Rule2024-10242
National Wildlife Refuge System; Drain Tile Setbacks
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 13, 2024
Effective
June 12, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), promulgate new regulations pertaining to wetland easements to bring consistency, transparency, and clarity for both easement landowners and the Service in the administration of conservation easements, pursuant to the National Wildlife Refuge Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997. These regulations codify the process by which landowners can request and the Service will provide drain tile setbacks under wetland easement contracts. Under these regulations, if landowners fully comply with Service-provided setbacks when installing drain tile and do not later replace or modify the drain tile, the Service grants the landowners a safe harbor from legal action in the event that the setback drain tile nevertheless results in the draining of an easement wetland. Setback distances are calculated based upon the best available science considering soil characteristics, tile diameter, the depth of the tile below the surface, and/or topography sufficient to the easement contract's standard of protection that ensures no drainage of adjacent protected wetland areas. The regulations apply only to setbacks provided by the Service beginning on the effective date of this final rule.
Full Text
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<title>Federal Register, Volume 89 Issue 93 (Monday, May 13, 2024)</title>
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[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Rules and Regulations]
[Pages 41336-41346]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10242]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 25
[Docket No. FWS-HQ-NWRS-2022-0092; FXRS12610900000-245-FF09R25000]
RIN 1018-BG80
National Wildlife Refuge System; Drain Tile Setbacks
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), promulgate
new regulations pertaining to wetland easements to bring consistency,
transparency, and clarity for both easement landowners and the Service
in the administration of conservation easements, pursuant to the
National Wildlife Refuge Administration Act of 1966, as amended by the
National Wildlife Refuge System Improvement Act of 1997. These
regulations codify the process by which landowners can request and the
Service will provide drain tile setbacks under wetland easement
contracts. Under these regulations, if landowners fully comply with
Service-provided setbacks when installing drain tile and do not later
replace or modify the drain tile, the Service grants the landowners a
safe harbor from legal action in the event that the setback drain tile
nevertheless results in the draining of an easement wetland. Setback
distances are calculated based upon the best available science
considering soil characteristics, tile diameter, the depth of the tile
below the surface, and/or topography sufficient to the easement
contract's standard of protection that ensures no drainage of adjacent
protected wetland areas. The regulations apply only to setbacks
provided by the Service beginning on the effective date of this final
rule.
DATES: This rule is effective June 12, 2024.
Information collection requirements: If you wish to comment on the
information collection requirements in this rule, please note that the
Office of Management and Budget (OMB) is required to make a decision
concerning the collection of information contained in this rule between
30 and 60 days after the date of publication of this rule in the
Federal Register. Therefore, comments should be submitted to OMB by
June 12, 2024.
ADDRESSES: Information collection requirements: Written comments and
suggestions on the information collection requirements should be
submitted within 30 days of publication of this document to <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. Please provide a copy of
your comments to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#8dc4e3ebe2d2cee2e1e1cdebfafea3eae2fb"><span class="__cf_email__" data-cfemail="9ad3f4fcf5c5d9f5f6f6dafcede9b4fdf5ec">[email protected]</span></a> (email).
Please reference OMB Control Number 1018-0196 in the subject line of
your comments.
FOR FURTHER INFORMATION CONTACT: Debbie DeVore, (251) 604-1383.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
Wetland habitat in the Prairie Pothole Region (PPR) of Iowa,
Minnesota, Montana, North Dakota, and South Dakota is critically
important to waterfowl and other migratory bird populations. The unique
topography of the PPR includes numerous small wetlands and potholes
that were formed through glaciation thousands of years ago. Prairie
potholes are freshwater depressions and marshes, often less than 2 feet
deep and 1 acre in size, that are a permanent feature of these
landscapes barring deliberate alteration of the topography or
hydrology. What makes the PPR so biologically important to waterfowl is
the seasonal fluctuation of surface water through these permanent
wetlands basins. The PPR is responsible for producing approximately 50
to 75 percent of the primary species of ducks on the North American
continent, providing habitat for more than 60 percent of the breeding
population. Waterfowl fledged in the PPR are a significant natural
resource. Waterfowl are a diverse group of birds that are important to
many aquatic and wetland ecosystems throughout the country.
Additionally, waterfowl hunting and associated industries support
thousands of jobs and in 2016 produced an estimated $2.9 billion in
economic benefit.
Congress, recognizing the impact that widespread drainage was
having on wetlands and waterfowl populations in the PPR, officially
created the Small Wetlands Acquisition Program on August 1, 1958, by
amending the 1934 Migratory Bird Hunting Stamp Act (commonly referred
to as the ``Duck Stamp Act''). The amendment allowed proceeds from the
sale of Federal Duck Stamps to be used to conserve and protect ``small
wetland and pothole areas'' through the acquisition and establishment
of areas designated as Waterfowl Production Areas (WPAs). The Service
purchased the first fee-title WPA in South Dakota in 1959, and began to
purchase wetland easements soon thereafter. The acquisition of wetland
easements accelerated across the PPR following the passage of the 1961
Wetlands Loan Act (Pub. L. 87-383), which authorized appropriations to
advance funding for the purchase of wetland easements. Wetland
easements are part of the National Wildlife Refuge System, governed by
the National Wildlife Refuge System Administration Act (hereafter,
``the Administration Act''; 16 U.S.C. 668dd et seq.).
Wetland Easements
This rulemaking action codifies new regulations pertaining to
easement lands protected by a Service easement for waterfowl management
rights (commonly referred to as a ``wetland easement'') in the PPR. The
easements are areas of land or water acquired and administered by the
Service with a less than fee interest for the purpose of maintaining
small wetland or pothole areas suitable for use as WPAs.
A wetland easement is a voluntary legal agreement with the Service
that pays landowners to permanently protect wetlands. The easement
contains restrictions on the use or development of the land to protect
its conservation values. The Service's wetland easements are minimally
restrictive conservation easements, meaning that they have a minimal
impact on the property value and limit the landowner's use and
enjoyment of the property to a minor degree. Landowners who sell a
wetland easement to the Service agree that wetlands protected by an
easement cannot be drained, filled, leveled, or burned. If these
wetlands dry up naturally, they can be farmed, grazed, or hayed.
Drain Tiles
Traditionally, the purpose of subsurface agricultural drainage has
[[Page 41337]]
been to lower the water table of poorly drained soils with the goal of
improving soil aeration. Recently, advanced drainage systems have been
promoted as a way to manipulate soil water content during the growing
season. Subsurface drainage systems typically remove water through
perforated pipe (commonly referred to as drain tile) placed below the
soil surface.
