[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Proposed Rules]
[Pages 1954-1971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-506]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 625
RIN 0578-AA52
Healthy Forests Reserve Program
AGENCY: Natural Resources Conservation Service (NRCS), United States
Department of Agriculture (USDA).
ACTION: Proposed rule; request for comment.
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SUMMARY: On May 17, 2006, NRCS published an interim final rule for the
Healthy Forests Reserve Program (HFRP) and received 11 comment letters.
NRCS proposes to amend this rule to incorporate changes associated with
enactment of the Food, Conservation, and Energy Act of 2008 (the 2008
Act). The 2008 Act authorizes $9,750,000 for each of the fiscal years
2009 through 2012 to carry out the program. As a result of the 2008
Act, NRCS will allow land enrollment through permanent easements, or
easements for a maximum duration allowed under state law and continue
to allow enrollment through 10-year cost-share agreements; and allow
enrollment of land owned by tribes or members of tribes in 30-year
contracts or 10-year cost-share agreements, or any combination of both.
Forty percent of program expenditures in any fiscal year will be used
for restoration cost-share agreement enrollment and 60 percent of
program expenditures in any fiscal year will be for easement
enrollment.
In addition to changes associated with the 2008 Act, NRCS is
addressing comments received on the interim final rule and proposing
additional changes that improve program implementation based on the
experience gained from the HRFP implementation under the interim final
rule.
DATES: Comments must be received on or before February 13, 2009.
Comments will be made available to the public or posted publicly in
their entirety.
ADDRESSES: You may send comments using any of the following methods:
Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending comments
electronically.
NRCS Web site: Go to http://www.nrcs.usda.gov and follow the
instructions for sending comments electronically.
Mail: Easements Programs Division, Natural Resources Conservation
Service, Healthy Forests Reserve Program Comments, P.O. 2890, Room
6819-S, Washington, DC 20013.
Fax: 1-202-720-4265
Hand Delivery: Room 6819-S of the USDA South Office Building, 1400
Independence Avenue, SW., 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 Office Building to call 202-720-4527
in order to be escorted into the building.
This proposed rule may be accessed via Internet. Users can access
the NRCS homepage at http://www.nrcs.usda.gov/; select Farm Bill
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link from the menu; select the Proposed Rule link from beneath the
Rules Index title. Persons with disabilities who require alternative
means for communication (Braille, large print, audiotape, etc.) should
contact the USDA Target Center at (202) 720-2600 (voice and TDD).
FOR FURTHER INFORMATION CONTACT: Robin Heard, Director, Easement
Programs Division, NRCS, P.O. Box 2890, Washington, DC 20013-2890;
Phone: (202) 720-1854; Fax: (202) 720-4265; or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) determined that this
proposed rule is not a significant regulatory action, and a benefit
cost assessment has not been undertaken.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Federal Crop Insurance Reform Act of
1994 (Pub. L. 103-354), USDA classified this rule as non-major.
Therefore, a risk analysis was not conducted.
Regulatory Flexibility Act
Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, this
proposed 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 proposed
rule. This proposed rule would amend the HFRP, which involves the
voluntary acquisition of interests in property by NRCS.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed rule will not result in an annual effect on the economy of
$100 million or more, a major increase in costs or prices, or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based companies to
compete in domestic and export markets.
The 30-day comment period associated with this rulemaking will
provide the public the opportunity to comment on the changes to this
regulation. To ensure that NRCS has the regulatory framework in place
to implement the Food, Conservation, and Energy Act of 2008 (the 2008
Act), Public Law 110-246, for a fiscal year 2009 sign-up, NRCS has
determined that a 30 day comment period is necessary.
Environmental Analysis
The proposed rule for the Healthy Forests Reserve Program amends
the current regulation to include congressionally required statutory
changes to the program as a result of the Food, Conservation, and
Energy Act of 2008 (the 2008 Act), Public Law 110-246. The 2008 Act
changes the enrollment options for acreage owned by Indian tribes. In
addition to using 10-year cost-share agreements, Indian Tribes may now
enroll lands under a 30-year contracts option. The 2008 Act also allows
the Natural Resources Conservation Service (NRCS) to acquire permanent
easements, and establish limitations on the use of funds for cost-share
agreements and easements. The proposed rule also amends the regulation
in response to comments received by the Agency as a result of a public
comment period in 2006; these changes would include language to clarify
the Landowner Protections and Safe Harbor Agreements provisions. In
addition, the proposed rule makes a number of minor changes to clarify
the regulations for the public; such changes include clarifying the
enrollment process, providing clear guidance on methods of
determination of compensation, providing guidance on the Agency's
treatment of ecosystem service credits, and clarifying language on
Agency appeals.
After review of the previous Environmental Assessment (EA) prepared
in April 2006, it has been determined that the proposed changes are
minor and do not present significant new circumstances or new
information relative to environmental issues from those analyzed in the
2006 EA. Accordingly, NRCS has determined and reaffirms that the
previous EA and Finding of No Significant Impact (FONSI) have
sufficiently analyzed the program's potential environmental impacts and
are inclusive of the proposed rule. Copies of the EA and FONSI impact
may be obtained from the National Environmental Coordinator, Natural
Resources Conservation Service, Ecological Sciences Division, 1400
Independence Ave., SW., Washington, DC 20250; the Healthy Forests
Reserve Program Manager, Easements Programs Division, NRCS, P.O. Box
2890, Room 6813-S, Washington, DC 20013; or electronically on the
Internet through the NRCS homepage, at http://www.nrcs.usda.gov/programs/HFRP/ProgInfo/Index.html
Paperwork Reduction Act
The forms that will be utilized to implement this regulation have
previously been approved for use and OMB assigned the control number
0578-0013. NRCS estimates that HFRP results in the following changes to
the current package:
Type of Request: New Information Collection Package/form/etc.
Increase of 26,020 respondents
Increase of 23,926.3 responses
Increase Burden Hours by 27,768.12 hours
Increase in the average time to execute a form in the
collection: 0.229 hours or 14.03 minutes.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act and the Freedom to E-File Act, which require government
agencies in general, and NRCS in particular, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible.
Civil Rights Impact Analysis
USDA has determined through a Civil Rights Impact Analysis that the
issuance of this rule would disclose no disproportionately adverse
impacts for minorities, women, or persons with disabilities. Copies of
the Civil Rights Impact Analysis are available, and may be obtained
from the Director, Easement Programs Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or
electronically at http://www.nrcs.usda.gov/programs/HFRP.
Civil Justice Reform
This proposed rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. The rule is not retroactive and
preempts State and local laws to the extent that such laws are
inconsistent with this rule. Before an action may be brought in a
Federal court of competent jurisdiction, the administrative appeal
rights afforded persons at 7 CFR Parts 614 and 11 must be exhausted.
Executive Order 13132, Federalism
This proposed rule has been reviewed in accordance with the
requirements of Executive Order 13132, Federalism. NRCS has determined
that this proposed rule conforms with the Federalism principles set
forth in the Executive Order; would not impose any compliance costs on
the States; and would not have substantial direct effects on the
States, on the relationship between the Federal Government and
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the States, or on the distribution of power and responsibilities on the
various levels of government. Therefore, NRCS concludes that this
proposed rule does not have Federalism implications. Moreover, Sec.
625.5 of this proposed rule shows sensitivity to Federalism concerns by
providing an option for the responsible official (State
Conservationist) to obtain input from other agencies in proposal
development.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), NRCS assessed the effects of this proposed rule on
State, local, and Tribal governments, and the public. This proposed
rule does not compel the expenditure of $100 million or more by any
State, local, Tribal governments, or anyone in the private sector;
therefore, a statement under section 202 of the Unfunded Mandates
Reform Act is not required.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
NRCS has assessed the impact of this proposed rule on Indian tribes
and concluded that this proposed rule will not have a substantial
direct effect on one or more Indian tribes. Given the legal complexity
of acquiring easements on acreage owned by Indian Tribes, the 2008 Act
added an enrollment option, in addition to the 10-year cost-share
agreement option, of offering 30-year contracts. This change encourages
Indian Tribal participation in the program. The proposed rule at Sec.
625.12, will outline the procedures for enrolling land in the program
through the 30-year contract option. The rule will neither impose
compliance costs on Tribal governments, nor preempt Tribal law.
Discussion of Program
America's forests provide a wide range of environmental, economic,
and social benefits including timber, wilderness, minerals, recreation
opportunities, and fish and wildlife habitat. In addition, a healthy
forest ecosystem provides habitat for endangered and threatened
species, sustains biodiversity, protects watersheds, sequesters carbon,
and helps purify the air. However, some forest ecosystems have had
their ecological functions diminished by a number of factors, including
fragmentation, reduction in periodic fires, lack of proper management,
or invasive species. Habitat loss has been severe enough in some
circumstances to cause dramatic population declines such as in the case
of the ivory-billed woodpecker. As a result of the pressures on forest
ecosystems, many forests need active management and protection from
development in order to sustain biodiversity and restore habitat for
species that have suffered significant population declines. Active
management and protection of forest ecosystems can also increase carbon
sequestration and improve air quality.
Many forest ecosystems are located on private lands and provide
habitat for species that have been listed as endangered or threatened
under Section 4 of the Endangered Species Act (ESA), 16 U.S.C. 1533,
(listed species). Congress enacted the Healthy Forests Reserve Program
(HFRP), Title V of the Healthy Forest Restoration Act of 2003 (Pub. L.
108-148, 16 U.S.C. 6571-6578, to provide financial assistance to
private landowners to undertake projects that restore and enhance
forest ecosystems to help promote the recovery of threatened and
endangered species, improve biodiversity, and enhance carbon
sequestration.
The Secretary of Agriculture has delegated authority to implement
HFRP to the NRCS Chief (Chief). In addition, technical support
associated with forest management practices may also be provided by the
U.S. Forest Service. Section 501 of Title V of the Healthy Forests
Restoration Act of 2003 (Pub. L. 108-148) provides that the program
will be carried out in coordination with the Secretary of the Interior
and the Secretary of Commerce. NRCS works closely with the FWS and the
NMFS to further the species recovery objectives of the HFRP and to help
make available to HFRP participants safe harbor or similar assurances
and protection under ESA section 7(b)(4) or Section 10(a)(1), 16 U.S.C.
1536(b)(4), 1539(a)(1).
Proposed Changes to the Regulations Based on the Prior Comment Period
NRCS published an interim final rule that established the
regulations captioned ``Healthy Forests Reserve Program'' in the
Federal Register on May 17, 2006 (71 FR 28547). The Agency provided a
90-day comment period that ended on August 15, 2006. NRCS received
comments from 11 commenters who raised a number of issues. This section
discusses all of the relevant comments except for those that expressed
agreement with provisions of the interim final rule. Based on the
reasons set forth in the interim final rule and this document, NRCS
proposes the changes discussed below.
Purpose and Eligibility
The statutory provisions at 16 U.S.C. 6571 state that the purpose
of HFRP is to restore and enhance forest ecosystems in order to: (1)
Promote the recovery of threatened and endangered species, (2) improve
biodiversity, and (3) enhance carbon sequestration. Under 16 U.S.C.
6572(b), to be eligible for enrollment, land must be:
(1) Private land the enrollment of which will restore, enhance, or
otherwise measurably increase the likelihood of recovery of a species
listed as endangered or threatened under 16 U.S.C. 1533 and
(2) private land the enrollment of which will restore, enhance, or
otherwise measurably improve the well-being of species that--
(a) are not listed as endangered or threatened under 16 U.S.C.
1533; but
(b) are candidates for such listing, State-listed species, or
special concern species.
The authorizing statute further provides at 16 U.S.C. 6572(c) that
the Secretary of Agriculture shall give additional consideration to
enrollment of eligible land that will improve biological diversity and
increase carbon sequestration.
One Federal agency commenter questioned whether land had to meet
both criteria in order to be eligible. While the language of 16 U.S.C.
