M_390__ - Parts 510-515 - National Emergency Watershed Protection Program Manual

Table of Contents

PART 510 - INTRODUCTION

Subpart A - General

510.0  Purpose

510.1  References

510.2  Policy

510.3  Responsibilities

510.4  Requests for Waivers

Subpart B - Coordination

510.10  Pre-Disaster Preparedness

510.11  Coordination

PART 511 – PROGRAM ADMINISTRATION

Subpart A - General

511.0  Introduction

511.1  Electronic Disaster Reports

511.2  Project Code Numbers

511.3  Eligibility for Recovery Assistance

511.4  Limitations

511.5  Appeal Rights

511.6  Cost-Sharing

511.7  Exigency Situations

Subpart B - Assistance

511.10  Requests for Assistance

511.11  Requesting Funds

511.12  Establishment of a Drawing Account

511.13  Fund Allocation and Usage

PART 512 – PLANNING AND IMPLEMENTATION

Subpart A - Planning

512.0  NRCS Responsibilities During the USDA Response

512.1  Damage Survey Report (DSR)

512.3  Defensibility

512.4  Technical Adequacy

512.5  Cultural Resources

Subpart B - Implementation

512.10  Agreements

512.11  Contracts

512.12  Land Rights and Permits

512.13  Performance Time Limits

512.14  Priority Setting

512.15  Operation and Maintenance (O&M)

PART 513 – POST-DISASTER ACTIVITIES

Subpart A - General

513.0  Follow-up Coordination

513.1  Final Report

513.2  EWP Accomplishment and Benefits Database

513.3  EWP Performance Measures

PART 514 – FLOODPLAIN EASEMENT

Subpart A – General

514.0  Purpose

514.1  Responsibilities

514.2  Eligible Land

514.3  Ineligible Land

514.4  Compensation for Easements

514.5  Landowner Requirements

514.6  Restoration of Easement

514.7  Enforcement of Easement

Subpart B – Applications

514.10  Requesting Funds

514.11  Application

514.12  Eligibility Determination

Subpart C – Acquisition

514.20  Easement Acquisition Process

Subpart D – Compensation

514.30  Determining Easement Compensation

Subpart E – Restoration

514.40  Restoration Process

Subpart F – Management, Monitoring, and Enforcement

514.50  Management, Monitoring, and Enforcement

PART 515 - EXHIBITS

Subpart A – Plans – Reserved

Subpart B – Definitions

515.10  Terms

515.11  Acronyms

Subpart C – Forms

515.20  EWP Recovery Forms

515.21  EWP-FPE Forms

Subpart D – Statutes and Regulations

515.30  Statutory Authority

515.31  Applicable Regulations

Subpart E – Agreements

515.40  Agreements with Other Agencies

Subpart F – Sample Letters

515.50  Sample Letter of EWP Recovery Measures Form

515.51  Sample Letter Requesting DSR Time Extension

515.52  Sample Attorney’s Opinion Letter

515.53  Sample Letter Request for Time Extension

515.54  Sample Letter of Tentative Acceptance

Subpart G – Floodplain Easement Guidance Documents

515.60  Business Process Flow Chart

515.61  Appraisal Guidance

515.62  Land Survey Specifications for the Natural Resources Conservation Service Easement Programs

515.63  Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program (EWP)

515.64  Hazardous Substance Examination Checklist

[M_390___TOC - Amend. 3 - November 2010]

Part 510 - Introduction

Subpart A – General
Subpart A – General 

 

510.0  Purpose

A.  Program Statutory Authorities

This manual sets forth the requirements and procedures for Federal assistance provided by NRCS under the following:

(i)  Section 216 of Public Law 81-516 (33 U.S.C. Section 701b)

(ii)  Section 403 of title IV of Public Law 95-334, the Agricultural Credit Act of 1978

B.  Program Regulation

The manual contains NRCS policy for administering the Emergency Watershed Protection (EWP) Program as set forth in 7 CFR Part 624.

C.  Policy Applicability

(1)  The policies set forth in this manual are applicable to projects carried out under the statutory authorities set forth in paragraph 510.0A above.

(2)  This manual provides maximum flexibility and ensures consistency and efficient program delivery across the Nation.

(3)  All interpretations must be made within the constraints of the authorizing legislation, the program regulation, and the final programmatic environmental impact statement.

(4)  This manual pertains only to EWP recovery measures and EWP floodplain easements (EWP-FPE).  Parts 510 to 513 of this manual provide policy for implementing EWP recovery.  Part 514 of this manual provides policy for implementing EWP floodplain easements.

510.1  References

Emergency watershed protection measures must adhere to all applicable Federal, State, Tribal, and local laws and regulations.  The major Federal laws and Presidential Executive orders are as follows:

(1)  The National Environmental Policy Act (NEPA) requires that Federal agencies consider the environmental impacts of their proposed actions before they are implemented and document those impacts in the form of an environmental assessment or impact statement, giving the public the opportunity to comment.  The NRCS policy on compliance with NEPA is located at 7 CFR Part 650; Title 190, General Manual (GM), Part 410; and Title 190, National Environmental Compliance Handbook (NECH), Part 610. 

(2)  The Endangered Species Act of 1973, as amended, seeks to conserve and protect threatened and endangered species.

(3)  The Federal Water Pollution Control Act of 1972, as amended, requires section 404 permits for placing dredged material or fill into or adjacent to navigable waters, including wetlands.

(4)  Executive Order 12898, Environmental Justice, requires each Federal agency to conduct programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons from participation in, denying persons the benefits of, or subjecting persons to discrimination under such programs, policies, and activities, because of race, color, or national origin.

(5)  The National Historic Preservation Act, as amended (16 U.S.C. Section 470f), directs all Federal agencies to establish a (historic) preservation program.  This program is intended to create policies and procedures that foster agency program and project development so that our modern society and our prehistoric and historic resources coexist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.

(i)  The NRCS policy is set forth in the 420-GM, Part 401, and the NRCS nationwide programmatic agreement with the Advisory Council on Historic Preservation and National Conference of State Historic Preservation Officers.  

(ii)  Procedures for compliance with the NHPA are found in the Title 190, National Cultural Resources Procedures Handbook, (NCRPH), Part 601.  This national handbook also discusses related laws and Executive orders that direct Federal agencies on the need to consult with American Indian Tribes regarding cultural resources and sacred sites. 

(6)  Executive Order 11990, Protection of Wetlands.—Each agency must provide leadership and take action to minimize the destruction, loss, or degradation of wetlands and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for—

(i)  Acquiring, managing, and disposing of Federal lands and facilities.

(ii)  Providing federally undertaken, financed, or assisted construction and improvements.

(iii)  Conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities.

(7)  Executive Order 11988, Floodplain Management.—Each agency must provide leadership and take action to reduce the risk of flood loss to minimize the impact of floods on human safety, health, and welfare and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for—

(i)  Acquiring, managing, and disposing of Federal lands and facilities.

(ii)  Providing federally undertaken, financed, or assisted construction and improvements.

(iii)  Conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities.

510.2  Policy

A.  Program Objective

The EWP Program helps landowners, operators, and individuals implement emergency recovery measures to relieve imminent hazards to life or property created by a natural disaster that causes a sudden impairment of a watershed.  Assistance must be through eligible project sponsors (see part 511, subpart A, section 511.3B(1) of this manual).

B.  Delegated Authority

(1)  Role of NRCS.—Administration of the EWP Program has been delegated to NRCS.  Overall administrative direction and guidance is provided through the following documents:

(i)  7 CFR Part 62

(ii)  Title 390, National EWP Program Manual, Parts 510 to 515

(iii)  EWP emergency recovery plans developed by the State Conservationist (STC)

(iv)  EWP programmatic environmental impact statement

(2)  Local Natural Disasters

(i)  The STC may declare a local emergency and provide assistance under the EWP Program authority (see part 510, subpart B, section 510.11B of this manual).

(ii)  The participation of an eligible project sponsor is required and coordination with other agencies should be conducted as appropriate.

Note:  Only the Secretary of Agriculture may make a drought declaration.

C.  Scope

(1)  EWP technical and financial assistance may be made available if funding is available when—

(i)  The President has declared an emergency.

(ii)  The STC has declared a local or State emergency.

(iii)  The Secretary of Agriculture has declared a drought emergency.

(2)  Assistance available under the EWP Program consists of installing emergency measures, including the purchase of floodplain easements (see part 514 of this manual) to reduce hazards to life or property.

(3)  The EWP Program is authorized in the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa.

510.3  Responsibilities

A.  National Headquarters (NHQ) Staff

(1)  The Deputy Chief for Easements and Landscape Planning (ELP) and the Director, Watershed and Landscape Programs Division (WLPD), will, through the national EWP Program manager—

(i)  Coordinate the EWP program between States.

(ii)  Ensure that statutes, regulations, and policies are followed.

(iii)  Ensure that the program is implemented uniformly.

(2)  The Regional Conservationists are responsible for providing coordination when multistate disasters occur.  When more than one region is involved, the Chief will assign the lead responsibility.

(3)  The Financial Management Division will notify the Director, WLPD; the Deputy Chief for Easements and Landscape Planning; the STC; and the national EWP Program manager by email when funds are available in NRCS’s financial management system.  The national EWP Program manager will assign a project number (see part 511, subpart A, section 511.2) and notify the State administrative officer, State budget officer, State contracting officer, and State EWP Program manager when funds are in the financial system.

B.  State Conservationist

The STC or designee is responsible for—

(i)  Implementing the EWP program in the State.

(ii)  Declaring a State or local emergency.

(iii)  Ensuring that only eligible work is carried out and that it is in compliance with all statutes, regulations, and policies.

(iv)  Establishing priorities as set forth in 7 CFR Section 624.8(c)(3).

(v)  Submitting a request for funding.

(vi)  Ensuring sufficient staffing to provide required technical assistance to complete the work within the performance time limits (220 days for emergency projects and 10 days for exigent situations).

(vii)  Coordinating with the NHQ staff and others as appropriate.

(viii)  Developing and maintaining the State’s EWP emergency recovery plan.

(ix)  Appointing a State EWP Program manager.

(x)  Submitting final reports.

C.  State EWP Program Manager

The State EWP Program manager or designee is responsible for—

(i)  Keeping the STC informed of all EWP activities.

(ii)  Providing overall coordination of the EWP program.

(iii)  Coordinating the EWP emergency recovery plan with project sponsors and partners.

(iv)  With concurrence from the STC or designee, establishing or assigning interdisciplinary damage survey report (DSR) teams and—

·         Ensuring DSR teams are groups of specialists to evaluate damage sites, complete DSRs, and make recommendations on the eligibility and defensibility of each site.

·         Ensuring DSR team members have expertise in contracting, economics, engineering, environmental issues, cultural resources, construction, and or inspection.

·         Ensuring proper coordination among Federal, State, Tribal, and local government agencies in developing a list of priorities on all proposed emergency work.

·         Providing training, technical, and administrative assistance to local field office teams to resolve problems.

·         Tracking program activities, defensibility of work, and expenditures of funds.

·         Preparing final reports.

D.  State Administrative Officer (SAO)

The SAO, working with his or her contracting officer (CO) and budget officer (BO), is responsible for—

(i)  Working with the State EWP Program manager to initiate project and other agreements.

(ii)  Awarding and administering all Federal acquisition contracts.

(iii)  With recommendations from the State resource conservationist or State conservation engineer, appointing the contracting officer’s representatives (CORs) and inspectors.

(iv)  Accepting the completed work for contracts completed using Federal acquisition procedures.

(v)  Confirm that funds are available to the STC prior to the execution of EWP funding agreements or contracts.

E.  State Conservation Engineer (SCE)

The SCE is responsible for—

(i)  Determining construction requirements.

(ii)  Taking the lead in developing the NRCS quality assurance plans.

(iii)  Assuring proper reviews and approvals of plans and specifications before contracting.

(iv)  Determining operation and maintenance (O&M) requirements, if needed.

(v)  Making recommendations to the contracting officer for the appointment of CORs and inspectors for engineering work.

(vi)  Providing the necessary technical guidance for inspection, documentation, and acceptance of all work within their scope of responsibility.

F.  State Resource Conservationist (SRC)

The SRC is responsible for—

(i)  Preparing vegetation recommendations and specifications.

(ii)  Ensuring proper reviews and approvals of vegetation measures take place before construction.

(iii)  Determining vegetative O&M requirements if needed.

(iv)  Making recommendations to the contracting officer for the appointment of a COR for vegetation-related work.

(v)  Providing necessary technical guidance for NEPA documentation.

G.  District Conservationist (DC) and NRCS Local County or Parish Representative

The DC and the NRCS local county or parish representatives are responsible for—

(i)  Leading an EWP local team to review needs of the district, county, or parish.

(ii)  Serving as the NRCS liaison between local units of government, agencies, Tribal governments, and others performing emergency work in the county or parish or on Tribal lands, including—

·         Serving, as needed, on a DSR team.

·         Developing information for establishing a list of priorities for the field office’s area of responsibility (see 7 CFR Section 624.8(c)(3)).

(iii)  Serving as the local contact person for media requests in the county.

(iv)  Representing NRCS in interactions with landowners.

H.  Public Affairs Specialist (PAS)

The PAS is responsible for—

(i)  Preparing news releases regarding the EWP and current efforts by NRCS to address natural disaster recovery efforts.

(ii)  Web page information identifying NRCS EWP activities.

I.  The COR or Contracting Officer’s Technical Representative (COTR) for Federal Contracts and Government Representative (GR) for Locally Awarded Contracts

The COTR and GR are responsible for—

(i)  Monitoring contract compliance and providing technical direction to inspectors

(ii)  Acting as a liaison between the CO and the project sponsor

(iii)  Maintaining accurate written records on work progress

(iv)  Assisting the CO with contract administration

J.  Inspector

The inspector is responsible for—

(i)  Communicating frequently with contractors and engineers for compliance with the plans and specifications.

(ii)  Providing onsite inspection of ongoing work.

(iii)  Maintaining accurate written records of work in progress as directed.

(iv)  Preparing “as-built” plans.

K.  Project Sponsors

The project sponsors are responsible for—

(i)  Providing a written request to the STC for assistance with appropriate documentation.

(ii)  Accepting requests for assistance from landowners

(iii)  Obtaining the necessary real property rights, including any rights needed for the relocation of fences, bridges, etc. 

(iv)  Obtaining a signed Form NRCS-ADS-78, “Assurances relating to Real Property Acquisition,” and a signed attorney’s opinion, as appropriate.

(v)  Obtaining the required Federal, State, Tribal, and local permits.

(vi)  Arranging for any necessary relocation of utilities.

(vii)  Providing the required local share of construction costs.

(viii)  Executing an O&M agreement and ensuring compliance with the O&M plan, as necessary.

(ix)  Helping to establish priorities for work.

(x)  Publicizing the availability of the EWP Program.

(xi)  Participating on a DSR team as needed.

(xii)  Accepting the completed work for projects installed using locally awarded contracting procedures as appropriate.

(xiii)  Conducting outreach to underserved populations.

510.4  Requests for Waivers

A. To the extent allowed by law, waivers may be granted for those unusual situations or circumstances where it is in the best interest of the Federal Government to implement the EWP project (see 7 CFR Section 624.11).  A request for a waiver is the exception (and should be rarely used) and not the norm in implementing the EWP Program.

(1)  If the STC determines that an unusual situation has occurred, or that a special condition exists, he or she may request a waiver of the policy set forth in this manual.

(2)  All requests for a waiver must be in writing and must be accompanied by a rationale and justification regarding the need for the waiver of EWP Program policy consistent with the statute and regulations.

(i)  All requests for waiver for EWP policy contained in parts 510-512 must be submitted to the Deputy Chief for Science and Technology  for consideration (see 7 CFR Section 624.11).

(ii)  All requests for waiver for EWP policy contained in part 510-514 must be submitted to the Deputy Chief for Programs.

(3) All requests for waivers must include specific documentation stating why the waiver is in the best interest of the Federal Government.

B. Waivers will not be granted for—

(1)  The expiration dates of contracts and agreements that have expired.

(2)  All or less than two mandatory criteria required for an area to be considered a limited resource area.

(3)  Extension requests over the 220-day rule.

(4)  Cost-share rates for restoration or relocation that exceed 90 percent unless the Federal Emergency Management Agency has approved a cost-share rate greater than 90 percent.