Drain tile positioned adjacent to wetland areas can result in
reduced hydroperiods (periods of inundation) depending on several
factors, such as the depth of tile in relation to the wetland area. The
amount and timing of precipitation intercepted by subsurface drainage
systems will vary depending on soil properties, topography (low/high
topographic relief), placement of tile relative to the wetland area
(horizontal distance, elevation), and the relation between the wetland
area and groundwater (i.e., recharge, discharge). Direct drainage of a
wetland area by placing perforated tile and surface inlet pipes through
(beneath) the wetland area would have a detrimental effect on wetland
hydrology regardless of other factors.
Drainage systems positioned adjacent to a wetland area in low-
relief terrain have the potential to indirectly affect the wetland area
through lateral drainage (lateral effect). The lateral effect is
defined as the perpendicular distance on either side of a tile pipe
where soil water can be drained by the tile. Drainage systems
positioned to encircle a wetland area completely or partially in high-
relief terrain can intercept groundwater and precipitation runoff to
the wetland area depending on the previously mentioned factors.
Internal Guidance for Calculating Drain Tile Setbacks
Three years ago, the Service developed basic guidance for
administering a drain tile setback request process and calculating
drain tile setback distances using the best available science. This
guidance was captured in a published Director's Memo, which is
available at <a href="https://www.fws.gov/sites/default/files/documents/Guidance-Memo-Drain-Tile-Setbacks-Wetland-Easements.pdf">https://www.fws.gov/sites/default/files/documents/Guidance-Memo-Drain-Tile-Setbacks-Wetland-Easements.pdf</a> or in hard copy
from your local U.S. Fish and Wildlife Service station. If you need
help identifying and contacting your local station, see 50 CFR 2.2 for
the contact information of the nearest Regional Office. We refer to
this document as the ``guidance memo'' in the remainder of this
document. The guidance memo sets out the basics of the calculation
processes for the Service to use when determining drain tile setback
distances, including use of the van Shilfgaarde equation, and it
establishes that the Service will not pursue legal redress should it
later be determined that setback distances provided by the Service were
inadequate to protect adjacent wetland areas from drainage. This final
rule codifies the key aspects of the guidance memo, such as the use of
the best available science and the legal safe harbor for landowners who
fully comply with Service-provided setback distances. The guidance memo
remains in full effect because it has been incorporated as part of the
broader internal guidance. The Service recently finalized the broader
internal guidance developed to implement the voluntary drain tile
setback program that is codified in this rule. We refer to this as the
``internal guidance'' or ``internal setback guidance'' in the remainder
of this document. The internal guidance provides Service personnel with
direction in administering the drain tile setback process program,
which includes guidance on the timeframes for and calculation of
Service-provided drain tile setback distances. The internal guidance is
consistent with both this rule and the guidance memo, which as noted
above is itself part of the internal guidance. The purpose of the
internal guidance is to provide more detail than the guidance memo or
this rule, particularly elaborating on calculation processes and
providing guidelines for internal processes. The internal guidance is
available to the public; for a copy, please contact your local U.S.
Fish and Wildlife Service station (you can search by zip code, under
Refine Your Search, or by map here: <a href="https://fws.gov/our-facilities">https://fws.gov/our-facilities</a>). If
you need help identifying and contacting your local station, see 50 CFR
2.2 for the contact information of the nearest Regional Office.
Landowners who want to better understand the internal guidance or who
have questions about the context of the guidance are encouraged to
contact your local station.
This Final Rule
The regulations we are adopting in this final rule provide clarity
and certainty to landowners that drain tile may be installed on lands
encumbered by a wetland easement provided that protected wetland areas
are not drained, directly or indirectly. This rule distinguishes
Service wetland easements from the ``Swampbuster'' provisions of the
Food Security Act of 1985 (also known as the ``Farm Bill''; Pub. L. 99-
198), which allow drain tile to have a ``minimal effect'' to wetlands.
Service wetland easement agreements with landowners include provisions
that allow for no effect; hence, drain tile may be installed on a
wetland easement tract, but it is a violation of the easement contract
if the result is that the tile drains a protected wetland area.
Because the impact of a given drainage system on wetland areas
varies greatly depending on site conditions, there are no one-size-
fits-all specifications to prevent drain tile installation from
draining wetlands and individualized calculations are needed for each
drain tile installation. Therefore, on wetland easement lands,
landowners will be able to voluntarily request that the Service provide
them with individual drain tile setback distances. These regulations
require the Service to establish drain tile setback distances based
upon the best available science and with due consideration of soil
characteristics, tile diameter, the depth of the tile below the
surface, and/or topography that ensure protected wetland areas are not
drained.
Additionally, these regulations ensure that landowners who adhere
to the setback distances prescribed by the Service, including the tile
diameters and tile depths below the surface that were used to calculate
the Service-provided drain tile setback distances, will not be required
to remove drain tile that is later found to have an adverse effect on
protected wetland areas. In this way, these regulations recognize that
our understanding of the effects that drain tile may have on wetland
hydrology is an evolving science. Service-provided drain tile setback
distances may prove inadequate to fully protect easement wetland areas
from drainage. However, landowners who coordinate their tiling plans
with the Service and adhere to the Service-determined setback distances
will not later be held criminally responsible or civilly liable for
disturbing, injuring, or destroying a unit of the National Wildlife
Refuge System (i.e., draining a protected wetland area) provided the
subsurface drainage system is not modified, enhanced, or replaced.
These regulations thus provide greater certainty and clarity for both
landowners and the Service and encourage communication and
collaboration.
Amendments to Existing Regulations
This rule codifies in the Code of Federal Regulations the following
provisions:
(1) Within a Service-provided timeframe, the Service will provide
setback distances for the placement of drain tile on lands covered by
wetland easements in Iowa, Minnesota,
[[Page 41338]]
Montana, North Dakota, and South Dakota;
(2) The Service will provide guidance to landowners about what
materials should be submitted as part of a request; and
(3) When a landowner coordinates tile planning with the Service in
accordance with this guidance and adheres to the Service-provided drain
tile setback distances, including the tile diameters and tile depths
below the surface that were used to calculate the Service-provided
drain tile setback distances, the Service will not seek legal redress
if it is later determined that the Service-provided drain tile setback
distances failed to protect the wetland areas from drainage, provided
that the drain tile has not been modified, enhanced, or replaced.
The regulations will apply only to setbacks provided by the Service
beginning on the effective date of this final rule (see DATES, above).
Statutory Authority
The Administration Act, as amended by the National Wildlife Refuge
System Improvement Act of 1997 (hereafter, ``the Improvement Act'';
Pub. L. 105-57), governs the administration and public use of refuges.