6572(b) uses ``and'' between both criteria, it has been determined that
both categories of land are individually eligible. The interpretation
that eligible land must meet both criteria is overly restrictive and is
likely to occur rarely. The NRCS interpretation is intended to avoid
negatively impacting its ability to achieve the program purposes. This
is clarified in 7 CFR 625.4.
One commenter asserted that eligibility for the HFRP should be
limited to non-industrial private forest lands. No changes were made to
the regulations based on this comment because the Agency does not see
any basis in the statute for limiting enrollment to non-industrial
private forest lands. As noted above, 16 U.S.C. 6572 provides that any
private land (including industrial private forest land) that meets the
specified conditions is eligible.
Commenters asserted that HFRP places too much emphasis on
protecting endangered species and too little emphasis on protecting the
forest ecosystem. To help change the emphasis, commenters asserted that
professional foresters should be heavily involved in ranking proposed
sites for the HFRP. No changes were made to the regulations based on
this comment. The emphasis on endangered species reflects the purpose
of the program detailed in the statute: to promote the recovery of
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threatened and endangered species, to improve biodiversity, and to
enhance carbon sequestration. See 16 U.S.C. 6571 and 6572.
Two commenters questioned why clear-cutting was singled out as
incompatible with HFRP and asserted that HFRP should allow for clear-
cutting when it would enhance the long-term forest and wildlife health.
No changes were made to the regulations based on these comments. It
appears that the commenters referred to an example concerning clear-
cutting in the preamble of the interim final rule, which indicated that
clear-cutting may not be a compatible use for enrollment under the HFRP
if the purpose was to achieve economic gain at the expense of the
forest ecosystem or essential fish and wildlife habitat (71 FR 28551).
The discussion was just an example and was not intended to cover all
circumstances. Clear-cutting may be allowed under HFRP if such activity
were designed to help accomplish the purposes of the program.
A number of commenters made reference to non-forest lands as part
of a forest ecosystem. No changes were made to the regulations because
non-forest land is eligible to be included if it is part of an eligible
forest ecosystem.
Two commenters asserted that ``forest ecosystems'' eligible for
HFRP should not be limited to lands with trees on them, but should
include rangelands and other lands that are integral parts of a forest
ecosystem and vital to the habitat of species or the enhancement of
biodiversity and carbon sequestration. No changes were made to the
regulations based on these comments. ``Rangelands and other lands''
described by the commenter are not prohibited from inclusion in HFRP.
The statutory provisions at 16 U.S.C. 6572, state that to be eligible
for enrollment, land must be:
(1) Private land the enrollment of which will restore, enhance, or
otherwise measurably increase the likelihood of recovery of a species
listed as endangered or threatened under 16 U.S.C. 1533 and
(2) private land the enrollment of which will restore, enhance, or
otherwise measurably improve the well-being of species that--
(a) Are not listed as endangered or threatened under 16 U.S.C.
1533; but
(b) are candidates for such listing, State-listed species, or
special concern species.
With respect to the statutory eligibility for enrollment of private
land which would restore, enhance, or otherwise measurably improve the
well-being of State-listed species, one commenter asserted that for
States that do not have State lists, enrollment eligibility should
include lands that provide habitat for G1-G2 species recognized by
NatureServe and requests made by applicants. No changes were made to
the regulations based on this comment. As noted above, the statutory
provisions allow for eligibility for enrollment of private land the
enrollment of which would restore, enhance, or otherwise measurably
improve the well-being of ``special concern species.'' This provides a
basis for enrolling lands in those States that do not have State lists.
One commenter asserted that the interim final rule should be
changed by adding a definition of ``forestland.'' This comment appears
to have been made to help clarify land eligibility. No changes were
made to the regulations based on this comment. As noted above, private
land that meets the eligibility criteria specified above is eligible
for HFRP; the statute does not include a term ``forestland''.
One commenter asserted that rangelands and other lands that are
integral parts of a forest ecosystem and vital to the habitat of
species or the enhancement of biodiversity and carbon sequestration,
should be eligible for inclusion in the HFRP to the extent that areas
covered by trees might be eligible. One commenter asserted that
riparian corridors that would protect aquatic species, such as salmon,
should be eligible land for HFRP. NRCS did not make any changes to the
regulations based on these comments. HFRP does not limit eligible lands
to a particular type of private lands. Except as described in Sec.
625.4(d), any type of private land may be eligible for inclusion in
HFRP.
One commenter asserted that NRCS should remove the requirement that
eligible property must have access from a public road. No changes were
made to the regulations based on this comment. Although the 2006
interim final rule preamble indicated that there must be access to the
property from a public road (71 FR 28551 and 28553), the interim final
rule text at Sec. 625.11(b)(1) provides merely that the easement shall
grant the United States a right of access to the easement area. The
Agency affirms the regulatory language that direct access from a public
road is not required, if access to the easement area is conveyed to the
United States through an acceptable right-of-way easement.
Priority for Enrollment
The statutory provisions at 16 U.S.C. 6572 set forth priority
criteria for enrollment in HFRP. Subsection (f) provides the following
regarding enrollment priority:
(1) Species--The Secretary of Agriculture shall give priority to
the enrollment of land that provides the greatest conservation benefit
to--
(a) Primarily, species listed as endangered or threatened under 16
U.S.C. 1533; and
(b) Secondarily, species that--
(i) Are not listed as endangered or threatened under 16 U.S.C.
1533; but
(ii) Are candidates for such listing, State-listed species, or
special concern species.
(2) Cost-effectiveness--The Secretary of Agriculture shall also
consider the cost-effectiveness of each agreement or easement, and
associated restoration plans, so as to maximize the environmental
benefits per dollar expended.
One commenter asserted that the HFRP should place emphasis on
pollinator-related enhancements. Another commenter suggested that the
HFRP should change the emphasis for enrollment under the HFRP from
``promoting'' the recovery of listed species, ``improving''
biodiversity, and ``enhancing'' carbon sequestration to ``does not
detract from'' the recovery of listed species, ``does not detract from
biodiversity,'' and ``does not detract from'' carbon sequestration. No
changes were made to the regulations based on these comments. The
Agency does not have statutory authority to change the emphasis of the
HFRP as requested by commenters. However, issues regarding the forest
ecosystem and pollinator-related enhancements would be considered for
purposes of eligibility as set forth above.
One commenter recommended inclusion of the hardwoods of the
Mississippi River and its tributaries and the mesic hardwoods forests
of the Appalachian region (including the Cumberland plateau) as a
regional forest ecosystem to be included as HFRP focus areas. No
changes were made to the regulations based on this comment. Under the
provisions of 16 U.S.C. 6572(f), any eligible lands, including those
described by the commenter, may be considered if they meet the
requirements for enrollment priority.
One commenter asserted that eligible non-profit conservation
organizations should receive higher priority in application selection.
No changes were made to the regulations based on this comment. As noted
above, 16 U.S.C. 6572(f) sets forth the criteria for enrollment
priority, and no statutory authority exists to give priority to non-
profit conservation organizations eligible for participation in HFRP.
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One commenter suggested that affected State Conservationists
develop a uniform set of ranking criteria for a particular regional
enrollment. No changes were made to the regulations based on this
comment because the statute does not give NRCS the discretion to use
priorities other than those set forth in 16 U.S.C. 6572. The required
ranking considerations are found in the interim final rule at Sec.
625.6. As a matter of policy, the NRCS State Conservationists will
ensure that local conditions are considered in applying the ranking
criteria.
Term of Enrollment
Statutory provisions at 16 U.S.C. 6572(e)(1) provide that land may
be enrolled in the HFRP in accordance with:
A 10-year cost-share agreement,
A 30-year easement, or
A permanent easement; or an easement for the maximum
duration allowed under State law.
Under the provisions of 16 U.S.C. 6572(e)(3), the statute allows
acreage owned by Indian Tribes to be enrolled into the program through
the use of 30-year contracts or 10-year cost-share agreements or a
combination of the two.
Two commenters asserted that NRCS should not adopt informal quotas
for the three enrollment types. The original HFRP statutory language
required that ``the extent to which each enrollment method is used
shall be based on the approximate proportion of owner interest
expressed in that method in comparison to the other methods.'' No
changes were made to the regulations based on these comments. However,
the 2008 Act included language specifying that 40 percent of program
expenditures in any FY be for restoration cost-share agreement
enrollment and 60 percent of program expenditures in any FY be for
easement enrollment. The 2008 Act allows re-allocation if funds are not
obligated by April 1st of the FY in which the funds were made
available.
One commenter asserted that HFRP should allow a continuous
enrollment process. Although NRCS recognizes that continuous enrollment
may be more convenient for some landowners, no changes were made to the
regulation based on this comment. Given the limited funding for HFRP,
continuous enrollment would increase the administrative costs of
implementing the program without providing additional beneficial
effects.
Restoration Plans
The interim final rule provided that as a condition of HFRP
participation, a landowner must agree to the implementation of a HFRP
restoration plan. The purpose of the restoration plan is to restore,
protect, enhance, maintain, and manage the habitat conditions necessary
to increase the likelihood of recovery of listed species under the ESA,
or measurably improve the well-being of species that are not listed but
are candidates for such listing, State-listed species, or species
identified by the Chief for special consideration for funding.
One commenter asserted that the HFRP should allow existing plans
prepared for other forestry and conservation programs to be used to
satisfy the requirement for a HFRP restoration plan. No changes were
made to the regulations based on this comment because no other plans
prepared for other forestry and conservation programs meet the criteria
for participation in the HFRP. Further, 16 U.S.C. 6573 requires that
the HFRP restoration plan be developed ``jointly, by the landowner and
the Secretary of Agriculture, in coordination with the Secretary of the
Interior.''
One commenter asserted that the HFRP should compensate applicants
for the use of consulting services for preparing applications. No
changes were made to the regulations based on this comment. Under the
provisions of 16 U.S.C. 6575, NRCS is responsible for providing,
including obtaining from third parties, any needed assistance in
preparing the HFRP restoration plan.
With respect to reviewing and approving restoration plans, three
commenters suggested that NRCS use the word ``confer'' instead of
``consult with'' based on the assertion that ``consult with'' could be
misinterpreted to have a more formal meaning than intended. The interim
final rule defined ``consultation'' or ``consult with'' to mean ``to
talk things over for the purpose of providing information; to offer an
opinion for consideration; and/or to meet for discussion or to confer,
while reserving final decision-making authority with NRCS.''
Accordingly, ``consultation'' or ``consult with'' does not refer to a
formal process. To avoid confusion, the Agency has eliminated the terms
``consultation'' and ``consult with'' and, instead, without a change in
meaning, is using the term ``confer'' as suggested by the commenters.
Cost-Share Payments
Two commenters asserted that NRCS should use actual costs,
including maximum caps, rather than average costs for determining cost-
share assistance reimbursement rates as allowed under 16 U.S.C. 6574.
They assert that the average may be far lower than the actual costs and
thereby make full program implementation less likely in those places if
landowners are not repaid for their full expenses. No changes were made
to the regulation based on these comments. Calculating actual costs
would require extensive reviews of each applicant's situation,
including review of every relevant receipt. This would significantly
increase the administrative workload and reduce the financial
assistance available to HFRP participants. Average costs as determined
on a regional basis will be used to ensure that the average costs are
close to actual costs in that area.
Easements
One commenter asserted that the HFRP should provide for permanent
easements. NRCS did not make any changes to the regulations based on
this comment. The statute sets forth the methods through which land can
be enrolled into the program. The 2008 Act amended the statutory
language to allow for the enrollment of permanent easements. This
change is discussed along with other statutory changes in a separate
section which follows.
