[Federal Register Volume 68, Number 223 (Wednesday, November 19, 2003)]
[Proposed Rules]
[Pages 65202-65210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28793]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 68, No. 223 / Wednesday, November 19, 2003 / 
Proposed Rules  

[[Page 65202]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 624


Emergency Watershed Protection Program

AGENCY: Natural Resources Conservation Service.

ACTION: Notice of proposed rulemaking with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Natural Resources Conservation Service (NRCS) proposes 
several changes to the implementation of the Emergency Watershed 
Protection (EWP) Program to improve the effectiveness of its response 
to natural disasters. These changes to the existing program regulations 
include the following:
    [sbull] Modifying the cost-share rate for program assistance;
    [sbull] Clarifying that EWP assistance is not available for Federal 
lands except in situations where safeguards are followed to avoid 
inappropriate augmentation of appropriations;
    [sbull] Allowing a greater Federal share in areas that qualify as 
limited resource areas; and
    [sbull] Describing the parameters under which the agency will 
purchase floodplain easements as a means to limit flood damages and 
reduce future Federal obligations.

DATES: Comments on this proposed rulemaking must be received by January 
20, 2004 to be considered in the development of the final rule.

ADDRESSES: All comments concerning this proposed rule should be 
addressed to Director, Watersheds and Wetlands Division, Natural 
Resources Conservation Service, USDA, P.O. Box 2890, Washington, DC 
20013-2890; or fax to (202) 720-2143. This rule may also be accessed, 
and comments submitted, electronically. Users can access the NRCS 
Watersheds and Wetlands Division Homepage at http://www.nrcs.usda.gov/. 
Comments may also be submitted via e-mail to [email protected]. All 
electronic comments must be submitted as Word or Word Perfect file. 
Files that cannot be accessed or files that contain special characters 
or any form of encryption that cannot be accessed will not be accepted 
or considered.

FOR FURTHER INFORMATION CONTACT: Victor Cole, (202) 690-4575, 
Watersheds and Wetlands Division, Natural Resources Conservation 
Service, or for information regarding floodplain easements, contact 
Martha Joseph (202) 720-7157, Watersheds and Wetlands Division, Natural 
Resources Conservation Service.

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; 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 
authority for administration of EWP to the Chief of NRCS.

Executive Order 12866

    The Office of Management and Budget has determined that this 
proposed rule is a ``significant action'' for the purposes of Executive 
Order 12866. Pursuant to Sec.  6(a)(3) of Executive Order 12866, NRCS 
has conducted an economic analysis of the potential impacts associated 
with this proposed rule. The economic analysis concluded that NRCS is 
conducting the EWP program in a manner that provides significant 
benefits related to costs. A copy of this cost-benefit analysis is 
available upon request from the address listed above.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule since it does not contain a major proposal 
requiring preparation of a regulatory analysis. These proposed 
regulations will not have a significant economic impact on a 
substantial number of small entities.

Environmental Evaluation

    This proposed draft rule is supported by a Programmatic 
Environmental Impact Statement (PEIS) that was made available in draft 
form for public review on December 16, 1999 (64 FR 70212). NRCS will 
consider both the comments received on the draft PEIS and this rule in 
formulation of the final regulation. Copies of the draft PEIS may be 
obtained from the Watersheds and Wetlands Division, Natural Resources 
Conservation Service, USDA, P.O. Box 2890, Washington, DC 20013-2890.

GPEA Statement

    NRCS is committed to compliance with the GPEA, which requires 
Government agencies, in general, to provide the public the option of 
submitting information or transacting business electronically to the 
maximum extent possible.

Paperwork Reduction Act

    This draft final rule does not change the reporting or record-
keeping burden previously required.

Executive Order 13132

    This draft rule complies with Executive Order 13132 ``Federalism.'' 
In pursuing the revision of this rule, NRCS prepared a PEIS in 
accordance with the National Environmental Policy Act (NEPA) 
guidelines. Preparation of the PEIS included an extensive ``scoping 
process,'' which included six public meetings held in different regions 
of the country; contact with State agencies, primarily the emergency 
management and fish and wildlife divisions; and publication of the 
draft PEIS in the Federal Register. Concerns in response to the 
publication of the draft PEIS primarily centered on compliance with 
historic preservation requirements of individual States. In particular, 
it was recommended that NRCS coordinate all activities with the 
respective State historic preservation officer. Much praise was 
received for the program

[[Page 65203]]

from government officials at all levels and the public. Through the 
NEPA process, consultation is done on a routine basis. NRCS established 
policies that require ``pre-disaster planning'' be carried out with all 
affected State and Federal agencies to ensure everyone understands what 
NRCS will do in the event of a disaster.