     
  

     
    

[M_390___510_A_March 2014 - Amend. 4 - ]

Subpart B – Coordination
Subpart B – Coordination  

     

  

510.10 Predisaster Preparedness

A. Emergency Recovery Plan

Each State Conservationist (STC) must develop and maintain an emergency watershed protection (EWP) emergency recovery plan (ERP) that contains specific procedures for implementing emergency recovery measures if a disaster occurs. The STC must review and update the ERP biennially or more frequently if appropriate. The STC should solicit input from the following entities:

(i) U.S. Forest Service (USFS)

(ii) USDA Farm Service Agency (FSA)

(iii) USDA Rural Development (RD)

(iv) U.S. Fish and Wildlife Service (USFWS)

(v) Bureau of Land Management (BLM)

(vi) Bureau of Reclamation (BOR)

(vii) Environmental Protection Agency (EPA)

(viii) U.S. Army Corps of Engineers (USACE)

(ix) National Marine Fisheries Service (NMFS)

(x) Federal Emergency Management Agency (FEMA)

(xi) State office of emergency preparedness

(xii) Tribal historic preservation office

(xiii) Tribal councils (State or federally recognized)

(xiv) State historic preservation officer (SHPO)

(xv) State emergency management agency

(xvi) Conservation districts

(xvii) National Weather Service (NWS)

(xviii) Other State and Tribal agencies

B. Special Coordination

Emergency recovery plans must include special attention to comply with laws, Executive orders, and other requirements as outlined in part 510, subpart A, section 510.4, of this manual.

C. Emergency Recovery Plan Content

The ERP should contain information to assist NRCS, the emergency action team (comprised of partners identified in part 510, subpart B, section 510.10A, of this manual), and project sponsors to efficiently and effectively implement EWP measures in the event of a natural disaster. The ERP must include, but is not limited to the following:

(i) Introduction

(ii) List of primary and secondary agency contacts with the following information:

· Name and title

· Agency

· Mailing address

· Telephone number (office, home, mobile)

· Fax number

· Email address

(iii) Agency roles and responsibilities

(iv) Project sponsor responsibilities

(v) Emergency recovery process that includes a description of the process and a flowchart

(vi) Description of typical recovery measures

(vii) Permits for the following:

· Section 404 of the Clean Water Act

· State Water Quality

(viii) Contracting procedures

(ix) General Services Administration advantage contractors

(x) Environmental coordination for the following:

· Endangered Species Act emergency consultation

· Cultural resource consultation

· Tribal consultation

· Coastal zone management area

· Essential fish habitat

· Wild and scenic rivers

(xi) Interagency coordination

(xii) Appendices of the ERP, as follows:

· Sample damage survey report

· Standard drawings

· Sample project agreement

510.11 Coordination

A. Presidential Declaration

(1) Under Public Law 93-288, the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, as amended, when the President declares an area a major disaster area, all emergency work will be coordinated with FEMA or its designee (7 CFR Section 624.5(a)).

(2) FEMA will not coordinate NRCS’s work unless conflicts arise from adjacent sites where FEMA has responsibility. During the recovery period, if FEMA transfers this responsibility to the Federal Regional Council or another authorized agency response effort, NRCS will be responsive to that council or organization. During flood recovery events, levee repair and floodplain easement work will be coordinated with the State-level Silver Jacket Flood Risk Management Team where available.

B. State and Locally Declared

In a State or locally declared disaster where the STC determines that a watershed impairment exists, NRCS will assume the lead in providing assistance and coordinating work with the appropriate State office of emergency preparedness, as well as with other Federal, Tribal, or local agencies involved with administering emergency programs as appropriate and as outlined in the ERP.

C. Impairment on U.S. Forest Service Lands

Where watershed impairment is found to exist on land owned exclusively by the USFS, the USFS will determine the existence of the impairment, assume the lead, provide assistance, and coordinate work with the appropriate State office of emergency preparedness or other Federal, Tribal, or local agencies involved with emergency activities (7 CFR Section 624.1).


   
    

[M_390___510_B_March 2014 - Amend. 4 - ]

Part 511 - Program Administration

Subpart A – General
Subpart A – General  

511.0  Introduction

A.  Overview

Emergency watershed protection (EWP) assistance may be made available when sudden watershed impairment occurs that creates an imminent threat to life or property, as determined by the State Conservationist (STC).  The EWP Program provides recovery assistance consisting of emergency measures for repair and restoration of eligible sites.

B.  Multistate Disasters

The Regional Conservationists are responsible for providing coordination when multistate disasters occur.  When more than one region is involved, the Chief will assign the lead responsibility.

C.  Personnel Management

If there are insufficient NRCS personnel available to implement EWP activities, the STC will ensure that qualified assistance is obtained from other locations or sources to ensure projects are completed within the timeframes specified (see part 512, subpart B, section 512.13, of this manual).

511.1  Electronic Disaster Reports

STCs must submit an initial report electronically (see part 515, subpart C, section 515.20A) to the national EWP Program manager within 5 working days after any natural disaster event that may be eligible for EWP assistance.  The notification will provide the EWP Program manager advance notice of the potential need for disaster recovery assistance.

511.2  Project Code Numbers

The Conservation Engineering Division (CED) staff will assign a project number (5000 series) when an initial project request is funded for a specified natural disaster.  One project number will be assigned for each disaster event.  The STC may add digits for their own use if desired for the purpose of further defining the event, projects, or contracts.  The assigned project number will be used to account for funds expended in NRCS’s financial accounting system, as well as for correspondence, communications, and reporting.  The STC will provide a summary of all financial assistance (FA) and technical assistance (TA) expenditures in a final report (see part 513, subpart A, section 513.1, of this manual) for each project number. 

511.3  Eligibility for Recovery Assistance

A.  General

EWP recovery assistance is made available to eligible project sponsors as defined in section 511.3B.  Private entities or individuals may only receive assistance through sponsorship by a project sponsor (see 7 CFR Section 624.6(a)(1)).

B.  Project Sponsor Eligibility

(1)  A project sponsor is any legal subdivision of a State government or a State agency, including the following:

(i)  Cities

(ii)  Counties or parishes

(iii)  Towns

(iv)  Municipal authorities

(v)  Townships

(vi)  Soil and water conservation districts

(vii)  When chartered under State laws, entities such as—

·         Levee districts

·         Irrigation districts

·         Drainage districts

(2)  Any Native American Tribe or Tribal organization as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. Section 450b).

(3)  A project sponsor must—

(i)  Have a legal interest in, or responsibility for, the areas threatened by a watershed emergency.

(ii)  Be capable of obtaining necessary land rights and required permits.

(iii)  Be capable of performing all required operation and maintenance (O&M) responsibilities.

(iv)  Administer contracting when part of a local agreement.

C.  Program Eligibility

(1)  The STC may provide assistance based on a determination that the current condition of the land or watershed impairment poses a threat to health, life, or property.

(i)  Assistance includes EWP practices associated with removing threats to public health and safety and restoring the natural environment to the greatest extent practical after natural disasters.

(ii)  Property is considered any artificial structure permanently affixed to the land such as, but not limited to, houses, buildings, roads, utilities, structures, dams, etc.  Standing timber, orchards, growing crops, other agronomic crops, etc. are not considered property under the EWP Program.  If the threat is only to standing timber, orchards, growing crops, other agronomic crops, etc., it is not eligible for EWP Program assistance.

(iii)  The potential for a threat to life, health, or property may be at the site, upstream of the site, or downstream of the site (e.g., sedimentation deposited downstream, flooding upstream, etc.).

(2)  Assistance is available only when eligible sponsors document that they have exhausted other resources or have insufficient funding available to provide adequate relief from applicable hazards (see 7 CFR Section 624.6(b)(3)(iv)).  Documentation may be in the form of a letter from the sponsor to the STC (see part 515, subpart F, section 515.50).

D.  Eligible Measures

(1)  NRCS will only provide assistance for measures that—

(i)  Reduce threats to life or property from a watershed impairment, including sediment and debris removal.

(ii)  Provide protection from additional flooding or soil erosion by retarding runoff.

(iii)  Remove debris deposited by a natural disaster that would affect runoff or erosion.

(iv)  Restore the hydraulic capacity to the natural environment to the maximum extent practical based upon pre-event conditions.

(v)  Are economically, socially, and environmentally defensible and technically sound.

(2)  Measures must also provide immediate, adequate, and safe relief from the hazard (see 7 CFR Sections 624.6 (b) and (c)).  In addition, they must—

(i)  Be limited to measures or practices that to the greatest extent possible use the least damaging practical construction techniques and equipment that retain as much of the existing characteristics of the landscape and habitat as possible (see 7 CFR Section 624.6(e)).

(ii)  Conform to all applicable statutes, published regulations, and Executive orders.

E.  Prior Work

(1)  EWP Program funds may not be used to reimburse project sponsors for work performed before a document obligating funds has been signed by the project sponsor and NRCS  (see OMB Circular A–87, Attachment B, Item 32, “Professional Services Costs”).

(2)  Detailed working arrangements must be established between the project sponsors and NRCS before starting construction or installation of the works of improvement in which NRCS has a financial interest.  These arrangements must be established in a type of cooperative agreement called a project agreement.

F.  Repair of NRCS-Assisted Measures

EWP Program funds may be used to repair previously installed measures funded through Public Law 83-156, Public Law 83-566, Public Law 78-534, or Public Law 97-98 resource conservation and development (RC&D) provided the following criteria are met:

(i)  All project sponsor O&M responsibilities have been performed and are current.

(ii)  No engineering or structural deficiencies existed before the disaster that impacted the damaged portion of the structure.

511.4  Limitations

EWP program funds may not be used to—

(1)  Provide assistance on any Federal lands (including Federal-aid highways) unless adequate safeguards are followed to avoid augmentation of other Federal agencies as defined in the U.S. Government Accountability Office’s Principles of Federal Appropriations Law, Chapters 2 and 3, “Transfer and Reprogramming” (see 7 CFR Section 624.6(b)(2)(iv)). The following exceptions to this prohibition apply:

(i)  Where the project sponsor controls an easement and has maintenance responsibilities, NRCS may provide EWP assistance as appropriate on Federal lands (e.g., roads rights-of-way).

(ii)  The removal of threats to Federal-aid highways is permitted where it is incidental to other eligible protection.

(2)  Provide recovery assistance for structural measures to a site more than twice in any 10-year period (see 7 CFR Section 624.6(b)(2)(i)).  This limitation applies to the repair or protection of structural measures only.  NRCS does not intend to limit the number of times that debris or similar obstruction may be removed in the same location due to a natural or constructed restriction in a waterway.

Note:  The purchase of floodplain easements (see part 514 of this manual), where applicable, is the only EWP Program option remaining when damage to structural measures occurs a third time within a 10-year period following the original recovery work.

(3)  Dispose of animal carcasses, except as follows: Although NRCS does not have the authority to dispose of animal carcasses, EWP Program policy and 7 CFR Section 624.6(c) provides the authority to remove debris from watercourses when that debris may create an imminent hazard to life and property.  Disposal of animal carcasses (primarily livestock) is eligible when carcasses meet the definition of debris and affect runoff retardation or soil erosion prevention, consistent with the statutory eligibility requirements.

(4)  Perform O&M, such as the periodic or routine work necessary to maintain the efficiency and effectiveness of a measure to perform as originally intended (e.g., removing sediment or debris from reservoirs or debris basins) (see 7 CFR Section 624.6(b)(2)(ii)).

(5)  Solve watershed or natural problems that existed prior to a natural disaster.

(6)  Repair, rebuild, or maintain public or private transportation facilities (e.g., roads, bridges) or correct damage to transportation facilities administered by Federal Highway Administration, Department of Transportation (see 7 CFR Section 624.6(b)(2)(iii)).

(7)  Repair damage in violation of the 1986 memorandum of agreement (MOA) between the Soil Conservation Service and the U.S. Army Corps of Engineers (USACE) (see part 515, subpart E, section 515.40, of this manual).  USACE and NRCS have agreed to use the following general guidelines in dividing responsibilities between the two agencies when a disaster occurs.  Other assignments may be made by FEMA under the provisions of Public Law 93-288 and regulations issued pursuant to that act.

(i)  The USACE is responsible for repair of flood damage to non-Federal water projects installed for the purpose of controlling flood waters, including appurtenant streambank erosion control and prevention.  This will normally include repairs to non-Federal flood protection projects (channels, levees, or similar works) in urbanized areas regardless of watershed size (subject to the provisions of paragraph III in the MOA).

(ii)  The NRCS is responsible for repair of flood damage to non-Federal water projects that were installed—

·         In small watersheds of 400 square miles or less for the purpose of flood prevention.

·         To prevent erosion, regardless of location, except damages to features that are appurtenant to projects that are the responsibility of the USACE.

(iii)  For any non-Federal flood control project damaged by a natural disaster other than flood (such as fires, tornadoes, and earthquakes) where assistance from the USACE under Public Law 84-99 is not authorized, NRCS has primary responsibility for responding to applications for emergency assistance.

(8)  Increase the predisaster capacity of a channel by constructing a new channel, enlarging the old channel, or relocating the stream.  Modifying the channel based upon regional curve data, which maintains the same channel capacity upstream and downstream and is necessary to stabilize the channel, is allowable.  Sediment and debris removal is not considered new construction.

(9)  Repair coastal erosion to beaches, dunes, and shorelines, including those along the Great Lakes.

(10)  Landscaping practices exclusively for aesthetic purposes.

(11)  Drill or modify wells, construct pipelines, install irrigation equipment, or purchase portable   equipment.

(12)  Repair or rehabilitate structural, enduring, or long-life conservation practices or measures eligible for funding under the Emergency Conservation Program (ECP) defined in Farm Service Agency Handbook, 1–ECP (see 7 CFR Section 624.6(b)(3)(i)).  NRCS may authorize EWP assistance for modifying damaged practices when technology advances or construction techniques warrant modifications, including when modifications are the result of Federal permitting or other requirements necessary to implement the recovery measure and will be cost-shared as described in 7 CFR Part 624.

(13)  Repair or rehabilitation of nonstructural management practices, such as conservation tillage and other similar practices (see 7 CFR Section 624.6(b)(2)(v)).

511.5  Appeal Rights

A.  Appealing EWP Determinations

(1)  Only NRCS decisions relating to eligibility for EWP Program may be appealed in accordance with 7 CFR Part 614 and 7 CFR Part 11, as applicable. 

(2)  Decisions rendered under the EWP Program may be appealed in accordance with 7 CFR Part 614 (see Title 440, Conservation Programs Manual (CPM), Part 510). 

B.  Preliminary Technical Determinations

Program decisions to determine program eligibility are issued as final decisions.  However, if the program decision is based on a technical determination, then the following appeal rights will be provided, if time allows:

(i)  Field review by the local NRCS decisionmaker (DC or designee)

(ii)  Reconsideration by the STC

(iii)  Mediation

(iv)  Request for expedited final review

C.  Final Technical Determinations

(1)  Appeal to the STC

(2)  Appeal to the National Appeals Division (NAD)

D.  Final Program Decisions

(1)  Notification of NRCS final decisions must be provided to program participants (for EWP recovery measures, the program participant is the project sponsor).

(2)  If the final program decision is issued in the essence of time, and the decision is based on a technical determination on which no appeal rights were previously provided; the following appeal rights will be provided on both the program decision and the technical determination:

(i)  Appeal to the STC

(ii)  Mediation

(iii)  Appeal to the National Appeals Division

E.  Nonappealable Decisions

The following decisions are generally held not to be appealable:

(i)  Payment rates, payment limits, and cost-share percentages

(ii)  NRCS program funding decisions

(iii)  Technical standards and criteria that apply to all persons

(iv)  Other matters of general program applicability

F.  Appealability Reviews

(1)  The NAD director has the final authority on issues of appealability, see appealability reviews (Title 440, Conservation Programs Manual, Part 510, Subpart A, Section 510.2C, “Appealability Reviews”).  A program participant may request that the NAD director review the NRCS decision of nonappealability.  A request must be filed no later than 30 calendar days after notification that an issue is not appealable.  The NAD director or designee will determine whether the issue is adverse to the participant (and thus appealable) or is a matter of general applicability, and therefore not subject to appeal.  The NAD director’s determination is final and not subject to review.

(2)  Upon NAD notification that a project sponsor has requested an appealability review, the STC will file the agency response to the appropriate NAD region within 15 calendar days of receipt of the request for information.

