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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations
grasslands currently enrolled in CRP in a contract that is set to expire within 1
year. Section 1468.32c of the ACEP
interim rule identifies as a potential State priority for WRE enrollment whether land is farmed wetland and adjacent land that is currently enrolled in CRP in a contract that is set to expire within 1 year. However, neither ALE
nor WRE identify a specific priority ranking for CRPTIP land. Therefore, NRCS is adding a specific priority in the ACEP regulation for CRPTIP.
Comment: NRCS received comment related to the practices and activities administered through ACEP, including:
Encouraging NRCS to adopt the Active River Area Concept to its management scheme;
Proposing that all easements go through a plant and plant community survey by a botanist prior to enrollment;
Seeking confirmation that NRCS
would not enter into agreements with entities who would preclude forested riparian buffers;
Recommending that NRCS
recognize specifically intensive rotational grazing as one of the best management tools; and Recommending that diverse native plant mixes be prioritized in ACEP
wetland and grassland restoration and management plans.
Response: NRCS addresses how best to administer its practices and activities through technical and program policy implemented at the State level through the discretion given NRCS State Conservationists. In general, NRCS
supports the development and implementation of plans and restoration activities that consider the value of management and restoration activities that provide for a diverse assemblage of native plants, including pollinatorfriendly species. However, NRCS
believes that specific resource management issues are best addressed at the State level. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to program administration that did not fit neatly into any single subtopic:
Require landowners to assume responsibility for operation and maintenance of easements;
Provide sufficient staffing to meet customer service needs;
Concern over the authorization of permanent easements;
Make publicly available information related to easement enrollments such as acres enrolled, soil classification of land, and before and after land use;
Condition ACEP so that all funded efforts achieve consistency with State
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water quality standards and salmon recovery plan habitat objectives; and Review easement deed terms at least every 100 years to ensure consistency with existing conditions.
Response: The operation and maintenance that may occur on ACEP
easements and who may perform such activities is addressed in the terms of the easement deeds.
NRCS staffing is not a part of this rulemaking, but the agency will continue providing the highest quality customer service and program implementation with its resources.
Permanent easements are authorized and prioritized by statute.
As NRCS collects data, the agency generates multiple reports on a variety of impacts, which are typically made available to the public upon request.
NRCS will consider the recommendation regarding consistency with water quality standards and recovery plan habitat objectives as it continues to evaluate and refine ranking and eligibility criteria.
Review of easement deed terms at least every 100 years is beyond the scope of current regulation and policy.
No change is made to the regulation in response to these issues.
Comment: NRCS received comment related to source water protection issues including:
Recommending that NRCS
acknowledge source water protection as a goal of ACEP;
Adding discussion about how source water protection priorities will be included in the implementation of ACEP and other NRCS conservation programs;
Addressing how ACEP will be included in accounting for overall source water expenditures by publishing a plan for comment;
Adding source water protection in the ACEP ranking criteria;
Ensuring adequate attention given to source water protection at State technical committees; and Recommending that NRCS address how spatial data related to source water areas will intersect with ACEP.
Response: Source water protection is a statutory priority and NRCS
Headquarters provides guidance to ensure that all its programs are contributing to the protection of source water protection areas. The ACEP
regulation includes water quality as a consideration in the list of ranking criteria for both ALE and WRE and the State Conservationist, in consultation with the State technical committee, may develop and include specific considerations for source water protection as part of their States
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ranking factors. NRCS uses geographic information system tools to help identify source water protection areas and easement enrollment. No change is made to the regulation in response to this issue.
WRE Issues NRCS received comment related to ACEPWRE topics as follows:
Comment: NRCS received comment supporting revisions to the definition of wetland restoration in the interim rule regarding ACEPWRE. Comment highlighted that the expanded flexibility would benefit wetland functions and habitat values. Comment also encouraged NRCS to engage robustly with State technical committees when devising the State-specific NRCS criteria and guidelines for wetland restoration.
Response: NRCS appreciates support for the revised definition of wetland restoration.
Comment: NRCS received comment related to compatible use authorizations under ACEPWRE, expressing support for the inclusion of water management and supporting the use of such management activities to maintain, enhance, and diversify wetland habitats on ACEPWRE easements. Comment also recommended removing hunting and fishing from the list of activities that can be authorized as a compatible use in 1468.37a2ii because undeveloped recreational uses, including hunting and fishing, are listed as one of the five rights reserved by the landowner in the ACEPWRE warranty easement deed. Comment also identified that NRCS should seek input from the State technical committee on technical matters related to compatible use designations and guidelines.
Response: NRCS appreciates support for the inclusion of water management and recognizes the potential utility of this activity to wetland functions and values when properly prescribed and implemented on ACEPWRE easements through the compatible use authorization process. Hunting and fishing are specifically identified in the ACEP statute as a compatible use that is subject to NRCS determination of compatibility. NRCS has implemented this provision by identifying in all ACEPWRE easement deeds that undeveloped hunting and fishing, subject to the terms of the easements, is a reserved right. However, any hunting and fishing activities that extend beyond that reserved right are prohibited unless determined compatible by NRCS through the compatible use authorization process. In the ACEP interim rule, NRCS included compatible use criteria and related
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