National Wildlife Refuge System; Drain Tile Setbacks, 26244-26248 [2023-08998]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 82 (Friday, April 28, 2023)]
[Proposed Rules]
[Pages 26244-26248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08998]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 25

[Docket No. FWS-HQ-NWRS-2022-0092; FXRS12610900000-212-FF09R20000]
RIN 1018-BG80


National Wildlife Refuge System; Drain Tile Setbacks

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 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. The proposed 
regulations would codify the process by which the Service establishes 
drain tile setbacks in wetland easement contracts. Setback distances 
would be 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 proposed regulations would apply only to setbacks 
provided by the Service beginning on the effective date of the final 
rule.

DATES: 
    Written comments: We will accept comments received or postmarked on 
or before June 27, 2023.
    Information collection requirements: If you wish to comment on the 
information collection requirements in this proposed 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 
proposed rule between 30 and 60 days after publication of this proposed 
rule in the Federal Register. Therefore, comments should be submitted 
to OMB by June 27, 2023.

ADDRESSES: 
    Written comments: You may submit comments by one of the following 
methods:
     Electronically: Go to the Federal eRulemaking Portal: 
https://www.regulations.gov. In the Search box, type in FWS-HQ-NWRS-
2022-0092, which is the docket number for this rulemaking. Then, click 
on the Search button. On the resulting screen, find the correct 
document and submit a comment by clicking on ``Comment.''
     By hard copy: Submit by U.S. mail or hand delivery: Public 
Comments Processing, Attn: FWS-HQ-NWRS-2022-0092; U.S. Fish and 
Wildlife Service; 5275 Leesburg Pike, MS: PRB (JAO/3W); Falls Church, 
VA 22041-3803.
    We will not accept email or faxes. We will post all comments on 
https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see Request for Comments, below, 
for more information).
    Information collection requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted by the date specified above in DATES 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 [email protected] (email). 
Please reference ``OMB Control Number 1018-New Drain Tile Setbacks'' 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 the numerous small wetlands and potholes 
typical of the PPR 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 that supports waterfowl hunting and an associated 
industry that creates an estimated 30,000 jobs and nearly $1 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

[[Page 26245]]

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 proposed rulemaking action would create 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.

This Proposed Rule

    The proposed regulations in this document clarify 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 proposed 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, the 
proposed regulations would clarify that tile may be installed on a 
wetland easement tract provided that the tile does not drain a 
protected wetland area.
    Because the impact of a given drainage system on wetland areas 
varies greatly depending on site conditions, the Service will provide 
individual drain tile setback distances to landowners. The proposed 
regulations would require the Service to establish drain tile setback 
distances based upon the best available science, considering soil 
characteristics, tile diameter, the depth of the tile below the 
surface, and/or topography that ensure protected wetland areas are not 
drained. Furthermore, the Service will provide these setback distances 
to landowners upon request.
    Additionally, we propose 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. These proposed 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 
would 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.

Proposed Amendments to Existing Regulations

    This document proposes to codify 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, 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 would apply only to setbacks provided by the 
Service beginning on the effective date of the final rule.

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 were built upon the 
Administration Act in a manner that provides an ``organic act'' for the 
Refuge System, similar to organic acts that exist

[[Page 26246]]

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 Act 
contains 14 directives to the 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.

Request for Comments

    You may submit comments and materials on this proposed rule by any 
one of the methods listed in ADDRESSES. We will not accept comments 
sent by email or fax or to an address not listed in ADDRESSES. We will 
not consider hand-delivered comments that we do not receive, or mailed 
comments that are not postmarked, by the date specified in DATES.
    We will post your entire comment on https://www.regulations.gov. 
Before including personal identifying information in your comment, you 
should be aware that we may make your entire comment--including your 
personal identifying information--publicly available at any time. While 
you can ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on https://www.regulations.gov.

Required Determinations

Clarity of This Proposed Rule

    Executive Orders 12866 and 12988 and the Presidential Memorandum of 
June 1, 1998, require us to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this rulemaking is not significant.
    Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866 
while calling for improvements in the nation's regulatory system to 
promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. E.O. 13563 emphasizes 
further that regulations must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. We have developed this rule in a manner 
consistent with these requirements.

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 proposed rule. One aspect of the proposed rule 
codifies the Service's existing drain tile setback practices; 
therefore, the effect of this regulatory provision on small businesses 
would be negligible. The proposed 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 15 minutes, which would 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 proposed 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, as proposed, would not have a 
significant economic effect on a substantial number of small entities 
as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
An initial regulatory flexibility analysis is not required. 
Accordingly, a small entity compliance guide is not required.

Congressional Review Act

    The proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Congressional Review Act. We anticipate no significant employment or 
small business effects. This proposed rule:
    a. Would not have an annual effect on the economy of $100 million 
or more. The minimal impact would be scattered across five States and 
would most likely not be significant in any local area.
    b. Would not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions.
    c. Would 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 proposed rule would not impose an unfunded mandate on State, 
local, or Tribal governments or the private sector

[[Page 26247]]

of more than $100 million per year. The proposed rule would 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 proposed rule would not have 
significant takings implications. A takings implication assessment is 
not required. The proposed rule does not have any takings implications 
because it would not impact protected property rights. The proposed 
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 proposed rule would not require 
landowners to consult the Service regarding setback distances, nor 
would 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 
proposed 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 proposed rule would 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 proposed 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 
proposed 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 proposed 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 new reporting and/or recordkeeping requirement 
associated with requests for drain tile setbacks described below 
requires approval by OMB:

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.
    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-NEW.
    Form Number: FWS Form 3-2554.
    Type of Review: New.
    Respondents/Affected Public: Individuals/households, businesses, 
and State/local/Tribal governments.
    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: 39.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Annual Nonhour Burden Cost: None.
    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 [email protected] (email). Please reference 
``OMB Control Number 1018-New 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 proposed 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 proposed regulations would 
codify existing Service practice in administering

[[Page 26248]]

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.

Proposed Regulation Promulgation

    For the reasons set forth in the preamble, we propose to 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 part 25 and assigned 
OMB Control Numbers 1018-0102, 1018-0140, 1018-0181, or 1018-#### 
(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 [EFFECTIVE DATE 
OF THE FINAL RULE].
    (b) Drainage tile setbacks. Upon the request of a landowner, 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 drain tile has not 
been modified, enhanced, or replaced.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-08998 Filed 4-27-23; 8:45 am]
BILLING CODE 4333-15-P