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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations
made to the regulation in response to this issue.
Comment: NRCS received comment expressing general support for various elements of the deed requirements set forth in the interim rule, including commending NRCS for the revised mineral development language;
language regarding an entitys use of their own deed terms and conditions;
and supporting the U.S. right of enforcement and right of inspection language in the interim rule.
Response: NRCS thanks respondents for their input. No change is made to the regulation in response to these issues.
Comment: NRCS received comment related to amendment clauses that must be included in each agricultural land easement deed, recommending splitting the amendment provision in the regulation to avoid confusion between amendments and the various types of easement administration actions subordination, modification, exchange, and termination actions.
Response: NRCS appreciates the request for clarification regarding the requirement that each agriculture land easement deed include clauses that address amendments or changes that may occur after recordation of the easement. To clarify, NRCS uses the term amendment in the regulatory deed requirement in 1468.25d4
broadly to include each type of easement administration action:
Subordination, modification, exchange, and termination. In practice, NRCS
provides two separate clauses in the minimum deed terms to address this regulatory deed requirement and fully encompass the various types of easement administration actions. NRCS
revised the text in the final rule to clarify and remove ambiguity regarding the various types of changes to the easement deed or easement area that must be approved in advance by NRCS.
Comment: NRCS received comment regarding the interim rules impervious surface limitations that must be specified in ACEPALE easement deeds, including comments recommending that NRCS authorize a blanket impervious surface waiver to ACEPALE easement deed language and cap the waiver authority at 5 percent of the easement area.
Response: The impervious surface limitation and the current cap are wellestablished. NRCS explained in prior rulemakings the basis for its use of a 2-percent limitation and the flexibility of having a waiver that allows up to 10
percent based upon site-specific factors.
In particular, this limitation provides a reasoned balance between ensuring the future capacity of agricultural land use
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with flexibility to allow for changes to the agricultural operation.
NRCS requires a parcel-by-parcel determination because impervious surface limitations are site-specific.
NRCS will not approve a blanket waiver or grant eligible entities a right to create blanket waivers for a greater impervious surface limit.
However, there is an existing waiver option available that may have been underutilized. Specifically, when an eligible entity has a waiver process consistent with NRCS limitations and it is based on parcel-by-parcel determinations made by the entity, the entity may request authority from NRCS
to use its own process. In this case, separate individual parcel waivers from NRCS would not be necessary.
No change is made to the regulation in response to this issue.
Comment: NRCS received comment regarding the subsurface mineral deed provisions. The comments requested:
A requirement that native plants be used to remediate subsurface mining impacts;
A requirement that involves State technical committees when determining impact of mineral development;
That NRCS seek guidance on timing and responsibility for the development of the subsurface development plan; and That NRCS provide flexibility in the identification of de minimis gravel extraction sites.
Response: NRCS recognizes the preference for the use of native plants for remediating sites in general, but the determination of the appropriate vegetation for any particular easement must be based upon site-specific factors.
While the State technical committee can provide input on the impact of mineral development to particular land uses or locations in the State, such input would be inappropriate on an individual easement basis.
The eligible entity is responsible for providing the subsurface mineral development plan to NRCS, which must be approved by NRCS prior to initiation of the mineral development activity, as set forth in 1468.25d7v.
The de minimis gravel extraction matter is not a regulatory issue but the comment responds to text that exists in the current minimum deed terms.
NRCS would like to clarify that de minimis gravel extraction is through surface methods and therefore not encompassed by the subsurface mineral deed. Additionally, the current minimum deed terms authorize such de minimis gravel extraction for on-farm purposes. No change is made to the regulation in response to these issues.

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Comment: NRCS received comment recommending that certified entities need not be required to seek NRCS
approval for subdivision and other activities that currently require NRCS
approval under regulatory deed requirements and allow only notice to NRCS of these actions as sufficient.
Response: The interim rule language did not change from prior rules.
Certified entities have broad discretion already but still must meet regulatory deed requirements. NRCS, as a fiduciary, must approve those actions that can so fundamentally affect program purposes.
Comment: NRCS received comment with respect to the requirement of the United States right of enforcement in the agricultural land easement deed, including request that a reference to 1468.28 be added to the right of enforcement definition, recommendation that the word contingent should be inserted before the term United States right of enforcement, and a statement that the right of enforcement does not include the ability of the NRCS enforce the terms of an ALE plan if such a plan exists.
Response: NRCS removed the term contingent many years ago to remove confusion that such right is a currently vested right. The term contingent indicates that NRCSs exercise of its right of enforcement is conditioned on particular events. It does not mean that the right itself is contingent, such that it would only be vested upon some future event.
NRCS has not included any cross references to the various sections which relate to the United States right of enforcement in the definition itself since such cross-referencing is unnecessary.
Agricultural land easements acquired under the 2018 Farm Bill are not required to have or be subject to an ALE
plan. NRCS enforces highly erodible land conservation plans on highly erodible cropland as required by the ACEPALE statute; however, NRCS
does not otherwise identify in the regulation the enforcement of an ALE
plan.
No change is made to the regulation in response to this issue.
Comment: NRCS received comment stating that the statutory requirement of providing notice and right to participate when exercising the right of inspection should be added to the rule and deed terms.
Response: The circumstances under which NRCS may enter upon and inspect an easement pursuant to the United States right of enforcement is
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