[Federal Register Volume 70, Number 63 (Monday, April 4, 2005)]
[Notices]
[Pages 17053-17060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6097]


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DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service


Record of Decision for the Programmatic Environmental Impact 
Statement on the Emergency Watershed Protection Program

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Record of Decision.

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SUMMARY: This notice presents the Record of Decision (ROD) regarding 
the Natural Resources Conservation Service (NRCS) implementation of 
revisions to the Emergency Watershed Protection (EWP) Program to allow 
NRCS to more effectively and efficiently meet EWP statutory 
requirements and improve the effectiveness of agency responses to 
sudden watershed impairments caused by natural disasters. NRCS prepared 
a Final Programmatic Environmental Impact Statement (FPEIS) for EWP 
Program changes and published the FPEIS on the NRCS Web site. A Notice 
of Availability (NOA) of the EWP FPEIS was published in the Federal 
Register on December 30, 2004 and all agencies and persons on the FPEIS 
distribution list were notified individually as well. Printed and CD-
ROM versions of the FPEIS were made available and delivered to all 
those who requested. This Decision Notice summarizes the environmental, 
social, and economic impacts of the EWP Program alternatives identified 
in the FPEIS that were considered in making this decision, and explains 
why NRCS selected the Preferred Alternative--EWP Program Improvement 
and Expansion (Alternative 4) for improving the EWP Program. The public 
may access the NRCS responses to substantive comments on the FPEIS at 
http://www.nrcs.usda.gov/programs/ewp/.

FOR FURTHER INFORMATION CONTACT: Mr. Victor Cole, USDA/NRCS/Financial 
Assistance Programs Division, P.O. Box 2890, Washington, DC, 20013-
2890, (202) 690-0793, or e-mail: [email protected]. The EWP FPEIS 
including appendices and this ROD may be accessed via the Internet on 
the NRCS Web site at: http://www.nrcs.usda.gov/programs/ewp/. More 
detailed information on this program may also be obtained from the NRCS 
web site, or by contacting Victor Cole using the information provided 
above.

Record of Decision

I. The Decision

A. FPEIS Preferred Alternative--EWP Program Improvement and Expansion--
as the Basis for Implementing and Expanding the EWP Program
    Based on a thorough evaluation of the resource areas affected by 
the EWP Program, a detailed analysis of four Program alternatives, and 
a comprehensive review of public comments on the Draft PEIS, NRCS has 
selected the Preferred Alternative--EWP Program Improvement and 
Expansion (Alternative 4) to improve and expand the EWP Program to 
improve the timeliness and environmental, economic, and social 
defensibility of activities conducted under the Program, as well as to 
ensure their technical soundness.
B. Overview
    The EWP Program funds and provides technical assistance to 
sponsoring organizations (entities of local government) to implement 
emergency measures for runoff retardation and soil erosion prevention 
to assist in relieving imminent hazards to life and property from 
natural disasters, including, but not limited to, floods, fires, 
windstorms, ice storms, hurricanes, tornadoes, volcanic actions, 
earthquakes, and drought, and the products of erosion created by 
natural disasters that have caused or are causing sudden impairment of 
a watershed. The Program is authorized by Section 216 of the Flood 
Control Act of May 17, 1950 (Pub. L. 81-516; 33 U.S.C. 701b-1) and by 
Section 403 of Title IV of the Agricultural Credit Act of 1978, (Pub. 
L. 95-334), as amended by Section 382 of the Federal Agricultural 
Improvement and Reform Act of 1996 (Pub. L. 104-127; 16 U.S.C. 2204). 
The EWP Program is administered by NRCS on state, tribal, and private 
lands, with funding typically provided through Congressional emergency 
supplemental appropriations. NRCS regulations implementing the EWP 
Program are set forth in 7 CFR part 624.
C. Programmatic Changes to the EWP Program
    Fifteen key aspects of the current EWP Program were considered for 
improvement or expansion in the PEIS, and were used to define the 
alternatives to the current program in the PEIS. To implement the 
Preferred Alternative--EWP Program Improvement and Expansion, NCRS 
would incorporate the following 15 elements to improve the delivery and 
defensibility of the Program and incorporate new restoration practices:
    1. Retain the term ``exigency''; eliminate ``non-exigency.'' NRCS 
would not eliminate the key term ``exigency'' because of its broad 
interagency use but would eliminate the term non-exigency and simply 
refer to them as emergencies.
    2. No State level funding for immediate exigency response. Change 
allowed time to address exigencies to 10 days. Funding would not be set 
aside in each of the States to immediately address exigencies, though 
the time frame to respond to exigencies would be lengthened to 10 days 
to allow more time to request and secure funding and to allow NRCS and 
sponsors to secure any necessary emergency permits and comply with any 
applicable Federal and State laws or regulations.
    3. Set priorities for funding of EWP practices. NRCS would suggest 
priorities to be applied consistently across the country for funding 
EWP measures. Exigency situations would have highest priority.
    4. Establish cost-share of up to 75 percent; up to 90 percent in 
limited-resource areas; and add a waiver provision allowing up to 100 
percent in unique situations. In addition to the changes in Federal 
cost-share rates, a waiver provision would be included allowing up to 
100 percent cost-sharing for a sponsor in unique situations or when the 
sponsor demonstrates they have insufficient resources or finances to 
contribute the 25 percent cost-share.
    5. Stipulate that practices be economically, environmentally, and 
socially defensible. In addition to environmental and economic 
defensibility, project alternatives would be reviewed to determine 
their acceptability according to the ideals and background of the 
community and individuals directly affected by the recovery activity.
    6. Improve disaster-readiness through interagency coordination, 
planning, and training. Major steps would be taken to improve 
interagency coordination, planning, and training. Although Disaster 
Assistance Recovery Teams