511.6 Cost-Sharing

A. Rate

EWP Program funds may be used as follows:

(i) EWP funds used toward implementation of emergency measures may not exceed 75 percent of the construction costs of emergency measures, including work performed to mitigate adverse environmental impacts as a result of emergency measures.

(ii) The cost-sharing rate of EWP funds for limited resource areas may not exceed 90 percent.

Note: Matching Federal-to-Federal funding for EWP recovery measures is prohibited as identified in the Appropriations Law, Volume II, Chapter 10, section E.5.a(3) which states the following:

(iii) Matching One Grant with Funds from Another.—an important logical principle is that neither the Federal nor non-Federal share of a particular grant program may be used by a grantee to match funds provided under another Federal grant program unless specifically authorized by law. In other words, a grantee may not use—

· Funds received under one Federal grant as the matching share under a separate grant.

· The same grantee dollars to meet two separate matching requirements. 56 Comp. Gen. 645 (1977); 47 Comp. Gen. 81 (1967); 32 Comp. Gen. 561 (1953); 32 Comp. Gen. 141 (1952); B-214278, January 25, 1985; B-212177, May 10, 1984; B-130515, July 20, 1973; B-229004-0. M., February 18, 1988; B-16201 –O. M., August 17, 1967. See also Common Rule Section .24(b), 53 Fed. Reg. 8092. A contrary rule would largely nullify the cost-sharing objective of stimulating new grantee expenditures.

(iv) Normally, exceptions to the rule are in the form of express statutory authority. A prominent example is section 105(a)(9) of the Housing and Community Development Act of 1974, 42 U.S.C. Section 5305(a)(9).

B. Removal of Buildings and Similar Structures

Removal of buildings and similar structures are only allowed for sites that quality for floodplain easements (see part 514, subpart E, of this manual).

C. Limited-Resource Areas

(1) To determine if an area qualifies for limited-resource status, the most recently published Census Bureau data will be used in making the determination on a county or parish basis. To be considered a limited-resource area, the county must meet all three of the following criteria:

(i) Housing values are less than 75 percent of the State housing value average.

(ii) Per capita income is 75 percent or less than the national per capita income.

(iii) Unemployment is at least twice the U.S. average over the past 3 years, based on annual unemployment figures.

(2) NRCS will use the most recent national census information available when determining housing values and per capita income.

(3) In no case will limited-resource status be granted for a single individual, household, or landowner.

D. Trusts and Territories

The project sponsor’s share of the costs for the construction of EWP eligible measures may be waived for EWP measures to be installed in American Samoa, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands in accordance with 48 U.S.C. Section 1469(d), which requires notifying Congress. The waiver provision found in part 510, subpart A, section 510.6, of this manual may also be used to consider a cost-share waiver.

E. Project Sponsor Contribution

In accordance with 7 CFR 624.6(a), sponsors must:

Contribute their share of the project costs, as determined by NRCS, by providing funds or certain services necessary to undertake the activity. Contributions that may be applied towards the sponsor’s applicable cost-share of construction costs include:

· Cash

· In-kind services such as labor, equipment, design, surveys, contract administration and construction inspection, and other services as determined by the State Conservationist

· A combination of cash and in-kind services

F. Project sponsors are required to acquire all necessary land rights and permits.

Such activities are not eligible for any EWP cost sharing and do not qualify as in-kind or reimbursable services for TA or FA contribution. A project sponsor’s administrative costs (such as attending meetings, obtaining land rights and permits, reviewing internal documents outside the project scope, and clerical services) for carrying out their responsibilities are not eligible for any EWP cost sharing and do not qualify as in-kind or reimbursable services for FA or TA contribution.

G. Recovery Project Enhancement

If the project sponsor requests the enhancement or improvement of EWP recovery measures go beyond what is necessary to repair or restore the impacted area, the additional cost of the enhancement or improvement requested will be totally borne by the project sponsor. This additional cost will include NRCS technical assistance on a reimbursable basis (see 7 CFR Section 624.6(b)(4)).

H. Mitigation for Adverse Impacts of Recovery Measures

When recovery activities require mitigation, the additional costs will be included in the total costs of the EWP recovery measure and will be cost-shared with the project sponsor based upon the amounts established for that project. Technical assistance expenditures that are the responsibility of NRCS associated with compliance with Federal or State requirements will typically be 100 percent funded by NRCS.

511.7 Exigent Situations


A. Definition (See Part 515, Subpart B, Section 515.10)The term “exigency” means those situations that demand immediate action to avoid potential loss of life and property. This includes situations where if action to remedy the situation is not taken immediately and a subsequent natural disaster event were to occur within a few hours or days, it could compound the impairment, cause new damages, or cause loss of life.

B. Conditions

(1) The project, if not repaired immediately, may result in the loss of life or property from a subsequent disaster.

(2) Exigency measures may include temporary solutions until permanent recovery measures can be designed and implemented.

(3) A contracting officer with the appropriate warrant level will select and implement appropriate procurement methods to carry out the remedial work.

(4) The “exigency” designation must not be used to circumvent the permit process or to circumvent full and open competition of Federal acquisitions or contracting.

(5) Funding will be based on actual exigent needs and the availability of funds.

C. Funding

National Headquarters must approve funds prior to initiating exigent actions.

D. Authority to Proceed

The STC is authorized to perform eligible emergency measures to alleviate the exigent situation if—

(i) A damage survey report (DSR) (see part 515, subpart C, section 515.20B) has been or will be completed before the end of the exigency work. However, compliance with NEPA and other local, State, and Federal laws will need to be documented before start of construction.

(ii) EWP Program funds have been allocated.

(iii) The action meets EWP Program eligibility requirements.

(iv) Cost-share funds are available from the project sponsor.

(v) Procurement authority and procedures can be accomplished within the timeframe required.

(vi) Necessary land rights and permits have been acquired by the project sponsors.

(vii) All work on exigent situations will be completed within 10 days from the time the site is accessible and funding is approved.

 


    

 

      
  

[M_390___511_A_March 2014 - Amend. 4 - ]

Subpart B – Assistance
 Subpart B – Assistance

 

511.10  Requests for Assistance

A.  Application

Project sponsors seeking emergency watershed protection (EWP) assistance must apply (see part 515, subpart F, section 515.50, in this manual) to the State Conservationist (STC) in writing (see part 511, subpart A, section 511.7D ,of this manual for exigency procedures).  Project sponsors may use Standard Form (SF)- 424, “Application for Federal Assistance,” but must ensure that following information is provided:

(i)  A description of the problems encountered and the assistance needed, including the following:

· Nature of the problem

· Location

· Scope of the problem

(ii)  Commitment by the project sponsor to assume the following responsibilities:

· Provide local cost share

· Land rights acquisition

· Permits

· Operation and maintenance (O&M), if required

(iii)  A statement indicating funds have either been exhausted or insufficient to provide adequate recovery measures from the applicable hazards.

(iv)  A statement identifying other State or Federal funding received or application submitted.

Note:  Detailed information is not required at the time of the initial request (see Part 515, Subpart F, “Sample Letters,” in this manual).

B.  Catalog of Federal Domestic Assistance (CFDA)

The CFDA number for the EWP program is 10.923.  The CFDA number should be used by sponsors, as needed, for auditing and reporting purposes.

C.  Time Limits

(1)  Project sponsors must submit a request for assistance within 60 days following the date of the natural occurrence that caused the watershed impairment, or 60 days from the date when access to the site becomes available (see Section 511.7, “Exigency Time Limits”).

(2)  Waivers to this requirement may be requested by the STC for consideration by the Deputy Chief for Easements and Landscape Planning when unusual situations exist.  Include the rationale and supporting documentation for each request (see part 510, section 510.6, of this manual).

511.11  Requesting Funds

A.  The STC or his or her designee must make a request for funding EWP measures to the EWP national Program manager within 60 days of the sponsor’s request for assistance.  Requests must be submitted using the “Request for Establishment of a EWP Drawing Account” worksheet found in part 515, subpart C, section 515.20E, “Request for Establishment of a EWP Drawing Account.”  As a minimum, the “Request for Establishment of a EWP Drawing Account” worksheet must be accompanied by a copy of the first and second page of each completed damage survey report (DSR) with photographs showing the damages as supporting documentation.  Photographs must be of sufficient quality and detail to clearly show the damages at the site and any potential impacts upstream and downstream of the site.

B.  Due to the seriousness of exigent situations and the need to immediately alleviate the threat, a request for funds may be made based on the STC’s estimate or a completed DSR.  Exigency funding will be sent at 100 percent of the financial assistance (FA) request and 100 percent of the technical assistance (TA) request to facilitate the recovery work.  The STC may begin expenditure of exigency funds upon notification that funds are in the Foundation Financial Information System (FFIS) or written notification from the Deputy Chief for Easements and Landscape Planning.

C.  Expenditure of funds for 220-day emergency projects will be subject to availability of funds in a drawing account.  The STC may begin expenditure of funds upon notification that funds are in FFIS (see part 510, subpart A, section 510.5A(3), of this manual).

511.12  Establishment of a Drawing Account

A drawing account must be established for each event when funding is available. (Exigencies are not subject to a drawing account.) (See part 515, subpart C, section 515.20D of this manual.)

(1)  When funding is available, the Watershed and Landscape Programs Division (WLPD) will establish a drawing account for the event and 100 percent of the FA will be allocated to the STC.  A percentage of TA funding, usually 50 percent, will be allocated with the FA to complete DSRs, facilitate project design, and initiate contracts.  The balance of the TA will remain in the State’s drawing account.

(2)  The STC may request the remaining TA from the State’s drawing account, as needed to implement the EWP Program.  The request will be accompanied with appropriate documentation for the TA need.  To expedite the TA allocation process, all requests should be made by email or fax to the national EWP Program manager.

511.13  Fund Allocation and Usage

A.  General

(1)  The Director, WLPD, is responsible for all fund allocations associated with EWP recovery activities, including FA and TA.

(2)  TA for States performing initial disaster damage assessments and preparing damage survey reports will be charged to conservation technical assistance funds until EWP funds are made available.

B.  Availability

(1)  Funds are considered available to the STC when written notification is received from National Headquarters (part 510, subpart A, section 510.3A(3).

(2)  Unused funds remaining after the specific timeframes (220 days for emergencies and 10 days for exigencies) will be returned to the national EWP Program manager’s account, unless a time extension is granted in accordance with part 512, subpart B, section 512.13B, of this manual.

(3)  Projects that are not immediately funded will be placed on the national EWP wait list.  The STC will review projects on the waiting list at least quarterly to determine if the projects are still valid and if funding is still needed.  The STC will provide in writing to the national EWP Program manager any changes in the project status and revised funding needs (see part 512, subpart B, section 512.14D, of this manual).

C.  Recovery Work

(1)  Financial assistance may only be used to fund the cost of construction of the recovery measures (see 7 CFR Section 624.7) in accordance with section 511.6.

(2)  TA funds must not exceed 20 percent.  The 20 percent is calculated based upon 75 percent of construction costs (i.e., 90 percent in limited-resource areas would only receive 20 percent based upon 75 percent of the construction costs) for EWP recovery measures.  TA funds may be used in accordance with section 511.6F and as follows:

(i)  Salaries of NRCS employees related to the EWP activities

(ii)  Travel

(iii)  Overtime

(iv)  Services

· Planning

· Design

· Geotechnical and testing, etc.

· Inspection

· Administration and contracting activities

· Cultural resource investigation and evaluation surveys and assessments

· Develop endangered species biological assessments

(v)  Equipment and supplies

(vi)  Renting temporary office space (emergency operations center)

(vii)  Hiring part-time and non-USDA temporary staff

(3)  Section 511.6F of this manual specifies what types of technical services are reimbursable to project sponsors using TA funds.

    

   
     

     
    

[M_390___511_B_March 2014 - Amend. 4 - ]

Part 512 - Planning and Implementation

Subpart A – Planning
Subpart A – Planning  

  

512.0  NRCS Responsibilities During the USDA Response

A.  Immediately following a natural disaster event that could result in a watershed impairment, NRCS will conduct a rapid survey to determine the extent of disaster-related damages and provide the Watershed and Landscape Programs Division (WLPD) an estimate of eligible emergency watershed protection (EWP) recovery measures (see part 511, subpart A, section 511.1, of this manual).

B.  NRCS should invite potential project sponsors to participate in the rapid survey.

C.  If EWP eligibility is anticipated, transmit this information to National Headquarters (NHQ) using the “Electronic Disaster Report” (EDR) (see part 515, subpart C, section 515.20A) in accordance with part 511, subpart A, section 511.1, of this manual.

D.  Once a project sponsor has requested assistance indicating they can fulfill all project sponsor responsibilities in accordance with part 511, subpart B, section 511.10A, of this manual, NRCS will establish an interdisciplinary team to evaluate the site and complete the damage survey report with the sponsor.  Expertise recommended for the team should include the following disciplines:

(1)  Personnel with EWP Program experience

(2)  Engineering

(3)  Resource conservation and planning

(4)  Economics

(5)  Biology

(6)  Cultural resources including—

(i)  Archeology

(ii)  Anthropology

(iii)  Historic preservation

(7)  Contracting

(8)  Other disciplines as required

E.  Program eligibility determinations may not be delegated to any other entity.

512.1  Damage Survey Report (DSR) (See Part 515, Subpart C, Section 515.20C)

A.  Use of DSR

(1)  The DSR (see section 515.20C of this manual) is the primary document in the planning process to record all assessments, evaluation, and planning decisions for EWP recovery measures.  A DSR must be completed for every site determined eligible for EWP assistance.  The DSR must include sufficient data and information to document eligibility in accordance with section 511.3 of this manual.

(2)  DSRs may be completed in either of the following manners:

(i)  One eligible site per DSR

(ii)  Groups of similarly impaired sites within a limited geographic area per DSR

B.  Completing DSRs

DSRs must be completed within 60 days of the formal request for assistance from the sponsor.  Time extensions beyond 60 days may be granted to provide additional time to obtain information to prepare the DSR for events that are widespread or when access is limited.  Time extensions must be requested in writing from the Deputy Chief for Easements and Landscape Planning with sufficient documentation stating the reasons why the request is in the best interest of the Federal Government.  (See part 515, subpart F, of this manual for a sample letter requesting a time extension).

C.  Distribution of DSRs

States must maintain complete copies of the DSRs.  Electronic copies of DSRs are acceptable and preferred.  The first two pages of the DSR must be transmitted to the national EWP Program manager along with the funding request.  WLPD may request complete copies of DSRs as needed.

D.  Record Disposition of DSRs

DSRs for structural recovery measures will be maintained by the State Conservationist (STC) for a minimum of 10 years following the completion of EWP assistance to check for repetitive damage in accordance with Title 120, General Manual (GM), Part 408, Subparts A, B, and D, and this manual.  Electronic storage of DSRs is acceptable.  All other files will be maintained in accordance with current record disposition requirements.

E.  Project Sponsor Participation in Completing DSRs

A project sponsor’s representative must be provided an opportunity to participate on the DSR team.  Project sponsors will assist in developing priorities for EWP implementation within their specific jurisdiction.  (See 390-NEWPPM, Part 510, Subpart B, Section 510.5K(11).)

512.2  Planning Considerations

A.  Programmatic Environmental Impact Statement

A programmatic environmental impact statement (PEIS) has been developed in compliance with Public Law 91-190, the National Environmental Policy Act of 1969 (83 Stat. 852; 42 U.S.C. Section 4321 et seq.).  The PEIS was developed, in part, to facilitate NEPA compliance at the NRCS State level by allowing tiering by the State for certain EWP measures and activities.  The PEIS is available on the EWP Web site at the following URL: http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs143_007834.pdf.

B.  Planning EWP Recovery Measures

Planning for recovery measures will include the following:

(i)  Use of construction techniques and equipment that avoid or minimize adverse environmental impacts, and, to the extent that it is practical, preserve or improve the existing fish and wildlife habitat

(ii)  Consideration and documentation of the effect of proposed emergency measures on natural and cultural resources through an environmental evaluation process

(iii)  Compliance with NEPA and all other local, State, Tribal, and Federal environmental laws (e.g., the Endangered Species Act, section 404 of the Clean Water Act, the National Historic Preservation Act, as well as any applicable State and Tribal statutes (see Title 190, National Environmental Compliance Handbook (NECH)).

