National Wildlife Refuge System; Drain Tile Setbacks, 41336-41346 [2024-10242]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Rules and Regulations]
[Pages 41336-41346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10242]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 25

[Docket No. FWS-HQ-NWRS-2022-0092; FXRS12610900000-245-FF09R25000]
RIN 1018-BG80


National Wildlife Refuge System; Drain Tile Setbacks

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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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 [email protected] (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

[[Page 41337]]

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.

Amendments to Existing Regulations

    This rule codifies 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,

[[Page 41338]]

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 will apply only to setbacks provided by the Service 
beginning on the effective date of this final rule (see DATES, above).

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 built upon the 
Administration Act in a manner that provides an ``organic act'' for the 
Refuge System, similar to organic acts that exist 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 Administration Act, as 
amended, contains 14 directives to the Secretary of the Interior 
(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.

Summary of Comments and Responses

    On April 28, 2023, we published in the Federal Register (88 FR 
26244) a proposed rule to establish new regulations for wetland 
easements that would bring consistency, transparency, and clarity for 
both easement landowners and the Service in the administration of 
conservation easements, pursuant to the Administration Act, as amended 
by the Improvement Act. We accepted public comments on the proposed 
rule for 60 days, ending June 27, 2023. By that date, we received 
comments from eight commenters on the proposed rule. One commenter's 
comment was unrelated to the proposed rule. We discuss the remaining 
substantive topics raised by commenters below.
    Comment (1): Five comments expressed general support for the 
proposed rule. These comments expressed support for drain tile setbacks 
as a ``good idea'' to protect wetlands while providing transparency and 
clarity for landowners whose land is encumbered with an easement for 
waterfowl management rights (commonly referred to as a wetland 
easement).
    Our Response (1): We appreciate this general support. We designed 
this rule to make the drain tile setback process more open and 
transparent, and to simplify and clarify wetland easement 
responsibilities for both landowners and the Service.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (2): Two comments asked the Service to withdraw the 
proposed rule in its entirety.
    Our Response (2): The Service carefully considered the concerns and 
reasons presented in each of these comments underlying the request to 
withdraw the proposed rule and not issue a final rule. These concerns, 
which are addressed below, do not individually or cumulatively provide 
a persuasive rationale for the Service to withdraw the proposed rule, 
nor to postpone the issuance of this final rule for further 
consideration.
    Notably, each of these comments expressed support for the Service's 
guidance memo for wetland easements (see Internal Guidance for 
Calculating Drain Tile Setbacks, above). The commenters also implied 
that a part of their reasoning for requesting that the Service withdraw 
the proposed rule was grounded in the belief that a final rule would 
supersede the guidance memo; both commenters stated a preference for 
the guidance memo. As discussed further below in our response to 
Comment (14), this rule is consistent with the guidance memo, and that 
guidance memo remains in effect with the publication of this final 
rule.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (3): One comment urged general caution with this rule, 
given that it allows drain tile into an area with wetland easements.
    Our Response (3): The Service acknowledges the concerns underlying 
this comment and is committed to protecting the wetlands under our 
easements. At the same time, the Service cannot constrain a landowner's 
rights without the appropriate agreement and compensation. Through a 
wetland easement, the Service buys minimally restrictive rights, so the 
landowner may not drain, burn, fill, or level wetland areas, but we do 
not purchase rights specifically concerning the installation of drain 
tile. In some cases, it is possible for landowners to install tile 
within the boundaries of wetland easements without draining wetland 
areas, and they have the right to do so in such cases.
    The Service's solution to balancing our right to prohibit draining 
of wetlands under the easement and a landowner's right to install drain 
tile within the easement boundary, as long as it does not drain those 
wetlands, is the Service-provided setback process codified by this 
rulemaking. The need for caution and care in the installation of tile 
near wetlands is met when landowners coordinate with the Service and 
are provided with setbacks that adequately protect easement wetlands.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (4): Two commenters requested that we ensure the rule 
considers or is consistent with other drainage and water laws in Iowa, 
Minnesota, and North Dakota.
    Our Response (4): The Service routinely works and coordinates with 
State agency partners on various aspects of our conservation mission, 
including water rights and wetland management. The Service works with 
State agencies, landowners, drainage districts, and water boards 
regarding efforts to maintain, repair, and replace drain tile and 
ditches so that drainage of non-easement protected wetlands can 
continue when in compliance with State and local laws and regulations 
and when that work will not infringe on the terms of the easement 
agreement or on the Service's authorities under the Improvement Act or 
the Migratory Bird Conservation Act (16 U.S.C. 715-715d). We also work 
with and share resources with States, landowners, drainage districts, 
and water boards on actions that protect or otherwise benefit fens and 
other wetlands where we have the jurisdiction and authority to do so.
    In shaping this rule, the Service did fully consider existing State 
laws. This rule does not conflict with any State law, and the same is 
true for our

