[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Rules and Regulations]
[Pages 65989-65991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17819]



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 Rules and Regulations
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  Federal Register / Vol. 89, No. 157 / Wednesday, August 14, 2024 / 
Rules and Regulations  

[[Page 65989]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 622

[Docket ID NRCS-2023-0020]
RIN 0578-AA72


Tribe or Tribal Organization Sponsor Option for Watershed 
Projects

AGENCY: Natural Resources Conservation Service, Department of 
Agriculture (USDA).

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service (NRCS) is amending 
its regulations for watershed projects to allow Indian Tribes or Tribal 
organizations to sponsor needed watershed projects. While federally 
recognized Tribes generally maintain regulatory jurisdiction over their 
land and can therefore exert eminent domain, Alaska Native Corporations 
and Tribal organizations do not have eminent domain authority, which 
has been one of the requirements to be a watershed project sponsor. 
This rule change will provide an option to better allow federally 
recognized Tribes, Alaska Native Corporations, or Tribal organizations 
to become watershed project sponsors.

DATES: 
    Effective date: August 14, 2024.
    Comment date: We will consider comments that we receive by 
September 13, 2024.

ADDRESSES: We invite you to submit comments in response to this rule. 
You may submit your comments through one of the following methods 
below:
     Federal eRulemaking Portal: Go to https://www.regulations.gov and search for Docket ID NRCS-2023-0020. Follow the 
instructions for submitting comments.
    All comments received will be made publicly available on https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ralph Smith; telephone: (202) 819-
6587; email: [email protected]. Individuals who require alternative 
means for communication should contact the U.S. Department of 
Agriculture (USDA) Target Center at (202) 720-2600 (voice).

SUPPLEMENTARY INFORMATION:

Background

    Watershed projects are authorized under the Watershed Protection 
and Flood Prevention Act of 1954 (Pub. L. 83-566, 16 U.S.C. 1001-1008), 
as amended, and the Flood Control Act of 1944 (Pub. L. 78-534, 33 
U.S.C. 701b-1). Public Law 83-566 and Public Law 78-534 authorize the 
Secretary of Agriculture to cooperate with State and local agencies, 
federally recognized Tribes, Alaska Native Corporations, and Tribal 
organizations in the planning and carrying out of works of improvement 
for flood prevention; for the conservation, development, utilization, 
and disposal of water; and for the conservation and proper use of land. 
NRCS administers these authorities for watershed projects for USDA. 
NRCS provides technical and financial assistance for watershed 
projects. Participation in watershed projects is voluntary.
    NRCS is amending its regulations for watershed projects to allow 
more Indian Tribes or Tribal organizations to sponsor needed watershed 
projects.
    While federally recognized Tribes generally maintain regulatory 
jurisdiction over their land and can therefore exert eminent domain, 
Alaska Native Corporations and Tribal organizations do not have eminent 
domain authority, which has been one of the requirements to be a 
watershed project sponsor. This requirement is not necessary when the 
Tribe or Tribal organization has already acquired the necessary real 
property interests needed in connection with the works of improvement.
    Through the Watershed and Flood Prevention Operations Program, NRCS 
provides technical and financial assistance to entities of State and 
local governments, federally recognized Tribes, Alaska Native 
Corporations, and Tribal Organizations in need of help with protecting 
and restoring small watersheds for multiple purposes including, but not 
limited to, flood prevention, watershed protection, and agricultural 
water management. These locally sponsored projects are highly 
coordinated between sponsoring and regulatory agencies and involve 
detailed studies before design and implementation can begin.