The Agency proposed to use a standard conservation easement deed,
termed a negative restricted deed. The Agency specifically requested
comments on whether the standard conservation easement deed or the
reserved interest deed should be used in HFRP (71 FR 28551). The
standard conservation easement deed, termed a negative restricted
easement deed, represents an interest in land where the holder of the
easement has the right to require the owner of the encumbered land
(i.e., the easement area) to take, or not take, specific actions with
respect to that land. On the other hand, the reserved interest deed
acquires all rights in the property not specifically reserved to the
landowner. In response, NRCS received two comments, asserting that the
HFRP should use the standard conservation easement deed for HFRP. No
changes were made to the regulations based on these comments because
the Agency has been using the standard conservation easement deed in
HFRP and will continue to do so. Standard conservation easement deeds
work best on working lands in programs such as HFRP where the landowner
will continue to conduct various activities on the easement area and
few activities need to be prohibited in order to meet program purposes.
Cooperation and Technical Assistance
Under the provisions of 16 U.S.C. 6572, NRCS is to carry out the
HFRP in
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coordination with the FWS and the NMFS. The provisions of Sec.
625.13(c), which concern the HFRP restoration plan development, state
that NRCS, in coordination with FWS, will determine the conservation
practices and measures for the restoration plan.
One commenter asserted that the reference to coordination with FWS
should also include cooperation with NMFS. The language of 16 U.S.C.
6573 says that NRCS, the landowner, and FWS will develop the HFRP
restoration plan. However, given that 16 U.S.C. 6572 states that NRCS
is to carry out HFRP in coordination with FWS and NMFS, NRCS is
changing the regulation text to refer to coordination with both FWS and
NMFS as appropriate, in light of the species or habitat involved, in
developing the HFRP conservation plan.
Landowner Protections and Safe Harbor Agreements
The 2006 interim final rule (71 FR 28557), included a definition of
Landowner Protections as part of Sec. 625.2 and the preamble described
those protections and how program participants obtain them (71 FR
28548-28550). Landowner Protections were defined in the interim final
rule as ``protections and assurances made available to HFRP
participants whose voluntary conservation activities result in a net
conservation benefit for listed, candidate, or other species. Landowner
Protections made available by the Secretary of Agriculture to HFRP
participants may be provided under section 7(b)(4) or section 10(a)(1)
of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1536(b)(4),
1539(a)(1)). These Landowner Protections may be provided by NRCS in
conjunction with meeting its responsibilities under section 7 of the
ESA, or by FWS or NFMS through section 10 of the ESA. These Landowner
Protections include a permit providing coverage for incidental take of
species listed under the ESA. Landowner Protections also include
assurances related to potential modifications of HFRP restoration plans
and assurances related to the potential (unlikely) termination of
Landowner Protections and any 10-year cost share agreement.''
Commenters asserted that NRCS should establish specific provisions
in agreements or in the regulations regarding how NRCS will cooperate
with FWS and NMFS concerning the preparation of restoration plans and
other activities under the HFRP. NRCS should include how it will
cooperate with FWS and NMFS to make Landowner Protections available to
participating landowners.
Under the statutory provisions at 16 U.S.C. 6573, NRCS is
responsible for preparing restoration plans. NRCS develops the
restoration plans jointly with the program participant in coordination
with the FWS or NMFS, as appropriate. Further, NRCS will work with FWS
and NMFS to establish memorandums of understanding to enhance the
coordination process. In response to the commenters' request for more
procedural details, NRCS clarified the definition of Landowner
Protections in Sec. 625.2 and added a new section in the regulations
at Sec. 625.13(d) to indicate how NRCS will help program participants
obtain Landowner Protections.
NRCS has also added a definition for Candidate Conservation
Agreement with Assurances (CCAA) and clarified the definitions of
Landowner Protections and Safe Harbor Agreement (SHA) in Sec. 625.2 of
this rule to more fully describe the two types of Landowner
Protections. These Landowner Protections are conditioned on to the HFRP
restoration plan and associated cost-share agreement or easement being
properly implemented. There is no requirement that HFRP participants
obtain any Landowner Protections. Generally, the three elements of
Landowner Protections are: (1) Authorization for the take of endangered
or threatened species when conducting management activities under a
HFRP restoration plan and when returning to the baseline conditions at
the end of the cost-share agreement or easement period (whichever is
longer), (2) assurance that the landowner will not be required to
undertake additional or different management activities without the
consent of the landowner, and (3) limitations on the possibility of
termination of a HFRP restoration plan that is being properly
implemented by the landowner.
The definition of Landowner Protections in the interim final rule
(and text in the preamble), included a description of two approaches
that the Secretary of Agriculture may use to make Landowner Protections
available to HFRP participants. Based on the suggestions from
commenters and to help ensure clarity, NRCS clarified the description
in the definition in section Sec. 625.2 and added Sec. 625.13(d) to
specify the two ways that NRCS can make Landowner Protections available
to HFRP participants upon request. The first approach involves NRCS and
the HFRP participant, and does not require direct involvement by FWS or
NMFS with the participant. Under this approach, NRCS will extend to
participants the incidental take authorization received by NRCS from
FWS or NMFS through biological opinions issued as part of the
interagency consultation process under section 7(a)(2) of the ESA.
Under the second approach for Landowner Protections, NRCS will
provide technical assistance to help participants design and use their
HFRP restoration plan for the dual purposes of qualifying for HFRP
financial assistance and as a basis for entering into a SHA or CCAA
with FWS or NMFS under section 10(a)(1)A of the ESA. SHAs are voluntary
arrangements between either the FWS or NMFS and cooperating
participants who agree to adopt practices and measures, or refrain from
certain activities, in order to achieve net conservation benefits,
i.e., a contribution to the recovery of listed species. A CCAA is a
voluntary agreement between FWS or NMFS and cooperating landowners, who
voluntarily agree to manage their lands or waters to remove threats to
species at risk of becoming threatened or endangered, receive
assurances that their conservation efforts will not result in future
regulatory obligations in excess of those they agree to at the time
they enter into the Agreement. CCAAs are intended to help conserve
proposed and candidate species, and species likely to become
candidates, by giving private, non-Federal landowners incentives to
implement conservation measures for declining species. The primary
incentive for a CCAA is an assurance that no further additional land,
water, or resource use restrictions would be imposed should the species
later become listed under the ESA. There is no requirement that HFRP
participants enter into a SHA or a CCAA. All SHAs are subject to the
SHA policy jointly adopted by FWS and NMFS (Announcement of Final
Policy, 64 FR 32717, June 17, 1999), and SHAs with the FWS also are
subject to regulations at 50 CFR Part 17, and specifically 50 CFR
17.22(c) for endangered species or 17.32(c) for threatened species. All
CCAAs are subject to the CCAA policy jointly adopted by FWS and NMFS
(Announcement of Final Policy, 64 FR 32726, June 17, 1999), and CCAAs
with the FWS are also subject to regulations at 50 CFR Part 17, and
specifically 50 CFR 17.22(d) for endangered species or 17.32(d) for
threatened species.
The provisions of 16 U.S.C. 6575 require that the Secretary of
Agriculture offer landowners with technical assistance to assist the
landowners ``in complying'' with the terms of restoration plans (as
included in agreements or easements) under the
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HFRP. One commenter requested that NRCS indicate how this will be
carried out. No changes were made to the regulation based on this
comment because NRCS works with the landowner when developing the
restoration plan. As part of the planning process, NRCS ensures that
the landowner understands the plan requirements. The existing
regulations at Sec. 625.16 provide guidance as to how NRCS would work
with those found to have deficiencies or committed violations.
Electric Transmission Facilities
One commenter asserted that the HFRP should not be implemented in a
way that would be contrary to the use of electric transmission
facilities. The commenter stated:
NRCS should consider electronic transmission facilities to
be compatible with HFRP and allow such facilities to be located on
lands covered by NRCS easements without the need to modify each
individual easement.
NRCS should provide public notice of and the opportunity
for comments on all pending NRCS projects, including easements in the
HFRP.
NRCS should have an up-to-date system at the regional
level for obtaining information about existing and planned easements
rather than an annual system so that utilities could easily identify
where the easements may be located.
After a utility has filed a formal application for
construction of facilities, NRCS should stay any further action on
proposed easements within the identified utility routes until final
action is taken on the application by State and Federal agencies.
No changes were made to the regulations based on these comments.
The Agency understands the importance of electric transmission
facilities that provide electricity to homes and businesses across
America. However, NRCS is purchasing conservation easements for the
protection of certain conservation values: promoting the recovery of
threatened and endangered species, improving biodiversity, and
enhancing carbon sequestration. The protection of those conservation
values will dictate the terms of any conservation easement deed. Most
conservation easement deeds limit the development of structures and
utilities. Whether an electric transmission facility would be allowed
on an easement property is determined on a case-by-case basis and
depends on whether the electronic transmission facilities would be
compatible with the purposes of HFRP and the easement at issue.
Regarding the comment about public notice and comment, NRCS is not
required by law to provide public notice and an opportunity to comment
on easements under HFRP. The last two comments are related to potential
conflicts between the placement of an easement and the placement of
utilities. NRCS policy requires that State Conservationists take into
account utilities that are being planned for installation when making
project funding decisions and seek to avoid conflicts with
infrastructure projects when feasible.
Termination of Landowner Protection
The preamble of the 2006 interim final rule states that ``In
easement circumstances, where a change of conditions requires the FWS
and the NMFS to terminate a Landowner Protection, NRCS will work to
address the changed conditions in the HFRP restoration plan in
coordination with the landowner'' (71 FR 28549). One commenter
questioned whether this referred to landowner non-compliance or changed
environmental or ecological conditions. NRCS will work to address the
changed conditions in coordination with the landowner regardless of the
cause of the change. As provided for in this proposed rule in the
clarified definition of Landowner Protections in Sec. 625.2 and the
associated provision at Sec. 625.13(d), provided that the contract
holder has acted in good faith and without the intent to violate the
terms of the HFRP restoration plan, all appropriate options will be
pursued with the participant to avoid termination in the case of
landowner non-compliance or changed conditions. If the participant has
entered into a SHA or CCAA with FWS or NMFS (the Services) based on a
HFRP restoration plan, NRCS will work with the participant and the
Services to seek appropriate means of avoiding revocation of a permit
issued under section 10(a)(1) of the ESA by FWS or NMFS to implement
the SHA or CCAA. However, in the event of a termination, any requested
assurances from NRCS will be voided and the landowner will be
responsible to FWS or NMFS for any violations of the ESA, as clarified
in this proposed rule at Sec. 625.13(d). The SHA policy regarding
revocation of a permit issued in association with a SHA is: ``The
Services are prepared as a last resort to revoke a permit implementing
a Safe Harbor Agreement where continuation of the permitted activity
would be likely to result in jeopardy to a species covered by the
permit. Prior to taking such a step, however, the Services would first
have to exercise all possible means to remedy such a situation.'' (Fish
and Wildlife Service and National Fisheries Marine Service, Safe Harbor
Agreements and Candidate Conservation Agreements with Assurances, Final
Rule and Notices, 64 FR 32724). Regulations pertaining to SHA permits
issued by FWS have a similar provision (50 CFR 17.22(c)(7) and
17.32(c)(7)) for endangered and threatened wildlife.
Proposed Changes Resulting From Passage of the Food, Conservation, and
Energy Act of 2008
NRCS proposes to amend the current regulation to include statutory
changes included in Section 8205 of the 2008 Act (Pub. L. 110-246) as
follows:
Section 8205 amended the methods of enrollment by
replacing the 99-year enrollment method with enrollment of permanent
easements or the maximum duration allowed by state law. NRCS proposes
to amend Sec. 625.8(b), Sec. 625.10(e)(1) and Sec. 625.11(a) by
removing reference to 99 year easements and inserting in its place the
words ``permanent easement''.
