technical and
financial resources, as determined by NRCS to carry out such delegated
responsibilities.
(e) NRCS may enter into cooperative agreements with Federal or
State agencies, conservation districts, and private conservation
organizations to assist NRCS with program implementation, including the
provision of technical assistance.
(f) NRCS shall consult with the U.S. Department of the Interior's
Fish and Wildlife Service (FWS) at the local level in determinations of
land eligibility and as appropriate throughout the program
implementation process. NRCS may consult Federal or State agencies,
conservation districts, or other organizations in program
administration. No determination by these agencies or organizations
shall compel NRCS to take any action which NRCS determines will not
serve the purposes of the program established by this part.
(g) The Chief may allocate funds for purposes related to:
Encouraging enrollment by historically underserved producers as
authorized by 16 U.S.C. 3844; special pilot programs for wetland
management and monitoring; acquisition of wetland easements with
emergency funding; cooperative agreements with other Federal or State
agencies for program implementation; coordination of easement
enrollment across State boundaries; coordination of the development of
conservation plans; or, for other goals of the WRP found in this part.
NRCS may designate areas as conservation priority areas where
environmental concerns are especially pronounced and to assist
landowners in meeting nonpoint source pollution requirements and other
conservation needs.
Sec. 1467.3 Definitions.
The following definitions are applicable to this part:
30-year Contract means a contract that is for a duration of 30
years and is limited to acreage owned by Indian Tribes.
Acreage Owned by Indian Tribes means lands held in private
ownership by an Indian Tribe or individual Tribal member and lands held
in trust by a native corporation, Tribe or the Bureau of Indian Affairs
(BIA).
Activity means an action other than a conservation practice that is
included in the WRPO or restoration cost-share agreement, as
applicable, and that has the effect of alleviating problems or
improving treatment of the resources, including ensuring proper
management or maintenance of the wetland functions and values restored,
protected, or enhanced through an easement, contract, or restoration
cost-share agreement.
Agreement means the document that specifies the obligations and
rights of NRCS and any person or legal entity who is participating in
the program.
Agricultural commodity means any agricultural commodity planted and
produced in a State by annual tilling of the soil, including tilling by
one-trip planters; or sugarcane planted and produced in a State.
Beginning Farmer or Rancher means an individual or legal entity who
has not operated a farm or ranch, or who has operated a farm or ranch
for not more than 10 consecutive years. This requirement applies to all
members of a legal entity, and who will materially and substantially
participate in the operation of the farm or ranch. In the case of an
individual, individually or with the immediate family, material and
substantial participation requires that the individual provide
substantial day-to-day labor and management of the farm or ranch,
consistent with the practices in the county or State where the farm is
located. In the case of a legal entity or joint operation, material and
substantial participation requires that each of the members provide
some amount of the management, or labor and management necessary for
day-to-day activities, such that if each of the members did not provide
these inputs, operation of the farm or ranch would be seriously
impaired.
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 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 means any district or unit of State or local
government formed under State or territorial law for the express
purpose of developing and carrying out a local soil and water
conservation program. Such district or unit of government may be
referred to as a ``conservation district,'' ``soil conservation
district,'' ``soil and water conservation district,'' ``resource
conservation district,'' ``natural resource district,'' ``land
conservation committee,'' or a similar name.
Conservation practice means a specified treatment, such as a
vegetative, structural, or land management practice, that is planned
and applied according to NRCS standards and specifications.
Conservation Reserve Program (CRP) means the program administered
by the Commodity Credit Corporation pursuant to 16 U.S.C. 3831-3836.
Contract means the legal document that specifies the obligations
and rights of NRCS and any person or legal entity accepted to
participate in the program. A WRP contract is an agreement for the
transfer of assistance from NRCS to the participant for conducting the
prescribed program implementation actions.
[[Page 2330]]
Converted wetland means a wetland that has been drained, dredged,
filled, leveled, or otherwise manipulated (including any activity that
results in impairing or reducing the flow, circulation, or reach of
water) for the purpose, or to have the effect of, making the production
of an agricultural commodity possible if such production would not have
been possible but for such action; and before such action such land was
wetland; and such land was neither highly erodible land nor highly
erodible cropland.
Cost-share payment means the payment made by NRCS to a participant
to carry out conservation practices and to achieve the protection of
wetland functions and values, including necessary activities, as set
forth in the Wetlands Reserve Plan of Operations (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, or the
consideration paid to an Indian Tribe or tribal members for entering
into 30-year contracts.
Easement Restoration Agreement means the agreement used to
implement the Wetland Restoration Plan of Operations for projects
enrolled through the permanent easement, 30-year easement, or 30-year
contract enrollment options.
Farm Service Agency (FSA) is an agency of the United States
Department of Agriculture.
