[Federal Register Volume 74, Number 132 (Monday, July 13, 2009)]
[Rules and Regulations]
[Pages 33319-33323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16400]



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  Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / Rules 
and Regulations  

[[Page 33319]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 650

RIN 0578-AA55


Compliance With NEPA

AGENCY: Natural Resources Conservation Service (NRCS), United States 
Department of Agriculture

ACTION: Interim final rule with request for comment.

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

SUMMARY: The Natural Resources Conservation Service (NRCS or the 
Agency) publishes this interim final rule to request comments on 
additional categorical exclusions, which are actions that the agency 
has determined do not individually or cumulatively have a significant 
effect on the human environment and, thus, should not require preparing 
an environmental assessment (EA) or environmental impact statement 
(EIS) under the National Environmental Policy Act (NEPA). NRCS' 
categorical exclusion actions promote restoration and conservation 
activities related to natural or human induced damage, or alteration of 
floodplain easements and watershed areas. For projects being funded 
under the American Recovery and Reinvestment Act of 2009 (ARRA), the 
interim final rule will assist NRCS in meeting mandates set forth in 
ARRA and NEPA for undertaking actions in the most expeditious manner 
and in compliance with NEPA.

DATES: Effective Date: The rule is effective July 13, 2009.
    Comment date: Submit comments on or before September 11, 2009.

ADDRESSES: You may send comments (identified by Docket Number NRCS-
0578-AA55) using any of the following methods:
     Government-wide rulemaking Web site: http://www.regulations.gov and follow the instructions for sending comments 
electronically.
     E-mail: [email protected].
     Mail: Matt Harrington, National Environmental Coordinator, 
Ecological Sciences Division, Department of Agriculture, Natural 
Resources Conservation Service, 1400 Independence Avenue, SW., 
Washington, DC 20250.
     Fax: (202) 720-2646.
     Hand Delivery: USDA South Building, 1400 Independence 
Avenue, SW., Room 6158, Washington, DC 20250, between 9 a.m. and 4 
p.m., Monday through Friday, except Federal Holidays. Please ask the 
guard at the entrance to the South Building to call (202) 720-2587 in 
order to be escorted into the building.
    This interim final rule may be accessed via Internet. Users can 
access the interim final rule at: http://www.nrcs.usda.gov/programs/Env_Assess/index.html. Persons with disabilities who require 
alternative means for communication (Braille, large print, audio tape, 
etc.) should contact the USDA TARGET Center at: (202) 720-2600 (voice 
and TDD).

FOR FURTHER INFORMATION CONTACT: Matt Harrington, National 
Environmental Coordinator, Ecological Sciences Division, Department of 
Agriculture, Natural Resources Conservation Service, 1400 Independence 
Avenue, SW., Washington DC 20250; Phone: (202) 720-4925; Fax: (202) 
720-2646; or e-mail [email protected], and identify in the subject 
line, ``Information Requested.''

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget has determined that this 
interim final rule is a non-significant regulatory action under 
Executive Order 12866.

Regulatory Flexibility Act

    Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, NRCS 
has determined that this interim final rule will not have a significant 
economic impact on a substantial number of small entities as defined by 
that Act. Therefore, a regulatory flexibility analysis is not required 
for this interim final rule.

Environmental Analysis

    This interim final rule amends the procedures for implementing NEPA 
at 7 CFR part 650 and will not directly impact the environment. An 
agency's NEPA procedures are guidance to assist that agency in its 
fulfillment of responsibilities under NEPA, but are not that agency's 
final determination of what level of NEPA analysis is required for a 
particular action. The CEQ set forth the requirements for establishing 
agency NEPA procedures in its regulations at 40 CFR 1505.1 and 1507.3. 
The CEQ regulations do not require agencies to conduct NEPA analyses or 
prepare NEPA documentation when establishing their NEPA procedures. The 
determination that establishing agency NEPA procedures does not require 
NEPA analysis and documentation has been upheld in Heartwood, Inc. v. 
U.S. Forest Service, 230 F.3d 947, 954-55 (7th Cir. 2000).