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wetland easement agreements, but in application to specific drain tile 
projects, this rule and the specific easement agreement may impose 
different requirements and limitations than those under State law. This 
is because the Service must protect the legal property interest that 
was paid for in the wetland easement agreement. The rights acquired 
protect wetland areas from being drained, burned, filled, or leveled. 
If these easements could not protect wetlands beyond the baseline 
protections under applicable State laws, they would have no value to 
the Service.
    In cases where easement agreement requirements impose limitations 
beyond State law, the easement agreement, and the Service's authority 
to enforce its terms under the Improvement Act and Migratory Bird 
Conservation Act, typically supersede the applicable State law. In the 
United States v. Vesterso (828 F.2d 1234 (8th Cir. 1987)), the Eighth 
Circuit Court of Appeals upheld that the digging of ditches that 
damaged Federal easement wetlands in North Dakota was a violation of 
law and of the easement agreement, even though the digging was 
permissible under State law. The court found that, under the 
Administration Act, differences in requirements between Federal 
easements and State law are to be resolved on a case-by-case basis, so 
neither overrides the other in all cases. The Federal interest in the 
natural state of wetlands under an easement must be balanced against 
the State interest in and authority over State waters. On this point, 
the Court's opinion stated that while the Service was correct in this 
case and the easement agreement controlled, the Service does not have a 
general, absolute right to prohibit alteration of a wetland or 
interference of the natural flow of water under an easement.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (5): Three comments referenced other permitting agencies 
and/or drainage laws and encouraged the Service to notify landowners 
receiving Service drain tile setbacks that other agencies, including 
Federal, State, and local governments, local watersheds and water 
boards, and other permitting authorities, will need to be consulted to 
ensure landowners' drain tile projects comply with other permitting 
entities.
    Our Response (5): As part of our standard process, the Service 
notifies landowners that the drain tile setback received from the 
Service only addresses the Service's wetland easement on their property 
and that they will need to coordinate with State and local governments, 
watersheds, water boards, and other permitting authorities when 
installing drain tile on their land to ensure their project complies 
with all Federal, State, local, and other laws, statutes, codes, and 
policies.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (6): Three comments requested that the Service specifically 
state in the regulation what the ``Service-provided timeframe'' is for 
processing a drain tile setback.
    Our Response (6): The Service understands the concern of landowners 
and other stakeholders for timely delivery of setback decisions. We are 
committed to timely communication and delivery of setback distances. 
Our aim is to provide landowners with an estimate of the setback 
calculation timeline for their specific case within 2 business weeks of 
receiving their request on FWS Form 3-2554. We also anticipate that, in 
most cases, we will be able to provide drain tile setback distances 
within 60 calendar days. However, there are various factors that 
prevent the Service from specifying a uniform deadline for this 
process. This includes logistical factors, such as the availability of 
expert personnel and scheduling of on-site assessments, and factors 
that are a part of the actual calculations, such as the unique physical 
features of a given wetland. Several of these factors are noted in our 
publicly available internal guidance for calculating setbacks (see 
Internal Guidance for Calculating Drain Tile Setbacks, above). In that 
internal setback guidance, we provide the guiding principles for what 
constitutes a reasonable timeframe for Service employees calculating 
setback distances.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (7): One commenter asked what was meant by the term ``best 
available science'' and questioned the absence of a definition in the 
proposed rule.
    Our Response (7): The term ``best available science'' is a well-
defined and long-established legal standard for the actions of science-
driven Federal Government agencies. For example, the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.), as amended, requires species 
listings to be based on the ``best scientific and commercial data 
available.'' As the use of the term in this final rule does not depart 
from its established legal meaning, which itself is consistent with the 
plain meaning of the phrase, providing a definition in this rule is not 
necessary.
    The Service will ensure that our policy for, our guidance on, and 
our implementation of the wetland easement program are all based on 
scientific data and information. We will also ensure that, of the 
sources of relevant scientific information available to us, we make use 
of the ``best'' science by considering objective indicators of 
scientific quality such as peer review, replication, quality and 
calibration of equipment, robustness of models, and so forth, when 
determining which information should carry the most weight in our 
processes.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (8): Two comments expressly noted that the provisions of 
the proposed rule would have no retroactive effect, but seemed to have 
different understandings of the implications of this fact and differing 
opinions as to whether the rule should have retroactive effect.
    Our Response (8): Clarification on the point of retroactivity 
should resolve the concerns of both of these commenters and any other 
members of the public on this point.
    The regulations in this rulemaking will not have retroactive 
effect; they will apply only to setbacks provided by the Service 
beginning on the effective date of this final rule (see DATES, above). 
This rule creates a voluntary process for landowners to request drain 
tile setback distances. There is no requirement to request or to make 
use of Service-provided setback distances, but the rule does provide a 
legal safe harbor for those landowners who do both. Thus, those 
landowners who have never before requested setback distances from the 
Service are in the same position regardless of whether or not the rule 
has retroactive effect. This is why the absence of retroactive effect 
could only be relevant to those landowners who received Service-
provided setback distances under our guidance memo on drain tile 
setbacks (see Internal Guidance for Calculating Drain Tile Setbacks, 
above). In that case, however, the position of those landowners is also 
unchanged, since the guidance memo remains in full effect and will 
guide refuge personnel in implementing these new regulations. This rule 
merely codifies the key principles of our guidance memo.
    In summary, the rule only has prospective effect, but this does not 
change the status of either (1) landowners who have never requested 
setback distances and thus have no legal safe harbor should they 
install tile that drains an easement wetland; or (2) landowners who 
requested and

