[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Proposed Rules]
[Pages 41389-41392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16755]


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

  Federal Register / Vol. 75, No. 136 / Friday, July 16, 2010 / 
Proposed Rules  

[[Page 41389]]



DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 701


Emergency Conservation Program

AGENCY: Farm Service Agency, USDA.

ACTION: Record of Decision.

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

SUMMARY: This document presents the Record of Decision (ROD) regarding 
the changes made to the Emergency Conservation Program (ECP). ECP 
provides emergency funding to owners, operators, and tenants of farms 
and ranches who suffered damage to their certain lands as a result of a 
natural disaster. Under the Proposed Action, Farm Service Agency (FSA) 
could expand ECP eligibility to other types of farmland, namely land 
that is timberland, or is a roadbed on an area of land that is eligible 
for ECP, and also farmsteads, feedlots, and grain bins. To implement 
the Proposed Action, FSA would develop a proposed rule to expand upon 
current regulations to reflect changes to the policy that currently 
only extends the ECP to traditional cropland and forage land. Any 
proposal to change any rule would be subject to public comment and to 
consideration and rejection as the circumstances, further reflection, 
and public comments might warrant. In the interim, however, FSA is 
inviting comments on the ROD. The ECP Supplemental Environmental Impact 
Statement (SEIS) tiers from the Emergency Conservation Programmatic 
Environmental Impact Statement completed in 2003 and published in the 
Federal Register on March 4, 2004. The SEIS analyzes the impacts of the 
Proposed Action on the nation's environmental resources and economy. 
The No Action alternative (continuation of current ECP with no 
modifications) is also analyzed and to provide an environmental 
baseline.

DATES: We will consider comments that we receive by August 16, 2010. We 
will consider comments submitted after this date to extent possible.

ADDRESSES: We invite you to submit comments on this ROD and requests 
for copies of the Final SEIS (FSEIS) by any of the following methods:
     Mail: Matthew T. Ponish, National Environmental Compliance 
Manager, USDA FSA CEPD, Stop 0513, 1400 Independence Ave., SW., 
Washington, DC 20250-0513.
     Hand Delivery or Courier: Deliver comments to the above 
address.
    All written comments will be available for public inspection at the 
above address during business hours from 8 a.m. to 5 p.m., Monday 
through Friday, except holidays. The ECP FSEIS including appendices and 
this ROD are available on the FSA Environmental Compliance Web site at: 
http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep-cd.

FOR FURTHER INFORMATION CONTACT: Matthew T. Ponish, National 
Environmental Compliance Manager, phone: (202) 720-6853, or e-mail: 
[email protected], or mail: Matthew T. Ponish, USDA FSA CEPD, 
Stop 0513, 1400 Independence Ave., SW., Washington, DC 20250-0513. More 
detailed information on ECP is available from FSA's Web site: http://www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=ecp. The ECP 
FSEIS including appendices and this ROD are available on the FSA 
Environmental Compliance Web site at: http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep-cd. Copies of the FSEIS may be 
obtained from Matt Ponish at the above address.

SUPPLEMENTARY INFORMATION: 

The Decision

    After reviewing comments from interested individuals and other 
State and Federal agencies, FSA has decided to develop regulations in a 
manner consistent with the Proposed Action, which could include 
expanding land eligibility to include timberland, farmsteads, feedlots, 
farm roads, farm buildings, or grain bins. This decision was made after 
comparing the overall environmental impacts and other relevant 
information with regard to the reasonable alternatives considered in 
the ECP SEIS. The following briefly describes the purpose and need for 
the proposed changes and the alternatives considered.

Purpose and Need for the Proposed Action

    The purpose of the Proposed Action is to expand the eligibility 
requirements of the current ECP. The need for the proposed change would 
be to better assist producers in recovering from a natural disaster.