Section 8205 also expanded the enrollment methods to
include the use of 30-year contracts or 10-year cost share agreements,
or any combination of both, for acreage owned by Indian tribes. The
statement of managers (Conference Report H.R. 110-627 for HR 2419,
pages 202 and 203, May 13, 2008) provided additional clarification of
Congressional intent by stating that ``the Managers intend that Tribal
land enrolled in the program should be land held in private ownership
by a tribe or an individual Tribal member. Tribal lands held in trust
or reserved by the U.S. government or restricted fee lands should not
be enrolled in the program regardless of ownership.'' NRCS proposes to
add the definition of ``acreage owned by Indian Tribes'' in Sec. 625.3
to read as follows: ``acreage owned by Indian Tribes means private
lands to which the title is held by individual Indians and Indian
tribes, including Alaska Native Corporations. This term does not
include land held in trust by the United States or lands the title to
which is held subject to Federal restrictions against alienation.''
NRCS also proposes to amend the following sections to incorporate
reference to 30-year contracts: Sec. 625.1(a); Sec. 625.2; Sec.
625.3 in the definition of ``restoration agreement;'' Sec. 625.4(a);
Sec. 625.5(b); Sec. 625.8(b)(2); Sec. 625.8(d); Sec. 625.15(b)(5);
Sec. 625.16(b); and Sec. 625.20(b); NRCS proposes to add the term
``contract'' in reference to 30-year contracts in Sec. 625.6(a)(7);
Sec. 625.7(a) and (b); Sec. 625.14; Sec. 625.17; and Sec.
625.16(a)(3); and NRCS proposes to
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add a new Sec. 625.12, 30-year contracts, to include the provisions
related to this new enrollment method. Consistent with the statutory
requirement, NRCS must treat 30-year contracts like easements to the
extent possible. In particular, statutory language in 16 U.S.C. 6572
requires that the value of a 30-year contract for Tribal lands shall be
equivalent to the value of a 30-year easement. Although there are
limitations to handling 30-year contacts like 30-year easements because
of the fundamental differences between contract law and real property
law related to easements, NRCS has structured 30-year contract
requirements in Sec. 625.12 to be as comparable as possible to the
easements requirements in Sec. 625.11.
Section 8205 of the 2008 Act establishes requirements regarding the
use of funds for cost-share agreements and easements. Specifically,
this section directs that of the total amount of funds expended under
the program for a fiscal year to acquire easements and enter into cost-
share agreements, not more than 40 percent shall be used for 10-year
cost-share agreements and not more than 60 percent shall be used for
easements. Funds not obligated by April 1st of the fiscal year may be
used to carryout either enrollment method. Cost-share agreements and
easements under the Tribal lands option do not count toward the 60/40
calculation. NRCS proposes to incorporate this statutory requirement in
Sec. 625.4(a).
Other Proposed Minor Changes for Clarification or Improved Program
Administration
NRCS proposes to make other changes to clarify the regulations for
the public; such changes include clarifying the enrollment process,
providing clear language about determining easement, contract, and
agreement compensation, providing guidance on the Agency's treatment of
ecosystem service credits, and clarifying language on Agency appeals.
The proposed changes include:
Section 625.1 Purpose and Scope
Section 625.1(b)(1) identifies one objective of the program as
being to ``Promote the recovery of endangered and threatened species
under the ESA.'' NRCS proposes to amend Sec. 625.1(b)(1) to clarify
that ESA is an abbreviation for the Endangered Species Act.
Section 625.2 Definitions
In addition to the definition of ``Acreage owned by Indian
Tribes,'' which NRCS proposes to add as a result of statutory changes
described in the previous section, NRCS proposes to add definitions for
``Candidate Conservation Agreement with Assurances,'' ``Conservation
practice'' and ``Forest ecosystem''.
NRCS proposes to add a definition for the term ``Candidate
Conservation Agreement with Assurances'' to ensure the public has clear
understanding of the Landowner Protections provided through HFRP. NRCS
proposes the definition to read as follows: ``Candidate Conservation
Agreement with Assurances (CCAA) means a voluntary arrangement between
FWS or NMFS, and cooperating non-Federal landowners under the authority
of Section 10(a)(1) of the Endangered Species Act of 1973 (the Act), 16
U.S.C. 1539(a)(1). Under the CCAA and an associated enhancement of
survival permit, the non-Federal landowner implements actions that are
consistent with the conditions of the permit. Candidate Conservation
Agreements with Assurances with FWS are also subject to regulations at
50 CFR 17.22(d) for endangered species or 50 CFR 17.32(d) for
threatened species, or applicable subsequent regulations.''
NRCS proposes to add the term ``Conservation practice'' to replace
the definition of ``practice.'' The definition of ``conservation
practice'' describes a broader array of activities than the definition
of the term ``practice.'' NRCS proposes to incorporate the following
language as the definition of ``conservation practice.'' ``Conservation
practice means one or more conservation improvements and activities,
including structural practices, land management practices, vegetative
practices, forest management, and other improvements that benefit the
eligible land and optimize environmental benefits, planned and applied
according to NRCS standards and specifications.''
The purpose of HFRP is to restore and enhance forest ecosystems.
NRCS proposes to add the term ``forest ecosystem'' to clarify the
program's purpose.
NRCS proposes amendments to other definitions as follows:
The definition of ``Activity'' is removed because statutory
authority is only provided for ``Practices'' and ``Measures.''
The definition of ``Biodiversity'' is changed to clarify that
``biodiversity'' is the shortened term for biological diversity.
The definition of ``Contract'' is changed to be consistent with
other programs administered by NRCS. NRCS proposes amending the
definition to read as follows:
``Contract/agreement means the legal document that specifies the
obligations and rights of any applicant who has been accepted to
participate in the program. A contract/agreement is a binding agreement
for the transfer of assistance from USDA to the participant for
conducting the prescribed program implementation actions.''
The term ``30-year contract'' is added to incorporate the 30-year
contract option.
The Agency is removing the definition of ``Indian Trust Lands,''
``Practice,'' and ``Consultation or consult.'' The definition of
``Indian Trust Lands'' is removed and replaced by the definition of
``Acreage owned by Indian Tribes'' to be consistent with the statutory
language. The definition of ``Practice'' is removed and replaced with
the more specific term ``Conservation practice.'' The definition of
``Consultation or consult'' is removed and revised to change the term
to confer for the reasons described in the public comment section
above.
The definition of ``landowner'' is revised to remove the term
``remaindermen'' as a category of ownership. NRCS proposes removing
this term because it unnecessarily complicates the definition.
The definition of ``Landowner Protections'' is changed as a result
of the public comments received. The explanation for this proposal is
provided under ``Proposed changes based on public comment.''
The definition of ``Liquidated damages'' is amended to read:
``Liquidated damages'' is defined as ``a sum of money stipulated in the
HFRP restoration agreement that the participant agrees to pay NRCS if
the participant fails to adequately complete the terms of the
restoration agreement. The sum represents an estimate of the expenses
incurred by NRCS to service the restoration agreement, and reflects the
difficulties of proof of loss and the inconvenience or non-feasibility
of otherwise obtaining an adequate remedy.'' This is consistent with
how the term is defined in other programs administered by NRCS.
The definition of ``Participant'' is amended to incorporate non-
substantive changes to make the definition consistent with the
definition of ``Participant'' in other conservation programs and to
address the addition of the 30-year contract option provided in the
2008 Act for Tribal lands. Specifically, a ``Participant'' is an
applicant who is party to a 10-year cost share agreement, 30-year
contract, or an option agreement to purchase an easement. The Agency is
also taking the opportunity to note in this regulation, consistent with
the appeal regulations at
[[Page 1962]]
7 CFR Part 614 and Federal real property law, that once a conservation
easement is conveyed, the landowner is no longer a ``Participant'' for
easement enforcement and management matters and, therefore, may not
file an administrative appeal on those matters.
The definition of ``Private land'' is changed to read: ``Private
land means land that is not owned by a governmental entity, and
includes land meeting the definition of ``acreage owned by Indian
Tribes.'' This proposed change ensures the public recognizes that the
term ``Private land,'' as used in this regulation, includes acreage
owned by Indian Tribes. The previous definition included the term
``Indian Trust Lands.''
The definition of ``Safe harbor agreement'' is changed as described
in the public comment section above.
The definition of ``State Conservationist'' is changed to clarify
that the former State Conservationist of Hawaii position has become the
director of the Pacific Islands.
Section 625.4 Program Requirements
NRCS proposes to revise Sec. 625.4(a) to incorporate the statutory
limitation on the use of funds for cost-share agreements and easements.
As described in the statutory change section above, Section 8205 of the
2008 Act requires an allocation of no more than 40 percent of program
expenditures toward enrollment of restoration cost-share agreements and
no more than 60 percent of program expenditures toward enrollment of
easements. Any contracts on acreage owned by Indian Tribes are not
included in this calculation. The 2008 Act allows the Secretary to use
any funds that are not obligated by April 1st of the fiscal year to be
used for either agreements or easements during that fiscal year. Any
funds not obligated by April 1 or later will be re-distributed to
projects with agreements or easements ready to obligate funding. NRCS
proposes to manage this process at the national level to ensure that
the allocation of funds meets the statutory requirements.
NRCS proposes to amend Sec. 625.4(b) to clarify that an individual
or entity can enroll in HFRP by replacing the term ``person'' with the
words ``individual or entity.'' The current language refers to a
``person.'' This term is inaccurate due to participation of entities
and Indian tribes.
NRCS proposes, for clarity purposes, to change Sec. 625.4(d) to
clarify that any land not eligible under the categories listed in Sec.
625.4(c) is ineligible land. Section 625.4(c) identifies eligible land.
Section 625.5 Application Procedures
NRCS proposes revising Sec. 625.5(a) to clarify the sign-up
process. Specifically, the State Conservationists will develop
proposals for the State to receive funds and may seek input from other
agencies in doing so. The State Conservationists will submit proposals
to the Chief for funding consideration. The Chief will evaluate and
select proposals for funding and provide the State Conservationist with
a funding allocation. Upon a State's selection for funding, the State
Conservationists will issue a public sign-up notice to obtain
applications from eligible landowners. The State Conservationists may
consult with organizations or units of government with appropriate
technical expertise in developing ranking criteria to be used in
selecting applications best suited to achieving the project purpose.
The applications will be ranked based on these criteria. The highest
ranking applications are funded by the State Conservationists. Due to
the limited funding provided for this program, continuous enrollment
would likely increase the administrative burden of implementing the
program. This sign-up process will ensure that the limited HFRP funding
will be used for the best projects nationally, and help maximize the
expected benefits related to habitat restoration and protection that
address the recovery of endangered species, improvement in
biodiversity, and enhanced carbon sequestration. In short, national
competition will result in the optimal use of funds.
NRCS proposes to amend Sec. 625.5(d) to clarify that any voluntary
reduction in compensation must not be below the lowest rate allowed by
the statute.
Section 625.6 Establishing Priority for Enrollment in HFRP
NRCS proposes to amend Sec. 625.6(a) to reflect the change in the
definition of biological diversity discussed above at Sec. 625.2
Section 625.7 Enrollment of Easements, Contracts, and Agreements
NRCS proposes to amend Sec. 625.7 to reflect a change in the NRCS
business process that is designed to reduce the potential for de-
obligating funds. NRCS has experienced difficulty in other easement
programs where funds are obligated to projects whose enrollment is
subsequently terminated due to irresolvable title issues and hazardous
materials concerns. NRCS will no longer use commitment accounting, but
will use the option agreement to purchase as the point of obligation.
Also, additional evaluation that was formerly performed after the
signing of the option agreement to purchase will now be performed prior
to the obligation.
Section 625.7(a) is changed to clarify that the obligation of HFRP
funds occurs when the landowner signs the option agreement to purchase,
cost-share agreement, or 30-year contract. This policy helps ensures
that HFRP funds are used to the greatest extent possible by reducing
the potential for de-obligation.
Section 625.7(c) is changed to clarify the point at which land is
considered enrolled into the program to be consistent with other
easement programs administered by NRCS.
Section 625.7(d) is amended to clarify the conditions and
procedures for withdrawing an offer after the land is considered
enrolled in the program.
Section 625.8 Compensation for Easements and 30-Year Contracts
NRCS proposes to amend Sec. 625.8(c) to clarify the Agency's
existing authority to accept and use non-Federal contributions.
