Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2317 

purposes of determining eligibility and 

for ascertaining the accuracy of any 

representations related to contract 

performance. Access shall include the 

right to provide technical assistance, 

determine eligibility, inspect any work 

undertaken under the contract, and 

collect information necessary to 

evaluate the conservation practice 

performance, specified in the contract. 

The NRCS representative shall make an 

effort to contact the participant prior to 

the exercising this provision. 

§ 1466.33 Equitable relief. 

(a) If a participant relied upon the 

advice or action of any authorized NRCS 

representative and did not know, or 

have reason to know, that the action or 

advice was improper or erroneous, 

NRCS may accept the advice or action 

as meeting program requirements and 

may grant relief, to the extent it is 

deemed desirable by NRCS, to provide 

a fair and equitable treatment because of 

the good-faith reliance on the part of the 

participant. The financial or technical 

liability for any action by a participant 

that was taken based on the advice of a 

NRCS certified non-USDA TSP is the 

responsibility of the certified TSP and 

will not be assumed by NRCS when 

NRCS authorizes payment. Where a 

participant believes that detrimental 

reliance on the advice or action of a 

NRCS representative resulted in an 

ineligibility or program violation, but 

the participant believes that a good faith 

effort to comply was made, the 

participant may request equitable relief 

under § 635.3 in chapter VI of this title. 

(b) If, during the term of an EQIP 

contract, a participant has been found in 

violation of a provision of the EQIP 

contract, the O&M agreement, or any 

document incorporated by reference 

through failure to fully comply with that 

provision, the participant may be 

eligible for equitable relief under § 635.4 

in chapter VI of this title. 

§ 1466.34 Offsets and assignments. 

(a) Except as provided in paragraph 

(b) of this section, any payment or 

portion thereof to any person, joint 

venture, legal entity or tribe shall be 

made without regard to questions of title 

under State law and without regard to 

any claim or lien against the crop, or 

proceeds thereof, in favor of the owner 

or any other creditor except agencies of 

the U.S. Government. The regulations 

governing offsets and withholdings 

found at part 1403 of this chapter shall 

be applicable to contract payments. 

(b) EQIP participants may assign any 

payments in accordance with part 1404 

of this chapter. 

§ 1466.35 Misrepresentation and scheme 

or device. 

(a) A person, joint venture, legal 

entity or tribe that is determined to have 

erroneously represented any fact 

affecting a program determination made 

in accordance with this Part shall not be 

entitled to contract payments and must 

refund to NRCS all payments, plus 

interest determined in accordance with 

part 1403 of this chapter. 

(b) A producer who is determined to 

have knowingly: 

(1) Adopted any scheme or device 

that tends to defeat the purpose of the 

program; 

(2) Made any fraudulent 

representation; 

(3) Adopted any scheme or device for 

the purpose of depriving any tenant or 

sharecropper of the payments to which 

such person would otherwise be 

entitled under the program; or 

(4) Misrepresented any fact affecting a 

program determination, shall refund to 

NRCS all payments, plus interest 

determined in accordance with 7 CFR 

1403, received by such producer with 

respect to all contracts. The producer’s 

interest in all contracts shall be 

terminated. 

(c) In accordance with § 1466.26(e), 

NRCS may determine the producer 

ineligible for future conservation 

programs funding. 

§ 1466.36 Environmental credits for 

conservation improvements. 

NRCS recognizes that environmental 

benefits will be achieved by 

implementing conservation practices 

funded through EQIP, and 

environmental credits may be gained as 

a result of implementing activities 

compatible with the purposes of an 

EQIP contract. NRCS asserts no direct or 

indirect interest on these credits. 

However, NRCS retains the authority to 

ensure that operation and maintenance 

(O&M) requirements for EQIP-funded 

improvements are met, consistent with 

§§ 1466.21 and 1466.22. Where 

activities may impact the land under an 

EQIP contract, participants are highly 

encouraged to request an O&M 

compatibility determination from NRCS 

prior to entering into any credit 

agreements. 

Signed in Washington, DC, on January 8, 

2009. 

Arlen L. Lancaster, 

Vice President, Commodity Credit 

Corporation and Chief, Natural Resources 

Conservation Service. 

[FR Doc. E9–530 Filed 1–14–09; 8:45 am] 

BILLING CODE 3410–16–P 

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. 