Paperwork Reduction Act

    There are no requirements for information collection associated 
with this interim final rule that would require approval under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Unfunded Mandates Reform Act of 1995

    NRCS assessed the effects of this rulemaking action on State, 
local, or Tribal governments and the public. This action does not 
compel the expenditure of $100 million or more in any one year 
(adjusted for inflation) by any State, local, or Tribal governments or 
anyone in the private sector; therefore, a statement under Section 202 
of the Unfunded Mandates Reform Act of 1995 is not required.

Civil Justice Reform

    This interim final rule has been reviewed under Executive Order 
12988, Civil Justice Reform. After adoption of this interim final rule: 
(1) All State and local laws and regulations that conflict with this 
rule, or that would impede full implementation of this rule, will be 
preempted; (2) no retroactive effect would be given to this interim 
final rule; and (3) before an action may be brought in a Federal court 
of competent jurisdiction, the administrative appeal rights afforded 
persons at 7 CFR part 614 must be exhausted.

[[Page 33320]]

Federalism

    NRCS has considered this interim final rule under the requirements 
of Executive Order 13132. NRCS has determined that this interim final 
rule would not impose any compliance costs on the States and would not 
have substantial direct effects on the States, on the relationship 
between the National Government and the States, nor on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, NRCS has determined that this interim final rule conforms to 
the principles set forth in Executive Order 13132.

Energy Effects

    NRCS has determined that this interim final rule does not 
constitute a significant energy action as defined in Executive Order 
13211.

Background

    NRCS finds that this amendment should proceed as an interim final 
rule. This interim final rule will facilitate the delivery of 
assistance under the ARRA for which timely delivery is of the essence. 
The actions identified have been subject to prior extensive 
environmental review that demonstrates that they do not individually or 
cumulatively have a significant effect on the human environment. The 
agency will evaluate each agency undertaking to ensure whether the 
undertaking meets the criteria of the categorical exclusion, or whether 
extraordinary circumstances exist which require additional 
environmental review. Given these safeguards, NRCS has determined that 
to proceed through a prior notice of proposed rulemaking would be 
impracticable, unnecessary, and contrary to the public interest in the 
efficient implementation of conservation programs.

I. National Environmental Policy Act

    NEPA requires that Federal agencies consider the environmental 
effects or impacts of proposed Federal actions. NEPA requirements apply 
to any Federally funded or undertaken project, decision, or action, 
including grants. NEPA also established the Council on Environmental 
Quality (CEQ), which issued regulations at 50 CFR parts 1500-1508 
implementing the procedural provisions of NEPA.
    The CEQ regulations require Federal agencies to adopt their own 
implementing procedures to supplement the Council's regulations, and to 
establish and use categorical exclusions to define categories of 
actions that do not individually or cumulatively have a significant 
effect on the human environment and, therefore, do not require 
preparation of an EA or EIS (40 CFR 1507.3(b)(2)(ii) and 40 CFR 
1508.4).

