[Federal Register: April 4, 2005 (Volume 70, Number 63)]
[Rules and Regulations]
[Page 16921-16930]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap05-1]
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Rules and Regulations
Federal Register
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 624
Emergency Watershed Protection Program
AGENCY: Natural Resources Conservation Service, USDA.
ACTION: Final rule.
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SUMMARY: The United States Department of Agriculture (USDA) Natural
Resources Conservation Service (NRCS) is issuing a final rule for the
Emergency Watershed Protection (EWP) Program to improve the
effectiveness of its response to natural disasters. This final rule
establishes the process by which NRCS will administer the EWP Program,
responds to comments on the proposed rule received from the public
during the 60-day comment period, and incorporates modifications and
clarifications to improve implementation of the program.
DATES: Effective Date: May 4, 2005.
ADDRESSES: This final rule may be accessed via the Internet. Users can
access the Natural Resources Conservation Service (NRCS) homepage at
http://www.nrcs.usda.gov/programs/ewp/. Select the EWP rule link listed
on the EWP program page.
FOR FURTHER INFORMATION CONTACT: Victor Cole, (202) 690-0793, fax (202)
720-4265, victor.cole@usda.gov, Financial Assistance Programs Division,
Natural Resources Conservation Service, P.O. Box 2890, Washington, DC
20013-2890 or for information regarding EWP floodplain easements,
contact Leslie Deavers (202) 720-1062, fax (202) 720-6697,
leslie.deavers@usda.gov, Easement Programs Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890. For
information regarding administration of the EWP program by the United
States Department of Agriculture Forest Service, contact Meredith
Webster, (202) 205-0804, fax (202) 205-1096, mmwebster@fs.fed.us, USDA
Forest Service, 201 14th Street SW., 3 South Yates Building, Mail Stop
1121, Washington, DC 20024
SUPPLEMENTARY INFORMATION:
Background
The Secretary of Agriculture cooperates with other Federal, State,
and local agencies in the recovery from natural disasters such as
hurricanes, tornadoes, fires, drought, and floods through
implementation of the EWP Program (authorized by Section 216 of the
Flood Control Act of 1950, Public Law 81-516, 33 U.S.C. 701b-1; and
Section 403 of the Agricultural Credit Act of 1978, Public Law 95-334,
as amended by Section 382, of the Federal Agriculture Improvement and
Reform Act of 1996, Public Law 104-127, 16 U.S.C. 2203). EWP, through
local sponsors, provides emergency measures for run-off retardation and
erosion control to areas where a sudden impairment of a watershed
threatens life or property. The Secretary of Agriculture has delegated
the administration of EWP to the Chief of NRCS on state, tribal, and
private lands, and Chief of USDA Forest Service (FS) on National Forest
System lands, including any other lands that are administered under a
formal agreement with the FS. The FS administers the EWP Program in
accordance with Forest Service Manuals 1950 and 3540, and the Forest
Service Handbook 1909.15. This rule only provides direction to the NRCS
on administering the EWP Program.
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
final rule is a ``significant action'' for the purposes of Executive
Order 12866. Pursuant to Section 6(a)(3) of Executive Order 12866, NRCS
has conducted an economic analysis of the potential impacts associated
with this final rule as compared to the existing program. The economic
analysis concluded that changes to the program implemented by this rule
may save up to $1.4 million each year. These changes include: Setting
EWP priorities, pre-disaster readiness, limiting repairs to 2 times in
10 years, and discontinuing the practice of providing EWP funds on
Federal lands. However, some of this expected reduction may be offset
by increased cost-share for limited resource counties and the use of
EWP in the repair of conservation practices on agricultural lands. A
copy of this cost-benefit analysis is available upon request from the
address listed above.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because neither the Secretary of Agriculture nor NRCS are required by 5
U.S.C 553 or any other law to publish a notice of proposed rulemaking
for the subject matter of this rule.
Environmental Evaluation
A Programmatic Environmental Impact Statement (PEIS) and Record of
Decision (ROD) were prepared as a part of this rulemaking. NRCS
considered both the comments received on the draft PEIS and the
proposed rule in formulation of the final regulation. Copies of the
final PEIS and ROD may be obtained from the Financial Assistance
Programs Division, Natural Resources Conservation Service, USDA, P.O.
Box 2890, Washington, DC 20013-2890. The final PEIS and ROD may be
accessed via the Internet. Users can access the NRCS homepage at http://www.nrcs.usda.gov/programs/ewp/.
Select the PEIS link listed on the
EWP program page.
Paperwork Reduction Act
This final rule will not alter the collection of information
previously approved by the Office of Management and Budget and assigned
number 0578-0030.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies, in general, to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. To better
commodate public access, NRCS is proposing to develop an online
application and information system for public use.
[[Page 16922]]
Executive Order 13132
This final rule has been reviewed in accordance with requirements
of Executive Order 13132, Federalism. NRCS has determined that the rule
conforms to the Federalism principles set forth in the Executive Order;
would not impose any compliance cost on the States; and would not have
substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities on the various levels of government.
Executive Order 12998
This final rule has been reviewed in accordance with Executive
Order 12998. The provisions of this rule are not retroactive.
Furthermore, the provisions of this final rule pre-empt State and local
laws to the extent that such laws are inconsistent with this final
rule. Before an action may be brought in a Federal court of competent
jurisdiction, the administrative appeal rights afforded persons at 7
CFR parts 614 and 11 must be exhausted. For EWP recovery measures, an
individual landowner is not an EWP participant nor is the legal
substantive status of land affected by an NRCS decision regarding the
eligibility of a measure for EWP assistance. Therefore, an individual
landowner is not entitled to appeal an EWP recovery measure
determination under 7 CFR parts 614 and 11.
Executive Order 13175
NRCS has taken measures to ensure tribal officials are aware of the
EWP Program and are provided opportunities to receive assistance in
compliance with the Executive Order. NRCS established field offices
within some reservations and tribal liaison staff to promote outreach
and coordination with tribal officials. The result of this effort has
been increased participation in the EWP Program by tribes.
Additionally, NRCS has included a waiver provision in this regulation
which complies with the flexibility requirement of the Executive Order.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
This regulation is not a major rule under 5 U.S.C. 801 et. seq. the
Small Business Regulatory Enforcement Fairness Act:
(a) This regulation would not produce an annual economic effect of
$100 million. The changes to the program are expected to yield cost
savings of up to $1.4 million per year.