[[Page 17054]]

would not become a major Program element, technical teams for specific 
disasters, or to provide programmatic training, would be assembled.
    7. Allow repair of impairments to agricultural lands using sound 
engineering alternatives. This element would permit sound structural 
measures to be repaired where they are economically, environmentally, 
and socially defensible.
    8. Limit repair of sites to twice in any 10-year period. Where a 
site has been restored twice and 10 or fewer years have elapsed since 
the first disaster event, the options remaining available under the EWP 
Program would be to acquire a floodplain easement, fund a buyout with 
structure removal as a recovery measure, or take no action at all.
    9. Eliminate the requirement that multiple beneficiaries (property 
owners) be threatened before a site would be eligible for EWP Program 
repairs. NRCS recognized that in almost every instance benefits accrue 
to someone downstream of the impairment area.
    10. Apply the principles of natural stream dynamics and bio-
engineering in restoration.
    11. Simplify purchase of agricultural floodplain easements; 
eliminate land designation categories. NRCS would establish a single 
agricultural floodplain easement category and would specify compatible 
landowner uses.
    12. Repair enduring (structural or long-life) conservation 
practices, except when such measures are under ECP jurisdiction. 
Conservation practices, such as waterways, terraces, diversions, 
irrigation systems, and animal waste systems that are damaged during a 
disaster event would be eligible for EWP Program cost-share assistance. 
However, repair of enduring conservation practices or disaster-recovery 
work that is eligible for emergency assistance under the Emergency 
Conservation Program would not be eligible under EWP.
    13. Partially fund improved alternative solutions. The EWP Program 
would be allowed to partially fund work that would be eligible for 
disaster recovery throughout the impaired watershed, but when a sponsor 
desires a more extensive or differently designed solution than NRCS 
would initially recommend, the sponsor is required to pay 100 percent 
of the additional costs.
    14. Allow disaster-recovery work in floodplains away from streams 
and in upland areas, where such measures are not under ECP 
jurisdiction. Expansion of the EWP Program to include areas in an 
impaired watershed not directly adjacent to streams would allow the 
removal of sediment deposits from cropland and pastures and other 
debris (generally wind-blown material) from land and environmentally 
sensitive areas and plantings when necessary for runoff retardation or 
soil erosion prevention.
    15. Allow purchase of floodplain easements on non-agricultural 
lands only to fully restore floodplain function but not where small 
rural communities are at issue. Fund buyouts for recovery of small 
flood-prone communities through sponsors. NRCS would not purchase 
floodplain easements on lands with multiple property owners and 
residences for the sole purpose of relocating small flood-prone rural 
communities under the floodplain easement portion of the EWP Program. 
However, as an EWP recovery measure, NRCS would consider cost-sharing 
with a sponsor to fund buyouts of residents in such flood-prone 
circumstances when it would be the most cost-effective and 
environmentally preferable recovery measure.

II. Description of the Current EWP Program

    NRCS administers the EWP Program to respond to life and property-
threatening watershed impairments caused by natural disasters. Local 
sponsors (e.g., counties, conservation districts) who request EWP 
assistance provide at least 20 percent of funding for EWP watershed 
repair practices. NRCS may provide up to 80 percent of funding and 
technical assistance (up to 100 percent for exigency) for EWP practices 
that remove disaster debris; repair damaged streambanks, dams, and 
dikes; protect floodplain structures; and restore critical watershed 
uplands. The EWP Program is one among a number of Federal and State-
level programs dealing with disaster assistance and watershed 
management. It has been characterized in public comments as one of the 
most responsive to local needs in small, rural watersheds.
    The major practices currently employed under EWP include stream 
flow capacity restoration; stream bank restoration and protection; dam, 
dike, and levee repair; protection of structures in floodplains; and 
restoration of critical upland portions of watersheds. The EWP 
practices generally share common activities: creating access to reach a 
damage site, use of heavy equipment on bank, in-stream, or on uplands, 
material disposal, and grading, shaping, and revegetating portions of 
the site as appropriate. EWP also currently administers a voluntary 
program of floodplain easement purchase on agricultural lands.
    The EWP Manual documents NRCS policy governing EWP; the National 
EWP Handbook covers field procedures. NRCS staff administers the EWP 
Program in the field when sponsors request assistance with disaster 
damage. NRCS completes Damage Survey Reports (DSRs) describing the 
watershed impairments at a particular site, their eligibility for 
repairs, the cost and benefits of appropriate repair practices, and the 
environmental and technical soundness of the proposed measures. The EWP 
regulations, manual, and handbook (including the DSR) would be revised 
to reflect any Program changes NRCS decides to adopt.
    The 1996 Farm Bill authorization of floodplain easements provides 
NRCS with an opportunity to purchase easements on flood-prone lands as 
an alternative to traditional eligible EWP practices. It is not 
intended to deny any party access to the traditional eligible EWP 
practices. It is intended to provide a permanent alternative solution 
to repetitive disaster assistance payments and to achieve greater 
environmental benefits where the situation warrants and where the 
affected landowner is willing to participate in the floodplain easement 
approach. The National Watersheds Manual 390-V, Circular 4, provides 
the current Program guidance for acquisition of floodplain easements. 
Currently, three categories of easements are eligible for purchase on 
agricultural lands that are frequently damaged: (1) Allows no 
agricultural uses, (2) allows certain compatible uses such as 
timbering, haying, and grazing, (3) allows cropping as well as 
timbering, haying, and grazing.
    Exigency (high priority emergency situations) sites receive 
immediate attention and priority in funding. NRCS coordinates its work 
with Federal agencies, principally the U.S. Army Corps of Engineers 
(USACE), U.S. Fish and Wildlife Service (USFWS), Federal Emergency 
Management Agency (FEMA), Environmental Protection Agency (EPA), 
National Marine Fisheries Service (NMFS), and U.S. Forest Service 
(USFS), and with State agencies, including the relevant State Historic 
Preservation Office, Tribal Historic Preservation Officer, and other 
consulting agencies, such as federally recognized tribes, wildlife 
resource and water quality offices, tribal governments, and local 
communities. At issue are important regulatory and environmental 
requirements, such as protecting federally listed endangered or 
threatened species and preserving unique cultural and historic 
resources, including those listed on or eligible for the National 
Register of Historic Places.