II. NRCS' Environmental Review Process

    NRCS follows CEQ regulations for complying with NEPA. In addition, 
NRCS has supplemental regulations for NEPA compliance at 7 CFR part 
650. Consistent with the CEQ regulations at 40 CFR 1508.4, NRCS defines 
``categorical exclusion'' to mean ``a category of actions that does not 
individually or cumulatively have a significant effect on the human 
environment * * *'' and that has been found by NRCS to have no such 
effect. These supplemental regulations require that the Responsible 
Federal Official (RFO) must determine whether the proposed action fits 
within a categorical exclusion listed in the agency's implementing NEPA 
regulations (see 7 CFR 650.6(a)), and the proposed action does not 
involve any extraordinary circumstances (see 7 CFR 650.6(b)).
    Section 650.6 currently identifies five actions that are 
categorically excluded from detailed review under NEPA. This interim 
final rule amends Sec.  650.6 to identify an additional 21 actions as 
categorically excluded from detailed review through an EA or an EIS. 
Some of the new categorical exclusions are comparable in nature and 
scope to categorical exclusions of other Federal agencies. NRCS 
determined the new categorical exclusions routinely do not individually 
or cumulatively have a significant effect on the human environment. The 
statement supporting the categorical exclusions is available for review 
at the following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/index.html or upon request from the NRCS National Environmental 
Coordinator.
    NRCS has not updated its list of categorical exclusions since 1979. 
However, NRCS has over 70 years of experience (since the agency's 
establishment in 1935) with the actions being added to the agency's 
list of categorical exclusions. Based upon this experience and other 
data and analyses described below, NRCS has determined these actions as 
appropriate for incorporation in 7 CFR 650.6 as categorical exclusions.
    As established in this interim final rule, NRCS will satisfy NEPA 
when using these categorical exclusions by determining whether a 
proposed agency action falls within the description of the activities 
and by reviewing the proposed agency action to determine whether 
extraordinary circumstances exist. In the event extraordinary 
circumstances exist, NRCS will prepare an EA or an EIS before 
proceeding with the proposed action (see 7 CFR 650.6(a) and (b)).
    As noted in the statement supporting the categorical exclusions, 
NRCS provides support for each action being added to the categorical 
exclusion list by citing: (1) Other agencies that currently have 
categorical exclusions for actions which are comparable in nature to 
the action(s) NRCS is adding as new categorical exclusions; (2) the 
findings of the NRCS interdisciplinary teams' reviews, which are 
explained below; and (3) previous environmental reviews prepared by 
NRCS for these actions. By identifying these additional actions as 
categorical exclusions, NRCS is better able to meet the mandates of 
NRCS and CEQ NEPA regulations by providing for the efficient and timely 
environmental review of restoration and conservation activities. CEQ 
does not require agencies to prepare a NEPA analysis or document before 
establishing agency protocols or procedures that supplement the CEQ 
regulations for implementing NEPA.

III. NRCS Restoration and Conservation Planning

    Since 1935, NRCS has assisted private individuals, conservation 
districts, Indian Tribes, units of government, and other organizations 
to apply conservation plans to conserve the Nation's natural resources, 
primarily on private agricultural lands. This is accomplished in 
partnership with locally led decision-making processes by providing 
conservation assistance through a national network of technically 
skilled, professional conservationists. These conservationists deliver 
consistent, science-based, site-specific solutions to help private 
landowners voluntarily conserve, maintain, and improve the Nation's 
natural resource base.
    All NRCS actions are planned according to the requirements 
described in the NRCS National Planning Procedures Handbook. The 
Handbook prescribes that all planning be conducted through the use of a 
planning process, which includes the following nine steps:
    1. Problem Identification.
    2. Determine Objectives.
    3. Inventory Resources.
    4. Analyze Resource Data.
    5. Formulate Alternatives.
    6. Evaluate Alternatives.
    7. Make Decisions.
    8. Implement Plan.
    9. Evaluate Plan.
    NRCS conducts an Environmental Evaluation (EE), as required by 7 
CFR

[[Page 33321]]

650.5, throughout the planning process, and incorporates environmental 
considerations throughout planning, installation, and operation of 
NRCS-assisted actions. By conducting the EE, NRCS is able to identify 
the appropriate level of environmental documentation and analysis 
required for a particular action.
    Conservation practices are required to meet sustainable levels of 
quality criteria established in Section III of the Field Office 
Technical Guide (FOTG), for soil, water, air, plant, animal, and human 
resources. See http://www.nrcs.usda.gov/technical/efotg/. Additionally, 
all conservation practice implementation is governed by established 
conservation practice standards contained in Section IV of the FOTG.
    The design and implementation of conservation practices must also 
meet technical and environmental criteria in NRCS manuals, handbooks, 
and publications, which in turn are developed through a peer and public 
review process.
    NRCS obtains input about conservation practices from the State 
Technical Committees established pursuant to 16 U.S.C. 3861. NRCS also 
obtains public input about conservation practices by publishing in the 
Federal Register notice of any new conservation practice standard to be 
incorporated into the FOTG. In addition to State Technical Committee 
and Federal Register reviews, public participation is further 
accomplished through coordinating the implementation of NRCS activities 
with local Soil and Water Conservation Districts (SWCD). SWCD board 
members are comprised of local landowners, elected by the public, to 
represent community interests, advocate conservation, assist NRCS in 
setting local resource priorities, and approving conservation plans. 
All technical and financial assistance provided by NRCS is voluntary 
and is provided in partnership with the local SWCD at the request of an 
individual, unit of government, Indian Tribe, or sponsoring 
organization.