Overview of Current ECP

    ECP currently identifies cropland, hayland, and pastureland as 
eligible land for benefits in the event of natural disasters. The goal 
of ECP is to provide financial assistance to agricultural producers to 
restore agricultural lands to a productive state following a natural 
disaster, and to carry out emergency water conservation and water 
enhancing measures during periods of severe drought. Producers can 
apply for one time cost-share and technical assistance for authorized 
activities under the following emergency conservation (EC) practices:
    (EC 1) Removing debris from farmland;
    (EC 2) Grading, shaping, releveling, or similar measures;
    (EC 3) Restoring permanent fences;
    (EC 4) Restoring conservation structures and other similar 
installations;
    (EC 5) Emergency wind erosion control measures;
    (EC 6) Drought emergency measures;
    (EC 7) Other emergency conservation measures; and
    (EC 8) Field windbreaks and farmstead shelterbelt emergency 
measures.
    ECP provides financial and technical assistance to producers for 
restoring agricultural land to normal production following a natural 
disaster. Regulatory procedures for implementing ECP are addressed in 7 
CFR part 701 and further outlined in internal guidance for FSA State 
and county offices under FSA Handbook 1-ECP. The following natural 
disasters are covered by ECP:
     Hurricane or typhoon;
     Tidal waves;
     Tornado;
     Earthquakes;
     High winds, including micro-bursts;
     Volcanic eruptions;
     Storms, including ice storms;
     Landslides;
     Floods;
     Mudslides;
     High water;

[[Page 41390]]

     Severe snowstorms;
     Wind-driven water;
     Drought;
     Wildfire; and
     Other natural phenomenon.
    Following a disaster event, FSA county committees (COC) or 
authorized responsible agency officials generally visit the site and 
make an assessment of the damage to verify that it meets the minimum 
ECP requirements. The COC then obtains concurrence from the FSA State 
committee before approving the disaster to qualify the area for ECP and 
requesting financial assistance from the national office. During 
periods of severe drought, the determination to implement ECP is made 
by the FSA National headquarters. For the land to be eligible, the 
damage must:
     Create new conservation problems which, if not treated, 
would impair or endanger the land;
     Materially affect the productivity of the land;
     Represent unusual damage that, except for wind erosion, 
does not occur frequently; or
     Be so costly to repair that Federal assistance is required 
to return the land to productive agricultural use.
    To be eligible for ECP, an owner, operator, or tenant must 
contribute part of the cost for implementing the approved practice and 
must also have an interest in the farm. American Indian Tribes or 
individuals that own eligible land are eligible for ECP benefits. 
Consistent with a number of other programs and so that the funds will 
go to private producers who are in need, Federal agencies, States, 
political subdivisions of States, State agencies, and districts with 
taxing authority are not eligible for ECP benefits.
    The land offered for assistance must be located in the county in 
which ECP has been approved, be normally used for farming or ranching 
operations, and be expected to have annual agricultural production. 
Eligible land, under current rules, is broadly defined as cropland, 
hayland, and pastureland. Additionally, lands eligible under ECP 
includes those lands that are:
     Protected by levees or dikes built to U.S. Army Corps of 
Engineers, Natural Resource Conservation Service, or similar standards, 
that were effectively functioning before the disaster;
     Protected by permanent or temporary vegetative cover;
     Used for commercially producing orchards, citrus groves, 
and vineyards;
     Used for producing agricultural commodities;
     Where conservation structures are installed, including 
waterways, terraces, sediment basins, diversions, windbreaks, etc. not 
funded by other conservation programs;
     In Christmas tree plantations;
     Devoted to container-grown nursery stock if the nursery 
stock is grown commercially for wholesale purposes and is grown on land 
in containers for at least one year (``retail producers'' usually do 
not produce sufficient quantities of product for sale to be considered 
producers in the same sense as those that produce other agricultural 
commodities in bulk);
     In field windbreaks or farm shelterbelts where the 
practice is to remove debris and correct damages caused by the 
disaster; and
     Lands on which facilities are located in irrigation canals 
or facilities that are located on the inside of the canal's banks as 
long as the canal is not a channel subject to flooding.
    In general, ECP funds are held in reserve at the national level and 
allocated after a natural disaster has occurred and ECP has been 
authorized. Funds are allocated to FSA State offices based on an 
estimate of funds needed to begin implementing the program and funding 
availability. The FSA State offices then allocate funds to the 
appropriate FSA county offices. The funds are then distributed to 
owners, operators, and tenants applying for ECP benefits.
    Owners, operators, and tenants applying for ECP assistance can 
receive reimbursement for up to 75 percent of the cost of activities 
covered under the approved conservation practices. The total cost-share 
provided to an individual person or entity per natural disaster cannot 
exceed $200,000. In addition, duplicate payments by rule are prohibited 
as well as being unnecessary to correct the producer's problem and 
therefore if payments such as cost-share or other benefits have been 
provided through other FSA emergency or conservation programs for the 
same or similar expenses for the same land, then financial assistance 
cannot be provided through ECP.
    Limited resource producers may receive financial assistance for up 
to 90 percent of the cost of the covered activities. The definition of 
a ``limited resource producer'' is:

    Any producer with direct or indirect gross farm sales no more 
than $100,000 in each of the previous two years and has a total 
household income at or below the national poverty level for a family 
of four or less than 50 percent of the county median household 
income in each of the previous two years.

    These kinds of determinations are made for other farm programs and 
they use an index. The process is described at a website used by the 
Natural Resources and Conservation Service at http://www/
lfrrtool.sc.egov.usda.gov and information will be available at local 
offices of the FSA for any person who feels that this provision may 
apply to them.

Alternatives Considered

    FSA reviewed the following alternatives prior to making this 
decision. The first table describes several alternatives considered, 
but eliminated from further study and the rationale for their 
elimination. These alternatives were determined not to be reasonable as 
explained in the table. The second table shows alternatives determined 
to be reasonable that were evaluated in detail in the ECP SEIS.

           List of Alternatives Eliminated From Further Study
------------------------------------------------------------------------
         Alternative                   Rationale for elimination
------------------------------------------------------------------------
Expand eligibility to include  Agricultural programs have traditionally
 land supporting horses used    not treated those activities as
 for recreation, commercial,    ``agricultural'' production for purposes
 or other purposes (such as     of ``farm'' programs; this alternative
 race horses).                  was therefore considered for purposes of
                                this exercise to be beyond the scope of
                                the agency's authority. This issue can,
                                however, be revisited when actual
                                regulations are proposed for the
                                program.
Make ECP available only in     There are insufficient records to allow,
 natural disasters declared     without great cost, a substantial
 by the President or            analysis of this option and given the
 Secretary of Agriculture.      history of this program this option was
                                seen as being unduly limiting given that
                                unlike other disaster related statutes
                                there is no specific provision limiting
                                this program to those areas that have
                                been, as such, officially the subject of
                                a Presidential or Secretarial disaster
                                declaration.

[[Page 41391]]

 
Combine ECP with Emergency     EWP is administered by a different
 Watershed Protection Program   agency, the Natural Resources
 (EWP).                         Conservation Service, to undertake
                                community-level emergency measures to
                                control runoff and prevent soil erosion
                                to safeguard lives and properties from
                                floods, drought, or any watershed
                                damaged by natural disaster. ECP is
                                directed at farm level aid and therefore
                                the programs do not appear to be
                                sufficiently compatible to warrant
                                analysis and considering community-based
                                efforts is beyond the scope of this
                                SEIS.
------------------------------------------------------------------------


                List of Reasonable Alternatives Considered
------------------------------------------------------------------------
         Alternative                          Description
------------------------------------------------------------------------
No Action....................  Serving as the baseline for comparison of
                                the Proposed Action, the No Action
                                Alternative is continuation of ECP as
                                currently configured.
Proposed Action..............  Expanding eligible farmland to include
                                timberland, farmsteads, feedlots, farm
                                roads, farm buildings, and grain bins
                                meets the Proposed Action's purpose and
                                need, and there is sufficient
                                information to perform a meaningful
                                analysis.
------------------------------------------------------------------------

    Based upon the analyses and conclusions presented in the Draft and 
Final SEISs, FSA has identified the Proposed Action as the preferred 
alternative. Within the context of the Proposed Action's purpose and 
need, this alternative is both environmentally responsible and 
reasonable to implement.

