[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Rules and Regulations]
[Pages 49358-49368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24768]
[[Page 49357]]
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Part III
Department of Agriculture
_______________________________________________________________________
Natural Resources Conservation Service
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7 CFR Part 636
Wildlife Habitat Incentives Program; Final Rule
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 636
RIN 0578-AA21
Wildlife Habitat Incentives Program
AGENCY: Natural Resources Conservation Service, United States
Department of Agriculture.
ACTION: Final rule.
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SUMMARY: The Natural Resources Conservation Service is issuing a final
rule for the Wildlife Habitat Incentives Program (WHIP). A proposed
rule for WHIP was published in the Federal Register on December 13,
1996 (61 FR 65485) and comments were solicited from the public. This
final rule establishes the process by which NRCS will administer WHIP,
responds to comments received from the public during the 45-day comment
period, and incorporates clarifications to improve implementation of
the program.
EFFECTIVE DATE: September 19, 1997.
ADDRESSES: This final rule may be accessed via Internet. Users can
access the Natural Resources Conservation Service (NRCS) homepage at
http://www.ftw.nrcs.usda.gov; select 1996 Farm Bill Conservation
Programs from the menu.
FOR FURTHER INFORMATION CONTACT: Warren M. Lee, Director, Watersheds
and Wetlands Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, DC 20013-2890. 202-720-3534. Fax: 202-720-2143.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The Office of Management and Budget (OMB) determined that this
final rule is significant and was reviewed by OMB under Executive Order
12866. Pursuant to section 6(a)(3) of Executive Order 12866, NRCS
conducted a benefit-cost assessment of the potential impacts associated
with this proposed rule and concluded from the benefit-cost assessment
that the overall impacts of WHIP will be beneficial. NRCS determined
that the development of partnerships to provide expert technical
assistance will ensure customers are afforded the best opportunity for
success. In this manner, NRCS believes that WHIP will provide for
wildlife habitat, help improve the quality of life for participants,
and have a neutral to positive impact on local economies. Copies of the
benefit-cost assessment are available upon request from Jeanne
Christie, Program Manager, Watersheds and Wetlands Division, Natural
Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-
2890.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because NRCS is not required by 5 U.S.C. 533 or any other provision of
law to publish a notice of proposed rulemaking with respect to the
subject matter of this rule.
Environmental Analysis
It has determined through an amendment to the ``Environmental
Assessment for the Wildlife Habitat Incentives Program, August 22,
1996'' that the issuance of this final rule will not have a significant
effect on the human environment. Copies of the Environmental
Assessment, the amendment, and the finding of no significant impact may
be obtained from Jeanne Christie, Watersheds and Wetlands Division,
Natural Resources Conservation Service, P.O. Box 2890, Washington, DC
20013-2890.
Paperwork Reduction Act
No substantive changes have been made in this final rule which
affect the recordkeeping requirements and estimated burdens previously
reviewed and approved under OMB control number 0560-0174. The
recordkeeping requirements and estimated burdens for WHIP were
transferred to OMB control number 0578-0013.
Executive Order 12988
This final has been reviewed in accordance with Executive Order
12988. The provisions of this final rule are not retroactive.
Furthermore, the provisions of this final rule preempt State and local
laws to the extent such laws are inconsistent with this final 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.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Pub. L. 104-4, NRCS assessed the effects of this rulemaking action on
State, local, and tribal governments, and the public. This action does
not compel the expenditure of $100 million or more by any State, local,
or tribal governments, or anyone in the private sector; therefore a
statement under section 202 of the Unfunded Mandates Reform Act of 1995
is not required.
Discussion of Program
The Federal Agriculture Improvement and Reform Act of 1996 (the
1996 Act) (Pub. L. 104-127, April 4, 1996) provides authority for
several conservation programs. Section 387 of the 1996 Act authorizes
the Wildlife Habitat Incentives Program (WHIP) under the supervision of
the NRCS. The primary purpose of WHIP is to help landowners ``develop
upland wildlife, wetland wildlife, threatened and endangered species,
fish, and other types of wildlife habitat.''
Section 387 of the 1996 Act provides that up to $50 million is
available to implement WHIP. These funds were formerly available to
implement the Conservation Reserve Program, 16 U.S.C. 3831-3836. WHIP
will be under the general supervision and direction of the Chief of
NRCS.
Through WHIP, NRCS will utilize CCC funds to provide cost-share
assistance to those landowners who wish to integrate wildlife
considerations into the overall management of their operations, or who
simply desire to do more for wildlife. NRCS will implement WHIP in
harmony with other programs to achieve more comprehensive advancement
of wildlife objectives.
WHIP offers an opportunity to encourage development of improved
wildlife habitat on eligible lands. As participants make decisions
about the wildlife habitat development plan for their land, they will
gain a greater awareness about their farming and ranching activities.
NRCS believes that the efforts made by participants in this program
will serve as a catalyst for improving wildlife conditions throughout
the Nation.
On December 13, 1996, a proposed rule was published with request
for comments. The proposed rule described the program requirements,
administrative processes, and eligibility criteria that NRCS would use
to implement WHIP. Nearly 53 individual responses containing about 377
specific comments were received during the 45-day comment period: 5
from agricultural organizations; 19 from environmental organizations;
18 from State and local agencies; and, 11 from individuals and other
organizations.
Additional responses were received from Federal agencies and
employees, but are not included in the following analysis of public
comments. These responses are being treated as inter-and intra-agency
comments and are being considered along with the public comments where
appropriate.
All comments received are available for review at United States
Department
[[Page 49359]]
of Agriculture, Room 6029-S, South Building, 14th and Independence
Ave., SW., Washington, DC., during regular business hours (8 a.m. to 5
p.m.) Monday through Friday.
Analysis of Public Comment
Overall, almost all respondents expressed appreciation with the
proposed rule and the various means by which the public could comment.
Many offered valuable suggestions for improving or clarifying specific
sections of the proposed rule. Some of these suggestions were group
efforts, whereas individual responses used similar or identical
language to identify and describe their interests, concerns, and
recommended modifications to the proposed rule.
The majority of comments centered on six major issues: the ranking
of projects; practices that required recurring implementation; cost-
share provisions; length of the contract; plan development; and, land
eligibility. Several comments either commended or criticized specific
statutory requirements. These comments were considered as part of the
rulemaking record to the extent that they were relevant to the
provisions of the rulemaking. Numerous minor editorial and other
changes in the text were suggested; these comments are not included in
the following analysis but all were considered, and many of the minor
changes were included in the final rule.
General Comments on 7 CFR Part 1470
Under the proposed rule, NRCS proposed to set out WHIP regulations
in CFR title 7, part 1470. However, NRCS later determined that it is
more appropriate to include the final rule in part 636. Therefore, NRCS
organized the comments according to the section number as found in the
proposed rule but in its responses provided the new section number as
found in the final rule where appropriate. The following summarizes
comments received on the proposed rule and NRCS' response to them.
1. Preamble Language in the Proposed Rule
Comment. Thirty-six comments expressed support for the WHIP program
as proposed. Of these, 10 comments indicated that there were existing
wildlife problems which WHIP could address. These wildlife problems
varied across the country. Four comments expressed concern that the
preamble did not give sufficient emphasis to the decline of wildlife
species in the southeast, while three other comments indicated that
wildlife has already benefited from existing USDA programs.