Executive Order 12998

    This draft rule has been reviewed in accordance with Executive 
Order 12998. The provisions of this rule are not retroactive. 
Furthermore, the provisions of this draft rule pre-empt State and local 
laws to the extent that such laws are inconsistent with this proposed 
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.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
Pub. L. 104-4, NRCS assessed the effects of this rulemaking action 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.

Discussion of the Proposed Changes to 7 CFR Part 624

Overview

    The Emergency Watershed Protection (EWP) Program helps remove 
threats to life and property that remain in the nation's watersheds in 
the aftermath of natural disasters such as floods, hurricanes, 
tornadoes, and wildfires. The EWP Program is administered by the U.S. 
Department of Agriculture (USDA) Natural Resources Conservation Service 
(NRCS), which provides 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.
    NRCS is initiating proposed rulemaking to codify existing EWP 
program implementation and institute programmatic changes that allow 
the repair of enduring conservation practices, limit repeated site 
repairs, allow additional easement purchases, address environmental 
justice issues, and limits treatments on Federal lands. To implement 
the proposed action, NRCS would incorporate changes in program 
administration and in project execution dealing with traditional 
watershed impairments. It would expand the program by providing for 
floodplain sediment deposition removal, and repair damaged structural 
conservation practices to the list of watershed impairments EWP 
currently addresses. Additionally, the proposed 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, funds will not be used on Federal lands, 
purchase of easements on non-agricultural lands, and establish one 
easement category.
    The purpose and need for the NRCS proposed action are to provide 
administrative transparency that ensures that the public is fully 
informed of program operations. Program delivery improvements are 
designed to enable NRCS field and State office personnel to provide EWP 
assistance more effectively and efficiently. NRCS believes that these 
improvements would 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.
    Proposed changes were identified, discussed, and refined in an 
ongoing comprehensive program review that NRCS initiated. The process 
included extensive opportunities for public participation and 
identified substantive ways to improve the environmental, economic, 
social, and technical soundness of Program activities. NRCS is now 
initiating the proposed rulemaking needed to implement the changes to 
the codified EWP regulations. The National EWP Manual (policy), and 
Handbook (procedures) will also need to be revised to reflect the 
changes that NRCS has already instituted, and those that will be 
adopted if the policies proposed in this rulemaking are adopted in a 
final rule after the opportunity for public comment.

Section-by-Section Discussion of Proposed Rule Provisions

    Section 624.1 Purpose. This proposed section would modify the 
existing section to clarify the purpose of the EWP Program.
    Section 624.2 Objective. This proposed section would modify the 
existing section to state that NRCS assists sponsors in the 
implementation of ``emergency recovery measures.''
    Section 624.3 Scope. This proposed section would revise the 
existing section and combine subparagraphs (a) and (b) in the current 
regulation.
    Section 624.4 Definitions. The proposed section would rename the 
current section and would modify the section to provide definitions for 
the EWP program. The ability to provide assistance on Forest Service 
lands as identified in the existing Sec.  624.4 is being eliminated 
from the rule to avoid inappropriate augmentation of appropriations for 
Forest Service restoration activities. Assistance on National Forest 
System lands or other Federal lands can be provided in situations where 
appropriate safeguards are followed to avoid such augmentation.
    Section 624.5 Coordination. This proposed section would include a 
discussion of NRCS coordination in both presidentially declared and 
State conservationist-declared disasters.
    Section 624.6 Program administration. This proposed section now 
describes the NRCS administration of the EWP Program, eligibility, and 
sponsor responsibilities.
    Section 624.6(b)(1) Exigency. This proposed paragraph has been 
modified to clarify exigency situations. NRCS has encountered various 
cases where the term ``exigency'' (previously found in Sec.  
624.5(a)(1)(iv)) is applied too liberally and implemented for purposes 
for which it was not intended. Interpretations of the terms 
``exigency'' and ``non-exigency'' (previously found in Sec.  
624.5(a)(1)(B)) vary widely within NRCS. In some cases, an ``exigency'' 
allowed certain contracting procedures to be waived inappropriately; in 
others, ``exigency'' was used to fund projects inappropriately; and in 
still others, ``exigency'' is used inappropriately to qualify for a 
U.S. Army Corps of Engineers (USACE) nationwide general permit.
    NRCS did not intend these interpretations when the two categories 
(exigency and non-exigency) were established. Rather, the original 
intent