[[Page 17055]]

III. Alternatives Considered

    In September 1998, NRCS initiated a formal scoping process to 
solicit input on issues, concerns, and opportunities for EWP Program 
improvement from the public and other local and Federal agencies. 
Public scoping meetings were advertised in regional and local 
newspapers and held in six cities located throughout the country. NRCS 
published notices in the Federal Register and national newspapers 
stating that the agency was preparing a PEIS and that input was being 
sought through multiple venues, including the public scoping meetings, 
regular mail, e-mail, and a toll-free phone line. NRCS also held 
discussions with other agencies, including Farm Service Agency, EPA, 
USFS, FEMA, USACE, and USFWS, as well as NRCS field personnel who 
routinely deal with EWP projects. Based on input from scoping, NRCS 
developed, and evaluated in detail in the Draft EWP PEIS, three 
alternatives for future administration of the EWP Program, which are 
described in detail below: the No Action alternative (Alternative 1), 
NRCS' Draft PEIS Proposed Action (Alternative 2), and Prioritized 
Watershed Planning and Management (Alternative 3).
    Based on comments from other agencies and the public on the Draft 
EWP PEIS, comments on the Proposed EWP Rule (published on November 19, 
2003 in the Federal Register, Vol. 68, No. 223), and internal agency 
considerations concerning management, funding, and implementation 
feasibility of EWP Program changes, NRCS developed a fourth alternative 
(the Preferred Alternative--EWP Program Improvement and Expansion), 
which was fully evaluated in the Final EWP PEIS. The Preferred 
Alternative--EWP Program Improvement and Expansion--incorporates many 
of the elements of improvement and expansion proposed under the Draft 
PEIS Proposed Action, but leaves some elements unchanged or introduces 
only minor changes when compared with the No Action. The EWP FPEIS also 
fully described and evaluated the three Draft EWP PEIS alternatives.
A. Alternative 1--No Action (Continue the Current Program)
    NRCS would continue to conduct the current EWP Program as it does 
now with no improvement or expansion. The 15 elements of the current 
EWP Program that would remain in effect under the No Action Alternative 
include:
    1. Continue using the terms ``exigency'' and ``non-exigency'' as 
they are now used. An exigency exists when the near-term probability of 
damage to life or property is high enough to demand immediate Federal 
action. A non-exigency situation exists when the near-term probability 
of damage to life or property is high enough to constitute an 
emergency, but not sufficiently high to be considered an exigency.
    2. Continue current exigency response procedures. NRCS National 
Headquarters would continue to respond to State requests to provide 
funding for exigency responses as they are received by NHQ and would 
not provide each State with separate ``pre-disaster'' funding for ``on 
the spot'' State-level responses. NRCS would continue to allow 30 days 
to address exigencies.
    3. Continue using current procedures for project prioritization. 
NRCS State Conservationists would continue to prioritize EWP projects 
for their States in non-Presidentially declared disasters and may 
include input from the sponsors in these decisions. In Presidentially 
declared disasters, NRCS would continue working with FEMA and the USACE 
in establishing priorities.
    4. Continue to administer EWP under current cost-share rates. NRCS 
would continue to provide EWP funding at a Federal cost-share of up to 
100 percent for exigencies and up to 80 percent for non-exigencies. 
[Note: Although current regulations tie cost-sharing to the exigency/
non-exigency designation, for the past 10 years, NRCS has been applying 
a single cost-share rate of 75 percent to both exigency and non-
exigency situations.]
    5. Continue to employ current defensibility review requirements. 
NRCS would continue to review EWP recovery practices to determine 
whether they are economically and environmentally defensible.
    6. Continue current EWP Program coordination, training and planning 
in each State.
    7. Continue to disallow repair of impairments to agricultural 
lands. This would preclude use of restoration measures to protect high-
value croplands from continued erosion caused by future flooding.
    8. Continue to allow repeated repairs to EWP sites. NRCS would 
impose no restrictions on the number of repeated repairs of damaged EWP 
sites that could be funded.
    9. Continue to require multiple beneficiaries for non-exigency 
measures. NRCS would continue to require that multiple beneficiaries be 
identified and documented in the project Damage Survey Report (DSR) for 
site repair of non-exigency emergencies. This is not a requirement for 
exigencies where sites with single beneficiaries are eligible for EWP 
repairs.
    10. Continue to employ only least-cost restoration measures. NRCS 
would continue to fund disaster recovery measures on a least-cost basis 
for repair of site damage alone, so long as they are environmentally 
defensible, without regard to ancillary environmental considerations or 
benefits.
    11. Continue to allow land-owner uses of floodplain easements under 
the three existing categories. Under the No Action Alternative 
published in the Draft EWP PEIS, NRCS would have continued to fund 
agricultural floodplain easement purchases under three land-use 
categories. Since that time, NRCS has restricted compatible uses to a 
single category of uses.
    12. Continue to disallow repairs of enduring conservation 
practices.
    13. Continue to disallow funding of improved alternative solutions. 
NRCS would fund projects based on a least-cost design to achieve the 
specific site restoration objectives only, without regard to any 
additional benefits sponsors may wish to gain with an expanded but more 
expensive design.
    14. Continue to disallow disaster-recovery work away from streams 
and critical areas.
    15. Continue to disallow purchase of floodplain easements on 
improved lands. Under the No Action Alternative published in the Draft 
EWP PEIS, NRCS would have continued to disallow purchase of floodplain 
easements on improved lands. Since that time, NRCS has instituted 
procedures to acquire improved lands in connection with floodplain 
easement purchases where continued use of those lands would affect 
NRCS' ability to attain the benefits of the floodplain easement by 
restoring full floodplain function.
B. Alternative 2--EWP Program Improvement and Expansion (Draft PEIS 
Proposed Action)
    The 15 specific EWP Program changes to improve the delivery and 
defensibility of the Program and incorporate new restoration practices 
under the Draft PEIS Proposed Action included:
    1. Eliminate the terms ``exigency'' and ``non-exigency.''
    2. Stipulate that ``urgent and compelling'' situations be addressed 
immediately upon discovery. In a situation that demands immediate 
action to avoid potential loss of life or property, employees with 
procurement authority would be permitted to hire a contractor to remedy 
a watershed