[[Page 41340]]

complied with setback distances and thus do have a legal safe harbor 
should their drain tile nevertheless drain an easement wetland. What 
the prospective effect does mean is that the voluntary process for 
setback requests and receiving legal safe harbor is further solidified 
by inclusion in our regulations and that landowners who request and 
fully comply with setback distances from the Service in the future can 
be assured of legal safe harbor.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (9): Two commenters requested that the Service offer 
assurance that a landowner who follows the Service-provided setback 
will be afforded a legal safe harbor regardless of whether the Service-
provided setback distances do or do not protect the wetland from 
drainage.
    Our Response (9): The Service understands the importance for 
landowners of our commitment not to seek legal redress against 
landowners who coordinate with the Service and fully cooperate with the 
Service's setback determinations. In fact, providing assurance on this 
point is one of the Service's primary reasons for pursuing this 
rulemaking. This rule codifies exactly this type of assurance for 
landowners, as directly stated in the regulatory provisions at 50 CFR 
25.24(c) (see Regulation Promulgation, below). Regarding this 
protection from legal redress, the regulations we are adopting in this 
rule specifically state that when a landowner coordinates tile planning 
with the Service in accordance with the regulations and adheres to the 
Service-provided drain tile setback distances, then 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.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (10): One comment requested that the regulations clarify 
that maintenance and repairs of drain tile systems installed in 
accordance with Service guidance or coordination are permissible 
without any further agency involvement.
    Our Response (10): Landowners with wetland easements on their 
property are always allowed to install and to maintain drain tile 
systems, but if the tile drains wetlands in violation of the Service's 
easement, then the landowner may face legal action. In the interest of 
both parties, the Service offers a voluntary process for landowners to 
request a Service-provided setback; landowners who fully comply with 
the Service-provided setback distances when installing or maintaining a 
drain tile system are shielded from legal action. In the case of a 
landowner's actions to maintain or repair a drain tile system, 
remaining within this legal safe harbor requires that the landowner's 
maintenance or repair actions do not amount to a modification, 
enhancement, or replacement of the system. This requirement is provided 
in the regulatory provision at 50 CFR 25.24(c) (see Regulation 
Promulgation, below), where it clearly states that drainage of an 
easement wetland, after installation of a drain tile system in 
accordance with a Service-provided setback, will not result in the 
Service taking legal action provided that the drain tile has not been 
modified, enhanced, or replaced.
    Drain tile systems installed in accordance with Service guidance or 
coordination should not drain easement-protected wetland areas. 
Therefore, routine maintenance and repair actions that do not amount to 
modification, enhancement, or replacement, whether or not coordinated 
with the Service, would not invalidate the safe harbor protections 
provided to landowners who install drain tile systems in accordance 
with Service-provided setbacks and other guidance. A true maintenance 