Response. In the preamble to the proposed rule, NRCS did not intend
to provide an exhaustive description of the various wildlife declines
that each region has experienced or how programs of the Department have
helped to stem these declines. The NRCS recognizes that there exist
special wildlife concerns all across the country and hopes that
programs such as WHIP will help reverse these troubling trends.
Comment. Eight comments supported using partnerships to implement
WHIP. Four comments recommended that procedures should be kept simple
and that USDA should try to maximize landowner participation.
Response. The NRCS appreciates these comments and will adopt the
recommendations when possible. In developing the program, the NRCS
determined that a simple and flexible approach could best meet the
varied wildlife concerns that exist across the country. The final rule
provides the necessary flexibility to accommodate input from the
landowner and to obtain assistance from other entities with wildlife
expertise, and to address specific wildlife concerns.
Privacy
Comment. Nine comments focused on concern over privacy issues. Four
comments stated that pre-cost-share agreement information should be
confidential--specifically, if the cost-share agreement is not later
awarded. Two suggested that participants should be able to terminate
the cost-share agreement if the NRCS violated confidentiality with no
obligation to return dollars already expended. Two comments supported
full disclosure of all partners who would be involved in the cost-share
agreement prior to obtaining final signatures. Three comments requested
that the participant receive notification regarding any site visits by
any partners and access to any information gathered during the site
visit. One comment stated that the WHIP plan and cost-share agreement
should not be subject to FOIA or used in an environmental audit as part
of discovery.
Response. The public's concern with the confidentiality of
information made available to NRCS in connection with WHIP is
understandable. There is significant apprehension that compliance with
applicable Federal Statutes may hinder some uses of private lands.
NRCS' policy is to not release information obtained from WHIP
applicants or participants to other members of the public or other
Federal agencies unless required to do so by law. In practice, this
means that NRCS will not contact other Federal agencies offering
information it obtains from WHIP participants or regarding the
participant's land.
NRCS may be required to release information about threatened and
endangered or listed species or critical habitat pursuant to a request
made under the Freedom of Information Act or as part of NRCS'
Endangered Species Act (ESA) compliance requirements. In deciding
whether to participate in WHIP, prospective applicants will need to
consider whether the benefits of participating in the program outweigh
the concern that the potential release of information to the public
about listed species or habitat may lead to a legally mandated
restriction of any degree on the participant's land. NRCS will disclose
to WHIP applicants all public and private entities that may be involved
in a partnership in administering WHIP in a particular area.
Notification to prospective participants concerning the involvement
of partnership organizations will generally occur as part of the
application and planning process before NRCS enters into a cost-share
agreement with the applicant. After the cost-share agreement is signed,
NRCS will attempt to contact the participant before follow-up site
visits occur.
ESA and related Federal Law
Comment. Fifteen comments addressed the relationship of WHIP to
other Federal laws and regulations, 13 of these comments were directed
to concerns over compliance with the ESA. Two other comments raised
concerns that ESA compliance requirements could be triggered by the
identification of endangered species on an applicant's land, while two
different comments recommended that lands under contract with WHIP
should not be subject to ESA. Two comments stated that at the
conclusion of the contract participants should be allowed to return to
pre-contract conditions without regard to provisions of the ESA,
section 404 of the Clean Water Act (CWA) or any related laws, rules, or
regulations. Five comments suggested that WHIP should not be
implemented in critical habitats for threatened and endangered species
absent safe harbor agreement with the Fish and Wildlife Service, while
one comment suggested that such a safe harbor agreement should be
included as a component of the WHIP cost-share agreement. Even so, one
comment raised the concern that the rule failed to address incidental
take permits and
[[Page 49360]]
related ESA matters. The remaining three comments discussed the
relationship to section 404 of the CWA and the ineligibility provisions
for USDA programs under the Food Security Act of 1985, as amended.
Response. The public's interest in the relationship between WHIP
and other environmental statutes, particularly the Endangered Species
Act (ESA), is understandable in light of the public's general interest
in and concern about endangered species and WHIP's goal of developing
wildlife habitat. The United States Fish and Wildlife Service (FWS) is
responsible for administering the ESA and the Army Corps of Engineers
and Environmental Protection Agency is responsible for administering
section 404 of the CWA. Questions regarding the applicability of these
statutes to a WHIP participant's land, including questions about the
application of the statutes after a WHIP cost-share agreement expires,
should be addressed to the agency responsible for the statute. However,
NRCS intends to provide assistance to persons interested in WHIP and
therefore, offers to facilitate discussion with the applicable agency
when asked.
NRCS has no authority to issue safe harbor agreements for an
individual's land or issue incidental take permits (`incidental take
permits' allow for the incidental take of species or habitat incidental
to a Habitat Conservation Plan and section 10 of ESA). Therefore, NRCS
will refer applicants to the FWS on these important issues. NRCS will
satisfy its consultation responsibilities as required by ESA.
The WHIP will reflect a concern for threatened and endangered
species by providing for the termination of any WHIP cost-share
agreement if the participant unlawfully adversely modifies critical
habitat or otherwise harms a threatened or endangered species. The
adverse action may involve an area on the participant's farm that is
outside the site of habitat development specified in the cost-share
agreement. Section 636.11 of the final rule provides for cost-share
agreement termination if the State Conservationist determines that the
termination is in the public interest. NRCS believes it is in the
public's interest to terminate a WHIP cost-share agreement when the
program participant unlawfully harms a threatened or endangered
species.
NRCS will also support threatened or endangered species through
WHIP by not approving a cost-share agreement for a practice that may
help one threatened or endangered species but harm another.
Funding
Comment. The NRCS received thirteen comments on the subject of WHIP
program funding. These comments did not focus on any particular aspect
of funding but included such varied topics as the availability of
technical assistance moneys to NRCS and non-USDA entities, the policy
option to obligate the majority of WHIP program funds over the next two
years, and the suggested ability of NRCS to set a $5000 cap per year
per contract. One comment recommended that habitat conservation plans
receive priority for threatened and endangered species funding. One
comment suggested that conservation partners should donate technical
assistance. Another comment advised that NRCS should spend WHIP funds
on implementation of cost-share practice and not on technical
assistance.
Response. The NRCS did not address funding matters in the rule.
However, as a policy matter the NRCS recognizes the importance of using
WHIP funds to implement wildlife habitat practices that yield real
benefits for wildlife. NRCS will also work with other public and
private wildlife interests to provide assistance for the program from
other resources. This may include both technical assistance and funding
where there are voluntary and mutual interests between program
applicants, partners, and the NRCS. In addition, the 1996 Act provided
that $50,000,000 shall be made available to carry out WHIP. The NRCS
intends to distribute these funds to priority projects that maximize
environmental returns and participation in the program. Therefore, the
NRCS does not anticipate a need to set a $5000 per year limitation,
especially given the projected high demand for program funding.
However, NRCS does anticipate that most cost-share agreements will cost
less than $10,000 and will only enter in a cost-share agreement in
excess of that amount if superior wildlife habitat benefit warrants
greater Federal investment.