[[Page 17056]]

impairment immediately after evaluation of the site.
    3. Set priorities for funding of EWP measures. NRCS would suggest 
priorities to be applied consistently across the country for funding 
EWP measures. Urgent and compelling situations would have highest 
priority.
    4. Establish a cost-share rate of up to 75 percent for all EWP 
projects (except for projects in limited-resource areas, where sponsors 
may receive up to 90 percent, and floodplain easements, which are 
funded at 100 percent).
    5. Stipulate that measures be economically, environmentally, and 
socially defensible and identify the criteria to meet those 
requirements. Project alternatives would be reviewed to determine their 
acceptability according to the ideals and background of the community 
and individuals directly affected by the recovery activity. A 
combination of all three categories would be used to determine 
defensibility.
    6. Improve disaster-recovery readiness through interagency 
coordination, training, and planning. NRCS would employ Disaster 
Assistance Recovery Training teams to train its employees, evaluate and 
implement ways to improve coordination between EWP and other emergency 
programs, and assist State Conservationists in preparing Emergency 
Recovery Plans detailing working relationships with other Federal, 
State, and local groups.
    7. Allow repair of impairments to agricultural lands using sound 
engineering alternatives.
    8. Limit repair of sites to twice in a 10-year period. Where a site 
has been restored twice and 10 or fewer years have elapsed since the 
first disaster event, the options remaining available under the EWP 
Program would be to acquire a floodplain easement or take no action at 
all.
    9. Eliminate the requirement that multiple beneficiaries (property 
owners) be threatened before a site would be eligible for EWP Program 
repairs.
    10. Apply the principles of natural stream dynamics and, where 
appropriate, use bioengineering in the design of EWP restoration 
practices. DART teams would incorporate these design principles into 
disaster-readiness training of NRCS staff and provide more intensive 
training to NRCS staff responsible for EWP practice design and review.
    11. Simplify purchase of agricultural floodplain easements. NRCS 
would establish a single agricultural floodplain easement category and 
would specify compatible landowner uses.
    12. Repair enduring (structural or long-life) conservation 
practices. Conservation practices such as waterways, terraces, 
diversions, irrigation systems, and animal waste systems that are 
damaged during a disaster event would be eligible for EWP Program cost-
share assistance.
    13. Partially fund expanded or improved alternative solutions. This 
would allow the EWP Program to help fund work that would be eligible 
for disaster recovery throughout the impaired watershed, but that would 
constitute a more extensive or differently designed solution than NRCS 
would initially recommend.
    14. Allow disaster-recovery work in floodplains away from streams 
and in upland areas. This change would allow the removal of sediment 
deposits from cropland and pastures and other debris from land and 
environmentally sensitive areas and plantings or other measures to 
prevent erosion.
    15. Purchase floodplain easements on non-agricultural lands. 
Floodplain easements would be purchased on both unimproved and improved 
lands. For improved land, NRCS would provide 100 percent of the cost of 
an easement that conveys all interests and rights. Any structures would 
be demolished or relocated outside the 100-year floodplain at no 
additional cost to the government.
C. Alternative 3--Prioritized Watershed Planning and Management
    This alternative would allow NRCS to focus EWP Program efforts 
proactively on disaster-prone watersheds and integrate those efforts 
with other USDA programs dealing with watershed issues. Prioritized 
watershed planning would combine the changes of Alternative 2 with 
focused, Program-neutral, disaster-readiness and mitigation planning 
for selected high-priority watersheds. In addition to instituting all 
15 Program improvements and expansions described under the Draft PEIS 
Proposed Action (Alternative 2), the EWP Program elements implemented 
under Alternative 3 would include:
    a. Continuing to deliver EWP project funding and technical 
assistance to address immediate threats to life and property as 
required by law. This would continue to be the highest, but not sole, 
priority in the EWP Program.
    b. Facilitating a locally led pre-disaster planning effort. This 
locally-led effort initiated and coordinated by NRCS would address 
concerns about recurrent application of EWP repair measures in 
watersheds that have a history of frequent disasters and integrate EWP 
activities in those watersheds with NRCS programs dealing with other 
watershed issues.
    c. Funding of priority watersheds in each State for pre-disaster 
planning and management. High priority watersheds and, as funding 
permits, medium priority watersheds would undergo pre-disaster planning 
and management providing there is a local sponsor (State, county, 
tribal organization or other eligible entity) who agrees to sponsor the 
pre-disaster planning.
    d. Coordinating pre-disaster planning and management efforts with 
Federal, State, and local agencies and interested stakeholders. This 
would include establishing an overall watershed management plan; 
integrating other program authorities and practices available to NRCS; 
purchasing floodplain easements on a stepwise, proactive, risk-
reduction basis; and combining EWP with other program authorities to 
enhance watershed values.
D. Alternative 4--EWP Program Improvement and Expansion (Preferred 
Alternative--EWP Program Improvement and Expansion)
    The Preferred Alternative--EWP Program Improvement and Expansion--
would incorporate the 15 changes discussed under ``Programmatic Changes 
to the EWP Program'' above.