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 

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2318 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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 costbenefit 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 EFile 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 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 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 costeffective 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-atlarge 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 

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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, nongovernmental 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. 

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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 noneasement 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 nondiscretionary 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 costshare 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; 

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2322 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

• 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 § 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 

§ 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 § 1467.8. 

Section 1467.2(e) is re-designated as 

§ 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 

§ 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 

§ 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 

§ 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 § 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 § 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 

§ 1467.2(g). 

The term ‘‘Conservation district’’ is 

revised to reflect the definition provided 

in § 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 

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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 

§ 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 § 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 

§ 1467.2(g). 

The term ‘‘Maintenance’’ is added to 

reflect statutory changes that 

incorporate maintenance as a costsharable 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 costshare 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 § 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 § 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, § 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 

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2324 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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 § 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 

§ 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 

§ 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 § 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 § 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 wellknown 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 

§ 1467.4(d)(3)(iii) through (vi) regarding 

eligibility of lands adjacent to land 

eligible under § 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 § 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 § 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 

§ 1467.4(e)(3), but to facilitate the 

enrollment of restored adjacent nonagricultural 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 § 1467.5(a), because NRCS 

provides for continuous enrollment in 

WRP. 

In § 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 § 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 redesignated as § 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 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 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 § 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, § 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 § 467.7(d) is revised and 

incorporated into the new § 1467.7(c) 

described above. 

The existing § 1467.7(e) is redesignated as § 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 § 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 § 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 

§ 1467.8(e). Additionally, this section is 

revised to incorporate the payment 

timing and method prescribed by 

statute. 

Section 1467.8(c), previously 

§ 1467.8(f), includes minor changes to 

provide clarity that reimbursement for 

surveys are for legal boundary surveys. 

Language in the existing regulation at 

§ 1467.8(h) regarding payment 

limitations is deleted and incorporated 

in new § 1467.10(a)(3). 

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Remaining sections have been redesignated to accommodate the above 

section re-designations. 

Section 1467.9 Wetlands Reserve 

Enhancement Program 

Section 1467.9, Cost-share Payments, 

is re-designated as § 1467.10. A new 

§ 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, § 1467.9 ‘‘Costshare payments’’ is re-designated as 

§ 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 § 1467.3, are eligible for costshare. Maintenance is included in the 

definition of activity under § 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 redesignated as § 1467.11. This section is 

revised by adding a new § 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 

§ 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 

§ 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 

§ 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 

§ 1467.14. Section 1467.14(a) clarifies 

what constitutes a transfer of land and 

the impact of the transfer. In cases 

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where the transfer of land meets 

conditions described under 

§ 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 

§ 1467.10(e). 

Section 1467.15 Violations and 

Remedies 

Section 1467.14 is re-designated as 

§ 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 

§ 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 

§ 1467.17. 

Section 1467.18 Appeals 

Section 1467.17 is re-designated as 

§ 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 

§ 1467.19 and revised at § 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 nonFederal 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 

§ 1467.4, ‘‘Program Requirements,’’ 

§ 1467.10, ‘‘Cost-Share payments,’’ and 

§ 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 

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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 § 1467.4, ‘‘Program 

Requirements,’’ § 1467.10, ‘‘Cost-Share 

payments,’’ and § 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 longterm 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 longterm 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., 

§ 1467.4, ‘‘Program Requirements,’’ 

§ 1467.10, ‘‘Cost-Share payments,’’ and 

§ 1467.11 ‘‘Easement and 30-year 

contract participation requirements.’’ 

Track participation by crop and 

livestock type. NRCS’ automated fieldlevel 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 

§ 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. 

■ 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. 

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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. 

§ 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. 

§ 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. 

§ 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 dayto-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. 

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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 

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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. 

§ 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 

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§ 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, noncropped 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. 

§ 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. 

§ 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 § 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. 

§ 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 

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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 costshare 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. 

§ 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. 

§ 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 

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2334 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

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 § 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 

§ 1467.8(a)(4) by an amount equal to the 

value of the retained grazing rights. 

§ 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 nonpermanent 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 costshare 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 costshare 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. 

§ 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: 

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(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. 

§ 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 costeffective 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. 

§ 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 § 1467.3, must 

result in equal or greater wildlife 

benefits, wetland functions and values, 

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2336 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

and ecological and economic values to 

the United States. 

§ 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. 

§ 1467.15 Violations and remedies. 