Fish and Wildlife Service (FWS) is an agency of the United States
Department of the Interior.
Historically Underserved Producer means a beginning, limited
resource, or socially disadvantaged farmer or rancher.
Indian Tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C.
1601 et seq.), which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
Landowner means a person or legal entity having legal ownership of
eligible land. Landowner may include all forms of collective ownership
including joint tenants, tenants in common, and life tenants. The term
landowner includes trust holders of acreage owned by Indian Tribes.
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.
Legal entity means an entity that is created under Federal or State
law and that owns land or an agricultural commodity; or produces an
agricultural commodity.
Limited Resource Farmer or Rancher means a person with direct or
indirect gross farm sales not more than $100,000 in each of the
previous two years (to be increased to adjust for inflation using
Prices Paid by Farmer Index as compiled by National Agricultural
Statistical Service (NASS)), and who has a total household income at or
below the national poverty level for a family of four, or less than 50
percent of county median household income in each of the previous two
years (to be determined annually using U.S. Department of Commerce
data).
Maintenance means work performed to keep the enrolled area
functioning for program purposes for the duration of the enrollment
period. Maintenance includes actions and work to manage, prevent
deterioration, repair damage, or replace conservation practices on
enrolled lands, as approved by NRCS.
Natural Resources Conservation Service (NRCS) is an agency of the
United States Department of Agriculture, including when NRCS carries
out program implementation using the funds, facilities, or authorities
of the Commodity Credit Corporation (CCC).
Option agreement to purchase means the legal document that is the
equivalent of a real estate option contract for purchasing land. The
landowner signs the option agreement to purchase, which is
authorization for NRCS to proceed with the easement acquisition
process, and to incur costs for surveys, where applicable, title
clearance and closing procedures on the easement. The option becomes a
contract for sale and obligates CCC funding after it is executed by
NRCS and transmitted to the landowner.
Participant means a person or legal entity who has been accepted
into the program and who is receiving payment or who is responsible for
implementing the terms and conditions of an option to purchase
agreement, 30-year contract, or restoration cost-share agreement, and
the associated WRPO.
Permanent easement means an easement that lasts in perpetuity.
Person means a natural person, a legal entity, or an Indian Tribe,
but does not include governments or their political subdivisions.
Prairie Pothole Region means the counties designated as part of the
Prairie Pothole National Priority Area for the Conservation Reserve
Program (CRP) as of June 18, 2008.
Private land means land that is not owned by a governmental entity,
and includes acreage owned by Indian Tribes, as defined in this Part.
Restoration Cost-Share Agreement means the legal document that
describes the rights and obligations of participants who have been
accepted to participate in WRP restoration cost-share enrollment option
that is used to implement conservation practices and activities to
protect, restore, or enhance wetlands values and functions to achieve
the purposes of the program. The restoration cost-share agreement is an
agreement between NRCS and the participant to share in the costs of
implementing the Wetland Restoration Plan of Operations.
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
vegetative communities that are reflective of soil conditions normally
wetter than adjacent soils, and generally provide a corridor for the
movement of wildlife.
Socially disadvantaged farmer or rancher means a farmer or rancher
who has been subjected to racial or ethnic prejudices because of their
identity as a member of a group without regard to their individual
qualities.
State Technical Committee means a committee established by the
Secretary of the United States Department of Agriculture (USDA) in a
State pursuant to 16 U.S.C. 3861.
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) Supports a prevalence of such vegetation under normal
circumstances.
Wetland functions and values means the hydrological and biological
[[Page 2331]]
characteristics of wetlands and the socioeconomic value 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 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 and does not involve more than 30
percent of the wetland restoration area.
Wetlands Reserve Plan of Operations (WRPO) means the conservation
plan that identifies how the wetland functions and values will be
restored, improved, and protected and which is approved by NRCS.
Sec. 1467.4 Program requirements.
(a) General. (1) Under the WRP, NRCS may purchase conservation
easements from, or enter into 30-year contracts or restoration cost-
share agreements with, eligible landowners who voluntarily cooperate to
restore, protect, or enhance wetlands on eligible private and Tribal
lands. The 30-year contract enrollment option is only available to
acreage owned by Indian Tribes.
(2) To participate in WRP, a landowner must agree to the
implementation of a 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. NRCS may provide cost-share assistance through a
restoration cost-share agreement or an easement restoration agreement
for the conservation practices and 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, NRCS, or other 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 FSA, may be enrolled
in the CRP and the WRP, and no more than 10 percent of the total
cropland in the county may be subject to an easement acquired through
the WRP.
(2) NRCS and FSA shall concur before a waiver of the 25 percent
limit of this paragraph can be approved for an easement proposed for
enrollment in the WRP. Such a waiver will only be approved if the
waiver will not adversely affect the local economy, and operators in
the county are having difficulties complying with the conservation
plans implemented under 16 U.S.C. 3812.
