Emergency Watershed Protection Program, 16921-16930 [05-6098]

Agencies

• DEPARTMENT OF AGRICULTURE
• Natural Resources Conservation Service

[Federal Register Volume 70, Number 63 (Monday, April 4, 2005)]
[Rules and Regulations]
[Pages 16921-16930]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6098]



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Rules and Regulations
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Federal Register / Vol. 70, No. 63 / Monday, April 4, 2005 / Rules 
and Regulations

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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 
https://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.

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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

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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 an