[[Page 65204]]

was to allow NRCS to respond quickly to only those situations that 
needed immediate attention and that could be addressed within 30 days. 
Current regulations tie cost-sharing to this designation, although NRCS 
has not applied the higher cost-sharing rate originally set for 
exigencies for the past 7 years. Instead, NRCS has applied a single 
cost-share rate of 75 percent to exigent and non-exigent situations. 
However, NRCS recognizes there may be unique situations that require a 
waiver from this cost-sharing rate. We had 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. Examples may include 
allowing up to 100 percent cost-sharing with limited resource areas or 
communities, or situations involving environmental justice.
    Under the proposed action, the term exigency would be clarified and 
the term non-exigency would be eliminated since all eligible sites 
would be considered watershed emergencies and the purpose of the 
current and proposed exigency classification is to expedite EWP 
recovery measures where an immediate threat exists. NRCS believes this 
clarification would result in more uniform delivery of the EWP Program. 
Clarification of exigency and removal of the term non-exigency would 
ensure consistent interpretation, and the change should not affect 
program funding.
    Recognizing that certain situations require immediate attention, 
this proposed section would modify the current regulation to add 
language that clarifies ``exigency'' situations that require immediate 
attention. Exigency situations typically exhibit an extremely high 
potential for loss of life or significant property damage unless 
immediate action is taken.
    Occasionally, a site affected by a natural disaster demands 
immediate action to minimize potential threats of life and/or property, 
including when another event may occur shortly thereafter. Two examples 
of such a situation are (1) debris jamming into a bridge or culvert, 
causing water to back up and possibly endanger nearby buildings or the 
bridge and associated road; and (2) a streambank undercutting a 
building that, if not stabilized immediately, could result in the loss 
of the building.
    This proposed clarification to the regulations still ensures 
immediate action when no reasonable alternative is available. The NRCS 
State conservationist would be authorized to carry out the needed 
recovery work to alleviate the exigency situation immediately when:
    [sbull] A damage survey report is completed
    [sbull] Procurement authority is secured
    [sbull] EWP funds are available
    [sbull] A sponsor is selected and local funds are available
    [sbull] Necessary land rights have been acquired
    The clarification proposed by this section would limit the number 
of situations where immediate action is taken to those that are of an 
extremely critical nature, which was the intent of the existing 
regulations. The proposed changes would save time by focusing on 
actions requiring immediate attention during emergency recovery efforts 
and allowing NRCS state offices to be more responsive to local needs.
    Section 624.6(b)(2) Limitations. NRCS is proposing to add this new 
paragraph to describe the number of times an impacted location may be 
eligible for EWP assistance. This proposed paragraph also contains 
limitations found in the current regulations at Sec.  624.7. Repeat 
disasters may strike an area and require EWP recovery assistance 
frequently at one location. Under this proposed rulemaking, NRCS would 
limit repairs under EWP to twice within a 10-year period for the same 
cause (i.e., flooding) at the same site. If a site already has been 
restored 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 
purchasing a floodplain easement on the damaged site. Under this 
proposed regulation, The Department of Agriculture (USDA) would review 
the prospective site to ascertain the frequency of EWP recovery 
assistance at the location.
    For example, if a structure was protected from destruction twice 
using EWP assistance for two separate events, regardless of the 
practice used or the location of the protection efforts, EWP funds 
would not be available for a third protection effort within the 10-year 
period for the same cause. However, 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.
    EWP focuses upon disaster recovery efforts while other USDA 
programs, as well as programs administered by other Federal and State 
agencies, are available to plan and implement protective practices to 
solve recurring problems. This proposed EWP Program change would 
encourage individuals and project sponsors to seek more appropriate 
programs to solve existing long-term and recurring resource problems.
    NRCS believes the impacts of limiting the number of times EWP funds 
can be used to repair the same site will be minimal, but the change is 
necessary to avoid those cases where funds may be used for repetitive 
repairs.
    Section 624.6(b)(2)(iv). This proposed paragraph would clarify that 
NRCS can only provide EWP assistance on Federal lands in situations 
where safeguards are followed to avoid inappropriate augmentation of 
appropriations.
    Section 624.6(b)(3). This proposed paragraph describes those sites 
that will be eligible for EWP where structural/enduring/long-life 
conservation practices exist. This proposed change to the regulations 
currently found in Sec.  624.7(d) would provide for a blanket policy 
exception first established by the NRCS Chief in 1996 for NRCS-assisted 
flood control structures. The EWP Program regulations currently 
prohibit providing assistance for these projects unless the NRCS Chief 
grants an exception. In 1996, the Chief granted a blanket exception to 
this requirement, and assistance has been provided as needed. This 
proposal section would allow repair of NRCS-assisted structural 
practices, such as dams and channels, constructed under the Small 
Watershed Protection and Flood Control Program (authorized by the 
Watershed Protection and Flood Prevention Act of 1954, Public Law 83-
566, 16 U.S.C. 1001-1008), Flood Prevention Program (authorized by the 
Flood Control Act of 1944, Public Law 78-534), Resource Conservation 
and Development Program, and the Pilot Watershed Program.
    When a disaster strikes, NRCS-assisted flood control structures may 
be damaged beyond the level that would normally be expected to be 
repaired under routine operation and maintenance activities and may be 
beyond the sponsor's ability to make necessary repairs. For example, 
when an auxiliary spillway is damaged, extensive repairs may be 
required to prevent catastrophic failure that could result in loss of 
life or property and to provide an opportunity for the dam to function 
properly in the future.
    Under the proposed action, existing structural/enduring/long-life 
conservation practices that are damaged