(c) Landowner eligibility. To be eligible to enroll in the WRP, a
person, legal entity, or Indian Tribe must be in compliance with the
highly erodible land and wetland conservation provisions in 7 CFR part
12. Persons or legal entities must be in compliance with the Adjusted
Gross Income Limitation provisions at Subpart G of 7 CFR part 1400,
and:
(1) Be the landowner of eligible land for which enrollment is
sought;
(2) For easement applications, have been the landowner of such land
for the 7-year period prior to the time the land is determined eligible
for enrollment unless it is determined by the State Conservationist
that:
(i) The land was acquired by will or succession as a result of the
death of the previous landowner;
(ii) The ownership change occurred due to foreclosure on the land
and the owner of the land immediately before the foreclosure exercises
a right of redemption from the mortgage holder in accordance with State
law; or
(iii) The land was acquired under circumstances that give adequate
assurances, as determined by NRCS, that such land was not acquired for
the purposes of placing it in the program, such as demonstration of
status as a beginning farmer or rancher.
(3) Agree to provide such information to 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) When a parcel of land that has been accepted for enrollment
into the WRP is sold or transferred prior to the easement being
perfected, the application or option agreement to purchase will be
cancelled and acres will be removed from enrollment. If the new
landowner wishes to continue enrollment, a new application must be
filed so that all eligibility criteria may be examined and documented.
(e) Land eligibility. (1) Only private land or land owned by Indian
Tribes may be considered for enrollment into WRP.
(2) 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 the cost of the restoration, protection, enhancement,
maintenance, and management.
(3) Land shall only be considered eligible for enrollment in the
WRP if NRCS determines, in consultation with the FWS, that:
(i) The enrollment of such land maximizes wildlife benefits and
wetland values and functions;
(ii) Such land is--
(A) Farmed wetland or converted wetland, together with adjacent
lands that are functionally dependent on the wetlands; or
(B) Cropland or grassland that was used for agricultural production
prior to flooding from the natural overflow of a closed basin lake or
pothole, together with the adjacent land, where practicable, that is
functionally dependent on the cropland or grassland; and
(iii) The likelihood of the successful restoration of such land and
the resultant wetland values merit inclusion of such land in the
program, taking into consideration the cost of such restoration.
(4) Land may be considered farmed wetland or converted wetland
under paragraph (3)(ii)(A) of this section if such land is identified
by NRCS 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; or
(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.
(5) Land under paragraph (e)(3)(ii)(B) of this section may be
considered for enrollment into 30-year easements if it meets the
criteria under paragraph (e)(3) of this section, it is located in the
Prairie Pothole Region as defined under
[[Page 2332]]
Sec. 1467.3 of this part, and the size of the parcel offered for
enrollment is a minimum of 20 contiguous acres. Such land meets the
requirement of likelihood of successful restoration only if the soils
are hydric and the depth of water is 6.5 feet or less at the time of
enrollment.
(6) If land offered for enrollment is determined eligible under
paragraph (e)(3) and (e)(5) of this section, then NRCS may also enroll
land adjacent or contiguous to such eligible land together with the
eligible land, if such land maximizes wildlife benefits and:
(i) Is farmed wetland and adjoining lands enrolled in CRP, with the
highest wetland functions and values, and is likely to return to
production after it leaves CRP;
(ii) Is a riparian area along streams or other waterways that links
or, after restoring the riparian area, will link wetlands which are
protected by an easement or other device or circumstance that achieves
the same objectives as an easement; or
(iii) Land adjacent to the eligible land that would contribute
significantly to wetland functions and values, such as buffer areas,
wetland creations, non-cropped natural wetlands, and restored wetlands,
but not more than the State Conservationist, in consultation with the
State Technical Committee, determines is necessary for such
contribution.
(7) 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 program purposes and otherwise promote and enhance
program objectives, as determined by NRCS.
(f) Enrollment of CRP lands. Land subject to an existing CRP
contract may be enrolled in the WRP only if the land and landowner meet
the requirements of this part, and the enrollment is requested by the
landowner and agreed to by NRCS. To enroll in WRP, the CRP contract for
the property must be terminated or otherwise modified subject to such
terms and conditions as are mutually agreed upon by FSA and the
landowner.