Paperwork Reduction Act
Comment. The Department received three comments on the Paperwork
Reduction Act during the public comment period for the proposed rule.
These comments expressed concern regarding: the level of bureaucracy
involved with the local work groups; the need to simplify the
paperwork; and that a greater amount of technical assistance will be
needed to implement the program.
Response. The NRCS has striven to simplify the process for the
participant by only requiring the minimum of paperwork, assuming most
of the administrative burden, and providing flexibility to incorporate
the Wildlife Habitat Development Plan (WHDP) into other conservation
plans that the participant may have. Based on the information currently
available, NRCS believes that its recordkeeping and reporting burden
estimates are valid, but will re-evaluate their accuracy after the
program is fully implemented.
2. Section-by-Section Comments on 7 CFR Part 1470
Several modifications to improve the clarity of the rule have
resulted in some of the section numbers being redesignated in the final
rule. The following discussion of the public comments relates to the
section numbers as indicated in the proposed rule.
Section 1470.1 Applicability
Comment. One comment supported the purpose of WHIP to ``help
participants develop habitat for upland wildlife, wetland wildlife,
threatened and endangered species, fish and other types of wildlife.''
Response. The purpose stated in the rule mirrors the statutory
purposes. The NRCS welcomes the opportunity to work with landowners to
improve wildlife habitats throughout the nation.
Section 1470.2 Administration
Comment. Under the proposed rule, section 1470.2 addressed the
general framework for WHIP implementation. The NRCS received 28
comments on this section. Ten of these comments expressed support for
the utilization of cooperative agreements with other entities with
interests in wildlife habitat while one comment disapproved of the use
of such arrangements. Three comments suggested the NRCS clarify whether
non-profit organizations or other entities could enter into agreements
under WHIP. One comment wanted the NRCS to delegate implementation
authority for the program to a State agency.
Response. The NRCS believes that the opportunity to work with other
Federal agencies, local and State partners, and the private sector,
will improve delivery of the program. The language in the proposed rule
encompassed many types of organizations who have wildlife concerns,
including non-profit organizations, land trusts, and hunting clubs. The
final rule language has been simplified regarding these agreements.
Comment. The NRCS received two other comments related to
cooperative agreements: one comment
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recommended that the rule expressly provide for agreements which
reimburse partners for salaries and expenses; and the other comment
recommended that a one-to five year time frame for agreements be
included in the rule.
Response. Any agreement the NRCS enters into must be in accordance
with the appropriate authorities.
Comment. Six comments supported a strong role for the State
Technical Committees, while two other comments supported review of
State Technical Committee membership by the NRCS National Office, and
two other comments recommended particular agencies for membership on
the State Technical Committee.
Response. Section 3861 of Title 16 of the United States Code
authorizes the establishment of State Technical Committees, describes
their advisory role, and describes the entities eligible to participate
on such a committee. NRCS intends to publish a rule on the structure
and purpose of the State Technical Committees in a separate rulemaking,
and shall consider these recommendations regarding committee
representation as it develops that rule.
Comment. One comment expressed concern that Habitat Conservation
Plans were not explicitly mentioned in this section.
Response. The term ``habitat conservation plan'' is a term of art
recognized under the ESA. As described above, the NRCS does not have
enforcement authority under the ESA and does not want to create any
confusion between such plans and the plans developed under WHIP. The
WHIP participant may use one plan or another method to satisfy this
requirement under both statutes.
Section 1470.3 Definitions
There were seven comments received on this section.
Authorized CCC Representative
Comment. One comment recommended adding a definition for this term
in the rule.
Response. The CCC is a government-owned and operated corporation,
chartered in the 1930s to help stabilize and support farm prices and
income, and to maintain balanced supplies and orderly distribution of
agricultural commodities. The 1996 Act expanded the mission of the CCC
to include the power to carry out conservation or environmental
programs authorized by law.
Although CCC will provide most of the funds to implement the
program, the NRCS has the administrative responsibility to manage the
program. The term ``authorized CCC representative'' has been removed
from the final rule.
Conservation Plan
Comment. One comment wanted this term defined within the rule and
clarification of its role in WHIP relative to other NRCS programs.
Response. The NRCS added a definition for ``conservation plan'' in
the final rule. However, the term ``Wildlife Habitat Development Plan
(WHDP)'', as found in this rule, can constitute an entire conservation
plan if the participant does not intend to implement any non-WHIP
practices, or the WHDP can constitute a component of a conservation
plan for a larger management unit or a broader set of conservation
activities under other programs.
Habitat Development
Comment. One comment wanted to narrow this definition based on the
assumption that a broader definition makes targeting more difficult.
Response. The NRCS believes that a broad definition is necessary to
encompass the range of possible program opportunities that merit
funding. Therefore, no change has been made to this definition.
Wildlife
Comment. Four comments were received indicating that this
definition should be changed. One of these comments suggested adding
amphibians and three of these comments recommended a less inclusive
definition while adding a definition for ``wildlife habitat''.
Response. The NRCS agrees with these recommendations and has
modified the definition for ``wildlife'' in the final rule to mean
``birds, fishes, reptiles, amphibians, invertebrates, and mammals,
along with all other animals' and has added a new definition for
``wildlife habitat'' to mean ``the aquatic and terrestrial environments
required for wildlife to complete their life cycles, including air,
food, cover, water, and spatial requirements.''
Cost-Share Agreement
To better reflect the nature of the relationship between NRCS and a
participant, the term ``contract'' has been changed to ``cost-share
agreement.''
Section 1470.4 Program requirements.
Section 1470.4 (a):
Comment. There were 19 comments regarding the length of contracts.
Ten comments supported the terminology within the proposed for a 10-
year minimum. One of these comments supported allowing cost-share
agreements to extend up to 15 years, similar to an existing state
wildlife program, and another of these comments supported perpetual
cost-share agreements. Nine comments supported shorter time-spans. Of
these, seven supported annual cost-share agreements and one comment
recommended tying the life of the practice to the length of the cost-
share agreements, as appropriate, ranging from three to five to ten
years.
Response. The NRCS decided to provide greater flexibility in the
length of the cost-share agreement. Therefore, the rule has been
revised to provide for cost-share agreement lengths of five to ten
years and in special emergency circumstance to provide the flexibility
to enter into one-year cost-share agreements. From a wildlife
standpoint, the longer wildlife habitat is retained on the landscape,
the greater the wildlife benefits. While certain wildlife species such
as birds, can find alternative nesting sites, many wildlife species are
much less mobile and will not be able to relocate. Even many bird
species display a strong preference for returning to the same site year
after year. Therefore, NRCS will continue to place priority on working
with applicants who express an interest in long-term cost-share
agreements. However, the cost-share agreement period applies to the
time that it takes to install a practice or practices and verify that
they have been successfully installed. For certain wildlife practice or
combinations of wildlife practices it may not require 10 years to
achieve desired benefits. In all cases, after completion of the cost-
share agreement period, program participants will still be required to
be in compliance with an associated operations and maintenance
agreement to maintain the WHIP practice or practices for the life of
each practice. Practice life varies, and may or may not extend beyond
the actual cost-share agreement period, but for some practices such as
impoundment structures, practice lifespans can range up to 20 or 30
years. This operations and maintenance agreement is consistent with the
way other Departmental programs, such as the Agriculture Conservation
Program, Great Plains Conservation Program, and Colorado River Basin
Salinity Control Programs operated in the past. All of these programs
had wildlife components. The NRCS believes the five to ten year cost-
share agreement period is appropriate because it allows NRCS to monitor
the wildlife practices on an annual basis for
[[Page 49362]]
the first several years after the practice is installed and thus
evaluate whether they are providing the benefits anticipated. Wildlife
management is complex; wildlife science is changing as our
understanding of wildlife and its interactions increase. Successful
implementation of wildlife habitat practices requires ongoing
monitoring and the ability to respond by modifying the agreement where
appropriate and acceptable to the parties involved.