IV. Process Used To Identify the Categorical Exclusions

    For all the actions added to 7 CFR 650.6 as categorical exclusions 
and described below, NRCS convened a group of interdisciplinary experts 
to review agency actions and determine whether the actions should be 
considered as a new categorical exclusion based upon their experience, 
expertise, and environmental review. The interdisciplinary team also 
considered comparable categorical exclusions from other agencies 
throughout the Federal Government that conduct similar activities under 
similar circumstances. In addition to the interdisciplinary team, NRCS 
also collected environmental review information from a sample of its 
State and field offices that have undertaken these actions over the 
past 70 years. The State and field offices providing information were: 
California, Colorado, Georgia, Iowa, Kentucky, Louisiana, 
Massachusetts, Missouri, Nebraska, New Hampshire, Oklahoma, Oregon, 
Rhode Island, and Texas. Overall, the environmental documentation 
information reported by these States showed that implementation of 
these categorical exclusions has not resulted in individually or 
cumulatively significant environmental effects.
    These 14 States provided a random sample of conservation 
activities, and coincidentally these random samples encompassed agency 
actions within 11 of the 12 major river basins in the continental 
United States. Concurrent with the public comment period, NRCS is 
requesting information to be submitted from State and field offices 
within the remaining 12th river basin [Great Lakes River Basin] which 
includes: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, 
Pennsylvania, and Wisconsin, and will incorporate any additional 
information gained from this input and public comment in the 
development of the final rule. The information provided in the 
statement supporting the categorical exclusions includes Damage Survey 
Reports containing an EE, EA, and EIS prepared over a 9-year period 
(2000-2009) for the actions to be categorically excluded.

V. Categorical Exclusions for Restoration and Conservation Actions

    All the actions identified as a categorical exclusion below require 
documentation in accordance with 7 CFR 650.6 that address whether 
extraordinary circumstances are determined to exist. Furthermore, the 
following categorical exclusions only apply to proposed actions that: 
(1) Include provisions to mitigate soil erosion, sedimentation, and 
downstream flooding; (2) require disturbed areas to be vegetated with 
adapted species; (3) are based on the principles of natural stream 
dynamics and processes presented in the Federal Interagency Stream 
Corridor Restoration Working Group document (http://www.nrcs.usda.gov/technical/stream_restoration/), ``Stream Corridor Restoration, 
Principles, Processes, and Practices;'' (4) incorporate the applicable 
NRCS conservation practice standards as found in the FOTG [http://www.nrcs.usda.gov/technical/efotg/]; (5) do not require substantial 
dredging, excavation, or placement of fill; and (6) do not involve a 
significant risk of exposure to toxic or hazardous substances.
    The identification of these actions as categorical exclusions under 
NEPA does not relinquish the responsibility of NRCS to comply with the 
mandatory consultation requirements under the National Historic 
Preservation Act and implementing regulations, the Endangered Species 
Act and implementing regulations, and any other legal requirements.
    The following actions are being added to 7 CFR 650.6 as categorical 
exclusions:
    1. Planting appropriate herbaceous and/or woody vegetation on 
disturbed sites to restore and/or maintain the site's pre-disturbance 
vegetative community or similar adaptive naturalized vegetative 
community that provides analogous ecological functions and services;
    2. Removing dikes and associated appurtenances (such as culverts, 
pipes, valves, gates, and fencing) to allow waters to access 
floodplains to the extent that had existed prior to the installation of 
such dikes and associated appurtenances;
    3. Plugging and filling excavated drainage ditches to allow 
hydrologic conditions to return to pre-drainage conditions to the 
extent practicable;
    4. Replacing and repairing existing culverts, grade stabilization, 
and water control structures and other small structures that were 
damaged by natural disasters where there is no new depth required and 
only minimal dredging, excavation, or placement of fill is required;
    5. Restoring the natural topographic features of agricultural 
fields that were altered by farming and ranching activities for the 
purpose of restoring ecological processes;
    6. Removing or relocating residential, commercial, and other public 
and private buildings and associated structures constructed in the 100-
year floodplain or within the breach inundation area of an existing dam 
or other flood control structure in order to restore natural hydrologic 
conditions of inundation or saturation, vegetation, or reduce hazards 
posed to public safety;
    7. Removing storm debris and sediment following a natural disaster 
where there is a continuing and eminent threat to public health or 
safety, property, and/or natural and cultural resources and removal is 
necessary to restore lands to pre-disaster conditions