or repair action should not change the tile system in a way that 
impacts the Service's setback distances. For example, substituting one 
4-inch tile for another 4-inch tile at the same location and depth 
would be a routine repair that does not invalidate the landowner's 
legal safe harbor. This difference between a routine maintenance and 
repair action and an action to modify or enhance the drain tile system, 
or to replace it with another system altogether, is commonly understood 
for those landowners who employ and those service providers who install 
drain tile systems, so further clarification in the regulatory 
provision is not necessary.
    At the same time, a wetland easement agreement is a commitment to 
shared responsibility for the designated wetlands and an important 
piece of that shared responsibility is effective communication between 
landowners and the Service. The Service encourages landowners to be 
generally communicative about all aspects of wetland easement 
agreements and is committed to helpful communication in return. 
Specific to maintenance and repair of a drain tile system installed in 
accordance with Service-provided setback distances, continued 
communication is as mutually beneficial as the setback process. In 
fact, the only way for a landowner to be truly certain whether the 
maintenance or repair actions they wish to take would constitute a 
modification, enhancement, or replacement, and thus whether they remain 
within the legal safe harbor regulatory provision, is to coordinate the 
maintenance or repair with the Service.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (11): One comment stated that there should be no need for 
any later assessments or determinations of whether the setback 
distances provided the desired wetland protection where a landowner 
installs drain tile based on Service-provided setback distances, given 
the legal safe harbor for the landowner in the event the wetland is 
drained.
    Our Response (11): The Service periodically monitors all of our 
wetland easements using a variety of nonintensive methods, such as 
aerial photography. In the interest of both landowners and minimal 
disturbance to wetlands, we seek to not monitor more often or more 
intensively than necessary. Our existing publicly available policy on 
wetland easements requires periodic monitoring and sets out the 
monitoring methods that our personnel may use (see Service Manual at 
601 FW 6 at https://www.fws.gov/policy-library/601fw6).
    In the specific situation of a landowner installing drain tile 
according to Service-provided setbacks, we will continue to monitor the 
wetlands on that property in the same manner as any other property 
subject to an easement. We will do this for three reasons. First, as 
noted above, our policy requires monitoring all of our wetland easement 
interests. Second, we need to monitor these wetlands in the interest of 
our overall migratory bird and waterfowl wildlife management 
responsibilities and wildlife conservation mission, which constitute 
the purpose for obtaining and maintaining these easements. Third, while 
the landowner may have complied with Service-provided setbacks at the 
time of drain tile installation, full compliance with the Service's 
setbacks under these regulations, and thus securing the legal safe 
harbor for the landowner, also requires that a landowner does not 
subsequently modify, enhance, or replace the drain tile system. This 
means that we need to continue monitoring to identify when an easement 
wetland has been drained. If an easement wetland has been drained, we 
determine whether the landowner

[[Page 41341]]