In addition, an emergency event may necessitate NRCS's quick
intervention to minimize or remove a threat to critical wildlife
habitat. For example, wildlife populations threatened with overcrowding
and disease because of a severe drought might require the
implementation of habitat practices which ameliorate the drought's
immediate and deleterious impacts. An emergency practice, such as the
pumping of water, may need to be in place for only one year to realize
its wildlife habitat goals, and therefore a five to ten-year cost-share
agreement requirement would eliminate such a critical opportunity from
funding.
NRCS believes it would prove more cost-effective to undertake
short-term practices which prevent the loss of wildlife habitat and
wildlife populations, than to undertake the expense of subsequent
efforts which would attempt to re-establish wildlife populations. This
concern applies particularly to wildlife species already in decline and
under consideration for nomination as a candidate, threatened or
endangered species listing under the Endangered Species Act.
NRCS anticipates the application of this provision will only occur
on a very limited basis. The State Conservationist, in consultation
with the State Technical Committee, must identify the existence of a
wildlife emergency and request authority from the Chief, or designee,
to enter into agreements for periods shorter than 5 years. If approved,
the State Conservationist may enter into emergency agreements during a
six-month time period. If there is a continuing need to enter into
agreements after the six-months has elapsed, then the State
Conservationist may request a six-month extension.
NRCS incorporated the ability to respond to emergencies into this
final rule. To improve the organization and clarity of the final rule,
the WHDP and cost-share agreements were reorganized into separate
sections.
Section 1470.4 (c):
Comment. There were 15 responses to land eligibility requirements.
Eleven comments supported limiting eligible lands primarily or
exclusively to private lands. One comment supported making State lands
ineligible along with Federal lands, while allowing local, tribal, and
private lands to remain eligible.
Response. The NRCS will focus the majority of WHIP funds towards
private lands. However, the NRCS State Conservationist, in consultation
with the State Technical Committee, can allow exceptions where
significant wildlife habitat gains can only be achieved by installing
practices on non-Federal public land. For example, practices for
aquatic habitat restoration may require such an exception because the
State owns the stream or lake bottom. In another case, it may be cost
effective to include State or local lands adjoining or interspersed
with a number of private lands enrolled in WHIP, particularly where
State agencies are providing significant in-kind or monetary resources
to the success of the overall project. In addition, Tribal lands,
regardless of their status in terms of Federal trust lands, continue to
be eligible and Federal lands are eligible in those very limited
circumstances where the benefit is primarily on the private lands, but
must include some Federal land to meet the WHIP objective. Therefore,
this section has been revised to clarify which lands are eligible.
Comment. One comment wanted the NRCS to obtain the State Fish and
Game agency's concurrence on all eligible land determinations. One
respondent requested clarification of whether Federal land is confined
to lands held in title by the U.S. or includes lands held by other
entities but originally purchased with Federal funds. One comment
requested clarification of the term ``other lands'' in
Sec. 1470.4(c)(3).
Response. The final rule provides the flexibility to work with
partners including State Fish and Game agencies in the implementation
of WHIP. Land eligibility determinations are derived from identifying
who holds title to the land. To specifically require concurrence on
eligible land determinations would add unnecessary administrative
complexity to the program without providing a specific benefit. The
term ``other lands'' in Sec. 636.4(c)(3) of the final rule refers to
the other lands offered for enrollment in WHIP at the time the
application is considered or in the future.
Section 1470.5 Application Procedures
Comment. The NRCS received three comments about application
procedures. One comment wanted partners to accept applications for
WHIP, one comment requested that only qualified biological
professionals should make wildlife habitat assessments, and one comment
recommended the release of existing information in a State's Natural
Heritage database to NRCS.
Response. Partners can provide copies of applications to interested
individuals, but should inform such prospective applicants of the need
to contact NRCS to complete and submit final applications. Acceptance
of applications will need a determination of land eligibility that will
generally require a visit to the NRCS field office before the
application can be processed. Persons trained in the appropriate
assessment procedures will conduct all the biological assessments, but
such professionals may not hold a degree in biology. Partners with
biological expertise can provide assessment assistance or information
to NRCS, including non-privileged information such partner may have
regarding the range or habitat requirements of a particular species. No
change was made in the rule in response to these recommendations.
However, Sec. 1470.5 in the proposed rule has been revised and divided
into two sections in the final rule: ``Sec. 636.7, The Wildlife Habitat
Development Plan'' and ``Sec. 636.8, Cost-share Agreements'' to improve
clarity.
Section 1470.6 Establishing Priority for Enrollment in WHIP
Sections 1470.6 (a) and (b):
Comment. The NRCS received 53 comments directed to establishment of
priorities for enrollment in WHIP. Forty-two of these comments
concerned the establishment of State and national priorities while 11
concerned establishment of criteria for evaluating individual
applications. Thirteen comments supported geographic targeting at
either the state or national level as proposed in the rule, while eight
comments opposed geographic targeting but supported instead targeting
by specific wildlife habitats, wildlife species, or wildlife practices.
Three comments supported placing national priorities in the final
rule, while one comment requested clarification about how national
priorities should be developed. Sixteen comments recommended particular
species or habitats for priority treatment: five comments recommended
fish as an equal priority to terrestrial species; seven comments
recommended grassland wildlife habitat in various parts of the country;
three recommend habitats for neotropicals; and one comment recommend
utilizing wellhead protection areas. Three comments stated that State
Fish and Game agencies should establish priorities.
Response. Although the Chief has been given the ability to target
or limit
[[Page 49363]]
the scope of WHIP, the rule states that this is in response to national
and regional needs. These national and regional needs are identified in
part by the NCRS State office in consultation with the State Technical
Committee. Each NRCS State office has the ability to prioritize the
allocation made to its administrative area and has been given the
option of targeting by geographic areas, wildlife habitat types, or
specific wildlife practices.
NRCS intends to allow targeting based upon local priorities through
a locally-led process or by the State Technical Committee, and
therefore, has not included specific national priorities in the final
rule. In the locally-led process, local groups and individuals are
given the ability to identify any wildlife issue of concern,
terrestrial or aquatic. NRCS has explicitly included fish in its
definition of wildlife and believes that fish shall receive priority
treatment in many areas of the country.
WHIP provides an opportunity to prevent declines in wildlife
populations and to achieve stable and diverse wildlife habitats. The
NRCS believes the locally-led process will increase the likelihood of
the program meeting these Federal goals. Throughout the process, NRCS
will gain local knowledge, experience, and expertise from the
participating groups and individuals, and will benefit from their
involvement and commitment to program objectives. The proposed rule set
forth the flexibility for locally-identified priorities and no changes
were made in this regard in the final rule.
