AGENCY:Fish and Wildlife Service, Interior.

ACTION:Final rule.

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 https://www.reginfo.gov/​public/​do/​PRAMain.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 Info_Coll@fws.gov (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 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 https://www.fws.gov/​sites/​default/​files/​documents/​Guidance-Memo-Drain-Tile-Setbacks-Wetland-Easements.pdf 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: https://fws.gov/​our-facilities). 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.