(b) This regulation would not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions.
(c) This regulation would not have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Public Law 104-4, NRCS assessed the effects of this final rule on
State, local, and tribal governments, and the public. This action does
not compel the expenditure of $100 million or more by any State, local,
or tribal government, or the private sector; therefore, a statement
under Section 202 of the Unfunded Mandates Reform Act of 1995 is not
required.
Overview
The EWP Program helps remove threats to life and property that
remain in the nation's watersheds in the aftermath of natural disasters
including, but is not limited to, floods, fires, windstorms, ice
storms, hurricanes, typhoons, tornadoes, earthquakes, volcanic actions,
slides, and drought. The EWP Program is administered by NRCS, on state,
tribal, and private lands by providing technical and financial
assistance to local sponsoring authorities to preserve life and
property threatened by disaster for runoff retardation and soil-erosion
prevention. Funding is typically provided through Congressional
emergency supplemental appropriations. Threats that the EWP Program
addresses are termed watershed impairments. These include, but are not
limited to, debris-clogged stream channels, undermined and unstable
streambanks, jeopardized water control structures and public
infrastructure, wind-borne debris removal, and damaged upland sites
stripped of protective vegetation by fire or drought. If these
watershed impairments are not addressed, they would pose a serious
threat of injury, loss of life, or devastating property damage should a
subsequent event occur.
On November 19, 2003 (Federal Register Vol. 68, No. 223 pages
65202-65210) NRCS initiated rulemaking by publishing a proposed rule
with request for comments to modify the existing regulation at 7 CFR
part 624 to make programmatic changes that allow the repair of enduring
conservation practices, limit repeated site repairs, allow additional
easement purchases, address environmental justice issues, and limit
treatments on federal lands. In this rulemaking, NRCS has incorporated
changes in program administration and in project execution dealing with
traditional watershed impairments. This final rule expands the program
by providing for removal of sediment in the floodplain and repair of
damaged structural conservation practices to the list of watershed
impairments for which EWP Program funds may be used. Additionally, the
regulatory changes include: Allowing for up to 90 percent cost-share
for limited resource areas; limit repair to twice in a ten year period;
eliminate the single beneficiary requirement; purchase of easements on
non-agricultural lands; establish one easement category; and funding
projects on Federal lands only when such funding is not an
inappropriate funding augmentation of the land management agency
appropriations.
Program delivery improvements contained in this final rule are
designed to enable NRCS field and state office personnel to provide EWP
assistance more effectively and efficiently. NRCS believes that these
improvements will more fully, equitably, and consistently meet the
needs of people requiring emergency assistance. Program improvements
are designed to address environmental, economic, and social concerns
and values.
The changes adopted in this final rule were identified, discussed,
and refined in an ongoing comprehensive program review that NRCS
initiated and then issued in the proposed rule. The process included
extensive opportunities for public participation and identified
substantive ways to improve the environmental, economic, social, and
technical soundness of program activities.
In response to the proposed rulemaking, seven separate responses
from the public containing about 25 specific comments were received
during the 60-day comment period: 1 response from an individual, 2 from
conservation districts and related groups, and 4 from State agencies.
Additional responses were received from a Federal agency and NRCS
employees; their comments are not included in the following analysis of
public comments. These responses were treated as inter and intra-agency
comments and considered in the drafting of the final rule along with
the public comments where appropriate.
All comments received are available for review in Room 6019, South
Agriculture Building, 14th and
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Independence Ave., SW., Washington, DC, during regular business hours
(8 a.m. to 5 p.m.) Monday through Friday.
Analysis of Public Comment
Overall, the comments received were favorable and supported the
proposed changes to the EWP Program. Some commentors offered
suggestions for improving or clarifying specific sections of the
proposed rule which resulted in the agency making changes to the
proposed rule as identified in the section-by-section discussion of
comments.
The comments focused on a wide variety of issues in the proposed
rule. Editorial and other language clarification changes were
suggested; these comments are not included in the following analysis
but all were considered and many of the minor technical changes were
included in the final rule. For the sections not listed in this
preamble, the agency has adopted the language described in the proposed
rule with the exception of non-substantive editorial and other language
clarifications.
Several comments were related to funding and suggested that the EWP
Program should be funded as a line item in NRCS' fiscal year
appropriations since there is sometimes a significant delay from the
date of the natural disaster until funding is provided. Funding for the
EWP Program is typically provided through emergency supplemental
appropriations and it would require Congressional action to include EWP
funding as a line item.
Section-By-Section Discussion of Comments Received on the Proposed Rule
Provisions
Section 624.4 (b) Exigency. Several comments were received
supporting the clarification of the term ``exigency'' and elimination
of the term ``non-exigency''.
NRCS acknowledges this support and consequently is adopting the
proposed language without changes. The changes were proposed because
the agency had previously encountered various cases where the term
``exigency'' was applied too liberally and implemented for purposes for
which it was not intended. Interpretations of the terms ``exigency''
and ``non-exigency'' varied widely within NRCS. NRCS's intent when
establishing these two categories (exigency and non-exigency) in the
previous rulemaking (46 FR 65677, Nov. 17, 1981) was to allow NRCS to
respond quickly to only those situations that needed immediate
attention.
In addition, the previous regulation tied cost-sharing to this
designation, although NRCS has not applied the higher cost-sharing
rate, originally set for exigencies, for the past 11 years. Instead,
NRCS has applied a single cost-share rate of 75 percent to exigent
situations. However, NRCS recognizes there may be unique situations
that require a waiver from this cost-sharing rate. The agency added
Section 624.11 Waivers which allows the NRCS Deputy Chief for Programs
to waive any provision of these regulations to the extent allowed by
law. An example may include allowing up to 100 percent cost-sharing for
a limited resource area.
Based upon past experience, NRCS reconsidered the 5-day exigency
time frame and has lengthened the time frame to accomplish exigency
measures from 5 days to 10 days. This additional time will aid sponsors
in their effort to secure their cost-share. Additionally, many EWP
exigency situations involve permitting or other legal requirements
resulting in additional time. The additional five days should provide
time for the sponsors to secure necessary ``emergency'' permits and for
NRCS and sponsors to comply with any applicable Federal law or
regulation.