has modified, enhanced, or replaced the drain tile system in order to 
determine whether or not the legal safe harbor applies and the Service 
should or should not seek legal redress. Moreover, monitoring for this 
purpose is critical because identifying when an easement wetland has 
been drained may be the best, or even the only, signal for us that a 
landowner has modified, enhanced, or replaced the drain tile system 
after the initial installation.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (12): One comment urged that the Service should not seek 
legal redress against a landowner in cases where a drainage district 
acts in a manner inconsistent with the provisions in the proposed rule, 
and that this should be stated in the regulations.
    Our Response (12): It is unclear how a drainage district could act 
inconsistently with the provisions in this rule, as this rule provides 
a process for landowners to request and obtain setback distances from 
the Service and, if they fully comply with those setback distances, be 
assured of a legal safe harbor in the event a wetland is drained. 
Assuming that the commenter is referring to actions taken by a drainage 
district that could violate the terms of a wetland easement, such as 
draining an easement-protected wetland, then our response is that we 
cannot provide any such provision in the regulations.
    The Service will determine an appropriate response in this type of 
situation on a case-by-case basis, and accordingly will not commit to 
any blanket limitation on our options for legal redress merely because 
a drainage district is involved and may bear more responsibility than 
the landowner for the easement violation. Unless the legal safe harbor 
for landowners codified by this rule applies, the Service reserves the 
right to seek legal redress against any and all responsible parties in 
the event of drainage of a wetland in violation of a wetland easement, 
or any other violation of the terms of a wetland easement, to the full 
extent of applicable law.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (13): One comment expressed the concern that due to the 
distribution of small easement wetlands throughout a landowner's 
property and the setback distances provided by the Service, there might 
not be any location on the property where the landowner can install 
drain tile that complies with the Service's setbacks. This commenter 
was also concerned that in this case the rule prevents the landowner 
from installing drain tile.
    Our Response (13): This rule does not prevent any landowner from 
installing drain tile. As discussed above under our response to Comment 
(10), landowners with wetland easements on their property are always 
allowed to install drain tile systems, but if the tile drains wetlands 
in violation of the Service's easement, then the landowner may face 
legal action.
    The situation described by this commenter is possible. The 
locations and measurements of the overall property, the protected 
wetland areas, and the calculated setback distances may in some cases 
be such that there is no location within the borders of the overall 
property where drain tile can be placed that is setback from all 
easement wetlands at the distances determined by the Service's 
calculations. In such a case, the landowner may nevertheless choose to 
install drain tile, but they would do so at the risk of draining one or 
more easement wetlands and without the assurance of a legal safe 
harbor.
    Conversely, other landowners may find that they are able to install 
drain tile on a wetland easement and setback from all wetlands in full 
compliance with the setback distances calculated by the Service, and 
thus ensure a legal safe harbor for the installation. Where a 
landowner's property fits along the continuum bounded by these two 
situations depends on the size and distribution of the wetlands, the 
hydrology of the wetlands, and other factors unique to each property.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (14): Two comments expressed support for the Service's 
guidance memo on calculating drain tile setbacks, finalized in 2020. 
Both of the comments urged the Service to revise the proposed rule to 
explicitly reference the guidance memo, and one also urged codifying 
the setback calculation content from the existing Service guidance.
    Our Response (14): The guidance memo remains in full effect (see 
Internal Guidance for Calculating Drain Tile Setbacks, above). The 
guidance memo, as well as our internal guidance more generally and any 
future updated guidance, need not be expressly referenced in the 
regulations in order to guide Service administration of wetland 
easements (see Internal Guidance for Calculating Drain Tile Setbacks, 
above). There is nothing incongruent between the guidance memo and this 
rule. The guidance memo was developed based on the best science 
available at that time. It also assures landowners that the Service 
will not pursue legal redress should it later be determined that 
setback distances were inadequate to protect adjacent wetland areas 
from drainage. This regulation codifies these two principles, ensuring 
that Service calculations will be based on the best available science 
to prevent protected wetland areas from drainage and that landowners 
who fully cooperate with Service-provided setbacks will have a legal 
safe harbor.
    Including the calculation processes of the Service's guidance memo 
in the regulations, however, would not be in the interest of the 
Service or landowners. In order for setback calculations to be based on 
the best available science, the Service needs to be able to update our 
processes as empirical experience and new scientific studies provide 
new information. Updating those processes through rulemaking is 
inefficient and unnecessary. As the Service and other agencies 
routinely do, the Service has codified our obligation to use the best 
available science in regulation and will then keep our publicly 
available, detailed internal guidance up-to-date and effective. This 
will allow us to best protect wetlands while also providing accurate, 
no-farther-than-necessary setback distances to landowners.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (15): One comment included a request that the Service make 
the methodology for determining a drain tile setback publicly 
available, and that the Service invite public comments any time the 
Service proposes to change the methodology.
    Our Response (15): The Service's internal setback guidance 
documents containing the methodology for determining a drain tile 
setback are publicly available (see Internal Guidance for Calculating 
Drain Tile Setbacks, above). Landowners retain the right to challenge 
the Service's methodology if they believe there was an error in our 
methodology or in our application of the methodology to their case. 
This provides an efficient, reasonable, and open process for setback 
determinations.
    The Service's methodology was established using the best available 
science and the expertise and best professional judgment of Service 
personnel to provide adequate protection for wetland easement areas.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (16): Two comments called for the Service to establish an 
administrative appeal process that is independent of the direction and 
control of the Service.