Exemption for Tribes or Tribal Organizations To Become Watershed 
Project Sponsors

    This rule change will provide an option to allow more Indian 
Tribes, defined under the legislative authorization to include Alaska 
Native Corporations (25 U.S.C. 5304), or Tribal organizations to become 
watershed project sponsors.
    This rule will modify the sponsorship requirements to increase 
Indian Tribes or Tribal organizations ability to be a sponsor for 
watershed projects to:
    (1) Prevent damage from erosion, floodwater, and sediment;
    (2) Further the conservation, development, utilization, and 
disposal of water; and
    (3) Further the conservation and proper utilization of land.
    Specifically, the rule will revise the regulation in 7 CFR 622.10 
to add an exemption for applicable Indian Tribes and Tribal 
organizations from the requirement to have eminent domain in order to 
be a watershed project sponsor.
    NRCS must revise its current regulations to modify the power of 
eminent domain requirement for watershed project sponsors. While 
federally recognized Tribes generally maintain regulatory jurisdiction 
over their land and can therefore exert eminent domain, Alaska Native 
Corporations and Tribal organizations do not have eminent domain 
authority. Still, many Indian Tribes and Tribal organizations have 
expressed the need to sponsor watershed projects. As noted above, the 
rule change will exempt Indian Tribes or Tribal organizations from that 
requirement.
    NRCS currently has requests from approximately 30 Indian Tribes or 
Tribal organizations for watershed projects in 9 states.
    The change in the regulation will help to ensure that Indian Tribes 
or Tribal organizations have the opportunity to sponsor watershed 
projects if there is a need.

[[Page 65990]]

    Being a sponsor of a watershed project is voluntary. There are no 
anticipated changes to the current overall watershed project costs or 
benefits to customers, NRCS or others. The change is relatively minor 
in the overall scope of the Public Law 83-566 and Public Law 78-534 
watershed projects.

Notice and Comment, Effective Date, and Exemptions

    The Administrative Procedure Act (5 U.S.C. 553) provides that the 
notice and comment and 30-day delay in the effective date provisions do 
not apply when the rule involves a matter relating to agency management 
or personnel or to public property, loans, grants, benefits, or 
contracts. This rule involves matters relating to financial assistance, 
which is considered a benefit.
    This rule is exempt from the regulatory analysis requirements of 
the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996.
    For major rules, the Congressional Review Act requires a delay in 
the effective date for 60 days from the date of publication to allow 
for Congressional review. This rule is not a major rule under the 
Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore, 
this rule is effective upon publication in the Federal Register.

Executive Orders 12866 and 13563

    Executive Order 12866, ``Regulatory Planning and Review'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review'' 
direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits. The assessment should 
include potential economic, environmental, public health and safety 
effects, distributive impacts, and equity. Executive Order 13563 
emphasized the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility.
    The Office of Management and Budget (OMB) designated this rule as 
not significant under Executive Order 12866, ``Regulatory Planning and 
Review,'' and therefore, OMB has not reviewed this rule.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner consistent with the provisions of the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321-4347), the regulations of the Council 
on Environmental Quality (40 CFR parts 1500 through 1508), and the NRCS 
regulations for compliance with NEPA (7 CFR parts 1b and 650).
    This rule makes a minor discretionary amendment to improve 
administration of the program and clarify existing program 
requirements. The discretionary change will not alter any environmental 
impacts resulting from implementing the change for watershed projects. 
Accordingly, the discretionary change is covered by the USDA 
Categorical Exclusion for policy development, planning, and 
implementation that relates to routine activities (7 CFR 1b.3(a)(1)).
    Through this review, NRCS determined that the discretionary change 
in this rule is within the categorical exclusion listed above. 
Categorical exclusions apply when no extraordinary circumstances exist 
(7 CFR 650.6(c)(2)). The amendment will not have an adverse impact on 
the human environment, individually or cumulatively. Therefore, NRCS 
will not prepare an environmental assessment or environmental impact 
statement for this rule.

Executive Order 12988

    This rule has been reviewed under E.O. 12988 on ``Civil Justice 
Reform.'' This rule will not preempt State or local laws, regulations, 
or policies unless they represent an irreconcilable conflict with this 
rule. This rule will not have a retroactive effect.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
E.O. 13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' E.O. 13175 requires Federal agencies to consult and 
coordinate with Tribes on a government-to-government basis on policies 
that have Tribal implications, including regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.
    NRCS developed the rule changes in response to requests from Tribes 
and Alaska Native Corporations seeking greater flexibility in the 
administration of USDA programs. Tribes have suggested this change as a 
means of removing a barrier to their participation in the Watershed and 
Flood Prevention Operations Program. If a Tribe requests consultation, 
the USDA Office of Tribal Relations (OTR) will ensure meaningful 
consultation is provided where changes, additions, and modifications 
are not expressly mandated by law.

The Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and Tribal governments or the 
private sector. Agencies generally must prepare a written statement, 
including cost benefits analysis, for proposed and final rules with 
Federal mandates that may result in expenditures of $100 million or 
more in any 1 year for State, local or Tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule. This 
rule contains no Federal mandates, as defined in title II of UMRA, for 
State, local, and Tribal governments, or the private sector. Therefore, 
this rule is not subject to the requirements of sections 202 and 205 of 
UMRA.

Paperwork Reduction Act

    This rule has been reviewed in compliance with the Paperwork 
Reduction Act (44 U.S.C. 3501-3520). This rule does not have any 
information collection requirements. NRCS neither collects information 
from the public nor sponsors the collection of information from the 
public for the watershed programs.

USDA Non-Discrimination Policy

    In accordance with Federal civil rights law and USDA civil rights 
regulations and policies, the USDA, its agencies, offices, and 
employees, and institutions participating in or administering USDA 
programs are prohibited from discriminating based on race, color, 
national origin, religion, sex, gender identity (including gender 
expression), sexual orientation, disability, age, marital status, 
family or parental status, income derived from a public assistance 
program, political beliefs, or reprisal or retaliation for prior civil 
rights activity, in any program or activity conducted or funded by USDA 
(not all bases apply to all programs). Remedies and complaint filing 
deadlines vary by program or incident.
    Individuals who require alternative means of communication for 
program information (for example, braille, large print, audiotape, 
American Sign Language, etc.) should contact the

[[Page 65991]]

responsible agency or the USDA TARGET Center at (202) 720-2600 (voice 
and text telephone (TTY)) or dial 711 for Telecommunications Relay 
Service (both voice and text telephone users can initiate this call 
from any telephone). Additionally, program information may be made 
available in languages other than English.
    To file a program discrimination complaint, complete the USDA 
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and 
at any USDA office or write a letter addressed to USDA and provide in 
the letter all the information requested in the form. To request a copy 
of the complaint form, call (866) 632-9992. Submit your completed form 
or letter to USDA by: (1) mail to: U.S. Department of Agriculture, 
Office of the Assistant Secretary for Civil Rights, 1400 Independence 
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) 
email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

List of Subjects in 7 CFR Part 622

    Flood control, Grant programs--natural resources, Loan programs--
natural resources, Soil conservation, Technical assistance, Watersheds.

    For the reasons discussed above, NRCS amends 7 CFR part 622 as 
follows:

PART 622--WATERSHED PROJECTS

0
1. The authority citation for part 622 continues to read as follows:

    Authority:  16 U.S.C. 1001-1012a, and 33 U.S.C. 701b-1.

Subpart B--Qualifications

0
2. In Sec.  622.10, revise paragraph (a) to read as follows.


Sec.  622.10  Sponsors.

    (a) Watershed projects are sponsored by one or more local 
organizations qualifying as sponsors. All watershed plans must be 
sponsored by entities legally organized under State law or by any 
Indian Tribe or Tribal organization having the authority to carry out, 
operate, and maintain works of improvement.
    (1) In General. Those plans that incorporate the use of 
nonstructural or structural measures must be sponsored by organizations 
that, individually or collectively, have:
    (i) The power of eminent domain, except as provided in paragraph 
(a)(2) of this section; and
    (ii) The authority to levy taxes or use other adequate funding 
sources, to finance their share of the watershed project cost and all 
operation and maintenance costs.
    (2) Exception. Paragraph (a)(1)(i) of this section does not apply 
to Indian Tribes or Tribal organizations.
* * * * *

Terry Cosby,
Chief, Natural Resources Conservation Service.
[FR Doc. 2024-17819 Filed 8-13-24; 8:45 am]
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