[[Page 65205]]

during disaster events would be eligible for EWP Program technical and 
cost-share assistance. This provision would allow repair of 
conservation practices that may include grassed waterways, terraces, 
embankment ponds, diversions, and water conservation systems. 
Nonstructural and/or management practices such as conservation tillage 
would not be eligible. Additionally, natural disaster recovery 
practices where assistance is provided under the Emergency Conservation 
Program (ECP) administered by the Farm Service Agency would not be 
eligible for EWP assistance. EWP differs significantly from ECP because 
a sponsor is required for EWP recovery work, and unlike ECP, EWP 
recovery assistance does not provide financial assistance directly to 
individuals. NRCS is interested in receiving comments related to this 
proposed expansion of the eligibility of EWP assistance to allow repair 
of conservation practices.
    Under this proposed paragraph, NRCS could provide EWP assistance 
toward upgrading damaged or undersized practices for structural/
enduring/long-life conservation practices when technology advances or 
construction techniques warrant. All structural/enduring/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.
    The benefits obtained by adopting this proposal include:
    [sbull] Allowing repair work that would address conservation needs 
that may not be covered by other programs;
    [sbull] Helping to ensure that practices will be repaired and 
remain functional rather than being abandoned and becoming a hazard;
    [sbull] Allowing the EWP Program to assist more landowners so that 
a greater number of people will benefit from natural resource 
protection;
    [sbull] Providing rapid treatment of natural resources by the EWP 
Program that might prevent further damage on and off site; and
    [sbull] Encouraging needed repairs by sponsors by providing 
assistance through the EWP Program.
    Section 624.6(c). This proposed provision would expand the areas 
now covered under the EWP Program. Currently, EWP Program work is 
normally confined to watercourses and areas immediately adjacent, 
except in case of drought or fire where work may be carried out on 
critical areas in upland portions of a watershed. However, agricultural 
productivity, public health and safety, and the environment are often 
threatened in the aftermath of disasters that occur outside these 
limits. NRCS proposes that the availability of EWP Program assistance 
expand to include practices needed on all privately owned lands. This 
provision of the proposed regulation would expand the EWP Program to 
include areas away from streams and would allow the removal of sediment 
and other debris from agricultural land (croplands, orchards, 
vineyards, and pastures) and windblown debris, particularly in areas 
considered environmentally sensitive. Environmentally sensitive areas 
may include lands especially vulnerable to damage from the products of 
erosion, points of groundwater re-charge, habitat of endangered or 
threatened species, or cultural resource sites. This provision of the 
proposed regulation also provides for EWP assistance for drought 
recovery activities.
    Deposits of large quantities of sediments and other debris on 
floodplains usually occurs from major flooding. Such materials 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. Under this proposed regulation, NRCS would 
consider alternative practices to address the type of damage such as:
    [sbull] Removing and disposing the sediment and other debris
    [sbull] Incorporating the sediment into the underlying soil
    [sbull] Offering to purchase a floodplain easement (see Sec.  
624.10)
    Whether these sites qualify for EWP assistance and the most 
effective alternative treatment depends upon many factors: Size of the 
particles, depth of material deposited, lateral extent of the deposit, 
land use and soil type of the underlying material, and value of the 
land to the entire agricultural operation. Floodplain easements (see 
Sec.  624.10) can provide disaster relief where there is too much 
debris to incorporate or haul off-site, or otherwise dispose.
    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 from upstream 
of bridges and culverts, or in upland areas where buildup of debris in 
a waterway will cause flooding of homes and other structures.
    The practice components adopted to address upland debris deposition 
could include, but not be limited to:
    [sbull] Creating access when needed to move trucks and heavy 
equipment to a debris site
    [sbull] Using chain saws, other power tools, winches, and other 
machinery and heavy equipment to gather and process the debris for 
onsite disposal or removal
    [sbull] Disposing of debris in accordance with local rules and 
regulations on-site by burial, chipping, or burning
    [sbull] Loading on trucks for removal and disposal off-site in 
approved sites or landfills based upon the composition of the material
    [sbull] 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
    [sbull] Grading, shaping, and revegetating, by seeding or planting, 
any portion of the area affected by the debris removal operation
    Drought recovery practices are generally temporary in nature and 
are intended to reduce the consequences of a drought. EWP assistance 
typically includes providing temporary water for livestock to reduce 
the use of drought impacted water sources, or prescribed grazing and/or 
purchasing and transporting hay, which allows rangeland to recover more 
rapidly. Planting vegetation may be used to reduce soil erosion. EWP 
assistance will not be used during drought situations to install 
permanent practices or structures, including water wells, irrigation 
systems, or purchase of portable equipment (i.e., water pumps). EWP 
practices during drought situations will 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(d) Documentation. This proposed paragraph would 
rename the existing section 624.6(d). The information found in this 
paragraph clarifies the language found in the existing regulation at 
Sec.  624.6(b).
    Section 624.6(e) Implementation. This proposed paragraph would 
rename the existing section 624.7(e) and would