IV. Impacts Under the Alternatives

    This section summarizes some of the effects that would be expected 
to occur to such resource areas as aquatic, riparian, and floodplain 
ecosystems, wetland communities, and human communities under each of 
the four alternatives.
A. Alternative 1--No Action (Continue the Current Program)
    This alternative has the lowest likelihood of addressing watershed 
level effects (e.g., water quality). Minor adverse effects from 
restoration practices would continue to occur and would add to habitat 
loss in riparian, floodplain, and wetland ecosystems and loss of 
natural floodplain functioning that are a contributing part of general 
watershed decline. Agricultural floodplain easements may mitigate these 
effects in some watersheds.
    Aquatic Ecosystems: Under Alternative 1, aquatic ecosystems would 
continue to benefit in the short-term from restoration of channel 
capacity and reduction of bank erosion at EWP repair sites. The 
hydrology of disaster-damaged stream reaches would be restored and 
turbidity and sedimentation reduced, which would improve conditions for 
aquatic life in

[[Page 17057]]

many respects. However, aquatic ecosystems would continue to be 
adversely affected in the longer-term primarily due to the widespread 
emphasis on the use of armoring and removal of in-stream debris. 
Generally, armoring and levee repairs would continue to provide lower 
quality habitat for aquatic life, limit riparian vegetation growth, and 
redirect stream energy to downstream locations with potentially 
damaging consequences, such as increased flow velocities and increased 
turbidity in downstream reaches. Adverse effects on habitat structure 
would likely continue to occur from almost complete removal of in-
stream debris, as this removes habitat and nutrients. Continuing to use 
three easement categories would result in some easement lands serving 
as natural floodplains; others would support intensive agriculture. 
Category 1 easements would increase filtration, improve vegetation, and 
increase flood storage. Category 3 would continue to contribute to 
agricultural runoff and declines in water quality.
    Riparian Ecosystems: Under Alternative 1, riparian communities and 
streambanks would continue to be adversely affected, primarily due to 
continued reliance on armoring practices and levee repairs. While these 
practices do stabilize streambanks, the structures used limit or damage 
riparian vegetation, reduce the quality of habitat for aquatic and 
riparian species, redirect streamflow energy further downstream, and 
restrict natural floodplain function. Additionally, current methods for 
creating access and clearing and snagging may adversely affect 
streambank stability and habitat quality. Increased use of natural 
structural materials may mitigate these impacts. Floodplain easements 
would offer improved habitat from increased vegetative cover. Category 
1 would yield the greatest potential benefits, while Category 3 would 
yield minimal benefits.
    Floodplain Ecosystems: Under Alternative 1, floodplain ecosystems 
would continue to be adversely affected, since armoring alters natural 
floodplain function and levees confine flood flows to the stream 
channel, protecting the lands behind them while preventing the 
development of natural floodplain function. Stream energy would 
continue to be channeled to downstream reaches and floodplain habitat 
would continue to be absent or underdeveloped. Substantive improvements 
would occur with Category 1 floodplain easements, as easement purchases 
would return developed lands to a more natural state, improving water 
quality, habitats, and infiltration. Category 3 easements offer minimal 
benefit, as intensive agriculture is allowed.
    Wetland Communities: Under Alternative 1, wetland communities may 
continue to be adversely affected, as many restoration practices act to 
restrict stream hydrology and normal flood regime and may limit the 
water available for wetland functions. Filtration, flood retention, 
groundwater recharge and wetland habitat functions may be affected. 
However, continued purchase of agricultural floodplain easements would 
continue to restore some natural flooding conditions, improving wetland 
hydrology in some watersheds, and would continue to promote wetland 
creation or growth, resulting in increased wetland habitat.
    Human Communities: Continuation of the current Program would be 
expected to have a minimal impact on the local economy of affected 
communities. Most of the proposed projects are relatively small in 
scope and the total dollar expenditures would not contribute 
substantially to the local economy. Alternative 1 would benefit the 
local economy from restoration of previous productive land use and 
value. Purchase of floodplain easements could result in a loss of 
employment and income from agricultural land, but would reduce demand 
for services and disaster assistance, and may provide the additional 
benefit of protecting open space and improving the visual or 
recreational quality of an area. With respect to infrastructure and 
social resources and services, the effect of the Program is generally 
beneficial. Some temporary disruption of social patterns during project 
construction may result, but no permanent disruption to local 
community. Short-term benefits would occur from protecting public 
health and safety; however, in disaster-prone areas, long-term public 
health and safety concerns would remain high.
B. Alternative 2--EWP Program Improvement and Expansion (Draft PEIS 
Proposed Action)
    This alternative would have an increased likelihood of addressing 
watershed level effects than Alternative 1 from using environmentally 
preferable practices (design based on the principles of natural stream 
dynamics and bioengineering) and more floodplain easements on non-
agricultural lands. There would be a reduced likelihood of adverse 
impacts on aquatic, riparian, wetland, and floodplain ecosystems. Use 
of non-agricultural floodplain easements would encourage more 
restricted land uses of floodplains.
    Aquatic Ecosystems: Under Alternative 2, Program-wide training in 
and use of stream restoration design based on the principles of natural 
stream dynamics and floodplain easements would provide substantial 
benefits to aquatic ecosystems. These practices would help restore 
sinuosity, regulate stream flow, create aquatic habitat, increase 
channel structure quality, and improve water quality. Increased use of 
bioengineering may also better regulate water temperatures. Under the 
Alternative 2, only one category of agricultural floodplain easement 
would be available, which would allow compatible uses such as grazing, 
haying or timber. Purchase of agricultural and improved land floodplain 
easements would reduce urban and agricultural runoff, improving water 
quality. This type of easement would improve habitats, channel 
structure, and floodplain function. Requiring a buffer strip on all 
floodplain easements and fencing on grazing floodplain easements will 
help to maintain or improve environmental conditions.
    Riparian Ecosystems: Under the Alternative 2, emphasis on stream 
restoration based on the principles of natural stream dynamics and 
increased floodplain easement purchases could provide considerable 
benefits for riparian communities. These practices would promote 
natural re-vegetation, stabilize streambanks, dissipate stream energy, 
establish aquatic and riparian habitat, and restore natural channel 
structure and morphology. Easements would serve to augment these 
benefits by restoring floodplain function and establishing riparian 
forests and buffer zones.
    Floodplain Ecosystem Impacts: Under Alternative 2, inclusion of 
recovery measures to restore natural stream dynamics and an increased 
emphasis on easements would improve floodplain function, increase flood 
retention capabilities, substantially improve hydrology, and promote 
floodplain habitat. Natural stream dynamics may lead to change in land 
use to more natural land uses, as stream channel is allowed to meander. 
Limitations on compatible uses within floodplain easements may offer 
benefits to water quality, infiltration, and groundwater recharge.
    Wetland Communities: Under Alternative 2, natural stream dynamics 
and a focus on floodplain easement purchase may lead to improvements in 
wetland communities. By restoring to more natural hydrologic regimes, 
wetlands may be restored in areas with appropriate soils and hydrology.