Section 1470.6(c):
Comment. Four comments supported the existing criteria found in
section 1470.6(c) with respect to the evaluation of individual
applications. Several comments recommended adding criteria to the list,
including emphasis upon declining species in the context of an
ecosystem approach (three comments); cost-share agreement duration (two
comments); public access for hunting (one comment); threatened and
endangered species habitat (one comment); and net improvement in on-
site wildlife habitat (one comment). Several comments recommended
either removing particular items as priority criteria or caution
regarding the application of existing criteria, including removing
sustainability and maintenance (one comment), cautioning that a
practice that benefits one species may harm other species (one
comment), and removing any priority dependent on the amount of cost-
share provided by the participant (one comment). One comment suggested
that the whole unit of land owned by the applicant must be included in
the WHIP contract to be the eligible for cost share funds.
Response. The NRCS believes that the criteria listed in the
proposed rule adequately focused WHIP funds towards the projects that
will most benefit the habitat needs of wildlife. The criteria in the
rule provides the NRCS with the flexibility to further refine criteria
as appropriate to achieve specific wildlife habitat goals identified as
important in specific areas. This flexibility will allow for the
development of ranking criteria to evaluate applications and to fund
those requests that will best address the specific wildlife concerns
identified by NRCS in consultation with the State Technical Committee
or through the locally led process. The criteria was revised to clarify
that wildlife habitat need was an overriding requirement. No other
additions or deletions were made to the list.
Section 1470.6(d): Comment. One comment recommended deleting this
section because its provisions are already covered in 1470.4.
Response. Though this paragraph refers to eligibility, the
paragraph serves as an administrative tool for eliminating projects
that are technically eligible but do not meet the wildlife habitat
goals of WHIP.
Comment. Another comment cautioned against placing WHIP cost-share
agreements on public land unless special criteria applied such as a
demonstration project.
Response. The NRCS intends to focus WHIP funds on private lands and
will only enroll public lands in special situations, such as aquatic
restoration, where the public land is a small component of a larger
habitat restoration effort, or where there is a direct private benefit.
The language was simplified to better describe the circumstances when
an application could be denied.
Section 1470.7 Cost Share Payments
The NRCS received a total of 97 comments on this section of the
rule.
Section 1470.7 (a): Comment. The NRCS received 13 comments on the
percentage of cost-share provided under WHIP: five comments stated the
cost-share percentage should not exceed 75 percent from any source;
three comments stated the cost-share percentage should not exceed 75
percent from Federal sources; two comments supported the cost-share
provisions in the rule; and, one comment stated that cost-share should
be allowed up to 100 percent. One comment suggested that in-kind
services such as time and labor could count toward the landowners 25
percent cost-share assistance and one comment recommended the
participants should receive graduated payments over the life of the
contract.
Response. The 1996 Act does not allow incentive payments under
WHIP. In response to comments, the final rule is revised to state that
WHIP shall not pay more than 75 percent of the cost for a habitat
development practice. In addition, WHIP payments, in combination with
other direct Federal sources, shall not exceed 75 percent of the cost
for a habitat development practice. For practices that receive funds
directly from other Federal sources, the WHIP cost-share payment shall
be reduced proportionately, except in special cases where circumstances
merit additional cost-share assistance to achieve the intended goals of
the project. Generally, other direct Federal sources such as the Fish
and Wildlife Service's Partners for Wildlife program can contribute
part of the 75 percent maximum direct Federal cost-share assistance.
The 25 percent cost-share assistance can be met from other sources such
as State, private, or nonprofit sources. This assistance may include
in-kind matches from the program participant, but such arrangements
must be worked out in development of the agreement and must be
appropriate to meeting the objectives of the project. The final rule
has been modified so that a participant may receive an incentive
payment for an activity from a different source. The NRCS recognizes it
will not fund some activities that are necessary to the restoration of
a particular habitat, and will not interfere with other organizations
assisting participants in those endeavors.
Section 1470.7(b): Comment. There were many concerns raised
concerning the adequacy of the standards and specifications for
wildlife practices currently used by NRCS. Eleven comments recommended
the State Wildlife Agencies approve wildlife standards and
specifications. In addition, seven comments stated the State Technical
Committees should approve all wildlife practices used in WHIP. Eighteen
comments referred to the NRCS Field Office Technical Guide (FOTG), nine
of which recommended updating the FOTG, one comment suggested adapting
NRCS Technical Notes as eligible wildlife practices in WHIP, and the
remaining eight indicated that some practices in the FOTG should not be
eligible for WHIP. Several other comments identified individual
practices that should be eligible for WHIP, including nesting
platforms, screening diversion channels to enhance water quality,
managing pesticides and nutrients, establishing
[[Page 49364]]
and sustaining biodiversity along field edges and rights of way,
managing early successional grasslands, leaving grain standing in the
field for wildlife, seasonal flooding of cropland for migratory birds,
and establishing crawfish impoundments. One comment suggested
developing WHIP practice guidelines for threatened or endangered
species.
Response. The NRCS National office is adding technical guidance for
the FOTG related to wildlife practices and management. These revisions
include adding a wildlife component to many existing practices and new
specifications designed to aid conservation planning. The NRCS State
Conservationist, in consultation with the State Technical Committee,
can develop interim standards and specifications for practices not
currently in the FOTG. Practices included in WHIP cost-share agreements
should focus on achieving benefits for wildlife, therefore, it is not
necessary to identify practices that are ineligible for WHIP in the
FOTG. NRCS Biological Technical Notes as well as existing standards and
specifications developed by State Wildlife Agencies or other suitable
sources may be used as the basis for developing interim wildlife
practices. The flexibility already exists to address the concerns
described above. Therefore, no changes were made in the final rule.
Comment. Five comments referred to the time frame for cost-share
payments, two of which supported the language as proposed, two of which
requested clarification whether payment will be made prior to or after
the installation of a practice, and one of which suggested prior
payment for limited resource farmers.
Response. As outlined in the proposed rule, cost-share payments
shall be made after the installation of a practice per WHIP
specifications and the submission of appropriate records and receipts.
Although there is no authority in the WHIP statute to offer advance
payments, WHIP payments are assignable to third parties and as such,
are able to be paid directly to vendors providing services. In
addition, many of the partnerships formed at the State level between
NRCS and those interested in having a successful WHIP in their
respective States, provide that certain financial or technical
assistance or services will be provided to participants by the
partners. In some cases, the partners will establish the practice at no
charge to the participant. No changes were made in the final rule in
response to these comments.
Comment. One comment provided that WHIP could provide significant
wildlife habitat improvements if allowed on CRP lands.
Response. The 1996 Act added a wildlife emphasis to the CRP and
provided substantial funds towards implementation. The NRCS does not
believe the limited WHIP funds should be used to obtain wildlife
benefits on acreage enrolled in a program established to achieve
similar benefits.
Section 1470.7 (c): Comment. Ten comments described how many
wildlife habitats require recurring practices (such as prescribed
burning, discing, or mowing) to mimic the natural events that formerly
maintained grassland habitats.