(iv)  Emphasis on measures that are economical and accomplished by using the least damaging practical construction techniques and equipment that retain existing characteristics of the landscape and habitat as possible

(v)  Measures that are technically sound; meet all Federal, State, Tribal, and local laws and regulations; and protect public health and safety

C.  Alternative Recovery Measures

Alternative solutions must be considered (e.g., structural, nonstructural, bioengineering, and floodplain easement).  See Title 210, National Engineering Manual (NEM); Title 210, National Engineering Field Handbook (NEFH), Chapter 18, “Bioengineering”; Title 210, National Engineering Handbook (NEH), Part 630, Chapter 12, “Hydrologic Effects of Land Use and Treatment”; and 190-NECH, for more information on alternatives.

D.  Floodplain Easements

Where applicable, floodplain easements should be considered for eligible sites where it is more economical and feasible to purchase an easement rather than implement or continue to implement recovery measures.  (See part 514 of this manual).

E.  NEPA, Cumulative Effects, and Tiering

(1)  The PEIS analyzed the cumulative effects of recovery work as required by NEPA.  The DSR has been revised to include an evaluation of all alternatives considered, including environmental, social, and economic considerations, as well as estimates of the cost of project installation.

(2)  The STC and the project sponsor are responsible for fully completing the DSR to identify the environmental effects or impacts (subpart C of this manual) that will result from the proposed action.

(i)  In many cases, the effects of the proposed actions are sufficiently described in the PEIS.  In such cases, no additional analysis is required for purposes of NEPA compliance because the site-specific activities will be addressed or tiered to the PEIS.  Additional analysis or documentation may be required, however, to comply with the ESA, NHPA, or other environmental requirements.

(ii)  If significant impacts are found as a result of the EWP environmental evaluation process and the proposed actions have not been sufficiently described in the PEIS, it is possible that an environmental assessment or environmental impact statement will be required.

(3)  For more information, refer to the NRCS policy for compliance with NEPA at 7 CFR Part 650; 190-GM, Part 410; and 190-NECH, Part 610.

512.3  Defensibility

A.  EWP recovery measures meet the defensibility test if the combined beneficial effects exceed the combined adverse effects and are—

(1)  In compliance with Federal, State, Tribal, and local laws.

(2)  Acceptable to affected individuals and communities.

(3)  Effective in restoring or protecting the natural resources.

(4)  Complete and include all necessary components.

(5)  Effective in achieving the desired outcome.

B.  To meet the defensibility test, the following criteria or issues from the DSR, environmental assessment, or environmental impact statement must be considered:

(1)  Economic

(2)  Environmental

(3)  Social

(4)  Technical feasibility

512.4  Technical Adequacy

Recovery measures correct the watershed impairment to either a stable or predisaster condition that will not cause increased adverse impacts.  All recovery measures must be technically adequate.  All work subject to NRCS standards must be carried out in accordance with the 210-NEM, Section 501.24; Title 180, National Planning Procedures Handbook (NPPH); Title 190, National Agronomy Manual (NAM); and the Field Office Technical Guide (FOTG).

512.5  Cultural Resources

A.  General

(1)  Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires NRCS to take into account the effects of program and project activities on historic and cultural resources listed in or eligible for listing in the National Register of Historic Places.  Compliance with section 106 must occur through consultation with the appropriate State historic preservation officer (SHPO) or Tribal historic preservation officer (THPO) and Tribes as appropriate.  See 36 CFR Sections 800.3 to 800.6 for the implementing regulations that define the standard process for compliance.

(2)  Emergencies are addressed in 36 CFR Section 800.12, which encourages agencies to develop procedures for use during emergency programs when responding to a disaster or emergency declared by the President, a Tribal government, or State Governor when responding to other immediate threats to life or property.  These procedures are developed in consultation with the SHPO, THPO, and federally recognized Tribes as part of each State-level agreement and Tribal consultation protocol or a stand-alone predisaster agreement (to be incorporated into the State's emergency recovery plan).  Where approved by the Advisory Council on Historic Preservation (ACHP), the procedures will satisfy section 106 responsibilities.  (See Title 190, National Cultural Resources Procedures Handbook, Part 601.)

B.  Costs

Costs associated with compliance with NHPA will be included in the total cost of the EWP measures, which may include resource surveys, recovery, and mitigation.

C.  Waivers from the NHPA

(1)  Section 110(j) of the NHPA, as implemented by 36 CFR Part 78, permits the Chief or the Chief’s designee to waive requirements of the remainder of section 110 (including development of agency emergency policy for Section 106 compliance) if it is determined that emergency action is necessary to ensure the immediate “preservation of human life or property.”

(2)  A waiver may be invoked in only a limited range of circumstances involving a “major natural disaster or imminent threat to the national security” according to 36 CFR Section 78.3.  In such cases, the Chief or designee must notify the Secretary of the Interior in writing within 12 days and identify the following:

(i)  The major disaster necessitating the waiver

(ii)  The period of effect of the waiver (generally no more than 30 days after determining that disaster assistance is needed)

(iii)  The parts of section 110 that have been waived

(iv)  The geographic area to which the waiver applies

(v)  Measures to be taken to minimize harm to historic properties

(3)  In all cases, information copies of this notice must also be forwarded to the ACHP, the SHPO, and the NRCS Federal preservation officer at NHQ.

    

  
    

      
      

[M_390___512_A_March 2014 - Amend. 4 - ]

Subpart B – Implementation
Subpart B – Implementation  

 

512.10  Agreements

A.  Installation of emergency watershed protection (EWP) recovery measures may be accomplished using contracts and certain types of agreements.  The type of contract depends on the timeframe for starting and completing the work.  Project agreements include any agreement entered into by the NRCS and sponsors in which detailed work arrangements are established for the installation of cost shared measures.  The responsibilities of all parties involved and implementation procedures for the project are detailed in the project agreement.

(1)  Agreements

(i)  NRCS and a project sponsor may jointly install work under the EWP using a project (cooperative) agreement in accordance with the NRCS contracting policy.  Project (cooperative) agreements must define the contract, use of the project sponsor’s forces, cost sharing, and administrative procedures that will be used to carry out the selected method of installation.  The project sponsors may choose to contract for engineering designs and cost estimates, installation of the EWP measures, and construction phase services, or they may use their own forces.

(ii)  NRCS must ensure the quality of the design, contracting, and any construction carried out by project sponsors through design quality reviews or other means established by the State Conservationist (STC), and in accordance with the Title 210, National Engineering Manual (NEM), and the current administrative services policy.  Structural practices designed by non-NRCS personnel will be prepared under the direction and supervision of a professional engineer licensed in the State where the measures will be installed.  All design reviews will be in accordance with the 210-NEM, Part 511, including any procedures established by the State conservation engineer (SCE).  Predesign conferences for more complex measures must be held with appropriate representatives from NRCS, the project sponsors, and the architectural and engineering firm, if used.

(iii)  The project (cooperative) agreement approach may extend the capacity of NRCS to provide assistance under the EWP program.  It may also provide the project sponsor with primary control of the installation process.  In addition, it may match the level of cooperative work to the project sponsor’s capability and resources.  For example, the project sponsor might lack or be unable to obtain contract administration assistance, but might have personnel or be able to secure professional engineering and other technical services that are able to evaluate, design measures, and prepare contract documents.  NRCS could provide contact administration with the project sponsor preparing the engineering drawings and specifications.  The cooperative agreement tailored to this type of capability would list the division of responsibilities.

(iv)  The project sponsor must provide information to confirm that they have the capability to perform the identified tasks detailed in the cooperative agreement.  (See Title 390, National Emergency Watershed Protection Program Manual (NEWPPM), Part 511, Section 511.3B(2) for sponsor requirements.)  The STC will evaluate those capabilities before signing the agreement.  The “Administrative Readiness Questionnaire” may be used to help evaluate the sponsor’s administrative capabilities.  (See 390-NEWPPM, Part 515, Subpart C, “Forms.”)

(v)  Regardless of the type of agreement that will be used, all project cooperative agreements that provide financial assistance must meet the applicable NRCS requirements, as well as the applicable Federal Regulations.  (See 390-NEWPPM, Part 515, Subpart D, “Statutes and Regulations.”)

(vi)  In addition, NRCS must ensure that all required prerequisites to sign a project agreement for the installation of recovery measures are met.

B.  Types of Agreements

(1)  Project Agreement for a Federal Contract.—A project agreement for Federal contracting may be used for installation of recovery measures.  This is applicable if the works of improvement are to be installed by NRCS under a Federal contract.  This work is normally performed under a competitively awarded contract.

(2)  Project Agreement for a Non-Federal Contract.—A project agreement for non-Federal contracting may be used.

(i)  This is applicable if the works of improvement are to be installed by the project sponsor under a locally awarded contract and NRCS is to prepare the invitation for bid or to assist in administering the nontechnical aspects (such as general provisions) of the contract (see section 510.40).

(ii)  This work should also be performed under a competitively awarded contract.  In this type of contract, the project sponsor is normally referred as the contracting local organization.  In a project sponsor contract, the project sponsor may perform a portion of the construction work.

(3)  Force Account Project Agreements.—Force account agreements may be used for project installation.

(i)  This method is used when the project sponsor performs the work using their equipment and personnel.  The project sponsor may supplement its equipment through rental of minimal amounts of equipment.  Project sponsors must submit a plan of operations to NRCS for approval prior to use of a force account agreement.  The project sponsor must keep accurate records of the cost of all the work performed.

(ii)  This type of project agreement requires substantial construction oversight and imposes an administrative burden on the parties to the agreement.  Difficulty may arise in coordinating force account work with ongoing duties and other work that is required of the project sponsors workforce.

(4)  Performance of Work Project Agreements.—Performance of work agreements require the value of work performed by the project sponsors be determined by negotiation between the project sponsors and NRCS and be included in the project agreement.  The NRCS must estimate the cost of the work to establish the maximum value of work before signing the agreement.

(i)  This type of project agreement may be used for project installation.  This is applicable if the works of improvement are to be cost shared on a percentage basis.

(ii)  This work should normally be performed under a competitively awarded contract.  However, the project sponsors may be able to perform certain elements of the project; work with their own forces; or with contributed labor, equipment, or materials in lieu of providing cash.

(5)  Project Agreement for Division of Work.—Division of work agreements may be used for cost sharing land treatment measures.  These are measures that are authorized under Public Law 83-566, the Watershed Protection and Flood Prevention Act of 1954, as amended, for watershed work.

(i)  This type of project agreement may be used for project installation.  The work is divided between NRCS and project sponsor with the details of each organization’s responsibilities spelled out in the project agreement.

(ii)  If the work is to be shared on a division of work basis, it must be described in the watershed plan, and Title 210, National Engineering Handbook (NEH), Section 15, Chapter 11, and cost estimates must be included in the supporting tables.  The project sponsor is not required to keep records of expenditures.  Detailed NRCS cost estimates are maintained to document that Public Law 83-566 costs do not exceed the authorized rate.

 512.11  Contracts

A.  Contracts for the installation of practices for NRCS projects can be divided into two main categories: Federal contracts and non-Federal contracts.  These contracts can be further divided into formal or informal, depending on the value of the contract.  Under the Federal Acquisition Regulation (FAR), as of 2005, formal contracts must be used for projects with a value greater than $100,000, while informal contracts and contracting procedures may be used for projects with a value of $100,000 or less.  Informal contracts are those put in place using simplified acquisition procedures.

B.  Federal Contracts

(1)  Federal contracts are used when the project sponsor does not have the capacity to solicit, award, and administer a locally awarded contract but has the necessary resources to accomplish the work with their own personnel under certain types of agreement actions.  There are many Federal contract types that may be used under the acquisition regulations.  The appropriate type of contract and method of solicitation depend on the specific situation.  NRCS Federal procurement actions must comply with all applicable regulations, including, but not limited to the following:

(i)  FAR

(ii)  Agricultural Acquisition Regulations

(iii)  NRCS Acquisition Regulations

(2)  Federal contracts that might be applicable to EWP recovery work include fixed price, cost reimbursement, incentive, time and materials, labor hours, equipment rental, and letter contracts.  These contracts can be formal or informal (simplified procedures), depending on the value of the contract.

(i)  Fixed-Price Contracts.—This type of contract places the maximum risk and full responsibility on the contractor for all costs and resulting profit or loss associated with the work.  A fixed-price contract provides the maximum incentive for the contractor to control costs and perform effectively and imposes a minimum administrative burden on NRCS and project sponsors.  This is the preferred type of contract and should be used to the maximum extent practicable. 

·         The contract requires the contractor to understand, in detail, what is to be constructed before bidding to do the work.  This requires a design that includes detailed drawings, specifications, and a bid schedule containing a bid item for each major item of work.  The designer must provide a cost estimate by bid item so that the cost of the work can be estimated and the contracting officer can assess the fairness of the bids.

·         Most fixed-price contracts are awarded after contractors have submitted a sealed bid in response to an invitation for bids (IFB).  The IFB includes the drawings and specifications for the work and specific contract requirements.

·         Fixed-price contracts may be accomplished using either simplified or formal acquisition procedures, depending on the value of the project.  The design effort and level of detail may be the same for simplified fixed-price contracts as it is for formal fixed-price contracts.

(ii)  Cost-Reimbursement Contracts.—This type of contract is suitable for use only when the cost of the work cannot be estimated with sufficient accuracy to use a fixed-price contract.

·         The cost of the work is estimated for the purpose of obligating funds, but a detailed cost analysis is not required.  The contractor must have an accounting system adequate for determining incurred costs that are reimbursable.

·         This type of contract requires significantly more Government oversight during the construction phase to document efficient construction methods and efficient cost controls are being used.  It provides little incentive for the contractor to control costs, perform effectively, and imposes a much larger administrative burden on the contractor, NRCS, and the sponsors.

(iii)  Incentive Contracts.—This type of contract links the contractor’s profit to performance by establishing reasonable and attainable targets that are clearly communicated to the contractor.  These contracts are designed to motivate the contractor in specific areas that might not otherwise be emphasized, such as motivation for early completion.  Incentive contracts discourage inefficiency and waste.  Incentive contracts may be fixed-price incentive contracts or cost-reimbursable incentive contracts.  These types of contracts are normally used for performance-based service contracts and are rarely used for construction work.

(iv)  Time-and-Materials Contracts.—This type of contract is used to procure supplies or services based on the direct labor and materials costs.  Time-and-materials contracts should be used only when it is not possible to accurately estimate the extent or duration of work or to anticipate costs with any degree of confidence.  With this type of contract, there is no incentive for the contractor to control costs, significant Government oversight is required, and a much larger administrative burden is imposed on NRCS and the sponsor.

(v)  Labor-Hour Contracts.—This a variation of the time-and-materials contract, differing only in that materials are not supplied by the contractor.

(vi)  Equipment Rental Contracts.—This type of contract is used in instances where a fixed-price construction contract would be impractical because of the nature of the work and when it would not be feasible to prepare detailed drawings and specifications.  It requires substantial construction oversight and imposes an additional administrative burden on NRCS.

C.  Non-Federal Contracts

(1)  Non-Federal contracts, like Federal contracts, can be categorized as formal or informal.  They may also take the form of fixed-price, cost-reimbursement, or incentive type contracts in accordance with the project sponsor’s procurement regulations and the Federal requirements imposed on the project sponsor as provided in 7 CFR Section 3016.36.

(2)  Project sponsor contracts are used when the project sponsor is performing contracting operations for the installation of NRCS financially assisted works of improvement.  The contract language, including general and special contract clauses, will likely differ from one entity to another.  The project sponsor, NRCS, or both, will provide a quality assurance (QA) inspector to verify work is performed in accordance with design and contract requirements.  In other instances, the project sponsor may require substantial NRCS assistance to develop and administer the contract, and may incorporate NRCS general and special provisions in the contract.  The amount of NRCS involvement in non-Federal contracts may depend on the capabilities of the contracting organization.

(3)  The project sponsor arranges, awards, and administers the contract for the acquisition of services and the installation of the recovery measures.  Utilizing the project sponsor’s capacity to administer contracts enables the use of State, Tribal, or local contracting procedures.

(4)  Project sponsor contracting should be considered only when the project sponsor has the necessary organizational capacity, expertise, and ability to successfully advertise, award, and administer contracts in accordance with the State, and local procurement regulations and applicable Federal requirements.

(i)  Fixed-Price Project Sponsor Contracts.—This type of contract may include both construction contracts and vegetative contracts.  A fixed-price project sponsor contract is similar to a fixed-price FAR contract, in that it requires the same degree of detailed design and it places the maximum responsibility on the contractor, with the maximum incentives to perform in an efficient, cost-effective manner.