[[Page 17058]]

Easements would also likely restore wetlands and wetland functions, as 
periodic flooding would promote wetland growth and development.
    Human Communities: Alternative 2 would be generally beneficial to 
affected human communities. Increased Federal cost-share for projects 
in limited resource communities and expansion of the defensibility 
criteria for EWP projects would substantially increase access to 
potentially beneficial effects of the projects for socially 
disadvantaged or minority persons who may have been previously excluded 
and would reduce the potential financial burden on these communities. 
By establishing a social rationale based on the use of the property by 
the landowner, the proposed action includes a category of participant 
who might otherwise have been excluded from the current Program, 
especially in circumstances where the economic value of a property may 
be low or difficult to calculate.
    Expansion of the floodplain easement option to include non-
agricultural and improved land would likely increase the potential for 
short-term disruption of local communities or neighborhoods by the 
displacement of residents, but it also represents an opportunity for 
the community to reduce the long-term impact of natural disasters and 
the associated recovery cost, especially on improved properties. The 
general effect on the local economy would be similar to Alternative 1; 
however, expansion of floodplain easements to improved land may have a 
greater impact on employment and income from affected properties. 
Easement purchases may result in the loss of business, commercial, or 
residential structures, or alter previous land uses on or land value of 
subject and neighboring properties. Where floodplain easements are 
purchased, there is some possibility that the easements could become 
part of an area's comprehensive plan for growth, by meeting a portion 
of the need for functional open space for the community.
C. Alternative 3--Prioritized Watershed Planning and Management
    Alternative 3 would have the highest likelihood of planning for and 
addressing watershed level effects, as well as reducing adverse effects 
and increasing beneficial effects on aquatic, wetland, floodplain, and 
riparian ecosystems, especially in well-managed priority watersheds. 
This alternative would also have the highest likelihood of encouraging 
the best use of floodplains, but the highest potential for disruption 
of older rural communities.
    Aquatic Ecosystems: Alternative 3 would have the same impacts on 
aquatic ecosystems as those described under Alternative 2, with the 
following additional benefits. Planning and coordination at the local 
level would act to focus restoration efforts on high priority disaster-
prone watersheds. Through watershed scale management, the benefits 
realized with restoration design based on natural stream dynamics and 
purchase of floodplain easements could be amplified, as contiguous 
habitat areas and longer reaches of naturally flowing streams could be 
restored and improved. This would result in greater improvements in 
water quality and more permanent establishment of biotic populations.
    Riparian Ecosystems: Alternative 3 would have the same impacts on 
riparian ecosystems as those described under Alternative 2, with the 
following additional benefits. Coordinated planning under Alternative 3 
may result in: decreased emphasis on local impairments, focusing on 
watershed scale stream function; contiguous easement sections, reducing 
the need for streambank repairs and benefiting riparian ecosystems; and 
contiguous ecosystem components and habitat, such as riparian forests 
and buffer zones, which would benefit riparian biota.
    Floodplain Ecosystems: Alternative 3 would have the same impacts on 
floodplain ecosystems as those described under Alternative 2, with the 
following additional benefits. Coordination and planning under 
Alternative 3 may lead to the establishment of large segments of 
contiguous, freely flowing stream and floodplain systems in priority 
watersheds. Floodplain land uses may be converted to more natural uses, 
improving floodplain function and reducing threats to life and 
property. Coordinated easement purchases may create contiguous reaches 
of well-regulated flows during flooding events and result in an overall 
reduction in stream energy and velocity thereby safeguarding lives and 
property within that portion of the watershed.
    Wetland Communities: Alternative 3 would have the same impacts on 
wetland ecosystems as those described under Alternative 2, with the 
following additional benefits. Planning and coordination would likely 
lead to further improvements to wetland communities. Watersheds may be 
managed for natural stream flows, which may lead to contiguous reaches 
with sufficient flooding and natural hydrology to maintain, improve, 
and promote wetland areas. This may also result in contiguous segments 
of wetland, which would augment the quality of habitat and filtration 
capacity. Coordinated easement purchase may result in creation or 
growth of more extensive wetland habitat than Alternatives 1 or 2, 
resulting in large scale filtration and improving water quality.
    Human Communities: The primary effect of the proposed watershed 
planning and management approach under Alternative 3 is the proactive 
benefit of allowing watershed planning on a macro scale. Where this 
alternative would continue to provide funding and technical assistance 
similar to that proposed under Alternative 2, similar impacts would be 
anticipated. However, the incorporation of pre-disaster planning and 
management of the watershed on a macro scale provides a greater 
understanding of a land use vision for the community. The integration 
of watershed planning into the process enables environmental concerns 
to be addressed as part of the community's long-term growth strategies. 
An integrated approach to program management allows for more efficient 
use of capital resources and the economic potential of the watershed, 
while minimizing adverse environmental effects. Some potential for loss 
of existing community resources may be possible, but this is offset by 
the increased availability of watershed related recreational, 
educational, or other uses. An important beneficial effect associated 
with this approach concerns the involvement of multiple program 
authorities, local and State agencies, and stakeholders in the process.
    Proactive use of floodplain easements in a planned approach would 
minimize potential problems associated with reliance on a project-by-
project approach, especially where neighboring or adjoining properties 
are volunteered for the Program at different times and under differing 
circumstances. Where easements are purchased, there is the potential 
that open spaces can be planned as integral components of the area 
landscape. Similar to Alternative 2, purchase of improved lands 
floodplain easements could alter the composition or structure of the 
community by displacing current residents. Easements could also alter 
the existing land uses or may result in the breakup of residential 
networks. These potentially adverse effects may be offset, however, by 
the more effective use of floodplain easement purchases as a part of a 
longer-term flood management and watershed planning approach and could 
reduce Federal funding outlays in the