NRCS proposes to amend Sec. 625.8(d) to identify that payments for
30-year contracts will be treated the same as 30-year easement
payments. The statutory language in 16 U.S.C. 6572 instructs that the
value of a 30-year contract shall be equivalent to the value of a 30-
year easement.
Additionally, the following information about the appraisal
methodology will be used for the valuation of HFRP offers: For
permanent easements (or easements for the maximum duration allowed
under State law), the HFRP statute states that the Secretary of
Agriculture shall pay the landowner not less than 75 percent, nor more
than 100 percent of (as determined by the Secretary) the fair market
value of the land enrolled unencumbered by the easement, less the fair
market value of such land encumbered by the easement. The term
``encumbered'' refers to the period of time when the easement becomes
effective. The appraisal process established by NRCS is aimed at
determining the difference between the value of the enrolled land prior
to and after easement encumbrance.
When acquiring real property, Federal agencies generally follow the
Uniform Relocation Assistance and Real Property Acquisition Policies
for Federal and federally Assisted Programs (``the Uniform Relocation
Act'') found in regulations at Part 24 of Title 49 of the Code of
Federal Regulations. Section 24.103 of that title establishes that
``appraisals are to be prepared according to these requirements, which
are
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intended to be consistent with the Uniform Standards of Professional
Appraisal Practice (USPAP). The Agency may have appraisal requirements
that supplement these requirements, including, to the extent
appropriate, the Uniform Appraisal Standards for Federal Land
Acquisition (UASFLA).'' [Yellow Book] The Yellow Book requires that
compensation be based upon the impact that the easement encumbrance
will have on the value of the ``larger parcel,'' which is all land
owned by the landowner that may be impacted by the easement, as
determined by the appraiser.
The HFRP language for permanent and maximum duration easements
requires that compensation be based on the impact to value of only the
land enrolled and encumbered by the easement. Thus, the Yellow Book
requirement of appraising the larger parcel conflicts with the HFRP
statutory requirement related to determining easement value for
permanent easements, or those of the maximum duration required by state
law. Therefore, the Agency proposes to use Uniform Standards for
Professional Appraisal Practice (USPAP) for those easements, which is
consistent with 49CFR24. Even though the HFRP statute states the
approach for valuing permanent and 30-year easements in slightly
different language, there is no actual distinction since both result in
basing value on the enrolled land encumbered by the easement.
Correspondingly, the Agency is maintaining consistency in the approach
to determining easement compensation values for 30-year and permanent
easements.
NRCS proposes to add language in Sec. 625.8(h) that clarifies USDA
policy regarding environmental credits such as carbon, water quality,
biodiversity, or wetlands preservation, on land enrolled in HFRP. USDA
considers these credits the property of the farmer, the landowner, or
the person who applied the conservation practices on the land,
regardless of the Federal funds invested.
Section 625.9 10-Year Restoration Cost-Share Agreements
NRCS proposes to amend Sec. 625.9 (a) to reflect a change in
section numbering caused by the addition of the 30-year contract
section. Amendments to this section reflect the change from the term
``practice'' to ``conservation practice.''
NRCS proposes to amend Sec. 625.9 (d) to clarify the meaning of
the sentence and to clarify that termination of the restoration cost-
share agreement can occur when the terms of Sec. 625.9(d) 1, 2, or 3
are met.
Section 625.10 Cost-Share Payments
NRCS proposes to amend Sec. 625.10(b) to clarify the addition of
the term ``candidate species,'' as well as listed species, through a
Candidate Conservation Agreement with Assurances.
Section 625.10(c) and Sec. 625.10(g) and (h) are amended to
reflect the change in the definition from ``practice'' to the more
specific term ``conservation practice'' as discussed above at Sec.
625.2. Section 625.10(e) is also amended for the same reason and to
clarify that the conservation practice would need to meet NRCS
standards and specifications.
Section 625.11 Easement Participation Requirements
NRCS proposes to amend Sec. 625.11(a) to clarify the sentence to
include not only listed species but to allow for other types of
management that support forest ecosystem functions and values, such as
activities to protect candidate species.
Section 625.12 30-Year Contracts
A new section is added to incorporate the statutory provision for
30-year contracts for acreage owned by Indian Tribes. The section
describes enrollment and minimum requirements of the contract. Terms of
the 30-year contract are kept as consistent as possible with terms of a
30-year easement, considering the differences in the legal instruments.
Section 625.13 The HFRP Restoration Plan Development and Landowner
Protections
NRCS proposes to amend Sec. 625.13(a), Sec. 625.13(c) and Sec.
625.13(d) to reflect the changes discussed above as a result of public
comments. Section 625.13(a), was amended to replace the term
``consult'' with ``confer.'' In Sec. 625.13(c) ``The National Marine
Fisheries Service'' was added as an agency that would assist in
determining eligible practices. Section 625.13(d) was amended to
clarify Landowner Protections.
Section 625.14 Modification of the HFRP Restoration Plan
NRCS proposes to amend Sec. 625.14 to make non-substantive changes
to the sentence structure.
Section 625.15 Transfer of Land
NRCS proposes the following changes: Amend Sec. 625.15(a) to
clarify that this section refers to offers voided prior to enrollment
in the program. This section would also be amended to clarify that this
section applies to easements, agreements, and contracts.
In addition, amend Sec. 625.15(b) to clarify that this section
refers to actions following transfer of land. These changes clarify
that cost-share payments can be transferred to the new owner upon
presentation of an assignment of rights. Landowner Protections can be
transferred to the new landowner, and if a SHA or CCAA is involved, the
landowners need to coordinate with FWS or NMFS to transfer the
agreement and assurances to the new landowner.
Section 625.16 Violations and Remedies
NRCS proposes to make the following amendments to this section:
Amend Sec. 625.16 (a) to clarify that extensions to correct violations
beyond 30 days, under this section, should be made based on the State
Conservationists determination of how much time is necessary to correct
the violation.
Section 625.16(b) is amended to clarify that extensions to correct
violations beyond 30 days should be based on the State Conservationists
determination of how much time is necessary to correct the violation.
NRCS is also removing the last sentence of paragraph (b)(3), all of
paragraph (b)(4), and paragraph (b)(6). The last sentence of (b)(3) is
removed because it is administratively burdensome to continue to
monitor and enforce the operation and maintenance of practices for
which the Agency no longer has a contract. Due to limited resources and
funding, the Agency has determined that to administer the program more
effectively after an agreement is terminated, that the Agency will
recover the appropriate amount and will not continue to monitor the
installed practices or measures. Paragraph (b)(4) is removed because it
has been incorporated into (b)(3). Paragraph (b)(6) is removed because
the Agency has determined that it is not in the interests of the
program to allow participants to unilaterally terminate a contract
without penalty or repayment, even when participants are in compliance
with all conditions. The Agency is interested in ensuring practices are
continued for the original duration of the contract and maintaining a
high level of environmental benefits.
Section 625.18 Assignments
The text of Section Sec. 625.18 is not amended. The only change to
this section is the section heading which has been changed to reflect
the insertion of the 30-year contract section above at Sec. 625.12.
[[Page 1964]]
Section 625.19 Appeals
NRCS proposes to amend Sec. 625.19(b) to clarify that appeals
procedures apply to administrative actions and not for other purposes
such as enforcement actions.
Section 625.19(d) is added to further clarify that enforcement
actions taken by NRCS are not subject to review under administrative
appeal regulations. This language is consistent with the appeal
regulations at 7 CFR Part 614 and Federal real property law.
Specific Request for Public Comment
The Agency is particularly interested in receiving public input
regarding the following topics: (1) The definition of acreage owned by
Indian Tribes and the accompanying requirements for 30-year contracts
at Sec. 625.12; (2) the language regarding ownership of ecosystem
services credits; and (3) the language regarding the establishment of
easement compensation rates.
List of Subjects in 7 CFR Part 625
Administrative practice and procedure, Agriculture, Soil
conservation, Forestry.
Text of Rule Amendments
For the reasons stated in the preamble, the Natural Resources
Conservation Service proposes to revise 7 CFR part 625 to read as
follows:
PART 625--HEALTHY FORESTS RESERVE PROGRAM
Sec.
625.1 Purpose and scope.
625.2 Definitions.
625.3 Administration.
625.4 Program requirements.
625.5 Application procedures.
625.6 Establishing priority for enrollment in HFRP.
625.7 Enrollment of easements, contracts, and agreements.
625.8 Compensation for easements and 30-year contracts.
625.9 10-year restoration cost-share agreements.
625.10 Cost-share payments.
625.11 Easement participation requirements.
625.12 30-year contracts.
625.13 The HFRP restoration plan development and landowner
protections.
625.14 Modification of the HFRP restoration plan.
625.15 Transfer of land.
625.16 Violations and remedies.
625.17 Payments not subject to claims.
625.18 Assignments.
625.19 Appeals.
625.20 Scheme and device.
Authority: 16 U.S.C. 6571-6578.
Sec. 625.1 Purpose and scope.
(a) The purpose of the Healthy Forests Reserve Program (HFRP) is to
assist landowners, on a voluntary basis, in restoring and enhancing
forest ecosystems on private lands through easements, 30-year
contracts, and 10-year cost-share agreements.
(b) The objectives of HFRP are to:
(1) Promote the recovery of endangered and threatened species under
the Endangered Species Act (ESA);
(2) Improve plant and animal biodiversity; and
(3) Enhance carbon sequestration.
(c) The regulations in this part set forth the policies,
procedures, and requirements for the HFRP as administered by the
Natural Resources Conservation Service (NRCS) for program
implementation and processing applications for enrollment.
(d) The Chief of NRCS may implement HFRP in any of the 50 States,
the District of Columbia, the Commonwealth of Puerto Rico, Guam, the
Virgin Islands of the United States, American Samoa, and the
Commonwealth of the Northern Marianna Islands.
Sec. 625.2 Definitions
The following additions shall be applicable to this part:
30-year Contract means a contract that is limited to acreage held
in private ownership by Indian Tribes or individual tribal members. The
30-year contract is not eligible for use on tribal lands held in trust
or subject to Federal restrictions against alienation.
Acreage Owned by Indian Tribes means private lands to which the
title is held by individual Indians and Indian tribes, including Alaska
Native Corporations. This term does not include land held in trust by
the United States or lands where the fee title contains restraints
against alienation.
Biodiversity (Biological Diversity) means the variety and
variability among living organisms and the ecological complexes in
which they live.
Candidate Conservation Agreement with Assurances (CCAA) means a
voluntary arrangement between U.S. FWS or NMFS, and cooperating non-
Federal landowners under the authority of Section 10(a)(1) of the
Endangered Species Act of 1973, 16 U.S.C. 1539(a)(1). Under the CCAA
and an associated enhancement of survival permit, the non-Federal
landowner implements actions that are consistent with the conditions of
the permit. Candidate Conservation Agreements with Assurances with FWS
are also subject to regulations at 50 CFR 17.22(d) for endangered
species or 50 CFR 17.32(d) for threatened species, or applicable
subsequent regulations.
Carbon sequestration means the long term storage of carbon in soil
(as soil organic matter) or in plant material (such as in trees).
Chief means the Chief of the NRCS, United States Department of
Agriculture (USDA), or designee.
Confer means to discuss for the purpose of providing information;
to offer an opinion for consideration; or to meet for discussion, while
reserving final decision-making authority with NRCS.
Conservation practice means one or more conservation improvements
and activities, including structural practices, land management
practices, vegetative practices, forest management, and other
improvements that benefit the eligible land and optimize environmental
benefits, planned and applied according to NRCS standards and
specifications.''
Conservation treatment means any and all conservation practices,
measures, activities, and works of improvement that have the purpose of
alleviating resource concerns, solving or reducing the severity of
natural resource use problems, or taking advantage of resource
opportunities, including the restoration, enhancement, maintenance, or
management of habitat conditions for HFRP purposes.