·         A project sponsor contract awarded under informal or simplified procedures may require the same degree of detailed design as a formal contract.

·         As with fixed-price FAR contracts, the level of construction oversight and contract administration may be minimized with a fixed-price project sponsor contract.  This is not to infer that no QA inspection is needed; only that the intensity of inspection may be less on this type of contract than on other contract types, such as equipment rental contracts, where the inspector must verify the hours of equipment, personnel, and must direct the work.

(ii)  Time-and-Materials Project Sponsor Contracts.—These are non-Federal contracts used to procure supplies or services based on direct labor and materials costs.  Time-and-materials contracts should be used only when it is not possible to accurately estimate the extent or duration of work or to anticipate costs with any degree of confidence.  With this type of contract, there is no incentive to the contractor to control costs, significant project sponsor oversight is required, and a much larger administrative burden is imposed on the project sponsor and possibly on NRCS (depending on NRCS’s level of involvement).

(iii)  Labor-Hour Contracts.—This is a variation of the time-and-materials contract, differing only in that materials are not supplied by the contractor.

(iv)  Equipment Rental Contracts.—These are non-Federal contracts used in instances where a fixed-price project sponsor construction contract would be impractical because of the nature of the work, where it would not be feasible to prepare detailed drawings and specifications.  It requires substantial construction oversight and imposes an administrative burden on the project sponsor and NRCS.

512.12  Land Rights and Permits

A.  Project Sponsor Responsibility

The project sponsor is responsible for obtaining the following:

(i)  Real property rights from affected landowners for repair or restoration work to be performed on their property, including the use of imminent domain or other court action, if necessary.

(ii)  Any related environmental and construction permits.

(iii)  Location, removal, or relocation of utilities.

B.  NRCS Employee Prohibition

NRCS employees are prohibited from obtaining land rights or acting as a representative of the project sponsor.

C.  Oral Permission of Land Rights

In cases where a landowner agrees to allow construction on his or her property but refuses to sign a written agreement, oral permission to project sponsors may be accepted provided such permission is documented in a statement signed by the person who receives the verbal permission and is witnessed by another party.  An NRCS employee may not be the witness for the statement.  A representative of the project sponsor requesting the assistance may be the witness of the statement.

D.  Land Rights Not Provided

If adequate land rights cannot be obtained, EWP assistance will not be provided on that portion of the project.  NRCS will not continue with the project if the area cannot be bypassed, unless a project of lesser scope will still provide adequate protection and recovery measures meeting all other EWP eligibility requirements.

E.  Assurance Relating to Real Property Acquisition

Completion of Form NRCS-ADS-78, “Assurances Relating to Real Property Acquisition” (see 390-NEWPPM, Part 515, Subpart C, Section 515.20G), and a supporting attorney’s opinion, as applicable, must precede the start of construction.  (See part 515, subpart F, section 515.52, of this manual for a sample letter.)

512.13  Performance Time Limits

A.  General

(1)  EWP activities are performed under emergency conditions and NRCS actions are governed accordingly; they become the first priority until all recovery measures have been completed.

(2)  The performance time starts as soon as the STC receives notice that the funds are available.  (See part 510, section 510.5A(3), and part 511, section 511.11, of this manual.)

(3)  Except for exigent situations, funds must be obligated by the STC and construction completed within 220 calendar days after the date funds are made available to the STC.  Funds are considered available on the first day that funds are in the Foundation Financial Information System (FFIS).

(4)  For an exigency, funds must be obligated by the STC and construction completed within 10 days from the date that the site is accessible or when funding is made available.  Funds are considered available on the first day that funds are in FFIS.

(5)  For 220-day emergency projects, the STC will submit a report to the Deputy Chief for Easements and Landscape Planning (ELP) every 60 days from the date the project was funded.  (See 390-NEWPPM, Part 515, Subpart C, Forms, Section 515.20E, “EWP Implementation Report.”)  The report must, at a minimum, include the following:

(i)  Funds obligated and funds disbursed

(ii)  Percent of work completed

(iii)  Current estimate of eligible work unfunded

(iv)  Any unusual conditions or situations that may delay the project completion within the 10 days and what efforts are being taken to address the situation

(v)  Human interest examples

(vi)  Urgent problems and or needs

(6)  For exigent situations, the STC must keep the Deputy Chief for ELP informed of the status of relieving the exigency.  Reports must be in writing and submitted as often as needed to keep the Deputy Chief for ELP informed of progress and any unusual situations.  (See 390-NEWPPM, Part 515, Subpart C, Forms, Section 515.20E, “EWP Implementation Report.”)  The report must, at a minimum, include the following:

(i)  Funds obligated and funds disbursed

(ii)  Status of correcting the exigency situation

(iii)  Percent of work completed

(iv)  Current estimate of eligible work unfunded

(v)  Any unusual conditions or situations that may delay the project completion within the 10 days and what efforts are being taken to address the situation

(vi)  Human interest examples

(vii)  Urgent problems and needs

B.  Performance Time Extensions

(1)  The sponsor is expected to complete the emergency work within the allotted time (220 days for emergency projects and 10 days for exigent situations).  Performance time should only be extended in exceptional circumstances—it should not be the norm.  Performance time extensions may be granted to ensure that all limiting concerns can be properly addressed, such as the following:

(i)  Fish and wildlife migration

(ii)  Nesting seasons or other seasonal restrictions

(iii)  Acquisition of native plant materials

(iv)  Limited construction season because of climatic conditions

(v)  The magnitude of the disaster is such that the work cannot be completed within the time constraints

(vi)  Permitting issues

(vii)  Consideration of historic resources

(viii)  Endangered species requirements

(2)  The STC has the authority to extend performance time for up to 60 days for 220-day emergency projects and up to 10 days for exigent situations.  Performance time extensions must be justified and documented in writing and must include an explanation of why the request is in the best interest of the Federal Government.  The documentation must include the following:

(i)  A written request from the sponsor

(ii)  Reasons why the project will not be completed within the time requirement

(iii)  An explanation of why the limiting concern cannot be addressed within the performance time limits and what actions are being taken to address the concern

(iv)  A revised performance schedule

(v)  Actions taken by the sponsor to complete the project within the time extension

(3)  Extensions may only be granted and executed before the expiration of the project time limits (220 days or 10 days for exigencies).

(4)  Time extensions granted by the STC must be in writing to the sponsor, with a copy to the Deputy Chief for ELP and the national EWP Program manager.  The letter must clearly state the expiration date of the project and the new extension date.

(5)  For an extension of performance time greater than 60 days for 220-day projects and greater than 10 days for exigent situations, there must be compelling reasons (acts of God, etc.) why the performance time needs to be extended.  For these rare situations, the STC must send a request in writing to the Deputy Chief for ELP.  The request must explain why the time extension is necessary and why it is in the best interest of the Federal Government.  Requests must include the documentation as listed in part 512, subpart B, sections 512.13B (1) and (2) of this manual.

(i)  Extension requests for 220-day emergency projects must be received at least 30 calendar days before the expiration date of the project.

(ii)  Extension requests for exigent situations must be received before the expiration date of the project.

(iii)  Expiration dates for project agreements and contracts must be written to coincide with the EWP mandatory timeframes of 10 days for exigencies and 220 days for nonexigencies.

(iv)  Extensions will not be granted for projects where no agreement has been signed with the project sponsors or financial assistance funds have not been expended in the 220-day period.  Funds will be returned to the national EWP account.  A review and evaluation will be done to determine if the project is still viable, and if determined to be so, it will be placed on the national waitlist to be funded at such time when funding becomes available.

(v)  Blanket extensions will not be granted for a project event code.  Extensions will only be given for specific project sites under an event code, and sites must be identified by project code and DSR number.

(vi)  Extensions will only be granted for up to 220 days on project requests that exceed the 220-day rule.

512.14  Priority Setting

A.  General

Priorities will be established for installing the EWP measures so that the most critical work will receive prompt attention.  In Presidentially declared disasters, NRCS must coordinate with Federal Emergency Management Agency officials or the State agency that has emergency recovery responsibilities.

B.  Funding Priorities for Recovery Measures

NRCS will provide EWP assistance based on the following criteria, which are listed in order of importance (see 7 CFR Section 624.8(c)(3)):

(i)  Exigent situations

(ii)  Sites where there is a serious, but not immediate threat to human life

(iii)  Sites where buildings, utilities, or other important infrastructure components are threatened

(iv)  Other funding priorities established by the Chief of NRCS

C.  Considerations

When reviewing paragraph B above, NRCS will take into account the following resources since they may affect the priority including, but not limited to, sites—

(i)  Inhabited by federally listed threatened and endangered species or containing federally designated critical habitat where the species or the critical habitat could be jeopardized, destroyed, or adversely modified without recovery measures.

(ii)  That contain or are in proximity to cultural sites listed on the National Register of Historic Places where the listed resource would be jeopardized if the recovery measures were not installed.

(iii)  Where prime farmland supporting high-value crops is threatened.

(iv)  Containing wetlands that would be damaged or destroyed without recovery measures.

(v)  That have a major affect on water quality.

(vi)  Containing unique habitat, including but not limited to areas inhabited by State-listed threatened and endangered species, fish and wildlife management areas, or State-identified sensitive habitats.

D.  Priority List

(1)  For projects on the national EWP waiting list, States must maintain and update the priority status of each DSR on a quarterly basis.  (See part 511, subpart B, section 511.12B(3) of this manual.)  Change in priority status will be based on criteria in part 512, subpart B, sections 512.14 B and C, of this manual.

(2)  Any changes to the EWP wait list must be submitted to the national EWP Program manager on a quarterly basis.  (See part 511, subpart B, section 511.12B(2), of this manual.)

512.15  Operation and Maintenance (O&M)

A.  On a case-by-case basis, NRCS will determine the need for EWP O&M plans and agreements.  O&M activities will be in accordance with the National Operation and Maintenance Handbook.

B.  The project sponsor must sign an O&M agreement and carry out the O&M plan for the entire period prescribed.  Project sponsors must have or obtain land rights adequate for carrying out their O&M responsibilities.

C.  Project sponsors may contract completion of the O&M plan, but the project sponsors remain legally responsible for performing O&M.


     
     

    
     

[M_390___512_B_March 2014 - Amend. 4 - ]

Part 513 - Post-Disaster Activities

Subpart A – General
Subpart A – General   

  

513.0  Followup Coordination

State Conservationists (STCs) should meet with other agencies, sponsors, partners, and landowners prior to submission of the final report (see section 513.1 of this manual) to discuss the activities and any opportunities for future improvement of program delivery.  Recommendations for improvement will be included in the final report.

513.1  Final Report

A.  The STC will submit a final report (see Part 515, Subpart C, “Forms”) to the Director, Watershed and Landscape Programs Division (WLPD), upon completion of all emergency watershed protection (EWP) work for each numbered project.  The information required in the final report will be obtained from the damage survey reports prepared for the natural disaster or gathered through the administration of the contract or cooperative agreement.  This report must describe the following:

(1)  Emergency recovery measures installed

(2)  Financial assistance (FA) and technical assistance (TA) expenditures

(3)  Benefits provided

(4)  Excess FA and TA funds returned to National Headquarters

B.  The final report may be transmitted electronically

C.  Final reports are considered overdue 90 days after the project completion date.

513.2  EWP Accomplishment and Benefits Database

The Director, WLPD, will maintain a database to evaluate the effectiveness of the EWP program.  The database will include information from the final reports submitted in accordance with section 513.1 of this manual.

513.3  EWP Performance Measures

EWP performance measures have been established, and efficiency and long-term measures will be tracked using the final reports.

 


     
    

   

[M_390___513_A_March 2014 - Amend. 4 - ]

Part 514 - Floodplain Easement

Subpart A – General
Subpart A – General  

 

514.0  Purpose

A. The Emergency Watershed Protection for Floodplain Easements (EWP-FPE) Program provides an alternative measure to traditional EWP recovery (7 CFR Section 624.10).  The EWP-FPE authority provides NRCS the opportunity to purchase floodplain easements as an alternative measure to traditional EWP recovery where sites meet EWP-FPE eligibility criteria and it is determined that acquiring an easement in lieu of recovery is the more economical and prudent approach to reducing a threat to life or property or as specifically authorized through individual appropriations.  Unless otherwise stated in this manual, policy for ranking, acquisition, compensation, restoration, and management of EWP-FPE is contained in Title 440, Conservation Program Manual (CPM), Part 514, “Wetlands Reserve Program.”

B. NRCS will only purchase floodplain easements from landowners and on a voluntary basis.

C. Floodplain easements established under this part will be—

(1) Held by the United States, through the Secretary of Agriculture.

(2) Administered by NRCS or its designee.

(3) Perpetual in duration.

514.1  Responsibilities

A. National Headquarters Staff

The Deputy Chief for Programs and the Director, Easement Programs Division (EPD), will—

(i) Approve funding for the purchase of EWP-FPE.

(ii) Coordinate the EWP-FPE between States.

(iii) Ensure that statutes, regulations, and policies are followed.

(iv) Ensure that the program is implemented uniformly.

(v) Make decisions on waiver requests related to EWP-FPE.

B. State Conservationist (STC)

The STC or designee is responsible for—

(i) Implementing the EWP-FPE program in the State.

(ii) Ensuring that only eligible work is carried out and that it is in compliance with all statutes, regulations, and policies.

·         Establishing priorities

·         Determining easement compensation rates in accordance with this part

·         Submitting a request for funding

·         Ensuring sufficient staffing to implement the EWP-FPE program

·         Coordinating with the National Headquarters staff and others as appropriate

·         Selecting the number of applications that can be funded based on available funding

·         Notifying landowners of selection

C. State EWP-FPE Program Manager

The State EWP-FPE program manager or designee is responsible for—

(i)  Keeping the STC informed of all EWP-FPE activities.

(ii)  Providing overall coordination of the EWP-FPE Program.

(iii)  Ensuring proper coordination among Federal, State, Tribal, and local agencies in developing a list of priorities on all proposed EWP-FPE project transactions.

(iv)  Providing training, and technical and administrative assistance to local field offices.

(v)  Tracking program activities, defensibility of work, and expenditures of funds.

D. State Administrative Officer (SAO)

The SAO, working with their contracting officer and budget officer is responsible for—

(i)  Working with the State EWP-FPE Program manager to initiate project and other agreements.

(ii)  Awarding and administering all Federal acquisition contracts.

(iii)  Accepting the completed work for contracts that are completed using Federal acquisition procedures.

(iv)  Confirming that funds are available to the STC prior to the execution of EWP-FPE funding agreements, contracts, or payments.

E. District Conservationist (DC) and NRCS Local County or Parish Representative

The district conservationist and the NRCS local county or parish representatives are responsible for—

(i)  Accepting applications and applicable information from the landowner.

(ii)  Representing NRCS in interactions with landowners as delegated by the STC.

F. Public Affairs Specialist

The public affairs specialist is responsible for—

(i)  Preparing news releases regarding the EWP-FPE program.

(ii)  Web page information identifying NRCS EWP-FPE activities.

514.2  Eligible Land

A. NRCS may provide assistance for the purchase of floodplain easements based upon the STC’s determination that the current condition of the land or watershed impairment poses a threat to health, life, or property, and the assistance is consistent with applicable appropriations. 

B. NRCS may determine land is eligible under this section if any of the following apply:

(1) The floodplain lands were damaged by flooding at least once within the previous calendar year or have been subject to flood damage at least twice within the previous 10 years.

(2) Other lands within the floodplain are eligible, provided the lands would contribute to the restoration of the flood storage and flow, provide for control of erosion, or that would improve the practical management of the floodplain easement.

(3) Lands would be inundated or adversely impacted as a result of a dam breach.

C. Documentation that the land eligibility requirements have been met must be maintained in the official EWP-FPE case file for each enrollment.  Land eligibility documentation must include site specific evidence of damage by flooding or dam breach impacts to the offered area.  Site specific evidence should include photos, insurance claims, engineering reports, loss of crops or income on the property, or dam breach inundation area maps and may be supplemented by general information about the event, such as agency declarations or reports and articles from the media.  Other documentation may include items such as floodplain or topographic maps, soils information, hydraulic analysis, and other information to adequately document land eligibility determinations.

514.3  Ineligible Land

NRCS may determine that land is ineligible under this section if any of the following apply:

(1) Implementation of restoration practices would be futile due to onsite or offsite conditions, including where the State Conservationist determines to exclude enrollment of otherwise eligible lands if the participation of the adjacent landowners is essential to the successful restoration of the floodplain and those adjacent landowners are unwilling or ineligible to participate.