[[Page 33322]]

to the extent practicable. Excavation shall not exceed the pre-disaster 
condition;
    8. Stabilizing stream banks and associated structures to reduce 
erosion through bioengineering techniques following a natural disaster 
to restore pre-disaster conditions to the extent practicable (e.g., 
utilization of living and nonliving plant materials in combination with 
natural and synthetic support materials, such as rocks, rip-rap, and 
geo-textiles, for slope stabilization, erosion reduction, and 
vegetative establishment) and establishment of appropriate plant 
communities (bank shaping and planting, brush mattresses, log, root 
wad, and boulder stabilization methods);
    9. Repairing or maintenance of existing small structures or 
improvements (including structures and improvements utilized to restore 
disturbed or altered wetland, riparian, in stream, or native habitat 
conditions). Examples of such activities include the repair or 
stabilization of existing stream crossings for livestock or human 
passage, levees, culverts, berms, dikes, and associated appurtenances;
    10. Constructing small structures or improvements for the 
restoration of wetland, riparian, in stream, or native habitats. 
Examples of activities include: (1) Installation of fences, and (2) 
construction of small berms, dikes, and associated water control 
structures;
    11. Restoring an ecosystem, fish and wildlife habitat, biotic 
community, or population of living resources to a determinable pre-
impact condition;
    12. Repairing or maintenance of existing constructed fish 
passageways, such as fish ladders or spawning areas, impacted by 
natural disasters or human alteration;
    13. Repairing, maintaining, or installing fish screens to existing 
structures;
    14. Repairing or maintaining principal spillways and appurtenances 
associated with existing serviceable dams, originally constructed to 
NRCS standards, in order to meet current safety standards. Work will be 
confined to the existing footprint of the dam, and no major change in 
reservoir or downstream operations will result;
    15. Repairing or improving (deepening/widening/armoring) existing 
auxiliary/emergency spillways associated with dams, originally 
constructed to NRCS standards, in order to meet current safety 
standards. Work will be confined to the dam or abutment areas, and no 
major change in reservoir or downstream operation will result;
    16. Repairing embankment slope failures on structures originally 
built to NRCS standards where the work is confined to the embankment or 
abutment areas;
    17. Increasing the freeboard (which is the height from the 
auxiliary (emergency) spillway crest to the top of embankment) of an 
existing dam or dike, originally built to NRCS standards by raising the 
top elevation in order to meet current safety and performance 
standards. The purpose of the safety standard and associated work is to 
ensure that during extreme rainfall events, flows are confined to the 
auxiliary/emergency spillway so that the existing structure is not 
overtopped which may result in a catastrophic failure. Elevating the 
top of the dam will not result in an increase to lake or stream levels. 
Work will be confined to the existing dam and abutment areas, and no 
major change in reservoir operations will result. Examples of work may 
include the addition of fill material such as earth or gravel, or 
placement of parapet walls;
    18. Modifying existing residential, commercial, and other public 
and private buildings to prevent flood damages, such as elevating 
structures or sealing basements to comply with current State safety 
standards and Federal performance standards;
    19. Undertaking minor agricultural practices to maintain and/or 
restore ecological conditions in floodplains after a natural disaster 
or on lands impacted by human alteration. Examples of these practices 
include: mowing, haying, grazing, fencing, off-stream watering 
facilities, and invasive species control which are undertaken when fish 
and wildlife are not breeding, nesting, rearing young, or during other 
sensitive timeframes;
    20. Implementing soil erosion control measures on existing 
agricultural lands, such as grade stabilization structures (pipe 
drops), sediment basins, terraces, grassed waterways, filter strips, 
riparian forest buffer, and critical area planting; and
    21. Implementing water conservation activities on existing 
agricultural lands, such as minor irrigation land leveling, irrigation 
water conveyance (pipelines), irrigation water control structures, and 
various management practices.
    In addition to identifying these actions as categorical exclusions, 
NRCS is making editorial adjustments to Sec.  650.6 to clarify the 
process that applies to the programs originally identified as 
categorical exclusions under Sec.  650.6(a), and the new categorical 
exclusions identified in a new paragraph (c). In particular, paragraph 
(b) of Sec.  650.6 is revised to indicate that the procedures 
identified therein apply specifically to the programs identified in 
paragraph (a).
    The public is invited to submit comments on both the ``The 
Statement Supporting the Proposed Categorical Exclusions'' and the 
categorical exclusions listed above. See the ADDRESSES for instructions 
on submitting comments. ``The Statement Supporting the Proposed 
Categorical Exclusions'' is available at http://www.nrcs.usda.gov/programs/Env_Assess/index.html under ``NRCS' Proposed Expanded List of 
Categorical Exclusions.'' In addition, hard copies may be obtained by 
contacting the NRCS National Environmental Coordinator, as provided 
above.