(a) Easement violations. (1) In the 

event of a violation of the easement, 30- 

year contract, or any restoration costshare 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 costshare 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 nonFederal funds to support the purposes of 

the program. These funds shall be 

available without further appropriation 

and until expended, to carry out the 

program. 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 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 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Part 1274a 

[EOIR No. 166I; AG Order No. 3031–2009] 

RIN 1125–AA64 

Reorganization of Regulations on 

Control of Employment of Aliens 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Homeland Security Act 

of 2002, as amended, transferred the 

functions of the former Immigration and 

Naturalization Service (INS) from the 

Department of Justice to the Department 

of Homeland Security (DHS); however, 

it retained within the Department of 

Justice the functions of the Executive 

Office for Immigration Review (EOIR), a 

separate agency within the Department 

of Justice. Because the existing 

regulations often intermingled the 

responsibilities of the former INS and 

EOIR, this transfer required a 

reorganization of title 8 of the Code of 

Federal Regulations (CFR) in February 

2003, including the establishment of a 

new chapter V in 8 CFR pertaining to 

EOIR. As part of this reorganization, a 

number of regulations pertaining to the 

responsibilities of DHS intentionally 

were duplicated in the new chapter V 

because of shared responsibilities. The 

Department of Justice now has 

determined that most of the duplicated 

regulations in part 1274a pertain to 

functions that are DHS’s responsibility 

and do not need to be reproduced in 

EOIR’s regulations in chapter V. This 

interim rule, therefore, deletes 

unnecessary regulations in part 1274a 

and makes appropriate reference to the 

applicable DHS regulations. 

DATES: Effective Date: This rule is 

effective January 15, 2009. 

Comments: Comments on this rule 

must be received by March 16, 2009. 

ADDRESSES: Comments may be mailed to 

John N. Blum, Acting General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, Virginia 22041. To ensure 

proper handling, please reference EOIR 

Docket No. 166I on your 

correspondence. You may submit 

comments electronically or view an 

electronic version of this interim rule at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: John 

N. Blum, Acting General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, Virginia 22041, telephone 

(703) 305–0470. 

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at http:// 

www.regulations.gov. Such information 

includes personal identifying 

information (such as your name, 

address, etc.) voluntarily submitted by 

the commenter. 

If you want to submit personal 

identifying information (such as your 

name, address, etc.) as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You also must locate 

all the personal identifying information 

you do not want posted online in the 

first paragraph of your comment and 

identify what information you want 

redacted. 

If you want to submit confidential 

business information as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You also must 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on http:// 

www.regulations.gov. 

Personal identifying information and 

confidential business information 

identified and located as set forth above 

will be placed in the agency’s public 

docket file, but not posted online. To 

inspect the agency’s public docket file 

in person, you must make an 

appointment with agency counsel. 

Please see the ‘‘For Further Information 

Contact’’ paragraph below for agency 

counsel’s contact information. 

II. Background 

The Homeland Security Act of 2002, 

as amended (HSA), transferred the 

functions of the former Immigration and 

Naturalization Service (INS or the 

Service) to the Department of Homeland 

Security (DHS). Public Law 107–296, tit. 

IV, subtits. D, E, F, 116 Stat. 2135, 2192 

(Nov. 25, 2002), as amended. The HSA, 

however, retained the functions of the 

Executive Office for Immigration 

Review (EOIR) within the Department of 

Justice, under the direction of the 

Attorney General. 6 U.S.C. 521; 8 U.S.C. 

1103(g); see generally Matter of D–J–, 23 

I&N Dec. 572 (A.G. 2003). 

EOIR was created by the Attorney 

General in 1983 to combine the 

functions performed by INS special 

inquiry officers (now immigration 

judges) and the Board of Immigration 

Appeals (Board) into a single 

administrative agency within the 

Department of Justice, separate from the 

former INS. 48 FR 8038 (Feb. 25, 1983). 

This administrative structure separated 

the administrative adjudication 

functions from the enforcement and 

service functions of the former INS, both 

for administrative efficiency and to 

foster independent judgment in 

adjudication. The Office of the Chief 

Administrative Hearing Officer 

(OCAHO) and its administrative law 

judges (ALJs) were added to EOIR in 

1987, following enactment of section 

274A of the Immigration and 

Nationality Act (INA), 8 U.S.C. 1324a. 

See 52 FR 44971 (Nov. 24, 1987). 

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