Amendments enacted by the Improvement Act built upon the
Administration Act in a manner that provides an ``organic act'' for the
Refuge System, similar to organic acts that exist for other public
Federal lands. The Improvement Act serves to ensure that we effectively
manage the Refuge System as a national network of lands, waters, and
interests for the protection and conservation of our Nation's wildlife
resources. The Administration Act states first and foremost that we
focus our Refuge System mission on the conservation of fish, wildlife,
and plant resources and their habitats. The Administration Act, as
amended, contains 14 directives to the Secretary of the Interior
(Secretary), one of which states that, in administering the Refuge
System, the Secretary shall ensure effective coordination, interaction,
and cooperation with owners of land adjoining refuges. The
Administration Act also authorizes the Secretary to issue regulations
to carry out the purposes of the Act.
Summary of Comments and Responses
On April 28, 2023, we published in the Federal Register (88 FR
26244) a proposed rule to establish new regulations for wetland
easements that would bring consistency, transparency, and clarity for
both easement landowners and the Service in the administration of
conservation easements, pursuant to the Administration Act, as amended
by the Improvement Act. We accepted public comments on the proposed
rule for 60 days, ending June 27, 2023. By that date, we received
comments from eight commenters on the proposed rule. One commenter's
comment was unrelated to the proposed rule. We discuss the remaining
substantive topics raised by commenters below.
Comment (1): Five comments expressed general support for the
proposed rule. These comments expressed support for drain tile setbacks
as a ``good idea'' to protect wetlands while providing transparency and
clarity for landowners whose land is encumbered with an easement for
waterfowl management rights (commonly referred to as a wetland
easement).
Our Response (1): We appreciate this general support. We designed
this rule to make the drain tile setback process more open and
transparent, and to simplify and clarify wetland easement
responsibilities for both landowners and the Service.
We did not make any changes to the rule as a result of these
comments.
Comment (2): Two comments asked the Service to withdraw the
proposed rule in its entirety.
Our Response (2): The Service carefully considered the concerns and
reasons presented in each of these comments underlying the request to
withdraw the proposed rule and not issue a final rule. These concerns,
which are addressed below, do not individually or cumulatively provide
a persuasive rationale for the Service to withdraw the proposed rule,
nor to postpone the issuance of this final rule for further
consideration.
Notably, each of these comments expressed support for the Service's
guidance memo for wetland easements (see Internal Guidance for
Calculating Drain Tile Setbacks, above). The commenters also implied
that a part of their reasoning for requesting that the Service withdraw
the proposed rule was grounded in the belief that a final rule would
supersede the guidance memo; both commenters stated a preference for
the guidance memo. As discussed further below in our response to
Comment (14), this rule is consistent with the guidance memo, and that
guidance memo remains in effect with the publication of this final
rule.
We did not make any changes to the rule as a result of these
comments.
Comment (3): One comment urged general caution with this rule,
given that it allows drain tile into an area with wetland easements.
Our Response (3): The Service acknowledges the concerns underlying
this comment and is committed to protecting the wetlands under our
easements. At the same time, the Service cannot constrain a landowner's
rights without the appropriate agreement and compensation. Through a
wetland easement, the Service buys minimally restrictive rights, so the
landowner may not drain, burn, fill, or level wetland areas, but we do
not purchase rights specifically concerning the installation of drain
tile. In some cases, it is possible for landowners to install tile
within the boundaries of wetland easements without draining wetland
areas, and they have the right to do so in such cases.
The Service's solution to balancing our right to prohibit draining
of wetlands under the easement and a landowner's right to install drain
tile within the easement boundary, as long as it does not drain those
wetlands, is the Service-provided setback process codified by this
rulemaking. The need for caution and care in the installation of tile
near wetlands is met when landowners coordinate with the Service and
are provided with setbacks that adequately protect easement wetlands.
We did not make any changes to the rule as a result of this
comment.
Comment (4): Two commenters requested that we ensure the rule
considers or is consistent with other drainage and water laws in Iowa,
Minnesota, and North Dakota.
Our Response (4): The Service routinely works and coordinates with
State agency partners on various aspects of our conservation mission,
including water rights and wetland management. The Service works with
State agencies, landowners, drainage districts, and water boards
regarding efforts to maintain, repair, and replace drain tile and
ditches so that drainage of non-easement protected wetlands can
continue when in compliance with State and local laws and regulations
and when that work will not infringe on the terms of the easement
agreement or on the Service's authorities under the Improvement Act or
the Migratory Bird Conservation Act (16 U.S.C. 715-715d). We also work
with and share resources with States, landowners, drainage districts,
and water boards on actions that protect or otherwise benefit fens and
other wetlands where we have the jurisdiction and authority to do so.
In shaping this rule, the Service did fully consider existing State
laws. This rule does not conflict with any State law, and the same is
true for our
[[Page 41339]]
wetland easement agreements, but in application to specific drain tile
projects, this rule and the specific easement agreement may impose
different requirements and limitations than those under State law. This
is because the Service must protect the legal property interest that
was paid for in the wetland easement agreement. The rights acquired
protect wetland areas from being drained, burned, filled, or leveled.
If these easements could not protect wetlands beyond the baseline
protections under applicable State laws, they would have no value to
the Service.
In cases where easement agreement requirements impose limitations
beyond State law, the easement agreement, and the Service's authority
to enforce its terms under the Improvement Act and Migratory Bird
Conservation Act, typically supersede the applicable State law. In the
United States v. Vesterso (828 F.2d 1234 (8th Cir. 1987)), the Eighth
Circuit Court of Appeals upheld that the digging of ditches that
damaged Federal easement wetlands in North Dakota was a violation of
law and of the easement agreement, even though the digging was
permissible under State law. The court found that, under the
Administration Act, differences in requirements between Federal
easements and State law are to be resolved on a case-by-case basis, so
neither overrides the other in all cases. The Federal interest in the
natural state of wetlands under an easement must be balanced against
the State interest in and authority over State waters. On this point,
the Court's opinion stated that while the Service was correct in this
case and the easement agreement controlled, the Service does not have a
general, absolute right to prohibit alteration of a wetland or
interference of the natural flow of water under an easement.
We did not make any changes to the rule as a result of these
comments.
Comment (5): Three comments referenced other permitting agencies
and/or drainage laws and encouraged the Service to notify landowners
receiving Service drain tile setbacks that other agencies, including
Federal, State, and local governments, local watersheds and water
boards, and other permitting authorities, will need to be consulted to
ensure landowners' drain tile projects comply with other permitting
entities.
Our Response (5): As part of our standard process, the Service
notifies landowners that the drain tile setback received from the
Service only addresses the Service's wetland easement on their property
and that they will need to coordinate with State and local governments,
watersheds, water boards, and other permitting authorities when
installing drain tile on their land to ensure their project complies
with all Federal, State, local, and other laws, statutes, codes, and
policies.
