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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations
of agricultural viability or other conservation values, and requested removal of reference to NEPA entirely.
Comment also requested clarification about how NEPA sequencing considerations may affect NRCS
approval of easement administration actions.
Response: The decision to modify or terminate a Federal interest has long been subject to NEPA review, and NRCS
must comply with NEPA statutory, regulatory, and policy requirements during its review of a requested easement administration action. These requirements include reviewing whether adverse impacts associated with an easement administration action can be avoided, minimized, or mitigated. Since the impacts and outcomes of an easement administration action cannot be categorized generally, a specific review is necessary. As NRCS
evaluates the NEPA analyses developed for the individual easement administrative actions, it is gathering evidence that may be used to propose categorical exclusions for certain easement administrative actions in the future. NRCS may identify new categorical exclusions, through issuing new NEPA procedures including by amending NRCs current regulations implementing NEPA at 7 CFR part 650, consistent with the Council on Environmental Qualitys regulations for implementing the procedural provisions of NEPA, published at 40 CFR parts 1500 through 1508. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to adding references or additional requirements to the easement administration action criteria, including a reference to the easement administration criteria indicating that any easement modification or termination conform to State law requirements, and including a reference that easement administration actions must conform to section 170h of IRC
and associated U.S. Department of the Treasury Treasury regulations.
Comment also requested that easement administration actions align more closely with Land Trust Alliance LTA
industry standards.
Response: Easement administration actions are documented in land records in accordance with State law. NRCSs authority to approve easement administration actions is not subject to requirements in section 170h of the Treasury or associated regulations related to charitable donations.
However, entities are not prevented from incorporating language that addresses their own compliance with
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section 170h in their part of the conservation easement deed terms.
NRCS must implement easement administration actions in accordance with Federal law and responsibilities;
private land trusts are not subject to these requirements when conducting actions without Federal involvement. It would not be appropriate for NRCS to adopt industry standards that do not account for these Federal standards. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to the various easement administration action requirements, including:
Recommending that NRCS remove the 10-percent limitation on easement administration actions so that an easement modification or exchange action would just need to meet one of the two thresholds: 1 The action provide equal or greater conservation functions and values and 2 equal or greater economic values;
Recommending removal of the standard of no net loss of easement acres required for easement subordination, modification, or exchange actions; and Recommending a change to the definition of easement termination to acknowledge compensation that may be owed to other interest holders in a conservation easement.
Response: NRCS uses the 10-percent limitation requirement to minimize the effects of administration actions. NRCS
selected the 10-percent level based upon review of the scope of prior requests for easement administration actions and for consistency with other NRCS
conservation programs.
It is a statutory requirement that an easement modification or exchange action must meet both thresholds equal or greater conservation value and equal or greater economic value.
As to the threshold for an easement subordination, modification, or exchange to result in no net loss of easement acres, NRCS believes, based on long-standing experience, that the existing standard ensures that the public investment in conservation easements endures for the life of the easement and that NRCS is able to make credible determinations of equal or greater conservation and economic value as required by statute. The definition of easement termination addresses only the United States rights or interests in an easement, including that the United States must be fully compensated for the termination of such rights and interests that are held by the United States. The easement termination language does not
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address or affect compensation that may be owed to other interest holders.
No change is made to the regulation in response to these issues.
Comment: NRCS received comment that requested NRCS modify language regarding easement termination to clarify that it also applies to the partial termination of an easement.
Response: NRCS has clarified that partial termination of an easement is subject to the easement termination requirements to the same extent as the full termination of an easement. All easement termination actions are subject to review at both the NRCS State office and National Headquarters levels.
Comment: NRCS received comment that supported allowing the use of updated deed provisions when making easement amendments, cautioned that flexibility be granted to do simple amendments, and advised NRCS not to require updates to new language that may be contained in updated deed provisions of those provisions are unnecessary or unacceptable to the landowner.
Response: NRCS appreciates the support received for deed amendment process requirements. Deed amendments to ACEPALE easement deeds must be approved by NRCS, as discussed above. No change is made to the regulation in response to this issue.
Environmental Markets Comment: NRCS received comment expressing support for updates to the section on environmental markets.
Response: NRCS appreciates the comments.
Fund Allocations NRCS received comment related to ACEP fund allocations as follows:
Comment: NRCS received comment supporting the historic division of fund allocations across ACEP, that is based on demand for funding. Approximately 70 percent of ACEP funding is dedicated to wetland conservation through ACEP
WRE and 30 percent is for agricultural land preservation through ACEPALE.
Another comment urged greater flexibility with respect to fund allocations.
Response: NRCS has not specified in the regulation an allocation of program funds between the two components of the program. NRCS maintains program flexibility year-to-year to respond to program demand. No change is made to the regulation in response to this issue.
Comment: NRCS received comment recommending continued use of ACEP
WRE authorities to enter into agreements and contracts with nongovernmental organizations, State
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