Section 624.6(b)(2)(i). Two comments were received that express
support for limiting of repair of the same site to only twice within a
ten year period in order to avoid repetitive Federal funding, which
could in turn perpetuate activities that are not best suited for the
areas prone to impacts from natural disasters. Two comments also
expressed concern regarding whether the limitation was applicable to
the removal of debris within the same site. Consequently, NRCS has
modified the language to reflect that the limitation refers to
structural measures only. NRCS recognizes that in most areas of the
country there is no practical means to effectively prevent debris from
entering and accumulating in the watershed as a result of repetitive
natural disasters. Therefore, NRCS does not intend to limit the number
of times debris can be removed within the same location due to a
natural or constructed (e.g., road crossing) restriction within a
waterway. Rather, NRCS would limit repairs under EWP to twice within a
10-year period for the same cause (i.e., flooding) at the same site for
structural measures. If structural measures have been installed/
repaired or protected twice with EWP assistance and less than 10 years
has elapsed between the disaster that triggered the first repair and
the disaster triggering a third repair, the only option available under
EWP would be to place a floodplain easement on the damaged site.
For example, if a home was protected from destruction twice using
EWP assistance for two separate events, regardless of the structural
measure used to protect the home or the location along the waterway of
the protection efforts, EWP funds would not be available for a third
protection effort of the home within the 10-year period for the same
cause. For repairs of dikes, levees, berms, and similar structures,
because these structures can run contiguously for miles, a specific
location on a structure is considered one EWP site to determine whether
future impacts to this site on the structure are eligible for EWP
funds. Thus, repairs can be made repetitively so long as the same
location is not repetitively repaired more than twice within 10 years.
Section 624.6(b)(2)(iv). Two comments were received that supported
the language change to clarify that NRCS can only provide EWP
assistance on Federal lands in situations where safeguards are followed
to avoid inappropriate augmentation of appropriations, therefore, NRCS
is adopting the proposal without changes. One comment recommended that
exigency situations should be funded on Federal lands.
NRCS and the FS have been delegated the authority to administer the
EWP program. NRCS administers the program on state, tribal, and private
lands while the FS administers the program on National Forest System
lands, including lands under an official management agreement with the
FS. NRCS is the lead USDA agency, responsible for developing EWP
regulations and policy for both agencies and through a 1998 Memorandum
of Understanding with the FS, NRCS also manages the funding for both
agencies. However, recent Congressional appropriations have designated
the funding for NRCS, which does not authorize NRCS to transfer funding
to the FS for EWP measures on lands it manages. The existing language
of 7 CFR 624.4 language was changed to reflect that NRCS will transfer
funding to the FS only when it is appropriate e.g., when the EWP
funding is provided to the Secretary of Agriculture with discretion to
provide the funding to both agencies. For Federal lands, it is the
Federal land management department or agency that is responsible for
securing funding to undertake emergency repair activities within lands
under its control.
In response to the commentor that recommended that exigency
situations should be funded on Federal lands, the FS is responsible for
determining whether exigency situations exist on
[[Page 16924]]
lands it manages in accordance with regulations and policy established
by NRCS. Funding EWP activities on Federal lands other than those under
FS management may be an inappropriate augmentation of another Federal
agency's budget. If USDA is Congressionally authorized, funding EWP
activities on Federal lands may be appropriate. NRCS has adopted,
without changes, the proposal defined in section 624.6(b)(2)(iv) which
limits the use of EWP funding on Federal lands except when authorized
by Congress or adequate safeguards are followed.
Section 624.6(b)(3). Several comments were received that supported
including eligibility for structural, enduring, and long-life
conservation practices. Additionally, several comments expressed
concern that the program should not overlap with Emergency Conservation
Program (ECP) administered by the Farm Service Agency (FSA).
As stated in the preamble of the proposed rule, NRCS does not
intend to overlap the EWP program with ECP. EWP assistance would only
be applicable when the emergency measures are not eligible for
assistance under ECP. EWP differs significantly from ECP because a
sponsor is required for EWP recovery work; EWP recovery assistance does
not provide financial assistance directly to individuals but rather to
eligible sponsors.
NRCS can provide EWP assistance toward upgrading damaged or
undersized practices for structural, enduring, and long-life
conservation practices when technology advances or construction
techniques warrant. Such modifications will be cost shared in
accordance with Section 624.7. All structural, enduring, and long-life
conservation practices for which the sponsor is required to obtain a
permit issued by a Federal, State, or local entity shall be designed
and installed to meet the permit requirements or NRCS standards,
whichever is greater. If a structure has to be upgraded to meet federal
permitting or other requirements, such modifications will be cost
shared in accordance with Section 624.7 NRCS has adopted the proposal
for structural, enduring, and long-life conservation practices and has
modified the language in the final rule to clarify that EWP assistance
is not available when ECP is applicable.
Section 624.6(c). Several comments were received that supported
expansion of eligible work to include assistance for areas impacted
that are beyond the immediate area of the waterway.
NRCS acknowledges this support and recognizes that agricultural
productivity, public health and safety, and the environment are often
threatened in the aftermath of disasters that occur outside the
immediate limits of a waterway. Therefore, NRCS has expanded the EWP
Program assistance described in the proposed rule and adopted here in
the final rule to include all recovery measures within watersheds (see
Section 624.6 (c) Eligible practices) on all state, tribal, and private
lands otherwise meeting the EWP eligibility requirements. NRCS may
provide EWP assistance for the removal of sediment and other debris
from agricultural land (croplands, orchards, vineyards, and pastures)
and windblown debris. This provision of the proposed regulation also
provides for EWP assistance for drought recovery activities.
The expansion of eligible recovery measures is primarily associated
with deposits of large quantities of sediments and other debris on
floodplains usually occur from major flooding, and tornadoes and
hurricanes. The sediments are usually coarse and infertile, and
frequently destroy or smother plants and impair normal agricultural
use. This is a normal occurrence in the dynamics of floodplain systems,
but it can jeopardize the productivity of agricultural lands and
adversely affect structures and property within urban areas. As set
forth in the final rule, NRCS will now consider alternative practices
to address the type of damage such as:
Removing and disposing the sediment and other debris
Incorporating the sediment into the underlying soil
Offering to purchase a floodplain easement (see Section
624.10)
Whether these sites qualify for EWP assistance and what the most
effective alternative treatment is for eligible sites depends upon many
factors: size of the particles, depth of material deposited, lateral
extent of the sediment and debris, soil type of the underlying
material, and land use and value of the land. Floodplain easements (see
Section 624.10) may be used if there is too much debris to incorporate
or haul off-site, or otherwise disposed.