We did not make any changes to the rule as a result of these
comments.
Comment (6): Three comments requested that the Service specifically
state in the regulation what the ``Service-provided timeframe'' is for
processing a drain tile setback.
Our Response (6): The Service understands the concern of landowners
and other stakeholders for timely delivery of setback decisions. We are
committed to timely communication and delivery of setback distances.
Our aim is to provide landowners with an estimate of the setback
calculation timeline for their specific case within 2 business weeks of
receiving their request on FWS Form 3-2554. We also anticipate that, in
most cases, we will be able to provide drain tile setback distances
within 60 calendar days. However, there are various factors that
prevent the Service from specifying a uniform deadline for this
process. This includes logistical factors, such as the availability of
expert personnel and scheduling of on-site assessments, and factors
that are a part of the actual calculations, such as the unique physical
features of a given wetland. Several of these factors are noted in our
publicly available internal guidance for calculating setbacks (see
Internal Guidance for Calculating Drain Tile Setbacks, above). In that
internal setback guidance, we provide the guiding principles for what
constitutes a reasonable timeframe for Service employees calculating
setback distances.
We did not make any changes to the rule as a result of these
comments.
Comment (7): One commenter asked what was meant by the term ``best
available science'' and questioned the absence of a definition in the
proposed rule.
Our Response (7): The term ``best available science'' is a well-
defined and long-established legal standard for the actions of science-
driven Federal Government agencies. For example, the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), as amended, requires species
listings to be based on the ``best scientific and commercial data
available.'' As the use of the term in this final rule does not depart
from its established legal meaning, which itself is consistent with the
plain meaning of the phrase, providing a definition in this rule is not
necessary.
The Service will ensure that our policy for, our guidance on, and
our implementation of the wetland easement program are all based on
scientific data and information. We will also ensure that, of the
sources of relevant scientific information available to us, we make use
of the ``best'' science by considering objective indicators of
scientific quality such as peer review, replication, quality and
calibration of equipment, robustness of models, and so forth, when
determining which information should carry the most weight in our
processes.
We did not make any changes to the rule as a result of this
comment.
Comment (8): Two comments expressly noted that the provisions of
the proposed rule would have no retroactive effect, but seemed to have
different understandings of the implications of this fact and differing
opinions as to whether the rule should have retroactive effect.
Our Response (8): Clarification on the point of retroactivity
should resolve the concerns of both of these commenters and any other
members of the public on this point.
The regulations in this rulemaking will not have retroactive
effect; they will apply only to setbacks provided by the Service
beginning on the effective date of this final rule (see DATES, above).
This rule creates a voluntary process for landowners to request drain
tile setback distances. There is no requirement to request or to make
use of Service-provided setback distances, but the rule does provide a
legal safe harbor for those landowners who do both. Thus, those
landowners who have never before requested setback distances from the
Service are in the same position regardless of whether or not the rule
has retroactive effect. This is why the absence of retroactive effect
could only be relevant to those landowners who received Service-
provided setback distances under our guidance memo on drain tile
setbacks (see Internal Guidance for Calculating Drain Tile Setbacks,
above). In that case, however, the position of those landowners is also
unchanged, since the guidance memo remains in full effect and will
guide refuge personnel in implementing these new regulations. This rule
merely codifies the key principles of our guidance memo.
In summary, the rule only has prospective effect, but this does not
change the status of either (1) landowners who have never requested
setback distances and thus have no legal safe harbor should they
install tile that drains an easement wetland; or (2) landowners who
requested and
[[Page 41340]]
complied with setback distances and thus do have a legal safe harbor
should their drain tile nevertheless drain an easement wetland. What
the prospective effect does mean is that the voluntary process for
setback requests and receiving legal safe harbor is further solidified
by inclusion in our regulations and that landowners who request and
fully comply with setback distances from the Service in the future can
be assured of legal safe harbor.
We did not make any changes to the rule as a result of these
comments.
Comment (9): Two commenters requested that the Service offer
assurance that a landowner who follows the Service-provided setback
will be afforded a legal safe harbor regardless of whether the Service-
provided setback distances do or do not protect the wetland from
drainage.
Our Response (9): The Service understands the importance for
landowners of our commitment not to seek legal redress against
landowners who coordinate with the Service and fully cooperate with the
Service's setback determinations. In fact, providing assurance on this
point is one of the Service's primary reasons for pursuing this
rulemaking. This rule codifies exactly this type of assurance for
landowners, as directly stated in the regulatory provisions at 50 CFR
25.24(c) (see Regulation Promulgation, below). Regarding this
protection from legal redress, the regulations we are adopting in this
rule specifically state that when a landowner coordinates tile planning
with the Service in accordance with the regulations and adheres to the
Service-provided drain tile setback distances, then the Service will
not seek legal redress if it is later determined that the drain tile
setback distances provided by the Service failed to protect the wetland
areas from drainage, provided that the drain tile has not been
modified, enhanced, or replaced.
We did not make any changes to the rule as a result of these
comments.
Comment (10): One comment requested that the regulations clarify
that maintenance and repairs of drain tile systems installed in
accordance with Service guidance or coordination are permissible
without any further agency involvement.
Our Response (10): Landowners with wetland easements on their
property are always allowed to install and to maintain drain tile
systems, but if the tile drains wetlands in violation of the Service's
easement, then the landowner may face legal action. In the interest of
both parties, the Service offers a voluntary process for landowners to
request a Service-provided setback; landowners who fully comply with
the Service-provided setback distances when installing or maintaining a
drain tile system are shielded from legal action. In the case of a
landowner's actions to maintain or repair a drain tile system,
remaining within this legal safe harbor requires that the landowner's
maintenance or repair actions do not amount to a modification,
enhancement, or replacement of the system. This requirement is provided
in the regulatory provision at 50 CFR 25.24(c) (see Regulation
Promulgation, below), where it clearly states that drainage of an
easement wetland, after installation of a drain tile system in
accordance with a Service-provided setback, will not result in the
Service taking legal action provided that the drain tile has not been
modified, enhanced, or replaced.
Drain tile systems installed in accordance with Service guidance or
coordination should not drain easement-protected wetland areas.
Therefore, routine maintenance and repair actions that do not amount to
modification, enhancement, or replacement, whether or not coordinated
with the Service, would not invalidate the safe harbor protections
provided to landowners who install drain tile systems in accordance
with Service-provided setbacks and other guidance. A true maintenance
or repair action should not change the tile system in a way that
impacts the Service's setback distances. For example, substituting one
4-inch tile for another 4-inch tile at the same location and depth
would be a routine repair that does not invalidate the landowner's
legal safe harbor. This difference between a routine maintenance and
repair action and an action to modify or enhance the drain tile system,
or to replace it with another system altogether, is commonly understood
for those landowners who employ and those service providers who install
drain tile systems, so further clarification in the regulatory
provision is not necessary.