(2) The land is subject to an existing easement or deed restriction that provides sufficient protection or restoration, as determined by the Chief of NRCS, of the floodplain’s functions and values.

(3) The purchase of an easement would not meet the purposes of this part.

514.4  Compensation for Easements

A. NRCS will determine easement compensation in accordance with the procedures described in this manual as well as applicable regulation and other laws.

B. NRCS will document the economic rationale of projects under consideration for floodplain easements. Generally, the expected value of the property restored should exceed the cost of emergency measures, including consideration of environmental benefits.

C. NRCS will not acquire any easement unless the landowner accepts the amount of the easement payment that is offered by NRCS.  NRCS reserves the right not to purchase an easement if the easement compensation for a particular easement would be too expensive, as determined by NRCS.

D. NRCS may provide up to 100 percent of the restoration and enhancement costs of the easement. NRCS may enter into an agreement with the landowner or another third party to ensure that identified practices are implemented. NRCS, the landowner, or another designee may implement identified practices. Restoration and enhancement efforts may include both structural and nonstructural practices. An easement acquired under this part must provide NRCS with the full authority to restore, protect, manage, maintain, and enhance the functions and values of the floodplain.

514.5  Landowner Requirements

The STC will require participating landowners to—

(1) Comply with the terms of the easement.

(2) Comply with all terms and conditions of any associated agreement.

(3) Convey title to the easement that is acceptable to NRCS and warrant that the easement is superior to the rights of all others, except for exceptions to the title that are deemed acceptable by NRCS.

514.6  Restoration of Easement

Restoration on floodplain easements will include all necessary conservation practices, measures, and activities required to restore the floodplain functions and values to the natural conditions to the greatest extent practicable.  Restoration of natural conditions should result in a close approximation or mimicry of conditions and functions that existed prior to the conversion or manipulation of the site so as to recover the floodplain functions of the site.  Restoration may include both structural and nonstructural conservation practices to restore the floodplain functions and values including water storage and flow, erosion control, vegetative and biological communities, and to improve the practical management of the easement. Structures within the floodplain not necessary for the restoration of the floodplain, including buildings, must be demolished and removed, or relocated outside the 100-year floodplain or dam breach inundation area (section 514.40).

514.7  Enforcement of Easement

A. In the event of a violation of an easement, the violator will be given reasonable notice and an opportunity to correct the violation within 30 days of the date of the notice, or such additional time as NRCS may allow.

B. 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 floodplain functions and values or other rights of the United States under the easement. The landowner is liable for any costs incurred by the United States as a result of the landowner’s negligence or failure to comply with easement or agreement obligations.

C. In addition to any and all legal and equitable remedies available to the United States, NRCS may withhold any easement and cost-share payments owed to landowners any time there is a material breach of the easement covenants or associated agreements. 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.

D. NRCS is entitled to recover any and all administrative and legal costs, including attorney’s fees or expenses, associated with any enforcement or remedial action.

E. On the violation of the terms or conditions of the easement or related agreement, the easement remains in force and NRCS may require the landowner to refund all or part of any payments received by the landowner under this part, together with interest thereon as determined appropriate by NRCS.

F. Criminal laws relating to offenses against the United States apply in the administration of floodplain easements acquired under this part.

G. Easements acquired under this part may not be modified or terminated. Neither NRCS nor USDA has statutory authority to modify or terminate an existing EWP-FPE.  Landowners or modification project proponents should be informed that NRCS does not have authority to approve such a request without additional specific statutory authorization that provides for such modification or termination action.

 

    
  

     
     

[M_390___514_A_March 2014 - ]

Subpart B – Applications
Subpart B – Applications


514.10  Requesting Funds

A. Following a natural disaster and disaster declarations pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Public Law 93-288) or authorization by Congress allowing the purchase of floodplain easements, the State Conservationist (STC) must submit a written request for floodplain easement funding to the Deputy Chief for Programs.  The letter must include the nature and location of the event, the anticipated funding required and appropriate rationale for using floodplain easement in lieu of recovery.  The supporting documentation must provide sufficient evidence that the proposed action meets one of the eligibility requirements in section 514.2 of this subpart. 

B. If funds are being requested for the purchase of easements on lands with residences or other structures, the STC must provide documentation that the acquisition of the structure is part of a strategy that will result in the entire reach of the floodplain.  The relatively high cost of these transactions requires a greater level of documentation that the benefits to the floodplain outweigh the costs.  In addition, the STC must provide confirmation that the project sponsor will acquire fee title to the easement area. 

514.11 Landowner Information

A.  Application

(1)  Landowners may only enroll land in the Emergency Watershed Protection Program Floodplain Easements (EWP-FPE) through a permanent easement.  Landowners apply for the EWP-FPE using Form AD-1153, “Application for Long-Term Contracted Assistance.”  Applications for enrollment of land in EWP-FPE will be accepted during an announced signup period approved by the Chief or when the acquisition actions are necessary as an emergency measure and have been authorized by the Deputy Chief for Programs.

(2)  The EWP-FPE is not a Farm Bill conservation program, and applicants are not required to meet the adjusted gross income, highly erodible land, wetland compliance, or length of ownership requirements of the Farm Bill.

B.  Information Provided to Landowners

(1)  Upon application, the following information should be provided to the landowners to help them decide whether to continue with the application process:  

(i)  A list of the information to be provided to NRCS by the landowner

(ii)  A copy of a blank warranty easement deed (Form NRCS-LTP-20) and associated exhibits.  This deed is the document used by a landowner to grant and convey to NRCS an easement with appurtenant rights of access to the easement area.  Revisions to the warranty easement deed are not permitted.  An addendum may be added to the document for special requirements that may warrant some individual reference, such as a special instance under State law, but only if approved by the Easement Programs Division (EPD) in consultation with the Office of the General Counsel (OGC).

(iii)  Notification of landowner requirement to provide clear title and written recorded access rights.

(iv)  A copy of Form AD-1158, “Subordination Agreement and Limited Lien Waiver.”  This waiver is used to subordinate mortgages and obtain limited lien waivers to the United States, when applicable, with respect to any and all interests of the subordinating party in or related to the easement area.  The form will be recorded with the warranty easement deed, if applicable.

(v)  A copy of the Form 1157, “Option Agreement to Purchase” (OAP).  The landowner and the State Conservationist must sign this document before NRCS incurs costs for surveys and closing procedures on the easementThe APCE is the obligating document for easement acquisition funds only.

C.  Information Provided by Landowners

(1)  Before NRCS proceeds further, the applicant must be established in the Service Center Information Management System (SCIMS) and have the following documents completed, reviewed, and filed at the USDA service center:

(i)  Copy of deed or other evidence of ownership.

(ii)  If there are multiple landowners listed on the deed, landowners must provide a breakdown of ownership shares.

·         Proof that the entity is a legal and valid entity in the State where the land is located, usually by a certificate of good standing from the secretary of the State

·         Evidence of signature authority as described in Title 440, Conservation Programs Manual (CPM), Part 514, Subpart B, Section 514.12D

·         A Dun and Bradstreet Universal Numbering Systems (DUNS) number and evidence of registry in the System for Award Management (SAM)

(2)  Eligibility must be determined for all landowners of record, as listed on the deed or other evidence of ownership documentation.

(3)  In accordance with FSA Handbook 1-CM, FSA will work with customers to gather any additional information needed to complete the SCIMS record.  Using the information listed above, FSA will establish the specific business type for the joint operation or legal entity.

(4)  Additionally, the landowner is responsible to provide—

(i)  Site-specific evidence of damage by flooding or dam breach impacts to the offered area.  Site-specific evidence should include photos, insurance claims, engineering reports, loss of crops or income on the property, or dam breach inundation area maps and may be supplemented by general information about the event, such as agency declarations or reports and articles from the media. 

(ii)  Documentation of other disaster recovery assistance received and utilization of such funds. 

(iii)  Evidence of sufficient and acceptable legal access to the easement area.

(iv)  Any items to be provided to the appraiser.

514.12 Eligibility Determination

Each State must develop and utilize an application checklist to ensure that all required information from the applicant is provided before the application is considered for funding.  Documentation of eligibility evaluations and determinations must be maintained in the official EWP-FPE case file folder for each application.  Evaluation of the applications involves three primary steps:

(1)  Determine landowner eligibility and conduct preliminary investigations.     

(i)  Determine landowner eligibility based on information provided by landowner.

(ii)  Determine if evidence of flood damage provided by landowner is sufficient.  

(iii)  Determine if legal access provided by landowner is sufficient and acceptable. 

(iv)  Conduct a preliminary title search to determine if there are title issues that would preclude or delay enrolling the land in EWP-FPE.

(v)  Conduct a preliminary records search as part of environmental due diligence/all appropriate inquiry to ensure there are no potential hazardous substance issues that would preclude or delay enrollment of the land in EWP-FPE or affect the easement value.

(vi)  Preliminary investigation services will be procured using an appropriate procurement method, and funds will be obligated to the procurement document for obtaining title and record search services.  It is recommended that States use a blanket purchase agreement or an indefinite quantity and indefinite delivery (ID/IQ) contract, with funds obligated as services are ordered.   Funds will not be obligated to each individual application.  Generally, NRCS secures preliminary title search from the vendor with whom NRCS intends to acquire easement closing services.

(2)  Determine land eligibility and conduct onsite ranking and review.

(i)  Determine if the land meets one or more of the requirements to be eligible for enrollment as listed in EWP-FPE statute, regulation, and section 514.2 and any additional requirements set forth in specific funding authorizations and guidance.

(ii)  Evaluate the site and complete ranking worksheet (see 440-CPM, Part 514, Subpart C, for guidance).  Complete the “Hazardous Substance Examination Checklist” (see 440-CPM, Part 514, Subpart J, Section 514.95A), “Preliminary Certificate of Inspection and Possession” (see 440-CPM, Part 514, Subpart J, Section 514.97B), National Historic Preservation Act assessment, National Environmental Policy Act environmental assessment (see 440-CPM, Part 514, Subpart J, Section 514.97D), and an Endangered Species Act assessment.

(ii)  Additional documentation that the land meets the land eligibility requirements related to damage from flooding or impacts of dam breach should also be obtained during onsite review to confirm and supplement documentation provided by the landowner during the application process.  Documentation of land eligibility must be filed and maintained in the official EWP-FPE case file for each enrollment.

(iii)  Develop a preliminary restoration plan during or after the onsite visit but prior to funding. The purpose of the preliminary plan is to document that the proposed restoration meets the objectives of the landowner and the requirements of the EWP-FPE as determined by NRCS.  The landowner may sign the preliminary restoration plan to document that they acknowledge receipt of the plan describing the intended restoration activities.  The plan will also include an estimate of restoration costs, which is used for ranking purposes only.  This plan will not be used to estimate costs for restoration fund obligation because it is only preliminary and not generally accurate enough for this purpose. 

Note: Restoration on floodplain easements will include all necessary conservation practices, measures, and activities required to restore the floodplain functions and values to the natural conditions to the greatest extent practicable.

(iii)  Verify by a field visit that the proposed boundary and ingress and egress route are acceptable to NRCS.  At minimum, land access should be all-wheel-drive accessible. 

(iv)  Determine if the land is ineligible for reasons that may include but are not limited to a determination that—

·         Implementation of restoration practices would be futile due to onsite or offsite conditions.  Such conditions may include presence of hazardous substances, potential offsite impacts from restoration or other issues. 

NRCS will not enroll property where hazardous substance concerns are identified and that NRCS determines pose an unacceptable risk or a risk sufficient to make restoration not feasible. 

·         The land is subject to an existing easement or deed restriction that provides sufficient protection or restoration, as determined by the Chief of NRCS, of the floodplain’s functions and values.

·         The purchase of an easement would not meet the purposes of this part (see 440-CPM, Part 514, Subpart B, Sections 514.15B(4)-(6)).

·         Landowner is unable to provide acceptable title and legal access or if the landowner is unable to provide evidence that all hazardous substance issues have been fully remediated.

(3)  Select applications for funding.

(i)  The STC will list all eligible applications received during the announced signup period in rank order, beginning with the highest-ranked easement first.

(ii)  Once applications are listed in rank order, the STC identifies the number of applications that can be funded based on the guidance provided by EPD.

(iii)  In general, projects should be selected as prioritized based on the outcome of the ranking process.  However, NRCS has the authority to establish priorities and circumstances under which projects may be selected outside of a strictly applied ranked order.  Circumstances that would warrant these selections may include those identified in 440-CPM, Part 514, Subpart C, Section 514.23.  The selection rationale must be documented, either on the ranking form itself or through supplemental documentation used in the selection process.  Correspondence and supporting documents related to such decisions must be maintained in the official EWP-FPE case file folder for the selected application.

(iv)  If NRCS determines that a project tentatively selected for funding will require an appraisal, the affected landowners will be sent a letter of tentative selection by certified mail with return receipt requested.  This letter is required only for projects needing an individual appraisal.

·         The landowner’s acceptance of the tentative selection is required prior to NRCS’s proceeding with acquiring an appraisal and will be indicated by the landowner’s providing the required materials.  (See 440-CPM, Part 514, Subpart J, Section 514.99E, for an example checklist of items to provide appraiser.)  Once it has received an acceptable appraisal, NRCS may proceed with making an offer of enrollment to the landowners.

·         For lands with residences or other structures, the project sponsor and NRCS will coordinate in the development and distribution of the letter of tentative selection.

(v)  When the landowner indicates a desire to continue the enrollment process, Form AD-1157, “Option Agreement to Purchase” (OAP), is prepared as an offer to the landowner.  The Form AD-1157 should be sent with a cover letter, by certified mail, with a return receipt requested.  The Form AD-1157 may be hand delivered to speed up the process.  When the Form AD-1157 is hand delivered, the applicant must sign a note indicating receipt of the form and the date it was received.  The applicant will be given a specified time frame to return the Form AD-1157.  This is generally 15 days, but it may be adjusted by the STC to meet program obligation deadlines.

(iv)  When the APCE has been signed by all required landowners and the STC, the acres are considered enrolled in the program.  At this time, the funds are obligated to all landowners listed on the deed in accordance with their percent of ownership for the easement purchase cost only.  Easement purchase funds must be obligated to all landowners as listed on the deed in accordance with their percent of ownership regardless of whether they themselves will be receiving the easement payment.

(v)  The effective period of the APCE may not exceed 12 months from the date of the STC’s signature.  The effective period may be extended when necessary using “APCE Amendment 1” (Form AD-1157-A).



      
    


   
     


[M_390___514_B_March 2014 - Amend. 4 - ]

Subpart C – Ranking
Subpart C – Ranking  


514.20  Establishing Ranking Criteria

A.  Purpose

(1)  The ranking process enables the State Conservationist to prioritize enrollment offers by determining projects that most merit enrollment.  However, this process does not guarantee or entitle the applicant to funding.

(2)  The State Conservationist, with advice from the State Technical Committee (STC), establishes a weighted ranking process to prioritize all eligible applications, considering the factors described in this subpart.  Ranking should give priority to applications where land or watershed impairments present a threat to health, life, or property and, through restoration of the floodplain, these threats could be alleviated, with consideration for associated acquisition and restoration costs.

(3)  The State Conservationist will develop a form to record the ranking criteria, develop a process to collect data, rank the applications, and identify projects for funding.  The ranking system’s point spread should be sufficient to allow differentiation between applications. 

(4)  The State-developed ranking forms can be made available to the public through the State’s emergency watershed protection (EWP) Web page.

B.  Ranking Criteria Overview

The easement ranking criteria will emphasize—

(i)  The alleviation of current and or future threats to health, life or property caused by natural disasters.

(ii)  The environmental benefits of enrolling the land.

(iii)  Cost effectiveness of enrolling the land to maximize the environmental benefits per dollar expended.

(iv)  Whether the landowner or others are offering to contribute financially to the enrollment to leverage Federal funds.

(v)  The extent to which the purpose of the program would be achieved on the land.

C.  Environmental Benefit Considerations

The ranking process may include consideration of —

(i)  The environmental benefits of enrolling the land, including but not limited to—

·         Restoration of waterways historic floodplain connectivity.

·         Attenuation of floodwater flows that provide protection to adjacent or downstream lands from future flood events.

·         Water quality protection or improvement.

·         Water quantity benefits through increased water storage in the soil profile or through groundwater recharge.

·         Habitat for migratory birds and wetland-dependent wildlife.