Most debris that is deposited on upland areas is carried from winds
of hurricanes or tornadoes. Such debris may cover portions of several
watersheds and normally consists of downed trees, utility poles, and
fence posts; livestock and poultry carcasses; or building materials,
such as insulation, shingles, metal roofing, metal siding, and similar
non-biodegradable materials. Similarly, ice storms may result in debris
deposition and cause the death of livestock and poultry. Debris removal
will typically be associated with the removal of debris upstream of
bridges and culverts, or in the upland portion of a watershed where
debris would readily be moved through runoff and deposited during a
subsequent storm event in a waterway which could cause blockages in the
waterway, flooding homes and other structures.
The practice components adopted to address upland debris deposition
may include, but are not limited to:
Creating access when needed to move trucks and heavy
equipment to a debris site
Using chain saws, other power tools, winches, and other
machinery and heavy equipment to gather and process the debris for
onsite disposal or removal
Disposing of debris in accordance with local rules and
regulations on-site by burial, chipping, or burning
Loading on trucks for removal and disposal off-site in
approved sites or landfills, based upon the composition of the material
Obtaining special technical assistance and personnel to
handle hazardous materials such as asbestos, petroleum products,
propane, or other compressed gas containers, or other potentially
hazardous or toxic compounds or materials
Grading, shaping, and revegetating, by seeding or
planting, any portion of the area affected by the debris removal
operation
Section 624.6(c) Eligible practices. Comments were received
regarding drought emergencies suggesting the allowance of permanent
drought measures such as drilling water wells, and also requested a
timeframe for how long hay or water should be provided during a drought
emergency.
Under the EWP Program drought recovery practices are generally
temporary in nature and are intended to reduce the consequences of a
drought. The EWP program provides for the repair or restoration to pre-
disaster conditions. Drilling wells for livestock watering would be
considered a ``betterment'' above that which existed prior to the
drought and as such not eligible for EWP assistance. Additionally, the
FSA may provide funding to drill wells for livestock watering under ECP
during drought conditions. EWP assistance typically includes soil
erosion prevention measures, prescribed grazing, or reseeding, which
allows rangeland to recover more rapidly. As set forth in the proposed
rule, NRCS believes that EWP assistance should not be used during
[[Page 16925]]
drought situations to install permanent practices or structures,
including water wells, irrigation systems, or purchase of portable
equipment (i.e., water pumps) and has maintained this limitation in the
final rule. NRCS has removed the provision in section 624.6(c)(4) of
the proposed rule that allowed for providing temporary water for
livestock and purchasing and transporting hay. The proposal to provide
temporary water would be duplicative of eligible measures under the ECP
administered by FSA. The proposal to purchase and transport hay was
also eliminated since this activity may not achieve the results
necessary for runoff retardation and soil erosion prevention since
livestock would still be allowed to graze within the drought-impacted
watershed area. Additionally, EWP practices during drought situations
should not be conducted at the expense of another natural resource,
such as pumping or releasing water from a water body to an extent that
is environmentally detrimental.
Section 624.6(e) Implementation. Two comments were received that
recommended NRCS consider the ``buy out'' of structures, primarily
houses, rather than repairing the waterway to protect the houses. NRCS
believes there is sufficient flexibility in this regulation to purchase
and remove houses or other structures in cases where the removal meets
the eligibility requirements of EWP, it is the least costly
alternative, and the buy out is voluntary, and does not involve a
leasee or rentor. Consequently, the proposed language has been adopted
without change in the final rule.
Section 624.7 Cost share assistance. One comment recommended
authorizing 100 percent for exigency situations since sponsors may not
be able to secure funding within time frame required to complete
exigency EWP measures.
NRCS has adopted in the final rule Section 624.11 Waivers which
allows the NRCS Deputy Chief for Programs to waive any provision of
these regulations to the extent allowed by law when the agency makes a
written determination that such waiver is in the best interest of the
Federal government. An example may include allowing up to 100 percent
cost-sharing for a sponsor when the sponsor demonstrates they have
insufficient resources or finances to contribute the 25 percent cost-
share in an exigency situation. All exigency situations do not warrant
100 percent Federal cost-share. However, through the waiver provision
of the final rule, the agency recognizes that there may be situations
were 100 percent cost-share is warranted.
Section 624.7(b) (c). Several comments supported the definition set
forth in the proposed rule at Section 624.4(e) and cost-share rate for
limited resource areas. One commenter requested clarification as to
whether all of the criteria must be met.
The definition of a limited-resource area is a county where average
housing values are less than 75 percent of the State average, per
capita income is less than 75 percent of the national per capita
income, and unemployment during the preceding 3 years is at least twice
the U.S. average. To respond to the comments and, to clarify NRCS'
intent, the definition set forth in the proposed rule is being modified
such that all three criteria have to be met to qualify for the 90
percent cost-share. NRCS would use the most recent U.S. census and
unemployment data to make this determination. NRCS is not adopting the
provision in the proposed rule which provided the NRCS State
Conservationist with the authority to document the limited-resource
status of an area within a non-limited resource county by applying
National census data for the three factors mentioned above and
approving the 90 percent cost-share rate for that area. After further
review, NRCS recognizes that making this determination within a non-
limited-resource county may be difficult since specific U.S. census and
unemployment data may not be available. In situations where the NRCS
State Conservationist believes the 90 percent cost-share is warranted,
a waiver can be requested in accordance with Section 624.11 Waivers
which allows the NRCS Deputy Chief for Programs to waive any provision
of these regulations to the extent allowed by law when the agency makes
a written determination that such waiver is in the best interest of the
Federal government.
Section 624.8 Assistance. NRCS did not receive any comments on this
provision and is adopting the change in the proposed rule which
eliminated Section 624.8 Environment in the previous rulemaking (46 FR
65677, Nov. 17, 1981) since the information is duplicative of other
USDA and NRCS regulations and policy (see 7 CFR part 1b; 7 CFR part
650; NRCS General Manual Title 190, Part 410; and NRCS National
Environmental Compliance Handbook). In the proposed rule, NRCS did not
identify the regulations and policies and has done so here to ensure
that the public is aware of USDA and NRCS' environmental compliance
regulations and policies that are applicable for the EWP Program.
Section 624.8(c)(3) Funding Priorities. One comment requested that
floodplain easement acquisition should be included in the list of EWP
priorities.