[[Page 65206]]

contain language previously found in the existing regulation at Sec.  
624.6(c).
    Section 624.7 Cost share assistance. This proposed section would 
rename the existing section and establish a cost-share rate of up to 75 
percent for implementation of EWP measures and up to 90 percent for 
limited-resource areas.
    Under current EWP program regulations at Sec.  624.5(c)(1)(ii) and 
Sec.  624.5(C)(2)(i), impairments determined to be non-exigencies 
receive up to 80 percent Federal funding, and exigencies receive up to 
100 percent Federal funding. The proposal to eliminate the exigency and 
non-exigency categories would also eliminate the differential cost-
share rate. A single category of emergency would allow for a single 
cost-share rate. In addition, NRCS would reduce the general cost-share 
ceiling to align it with the 75 percent rate used in related Federal 
programs. However, some increase in the Federal cost-share rate may be 
warranted for sponsors within limited-resource areas. Without such 
assistance, NRCS believes that the needs of such areas will not be met 
if only 75 percent cost-share rate is available. Therefore, NRCS 
proposes in section 624.7(b) to allow sponsors of limited-resource 
areas to be eligible to receive up to 90 percent Federal funding.
    The proposed definition of a limited-resource area (see proposed 
definition in 624.4(d)) 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 twice the available U.S. average. All 
three criteria would have to be met to qualify. NRCS would use the most 
recent U.S. census and unemployment data to make this determination. 
Local data may be used for small communities.
    If a natural disaster strikes a limited-resource community in a 
non-designated limited-resource area, the NRCS State conservationist 
would have the authority to document the limited-resource status using 
State census data for the three factors mentioned above and approve the 
90 percent cost-share rate for that community. In no case would this 
procedure be used for a unit smaller than a ``community,'' as defined 
in proposed section 624.4(d).
    Section 624.8(b). This proposed paragraph would clarify and replace 
language previously found in the current regulation Sec.  624.10.
    Section 624.8(c)(3) Funding Priorities. This proposed paragraph is 
being added to provide guidelines for establishing funding priorities 
to allow the most effective and efficient use of limited EWP funding. 
When a State conservationist declares a local disaster, he or she would 
typically follow these proposed priorities to determine the order in 
which sites would be recovered. In some cases, the State 
conservationist may deviate from the list of priorities due to the 
damage situation (e.g., a building may not be in immediate jeopardy but 
giving its repair a higher priority may avoid adverse impacts to a 
cultural resource) or based upon the sponsor's priorities and ability 
to undertake the project. NRCS priorities are listed in the following 
table.