List of Subjects in 7 CFR Part 650

    Environmental impact statements, Flood plains.

0
For the reasons stated in the preamble, NRCS amends part 650 of Title 7 
of the Code of Federal Regulations as set forth below:

PART 650--COMPLIANCE WITH NEPA

0
1. The authority citation for part 650 is amended to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; Executive Order 11514 (Rev.); 
7 CFR 2.62, unless otherwise noted.


0
2. Section 650.6 is amended by revising paragraph (b) and adding a new 
paragraph (c) to read as follows:


Sec.  650.6  Categorical Exclusions

* * * * *
    (b) When any new action is planned under the programs identified in 
paragraph (a) of this section, the EE performed by the RFO is to 
identify extraordinary circumstances that might lead to significant 
individual or cumulative impacts. Actions that have potential for 
significant impacts on the human environment are not categorically 
excluded.
    (c) The NRCS restoration and conservation actions and activities 
identified in this paragraph (c) are eligible for categorical exclusion 
and require the RFO to document a determination that a categorical 
exclusion applies. Agency personnel will use the EE review process to 
evaluate proposed activities for significant impacts and extraordinary 
circumstances using the significance criteria provided in 40 CFR 
1508.27. In the absence of any extraordinary circumstances as 
determined through NRCS' EE review process, the activities will be able 
to proceed without preparation of an EA or EIS. Where

[[Page 33323]]