Funding for floodplain easement acquisition has been managed
separately from EWP funding for recovery measures. This is due to
Congressional language as part of the EWP funding appropriation which
has designated the amount of funding that could be used to purchase
floodplain easements. When NRCS receives funding for acquisition of
floodplain easements, NRCS State Conservationist will establish ranking
or priority watersheds to acquire floodplain easements. This proposed
provision is adopted in the final rule with clarification that the
funding priorities apply to EWP recovery measures.
Section 624.9 Time limits. One comment recommended extending the
length of time by which recovery work must be completed beyond 220 days
due to the length of time necessary in some cases for sponsors to
obtain permits.
NRCS believes that in most cases emergency recovery measures should
be completed within the 220-day time frame. However, Section 624.11
Waivers provides authority for the NRCS Deputy Chief for Programs to
waive any provision of these regulations to the extent allowed by law
which could include situations where permitting, endangered and
threatened species compliance, cultural resources, or other legal
requirements result in additional time to complete recovery work funded
under the EWP Program. Accordingly, this proposed provision is adopted
in the final rule without change.
Section 624.10 Floodplain easement. One comment requested that
floodplain easements should focus on wetland and wildlife habitat
restoration.
Under the floodplain easement option, a landowner offers to sell to
NRCS a permanent easement that provides NRCS with the full rights to
restore and enhance the floodplain's functions and values which include
consideration of wetland and wildlife habitat restoration. The program
is not a substitute for the Wetlands Reserve Program, also administered
by NRCS, since many other floodplain restoration factors must be
considered, and may be the focus, when restoring floodplain functions
within a site. Floodplain easements restore, protect, maintain, and
enhance the functions of wetlands and riparian areas; conserve natural
values including fish and wildlife habitat, water quality, flood water
retention, ground water recharge, and open space; and safeguard lives
and
[[Page 16926]]
property from floods, drought, and the products of erosion. The agency
has adopted the proposed provision in the final rule without change.
Section 624.10(b)(2)(ii). Comments were received that supported the
acquisition of non-agricultural lands when purchasing floodplain
easements.
Under the proposed rule, NRCS expanded the potential acquisition of
floodplain easements to include non-agricultural lands. Structures
within the floodplain easement may be demolished or relocated outside
the 100-year floodplain, whichever costs less. This element of the
proposed rule would tend to increase program costs in the short-term,
but reduce costs to the Federal government in the long-term, as people
and structures in non-agricultural areas are relocated out of the
floodplain. In addition, as more acreage is returned to open space, the
floodplain would function in a more natural state with increased long-
term public benefits. The agency has adopted the proposed provision in
the final rule without change.
Section 624.10(b)(4). Section 624.10(b)(4) sets forth the
compensation that NRCS will pay a landowner for the purchase of a
floodplain easement. The floodplain easement program is the successor
program to the Emergency Wetlands Reserve Program (EWRP) that NRCS
administered with EWP funds to address the 1993 and 1995 Midwest Flood
events. As a component of the Wetlands Reserve Program, landowners
received agricultural value for an EWRP easement. In the proposed rule,
NRCS indicated that it would pay a landowner for a floodplain easement
the lesser of the three following values as an easement payment: (1) A
geographic rate established by the NRCS State conservationist, if one
has been established; (2) A value based on a market appraisal analysis
for agricultural uses or assessment for agricultural land; or (3) the
landowner's offer, if one has been made.
NRCS is making a few adjustments to the compensation section of the
final rule in response to recent changes made to the Department of
Transportation's regulations to implement the Uniform Relocation
Assistance and Real Property Acquisition for Federal and Federally
Assisted Programs, 49 CFR Part 24, 7 CFR Part 21. In particular, NRCS
relied upon an exemption for voluntary transactions in the former
Department of Transportation regulations for its valuation methodology
under the floodplain easement component of EWP. The Department of
Transportation published its new regulations on January 4, 2005 (70 FR
590). The new Department of Transportation regulations have removed the
voluntary transaction exemption, and therefore, NRCS modified the final
rule to reflect that NRCS will follow applicable regulation and other
law in its determination of easement compensation.
Section 624.10(c). Although no comments were received on this
section, NRCS changed the language in this final regulation to
accurately identify its policy related to easement modifications and
terminations. The agency does not have the authority for either action.
NRCS does have the authority under (7 U.S.C. 428a), in limited
situations, to accept land exchanges.
Section 624.11 Waivers. Although no public comments were received
on this section, NRCS is clarifying in the final rule that the NRCS
Deputy Chief for Programs has the authority to waive any provision of
these regulations to the extent allowed by law when the agency makes a
written determination that such waiver is in the best interest of the
Federal government. NRCS clarified that the determination must be in
writing and in the best interest of the Federal government. NRCS will,
upon request, make waivers available to the public in accordance with
the Freedom of Information Act and 16 U.S.C. 3844(b).
List of Subjects in 7 CFR Part 624
Disaster assistance, Floodplain easement, Flooding, Imminent
threat, Natural disaster, Watershed impairment.
0
Accordingly, for the reasons stated in the preamble, Part 624 of Title
7 of the Code of Federal Regulations is revised to read as follows:
PART 624--EMERGENCY WATERSHED PROTECTION
Sec.
624.1 Purpose.
624.2 Objective.
624.3 Scope.
624.4 Definitions.
624.5 Coordination.
624.6 Program administration.
624.7 Cost-sharing.
624.8 Assistance.
624.9 Time limits.
624.10 Floodplain easements.
624.11 Waivers.
Authority: Sec. 216, P.L. 81-516, 33 U.S.C. 70lb-1; Sec. 403,
P.L. 95-334, as amended, 16 U.S.C. 2203; 5 U.S.C. 301.
Sec. 624.1 Purpose.
The Natural Resources Conservation Service (NRCS) and United States
Forest Service (FS) are responsible for administering the Emergency
Watershed Protection (EWP) Program. This part sets forth the
requirements and procedures for Federal assistance, administered by
NRCS, under Section 216, Public Law 81-516, 33 U.S.C. 701b-1; and
Section 403 of the Agricultural Credit Act of 1978, Public Law 95-334,
as amended by Section 382, of the Federal Agriculture Improvement and
Reform Act of 1996, Public Law 104-127, 16 U.S.C. 2203. The Secretary
of Agriculture has delegated the administration of the EWP Program to
the Chief of NRCS on state, tribal, and private lands, and Chief of FS
on National Forest Systems lands, including any other lands that are
administered under a formal agreement with the FS. The FS administers
the EWP Program in accordance with the Forest Service Manuals 1950 and
3540, and the Forest Service Handbook 1909.15
Sec. 624.2 Objective.