Contract or agreement means the legal document that specifies the
obligations and rights of any applicant who has been accepted to
participate in the program. A contract or agreement is a binding
agreement for the transfer of assistance, including financial or
technical assistance, from USDA to the participant for conducting the
prescribed program implementation actions.
Coordination means to obtain input and involvement from others
while reserving final decision-making authority with NRCS.
Cost-share agreement means a legal document that specifies the
rights and obligations of any participant accepted into the program. A
HFRP cost-share agreement is a binding agreement for the transfer of
assistance from USDA to the participant to share in the costs of
applying conservation. A cost-share agreement under HFRP has a duration
of 10-years.
Cost-share payment means the payment made by NRCS to a program
participant or vendor to achieve the restoration, enhancement, and
protection goals of enrolled land in accordance with the HFRP
restoration plan.
[[Page 1965]]
Easement means a conservation easement, which is an interest in
land defined and delineated in a deed whereby the landowner conveys
certain rights, title, and interests in a property to the United States
for the purpose of protecting the forest ecosystem and the conservation
values of the property.
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an
easement conveyed to the United States under the HFRP.
Fish and Wildlife Service (FWS) is an agency of the United States
Department of the Interior.
Forest ecosystem means a dynamic set of living organisms, including
plants, animals and microorganisms interacting among themselves and
with the environment in which they live. A forest ecosystem is
characterized by a predominance of trees, and by the fauna, flora, and
ecological cycles (energy, water, carbon, and nutrients)
Forest Service is an agency of the USDA.
HFRP restoration plan means the document that identifies the
conservation treatments that are scheduled for application to land
enrolled in HFRP in accordance with NRCS standards and specifications.
Indian Tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C.
1601 et seq.), which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
Landowner means an individual or entity having legal ownership of
land, including those who may be buying land under a purchase
agreement. The term ``landowner'' may also include all forms of
collective ownership including joint tenants, tenants in common, and
life tenants.
Landowner Protections means protections and assurances made
available by NRCS to HFRP participants when requested and whose
voluntary conservation activities result in a net conservation benefit
for listed, candidate, or other species, and meet other requirements of
the program. These Landowner Protections are subject to an HFRP
restoration plan and associated cost-share agreement, 30-year contract,
or easement being properly implemented. Landowner Protections made
available by the Secretary of Agriculture to HFRP participants may
include an incidental take authorization received by NRCS from FWS or
NMFS or may be provided by a Safe Harbor Agreement or Candidate
Conservation Agreement with Assurances directly between the HFRP
participant and FWS or NMFS as appropriate.
Liquidated Damages means a sum of money stipulated in the HFRP
restoration agreement that the participant agrees to pay NRCS if the
participant fails to adequately complete the terms of the restoration
agreement. The sum represents an estimate of the expenses incurred by
NRCS to service the restoration agreement, and reflects the
difficulties of proof of loss and the inconvenience or non-feasibility
of otherwise obtaining an adequate remedy.
Maintenance means work performed to keep the applied conservation
practice functioning for the intended purpose during its life span.
Maintenance includes work to prevent deterioration of the practice,
repairing damage, or replacement of the practice to its original
condition if one or more components fail.
Measure means one or more specific actions that is not a
conservation practice, but has the effect of alleviating problems or
improving the treatment of the resources.
National Marine Fisheries Service (NMFS) is an agency of the United
States Department of Commerce.
Natural Resources Conservation Service (NRCS) is an agency of the
USDA, which has the responsibility for administering HFRP.
Participant means a person or entity who is a party to a 10-year
cost share agreement, 30-year contract, or an option agreement to
purchase an easement.
Private land means land that is not owned by a governmental entity,
and includes land that meets the definition of ``acreage owned by
Indian Tribes.''
Restoration means implementing any conservation practice
(vegetative, management, or structural) or measure that improves forest
ecosystem values and functions (native and natural plant communities).
Restoration agreement means a cost-share agreement between the
program participant and NRCS to restore, enhance, and protect the
functions and values of a forest ecosystem for the purposes of HFRP
under either an easement, 30-year contract, or a 10-year cost-share
agreement enrollment option.
Safe Harbor Agreement means a voluntary arrangement between FWS or
NMFS, and cooperating non-Federal landowners under the authority of
Section 10(a)(1) of the Endangered Species Act of 1973 (the Act), 16
U.S.C. 1539(a)(1). Under the Safe Harbor Agreement and an associated
enhancement of survival permit, the private property owner implements
actions that are consistent with the conditions of the permit. Safe
Harbor Agreements with FWS are also subject to regulations at 50 CFR
17.22(c) for endangered species or 50 CFR 17.32 (c) for threatened
species, or applicable subsequent regulations.
Sign-up notice means the public notification document that NRCS
provides to describe the particular requirements for a specific HFRP
sign-up.
State Conservationist means the NRCS employee authorized to
implement HFRP and direct and supervise NRCS activities in a State, the
Caribbean Area, or the Pacific Island Area.
Technical service provider means an individual, private-sector
entity, or public agency certified by NRCS to provide technical
services to program participants in lieu of or on behalf of NRCS.
Sec. 625.3 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief.
(b) The Chief may modify or waive a provision of this part if the
Chief determines that the application of such provision to a particular
limited situation is inappropriate and inconsistent with the goals of
the program. This authority cannot be further delegated. The Chief may
not modify or waive any provision of this part which is required by
applicable law.
(c) No delegation in this part to lower organizational levels shall
preclude the Chief from determining any issue arising under this part
or from reversing or modifying any determination arising from this
part.
(d) The State Conservationist will develop the rates of
compensation for an easement and 30-year contract, a priority ranking
process, and any related technical matters.
(e) The NRCS shall coordinate with FWS and NMFS in the
implementation of the program and in establishing program policies. In
carrying out this program, NRCS may confer with private forest
landowners, including Indian tribes, the Forest Service and other
Federal agencies, State fish and wildlife agencies, State forestry
agencies, State environmental quality agencies, other State
conservation agencies; and nonprofit conservation organizations. No
determination by FWS, NMFS, the
[[Page 1966]]
Forest Service, any Federal or State agency, conservation district, or
other organization shall compel the NRCS to take any action which the
NRCS determines will not serve the purposes of the program established
by this part.
Sec. 625.4 Program requirements.
(a) General. Under the HFRP, NRCS will purchase conservation
easements from, or enter into 30-year contracts or 10-year cost-share
agreements with eligible landowners who voluntarily cooperate in the
restoration and protection of forestlands and associated lands. To
participate in HFRP, a landowner will agree to the implementation of a
HFRP restoration plan, the effect of which is to restore, protect,
enhance, maintain, and manage the habitat conditions necessary to
increase the likelihood of recovery of listed species under the ESA, or
measurably improve the well-being of species that are not listed as
endangered or threatened under the ESA but are candidates for such
listing, State-listed species, or species identified by the Chief for
special consideration for funding. NRCS may provide cost-share
assistance for the activities that promote the restoration, protection,
enhancement, maintenance, and management of forest ecosystem functions
and values. Specific restoration, protection, enhancement, maintenance,
and management activities may be undertaken by the landowner or other
NRCS designee.
(1) Of the total amount of funds expended under the program for a
fiscal year to acquire easements and enter into 10-year cost-share
agreements, not more than 40 percent shall be used for cost-share
agreements and not more than 60 percent shall be used for easements.
(2) The Chief may use any funds that are not obligated by April 1st
of the fiscal year for which the funds are made available to carry out
a different method of enrollment during that fiscal year.
(b) Landowner eligibility. To be eligible to enroll an easement in
the HFRP, an individual or entity must:
(1) Be the landowner of eligible land for which enrollment is
sought; and
(2) Agree to provide such information to NRCS as the agency deems
necessary or desirable to assist in its determination of eligibility
for program benefits and for other program implementation purposes.
(c) Eligible land.
(1) The NRCS, in coordination with FWS or NMFS, shall determine
whether land is eligible for enrollment and whether, once found
eligible, the lands may be included in the program based on the
likelihood of successful restoration, enhancement, and protection of
forest ecosystem functions and values when considering the cost of
acquiring the easement, 30-year contract, or 10-year cost share
agreement, and the restoration, protection, enhancement, maintenance,
and management costs.
(2) Land shall be considered eligible for enrollment in the HFRP
only if the NRCS determines that:
(i) Such private land is capable of supporting habitat for a
selected species listed under Section 4 of the ESA; or
(ii) Such private land is capable of supporting habitat for a
selected species not listed under Section 4 of the ESA but is candidate
for such listing, or the selected species is State-listed species, or
is a species identified by the Chief for special consideration for
funding.
(3) NRCS may also enroll land adjacent to eligible land if the
enrollment of such adjacent land would contribute significantly to the
practical administration of the easement area, but not more than it
determines is necessary for such contribution.
(4) To be enrolled in the program, eligible land must be configured
in a size and with boundaries that allow for the efficient management
of the area for easement purposes and otherwise promote and enhance
program objectives.
(5) In the case of acreage owned by an Indian Tribe, the NRCS may
enroll acreage into the HFRP which is privately owned by either the
Tribe or an individual.
(d) Ineligible land. The following land is not eligible for
enrollment in the HFRP:
(1) Lands owned by the United States, States, or units of local
government;
(2) Land subject to an easement or deed restriction that already
provides for the protection of fish and wildlife habitat or which would
interfere with HFRP purposes, as determined by NRCS; and
(3) Lands that would not be eligible for HFRP under paragraphs (c)
(1) through (c) (5).
Sec. 625.5 Application procedures.
(a) Sign-up process. As funds are available, the Chief will solicit
project proposals from the State Conservationist. The State
Conservationist may consult with other agencies at the State, Federal,
and local levels to develop proposals. The State Conservationist will
submit the proposal(s) to the Chief for funding selection. Upon
selection for funding, the State Conservationist will issue a public
sign-up notice which will announce and explain the rationale for
decisions based on the following information:
(1) The geographic scope of the sign-up;
(2) Any additional program eligibility criteria that are not
specifically listed in this part;
(3) Any additional requirements that participants must include in
their HFRP applications that are not specifically identified in this
part;
(4) Information on the priority order of enrollment for funding;
(5) An estimate of the total funds NRCS expects to obligate during
a given sign-up; and
(6) The schedule for the sign-up process, including the deadline(s)
for applying.
(b) Application for participation. To apply for enrollment through
an easement, 30-year contract, or 10-year cost-share agreement, a
landowner must submit an application for participation in the HFRP
during an announced period for such sign-up.
(c) Preliminary agency actions. By filing an application for
participation, the applicant consents to an NRCS representative
entering upon the land for purposes of determining land eligibility,
and for other activities that are necessary or desirable for the NRCS
to make offers of enrollment. The applicant is entitled to accompany an
NRCS representative on any site visits.
(d) Voluntary reduction in compensation. In order to enhance the
probability of enrollment in HFRP, an applicant may voluntarily offer
to accept a lesser payment amount than is being offered by NRCS. Such
offer and subsequent payments may not be less than those rates set
forth in 625.8 and 625.10 of this part.
Sec. 625.6 Establishing priority for enrollment in HFRP.
(a) Ranking considerations. Based on the specific criteria set
forth in a sign-up announcement and the applications for participation,
NRCS, in coordination FWS and NMFS, may consider the following factors
to rank properties:
(1) Estimated conservation benefit to habitat required by
threatened or endangered species listed under Section 4 of the ESA;
(2) Estimated conservation benefit to habitat required by species
not listed as endangered or threatened under Section 4 of the ESA but
that are candidates for such listing, State-listed species, or species
identified by the Chief for special consideration for funding;
(3) Estimated improvement of biodiversity, if enrolled;
(4) Potential for increased capability of carbon sequestration, if
enrolled;
[[Page 1967]]
(5) Availability of contribution of non-federal funds;
(6) Significance of forest ecosystem functions and values;
(7) Estimated cost-effectiveness of the particular restoration
cost-share agreement, contract, or easement, and associated HFRP
restoration plan; and
(8) Other factors identified in an HFRP sign-up notice.