·         Habitat for threatened, endangered, or other special-status species.

·         Protection or restoration of native vegetative communities.

·         Habitat diversity and complexity.

(ii)  The likelihood that the site will retain its floodplain functions and values in perpetuity.

Note:  The ranking process should consider the physical site conditions and ownership pattern that may result in some form of increased protection, such as adjacent or nearby protected areas (existing conservation or flowage easements) that preclude development or incompatible land uses throughout the floodplain.

(iii)   The extent to which the original floodplain functions and values can be restored.

Note: Ranking priority should be given to applications that allow for the restoration of an entire floodplain reach.  All landowners in the impacted floodplain whose participation is necessary for successful restoration of the floodplain reach must be willing to participate in EWP-FPE in order to be selected for funding.

(iv)  The alleviation of current and or future threats to health, life or property caused by natural disasters

·         Frequency of damaging floods to a site    

·         Extent of impacts to site from flooding

·         Risk of future or continued development of a site

D.  Economic Considerations

(1)   At a minimum, the ranking process should include the following cost considerations:

(i)  Estimated easement cost per acre.

(ii)  Estimated restoration costs.

(iii)  Estimated structure removal or relocation costs, if applicable.

(iv)  Partnership contributions that reduce NRCS costs will be reflected positively in the ranking process. 

(v)  A cost-benefit comparison.  Applications that have a lower cost per environmental benefit ratio will receive higher rankings.

(vi)  Potential near- and long-term management, repair, replacement, or operation and maintenance costs.

(2)   During the ranking process, cost factors may be estimated using comparable market value, geographic area rate caps, landowner offers, established restoration costs, and pledged partner contributions.

E.  Special Considerations

States may also include special considerations in the ranking process, such as—

(i)  Priority floodplain or wetland habitat types.  The State Conservationist, with advice from the STC, has the authority to prioritize certain habitat types to receive additional ranking consideration.  Unique, rare, or declining habitat types, identified for protection, and restoration, may be identified, and prioritized in the State’s ranking criteria.

(ii)  Projects in special water-quality target areas.

(iii)  Creating contiguous floodplains areas under easement protection, such as along river corridors or within drainage districts.

(iv)  Enhancing effective restoration or protection of previously enrolled land.

(v)  Reducing habitat fragmentation and boundary management problems.

(vi)  Promoting adjacent landowner participation.

(vii)  Enhancing long-term protection of previously restored floodplains or wetlands. 

(viii)  Excessive permitting requirements or permitting requirements that require excessive time to secure.  Higher priority should be given to areas where successful restoration work will not be complicated by unusual permit problems.

Example:  If there is State or local permitting processes that are complex and lengthy, the site may not warrant further consideration.  At a minimum, the permit question should be fully incorporated into the site consideration.

(ix)  The level of complexity for engineering design, practice application, and operation and maintenance.

514.21  Ranking Process

A.  The ranking process will be conducted as part of the onsite field investigations completed by NRCS (with the landowner, when available).  NRCS may provide an opportunity for input from the U.S. Fish and Wildlife Service, appropriate State agency, or other partner to determine eligibility of the proposed enrollment area and develop the preliminary floodplain restoration plan. 

B.  Once the field evaluations are completed, the following information should be included in the easement application package (see subpart G of this manual for a sample application checklist ):

(1)  Signed “Application for Long-Term Contracted Assistance” (Form AD-1153).

(2)  Copies of the landowner, and land eligibility information (see subpart B of this manual, sections 514.11 and 514.12).

(3)  Sufficient evidence and documentation of land eligibility must be included in the application package.  Projects are not eligible if the applicants cannot provide sufficient evidence that land eligibility criteria have been met such as evidence of damage from flooding or inundation from dam breach.

Note: If EWP-FPE funding was authorized in response to a specific natural disaster, additional evidence that the damage was the result of the specific event must be provided.

(4)  Completed ranking form signed by an NRCS representative, including the landowner’s signature when available and input from FWS, CD, and State wildlife agency representative, if provided.

(5)  The amount of any voluntary landowner offer to accept a reduced per acre easement value, documented in writing and signed by the landowner.

(6)  Completed “Hazardous Substance Checklist” (see WRP exhibit in section 514.95).

(7)  Preliminary certificate of inspection and possession assessing the potential presence of offsite and onsite conditions that would prevent successful restoration or pose a unacceptable risk to NRCS holding an easement interest (see WRP exhibit in section 514.97).

(8)  A completed “Landowner Disclosure Worksheet” (optional but recommended) (see WRP exhibit in section 514.92D).

Note: The language and terms of the option to purchase and the EWP-FPE warranty easement deed are not negotiable and applicants must be willing to comply with the terms of the easement and any other agreements necessary to complete the transaction and restoration of the easement, including the demolition or removal of structures present on the property. States must provide documentation that these requirements and limitations have been explained to the applicant and that a copy of the required OATP and warranty easement deed has been provided to the applicant.

(9)  National Environmental Policy Act documentation (Form NRCS-CPA-52, “Environmental Evaluation Worksheet”).

(10)  A GIS-developed, aerial-imagery-based maps showing the location and boundary and legal access of the application.

(11)  A map showing areas of flood damage or dam breach inundation impacts on the application area.

(12)  Documentation showing that the application is located in a disaster area declared under the Stafford Act, as applicable.

(13)  Preliminary EWP-FPE conservation plan of operations, including—

(i)  A clear objective and understanding about desired outcome of restoration activities.

(ii)  An aerial plan map showing boundaries of offered acres, access right-of-way, existing land use, conservation practices, the location of planned restoration practices, planned habitats, and planned land use.

(iii)  List of planned conservation practices, measures and activities, estimated quantities, and estimated costs.

(iv)  Soils map.

Note: Restoration on floodplain easements will include all necessary conservation practices, measures, and activities required to restore the floodplain functions and values to its natural conditions to the greatest extent practicable.

(14)  Clearly identified cost estimates for easement purchase, due diligence and restoration.

(15)  On applications for lands with residences or other structures, the easement application package must also include—

(i)  Evidence that a project sponsor is willing to buy remaining land in fee title.

(ii)  Documentation that every residence or structure within the reach will be removed from the subject floodplain to allow for complete floodplain restoration.

(iii)  A map identifying the properties necessary to facilitate restoration of the entire floodplain reach.

(16)  Other items specified on state application checklists, such as documentation of water rights.

(17)  Additional recommended items include—

(i)  A timeline for each application showing estimated easement closing and restoration completion dates.  If circumstances exist that may delay closing or if extensive permitting requirements for restoration is anticipated, States must clearly note that delays are possible.

(ii)  A large-scale map showing location of application relative to other protected or restored areas.

C.  Maps and practices identified in the preliminary conservation plan and applicable worksheets will be developed using Customer Service Toolkit and stored in the National Conservation Planning database or other agency-approved conservation planning software.

514.22  Ranking and Selection

A.  In general, projects should be selected as prioritized based on the outcome of the ranking process.  However, the State Conservationist, in consultation with the STC, has the authority to establish priorities and circumstances under which the State Conservationist may select projects outside of a strictly applied ranked order.  Circumstances that would warrant these selections may include but are not limited to the following:

(1)  Large Project Size.—If a high-ranking but unusually large project would consume a disproportionate amount of a State’s EWP-FPE allocation, the large project may be deferred until sufficient funds become available.

(2)  Insufficient Funds.—If sufficient funds are not available to select the next-highest-ranked offering, offerings may be passed over until the next fundable project is reached.

(3)  Augments Existing or Concurrent EWPP-FPE Acquisition Efforts in an Area.—Projects that may not rank high on their own merits but that will contribute to the benefits of an existing or pending easement should be prioritized.  Specifically, enrollments that further effective restoration and function of existing EWPP-FPE lands, reduce habitat fragmentation by protecting and restoring contiguous areas, resolve boundary issues, contribute to management, eliminate inholdings, or serve as a necessary buffer.

(4)  Rare, Unique, or Individual Habitats.—Allow for enrollment of floodplain or wetland types that are ecologically significant but whose values may not be adequately captured through the established ranking system.

(5)  Emerging Issues.—Enrollment of specific habitat types or in habitats in targeted geographic areas may be warranted due to disasters, new science, or changing priorities when contribution to and consideration of these factors is not be sufficiently captured in the established ranking system.

B.  All EWPP-FPE offers should be ranked; however, unique projects may be selected outside of the traditional rank order when the selection is warranted.  These selections should be documented, either through a separate rationale document or accounted for as a special circumstance captured within the ranking process itself.  Justification such as letters of support or supplemental documentation supporting the enrollment of unique projects may be included as supporting documentation in the official EWPP-FPE case file.

 



    
   


      
   


[M_390___514_C_March 2014 - Amend. 4 - ]

Subpart D – Acquisition
Subpart D – Acquisition 


514.30  Easement Enrolment and Acquisition Process

A.  All EWP-FPE easements are acquired and held by the United States of America by and through the NRCS using Form NRCS-LTP-20, “EWP-FPE Warranty Easement Deed.”  EWP-Floodplain Easement transactions are conducted with the individual landowners.  The EWP-FPE enrollment and acquisition process will follow the procedures outlined in Title 440, Conservation Programs Manual (CPM), Part 514, Subpart D, for permanent easements unless otherwise specified below. 

B.  Required EWP-FPE Forms and Specifications

(1)  Form AD-1153, “Application for Long-Term Assistance”

(2)  USPAP “Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program – Floodplain Easements” and EWP-FPE appraisal guidance (see section 515.63)

(3)  Form AD-XXXX, “Agreement to Purchase a Conservation Easement” (APCE)

(4)  Form AD-XXXX-A, “Agreement to Purchase a Conservation Easement Amendment” (APCE amendment 1)

(5)  Form NRCS-LTP-20, “Emergency Watersheds Protection Program Floodplain Warranty Easement Deed”

(6)  Form AD-1154, “Long-Term Contract and Special Provisions,” if landowner will perform restoration activities

(7)  Form AD-1155, “Conservation Plan Schedule of Operations” (NRCS is client for planning purposes)

(8)  Form AD-1156, “Modification to the Conservation Plan Schedule of Operations” (NRCS is client for planning purposes)

514.31 Determining Easement Compensation

A.  The appropriate methodology to be used to determine EWP-FPE easement compensation is based upon the primary use of the land.  Through the EWP-FPE, easements may be placed on the following types of lands by using the following easement compensation methodologies: 

(1)  Agricultural Lands and Other Lands Without Residences or Other Structures.—Land is in agricultural or other open space use without structures present other than those structures that are incidental to the primary agricultural or other open space use of the land.  For example, agricultural or open land with structures present that are incidental to the primary land use includes a 100-acre farm containing a barn.  Easement compensation will be based on the lowest of the fair market value, the geographic area rate cap, or landowner offer (see section 514.32).  If the easement acquisition will involve a farmstead that includes a residence, then an appraisal is required.  Properties in this category that are individually appraised must use the Uniform Standards for Professional Appraisal Practice (USPAP) “Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program – Floodplain Easements” and EWP-FPE appraisal guidance (see section 515.63).   Properties in this category do not require a project sponsor.

(2)  Nonagricultural Lands With Residences or Other Structures.—Land is not in agricultural use or other open space use.  The land is in residential use and contains residential dwellings or other structures.  The primary use of the land is residential and any other structures on the property are in support of that residential use, such as garages or sheds.  The purchase of a EWP-FPE easement on nonagricultural lands with residences or other structures must be part of a broader strategy that will result in the restoration of an entire reach of the floodplain that could require the involvement of one or more residential, nonagricultural properties.  In situations where an impacted floodplain reach contains multiple structures owned by multiple landowners, such as in a residential subdivision, all landowners must apply for participation in EWP-FPE to allow for all structures within the floodplain reach to be demolished or relocated, allowing the complete restoration of the floodplain reaches’ natural functions and values.  The EWP-FPE easements are acquired by the United States directly from the individual landowners and a project sponsor is required to purchase remaining fee title.  Easement compensation will be based on an individual appraisal using the USPAP “Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program – Floodplain Easements” and EWP-FPE appraisal guidance (see section 515.63) or a landowner offer, whichever is less. 

B.  The intent of the EWP Floodplain Easement Program is to restore the floodplain functions and values to the natural conditions to the greatest extent practicable.  Therefore, all dwellings and other nonrestoration structures (e.g., residential home, garages, sheds, barns, etc.), regardless of whether they are on agricultural or residential lands, must be removed from the easement area even if the easement is outside of the 100-year floodplain.  NRCS purchases the buildings and the right to remove or demolish those buildings under the terms of the EWP-FPE warranty easement deed. 

C.  If no EWP-Floodplain Easement is to be acquired, properties with residences or other structures, incidental or not, may instead be treated through EWP-Recovery section 511.62.

D.  Nonagricultural lands with structures whose primary use is nonresidential, such as commercial, industrial, or other high-density development, are not eligible for EWP-FPE as purchase of an easement on such land would not meet the purposes of the program and implementation of restoration practices would be futile due to onsite or offsite conditions. 

514.32  Easement Compensation – Agricultural Lands and Other Lands without Residences or Other Structures

A.  General

(1)  This section identifies the easement compensation methodology to use for easement transactions where the land is in agricultural use or other open space use without residences or other structures.  This methodology, with minor adjustments, may be used on agricultural or open space land that encompasses a farm dwelling or other appurtenance due to the purchase of an easement on an entire tract.  Do not use this methodology for transactions on nonagricultural lands with residences or other structures where the primary land use is residential (see section 514.33).

(2)  The State Conservationist (STC) establishes floodplain easement compensation values consistent with the process identified below. The basis for the easement compensation offer will be the lowest of the following three values:

(i)  The fair market value (FMV) of the land using either of the following:

·         A USPAP appraisal, using the EWP-FPE appraisal specifications (section 515.63)

·         An areawide market analysis or survey (AWMA)

(ii)  The geographic area rate cap (GARC). The GARC reflects the value the State Conservationist, with the advice of the State Technical Committee, determines to be fair compensation for the value of the easement.

(iii)  A voluntary written offer by the landowner.  At the time of application, the landowner may voluntarily offer to accept less compensation than would be offered by NRCS.  This may enhance the probability of enrollment.  A landowner offer to accept a lower compensation amount will be documented in writing and attached to the APCE.  The obligation and payment must reflect the reduced value which must be identified in the APCE and warranty easement deed.  Any modifications or amendments to the APCE must reflect the agreed-to lowest value, and if the landowner revokes a prior landowner offer and this was the basis for compensation, NRCS must document that the project would have ranked high enough for enrollment and that the reason for the amendment is in the best interests of the Federal Government.

(2)  The fair market value (FMV) of the land, whether determined by a USPAP or AWMA, must be determined by a qualified professional, who must be completely independent of NRCS.  The STC must determine whether to use an AWMA or a USPAP.  If an AWMA is used, the STC may still secure an appraisal for specific instances in which special circumstances would warrant it. These circumstances must be documented in the case file so the decision to vary from the AWMA can be evaluated if appealed. 

B.  Fair Market Value of the Land Using an Areawide Market Analysis

(1)  An AWMA is the preferred method for determining FMV of the land for agricultural and other nonresidential open space lands.  These values are established early in the application and evaluation process and are the basis for the GARCs.  Therefore, potential participants know the easement compensation value in advance, and less time is spent with applicants who will not accept the easement compensation offered.  In addition, if an applicant does withdraw from the program, an offer can be extended immediately to the next applicant on the ranking priority list.  If an AWMA was conducted for the Wetland Reserve Program (WRP) on areas comparable to that offered for EWP-FPE, States may use AWMA fair market values established for WRP for those market areas.

(2)  To obtain an AWMA, the State Conservationist must first define the market area or areas to be surveyed or analyzed, based on similar features, including but not limited to the following:

(i)  Land uses

(ii)  Land productivity

(iii)  Land unit size

(iv)  Soil types and features

(v)  Types and amounts of improvements

(vi)  Potential influence of other factors, such as development pressure

(vii)  General topography and natural features

(viii)  Location

(ix)  Irrigation water rights

(3)  The AWMA results should provide fair market values for the types of land typically enrolled or eligible to be enrolled in EWP-FPE in the NRCS-identified market area or areas.

(4)  The AWMAs will be completed by an independent real estate professional or recognized academic expert familiar with the area and land use types included in the market area or areas defined by NRCS.  The AWMA is not to be completed by NRCS personnel.