The objective of the EWP Program is to assist sponsors, landowners,
and operators in implementing emergency recovery measures for runoff
retardation and erosion prevention to relieve imminent hazards to life
and property created by a natural disaster that causes a sudden
impairment of a watershed.
Sec. 624.3 Scope.
EWP Program technical and financial assistance may be made
available to a qualified sponsor, or landowners when a floodplain
easement is the selected alternative by the Secretary of Agriculture,
upon a qualified sponsor or landowner's request when a Federal
emergency is declared by the President or when a local emergency is
declared by the NRCS State Conservationist. The EWP Program is designed
for emergency recovery work, including the purchase of floodplain
easements. Emergency watershed protection is authorized in the 50
States, the District of Columbia, the Commonwealth of Puerto Rico, the
U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana
Islands, and American Samoa.
Sec. 624.4 Definitions.
(a) Defensibility means the extent to which an action is:
(1) More beneficial than adverse in the extent and intensity of its
environmental and economic effects;
(2) In compliance with Federal, State, and local laws;
(3) Acceptable to affected individuals and communities;
(4) Effective in restoring or protecting the natural resources;
(5) Complete with all necessary components included; and
(6) Efficient in achieving the desired outcome.
[[Page 16927]]
(b) Exigency means those situations that demand immediate action to
avoid potential loss of life or property, including situations where a
second event may occur shortly thereafter that could compound the
impairment, cause new damages or the potential loss of life if action
to remedy the situation is not taken immediately.
(c) Floodplain easement means a reserved interest easement, which
is an interest in land, defined and delineated in a deed whereby the
landowner conveys all rights and interest in the property to the
grantee, but the landowner retains those rights, title, and interest in
the property which are specifically reserved to the landowner in the
easement deed.
(d) Imminent threat means a substantial natural occurrence that
could cause significant damage to property or threaten human life in
the near future.
(e)(1) Limited resource area is defined as a county where:
(i) Housing values are less than 75 percent of the State housing
value average; and
(ii) Per capita income is 75 percent or less than the National per
capita income; and
(iii) Unemployment is at least twice the U.S. average over the past
3 years based upon the annual unemployment figures.
(2) NRCS will use the most recent National census information
available when determining paragraphs (e)(1)(i) and (ii) of this
section.
(f) Natural occurrence includes, but is not limited to, floods,
fires, windstorms, ice storms, hurricanes, typhoons, tornadoes,
earthquakes, volcanic actions, slides, and drought.
(g) Project sponsor means a State government or a State agency or a
legal subdivision thereof, local unit of government, or any Native
American tribe or tribal organization as defined in section 4 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b), with a legal interest in or responsibility for the values
threatened by a watershed emergency; is capable of obtaining necessary
land rights; and is capable of carrying out any operation and
maintenance responsibilities that may be required.
(h) Watershed emergency means adverse impacts to resources exist
when a natural occurrence causes a sudden impairment of a watershed and
creates an imminent threat to life or property.
(i) Watershed impairment means the situation that exists when the
ability of a watershed to carry out its natural functions is reduced to
the point where an imminent threat to health, life, or property is
created. This impairment can also include sediment and debris
deposition in floodplains and upland portions of the watershed.
Sec. 624.5 Coordination.
(a) If the President declares an area to be a major disaster area,
NRCS will provide assistance which will be coordinated with the Federal
Emergency Management Agency (FEMA) or its designee. FEMA is the lead
federal agency for Presidentially-declared natural disasters.
(b) When an NRCS State Conservationist determines that a watershed
impairment exists, but the President does not declare an area to be a
major disaster area, FEMA does not coordinate assistance. In this
situation, NRCS will assume the lead, provide assistance, and
coordinate work with the appropriate State office of emergency
preparedness and other Federal, tribal, or local agencies involved with
emergency activities, as appropriate.
(c) In the case where the watershed impairment exists solely on FS
System lands, the FS will determine the existence of the impairment,
assume the lead, provide assistance and coordinate work with the
appropriate State office of emergency preparedness and other Federal,
tribal, or local agencies involved with emergency activities, as
appropriate.
Sec. 624.6 Program administration.
(a) Sponsors. (1) When the State Conservationist declares that a
watershed impairment exists, NRCS may, upon request, make assistance
available to a sponsor which must be a State or political subdivision
thereof, qualified Indian tribe or tribal organization, or unit of
local government. Private entities or individuals may receive
assistance only through the sponsorship of a governmental entity.
(2) Sponsors must:
(i) Contribute their share of the project costs, as determined by
NRCS, by providing funds or certain services necessary to undertake the
activity. Contributions that may be applied towards the sponsor's
applicable cost-share of construction costs include:
(A) Cash;
(B) In-kind services such as labor, equipment, design, surveys,
contract administration and construction inspection, and other services
as determined by the State Conservationist; or
(C) A combination of cash and in-kind services;
(ii) Obtain any necessary real property rights, water rights, and
regulatory permits; and
(iii) Agree to provide for any required operation and maintenance
of the completed emergency measures.
(b) Eligibility. NRCS will provide assistance based upon the NRCS
State Conservationist's determination that the current condition of the
land or watershed impairment poses a threat to health, life, or
property. This assistance includes EWP practices associated with the
removal of public health and safety threats, and restoration of the
natural environment after disasters, including acquisition of
floodplain easements.
(1) Priority EWP assistance is available to alleviate exigency
situations. NRCS may approve assistance for temporary correction
practices to relieve an exigency situation until a more acceptable
solution can be designed and implemented.
(2) Limitations. (i) In cases where the same type of natural event
occurs within a 10-year period and a structural measure has been
installed or repaired twice within that period using EWP assistance,
then EWP assistance is limited to those sites eligible for the purchase
of a floodplain easement as described in Sec. 624.10 of this part.
(ii) EWP assistance will not be used to perform operation or
maintenance, such as the periodic work that is necessary to maintain
the efficiency and effectiveness of a measure to perform as originally
designed and installed.
(iii) EWP assistance will not be used to repair, rebuild, or
maintain private or public transportation facilities, public utilities,
or similar facilities.