(g) Ineligible land. The following land is not eligible for
enrollment in the WRP:
(1) Converted wetlands if the conversion was commenced after
December 23, 1985;
(2) Land that contains timber stands established under a CRP
contract or pastureland established to trees under a CRP contract;
(3) Lands owned by an agency of the United States, other than held
in trust for Indian Tribes;
(4) Lands owned in fee title by a State, including an agency or a
subdivision of a State, or a unit of local government;
(5) Land subject to an easement or deed restriction which, as
determined by NRCS, provides similar restoration and protection of
wetland functions and values as would be provided by enrollment in WRP;
and
(6) Lands where implementation of restoration practices would be
undermined due to on-site or off-site conditions, such as risk of
hazardous substances either on-site or off-site, proposed or existing
rights of way, either on-site or off-site, for infrastructure
development, or adjacent land uses, such as airports, that would either
impede complete restoration or prevent wetland functions and values
from being fully restored.
Sec. 1467.5 Application procedures.
(a) Application for participation. To apply for enrollment, a
landowner must submit an Application for Participation in the WRP.
(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 NRCS to evaluate
applications. 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 NRCS.
Sec. 1467.6 Establishing priority for enrollment of properties in
WRP.
(a) When evaluating easement, 30-year contract, or restoration
cost-share agreement offers from landowners, the NRCS, with advice from
the State Technical Committee, may consider:
(1) The conservation benefits of obtaining an easement, or other
interest in the land;
(2) The cost effectiveness of each easement or other interest in
eligible land, so as to maximize the environmental benefits per dollar
expended;
(3) Whether the landowner or another person is offering to
contribute financially to the cost of the easement or other interest in
the land to leverage Federal funds;
(4) The extent to which the purposes of the easement program would
be achieved on the land;
(5) The productivity of the land; and
(6) The on-farm and off-farm environmental threats if the land is
used for the production of agricultural commodities.
(b) To the extent practicable, taking into consideration costs and
future agricultural and food needs, NRCS shall give priority to:
(1) Obtaining permanent easements over shorter term easements; and
(2) Acquiring easements based on the value of the easement for
protecting and enhancing habitat for migratory birds and other
wildlife, in consultation with FWS.
(c) NRCS, in consultation with the State Technical Committee, may
place higher priority on certain geographic regions of the State where
restoration of wetlands may better achieve State and regional goals and
objectives.
(d) Notwithstanding any limitation of this part, the State
Conservationist may, at any time, exclude enrollment of 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 or ineligible to participate. The
State Conservationist may coordinate with other Federal, State, and
nonprofit organizations to encourage the restoration of wetlands on
adjacent ineligible lands, especially in priority geographic areas.
(e)(1) The Chief will conduct an assessment during fiscal year 2008
and each subsequent fiscal year for the purpose of determining the
interest and allocations for the Prairie Pothole Region to enroll land
determined eligible under Sec. 1467.4(d)(5) of this part into 30-year
easements. Annually, the Chief will provide specific instructions for
the assessment in writing to the applicable State Conservationists.
(2) The Chief will make an adjustment to the allocation for an
applicable State for a fiscal year, based on the results of the
assessment conducted under paragraph (e)(1) of this section for the
State during the previous fiscal year.
Sec. 1467.7 Enrollment process.
(a) Tentative Selection. Based on the priority ranking, NRCS will
notify an affected landowner of tentative acceptance into the program.
(b) Effect of notice of tentative selection. The notice of
tentative acceptance into the program does not bind NRCS or the United
States to enroll the proposed project in WRP, nor does it bind the
landowner to continue with enrollment in the program. The notice
informs the landowner of NRCS' intent to continue the enrollment
process on
[[Page 2333]]
their land unless otherwise notified by the landowner.
(c) Acceptance and effect of offer of enrollment.
(1) Easement. For applications requesting enrollment through an
easement, an option agreement to purchase will be presented by NRCS to
the landowner, which will describe the easement area; the easement
compensation amount; the easement terms and conditions; the landowner's
obligations if the land is sold before restoration to an ineligible
landowner; and other terms and conditions for participation that may be
required by NRCS as appropriate. The landowner accepts enrollment in
the WRP by signing the option agreement to purchase. NRCS will continue
with easement acquisition activities after the property has been
enrolled.
(2) Restoration cost-share agreement. For applications requesting
enrollment through the restoration cost-share agreement option, a
restoration cost-share agreement shall be presented by NRCS to the
landowner, which will describe the enrolled area, the agreement terms
and conditions, and other terms and conditions for participation that
may be required by NRCS as appropriate. The landowner accepts
enrollment in the WRP by signing the restoration cost-share agreement.
NRCS will proceed with implementation of the WRPO after the property
has been enrolled.
(3) 30-year contract. For applications requesting enrollment
through the 30-year contract option, a 30-year contract shall be
presented by NRCS to the landowner, which will describe the contract
area, the contract terms and conditions, and other terms and conditions
for participation that may be required by NRCS as appropriate. The
landowner accepts enrollment in the WRP by signing the 30-year
contract. NRCS will proceed with implementation of the WRPO after the
property has been enrolled.