[[Page 41342]]

    Our Response (16): Administrative appeals processes are a common 
feature of good government throughout Federal agencies. These processes 
allow agency subject-matter expertise to form the administrative 
hearing record and inform the decision reached on appeal. They also 
allow the agency to double-check its initial decision so that it can 
identify, and thereby more quickly address, any errors that were made. 
Regulated parties, in this case landowners, always have the option of 
appealing the ultimate agency decision to a judicial branch court after 
exhausting the administrative appeals process, which is sufficient to 
address any potential errors in the administrative appeal process that 
could harm their interests.
    In the U.S. Federal Government, no administrative appeals process 
external to the agency whose final decision is being challenged exists. 
Quasi-independent administrative tribunals and review boards do exist, 
such as the Environmental Appeals Board, a body that hears appeals of 
Environmental Protection Agency (EPA) final decisions and reports 
directly to the EPA Administrator outside of the regular EPA line 
authority. The commenters presented no compelling evidence that the 
current administrative appeals process is inherently flawed or not 
reaching appropriate determinations concerning wetland easements. The 
Service is also not otherwise aware of any reasons the existing appeals 
process is inadequate. We do not see any need at this time to devote 
considerable resources toward the creation of a quasi-independent body 
to hear appeals of Service decisions concerning wetland easements.
    Landowners who disagree with a Service-provided setback distance, 
or another final decision concerning wetland easements, may appeal to 
the appropriate Regional Director in accordance with the procedure 
established by 50 CFR 25.45.
    We did not make any changes to the rule as a result of these 
comments.
    Comment (17): One comment questioned how landowners will be 
notified of the responsibility to request a setback to protect the 
wetlands on their land that are subject to a wetland easement.
    Our Response (17): This rule does not obligate or require any 
landowner to request a drain tile setback. We have created a voluntary 
process for landowners to request and receive a Service-provided drain 
tile setback to facilitate coordination between landowners and the 
Service and to improve landowner compliance with the requirements of 
the Service's wetland easements. This process benefits landowners in 
that it provides a legal safe harbor for landowners who fully comply 
with the Service's setback determination, as the Service will not seek 
legal redress in the event that the wetland drains despite the 
landowner's adherence to the Service's setback determination. 
Landowners have the right to install drain tile on their land without 
requesting a Service-provided setback, but in that case, they are 
legally obligated to ensure by their own efforts that the drain tile 
does not violate any wetland easement agreement with the Service by 
draining protected wetlands.
    While the setback request process is voluntary, the Service will 
make efforts to notify landowners about this mutually beneficial 
opportunity. The Service intends to publicize the opportunity through 
various communication channels. In fact, our existing internal guidance 
provides strategies, and our process includes steps for communication 
with landowners concerning their ability to request a Service-provided 
setback. The publication of this rule and the regulations that we are 
codifying in the Code of Federal Regulations will also serve as public 
notice of this opportunity for landowners with wetland easement 
agreements.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (18): One comment expressed concern that the rule does not 
clearly tell the landowner what lands are subject to the easement or 
provide adequate notice as to the reasonable parameters of the 
easement.
    Our Response (18): This rule provides a general framework for the 
Service in regulating all of our wetland easement interests, so it is 
not the appropriate place to delineate individual easement boundaries 
in detail. The appropriate place to clarify the boundaries of the 
Service's wetland easement is in each wetland easement agreement 
document itself. That is why each easement document includes a clear 
legal description of the lands that are subject to the easement. In 
fact, multiple courts have found the parameters in individual easement 
documents to be clear (see, e.g., United States v. Albrecht, 496 F.2d 
906 (8th Cir. 1974) (using the phrase ``precise draftsmanship'' in 
reference to the terms of the easement agreement), and United States v. 
Seest, 631 F.2d 107 (8th Cir. 1980)).
    For the same reasons, this rule is not the appropriate means of 
notifying landowners of the parameters of wetland easements. Landowners 
are adequately notified of the easement and the extent to which it 
encumbers their property either when signing the wetland easement 
agreement with the Service or when performing due diligence before 
obtaining land subject to an existing wetland easement from another 
private landowner. Every easement document is registered and publicly 
available in the applicable State or county land records, and 
landowners can also obtain a copy by contacting their 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.) Review of the easement 
document provides a landowner with the necessary details of the 
boundaries of the easement. Thus, landowners should know of all the 
reasonable parameters. Landowners who are nevertheless unsure of the 
parameters of an easement are welcome to consult the Service by 
contacting their 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 did not make any changes to the rule as a result of this 
comment.
    Comment (19): One comment requested that, for newly acquired 
wetland easements, the Service ensure landowners agreeing to the 
easements understand what limitations are associated with drain tile 
installation.
    Our Response (19): The Service takes steps to ensure that new 
landowners are aware of the limitations on drain tile installation that 
wetland easements require. The Service's Realty Specialists working 
with new landowners who are enrolling their land in wetland 
conservation easements inform landowners of what rights the Service 
acquires or restricts during the easement agreement process. This 
ensures landowners are aware of what a wetland easement will mean for 
them before they sign an easement document. Most importantly, the 
Service clearly articulates that no wetlands protected by the easement 
can be drained. If a landowner wants to retain the ability to drain a 
given wetland area, they can choose to not include that individual 
wetland area in the wetland easement.
    We did not make any changes to the rule as a result of this 
comment.
    Comment (20): Two comments requested that the regulations be 
revised to inform landowners exactly what information and materials 
will be required from them when they request a drain tile setback.