                   NRCS Priority Order of EWP Funding
------------------------------------------------------------------------
             Priority                         Damage situation
------------------------------------------------------------------------
1................................  Exigency.
2................................  Sites where there is a serious, but
                                    not immediate, threat to human life.
3................................  Sites where property, structures,
                                    utilities, or other important
                                    infrastructure components are
                                    threatened.
4................................  Sites with federally protected
                                    resources, including:
                                   Sites inhabited by federally listed
                                    threatened and endangered (T&E)
                                    species or containing the species
                                    designated critical habitat where
                                    the individuals of the species or
                                    the critical habitat would be in
                                    jeopardy without the EWP practice;
                                   Sites that contain or are in
                                    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;
                                   Sites where prime farmland supporting
                                    high value crops is threatened;
                                   Sites containing wetlands that would
                                    be damaged or destroyed without the
                                    EWP practice; and
                                   Sites that have a major effect on
                                    water quality.
5................................  Sites containing unique habitat--
                                    supporting State-listed T&E species
                                    or species of concern, recreation,
                                    or State- identified sensitive
                                    habitats other than wetlands.
6................................  Other lands not listed above.
------------------------------------------------------------------------

    Currently, in a presidentially declared disaster, NRCS coordinates 
with the Federal Emergency Management Agency (or the State agency with 
emergency recovery responsibilities). NRCS would continue to do so 
after the implementation of this proposed change and follow the 
priorities set by those agencies.
    Section 624.9 Time limits. This proposed section has been renamed, 
and it would simplify time limits associated with the obligation of 
funds and certain limits for completion of work. NRCS proposes a single 
time frame (220 days after the date when the funds are committed to the 
State conservationist by the national office) to complete the work.
    Section 624.10 Floodplain easement. This proposed section is being 
added to address administration of EWP floodplain easements.
    Section 382 of the Federal Agriculture Improvement and Reform Act 
of 1996, Public Law 104-127, amended the EWP authority to provide for 
the purchase floodplain easements as an emergency measure. Since 1996, 
NRCS has purchased floodplain easements on agricultural lands that 
qualify for EWP assistance. 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 property from floods, drought, and the products 
of erosion.
    NRCS may purchase EWP easements on any floodplain lands that have 
been impaired within a 12-month period or that have a history of 
repeated flooding (i.e., flooded at least two times during the past 10 
years). Since offers into the program may exceed funding, NRCS 
maintains a list of easement offers that meet basic eligibility 
criteria at the time of application, and these offers continue to be 
eligible pending availability of funding.
    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. In exchange, 
a landowner receives an easement payment in an amount calculated as the 
least of one of the three following values:
    (i) A geographic rate established by the NRCS State 
conservationist;
    (ii) a value based on a market appraisal analysis for agricultural 
uses or assessment for agricultural land; or
    (iii) the landowner's offer, if one has been made.
    NRCS may pay up to 100 percent of the restoration costs of the 
easement. Restoration efforts include both structural and non-
structural practices. To the extent practicable, NRCS may actively 
restore the natural features and characteristics of the floodplain 
through

[[Page 65207]]