(d) Withdrawal of offer of enrollment Prior to execution of the
easement deed by the United States and the landowner, NRCS may withdraw
the land from enrollment at any time due to lack of availability of
funds, inability to clear title, sale of the land, risk of hazardous
substance contamination, or other reasons. The offer of enrollment to
the landowner shall be void if not executed by the landowner within the
time specified.
Sec. 1467.8 Compensation for easements and 30-year contracts.
(a) Determination of easement payment rates. (1) Compensation for
an easement under this part shall be made in cash in such amount as is
agreed to and specified in the option agreement to purchase or 30-year
contract.
(2) Payments for non-permanent easements or 30-year contracts shall
be not more than 75 percent of that which would have been paid for a
permanent easement as determined by the methods listed in paragraph
(a)(3) of this section.
(3) NRCS shall pay as compensation the lowest of the following:
(i) The fair market value of the land using the Uniform Standards
for Professional Appraisal Practices, or based on an area-wide market
analysis or survey;
(ii) The geographic area rate cap determined under paragraph (a)(4)
of this section; or
(iii) The landowner offer.
(4) The State Conservationist, in consultation with the State
Technical Committee, shall establish one or more geographic area rate
caps within a state. The State Conservationist shall submit geographic
area rate caps and supporting documentation to the Chief for approval.
Each State Conservationist will determine the geographic area rate cap
using the best information which is readily available in that State.
Such information may include: Soil types, type(s) of crops capable of
being grown, production history, location, real estate market values,
and tax rates and assessments.
(b) Acceptance of offered easement compensation. (1) NRCS will not
acquire any easement unless the landowner accepts the amount of the
easement payment offered by 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)(i) For easements or 30-year contracts valued at $500,000 or
less, NRCS will provide compensation in up to 30 annual payments, as
requested by the participant, as specified in the option agreement to
purchase or 30-year contract between NRCS and the participant.
(ii) For easements or 30-year contracts valued at more than
$500,000, the Secretary may provide compensation in at least 5, but not
more than 30 annual payments. NRCS may provide compensation in a single
payment for such easements or 30-year contracts when, as determined by
the Chief, it would further the purposes of the program. The applicable
payment schedule will be specified in the option agreement to purchase,
warranty easement deed, or 30-year contract between NRCS and the
participant.
(c) Reimbursement of a landowner's expenses. For completed easement
conveyances, NRCS will reimburse participants for their fair and
reasonable expenses, if any, incurred for legal boundary surveys and
other related costs, as determined by NRCS. The State Conservationist,
in consultation with the State Technical Committee, may establish
maximum payments to reimburse participants for reasonable expenses, if
incurred.
(d) Tax implications of easement conveyances. Subject to applicable
regulations of the Internal Revenue Service, a participant 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 participant. NRCS disclaims
any representations concerning the tax implications of any easement or
cost-share transaction.
(e) Per acre basis calculations. 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. 1467.9 Wetlands Reserve Enhancement Program.
(a) Wetlands Reserve Enhancement Program (WREP). (1) The purpose of
WREP is to target and leverage resources to address high priority
wetlands protection, restoration, and enhancement objectives through
agreements with States (including a political subdivision or agency of
a State), nongovernmental organizations, and Indian Tribes.
(2) Funding for WREP agreements will be announced in the Federal
Register.
(i) The announcement will provide details on the priorities for
funding, required level of partner matching funds, ranking criteria,
level of available funding, and additional criteria as determined by
the Chief.
(ii) The Chief will determine the funding level for WREP on an
annual basis. Funds for WREP are derived from funds available for WRP.
(3) Proposals will be submitted to the State Conservationist of the
State in which the majority of the project area resides.
(i) State Conservationists will evaluate proposals based on the
ranking criteria established in the announcement and provide proposals
recommended for funding to the Chief.
(ii) The Chief will evaluate proposals recommended for funding and
make final funding selections, in accordance
[[Page 2334]]
with ranking factors identified in the announcement.
(4) Selected proposals and associated funding will be provided to
the State Conservationist to enter into WREP agreements with the
eligible partner to carry out the project.
(b) Reserved Rights Pilot. (1) The Chief shall carry out a reserved
rights pilot subject to the requirements established in this part.
(2) Under the reserved rights pilot, a landowner may reserve
grazing rights in the warranty easement deed or 30-year contract, if
the State Conservationist determines that the reservation and use of
the grazing rights:
(i) Is compatible with the land subject to the easement or 30-year
contract; and
(ii) Is consistent with the long-term wetland protection and
enhancement goals for which the easement or 30-year contract was
established; and
(iii) Complies with a WRPO developed with NRCS.