either significant impacts or extraordinary circumstances are 
determined to exist, the categorical exclusion will not apply and the 
appropriate documentation for compliance with NEPA will be prepared. 
The following actions are eligible for categorical exclusion:
    (1) Planting appropriate herbaceous and/or woody vegetation on 
disturbed sites to restore and/or maintain the site's pre-disturbance 
vegetative community or similar adaptive naturalized vegetative 
community that provides analogous ecological functions and services;
    (2) Removing dikes and associated appurtenances (such as culverts, 
pipes, valves, gates, and fencing) to allow waters to access 
floodplains to the extent that had existed prior to the installation of 
such dikes and associated appurtenances;
    (3) Plugging and filling excavated drainage ditches to allow 
hydrologic conditions to return to pre-drainage conditions to the 
extent practicable;
    (4) Replacing and repairing existing culverts, grade stabilization, 
and water control structures and other small structures that were 
damaged by natural disasters where there is no new depth required and 
only minimal dredging, excavation, or placement of fill is required;
    (5) Restoring the natural topographic features of agricultural 
fields that were altered by farming and ranching activities for the 
purpose of restoring ecological processes;
    (6) Removing or relocating residential, commercial, and other 
public and private buildings and associated structures constructed in 
the 100-year floodplain or within the breach inundation area of an 
existing dam or other flood control structure in order to restore 
natural hydrologic conditions of inundation or saturation, vegetation, 
or reduce hazards posed to public safety;
    (7) Removing storm debris and sediment following a natural disaster 
where there is a continuing and eminent threat to public health or 
safety, property, and/or natural and cultural resources and removal is 
necessary to restore lands to pre-disaster conditions to the extent 
practicable. Excavation shall not exceed the pre-disaster condition;
    (8) Stabilizing stream banks and associated structures to reduce 
erosion through bioengineering techniques following a natural disaster 
to restore pre-disaster conditions to the extent practicable, e.g., 
utilization of living and nonliving plant materials in combination with 
natural and synthetic support materials, such as rocks, rip-rap, geo-
textiles, for slope stabilization, erosion reduction, and vegetative 
establishment) and establishment of appropriate plant communities (bank 
shaping and planting, brush mattresses, log, root wad, and boulder 
stabilization methods);
    (9) Repairing or maintenance of existing small structures or 
improvements (including structures and improvements utilized to restore 
disturbed or altered wetland, riparian, in stream, or native habitat 
conditions). Examples of such activities include the repair or 
stabilization of existing stream crossings for livestock or human 
passage, levees, culverts, berms, dikes, and associated appurtenances;
    (10) Constructing small structures or improvements for the 
restoration of wetland, riparian, in stream, or native habitats. 
Examples of activities include:
    (i) Installation of fences, and
    (ii) Construction of small berms, dikes, and associated water 
control structures;
    (11) Restoring an ecosystem, fish and wildlife habitat, biotic 
community, or population of living resources to a determinable pre-
impact condition;
    (12) Repairing or maintenance of existing constructed fish 
passageways, such as fish ladders or spawning areas impacted by natural 
disasters or human alteration;
    (13) Repairing, maintaining, or installing fish screens to existing 
structures;
    (14) Repairing or maintaining principal spillways and appurtenances 
associated with existing serviceable dams, originally constructed to 
NRCS standards, in order to meet current safety standards. Work will be 
confined to the existing footprint of the dam, and no major change in 
reservoir or downstream operations will result;
    (15) Repairing or improving (deepening/widening/armoring) existing 
auxiliary/emergency spillways associated with dams, originally 
constructed to NRCS standards, in order to meet current safety 
standards. Work will be confined to the dam or abutment areas, and no 
major change in reservoir or downstream operation will result;
    (16) Repairing embankment slope failures on structures originally 
built to NRCS standards where the work is confined to the embankment or 
abutment areas;
    (17) Increasing the freeboard (which is the height from the 
auxiliary (emergency) spillway crest to the top of embankment) of an 
existing dam or dike, originally built to NRCS standards by raising the 
top elevation in order to meet current safety and performance 
standards. The purpose of the safety standard and associated work is to 
ensure that during extreme rainfall events, flows are confined to the 
auxiliary/emergency spillway so that the existing structure is not 
overtopped which may result in a catastrophic failure. Elevating the 
top of the dam will not result in an increase to lake or stream levels. 
Work will be confined to the existing dam and abutment areas, and no 
major change in reservoir operations will result. Examples of work may 
include the addition of fill material, such as earth or gravel, or 
placement of parapet walls;
    (18) Modifying existing residential, commercial, and other public 
and private buildings to prevent flood damages, such as elevating 
structures or sealing basements to comply with current State safety 
standards and Federal performance standards;
    (19) Undertaking minor agricultural practices to maintain and/or 
restore ecological conditions in floodplains after a natural disaster 
or on lands impacted by human alteration. Examples of these practices 
include: Mowing, haying, grazing, fencing, off-stream watering 
facilities, and invasive species control, which are undertaken when 
fish and wildlife are not breeding, nesting, rearing young, or during 
other sensitive timeframes;
    (20) Implementing soil control measures on existing agricultural 
lands, such as grade stabilization structures (pipe drops), sediment 
basins, terraces, grassed waterways, filter strips, riparian forest 
buffer, and critical area planting; and
    (21) Implementing water conservation activities on existing 
agricultural lands, such as minor irrigation land leveling, irrigation 
water conveyance (pipelines), irrigation water control structures, and 
various management practices.
* * * * *

    Signed this 7th day of July, 2009, in Washington, DC.
Dave White,
Chief, Natural Resources Conservation Service.
[FR Doc. E9-16400 Filed 7-10-09; 8:45 am]
BILLING CODE 3410-16-P