[[Page 41343]]

    Our Response (20): The Service recognizes that landowners are 
rightfully cautious about their private information. The Service 
developed FWS Form 3-2554 for landowners to use to request a drain tile 
setback from the Service. The form was available for public comment in 
our Information Collection Request on OMB's website at https://www.reginfo.gov/public/. In response to these comments, this final rule 
now directly references the form. FWS Form 3-2554 requests basic 
contact information for the landowner, along with the easement 
number(s) for the specific land covered by the wetland easement. In 
response to these comments, we have revised the form to also request 
desired tile depths and diameters, as well as attachment of relevant 
installation plans, to facilitate our setback calculations.
    It would be inefficient to specify in our regulations the exact 
information requested by the form, especially as this could change over 
time. Instead, the Service is specifying the form in the regulations, 
has ensured the form contains all currently needed information, and 
will ensure the form remains updated in the future. The Service is 
following processes established by the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.) for FWS Form 3-2554. This includes ensuring 
that the information collection is reasonable, that no more information 
is collected than necessary, and that the form is renewed every 3 years 
so that it remains updated and compliant with the other requirements. 
The Privacy Act of 1974 (5 U.S.C. 552a) also ensures that private 
information provided on the form is protected.
    We made changes to the rule as a result of these comments. 
Specifically, we added a direct reference to FWS Form 3-2554 and added 
additional fields to the form. This provides greater clarity on what 
information and materials landowners must provide when requesting a 
drain tile setback.
    Comment (21): One comment expressed concern that the proposed rule 
does not include any assurances that information provided by landowners 
will be confidential and not subject to the Freedom of Information Act 
(FOIA; 5 U.S.C. 552, as amended by Pub. L. 104-231, 110 Stat. 3048).
    Our Response (21): The Service, like all other agencies in the 
Executive Branch, must comply with FOIA. FOIA requires that any person 
may request access to records of the Executive Branch of the United 
States, and copies of the records must be provided in full, except to 
the extent that all or specific portions of the record fall under one 
or more of the exempt categories. Among these exempt categories are 
information that would violate an individual's right to privacy and 
information that constitutes trade secrets or other confidential 
commercial or financial information (see 5 U.S.C. 552(b)). Thus, the 
Service may be compelled to turn over redacted copies of certain 
records concerning wetland easements, but the personally identifiable 
information of landowners and any proprietary commercial information in 
the records, including the information collected on FWS Form 3-2554, 
are exempt from FOIA and not disclosed. As this is a general exemption 
to FOIA applicable across the Federal Government, it need not be 
specified in our regulations. We did, however, add a standard FOIA 
statement to the form that helps to clarify the point that business 
information is FOIA exempt and directs landowners to label the 
information that they consider to be business information when 
submitting the form.
    We did not make any changes to the rule as a result of this 
comment, but we did modify the associated setback request form to add a 
standard FOIA statement on business information.