re-creating the topographic diversity, increasing the duration of 
inundation and saturation, and providing for the re-establishment of 
native vegetation. The landowner is provided the opportunity to 
participate in the restoration efforts.
    Landowners retain several rights to the property, including the 
right of quiet enjoyment, the right to control public access, and the 
right to undeveloped recreational use such as hunting and fishing. At 
any time, a landowner may obtain authorization from NRCS to engage in 
other activities if NRCS determines it will be compatible with the 
protection and enhancement of the easement's floodplain functions and 
values. These compatible uses may include managed timber harvest, 
periodic haying, or grazing. NRCS determines the amount, method, 
timing, intensity, and duration of any compatible use that might be 
authorized. While a landowner can realize economic returns from an 
activity allowed for on the easement area, a landowner will not be 
assured of any specific level or frequency of such use, and the 
authorization does not vest any right of any kind to the landowner. 
Cropping would not be authorized as a compatible use, and haying or 
grazing would not be authorized as a compatible use on lands that are 
being returned to woody vegetation.
    While NRCS currently only purchases floodplain easements on 
agricultural lands, NRCS is proposing purchasing floodplain easements 
on non-agricultural lands. NRCS plans to expand the availability of 
floodplain easements to low population density, 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.
    Section 624.11 Waivers. This section is being proposed to provide 
NRCS with the opportunity to waive those provisions of the proposed 
rule that are not prohibited by the law. Situations may arise that 
could be addressed through the EWP Program but proposed provisions in 
this proposed regulation may restrict or not allow NRCS to provide EWP 
assistance. This section is being proposed to avoid these situations 
and to allow NRCS to provide assistance for disaster recovery.

List of Subjects in 7 CFR Part 624

    Disaster assistance, Floodplain easement, Flooding, Imminent 
threat, Natural disaster, and Watershed impairment.

    Accordingly, for the reasons stated in the preamble, it is proposed 
that Title 7 of the Code of Federal Regulations be amended by revising 
Part 624 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, Pub. L. 81-516, 33 U.S.C. 701b-1; Sec. 403, 
Pub. 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) is 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.


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 technical and financial assistance may be made available to a 
qualified sponsor, or landowners when a floodplain easement is the 
selected alternative, 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. This 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 alternative 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.
    (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.
    (e) Limited resource area or community is defined as a unit of 
government or a group of people within a bounded geographical area who 
interact within shared institutions, and who possess a common sense of 
interdependence and belonging where:
    (1) Housing values are less than 75 percent of the State housing 
value average;
    (2) Per capita income is 75 percent or less than the National per 
capita income; and
    (3) Unemployment is at least twice the U.S. average over the past 3 
years based upon the annual unemployment figures.
    NRCS will use the most recent National census information available 
when determining (1) and (2) above.
    (f) Natural occurrence includes, but is not limited to, floods, 
fires, windstorms,

[[Page 65208]]

hurricanes, typhoons, tornadoes, earthquakes, volcanic actions, slides, 
and drought.
    (g) Project sponsor means a legal subdivision of a State government 
or a State agency, other government entities, 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 through the 
Federal Emergency Management Agency (FEMA) or its designee.
    (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 provide assistance, assume the lead, and 
coordinate work with the 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 who must be a State or political subdivision 
thereof, qualified Indian tribe or tribal organization, or unit of 
local government. Private entities may not receive assistance except 
through the sponsorship of a governmental entity.
    (2) Sponsors must:
    (i) Contribute their share of the project costs 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.
    (3) The sponsor is responsible for 100 percent of the costs 
associated with meeting the requirements found in paragraphs (a)(2)(ii) 
and (a)(2)(iii) of this section.
    (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 (exigency is defined in Sec.  624.4(b)). Sponsors must 
complete practices deemed necessary under an exigency situation within 
5 days of the site becoming accessible. 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 the site has been 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 shall 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 shall not be used to repair, rebuild, or 
maintain private or public transportation facilities, public utilities, 
or similar facilities.
    (iv) EWP assistance shall not be provided on any Federal lands, 
unless adequate safeguards are followed to avoid inappropriate 
augmentation of appropriations for other Federal agencies.
    (3) Repair of structural/enduring/long-life conservation practices.
    (i) Sponsors may receive EWP assistance for long-life conservation 
practices including, but not limited to, grassed waterways, terraces, 
embankment ponds, diversions, and water conservation systems, except 
where assistance is provided under the Emergency Conservation Program 
administered by the Farm Service Agency.
    (ii) EWP assistance may be available for the repair of certain 
structural 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 (Public Law 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.
    (iv) EWP assistance is not available for repair or rehabilitation 
of nonstructural management practices such as conservation tillage.
    (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 shall pay 100 percent of the upgrade or 
additional work unless the upgrade is the result of permit requirements 
necessary to implement the recovery.
    (c) Eligible practices. NRCS will only provide assistance for 
measures that:
    (1) Provide protection from additional flooding or soil erosion;
    (2) Reduce threats to life or property from a watershed impairment, 
including sediment and debris removal in floodplains and uplands;
    (3) Restore the hydraulic capacity to the natural environment to 
the maximum extent practical;
    (4) Provide temporary water for livestock to reduce the use of 
drought impacted water sources, prescribed grazing or purchasing and 
transporting hay to allow rangeland to recover; and