At the same time, a wetland easement agreement is a commitment to
shared responsibility for the designated wetlands and an important
piece of that shared responsibility is effective communication between
landowners and the Service. The Service encourages landowners to be
generally communicative about all aspects of wetland easement
agreements and is committed to helpful communication in return.
Specific to maintenance and repair of a drain tile system installed in
accordance with Service-provided setback distances, continued
communication is as mutually beneficial as the setback process. In
fact, the only way for a landowner to be truly certain whether the
maintenance or repair actions they wish to take would constitute a
modification, enhancement, or replacement, and thus whether they remain
within the legal safe harbor regulatory provision, is to coordinate the
maintenance or repair with the Service.
We did not make any changes to the rule as a result of this
comment.
Comment (11): One comment stated that there should be no need for
any later assessments or determinations of whether the setback
distances provided the desired wetland protection where a landowner
installs drain tile based on Service-provided setback distances, given
the legal safe harbor for the landowner in the event the wetland is
drained.
Our Response (11): The Service periodically monitors all of our
wetland easements using a variety of nonintensive methods, such as
aerial photography. In the interest of both landowners and minimal
disturbance to wetlands, we seek to not monitor more often or more
intensively than necessary. Our existing publicly available policy on
wetland easements requires periodic monitoring and sets out the
monitoring methods that our personnel may use (see Service Manual at
601 FW 6 at <a href="https://www.fws.gov/policy-library/601fw6">https://www.fws.gov/policy-library/601fw6</a>).
In the specific situation of a landowner installing drain tile
according to Service-provided setbacks, we will continue to monitor the
wetlands on that property in the same manner as any other property
subject to an easement. We will do this for three reasons. First, as
noted above, our policy requires monitoring all of our wetland easement
interests. Second, we need to monitor these wetlands in the interest of
our overall migratory bird and waterfowl wildlife management
responsibilities and wildlife conservation mission, which constitute
the purpose for obtaining and maintaining these easements. Third, while
the landowner may have complied with Service-provided setbacks at the
time of drain tile installation, full compliance with the Service's
setbacks under these regulations, and thus securing the legal safe
harbor for the landowner, also requires that a landowner does not
subsequently modify, enhance, or replace the drain tile system. This
means that we need to continue monitoring to identify when an easement
wetland has been drained. If an easement wetland has been drained, we
determine whether the landowner
[[Page 41341]]
has modified, enhanced, or replaced the drain tile system in order to
determine whether or not the legal safe harbor applies and the Service
should or should not seek legal redress. Moreover, monitoring for this
purpose is critical because identifying when an easement wetland has
been drained may be the best, or even the only, signal for us that a
landowner has modified, enhanced, or replaced the drain tile system
after the initial installation.
We did not make any changes to the rule as a result of this
comment.
Comment (12): One comment urged that the Service should not seek
legal redress against a landowner in cases where a drainage district
acts in a manner inconsistent with the provisions in the proposed rule,
and that this should be stated in the regulations.
Our Response (12): It is unclear how a drainage district could act
inconsistently with the provisions in this rule, as this rule provides
a process for landowners to request and obtain setback distances from
the Service and, if they fully comply with those setback distances, be
assured of a legal safe harbor in the event a wetland is drained.
Assuming that the commenter is referring to actions taken by a drainage
district that could violate the terms of a wetland easement, such as
draining an easement-protected wetland, then our response is that we
cannot provide any such provision in the regulations.
The Service will determine an appropriate response in this type of
situation on a case-by-case basis, and accordingly will not commit to
any blanket limitation on our options for legal redress merely because
a drainage district is involved and may bear more responsibility than
the landowner for the easement violation. Unless the legal safe harbor
for landowners codified by this rule applies, the Service reserves the
right to seek legal redress against any and all responsible parties in
the event of drainage of a wetland in violation of a wetland easement,
or any other violation of the terms of a wetland easement, to the full
extent of applicable law.
We did not make any changes to the rule as a result of this
comment.
Comment (13): One comment expressed the concern that due to the
distribution of small easement wetlands throughout a landowner's
property and the setback distances provided by the Service, there might
not be any location on the property where the landowner can install
drain tile that complies with the Service's setbacks. This commenter
was also concerned that in this case the rule prevents the landowner
from installing drain tile.
Our Response (13): This rule does not prevent any landowner from
installing drain tile. As discussed above under our response to Comment
(10), landowners with wetland easements on their property are always
allowed to install drain tile systems, but if the tile drains wetlands
in violation of the Service's easement, then the landowner may face
legal action.
The situation described by this commenter is possible. The
locations and measurements of the overall property, the protected
wetland areas, and the calculated setback distances may in some cases
be such that there is no location within the borders of the overall
property where drain tile can be placed that is setback from all
easement wetlands at the distances determined by the Service's
calculations. In such a case, the landowner may nevertheless choose to
install drain tile, but they would do so at the risk of draining one or
more easement wetlands and without the assurance of a legal safe
harbor.
Conversely, other landowners may find that they are able to install
drain tile on a wetland easement and setback from all wetlands in full
compliance with the setback distances calculated by the Service, and
thus ensure a legal safe harbor for the installation. Where a
landowner's property fits along the continuum bounded by these two
situations depends on the size and distribution of the wetlands, the
hydrology of the wetlands, and other factors unique to each property.
We did not make any changes to the rule as a result of this
comment.
Comment (14): Two comments expressed support for the Service's
guidance memo on calculating drain tile setbacks, finalized in 2020.
Both of the comments urged the Service to revise the proposed rule to
explicitly reference the guidance memo, and one also urged codifying
the setback calculation content from the existing Service guidance.
Our Response (14): The guidance memo remains in full effect (see
Internal Guidance for Calculating Drain Tile Setbacks, above). The
guidance memo, as well as our internal guidance more generally and any
future updated guidance, need not be expressly referenced in the
regulations in order to guide Service administration of wetland
easements (see Internal Guidance for Calculating Drain Tile Setbacks,
above). There is nothing incongruent between the guidance memo and this
rule. The guidance memo was developed based on the best science
available at that time. It also assures landowners that the Service
will not pursue legal redress should it later be determined that
setback distances were inadequate to protect adjacent wetland areas
from drainage. This regulation codifies these two principles, ensuring
that Service calculations will be based on the best available science
to prevent protected wetland areas from drainage and that landowners
who fully cooperate with Service-provided setbacks will have a legal
safe harbor.