(3) The State Conservationist will provide public notice of the
availability of the reserved rights pilot and the reserved rights
template deed or 30-year contract, approved by the Chief, to be used in
the pilot.
(4) Compensation for easements or 30-year contracts entered into
under the reserved rights pilot will be based on the method described
in Sec. 1467.8 with the following exceptions:
(i) Section 1467.8(a)(3)(i) is adjusted to reduce the fair market
value of the land by an amount equal to the value of the retained
grazing rights as determined by a Uniform Standards for Professional
Appraisal Practices appraisal or a market survey; and
(ii) Section 1467.8(a)(3)(ii) is adjusted to reduce the geographic
area rate cap determined as described in Sec. 1467.8(a)(4) by an
amount equal to the value of the retained grazing rights.
Sec. 1467.10 Cost-share payments.
(a) NRCS may share the cost with participants of implementing the
WRPO on the enrolled land. 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 conservation practices or
activities specified in the WRPO:
(1) On enrolled land subject to a permanent easement, NRCS will
offer to pay at least 75 percent but not more than 100 percent of such
costs; and
(2) On enrolled land subject to a non-permanent easement, 30-year
contract, or restoration cost-share agreement, NRCS will offer to pay
at least 50 percent but not more than 75 percent of such costs.
(3) The total amount of payments that a person or legal entity may
receive, directly or indirectly, for one or more restoration cost-share
agreements, for any year, may not exceed $50,000.
(b) Cost-share payments may be made only upon a determination by
NRCS that an eligible conservation practice or component of the
conservation practice has been implemented in compliance with
appropriate NRCS standards and specifications; or an eligible activity
has been implemented in compliance with the appropriate requirements
detailed in the WRPO. Identified conservation practices or activities
may be implemented by the participant, NRCS, or other NRCS designee.
(c) Cost-share payments may be made for replacement of an eligible
conservation practice, if NRCS determines that the practice is still
needed and that the failure of the original conservation practice was
due to reasons beyond the control of the participant.
(d) A participant may seek additional cost-share assistance from
other public or private organizations as long as the conservation
practices or activities funded are in compliance with this part. In no
event shall the participant receive an amount that exceeds 100 percent
of the total actual cost of the restoration.
(e)(1) If land subject to an easement or 30-year contract is sold,
the participant with the contractual obligation with NRCS will be
responsible for implementation of any remaining items identified in the
WRPO, unless the new landowner is an eligible participant, agrees to a
transfer of the WRPO, and the voluntary transfer is approved in advance
by NRCS. Cost-share payments will be made to the new eligible landowner
upon presentation of an assignment of rights or other evidence that
title has passed, proof of eligibility, and the new owner completes
implementation of the WRPO.
(2) If the new landowner is not eligible for participation in WRP,
the participant with the contractual obligation with NRCS will be
responsible for implementation of any remaining items identified in the
WRPO unless the new landowner agrees to implement the WRPO without NRCS
assistance. The new landowner will be responsible for the
implementation of conservation practices or activities necessary for
maintenance of the easement functions and values as determined by NRCS.
The contract between NRCS and the participant with the contractual
obligation with NRCS will specify that NRCS will seek a refund of
easement or 30-year contract compensation and restoration payments from
the participant with the contractual obligation with NRCS, unless the
new landowner agrees to the transfer and completion of the WRPO with no
NRCS assistance or a transfer of the restoration contract occurs as set
forth above. In cases where payment recoupment occurs, the WRP easement
remains in full force and effect.
(3) If land subject to a restoration cost-share agreement is sold
prior to the completion of the restoration cost-share agreement and the
new landowner is not eligible for participation in WRP or unwilling to
complete implementation of the restoration cost-share agreement without
NRCS assistance, the agreement will be cancelled, and the acres will be
removed from enrollment. NRCS will seek refund of the restoration
payments from the participant with the contractual obligation with
NRCS.
(4) If land subject to a restoration cost-share agreement is sold
prior to the expiration of the agreement and the new landowner is an
eligible participant, the new landowner may agree to the transfer of
the agreement and to completion of the agreement with NRCS assistance.
If the new eligible landowner refuses to accept the transfer, the
participant with the contractual obligation with NRCS must complete the
implementation of the WRPO without NRCS assistance or the agreement
will be cancelled and the acres removed from enrollment. NRCS will seek
refund of the restoration payments from the participant with the
contractual obligation with NRCS.
Sec. 1467.11 Easement and 30-year contract participation
requirements.
(a) Easement requirements. (1) To enroll land in WRP through the
permanent or non-permanent easement option, 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.