(iv) EWP assistance, funded by NRCS, will not be provided on any
Federal lands if such assistance is found to augment the appropriations
of other Federal agencies.
(v) EWP assistance is not available for repair or rehabilitation of
nonstructural management practices, such as conservation tillage and
other similar practices.
(3) Repair of structural, enduring, and long-life conservation
practices. (i) Sponsors may receive EWP assistance for structural,
enduring, and long-life conservation practices including, but not
limited to, grassed waterways, terraces, embankment ponds, diversions,
and water conservation systems, except where the recovery measures are
eligible for assistance under the Emergency Conservation Program
administered by the Farm Service Agency.
(ii) EWP assistance may be available for the repair of certain
structural
[[Page 16928]]
practices (i.e., dams and channels) originally constructed under Public
Law 83-566; Public Law 78-534; Subtitle H of Title XV of the
Agriculture and Food Act of 1981 (16 U.S.C. 3451 et seq., commonly
known as the Resource Conservation and Development Program); and the
Pilot Watershed Program of the Department of Agriculture Appropriation
Act of 1954 (Pub. L. 83-156; 67 Stat. 214). EWP assistance may not be
used to perform operation and maintenance activities specified in the
agreement for the covered structure project entered into with the
eligible local organization responsible for the works of improvement.
(iii) NRCS may authorize EWP assistance for modifying damaged
practices when technology advances or construction techniques warrant
modifications, including when modifications are the result of federal
permitting or other requirements necessary to implement the recovery
measure, and will be cost-shared as described in Sec. 624.7.
(iv) EWP assistance is only available when public or private
landowners, land managers, land users, or others document they have
exhausted or have insufficient funding or other resources available to
provide adequate relief from applicable hazards.
(4) Increased level of protection. In cases other than those
described in paragraph (b)(3)(iii) of this section, if the sponsor
desires to increase the level of protection that would be provided by
the EWP practice, the sponsor will be responsible for paying 100
percent of the costs of the upgrade or additional work.
(c) Eligible practices. NRCS will only provide assistance for
measures that:
(1) Provide protection from additional flooding or soil erosion;
and,
(2) Reduce threats to life or property from a watershed impairment,
including sediment and debris removal in floodplains and uplands; and
(3) Restore the hydraulic capacity to the natural environment to
the maximum extent practical; and
(4) Are economically and environmentally defensible and technically
sound.
(d) Documentation. NRCS will document the economic rationale of
proposed practices in appropriate detail before the allocation of
emergency funding, including projects under consideration for
floodplain easements in Sec. 624.10. Generally, the expected value of
the property restored should exceed the cost of emergency measures,
including taking into consideration environmental benefits.
Documentation will include, but is not limited to:
(1) Number of locations and extent of damage, including
environmental and cultural resources at risk, because of the watershed
impairment;
(2) Estimated damages to the values at risk if the threat is
imminent but not yet realized;
(3) Events that must occur for any imminent threat to be realized
and the estimated probability of their occurrence both individually and
collectively;
(4) Estimates of the nature, extent, and costs of the emergency
practices to be constructed to recover from an actual threat or relieve
an imminent threat;
(5) Thorough description of the beneficial and adverse effects on
environmental resources, including fish and wildlife habitat;
(6) Description of water quality and water conservation impacts, as
appropriate;
(7) Analysis of effects on downstream water rights; and
(8) Other information deemed appropriate by NRCS to describe
adequately the environmental impacts to comply with the National
Environmental Policy Act, Endangered Species Act, National Historic
Preservation Act, and related requirements.
(e) Implementation. When planning emergency recovery practices,
NRCS will emphasize measures that are the most economical and are to be
accomplished by using the least damaging practical construction
techniques and equipment that retain as much of the existing
characteristics of the landscape and habitat as possible. Construction
of emergency practices may include, but are not limited to, timing of
the construction to avoid impacting fish spawning, clearing of right-
of-ways, reshaping spoil, debris removal, use of bioengineering
techniques, and revegetation of disturbed areas. Mitigation actions
needed to offset potential adverse impacts of the EWP Program practices
should be planned for installation before, or concurrent with, the
installation of the EWP Program practices. In rare occurrences where
mitigation cannot be installed concurrently, plans will require
mitigation be accomplished as soon as practical.
(f) NRCS may determine that a measure is not eligible for
assistance for any reason, including economic and environmental factors
or technical feasibility.
Sec. 624.7 Cost-sharing.
(a) Except as provided in paragraph (b) of this section, the
Federal contribution toward the implementation of emergency measures
may not exceed 75 percent of the construction cost of such emergency
measures, including work done to offset or mitigate adverse impacts as
a result of the emergency measures.
(b) If NRCS determines that an area qualifies as a limited resource
area, the Federal contribution toward the implementation of emergency
measures may not exceed 90 percent of the construction cost of such
emergency measures.
Sec. 624.8 Assistance.
(a) Sponsors must submit a formal request to the State
Conservationist for assistance within 60 days of the natural disaster
occurrence, or 60 days from the date when access to the sites becomes
available. Requests must include a statement that the sponsors
understand their responsibilities and are willing to pay its cost-
shared percentage as well as information pertaining to the natural
disaster, including the nature, location, and scope of the problems and
the assistance needed.
(b) On receipt of a formal request for EWP assistance, the State
Conservationist or designee shall immediately investigate the emergency
situation to determine whether EWP is applicable and to prepare an
initial cost estimation for submission to the NRCS Chief or designee.
The cost estimation will be submitted no later than 60 days from
receipt of the formal request from the sponsor. The State
Conservationist will take into account the funding priorities
identified in paragraph (c) (3) of this section. The State
Conservationist will forward the damage survey report, which provides
the information pertaining to proposed EWP practice(s) and indicates
the amount of funds necessary to undertake the Federal portion, to the
NRCS Chief or designee. This information will be submitted no later
that 60 days from receipt of the formal request from the sponsor, or no
later than 60 days from the date funding is made available to the State
Conservationist, whichever is later. NRCS may not commit funds until
notified by the Chief, or designee, of the availability of funds.
(c) Before the release of financial assistance, NRCS will enter
into a Cooperative Agreement with a sponsor that specifies the
responsibilities of the sponsor under this part, including any required
operation and maintenance responsibilities. NRCS will not provide
funding for activities undertaken by a
[[Page 16929]]
sponsor prior to the signing of the agreement between NRCS and the
sponsor.