Including the calculation processes of the Service's guidance memo
in the regulations, however, would not be in the interest of the
Service or landowners. In order for setback calculations to be based on
the best available science, the Service needs to be able to update our
processes as empirical experience and new scientific studies provide
new information. Updating those processes through rulemaking is
inefficient and unnecessary. As the Service and other agencies
routinely do, the Service has codified our obligation to use the best
available science in regulation and will then keep our publicly
available, detailed internal guidance up-to-date and effective. This
will allow us to best protect wetlands while also providing accurate,
no-farther-than-necessary setback distances to landowners.
We did not make any changes to the rule as a result of these
comments.
Comment (15): One comment included a request that the Service make
the methodology for determining a drain tile setback publicly
available, and that the Service invite public comments any time the
Service proposes to change the methodology.
Our Response (15): The Service's internal setback guidance
documents containing the methodology for determining a drain tile
setback are publicly available (see Internal Guidance for Calculating
Drain Tile Setbacks, above). Landowners retain the right to challenge
the Service's methodology if they believe there was an error in our
methodology or in our application of the methodology to their case.
This provides an efficient, reasonable, and open process for setback
determinations.
The Service's methodology was established using the best available
science and the expertise and best professional judgment of Service
personnel to provide adequate protection for wetland easement areas.
We did not make any changes to the rule as a result of this
comment.
Comment (16): Two comments called for the Service to establish an
administrative appeal process that is independent of the direction and
control of the Service.
[[Page 41342]]
Our Response (16): Administrative appeals processes are a common
feature of good government throughout Federal agencies. These processes
allow agency subject-matter expertise to form the administrative
hearing record and inform the decision reached on appeal. They also
allow the agency to double-check its initial decision so that it can
identify, and thereby more quickly address, any errors that were made.
Regulated parties, in this case landowners, always have the option of
appealing the ultimate agency decision to a judicial branch court after
exhausting the administrative appeals process, which is sufficient to
address any potential errors in the administrative appeal process that
could harm their interests.
In the U.S. Federal Government, no administrative appeals process
external to the agency whose final decision is being challenged exists.
Quasi-independent administrative tribunals and review boards do exist,
such as the Environmental Appeals Board, a body that hears appeals of
Environmental Protection Agency (EPA) final decisions and reports
directly to the EPA Administrator outside of the regular EPA line
authority. The commenters presented no compelling evidence that the
current administrative appeals process is inherently flawed or not
reaching appropriate determinations concerning wetland easements. The
Service is also not otherwise aware of any reasons the existing appeals
process is inadequate. We do not see any need at this time to devote
considerable resources toward the creation of a quasi-independent body
to hear appeals of Service decisions concerning wetland easements.
Landowners who disagree with a Service-provided setback distance,
or another final decision concerning wetland easements, may appeal to
the appropriate Regional Director in accordance with the procedure
established by 50 CFR 25.45.
We did not make any changes to the rule as a result of these
comments.
Comment (17): One comment questioned how landowners will be
notified of the responsibility to request a setback to protect the
wetlands on their land that are subject to a wetland easement.
Our Response (17): This rule does not obligate or require any
landowner to request a drain tile setback. We have created a voluntary
process for landowners to request and receive a Service-provided drain
tile setback to facilitate coordination between landowners and the
Service and to improve landowner compliance with the requirements of
the Service's wetland easements. This process benefits landowners in
that it provides a legal safe harbor for landowners who fully comply
with the Service's setback determination, as the Service will not seek
legal redress in the event that the wetland drains despite the
landowner's adherence to the Service's setback determination.
Landowners have the right to install drain tile on their land without
requesting a Service-provided setback, but in that case, they are
legally obligated to ensure by their own efforts that the drain tile
does not violate any wetland easement agreement with the Service by
draining protected wetlands.
While the setback request process is voluntary, the Service will
make efforts to notify landowners about this mutually beneficial
opportunity. The Service intends to publicize the opportunity through
various communication channels. In fact, our existing internal guidance
provides strategies, and our process includes steps for communication
with landowners concerning their ability to request a Service-provided
setback. The publication of this rule and the regulations that we are
codifying in the Code of Federal Regulations will also serve as public
notice of this opportunity for landowners with wetland easement
agreements.
We did not make any changes to the rule as a result of this
comment.
Comment (18): One comment expressed concern that the rule does not
clearly tell the landowner what lands are subject to the easement or
provide adequate notice as to the reasonable parameters of the
easement.
Our Response (18): This rule provides a general framework for the
Service in regulating all of our wetland easement interests, so it is
not the appropriate place to delineate individual easement boundaries
in detail. The appropriate place to clarify the boundaries of the
Service's wetland easement is in each wetland easement agreement
document itself. That is why each easement document includes a clear
legal description of the lands that are subject to the easement. In
fact, multiple courts have found the parameters in individual easement
documents to be clear (see, e.g., United States v. Albrecht, 496 F.2d
906 (8th Cir. 1974) (using the phrase ``precise draftsmanship'' in
reference to the terms of the easement agreement), and United States v.
Seest, 631 F.2d 107 (8th Cir. 1980)).
For the same reasons, this rule is not the appropriate means of
notifying landowners of the parameters of wetland easements. Landowners
are adequately notified of the easement and the extent to which it
encumbers their property either when signing the wetland easement
agreement with the Service or when performing due diligence before
obtaining land subject to an existing wetland easement from another
private landowner. Every easement document is registered and publicly
available in the applicable State or county land records, and
landowners can also obtain a copy by contacting their local U.S. Fish
and Wildlife Service station. (If you need help identifying and
contacting your local station, see 50 CFR 2.2 for the contact
information of the nearest Regional Office.) Review of the easement
document provides a landowner with the necessary details of the
boundaries of the easement. Thus, landowners should know of all the
reasonable parameters. Landowners who are nevertheless unsure of the
parameters of an easement are welcome to consult the Service by
contacting their local U.S. Fish and Wildlife Service station. (If you
need help identifying and contacting your local station, see 50 CFR 2.2
for the contact information of the nearest Regional Office.)
We did not make any changes to the rule as a result of this
comment.
Comment (19): One comment requested that, for newly acquired
wetland easements, the Service ensure landowners agreeing to the
easements understand what limitations are associated with drain tile
installation.
Our Response (19): The Service takes steps to ensure that new
landowners are aware of the limitations on drain tile installation that
wetland easements require. The Service's Realty Specialists working
with new landowners who are enrolling their land in wetland
conservation easements inform landowners of what rights the Service
acquires or restricts during the easement agreement process. This
ensures landowners are aware of what a wetland easement will mean for
them before they sign an easement document. Most importantly, the
Service clearly articulates that no wetlands protected by the easement
can be drained. If a landowner wants to retain the ability to drain a
given wetland area, they can choose to not include that individual
wetland area in the wetland easement.