Response. The NRCS recognizes the special management needs of
critical grassland habitats and will provide cost-share for recurring
practices. Therefore, the NRCS has added a definition for ``recurring
practices'' in this final rule and has changed this section to make
funding of recurring practices possible.
Section 1470.7(d): Comment. The NRCS received 21 comments on this
paragraph related to incentive payments, eleven of which stated
incentive payments provided by partners should not be subject to the
limit that specifies a participant cannot receive in excess of 100
percent cost-share assistance for a practice, nine of which recommended
changing the rule to allow for incentive payments, and one comment
suggesting that Wallop-Breaux funds should be eligible for matching
with WHIP funds.
Response. The NRCS removed the language regarding the 100 percent
limitation to clarify that its terms apply only to 75 percent of the
cost-share payments received by a participant; and the remaining
provisions of Sec. 1470.7(d) were incorporated into Sec. 636.6(a).
Because the NRCS encourages cooperation between entities that share
wildlife objectives, the National office recommends that the WHIP
ranking system developed within a State not penalize an applicant's
ability to receive cost-share assistance from other sources.
Comment. One comment recommended clarifying the meaning of the
assistance versus payment so that the salaries of NRCS and other
partners are not included in the cost-share the landowner is required
to match.
Response. The NRCS resolves this concern with the revision
described above by addressing only the 75 percent cost-share provided
by NRCS or from direct Federal funds in Sec. 636.7(a).
Section 1470.8 The Wildlife Habitat Development Plan (WHDP)
Comment. Forty comments were received on the Wildlife Habitat
Development Plan (WHDP), thirteen of which expressed approval for the
inclusion of partners in the planning process. Two comments wanted
conservation district partners to have approval authority, one of which
felt that the approval authority should be more than a ``rubber
stamp''. One comment asked whether the NRCS would reimburse partners
for technical assistance provided during the planning process. Two
comments stated that hunting rights should not be affected by the
implementation of the WHDP. Six comments related to WHDP requirements,
two stated that hunting rights should remain unaffected, one stated
that the plan should address State priority goals, three indicated
there should not be requirements on adjacent land not subject to the
cost-share agreement. One of these six comments requested the NRCS not
to require a full Resource Management System. Six additional comments
wanted existing management plans (e.g. SWCD conservation plans,
Resource Management Systems, Stewardship Incentives Program, Forestry
Incentives Program, and Habitat Conservation Plans) to be allowed as
the basis for the WHDP, while one comment recommended integrating WHDP
with other NRCS conservation planning efforts. Two comments supported
the WHDP as described in the proposed rule.
Response. The NRCS supports using of conservation partners in all
aspects of WHIP, including assessments, planning, monitoring, and
evaluation activities. The NRCS also supports efficiency of efforts and
will adapt, as appropriate, for use in WHIP any plans developed which
provide the needed information. As stated earlier, the WHDP may be the
entire conservation plan or one of several components of a conservation
plan depending on the desires and priorities of the program
participant. In general, it is not anticipated that the NRCS will
reimburse partners for technical assistance during the planning
process. However, there may be special cases where such arrangements
are made. These arrangements will generally be subject to the
availability of NRCS resources. No change was made in the final rule
because the rule contains sufficient flexibility to address these
concerns as they are raised through the locally-led process and in
consultation with the State Technical Committee.
[[Page 49365]]
Comment. Seven comments were related to monitoring of the WHIP
plan, three of which stated that monitoring and evaluation were
important activities, two of which encouraged the use of partners in
monitoring and measure success of the program, one of which wanted
monitoring to be included in the plan, and the remaining comment wanted
monitoring to be conducted only by NRCS and restricted to ensure
compliance with Federal laws, rules, standards and specifications.
Response. The NRCS agrees that monitoring and evaluation are
important for measuring success and identifying failures. Initially,
each NRCS State office shall determine the monitoring method to use, as
appropriate for the different types of wildlife habitat enrolled in the
program. However, the NRCS has identified the need to develop a
national standard for measuring wildlife habitat improvement in order
to track wildlife habitat benefits achieved under the program. No such
methodology currently exists, and it is the intent of NRCS to work with
other wildlife interests to develop one. These comments are beyond the
scope of this rule and are being addressed more appropriately in a
broader context.
Section 1470.9 Modifications
Comment. Two comments were received concerning modifications to a
WHIP plan. One comment wanted to allow changes to a plan at anytime
based on unforeseen circumstances while the other comment wanted all
modifications approved by the local work group in conjunction with the
local conservation district.
Response. The local work group is comprised of Federal, State,
County, tribal or local government representatives at the local level.
The local work group serves as a recommending body only and will not
have approval authority of WHIP cost-share agreements or modifications
to such cost-share agreements. WHIP will accommodate, to the extent
that funding allows, unforeseen technical modifications to a plan. The
cost-share agreement modification provisions for WHIP are similar to
those in other USDA conservation programs. The program handbook will
provide procedural guidance for modifying cost-share agreements, and
will have the flexibility to enable a participant to modify a cost-
share agreement several years into its implementation as long as the
WHDP is revised according to program requirements.
Section 1470.10 Transfer of Interest in a Contract
Comment. The NRCS received four comments on this topic. Two
comments recommended funds should not be returned if a cost-share
agreement is terminated. One comment recommended the return of all or a
portion of the funds if a cost-share agreement is terminated through a
change in ownership. One comment requesting clarification of the terms
for a transfer of cost-share agreement and whether an easement was
involved.
Response. NRCS does not have the authority to acquire easements
from WHIP participants, and therefore there are no easements involved
in a WHIP cost-share agreement. The NRCS added language to this section
to include provisions when a subsequent owner is unwilling to assume
responsibility under the WHIP cost-share agreement.
Section 1470.11 Termination of cost-share agreements
Comment. The NRCS received six comments on this section of the
rule. Two comments requested clarification of the terms ``public
interest'' and ``severe hardship''. One comment wanted the ability to
end the cost-share agreement without obligation for the participant to
return any funds. One comment wanted less harsh language in this
section.
Response. The NRCS will utilize standard cost-share agreement
procedures in the implementation of this section. The ``public
interest'' and ``severe hardship'' standards have been implemented in
many Departmental programs and such standards require fact-intensive
determinations. A particular summary of such determinations would not
prove insightful. There were no changes made to this section.
Section 1470.12 Violations and Remedies
Comment. The NRCS received one comment on this section requesting
clarification of the terms ``reasonable notice'' and ``additional time
as CCC may allow.''
Response. Written notice mailed to the last known address of the
participant constitutes reasonable notice, but there exist other
methods that also qualify. The NRCS will allow additional time beyond
30 days to correct a violation in those cases where an extension is
determined reasonable, such as inclement weather, or other extenuating
circumstances. In addition, language was added to clarify the
difference between situations where the participant sought to come back
into compliance and those where the participant elected not to do so.
Section 1470.13 Misrepresentation and Scheme or Device
Comment. The NRCS received one comment on this section raising the
concern that a program participant could be penalized for unknowingly
violating the terms of the cost-share agreement.
Response. Section 636.13 in the final rule focuses upon
misrepresentations and knowing violations, and thus the NRCS considers
a person's state of mind when applying the terms of this section.