(b) The NRCS may place higher priority on certain forest ecosystems
based regions of the State or multi-State area where restoration of
forestland may better achieve NRCS programmatic and sign-up goals and
objectives.
(c) Notwithstanding any limitation of this part, NRCS may enroll
eligible lands at any time in order to encompass project areas subject
to multiple land ownership or otherwise to achieve program objectives.
Similarly, NRCS may, at any time, exclude otherwise eligible lands if
the participation of the adjacent landowners is essential to the
successful restoration of the forest ecosystem and those adjacent
landowners are unwilling to participate.
(d) If available funds are insufficient to accept the highest
ranked application, and the applicant is not interested in reducing the
acres offered to match available funding, NRCS may select a lower
ranked application that can be fully funded. In cases where HFRP funds
are not sufficient to cover the costs of an application selected for
funding, the applicant may lower the cost of the application by
changing the duration of the easement or agreement or reducing the
acreage offered, unless these changes result in a reduction of the
application ranking score below that of the score of the next available
application on the ranking list.
Sec. 625.7 Enrollment of easements, contracts, and agreements.
(a) Offers of enrollment. Based on the priority ranking, NRCS will
notify an affected landowner of tentative acceptance into the program.
This notice of tentative acceptance into the program does not bind NRCS
or the United States to enroll the proposed project in HFRP, nor does
it bind the landowner to convey an easement, or to contract, or agree
to HFRP activities. The letter notifies the landowner that NRCS intends
to continue the enrollment process on their land unless otherwise
notified by the landowner.
(b) Acceptance of offer of enrollment. An option agreement to
purchase or a restoration cost-share agreement or contract will be
presented by NRCS to the landowner, which will describe the easement,
agreement, or contract area; the easement, agreement, or contract terms
and conditions; and other terms and conditions for participation that
may be required by NRCS.
(c) Effect of the acceptance of the offer (enrollment). After the
option agreement to purchase or restoration cost-share agreement or
contract is executed by NRCS and the landowner, the land will be
considered enrolled in the HFRP. For easements, NRCS will proceed with
various easement acquisition activities, which may include conducting a
survey of the easement area, securing necessary subordination
agreements, procuring title insurance, and conducting other activities
necessary to record the easement or implement the HFRP, as appropriate
for the enrollment option being considered. For restoration cost-share
agreements and contracts the landowner will proceed to implement the
restoration plan with technical assistance and cost-share from NRCS.
(d) Withdrawal of offers. Prior to execution of an option agreement
to purchase, a restoration cost-share agreement, and/or contract
between the United States and the landowner, NRCS may withdraw the land
from enrollment at any time due to lack of availability of funds,
inability to clear title, or other reasons. An option to purchase shall
be void, and the offer withdrawn, if not executed by the landowner
within the time specified.
Sec. 625.8 Compensation for easements and 30-year contracts.
(a) Determination of easement payment rates.
(1) NRCS shall offer to pay not less than 75 percent nor more than
100 percent of the fair market value of the enrolled land during the
period the land is subject to the easement less the fair market value
of the land encumbered by the easement for permanent easements or
easements for the maximum duration allowed under State law.
(2) NRCS shall offer to pay not more than 75 percent of the fair
market value of the enrolled land less the fair market value of the
land encumbered by the easement for 30-year easements or 30-year
contracts.
(b) Acceptance and use of contributions. NRCS may accept and use
contributions of non-federal funds to make payments under this section.
(c) Acceptance of offered easement or 30-year contract
compensation.
(1) NRCS will not acquire any easement or 30-year contract unless
the landowner accepts the amount of the payment that is offered by
NRCS. The payment may or may not equal the fair market value of the
interests and rights to be conveyed by the landowner under the easement
or 30-year contract. By voluntarily participating in the program, a
landowner waives any claim to additional compensation based on fair
market value.
(2) Payments may be made in a single payment or no more than 10
annual payments of equal or unequal size, as agreed to between NRCS and
the landowner.
(d) If a landowner believes they may be eligible for a bargain sale
tax deduction that is the difference between the fair market value of
the easement conveyed to the United States and the easement payment
made to the landowner, it is the landowner's responsibility to discuss
those matters with the Internal Revenue Service. NRCS disclaims any
representations concerning the tax implications of any easement or
cost-share transaction.
(e) Per acre payments. If easement payments are calculated on a per
acre basis, adjustment to stated easement payment will be made based on
final determination of acreage.
(f) Environmental Services Credits for Conservation Improvements.
USDA recognizes that environmental benefits will be achieved by
implementing conservation practices, measures, and activities funded
through HFRP, and that environmental credits may be gained as a result
of implementing activities compatible with the purposes of an HFRP
easement, contract, or restoration agreement. NRCS asserts no direct or
indirect interest on these credits. However, NRCS retains the authority
to ensure the requirements of an HFRP easement, contract, cost-share
agreement, or restoration plan are met consistent with Sec. Sec. 625.9
through 625.13 of this part. Where activities required under an
environmental credit agreement may affect land covered under an HFRP
easement, restoration cost-share agreement, or contract, an amendment
to the restoration agreement or contract, or a compatible use approval
under an easement, may be required and participants are highly
encouraged to request a compatibility assessment from NRCS prior to
entering into such environmental credit agreements.
Sec. 625.9 10-year restoration cost-share agreements
(a) The restoration plan developed under Sec. 625.13 forms the
basis for the 10-year cost-share agreement and its terms are
incorporated therein.
(b) A 10-year cost-share agreement will:
(1) Incorporate all portions of a restoration plan;
(2) Be for a period of 10 years;
[[Page 1968]]
(3) Include all provisions as required by law or statute;
(4) Specify the requirements for operation and maintenance of
applied conservation practices;
(5) Include any participant reporting and recordkeeping
requirements to determine compliance with the agreement and HFRP;
(6) Be signed by the participant;
(7) Identify the amount and extent of cost-share assistance that
NRCS will provide for the adoption or implementation of the approved
conservation treatment identified in the restoration plan; and
(8) Include any other provision determined necessary or appropriate
by the NRCS representative.
(c) Once the participant and NRCS have signed a 10-year cost-share
agreement, the land shall be considered enrolled in HFRP.
(d) The State Conservationist may, by mutual agreement with the
parties to the 10-year cost-share agreement, consent to the termination
of the restoration agreement where:
(1) The parties to the 10-year cost-share agreement are unable to
comply with the terms of the restoration agreement as the result of
conditions beyond their control;
(2) Compliance with the terms of the 10-year cost-share agreement
would cause a severe hardship on the parties to the agreement; or
(3) Termination of the 10-year cost-share agreement would, as
determined by the State Conservationist, be in the public interest.
(e) If a 10-year cost-share agreement is terminated in accordance
with the provisions of this section, the State Conservationist may
allow the participants to retain any cost-share payments received under
the 10-year cost-share agreement in a proportion appropriate to the
effort the participant has made to comply with the restoration
agreement, or, in cases of hardship, where forces beyond the
participant's control prevented compliance with the agreement.
Sec. 625.10 Cost-share payments.
(a) NRCS may share the cost with landowners of restoring land
enrolled in HFRP as provided in the HFRP restoration plan. The HFRP
restoration plan may include periodic manipulation to maximize fish and
wildlife habitat and preserve forest ecosystem functions and values
over time and measures that are needed to provide the Landowner
Protections under section 7(b)(4) or section 10(a)(1) of the ESA,
including the cost of any permit.
(b) Landowner Protections may be made available to landowners
enrolled in the HFRP who agree, for a specified period, to restore,
protect, enhance, maintain, and manage the habitat conditions on their
land in a manner that is reasonably expected to result in a net
conservation benefit that contributes to the recovery of listed species
under the ESA, candidate, or other species covered by this regulation.
These protections operate with lands enrolled in the HFRP and are valid
for as long as the landowner is in compliance with the terms and
conditions of such assurances, any associated permit, the easement,
contract, or the restoration agreement.
(c) If the Landowner Protections, or any associated permit, require
the adoption of a conservation practice or measure in addition to the
conservation practices and measures identified in the applicable HFRP
restoration plan, NRCS and the landowner will incorporate the
conservation practice or measure into the HFRP restoration plan as an
item eligible for cost-share assistance.
(d) Failure to perform planned management activities can result in
violation of the easement, 10-year cost-share agreement, or the
agreement under which Landowner Protections have been provided. NRCS
will work with landowners to plan appropriate management activities.
(e) The amount and terms and conditions of the cost-share
assistance shall be subject to the following restrictions on the costs
of establishing or installing NRCS approved conservation practices or
implementing measures specified in the HFRP restoration plan:
(1) On enrolled land subject to a permanent easement or an easement
for the maximum duration allowed under State law, NRCS shall offer to
pay not less than 75 percent nor more than 100 percent of the average
cost; and
(2) On enrolled land subject to a 30-year easement or 30 year
contract, NRCS shall offer to pay not more than 75 percent of the
average cost.
(f) On enrolled land subject to a 10-year cost-share agreement
without an associated easement, NRCS shall offer to pay not more than
50 percent of the average costs.
(g) Cost-share payments may be made only upon a determination by
NRCS that an eligible conservation practice or measure, or an
identifiable component of the conservation practice has been
established in compliance with appropriate standards and
specifications. Identified conservation practices and measures may be
implemented by the landowner or other designee.
(h) Cost-share payments may be made for the establishment and
installation of additional eligible conservation practices and
measures, or the maintenance or replacement of an eligible conservation
practice or measure, but only if NRCS determines the conservation
practice or measure is needed to meet the objectives of HFRP, and the
failure of the original conservation practices or measures was due to
reasons beyond the control of the landowner.
Sec. 625.11 Easement participation requirements.
(a) To enroll land in HFRP through a permanent easement, an
easement for the maximum duration allowed under State law, or 30-year
enrollment option, a landowner shall grant an easement to the United
States. The easement deed shall require that the easement area be
maintained in accordance with HFRP goals and objectives for the
duration of the term of the easement, including the restoration,
protection, enhancement, maintenance, and management of habitat and
forest ecosystem functions and values.
(b) For the duration of its term, the easement shall require, at a
minimum, that the landowner, and the landowner's heirs, successors and
assignees, shall cooperate in the restoration, protection, enhancement,
maintenance, and management of the land in accordance with the easement
and with the terms of the HFRP restoration plan. In addition, the
easement shall grant to the United States, through the NRCS:
(1) A right of access to the easement area;
(2) The right to permit compatible uses by the landowner of the
easement area, which may include such activities as hunting and
fishing, managed timber harvest, or periodic haying or grazing, if such
use is consistent with the long-term protection and enhancement of the
purposes for which the easement was established;
(3) The right to determine compatible uses on the easement area and
specify the amount, method, timing, intensity, and duration of the
compatible use;
(4) The rights, title, and interest to the easement area as
specified in the conservation easement deed; and
(5) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the easement area.
(c) The landowner shall convey title to the easement which is
acceptable to the NRCS. The landowner shall warrant that the easement
granted to the United States is superior to the rights of all others,
except for exceptions to the title
[[Page 1969]]
which are deemed acceptable by the NRCS.
(d) The landowner shall:
(1) Comply with the terms of the easement;
(2) Comply with all terms and conditions of any associated
agreement or contract;
(3) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the easement in accordance with the
terms of the easement and related agreements;
(4) Have the option to enter into an agreement with governmental or
private organizations to assist in carrying out any landowner
responsibilities on the easement area; and
(5) Agree that each person who is subject to the easement shall be
jointly and severally responsible for compliance with the easement and
the provisions of this part and for any refunds or payment adjustment
that may be required for violation of any terms or conditions of the
easement or the provisions of this part.
Sec. 625.12 30-year contracts.