[[Page 65209]]

    (5) Are economically and environmentally defensible and technically 
sound.
    (d) Documentation. NRCS shall 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 shall 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 shall place emphasis on 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 practices should be planned for installation before, or concurrent 
with, the installation of the EWP practices. In rare occurrences where 
mitigation cannot be installed concurrently, plans shall 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 
shall 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 shall not exceed 90 percent of the construction cost of such 
emergency measures.
    (c) If a natural disaster strikes a limited resource community in a 
non-designated limited-resource area, the NRCS State conservationist 
has the authority to document the limited resource status using census 
data for the three factors listed in Sec.  624.4(g)(1) through (3) of 
this part, and approve the 90 percent cost-share rate for that 
community. In no case would this procedure be used for a unit smaller 
than a community.


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 shall include a statement that the sponsors 
understand their responsibilities and are willing to pay its cost-
shared percentage and 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 shall immediately investigate the emergency situation 
to determine whether EWP is applicable. 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. NRCS may not commit funds until 
notified by the Chief, or his designee, of the availability of funds.
    (c) Before the release of financial assistance, NRCS will enter 
into an agreement with a sponsor that specifies the responsibilities of 
the sponsor under this part, including any required operation and 
maintenance responsibilities.
    (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. NRCS shall provide EWP assistance based on 
the following criteria:
    (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) Sites with federally protected resources, including, but not 
limited to:
    (A) Sites inhabited by federally listed threatened and endangered 
species or containing the species designated critical habitat where the 
individuals of the species or critical habitat would be in jeopardy 
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; and,
    (E) Sites that have a major affect on water quality.
    (v) Sites containing unique habitat, including but not limited to, 
State-listed threatened and endangered species, fish and wildlife 
management areas, or State-identified sensitive habitats; and,
    (vi) Other lands not listed above.


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.

[[Page 65210]]

Sec.  624.10  Floodplain easements.

    (a) General. Notwithstanding any limitations found in this part, 
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 shall 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 that land is eligible under 
this section if:
    (i) The floodplain lands were damaged by flooding within the last 
12 months or have been subject to flood damage at least twice within 
the previous 10 years; or
    (ii) Other lands within the floodplain that 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 that 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 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. A landowner will receive the lesser 
of the three following values as an easement payment:
    (i) A geographic rate established by the NRCS State 
conservationist, if one has been established;
    (ii) A value based on a market appraisal analysis for agricultural 
uses or assessment for agricultural land; or
    (iii) The landowner's offer, if one has been made.
    (5) NRCS will not acquire any easement unless the landowner accepts 
the amount of the easement payment that is offered by NRCS. The 
easement payment may or may not equal the fair market value of the 
interests and rights to be conveyed by the landowner under the 
easement. By voluntarily participation in the program, a landowner 
waives any claim to additional compensation under EWP based on fair 
market value.
    (6) NRCS may provide up to 100 percent of the restoration and 
enhancement costs of the easement. NRCS may enter into an agreement 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 shall:
    (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.
    (c) Easement modifications. (1) After an easement has been 
recorded, no modification will be made in the easement except by mutual 
agreement with the Chief and the landowner.
    (2) Approved modifications will be made only in an amended easement 
which is duly prepared and recorded in conformity with standard real 
estate practices, including requirements for title approval, 
subordination of liens, and recordation.
    (3) The Chief may approve modifications to facilitate the practical 
administration and management of the easement area or the program so 
long as the modification will not adversely affect the functions and 
values for which the easement was acquired.
    (4) Modifications must result in equal or greater environmental and 
economic values to the United States.
    (d) Enforcement. (1) In the event of a violation of an easement, 
the violator shall 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) Notwithstanding paragraph (c)(1) of this section, 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 shall 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 shall be entitled to recover any and all administrative 
and legal costs, including attorney's fees or 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.

    Signed in Washington, DC on October 29, 2003.
Bruce I. Knight,
Chief, Natural Resources Conservation Service.
[FR Doc. 03-28793 Filed 11-18-03; 8:45 am]
BILLING CODE 3410-16-P