Language was added in Sec. 636.13 clarifying the outcomes possible
under this section.
Section 1470.15 Appeals
Language was added to this section identifying activities that are
not subject to appeal, consistent with the Department of Agriculture
Reorganization Act of 1994.
Accordingly, Title 7 of the Code of Federal Regulations, subchapter
D, is amended by adding a new part 636 to read as follows:
PART 636--WILDLIFE HABITAT INCENTIVES PROGRAM
Sec.
636.1 Applicability.
636.2 Administration.
636.3 Definitions.
636.4 Program requirements.
636.5 Establishing priority for enrollment in WHIP.
636.6 Cost-share payments.
636.7 The Wildlife Habitat Development Plan (WHDP).
636.8 Cost-share agreements.
636.9 Modifications.
636.10 Transfer of interest in a cost-share agreement.
636.11 Termination of cost-share agreements.
636.12 Violations and remedies.
636.13 Misrepresentation and scheme or device.
636.14 Offsets and assignments.
636.15 Appeals.
Authority: 16 U.S.C. 3836a.
Sec. 636.1. Applicability.
(a) The purpose of the WHIP is to help participants develop habitat
for upland wildlife, wetland wildlife, threatened and endangered
species, fish, and other types of wildlife.
(b) The regulations in this part set forth the requirements for the
Wildlife Habitat Incentives Program (WHIP).
(c) The Chief, NRCS may implement WHIP 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
[[Page 49366]]
the Commonwealth of the Northern Mariana Islands.
Sec. 636.2. Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief, NRCS.
(b) The State Conservationist will consult with the State Technical
Committee in the implementation of the program and in establishing
program direction for the NRCS in the applicable State. The State
Conservationist has the authority to accept or reject the State
Technical Committee recommendation; however, the State Conservationist
will give strong consideration to the State Technical Committee's
recommendation.
(c) NRCS may enter into cooperative agreements with Federal
agencies, State and local agencies, conservation districts, local
watershed groups, and private entities to assist with program
implementation, including cost-share agreement execution, assistance,
planning, and monitoring responsibilities.
(d) NRCS may make payments pursuant to agreements with other
Federal, State, or local agencies, conservation districts, local
watershed groups, or private entities for program implementation,
coordination of enrollment of cost-share agreements, or for other goals
consistent with the program provided for in this part.
(e) NRCS will provide the public with reasonable notice of
opportunities to apply for participation in the program.
(f) Nothing in this part shall preclude the Chief of NRCS, or a
designee, from determining any question arising under this part or from
reversing or modifying any determination made under this part.
Sec. 636.3. Definitions.
Chief means the Chief of the Natural Resources Conservation Service
or the person delegated authority to act for the Chief.
Conservation district means a political subdivision of a State,
Native American Tribe, or territory, organized pursuant to the State or
territorial soil conservation district law, or Tribal law. The
subdivision may be a conservation district, soil conservation district,
soil and water conservation district, resource conservation district,
natural resource district, land conservation committee, or similar
legally constituted body.
Conservation plan means a record of a participant's decisions, and
supporting information, for treatment of a unit of land or water, and
includes a schedule of operations, activities, and estimated
expenditures needed to solve identified natural resource problems.
Cost-share agreement means the document that specifies the
obligations and the rights of any person who has been accepted for
participation in the program.
Cost-share payment means the payments under this part to develop
wildlife habitat.
Habitat development means the physical actions or practices
undertaken to establish, improve, protect, enhance, or restore the
present conditions of the land for the specific purpose of improving
conditions for wildlife.
Participant means an applicant who is a party to a WHIP cost-share
agreement.
Person means an individual, partnership, association, corporation,
cooperative, estate, trust, joint venture, joint operation, or other
business enterprise or other legal entity and, whenever applicable, a
State, a political subdivision of a State, or any agency thereof.
Practice means a specified treatment, such as a structural or land
management measure, which is planned and applied according to NRCS
standards and specifications.
Recurring practices means practices repeated on the same area over
the life of a cost-share agreement to achieve specific habitat
attributes.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Basin Area.
State Technical Committee means a committee established by the
Secretary of the United States Department of Agriculture in a State
pursuant to 16 U.S.C. 3861.
Wildlife means birds, fishes, reptiles, amphibians, invertebrates,
and mammals, along with all other animals.
Wildlife habitat means the aquatic and terrestrial environments
required for wildlife to complete their life cycles, including air,
food, cover, water, and spatial requirements.
Sec. 636.4. Program requirements.
(a) To participate in WHIP, a person must:
(1) Develop and agree to comply with a WHDP, as described in
Sec. 636.7;
(2) Enter into a cost-share agreement for the development of
wildlife as described in Sec. 636.8;
(3) Provide NRCS with written evidence of ownership or legal
control for the life of the proposed cost-share agreement period;
however, an exception may be made by the Chief:
(i) In the case of land allotted by the Bureau of Indian Affairs,
tribal land, or
(ii) Other instances in which NRCS determines there is sufficient
assurance of control;
(4) Agree to provide all information to NRCS as determined to be
necessary to assess the merits of a proposed project and to monitor the
compliance of a participant with a cost-share agreement; and (5)Agree
to grant to NRCS or its representatives access to the land for purposes
related to application, assessment, monitoring, enforcement, or other
actions required to implement this part.
(b) Ineligible land. NRCS shall not provide cost-share assistance
with respect to practices on land:
(1) Enrolled in a program where wildlife habitat objectives have
been sufficiently achieved through other forms of assistance or without
assistance, as determined by NRCS.
(2) With on-site or off-site conditions which NRCS determines would
undermine the benefits of the habitat development or otherwise reduce
its value;
(3) Where NRCS determines that the wildlife habitat development
benefits attainable are of lessor value than would occur on other
lands; or
(4) Owned by the United States, except where there is a direct
Tribal, State, or private benefit; or
(5) On which habitat for threatened or endangered species would be
adversely affected.
(c) All other land except as provided in paragraph (b) of this
section is eligible.
Sec. 636.5 Establishing priority for enrollment in WHIP.
(a) In response to national and regional needs, the Chief may limit
program implementation in any given year to specific geographic areas
or to address specific habitat development needs of targeted species of
special concern.
(b) The State Conservationist, in consultation with the State
Technical Committee, may limit implementation of WHIP to address unique
species, habitats, or special geographic areas of the State. Subsequent
cost-share agreement offers that would complement previous cost-share
agreements due to geographic proximity of the lands involved or other
relationships may receive priority consideration for participation.
(c) NRCS will evaluate the applications and make enrollment
decisions based on the wildlife habitat need using some or all of the
following criteria:
(1) Contribution to resolving an identified habitat problem of
national, regional, or state importance;
[[Page 49367]]
(2) Relationship to any established wildlife or conservation
priority areas;
(3) Duration of benefits to be obtained from the habitat
development practices;
(4) Self-sustaining nature of the habitat development practices;
(5) Availability of other partnership matching funds or reduced
funding request by the person applying for participation;
(6) Estimated costs of wildlife habitat development activities; and
(7) Other factors determined appropriate by NRCS to meet the
objectives of the program.