(2) For the duration of its term, the easement shall require, at a
minimum, that the participant, and the participant's heirs, successors
and assigns, shall, consistent with the terms of this part, cooperate
in the restoration, protection, enhancement, maintenance, and
management of the land in accordance with the warranty easement deed
and with the terms of the WRPO. In addition, the easement shall grant
to the United States, through NRCS:
[[Page 2335]]
(i) A right of access to the easement area;
(ii) 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;
(iii) All rights, title and interest in the easement area; and
(iv) The right to ensure restoration, protection, enhancement,
maintenance, and management activities on the easement area.
(3) The participant shall convey title to the easement in a manner
that is acceptable to NRCS. The participant shall warrant that the
easement granted to the United States is superior to the rights of all
others, except for exceptions to the title that are deemed acceptable
by NRCS.
(4) The participant shall:
(i) Comply with the terms of the easement;
(ii) Comply with all terms and conditions of any associated
contract or agreement;
(iii) 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 FSA;
(iv) 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;
(v) Have the option to enter into an agreement with governmental or
private organizations to assist in carrying out any participant
responsibilities on the easement area; and
(vi) Agree that each person or legal entity that 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.
(5) For all lands enrolled in the WRP, NRCS shall develop a WRPO.
The WRPO and any subsequent revisions will be signed by the NRCS and
the participant to acknowledge discussion and receipt of the WRPO.
(b) 30-year contract requirements. (1) To enroll land in WRP
through the 30-year contract option, a landowner shall enter into a
contract with NRCS. The contract shall require that the enrolled area
be maintained in accordance with WRP goals and objectives for the
duration of the contract, including the restoration, protection,
enhancement, maintenance, and management of wetland and other land
functions and values.
(2) For the 30-year duration, the contract shall require, at a
minimum, that the participant, and the participant's heirs, successors
and assigns, shall, consistent with the terms of this part, cooperate
in the restoration, protection, enhancement, maintenance, and
management of the land in accordance with the contract and with the
terms of the WRPO. In addition, the contract shall grant to NRCS:
(i) A right of access to the contract area;
(ii) The right to permit compatible uses of the contract area,
including such activities as a traditional Tribal use of the land,
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 contract was
established; and
(iii) The right to ensure restoration, protection, enhancement,
maintenance, and management activities on the enrolled area.
(3) The participant shall:
(i) Comply with the terms of the contract;
(ii) Comply with all terms and conditions of any associated
agreement;
(iii) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the enrolled area in accordance with the
terms of the contract and related agreements;
(iv) Have the option to enter into an agreement with governmental
or private organizations to assist in carrying out any participant
responsibilities on the enrolled area;
(v) Agree that each person or legal entity that is subject to the
contract shall be jointly and severally responsible for compliance with
the contract 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 contract or the provisions of this part.
(4) For all lands enrolled in the WRP, NRCS shall develop a WRPO.
The WRPO and any subsequent revisions will be signed by the NRCS and
the participant to acknowledge discussion and receipt of the WRPO.
Sec. 1467.12 The WRPO development.
(a) The development of the WRPO will be made through the local NRCS
representative, in consultation with the State Technical Committee,
with consideration of site-specific technical input from FWS and the
Conservation District.
(b) The WRPO will specify the manner in which the enrolled land
shall be restored, protected, enhanced, maintained, and managed to
accomplish the goals of the program. The WRPO will be developed to
ensure that cost-effective restoration and maximization of wildlife
benefits and wetland functions and values will result. Specifically,
the WRPO will consider and address, to the extent practicable, the on-
site alternations and the off-site watershed conditions that adversely
impact the hydrology and associated wildlife and wetland functions and
values.
Sec. 1467.13 Modifications.
(a) Easements. (1) After an easement has been recorded, no
modification will be made in the easement except by mutual agreement
with the Chief and the participant. The Chief will consult with FWS 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 or when
adverse impacts will be mitigated by enrollment and restoration of
other lands that provide greater wetland functions and values at no
additional cost to the government.
(4) Modifications must result in equal or greater environmental and
economic values to the United States and address a compelling public
need, as determined by the Chief.
(b) WRPO. Insofar as is consistent with the easement and applicable
law, the State Conservationist may approve modifications to the WRPO
that do not affect provisions of the easement in consultation with the
participant and with consideration of site specific technical input
from the FWS and the Conservation District. Any WRPO modification must
meet WRP regulations and program objectives, comply with the definition
of wetland restoration as defined in Sec. 1467.3, must result in equal
or greater wildlife benefits, wetland functions and values,
[[Page 2336]]
and ecological and economic values to the United States.
Sec. 1467.14 Transfer of land.
(a) Offers voided. Any transfer of the property prior to the
enrollment of the easement, 30-year contract, or restoration cost-share
agreement contract, including the landowner entering into a contract or
purchase agreement to sell the land subject to offer, shall void the
offer of enrollment.