[[Page 17059]]

long-term. This alternative would be the best long-term solution to 
protect public health and safety.
D. Alternative 4--EWP Program Improvement and Expansion (Preferred 
Alternative--EWP Program Improvement and Expansion)
    Alternative 4 would have an increased likelihood of addressing 
watershed level effects than Alternative 1 from using environmentally 
preferable practices (design based on the principles of natural stream 
dynamics and bioengineering) and more floodplain easements on non-
agricultural lands. There would be a reduced likelihood of adverse 
impacts on aquatic, riparian, wetland, and floodplain ecosystems due to 
emphasis on bio-engineering practices, but more limited reductions from 
more limited use of easements than under Alternative 2. Limited support 
for buyouts as part of the recovery program would encourage more 
restricted uses of the floodplain but may disrupt older rural 
communities.
    Aquatic Ecosystems: The impacts on aquatic ecosystems under 
Alternative 4 would be similar to those described under Alternative 2.
    Riparian Ecosystems: The impacts on riparian ecosystems under 
Alternative 4 would be similar to those described under Alternative 2.
    Floodplain Ecosystems: The impacts on floodplain ecosystems under 
Alternative 4 would be similar to those described under Alternative 2.
    Wetland Communities: The impacts on wetland communities under 
Alternative 4 would be similar to those described under Alternative 2.
    Human Communities: In general, implementation of the Preferred 
Alternative--EWP Program Improvement and Expansion--would be beneficial 
to affected human communities. Funding changes for projects in limited 
resource communities and expansion of the defensibility criteria for 
EWP projects would substantially increase access to potentially 
beneficial effects of the projects for socially disadvantaged or 
minority persons who may have been previously excluded and would reduce 
the potential burden on these communities. By establishing a social 
rationale based on the use of the property by the landowner, the 
proposed action includes a category of participant who might otherwise 
have been left out of the current Program, especially in circumstances 
where the economic value of a property may be low or difficult to 
calculate.
    The potential impact of the installation of engineered solutions at 
individual sites is similar to that under Alternative 1. Expansion of 
the floodplain easement option to include improved lands and limited 
funding of buyouts of small flood-prone rural communities would likely 
increase the potential for disruption of local communities or 
neighborhoods in the short-term by the displacement of some residents, 
but it would also present an opportunity for the community to reduce 
the long-term impact of natural disasters and the associated recovery 
cost on improved properties. Program modifications in funding 
priorities and floodplain easement purchase under the Preferred 
Alternative--EWP Program Improvement and Expansion--would influence the 
overall impact of the Program on the human social environment and may 
alter the proposed solutions or the manner of participation for 
affected communities. Additionally, the Preferred Alternative--EWP 
Program Improvement and Expansion--allows for greater opportunities for 
cooperation with local land use plans. Easement purchases may result in 
the loss of business, commercial, or residential structures, or alter 
previous land uses on or land value of subject and neighboring 
properties. Where easements are purchased, there is some possibility 
that the easements could become part of an area's comprehensive plan 
for growth, by meeting a portion of the need for functional open space 
for the community.

V. Rationale for the Decision

    The Preferred Alternative--EWP Program Improvement and Expansion--
expands and improves the EWP Program to allow NRCS to more effectively 
and efficiently meet EWP statutory requirements and improve the 
effectiveness of agency responses to sudden watershed impairments 
caused by natural disasters. The Preferred Alternative--EWP Program 
Improvement and Expansion--beneficially affects aquatic, riparian, 
floodplain, and wetland ecosystems and human communities. While NRCS 
recognizes that Alternative 3, ``Prioritized Watershed Planning and 
Management,'' would likely be the environmentally preferable 
alternative, the agency supports Alternative 4 (EWP Program Improvement 
and Expansion) as its Preferred Alternative because:
    (1) Current law, as interpreted by USDA legal counsel, limits 
activities conducted under EWP primarily to disaster recovery work. 
Alternative 3 would add a substantial increment of preventative 
measures to reduce future flood damages. Legislative authority would be 
required to implement such a major expansion of the purpose of EWP 
under Alternative 3.
    (2) To a large extent, NRCS has integrated the management of its 
water resources programs within the Water Resources Branch of the 
National Headquarters Financial Assistance Programs Division, working 
closely with the NHQ Easement Programs Branch. Together they oversee 
the recovery practices and floodplain easements portions of EWP and 
provide funding and technical assistance and training to the NRCS State 
Offices. NRCS is limited in fully implementing the scope of Alternative 
3 primarily by funding constraints. Several NRCS watershed programs 
currently exist under P.L. 566 and P.L. 534 that address watershed-
scale planning and management and include measures for watershed 
protection and flood prevention, as well as the cooperative river basin 
surveys and investigations. The structural and non-structural practices 
implemented and the easements purchased under those programs have 
greatly reduced the need for future EWP measures in project watersheds. 
Nevertheless, EWP must remain available to deal with the aftermath of 
major natural disasters regardless of improvements under the other 
watershed programs.