(d) Notwithstanding the criteria set forth in paragraph (c) of this
section, the State Conservationist, in consultation with the State
Technical Committee, may deny an application if it is not cost
effective or does not sufficiently meet program requirements:
Sec. 636.6 Cost-share payments.
(a) NRCS may share the cost with a participant for implementing the
practices as provided in the WHDP; NRCS shall offer to pay no more than
75 percent of the cost of establishing such practices. The cost-share
payment to a participant shall be reduced proportionately below 75
percent to the extent that direct Federal financial assistance is
provided to the participant from sources other than NRCS, except for
certain cases that merit additional cost-share assistance to achieve
the intended goals of the program, as determined by the State
Conservationist.
(b) Cost-share payments may be made only upon a determination by
the NRCS that an eligible practice or an identifiable unit of the
practice has been established in compliance with appropriate standards
and specifications. Identified practices may be implemented by the
participant or other designee.
(c) Cost-share payments may be made for the establishment and
installation of additional eligible practices, or the maintenance or
replacement of an eligible practice, but only if NRCS determines the
practice is needed to meet the objectives of the program, or that the
failure of the original practice was due to reasons beyond the control
of the participant.
Sec. 636.7 The Wildlife Habitat Development Plan (WHDP).
(a) The participant develops a WHDP with the assistance of NRCS or
other public or private natural resource professionals, and the WHDP is
approved by the participant, NRCS, and the local conservation district.
A WHDP encompasses the parcel of land that has the wildlife habitat
conditions that are of concern to the participant.
(b) The WHDP forms the basis for the agreement and is incorporated
therein. The WHDP includes a schedule for installation of the wildlife
habitat development practices, maintenance, and related requirements to
maintain the habitat for the life of the cost-share agreement.
(c) The WHDP may be modified in accordance with Sec. 636.9.
Sec. 636.8 Cost-share agreements.
(a) To apply for WHIP cost-share assistance, a person must submit
an application for participation in the WHIP at a USDA office or to an
NRCS representative.
(b) A WHIP cost-share agreement shall:
(1) Incorporate all portions of a WHDP;
(2) Be for a period of 5 to 10 years, unless provisions of
paragraph (c) of this section apply;
(3) Include all provisions as required by law or statute;
(4) Specify the requirements for operation and maintenance of
applied wildlife habitat development practices;
(5) Include any participant reporting and recordkeeping
requirements to determine compliance with the cost-share agreement and
program;
(6) Be signed by the participant. When the participant is not the
owner, concurrence from the owner is required; and,
(7) Include any other provision determined necessary or appropriate
by the NRCS representative.
(c) The Chief may allow a cost-share agreement period for less than
five years in situations where wildlife habitat is threatened as a
result of a disaster and emergency measures are necessary to address
the potential for dramatic declines in one or more wildlife
populations.
Sec. 636.9 Modifications.
(a) NRCS, with the concurrence of the conservation district, may
approve modifications to a WHDP where such modifications are acceptable
to the parties.
(b) NRCS may approve modifications to the cost-share agreement
where such modifications are acceptable to the parties.
(c) Any modifications made under this section must meet WHIP
program objectives, and must be in compliance with this part.
Sec. 636.10 Transfer of interest in a cost-share agreement.
(a) (1) If the ownership or operation of the land changes during
the term of the cost-share agreement, NRCS shall modify the cost-share
agreement to reflect the new interested persons and new divisions of
payments. NRCS shall make eligible cost-share payments upon
presentation of an assignment of rights or other evidence that title
had passed.
(2) With respect to any and all payments owed to participants who
wish to transfer ownership or control of land subject to a cost-share
agreement, the division of payment shall be determined by the original
party and that party'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 a settlement or adjudication on
the rights to the funds.
(b) (1) If such new owners or operators are not willing to assume
the responsibilities posed in an existing WHIP cost-share agreement,
NRCS shall terminate the cost-share agreement and may require that all
cost-share payments may be forfeited, refunded, or both.
(2) The signatories to the cost-share agreement shall be jointly
and severally responsible for refunding the cost-share payments
pursuant to paragraph (b)(1) of this section.
Sec. 636.11 Termination of cost-share agreements.
(a) The State Conservationist may, by mutual agreement with the
parties to the cost-share agreement, consent to the termination of the
contract where:
(1) The parties to the cost-share agreement are unable to comply
with the terms of the cost-share agreement as the result of conditions
beyond their control;
(2) Compliance with the terms of the cost-share agreement would
work a severe hardship on the parties to the contract; or,
(3) Termination of the cost-share agreement would, as determined by
the State Conservationist, be in the public interest.
(b) If a 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 cost-
share agreement in a porportion appropriate to the effort the
participant has made to comply with the cost-share agreement, or, in
cases of hardship, where forces beyond the participant's control
prevented compliance with the cost-share agreement.
Sec. 636.12 Violations and remedies.
(a) (1) If NRCS determines that a participant is in violation of a
cost-share agreement or documents incorporated by reference into the
cost-share
[[Page 49368]]
agreement, NRCS may give the parties to the cost-share agreement
reasonable notice and an opportunity to voluntarily correct the
violation within 30 days of the date of the notice, or such additional
time as NRCS may allow.
(2) If the participant fails to cure the violation of a cost-share
agreement within the period provided under paragraph (a)(1) of this
section, NRCS may terminate the agreement and require the participant
to refund all or part of any assistance earned under that cost-share
agreement, plus interest, as well as require the participant to forfeit
all rights for future payment under the agreement.
(b) [Reserved].
Sec. 636.13 Misrepresentation and scheme or device.
(a) A person who is determined by NRCS to have erroneously
represented any fact affecting a program determination made in
accordance with this part shall not be entitled to cost-share agreement
payments and must refund all payments, plus interest as determined by
NRCS.
(b) A person who is determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program;
(2) Made any fraudulent representation; or,
(3) Misrepresented any fact affecting a program determination shall
refund to NRCS all payments, plus interest as determined by NRCS, with
respect to all NRCS cost-share agreements. The person's interest in all
NRCS cost-share agreements may be terminated.
Sec. 636.14 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person shall be made without regard
to questions of title under State law and without regard to any claim
or lien against the land, or proceeds thereof, in favor of the owner or
any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings found in part 3 of this
title shall be applicable to cost-share agreement payments.
(b) Any person entitled to any cash payment under this program, may
assign the right to receive such payments in whole or in part.
Sec. 636.15 Appeals.
(a) Any person may obtain reconsideration and review of
determinations affecting participation in this program in accordance
with part 614 Part C of this title, except as provided in paragraph (b)
of this section.
(b) In accordance with the provisions of the Department of
Agriculture Reorganization Act of 1994, Pub. L. 103-354 (7 U.S.C.
6901), the following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) The designation of approved wildlife priority areas, habitats
or practices;
(3) NRCS program funding decisions;
(4) Eligible conservation practices; and
(5) Other matters of general applicability.
(c) Before a person may seek judicial review of any action taken
under this part, the person must exhaust all administrative appeal
procedures set forth in paragraph (a) of this section.
Signed at Washington, D.C. on September 12, 1997.
Gary A. Margheim,
Acting Chief, Natural Resources Conservation Service.
[FR Doc. 97-24768 Filed 9-18-97; 8:45 am]
BILLING CODE 3410-16-P