Public Involvement

    Responses to the FSEIS public comments and FSA's analyses 
supporting this Record of Decision are presented in the following 
discussion.
    A public notice announcing a ``Notice of Intent to Prepare an 
Environmental Impact Statement: Request for Comments'' was published in 
the Federal Register on October 24, 2007 (72 FR 60312); the comment 
period ended December 24, 2007. Locations for holding public scoping 
meetings were chosen based upon a density model of where ECP was used 
the most and areas that received the most ECP funding since 2002. 
Following the Notice of Intent, a public announcement was placed in 
local newspapers in cities selected for public scoping meetings in 
September and October of 2007. Public scoping meetings were held in 
seven States at the locations and dates in the table below. The 
meetings consisted of a presentation on the proposed changes, a 
description of the existing program and preliminary alternatives, 
followed by a comment period that was recorded by court reporters. A 
project website was created where interested persons could access 
information on the proposed changes, the places and times of meetings, 
and for making comments online. Few comments were received; the 
comments were generally supportive of ECP. A substantive comment 
concerned making the costs eligible for removing livestock that died as 
a result of a disaster to an appropriate disposal location as reburial 
onsite may be a water quality hazard. Prior to preparing and publishing 
a Draft SEIS (DSEIS), FSA undertook preparatory studies to determine 
the basic parameters for conducting the analyses. These included 
determining which environmental resources, if any, could be eliminated 
from further analysis in the DSEIS, and which alternatives were 
determined to be reasonable. Public notice announcing the availability 
of the DSEIS was published in the Federal Register on May 27, 2008 (73 
FR 30376), and copies of the DSEIS were mailed to 17 Federal agencies. 
The public comment period ended on June 29, 2008.

                                         List of Public Scoping Meetings
----------------------------------------------------------------------------------------------------------------
            State, town                  Date of meeting         Time of meeting           Meeting location
----------------------------------------------------------------------------------------------------------------
Alabama, Mobile....................  September 13, 2007....  6:30 p.m..............  Jon Archer Agricultural
                                                                                      Center, 1070 Schillinger
                                                                                      Road.
California, Dixon..................  October 29, 2007......  6:30 p.m..............  USDA FSA Office, 1170 N.
                                                                                      Lincoln St., Suite 109.
Florida, Naples....................  September 14, 2007....  5:30 p.m..............  Double Tree Guest Suites,
                                                                                      12200 Tamiami Trail North.
Georgia, Atlanta...................  September 17, 2007....  6:30 p.m..............  Hyatt Place Atlanta
                                                                                      Airport, 1899 Sullivan
                                                                                      Road.
Louisiana, Franklinton.............  October 25, 2007......  6:30 p.m..............  LSU Southeast Research
                                                                                      Station, 41217 Bethel
                                                                                      Road.
Missouri, Columbia.................  October 22, 2007......  6:30 p.m..............  FSA State Office, Parkdale
                                                                                      Center, Suite 232 601
                                                                                      Business Loop, 70W.
Texas, Amarillo....................  October 24, 2007......  6:30 p.m..............  Texas A&M University
                                                                                      Research & Extension
                                                                                      Center, District Office,
                                                                                      6500 Amarillo Blvd. West.
----------------------------------------------------------------------------------------------------------------

    Comments were received from two Federal agencies and one State 
agency. FSA compiled and reviewed all of the comments submitted. 
Changes to the DSEIS, in response to agency and public comment, 
included providing consistency in language on the nature of 
consultation with the U.S. Fish and Wildlife Service (USFWS) under the 
Endangered Species Act, coordination of FSA personnel with those of the 
Federal Emergency Management Agency (FEMA) in response to disasters, 
the potential for certain practices to spread invasive plant species, 
and the potential that wildlife displaced may not have access to 
suitable habitat. Substantive comments will be further considered by 
FSA in the development of future policy; the issues include:
     Removal rather than burial of livestock that died as a 
result of a disaster,
     Addressing long-term needs with short-term disaster relief 
efforts, and
     Insect infestations as an addition to the list of eligible 
disasters.