Changes From the Proposed Rule

    As discussed above under Summary of Comments and Responses, based 
on comments we received on the April 28, 2023, proposed rule (88 FR 
26244), we made changes in this final rule and to the associated 
setback request form. In this final rule, we added a direct reference 
to FWS Form 3-2554 in the regulation at 50 CFR 25.24(b) (see Regulation 
Promulgation, below). In the FWS Form 3-2554, we added three fields 
pertaining to technical information: one requesting the desired depths 
of the drain tile installation, if known; one requesting the desired 
diameters of the drain tile installation, if known; and one requesting 
that the landowner attach their drain tile installation plan, if 
available. We also added a standard FOIA statement to the form that 
clarifies business information is FOIA exempt and directs landowners to 
label the information that they consider to be business information 
when submitting the form. These changes were made in response to 
comments requesting that we provide more specificity as to what 
information and materials landowners will be asked to include when 
requesting a Service-provided setback.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. We have developed this rule in a manner 
consistent with these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rulemaking action is not 
significant.

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 rule. One aspect of the rule codifies the 
Service's existing drain tile setback practices; therefore,

[[Page 41344]]

the effect of this regulatory provision on small businesses will be 
negligible. The 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 25 minutes, which will 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 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 will not have a significant 
economic effect on a substantial number of small entities as defined 
under the RFA. A regulatory flexibility analysis is not required. 
Accordingly, a small entity compliance guide is not required.

Congressional Review Act

    This rule is not a major rule under 5 U.S.C. 804(2) of the 
Congressional Review Act. We anticipate no significant employment or 
small business effects. This rule:
    a. Will not have an annual effect on the economy of $100 million or 
more. The minimal impact will be scattered across five States and will 
most likely not be significant in any local area.
    b. Will not cause a major increase in costs or prices for 
consumers; individual industries; Federal, State, or local government 
agencies; or geographic regions.
    c. Will 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 rule will not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule will 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 rule will not have significant 
takings implications. A takings implication assessment is not required. 
The rule does not have any takings implications because it will not 
impact protected property rights. The 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 rule does not require landowners to consult the Service regarding 
setback distances, nor does 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 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 rule will 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 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 
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 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 OMB reviewed the information collection requirements associated 
with requesting individualized drain tile setback distances for wetland 
easements in the PPR and assigned the placeholder OMB Control Number 
1018-0196, pending final review and approval of the following:

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.
    Revisions to Form Since Proposed Rule Phase: In response to public 
comments, we revised the form to also collect technical information 
about the contemplated drain tile installation, specifically the 
desired drain tile depths and diameters, and request that the landowner 
attach any plans they have prepared for the installation (e.g., a 
geographic information system (GIS) Shapefile). We also updated the 
reporting and recordkeeping time burden estimates to be 10 minutes for 
reporting and 15 minutes for recordkeeping. Finally, we added a 
standard FOIA statement to the form that clarifies business information 
is FOIA-exempt and directs landowners to label the information that 
they consider to be business information when submitting the form.
    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: 1018-0196.
    Form Number: FWS Form 3-2554.
    Type of Review: New.
    Respondents/Affected Public: Individuals/households, businesses, 
and State/local/Tribal governments.

[[Page 41345]]

    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: 63.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Annual Nonhour Burden Cost: None.
    On April 28, 2023, we published in the Federal Register (88 FR 
26244) a proposed rule (RIN 1018-BG80) that announced our intention to 
request OMB approval of the information collections identified in the 
rule. In that proposed rule, we solicited comments for 60 days on the 
information collections in this submission, ending on June 27, 2023. 
Summaries of comments addressing the information collections contained 
in this rule, as well as the agency response to those comments, can be 
found above under Summary of Comments and Responses, as well as in the 
information collection request submitted to OMB on the RegInfo.gov 
website at https://www.reginfo.gov/public/.
    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 1018-0196 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 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 regulations codify existing Service practice in 
administering 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.

Regulation Promulgation

    For the reasons set forth in the preamble, we 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

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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 this part and assigned 
OMB Control Numbers 1018-0102, 1018-0140, 1018-0181, and 1018-0196 
(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).

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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 June 12, 2024.
    (b) Drainage tile setbacks. Upon the request of a landowner, using 
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 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

[[Page 41346]]

drain tile has not been modified, enhanced, or replaced.

Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2024-10242 Filed 5-10-24; 8:45 am]
BILLING CODE 4333-15-P