(1) NRCS will only provide funding for work that is necessary to
reduce applicable threats.
(2) Efforts must be made to avoid or minimize adverse environmental
impacts associated with the implementation of emergency measures, to
the extent practicable, giving special attention to protecting cultural
resources and fish and wildlife habitat.
(3) Funding priorities for recovery measures. NRCS will provide EWP
assistance based on the following criteria, which are ranked in the
order of importance:
(i) Exigency situations;
(ii) Sites where there is a serious, but not immediate threat to
human life;
(iii) Sites where buildings, utilities, or other important
infrastructure components are threatened;
(iv) When reviewing paragraphs (c)(3)(i) through (iii) of this
section, NRCS will take into account the following resources as they
may affect the priority, including, but not limited to:
(A) Sites inhabited by federally listed threatened and endangered
species or containing federally designated critical habitat where the
species or the critical habitat could be jeopardized, destroyed, or
adversely modified without the EWP practice;
(B) Sites that contain or are in the proximity to cultural sites
listed on the National Register of Historic Places where the listed
resource would be jeopardized if the EWP practice were not installed;
(C) Sites where prime farmland supporting high value crops is
threatened;
(D) Sites containing wetlands that would be damaged or destroyed
without the EWP practice;
(E) Sites that have a major effect on water quality; and
(F) Sites containing unique habitat, including but not limited to,
areas inhabited by State-listed threatened and endangered species, fish
and wildlife management areas, or State-identified sensitive habitats;
and
(v) Other funding priorities established by the Chief of NRCS.
Sec. 624.9 Time limits.
Funds must be obligated by the State Conservationist and
construction completed within 220 calendar days after the date funds
are committed to the State Conservationist, except for exigency
situations in which case the construction must be completed within 10
days after the date the funds are committed.
Sec. 624.10 Floodplain easements.
(a) General. NRCS may purchase floodplain easements as an emergency
measure. NRCS will only purchase easements from landowners on a
voluntary basis.
(b) Floodplain easements. (1) Floodplain easements established
under this part will be:
(i) Held by the United States, through the Secretary of
Agriculture;
(ii) Administered by NRCS or its designee; and
(iii) Perpetual in duration;
(2) Eligible land. NRCS may determine land is eligible under this
section if:
(i) The floodplain lands were damaged by flooding at least once
within the previous calendar year or have been subject to flood damage
at least twice within the previous 10 years; or
(ii) Other lands within the floodplain would contribute to the
restoration of the flood storage and flow, erosion control, or that
would improve the practical management of the easement; or
(iii) Lands would be inundated or adversely impacted as a result of
a dam breach.
(3) Ineligible land. NRCS may determine that land is ineligible
under this section if:
(i) Implementation of restoration practices would be futile due to
``on-site'' or ``off-site'' conditions;
(ii) The land is subject to an existing easement or deed
restriction that provides sufficient protection or restoration, as
determined by the Chief of NRCS, of the floodplain's functions and
values; or
(iii) The purchase of an easement would not meet the purposes of
this part.
(4) Compensation for easements. NRCS will determine easement
compensation in accordance with applicable regulation and other law.
(5) NRCS will not acquire any easement unless the landowner accepts
the amount of the easement payment that is offered by NRCS. NRCS
reserves the right not to purchase an easement if the easement
compensation for a particular easement would be too expensive, as
determined by NRCS.
(6) NRCS may provide up to 100 percent of the restoration and
enhancement costs of the easement. NRCS may enter into an agreement
with the landowner or another third party to ensure that identified
practices are implemented. NRCS, the landowner, or other designee may
implement identified practices. Restoration and enhancement efforts may
include both structural and non-structural practices. An easement
acquired under this part shall provide NRCS with the full authority to
restore, protect, manage, maintain, and enhance the functions and
values of the floodplain.
(7) The landowner must:
(i) Comply with the terms of the easement;
(ii) Comply with all terms and conditions of any associated
agreement; and
(iii) Convey title to the easement that is acceptable to NRCS and
warrant that the easement is superior to the rights of all others,
except for exceptions to the title that are deemed acceptable by NRCS.
(8) Structures, including buildings, within the floodplain easement
may be demolished and removed, or relocated outside the 100-year
floodplain or dam breach inundation area.
(c) Easements acquired under this part may not be modified or
terminated. However, in limited situations, as determined by the Chief
of NRCS and when in the best interest of the Government, land exchanges
may be authorized pursuant to (7 U.S.C. 428a) and other applicable
authorities.
(d) Enforcement. (1) In the event of a violation of an easement,
the violator will be given reasonable notice and an opportunity to
correct the violation within 30 days of the date of the notice, or such
additional time as NRCS may allow.
(2) NRCS reserves the right to enter upon the easement area at any
time to remedy deficiencies or easement violations. Such entry may be
made at the discretion of NRCS when such actions are deemed necessary
to protect important floodplain functions and values or other rights of
the United States under the easement. The landowner will be liable for
any costs incurred by the United States as a result of the landowner's
negligence or failure to comply with easement or agreement obligations.
(3) In addition to any and all legal and equitable remedies as may
be available to the United States under applicable law, NRCS may
withhold any easement and cost-share payments owing to landowners at
any time there is a material breach of the easement covenants or any
associated agreements. Such withheld funds may be used to offset costs
incurred by the United States, in any remedial actions, or retained as
damages pursuant to court order or settlement agreement.
(4) NRCS will be entitled to recover any and all administrative and
legal costs, including attorney's fees or
[[Page 16930]]
expenses, associated with any enforcement or remedial action.
(5) On the violation of the terms or conditions of the easement or
related agreement, the easement shall remain in force, and NRCS may
require the landowner to refund all or part of any payments received by
the landowner under this Part, together with interest thereon as
determined appropriate by NRCS.
(6) All the general penal statutes relating to crimes and offenses
against the United States shall apply in the administration of
floodplain easements acquired under this part.
Sec. 624.11 Waivers.
To the extent allowed by law, the NRCS Deputy Chief for Programs
may waive any provision of these regulations when the agency makes a
written determination that such waiver is in the best interest of the
Federal government.
Signed in Washington, DC, on March 21, 2005.
Bruce I. Knight,
Chief, Natural Resources Conservation Service.
[FR Doc. 05-6098 Filed 4-1-05; 8:45 am]
BILLING CODE 3410-16-U