(b) Payments to landowners. For easements with multiple annual
payments, any remaining easement payments will be made to the original
participant unless NRCS receives an assignment of proceeds.
(c) Claims to payments. With respect to any and all payments owed
to participants, NRCS shall bear no responsibility for any full
payments or partial distributions of funds between the original
participant and the participant's successor. In the event of a dispute
or claim on the distribution of cost-share payments, NRCS may withhold
payments without the accrual of interest pending an agreement or
adjudication on the rights to the funds.
Sec. 1467.15 Violations and remedies.
(a) Easement violations. (1) In the event of a violation of the
easement, 30-year contract, or any restoration cost-share agreement
involving the participant, the participant 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 determines is necessary to correct the violation at the
landowner's expense.
(2) Notwithstanding paragraph (a)(1) of this section, 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 NRCS when such actions are deemed necessary to protect
important wetland functions and values or other rights of the United
States under the easement. The participant shall be liable for any
costs incurred by the United States as a result of the participant's
negligence or failure to comply with easement or contractual
obligations.
(3) At any time there is a material breach of the easement
covenants or any associated agreement, the easement shall remain in
force and NRCS may withhold or require the refund of any easement and
cost-share payments owed or paid to participants. Such withheld or
refunded 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. This remedy is in addition to any and
all legal or equitable remedies available to the United States under
applicable Federal or State law.
(4) 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.
(b) 30-year Contract and Restoration Cost-Share Agreement
violations. (1) If the NRCS determines that a participant is in
violation of the terms of a 30-year contract, or restoration cost-share
agreement, or documents incorporated by reference into the 30-year
contract or restoration cost-share agreement, the participant 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 determines is necessary to correct
the violation. If the violation continues, the State Conservationist
may terminate the 30-year contract or restoration cost-share agreement.
(2) Notwithstanding the provisions of paragraph (b)(1) of this
section, a restoration cost-share agreement or 30-year contract
termination is effective immediately upon a determination by the State
Conservationist that the participant has:
(i) Submitted false information;
(ii) Filed a false claim;
(iii) Engaged in any act for which a finding of ineligibility for
payments is permitted under this part; or
(iv) Taken actions NRCS deems to be sufficiently purposeful or
negligent to warrant a termination without delay.
(3) If NRCS terminates a restoration cost-share agreement or 30-
year contract, the participant will forfeit all rights for future
payments under the restoration cost-share agreement or 30-year
contract, and must refund all or part, as determined by NRCS, of the
payments received, plus interest.
Sec. 1467.16 Payments not subject to claims.
Any cost-share, contract, 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. 1467.17 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. 1467.18 Appeals.
(a) A person participating in the WRP may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal regulations provided in 7 CFR part
614.
(b) Before a person may seek judicial review of any administrative
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 the 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.
(d) Enforcement actions undertaken by the NRCS in furtherance of
its federally held property rights are under the jurisdiction of the
federal courts and not subject to review under administrative appeal
regulations.
Sec. 1467.19 Scheme and device.
(a) If it is determined by the NRCS that a participant has employed
a scheme or device to defeat the purposes of this part, any part of any
program payment otherwise due or paid such participant during the
applicable period may be withheld or be required to be refunded with
interest thereon, as determined appropriate by 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, contracts, or easements for the purpose of
obtaining a payment to which a person would otherwise not be entitled.
(c) A participant 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.
Sec. 1467.20 Market-based conservation initiatives.
(a) Acceptance and use of contributions. Section 1241(e) of the
Food Security Act of 1985, as amended, (16 U.S.C. 3841(e)), allows the
Chief to accept and use contributions of non-Federal funds to support
the purposes of the program. These funds shall be available without
further appropriation and until expended, to carry out the program.
[[Page 2337]]
(b) Ecosystem Services Credits for Conservation Improvements. (1)
USDA recognizes that environmental benefits will be achieved by
implementing conservation practices and activities funded through WRP,
and that environmental credits may be gained as a result of
implementing activities compatible with the purposes of a WRP easement,
30-year contract, or restoration cost-share agreement. NRCS asserts no
direct or indirect interest in these credits. However, NRCS retains the
authority to ensure that the requirements of the WRPO, contract, and
easement deed are met. Where activities required under an environmental
credit agreement may affect land covered under a WRP easement, 30-year
contract, or restoration cost-share agreement, participants are highly
encouraged to request a compatibility assessment from NRCS prior to
entering into such agreements.
(2) Section 1222(f)(2) of the Food Security Act of 1985 as amended,
does not allow wetlands restored with Federal funds to be utilized for
Food Security Act wetland mitigation purposes.
Signed this 9th day of January 2009, in Washington, DC.
Arlen L. Lancaster,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. E9-735 Filed 1-14-09; 8:45 am]
BILLING CODE 3410-16-P