VI. Implementation and Mitigation

    NRCS would continue to consult with the U.S. Fish and Wildlife 
Service (USFWS) or National Marine Fisheries Service (NMFS) in any 
situation where there is a potential to affect threatened or endangered 
species, critical habitat, and anadromous fish species and would work 
with USFWS and NMFS to develop adequate protective measures.
Aquatic Community, Wetland, Floodplain, and Riparian Resources
    Many potentially adverse impacts to these resources could be 
minimized by reducing the use of structural EWP practices that harden 
stream banks, eliminate riparian vegetation, and generally increase 
runoff and the consequent delivery of pollution sources to the stream. 
Use of restoration designs based on the principles of natural stream 
dynamics, and bioengineering would help mitigate these impacts. Other 
governmental programs could be encouraged to restore and rehabilitate 
armoring sites to a more natural riparian state where practicable. 
Where such natural practices are inappropriate, ensuring that the 
structural EWP practices are properly maintained would help mitigate 
the

[[Page 17060]]

need for additional structural practices due to failure of the original 
structures.
    Coordination with other Federal, State, and local agencies and the 
landowning public to encourage understanding of the concepts underlying 
the EPA 404(b)(1) guidelines for wetlands protection in land use 
activities, and ensuring that the guidelines are followed as a planning 
practice, as well as for wetlands mitigation, would help mitigate the 
loss of both wetlands and floodplain resources.
Watershed Upland Resources
    Reducing the dependence of EWP Program activities on structural 
practices would help mitigate damage to terrestrial resources by 
reducing the use of heavy equipment in surrounding upland areas. Use of 
more advanced techniques such as helicopter seeding for critical area 
treatments would reduce heavy equipment impacts on soils.
Socioeconomic and Other Human Resources
    Impacts on local economies resulting from funding EWP activities 
can potentially be mitigated by keeping bid packages for EWP work 
small, so that local contractors with the skills required would have a 
fair chance to obtain the work, thus returning some portion of the 
funds to the locality. Where floodplain easements are used in place of 
structural practices, floodplain usage may be reduced, requiring 
relocation of people and activities currently in those areas. Attention 
paid to preserving and protecting neighborhood structure and 
residential networking can mitigate the effects of this relocation. In 
rural communities, certain institutional structures, such as churches, 
schools, and other ``special'' places, may require special 
consideration to mitigate adverse effects from such changes.
    Where land under floodplain easement purchase is removed from 
economically productive activities, which were contributing to the 
local economy and tax base, compensation can be encouraged through 
seeking alternative replacement activities through such vehicles as 
HUD's urban development block grants and similar public-private 
measures. There would be some measure of local economic self-correction 
inherent in the process anyway, because the community would no longer 
need to provide the same level of services (power, sewer, road repair) 
to the easement locality and would no longer have to pay their share of 
the cost of disaster damage repairs in the future. Nevertheless, NRCS 
would encourage income-producing activities on floodplain easement 
lands that would be compatible with their basic purpose. On improved 
lands floodplain easements where the sponsor gains title to the land, 
entry fee to open space uses such as trails, walkways, fishing and boat 
access might be feasible. On agricultural floodplain easements, the 
landowner keeping title might charge a fee for hunting.
Cultural Resources
    If NRCS determines that an adverse effect is going to occur during 
program implementation, in accordance with 36 CFR 800.6, the agency 
will continue consultation to resolve (avoid, mitigate, or minimize) 
this effect. NRCS shall notify the Advisory Council on Historic 
Preservation (ACHP) of this determination and continued consultation 
and invite the Council to participate. The NRCS shall also involve all 
previous consulting parties (including but not limited to the State 
Historic Preservation Officer (SHPO), Tribal Historic Preservation 
Officer (THPO), and tribes) and provide them all, including the ACHP, 
with the full documentation and a recommendation regarding steps to be 
taken to resolve the adverse effect. NRCS will provide a draft of 
programmatic agreement that outlines the steps to resolve the adverse 
effects and advise the participants of the nature of the resources that 
are to be affected.
    Currently, some NRCS field offices define the Area of Potential 
Effect (APE) for EWP projects as the immediate site location, which may 
inadvertently omit addressing potential adverse impacts to listed or 
eligible historic properties nearby or downstream. The Cultural 
Resource Coordinators in the example site states indicate that EWP 
activities need to be very near to historic resources for NRCS to 
consider the possibility of impacts. Therefore, at present, unless 
potential historic structures located in the floodplain, such as homes 
or mills, are directly affected by sudden impairments and NRCS is 
planning EWP work to protect them, such resources would not be 
considered to be in the APE. In addition, NRCS focus on historic 
structures may result in omitting cultural resources such as 
archaeological sites, viewsheds, historic landscapes, and cultural 
places. With narrowly defined APEs, cultural resources may also be 
affected by ancillary activities such as soil borrow and heavy 
equipment staging. NRCS' mandatory cultural resources training for 
field personnel, given to all new field personnel with cultural 
resources responsibilities, is customized in each state to cover the 
range and extent of historic, cultural and traditional cultural 
resources from region to region within the state. Treatments under 
Section 106 of the National Historic Preservation Act (NHPA) and 
implementing regulations must, necessarily, be tailored to address the 
specific values of these resources. This training, coupled with the EWP 
training and consultation with SHPOs, THPOs, and other consulting 
agencies, including federally recognized tribes, should ensure that 
mitigation is appropriate for cultural resources on a case-by-case 
basis.
    Consultation with the SHPO, THPO, and other consulting parties, 
including federally recognized tribes is a part of the EWP planning and 
coordination function before a disaster occurs and contact with the 
SHPO/THPO is made before actions at EWP are taken. Because cultural 
resources are locality specific, mitigation to protect particular 
cultural resources would be developed if needed at the site level as 
part of the defensibility review of the EWP practice.
    To minimize impacts to cultural resources, the definition of the 
APE will be changed to include the entire area of potential effect, 
including ancillary activities resulting form EWP restoration, such as 
soil borrow or heavy equipment use. Additionally, recovering 
information about cultural resources present in the APE will help the 
agency to design the undertaking to avoid adverse effects to historic 
properties or help NRCS determine what additional mitigation measures 
may be necessary to address the potential adverse effect of the 
projects or actions on NRHP-listed or eligible historic properties.

    Signed in Washington, DC, on March 21, 2005.
Bruce I. Knight,
Chief, Natural Resources Conservation Service.
[FR Doc. 05-6097 Filed 4-1-05; 8:45 am]
BILLING CODE 3410-16-P