(a) To enroll land in HFRP through the 30-year contract option, a
landowner shall sign a 30-year contract with NRCS. The contract shall
require that the contract area be maintained in accordance with HFRP
goals and objectives for the duration of the term of the contract,
including the restoration, protection, enhancement, maintenance, and
management of habitat and forest ecosystem functions and values.
(b) For the duration of its term, the 30-year contract shall
require, at a minimum, that the landowner, and the landowner's
assignees, shall cooperate in the restoration, protection, enhancement,
maintenance, and management of the land in accordance with the contract
and with the terms of the HFRP restoration plan. In addition, the
contract shall grant to the United States, through the NRCS:
(1) A right of access to the contract area;
(2) The right to allow such activities by the landowner as hunting
and fishing, managed timber harvest, or periodic haying or grazing, if
such use is consistent with the long-term protection and enhancement of
the purposes for which the contract was established;
(3) The right to specify the amount, method, timing, intensity, and
duration of the activities listed in paragraph (b)(2) of this section,
as incorporated into the terms of the contract; and
(4) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the contract area.
(c) The landowner shall:
(1) Comply with the terms of the contract;
(2) Comply with all terms and conditions of any associated
agreement or contract;
(3) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the contract area in accordance with the
terms of the contract and related agreements.
(d) A 30-year contract will:
(1) Be signed by the participant;
(2) Identify the amount and extent of cost-share assistance that
NRCS will provide for the adoption or implementation of the approved
conservation treatment identified in the restoration plan; and
(3) Include any other provision determined necessary or appropriate
by the NRCS representative.
(e) Once the landowner and NRCS have signed a 30-year contract, the
land shall be considered enrolled in HFRP.
Sec. 625.13 The HFRP restoration plan development and landowner
protections.
(a) The development of the HFRP restoration plan shall be made
through an NRCS representative, who shall confer with the program
participant and with the FWS and NMFS, as appropriate.
(b) The HFRP restoration plan shall specify the manner in which the
enrolled land under easement, 30-year contract, or 10-year cost-share
agreement shall be restored, protected, enhanced, maintained, and
managed to accomplish the goals of the program.
(c) Eligible restoration practices and measures may include land
management, vegetative, and structural practices and measures that will
restore and enhance habitat conditions for listed species, candidate,
State-listed, and other species identified by NRCS for special funding
consideration. To the extent practicable, eligible practices and
measures will improve biodiversity and increase the sequestration of
carbon. NRCS, in coordination with FWS and NMFS, will determine the
conservation practices and measures. NRCS will determine payment rates
and cost-share percentages within statutory limits that will be
available for restoration. A list of eligible practices will be
available to the public.
(d) Landowner Protections. An HFRP participant who enrolls land in
HFRP and whose conservation treatment results in a net conservation
benefit for listed, candidate, or other species. A participant may
request such Landowner Protections as follows:
(1) Incidental Take Authorization.
(i) NRCS will extend to participants the incidental take
authorization received by NRCS from FWS or NMFS through biological
opinions issued as part of the interagency cooperation process under
section 7(a)(2) of the ESA;
(ii) NRCS will provide assurances, as a provision of the
restoration plan, that when a participant is provided authorization for
incidental take of a listed species, NRCS will not require management
activities related to that species to be undertaken in addition to or
different from those specified in the restoration plan without the
participant's consent;
(iii) Provided the landowner has acted in good faith and without
intent to violate the terms of the HFRP restoration plan, NRCS will
pursue all appropriate options with the participant to avoid
termination in the event of the need to terminate an HFRP restoration
plan that is being properly implemented; and
(iv) If the 30-year contract or 10-year restoration cost-share
agreement is terminated, any requested assurances, including an
incidental take authorization under this section, provided by NRCS will
be voided. As such, the landowner will be responsible to FWS or NMFS
for any violations of the ESA.
(2) SHA or CCAA.
(i) NRCS will provide technical assistance to help participants
design and use their HFRP restoration plan for the dual purposes of
qualifying for HFRP financial assistance and as a basis for entering
into a SHA or CCAA with FWS or NMFS and receiving an associated permit
under section 10(a)(1)(a) of the ESA.
(ii) All SHAs and associated permits issued by FWS or NMFS are
subject to the Safe Harbor Policy jointly adopted by FWS and NMFS
according to the regulations at 64 FR 32717 or applicable subsequently
adopted policy, and SHAs with FWS also are subject to regulations at 50
CFR 17.22(c) for endangered species or 50 CFR 17.32(c) for threatened
species, or applicable subsequent regulations.
(iii) All CCAAs and associated permits issued by FWS or NMFS are
subject to the CCAAs policy jointly adopted by FWS and NMFS according
to the regulations at 64 FR 32706 or applicable subsequently adopted
policy, and Candidate Conservation Agreements with Assurances with FWS
also are subject to regulations at 50 CFR 17.22(d) for endangered
species or 50 CFR 17.32(d) for threatened species, or applicable
subsequent regulations.
[[Page 1970]]
(iv) If the 30-year contract or 10-year restoration cost-share
agreement is terminated, the landowner will be responsible to notify
and coordinate with FWS and NMFS, as appropriate, for any modifications
related to the SHA or CCAA.
Sec. 625.14 Modification of the HFRP restoration plan.
The State Conservationist may approve modifications to the HFRP
restoration plan that do not modify or void provisions of the easement,
contract, restoration agreement, or Landowner Protections, and are
consistent with applicable law. NRCS may obtain and receive input from
the landowner and coordinate with FWS and NMFS to determine whether a
modification is justified. Any HFRP restoration plan modification must
meet HFRP program objectives, and must result in equal or greater
wildlife benefits and ecological and economic values to the United
States. Modifications to the HFRP restoration plan which are
substantial and affect provisions of the easement, contract,
restoration cost-share agreement, or Landowner Protections will require
agreement from the landowner, FWS or NMFS, as appropriate, and may
require execution of an amended easement, contract, and 10-year
restoration cost-share agreement and modification to the protections
afforded by the safe harbor assurances.
Sec. 625.15 Transfer of land.
(a) Offers voided prior to enrollment. Any transfer of the property
prior to the applicant's acceptance into the program shall void the
offer of enrollment. At the option of the State Conservationist, an
offer can be extended to the new landowner if the new landowner agrees
to the same or more restrictive easement, agreement, and contract terms
and conditions.
(b) Actions following transfer of land.
(1) For easements or 30-year contracts with multiple annual
payments, any remaining payments will be made to the original landowner
unless NRCS receives an assignment of proceeds.
(2) Eligible cost-share payments shall be made to the new landowner
upon presentation of an assignment of rights or other evidence that
title has passed.
(3) Landowner protections shall be available to the new landowner
and the new landowner shall be held responsible for assuring completion
of all measures and conservation practices required by the contract,
deed, and incidental take permit.
(4) If a SHA or CCAA, is involved, the previous and new landowners
may coordinate with FWS or NMFS, as appropriate, to transfer the
agreement and associated permits and assurances.
(5) The landowner and NRCS may agree to transfer a 30-year
contract. The transferee must be determined by NRCS to be eligible to
participate in HFRP and must assume full responsibility under the
contract, including operation and maintenance of all conservation
practices and measures required by the contract.
(c) Claims to payments. With respect to any and all payments owed
to a person, the United States shall bear no responsibility for any
full payments or partial distributions of funds between the original
landowner and the landowner's successor. In the event of a dispute or
claim on the distribution of cost-share payments, NRCS may withhold
payments without the accrual of interest pending an agreement or
adjudication on the rights to the funds.
Sec. 625.16 Violations and remedies.
(a) Easement Violations.
(1) In the event of a violation of the easement or any associated
agreement involving a landowner, the landowner shall be given
reasonable notice and an opportunity to voluntarily correct the
violation within 30 days of the date of the notice, or such additional
time as the State Conservationist determines is necessary to correct
the violation.
(2) Notwithstanding paragraph (a)(1) of this section, NRCS reserves
the right to enter upon the easement area at any time to remedy
deficiencies or easement violations. Such entry may be made at the
discretion of NRCS when such actions are deemed necessary to protect
important listed species, candidate species, and forest ecosystem
functions and values or other rights of the United States under the
easement. The landowner shall be liable for any costs incurred by the
United States as a result of the landowner's negligence or failure to
comply with easement or contractual obligations.
(3) In addition to any and all legal and equitable remedies as may
be available to the United States under applicable law, NRCS may
withhold any easement and cost-share payments owed to landowners at any
time there is a material breach of the easement covenants, associated
restoration agreement, or any associated contract. Such withheld funds
may be used to offset costs incurred by the United States in any
remedial actions or retained as damages pursuant to court order or
settlement agreement.
(4) The United States shall be entitled to recover any and all
administrative and legal costs, including attorney's fees or expenses,
associated with any enforcement or remedial action.
(b) 30-year Contract and 10-year Cost-Share Agreement Violations.
(1) If the NRCS determines that a participant is in violation of
the terms of a 30-year contract, or 10-year cost-share agreement, or
documents incorporated by reference into the 30-year contract or 10-
year cost-share agreement, the landowner shall be given reasonable
notice and an opportunity to voluntarily correct the violation within
30 days of the date of the notice, or such additional time as the State
Conservationist determines is necessary to correct the violation. If
the violation continues, the State Conservationist may terminate the
30-year contract or 10-year cost-share agreement.
(2) Notwithstanding the provisions of paragraph (b)(1) of this
section, a 10-year cost-share agreement or 30-year contract termination
is effective immediately upon a determination by the State
Conservationist that the participant has: Submitted false information;
filed a false claim; engaged in any act for which a finding of
ineligibility for payments is permitted under this part; or taken
actions NRCS deems to be sufficiently purposeful or negligent to
warrant a termination without delay.
(3) If NRCS terminates a 10-year cost-share agreement or 30-year
contract, the participant will forfeit all rights for future payments
under the 10-year cost-share agreement or 30-year contract, and must
refund all or part of the payments received, plus interest, and
liquidated damages.
(4) When making any 30-year contract or 10-year cost-share
agreement termination decisions, the State Conservationist may provide
equitable relief in accordance with 7 CFR part 635.
Sec. 625.17 Payments not subject to claims.
Any cost-share, contract, or easement payment or portion thereof
due any person under this part shall be allowed without regard to any
claim or lien in favor of any creditor, except agencies of the United
States Government.
Sec. 625.18 Assignments.
Any person entitled to any cash payment under this program may
assign the right to receive such cash payments, in whole or in part.
Sec. 625.19 Appeals.
(a) A person participating in the HFRP may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal
[[Page 1971]]
regulations provided in 7 CFR parts 11 and 614.
(b) Before a person may seek judicial review of any administrative
action concerning eligibility for program participation under this
part, the person must exhaust all administrative appeal procedures set
forth in paragraph (a) of this section, and for purposes of judicial
review, no decision shall be a final Agency action except a decision of
the Chief under these procedures.
(c) Any appraisals, market analysis, or supporting documentation
that may be used by NRCS in determining property value are considered
confidential information, and shall only be disclosed as determined at
the sole discretion of NRCS in accordance with applicable law.
(d) Enforcement actions undertaken by NRCS in furtherance of its
federally held property rights are under the jurisdiction of the
Federal District Court and are not subject to review under
administrative appeal regulations.
Sec. 625.20 Scheme and device.
(a) If it is determined by NRCS that a person has employed a scheme
or device to defeat the purposes of this part, any part of any program
payment otherwise due or paid such person during the applicable period
may be withheld or be required to be refunded with interest thereon, as
determined appropriate by NRCS.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for
10-year cost share agreements, contracts, or easements for the purpose
of obtaining a payment to which a person would otherwise not be
entitled.
(c) A person who succeeds to the responsibilities under this part
shall report in writing to NRCS any interest of any kind in enrolled
land that is held by a predecessor or any lender. A failure of full
disclosure will be considered a scheme or device under this section.
Arlen L. Lancaster,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. E9-506 Filed 1-13-09; 8:45 am]
BILLING CODE 3410-16-P