We did not make any changes to the rule as a result of this
comment.
Comment (20): Two comments requested that the regulations be
revised to inform landowners exactly what information and materials
will be required from them when they request a drain tile setback.
[[Page 41343]]
Our Response (20): The Service recognizes that landowners are
rightfully cautious about their private information. The Service
developed FWS Form 3-2554 for landowners to use to request a drain tile
setback from the Service. The form was available for public comment in
our Information Collection Request on OMB's website at <a href="https://www.reginfo.gov/public/">https://www.reginfo.gov/public/</a>. In response to these comments, this final rule
now directly references the form. FWS Form 3-2554 requests basic
contact information for the landowner, along with the easement
number(s) for the specific land covered by the wetland easement. In
response to these comments, we have revised the form to also request
desired tile depths and diameters, as well as attachment of relevant
installation plans, to facilitate our setback calculations.
It would be inefficient to specify in our regulations the exact
information requested by the form, especially as this could change over
time. Instead, the Service is specifying the form in the regulations,
has ensured the form contains all currently needed information, and
will ensure the form remains updated in the future. The Service is
following processes established by the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) for FWS Form 3-2554. This includes ensuring
that the information collection is reasonable, that no more information
is collected than necessary, and that the form is renewed every 3 years
so that it remains updated and compliant with the other requirements.
The Privacy Act of 1974 (5 U.S.C. 552a) also ensures that private
information provided on the form is protected.
We made changes to the rule as a result of these comments.
Specifically, we added a direct reference to FWS Form 3-2554 and added
additional fields to the form. This provides greater clarity on what
information and materials landowners must provide when requesting a
drain tile setback.
Comment (21): One comment expressed concern that the proposed rule
does not include any assurances that information provided by landowners
will be confidential and not subject to the Freedom of Information Act
(FOIA; 5 U.S.C. 552, as amended by Pub. L. 104-231, 110 Stat. 3048).
Our Response (21): The Service, like all other agencies in the
Executive Branch, must comply with FOIA. FOIA requires that any person
may request access to records of the Executive Branch of the United
States, and copies of the records must be provided in full, except to
the extent that all or specific portions of the record fall under one
or more of the exempt categories. Among these exempt categories are
information that would violate an individual's right to privacy and
information that constitutes trade secrets or other confidential
commercial or financial information (see 5 U.S.C. 552(b)). Thus, the
Service may be compelled to turn over redacted copies of certain
records concerning wetland easements, but the personally identifiable
information of landowners and any proprietary commercial information in
the records, including the information collected on FWS Form 3-2554,
are exempt from FOIA and not disclosed. As this is a general exemption
to FOIA applicable across the Federal Government, it need not be
specified in our regulations. We did, however, add a standard FOIA
statement to the form that helps to clarify the point that business
information is FOIA exempt and directs landowners to label the
information that they consider to be business information when
submitting the form.
We did not make any changes to the rule as a result of this
comment, but we did modify the associated setback request form to add a
standard FOIA statement on business information.
Changes From the Proposed Rule
As discussed above under Summary of Comments and Responses, based
on comments we received on the April 28, 2023, proposed rule (88 FR
26244), we made changes in this final rule and to the associated
setback request form. In this final rule, we added a direct reference
to FWS Form 3-2554 in the regulation at 50 CFR 25.24(b) (see Regulation
Promulgation, below). In the FWS Form 3-2554, we added three fields
pertaining to technical information: one requesting the desired depths
of the drain tile installation, if known; one requesting the desired
diameters of the drain tile installation, if known; and one requesting
that the landowner attach their drain tile installation plan, if
available. We also added a standard FOIA statement to the form that
clarifies business information is FOIA exempt and directs landowners to
label the information that they consider to be business information
when submitting the form. These changes were made in response to
comments requesting that we provide more specificity as to what
information and materials landowners will be asked to include when
requesting a Service-provided setback.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. We have developed this rule in a manner
consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rulemaking action is not
significant.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities. However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b).
Within the Prairie Pothole Region (comprising Iowa, Minnesota,
North Dakota, South Dakota, and Montana), there are approximately
28,000 wetland easements, of which the majority are located on
privately owned farmland. Thus, small businesses within the crop
production industry (North American Industry Classification System 111)
may be impacted by the rule. One aspect of the rule codifies the
Service's existing drain tile setback practices; therefore,
[[Page 41344]]
the effect of this regulatory provision on small businesses will be
negligible. The rule also provides legal certainty for landowners who
adhere to the setback distances prescribed by the Service. The
information collection form to request the setback distances is
estimated to take 25 minutes, which will be negligible for small
businesses. Currently, approximately 20 landowners annually (less than
0.01 percent) must remove drain tile systems because they do not adhere
to the contract that granted the easement. As a result of the added
benefit of legal certainty, the rule may provide the incentive to these
landowners to adhere to the contract and, thus, reduce the costs of
removing drain tile systems. The average annual number of small
businesses (20) potentially impacted by this rulemaking is not
substantial.
Therefore, we certify that this rule will not have a significant
economic effect on a substantial number of small entities as defined
under the RFA. A regulatory flexibility analysis is not required.
Accordingly, a small entity compliance guide is not required.
Congressional Review Act
This rule is not a major rule under 5 U.S.C. 804(2) of the
Congressional Review Act. We anticipate no significant employment or
small business effects. This rule:
a. Will not have an annual effect on the economy of $100 million or
more. The minimal impact will be scattered across five States and will
most likely not be significant in any local area.
b. Will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
c. Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule will not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule will not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (E.O. 12630)
In accordance with E.O. 12630, this rule will not have significant
takings implications. A takings implication assessment is not required.
The rule does not have any takings implications because it will not
impact protected property rights. The rule provides clarity and
standardization of the Service's existing process for providing drain
tile setback distances to landowners and provides landowners with legal
protection when they choose to follow the Service's setback distances.
The rule does not require landowners to consult the Service regarding
setback distances, nor does it require landowners to follow the
Service's setback distances if they are provided.
Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
Civil Justice Reform (E.O. 12988)
In accordance with E.O. 12988, the Department of the Interior has
determined that this rule will not unduly burden the judicial system
and that it meets the requirements of sections 3(a) and 3(b)(2) of the
Order.
Energy Supply, Distribution or Use (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A statement of energy effects is not
required.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under Executive Order 13175 and have determined that it has no
substantial direct effects on federally recognized Indian Tribes.