[[Page 41392]]

Impacts Summary

    The FSEIS outlines and compares all of the alternatives potential 
impacts. Both beneficial and adverse effects were identified for 
activities authorized by ECP that would now be implemented on the new 
land categories as described in the Proposed Action. Removing debris, 
shaping and leveling land, re-establishing vegetation, and restoring 
conservation structures after a natural disaster, as allowed under the 
existing ECP would now also have long-term benefits for vegetation and 
wildlife on timberlands and farmsteads included in the Proposed Action. 
Re-establishing permanent vegetation and conservation structures would 
ultimately improve local water quality, reduce soil erosion, and 
enhance wildlife habitat by promoting biological diversity on these new 
land categories. Beneficial impacts to surface water quality, 
groundwater quality, forest health, forest-related resources, 
floodplains, and wetlands would be realized from implementation of the 
conservation practices established on farmsteads and timberlands. Re-
establishing vegetation, wind control measures, and releveling land 
would all reduce erosion potential and protect the area from soil loss. 
Restoration activities that include mechanical removal of debris, using 
heavy equipment to shape and level land, and ground preparations for 
installing vegetation, would not be substantially different than 
similar activities on agricultural lands.
    However, wildlife may be temporarily displaced during restoration, 
or displaced long term until habitat structure is re-established after 
a disaster. It is possible that due to the scope of the damage caused 
by a natural disaster that no suitable habitat is nearby, or nearby 
habitat may already have established wildlife at a capacity that cannot 
sustain additional animals in the long term. Of the new categories of 
farmland included in the Proposed Action, timberland has the most 
potential for having undisturbed land. Establishing access roads and 
restoration of timberland areas would temporarily remove vegetation in 
the immediate area and have the potential for spreading invasive plant 
species. This activity also has the potential to increase soil erosion 
that may increase sedimentation of nearby waters. The use of heavy 
machinery, especially in timberland areas, could compact soils, 
impairing water infiltration and vegetation growth.
    The Proposed Action to expand the program eligibility to 
timberland, farmsteads, and farm buildings would increase the potential 
for encountering a historic property. The use of heavy equipment could 
negatively affect historic properties through ground disturbance.
    Potential benefits and adverse impacts to these sites would be the 
same as those described in the current ECP. Most of the above possible 
adverse impacts may be controlled by employing best management 
practices that minimize this potential, such as washing equipment 
before entering or leaving the work area to minimize spreading invasive 
plant species, ensuring seed mixes do not include invasive or noxious 
species, controlling access of machinery to the work area, employment 
of silt fencing, use of vegetative strips to stabilize soil, and 
stockpiling topsoil for re-use in establishing new vegetation.
    Protected species that occur or have the potential to occur in 
areas approved for ECP would be protected through informal consultation 
with USFWS during the site-specific environmental evaluation. If 
impacts are identified, formal consultation with USFWS would be 
completed.
    If negative impacts to listed species are found, it is not likely 
the land would be approved for ECP. However, FSA would continue to 
encourage FSA State offices to develop memoranda of understandings with 
USFWS to expedite reviews at the site specific level.
    Under the Proposed Action, expanding the eligibility of ECP allows 
for the continuation of cost share payments to producers, and allows 
more producers to apply for assistance.

Rational for Decision

    None of the impacts discussed in the FSEIS are considered 
significant, and there are no adverse cumulative impacts expected on 
environmental resources. It is possible to manage most of these 
concerns and therefore minimize any potentially adverse effects by 
employing best management practices, and through site specific 
environmental evaluations for certain practices prior to enrolling 
particular lands into ECP. Further avoidance, minimization, and 
mitigation of impacts would be addressed in the Federal and State 
permitting processes prior to enrolling specific lands. These measures 
would be incorporated into a conservation plan prior to accepting land 
proposed for enrollment in ECP.

Implementation and Monitoring

    FSA will implement the Proposed Action as specified in the ECP 
FSEIS. The Proposed Action alternative allows different types of land 
to be eligible for ECP benefits, thereby potentially providing 
producers greater financial assistance. Restoring land to agricultural 
production after a natural disaster provides long-term benefits to 
water quality, improves soil stability, restores wildlife habitat, and 
helps to stabilize the local economy. Any deviation from the Proposed 
Action alternative and the area of potential effects evaluated in the 
FSEIS may require supplemental environmental analyses. FSA will ensure 
that impacts are minimized through a process of completing site-
specific environmental evaluations for certain ECP practices for each 
application.

    Signed in Washington, DC, on June 25, 2010.
Jonathan W. Coppess,
Administrator, Farm Service Agency.
[FR Doc. 2010-16755 Filed 7-15-10; 8:45 am]
BILLING CODE 3410-05-P