Paperwork Reduction Act (PRA)
This rule contains new information collections. All information
collections require approval under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
The OMB reviewed the information collection requirements associated
with requesting individualized drain tile setback distances for wetland
easements in the PPR and assigned the placeholder OMB Control Number
1018-0196, pending final review and approval of the following:
Requests for Drain Tile Setbacks (FWS Form 3-2554)
Upon the request of a landowner (via submission of FWS Form 3-
2554), the Service will provide setback distances for the placement of
drain tile on lands covered by wetland easements. The setback distances
will be based on best available science and must be adequate to ensure
protected wetland areas are not drained. Information collected via FWS
Form 3-2554 includes basic contact information for the landowner, along
with the easement number(s) for the specific land covered by the
wetland easement.
Revisions to Form Since Proposed Rule Phase: In response to public
comments, we revised the form to also collect technical information
about the contemplated drain tile installation, specifically the
desired drain tile depths and diameters, and request that the landowner
attach any plans they have prepared for the installation (e.g., a
geographic information system (GIS) Shapefile). We also updated the
reporting and recordkeeping time burden estimates to be 10 minutes for
reporting and 15 minutes for recordkeeping. Finally, we added a
standard FOIA statement to the form that clarifies business information
is FOIA-exempt and directs landowners to label the information that
they consider to be business information when submitting the form.
The Service will provide guidance to landowners about what
materials should be submitted as part of a request and will provide
setback distances to landowners within a Service-provided timeframe.
When a landowner coordinates their tile planning with the Service in
accordance with this guidance and adheres to the Service-provided drain
tile setback distances, the Service will not seek legal redress if it
is later determined that Service-provided drain tile setback distance
failed to protect the wetland areas from drainage, provided that drain
tile has not been modified, enhanced, or replaced.
Title of Collection: Requests for Drain Tile Setback (50 CFR part
25).
OMB Control Number: 1018-0196.
Form Number: FWS Form 3-2554.
Type of Review: New.
Respondents/Affected Public: Individuals/households, businesses,
and State/local/Tribal governments.
[[Page 41345]]
Total Estimated Number of Annual Respondents: 150.
Total Estimated Number of Annual Responses: 150.
Estimated Completion Time per Response: 5 minutes for reporting and
10 minutes for recordkeeping requirements.
Total Estimated Number of Annual Burden Hours: 63.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Nonhour Burden Cost: None.
On April 28, 2023, we published in the Federal Register (88 FR
26244) a proposed rule (RIN 1018-BG80) that announced our intention to
request OMB approval of the information collections identified in the
rule. In that proposed rule, we solicited comments for 60 days on the
information collections in this submission, ending on June 27, 2023.
Summaries of comments addressing the information collections contained
in this rule, as well as the agency response to those comments, can be
found above under Summary of Comments and Responses, as well as in the
information collection request submitted to OMB on the <a href="http://RegInfo.gov">RegInfo.gov</a>
website at <a href="https://www.reginfo.gov/public/">https://www.reginfo.gov/public/</a>.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Send your written comments and suggestions on this information
collection by the date indicated in DATES to OMB, with a copy to the
Service Information Collection Clearance Officer, U.S. Fish and
Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church,
VA 22041-3803 (mail); or <a href="/cdn-cgi/l/email-protection#367f5850596975595a5a7650414518515940"><span class="__cf_email__" data-cfemail="d59cbbb3ba8a96bab9b995b3a2a6fbb2baa3">[email protected]</span></a> (email). Please reference
``OMB Control Number 1018-0196 Drain Tile Setbacks'' in the subject
line of your comments.
National Environmental Policy Act
We are required under the National Environmental Policy Act (NEPA;
42 U.S.C. 4321 et seq.) to assess the impact of any Federal action
significantly affecting the quality of the human environment, health,
and safety. We have determined that the rule falls under the class of
actions covered by the following Department of the Interior categorical
exclusion: Policies, directives, regulations, and guidelines that are
of an administrative, financial, legal, technical, or procedural
nature; or whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and will later be
subject to the NEPA process, either collectively or case-by-case (43
CFR 46.210(i)). The regulations codify existing Service practice in
administering minimally restrictive wetland easements.
Primary Author
Debbie DeVore, Division of Natural Resources and Conservation
Planning, National Wildlife Refuge System, is the primary author of
this rulemaking document.
List of Subjects in 50 CFR Part 25
Administrative practice and procedure, Concessions, Reporting and
recordkeeping requirements, Safety, Wildlife refuges.
Regulation Promulgation
For the reasons set forth in the preamble, we amend title 50,
chapter I, subchapter C of the Code of Federal Regulations as set forth
below:
PART 25--ADMINISTRATIVE PROVISIONS
0
1. The authority citation for part 25 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i,
3901 et seq.; and Pub. L. 102-402, 106 Stat. 1961.
Subpart B--Administrative Provisions
0
2. Revise Sec. 25.23 to read as follows:
Sec. 25.23 Information collection requirements.
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this part and assigned
OMB Control Numbers 1018-0102, 1018-0140, 1018-0181, and 1018-0196
(unless otherwise indicated). Federal agencies may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Direct comments regarding the burden estimates or any other aspect of
the information collection to the Service's Information Collection
Clearance Officer at the address provided at 50 CFR 2.1(b).
0
3. Add Sec. 25.24 to read as follows:
Sec. 25.24 Drain tile setbacks.
(a) Applicability. The regulations in this section apply to any
easement lands protected by a U.S. Fish and Wildlife Service easement
for waterfowl management rights (commonly referred to as a wetland
easement) that were acquired through the Small Wetlands Acquisition
Program in the Prairie Pothole Region of Iowa, Minnesota, Montana,
North Dakota, and South Dakota. The regulations in this section apply
only to setbacks provided by the Service beginning on June 12, 2024.
(b) Drainage tile setbacks. Upon the request of a landowner, using
FWS Form 3-2554, the Service will provide setback distances for the
placement of drain tile on lands covered by wetland easements. The
setback distances will be based on the best available science and must
be adequate to ensure that protected wetland areas are not drained.
Contact your local U.S. Fish and Wildlife Service station to obtain
further information. You can obtain contact information for your local
Service station by contacting one of the Service regional offices;
addresses for these offices are at 50 CFR 2.2.
(c) Protection from legal redress. The Service will provide
guidance to landowners about what materials should be submitted as part
of a request and will provide setback distances to landowners within a
Service-provided timeframe. When a landowner coordinates tile planning
with the Service in accordance with the regulations in this section and
adheres to the Service-provided drain tile setback distances, including
the tile diameters and tile depths below the surface that were used to
calculate the Service-provided drain tile setback distances, the
Service will not seek legal redress if it is later determined that the
drain tile setback distances provided by the Service failed to protect
the wetland areas from drainage, provided that the
[[Page 41346]]
drain tile has not been modified, enhanced, or replaced.
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-10242 Filed 5-10-24; 8:45 am]
BILLING CODE 4333-15-P
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</html>Indexed from Federal Register on May 13, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.