(5)  The AWMA must be completed in accordance with the specifications provided by NRCS.  (See exhibit in subpart G for a sample EWP-FPE AWMA scope of work.)  The qualified professional conducting the market analysis must provide a written report to the State Conservationist consistent with the requirements in the scope of work.  The report from the vendor who conducts the AWMA must document—

(i)  The region, development potential, and land use or land productivity categories and subcategories analyzed.

(ii)  The actual sales data or economic data for each category and subcategory.

(iii)  The source of the data.

(iv)  The qualifications and experience of the qualified real estate professional or academic expert who conducted the market analysis or survey.

(6)  States will obtain the AWMAs through an appropriate procurement method and following proper contracting rules and procedures.  Review and acceptance of the AWMA must be completed by an authorized official prior to submission to the EPD for approval.  For the purposes of AWMA review, an authorized official is an NRCS employee who is not themselves authorized to process, negotiate, or approve any easement that will use the AWMA results and is not formally supervised or evaluated by such a person.

(7)  The State Conservationist must submit an electronic copy of the AWMA report and accompanying documentation, including the date the fair market values were reviewed with the State Technical Committee, to the EPD director for final approval and concurrence.  These will be submitted at the same time the GARC recommendations are submitted.  All fair-market-value determinations using AWMAs must be updated each fiscal year or as EWP funds are authorized by Congress and have approval of the EPD director prior to being used in the enrollment process.

C.  Fair Market Value of the Land Using USPAP Appraisals on Agricultural Lands

(1)  USPAP appraisals may be used to determine fair market value of the land instead of AWMA.  All EWP-FPE applications to be individually appraised must use the “Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program – Floodplain Easements” and EWP-FPE appraisal guidance (see section 515.63). The appraiser will be provided with the documentation and information indicated in the appraisal specifications. The property to be appraised will be clearly delineated on a map that includes the area to be enrolled, the ingress and egress routes or point of access, and any other available descriptive information (see 440-CPM, Part 514, Subpart J, Section 514.99E, for an example checklist of items to provide appraiser.)

(2)  The appraiser will provide an opinion of market value of the proposed easement area (improvements and land) before placement of the easement and of the after value of the proposed easement area as if the easement is in place.  The difference between these two values will be the effect of the easement on the subject property, which includes the effect of the easement to the land and the value of any improvements to be removed.  The date of value will be either a current date of value or as of the day before the occurrence of a natural disaster as instructed by NRCS.  If applicable, the appraisal instructions also require the appraiser to breakout two values: the contribution to fair market value that is provided by the dwelling and improvements and the contribution to fair market value that is provided by the land and remainder of the property that will be placed under easement.

(3)  Use of individual appraisals on agricultural lands may be warranted for reasons that may include but are not limited to the following:

(i)  States with limited EWP-FPE enrollment

(ii)  Areas with limited enrollment within a State

(iii)  Agricultural or open space properties with structures that are incidental to the larger agricultural operation or open space use, such as barns, farmstead, or home site

(iii)  Areas with significant complexity that do not allow for a more general evaluation—for example, property by property value differences due to water rights, or extreme variability in values over a small area due to development pressure

(iv)  Land uses or areas not included in the market area of the AWMA

(v)  Other special situations

(4)  If an individual appraisal is conducted on a property located within a geographic area that was otherwise included in a market area evaluated in an AWMA, the rationale should be documented in the individual easement case file. 

(i)  Example 1.—The AWMA established fair market value for Smith County on lands in the floodplain on which rice is farmed.  The offered property, although located in Smith County, is an orchard located in the floodplain, which has a significantly different value and was not a land use considered in the areawide market analysis. 

(ii)  Example 2.—The AWMA established fair market value for Smith County on lands in the floodplain on which rice is farmed.  The offered property, although located in Smith County and primarily farmed to rice, also includes a farmhouse and barn that are anticipated to substantially change the value of the individual agricultural property.   

D.  Geographic Area Rate Cap

(1)  Each State Conservationist, in consultation with the State Technical Committee, must adopt at least one GARC for his or her State.

(i)  States may establish multiple GARCs based on counties or other sub-State geographic regions, land use or quality categories, corresponding AWMA areas, or other considerations, such as development pressure and residual recreational value.

(ii)  The GARCs for each State should be set at a rate that does not overcompensate landowners and that encourages the enrollment of the types and classes of lands with superior potential for the restoration of floodplain functions.  The GARCs should reflect the value that the State Conservationist determines to be fair compensation for the rights being acquired.  Although NRCS is acquiring a majority of the property rights associated with the land, the landowner still retains certain reserved rights; as a result, the GARCs will almost always be less than the fair market value as determined by the AWMA or appraisal.

(2)  In order to establish the GARCs, States should use the best readily available information to determine fair compensation for the rights being acquired through the easement.  The best data source is the fair market value determined in the corresponding AWMAs.  Additional data that should be used to develop the GARCs include the following:

(i)  Data sets of previously obtained WRP or EWP-FPE appraisals

(ii)  Local real estate market values, tax rates, and assessments

(iii)  Location of the land

(iv)  Soil types and productivity

(v)  National, State, or local agricultural statistics

(vi)  Local information about the value of land leases for the rights being acquired by the Federal government

(vii)  Historic values accepted and rejected by landowners for program participation

(viii)  Rates paid by other conservation easement programs that have similar purposes

(ix)  Neighboring geographic areas

(x)  Comparable WRP GARCs

(3)  If AWMAs are used to determine fair market value, specific GARC dollar values should be established, corresponding to the AWMA categories and subcategories.  If USPAP appraisals are used to determine fair market value, the GARCs must be set as a percentage of fair market value and may include a not-to-exceed dollar value.  The GARCs must result in an easement compensation value that is fair compensation for the rights being acquired through the easement.

(4)  The State Conservationist must document the following in writing:

(i)  The process used to determine the area for each GARC

(ii)  The process used to determine the dollar or percent value of each GARC

(iii)  The geographic area, development potential, land use, or land productivity categories considered

(iv)  The corresponding GARC from adjacent States with an explanation of any significant differences

(v)  The source of the data

(vi)  The date the proposed GARC values were reviewed with the State Technical Committee

(vii)  For GARCs greater than $5,000 per acre, an evaluation and justification of the importance of enrolling these high-cost lands, such as contribution to floodplain function, restorability of the site, and reduction in risk of damage to life and property

(5)  Each fiscal year or as EWP funds are authorized by Congress, the State Conservationist must submit an easement compensation proposal package that includes a discussion on the approaches used to obtain fair market values (AWMA, appraisals, or both), copies of any AWMA reports, the proposed GARCs, and the supporting GARC rationale documentation.  The proposal must be submitted to the director of the EPD for final concurrence and approval.  Easement compensation proposals will be evaluated on the following criteria:

(i)  Was there a logical, defensible, and well-documented process?

(ii)  Was the AWMA procured from an independent real estate professional or academic expert with experience in the market area?

(iii)  Was the fair market value of the land greater than the GARC?

(iv)  Were the results reviewed by the State Technical Committee?

(v)  Were the results certified by the State Conservationist?

(vi)  Were the GARC values consistent with neighboring areas or were there explainable differences?

Note:  Neighboring GARC values with a variation greater than 20 percent will not be approved unless they are accompanied by a statement from the State Conservationists explaining why neighboring GARC values vary so greatly.

(vii)  For GARCs greater than $5,000 per acre, is there a statement from the State Conservationist justifying the ecological importance of enrolling these high-value lands?

(6)  All easement compensation proposals must be updated each fiscal year or as EWP funds are authorized by Congress and have the approval of the EPD Director prior to being used in the enrollment process.  Upon approval, the GARC values may be placed on the State Web site for informational purposes.

 514.33 Easement Compensation – Lands with Residences or Other Structures

A.  General

(1)  This section identifies the easement compensation methodology to be used for easement transactions on nonagricultural land that contains residential dwellings and other structures that support the residential use of the property.  

(2)  Easements on lands with residences or other structures may only be acquired if they are part of a strategy that will facilitate the restoration of an entire reach of the floodplain.  Additionally a project sponsor is required to purchase fee title to the land.  To ensure an entire reach of floodplain can be restored, one or more properties may be involved.  In situations where an impacted floodplain reach contains multiple parcels owned by different landowners, all landowners must apply for participation in EWP-FPE to allow for all structures within the floodplain reach to be demolished or relocated, allowing the complete restoration of the floodplain reaches’ natural functions and values.  The EWP-FPE easements are acquired by the United States through NRCS directly from the individual landowners and a project sponsor is required to purchase fee title to the property.  NRCS will also conduct certain acquisition and restoration activities through the project sponsor and follow section 514.33B of this manual.

(3)  The intent of the EWP Floodplain Easement Program is to restore the floodplain functions and values to the natural conditions to the greatest extent practicable.  Therefore, on lands with residences or other structures, all dwellings and other structures (e.g., residential home, garages, sheds, barns, etc.) must be removed, through demolition or relocation, from the easement area and outside of the 100-year floodplain.  NRCS purchases the rights to the buildings and to their removal or demolition under the terms of the EWP-FPE easement deed.

(4)  EWP-FPE compensation values on lands with residences and other structures will be determined by an individual USPAP appraisal using the “Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program – Floodplain Easements” and EWP-FPE appraisal guidance (see section 515.63). 

(5)  When the structure will be demolished, the easement compensation value will be based on the full fair market value of the easement provided in the USPAP appraisal or a voluntary offer from the landowner, whichever is less. 

(6)  Through the APCE, the landowner agrees not to do or authorize others to do any act by which the value or title to the property may be diminished or encumbered.  Therefore, once the APCE is signed, the landowner may not salvage any building materials or permanent objects affixed to any structure included in valuation, including but not limited to windows, doors, affixed fixtures, piping, wiring, and cabinets.  Salvage of any such materials is a breach of the terms of the APCE and may result in termination of the APCE.

(7)  In certain circumstances, NRCS may determine it is more cost effective to relocate the structure outside of the floodplain than to purchase and demolish the structure.  When the dwelling and other structures will be relocated rather than demolished, the easement compensation value determined by the USPAP appraisal must be reduced by an amount equal to the value of the dwelling and other structures to be relocated.  

B.  Project Sponsor

(1)  For lands with residential dwellings or other structures on nonagricultural lands (such as flood mitigation efforts intended to assist families in moving from flood-damaged areas), a project sponsor will be identified and serve as the local cooperating entity for these efforts.  A project sponsor must meet the definition outlined in section 511.3B and must have a local presence and staff available to assist in the implementation of the program.

(2)  NRCS should identify a project sponsor and establish detailed working arrangements between the project sponsor and NRCS as early in the process as possible, preferably prior to soliciting applications.  These arrangements must be set forth in a memorandum of understanding (MOU) between the sponsor and NRCS.  As applicable, the sponsor must agree to—

(i)  Assist in the public dissemination of program availability to those affected residents in the community.

(ii)  Conduct application signups and accept applications for EWP-FPE (AD-1153).

(iii)  Conduct public meetings and a public information campaign concerning availability of the program.

(iv)  Identify all properties needed to ensure the restoration of the entire floodplain reach and identify strategy that will be implemented to secure all needed properties.

(v)  Secure EWP-FPE applications from all properties identified for enrollment in EWP-FPE as part of the strategy.

(3)  Agreement with Sponsor

(i)  Once program funds have been allocated to the State for the EWP-FPE enrollment on lands with residences or other structures, NRCS will enter into a cooperative or project agreement with the sponsors prior to commencing easement acquisition activities. The agreement must specify the tasks to be carried out by the sponsor to expedite the easement acquisition process.

(ii)  The cooperative or project agreement stipulates the assistance the sponsor provides for the practical administration of the program.  The agreement may serve as the fund-obligating document for the services to be provided by the sponsor.  These services may include but are not limited to the sponsors being reimbursed for—

·         Securing the services of an appraiser, closing agent, and surveyor for the EWP-FPE easement transaction.

·         Demolition and proper disposal of debris resulting from the demolition of a building. Acceptance and proper disposal of any hazardous material (e.g., shingles, paint, motor oil, batteries, and other hazardous materials).

·         Reclamation and decommissioning of septic tanks, dug wells, oil storage tanks, etc.

·         Revegetation and restoration of the affected areas.

(iii)  Funds for easement compensation will be obligated to the individual landowners through Form AD-1157, “Agreement to Purchase a Conservation Easement.”

(iv)  In order to reduce the administrative burden and easement management cost to NRCS, sponsors are required to purchase the remaining fee simple title from the landowner and enroll properties in a strategic manner that ensures the entire floodplain reach can be restored and the floodplain can be reconnected.  Therefore, ranking criteria should address and prioritize the enrollment of adjacent parcels and landowners willing to sell the fee simple title to the sponsor.

(v)  The fee simple title transaction should occur simultaneously with the closing of the easement.  The EWP-FPE warranty easement deed is closed before the fee simple interest is conveyed to the sponsor, unless a different order of recordation is desired by NRCS and authorized by the Office of the General Counsel.

(vi)  If the sponsor is not willing to participate in the efforts described above, or if all of the properties needed to restore the floodplain cannot be secured, the use of EWP funds should be limited to the normal delivery of EWP recovery efforts or for the purchase of EWP floodplain easements on agricultural and other lands that do not contain residences or other structures as described elsewhere in this manual.

(vii)  NRCS will not provide funds to the sponsor for their costs related to the fee title purchase of the property.

C.  Fair Market Value of the Land Using USPAP Appraisals on Residential Lands

(1)  NRCS or the sponsor will obtain a USPAP appraisal using the “Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program – Floodplain Easements” (see section 515.63) on all easement transactions on which there are residential dwellings or other structures. The appraiser will be provided with the documentation and information indicated in the appraisal specifications.  The property to be appraised will be clearly delineated on a map that includes the area to be enrolled, the ingress and egress routes or point of access, and any other available descriptive information (see 440-CPM, Part 514, Subpart J, Section 514.99E, for an example checklist of items to provide appraiser.)

(2)  The appraiser will provide an opinion of market value of the proposed easement area (improvements and land) before placement of the easement and of the after value of the proposed easement area as if the easement is in place.  The difference between these two values will be the effect of the easement on the subject property, which includes the effect of the easement to the land and the value of any improvements to be removed.  The date of value will be either a current date of value or as of the day before the occurrence of a natural disaster, as instructed by NRCS.  For lands with residences or other structures, the date of value is the day before the occurrence of the natural disaster.  The appraisal instructions also require the appraiser to breakout two values: the contribution to fair market value that is provided by the dwelling and improvements and the contribution to fair market value that is provided by the land and remainder of the property that will be placed under easement.

D.  Easement Compensation on Residential Lands Where Structures Will be Demolished

(1)  The easement compensation amount on residential lands where the dwellings and other structures will be demolished will be based on the full fair market value of the easement provided in the USPAP appraisal or a voluntary offer from the landowner, whichever is less. 

(2)  Through the APCE, the landowner agrees not to do or authorize others to do any act by which the value or title to the property may be diminished or encumbered.  Therefore, once the APCE is signed, the landowner may not salvage any building materials or permanent objects affixed to any structure included in valuation, including but not limited to windows, doors, affixed fixtures, piping, wiring, and cabinets.  Salvage of any such materials is a breach of the terms of the APCE and may result in termination of the APCE.

(3)  NRCS must reduce the purchase price offer to the landowner by the amount of other assistance the landowner has received for the purpose of disaster recovery (e.g., insurance proceeds and grants) unless the landowners shows that the money was spent for its intended purpose.   The landowner is responsible for providing documentation of other disaster recovery assistance received and utilization of such funds.  When needed, NRCS will submit a Freedom of Information Act request to the Federal Emergency Management Agency (FEMA) for a listing of addresses in the affected area that received FEMA flood insurance payments. 

(4)  NRCS must document the basis for any easement compensation adjustments (e.g., landowner offer, landowner receipt of other proceeds, etc.) in the individual easement case file.

E.  Easement Compensation on Residential Lands Where Structures Will be Relocated

(1)  In some instances, it may be more cost effective to relocate the residential dwelling outside the floodplain.  NRCS may pay up to 100 percent of the cost to relocate the residential home on a new lot, location, or parcel that is outside of the proposed easement area and outside the 100-year floodplain, as determined by FEMA flood maps and certified by a registered licensed surveyor, when the total relocation payments are less than the total cost to purchase and demolish the structures.  Although the relocation of residential structures through EWP-FPE is exempt from the Uniform Relocation Act (URA) regulations, EWP-FPE relies on language from the act to identify certain reimbursable items and reimbursement amounts as described in paragraph (3) below.

(i)  When the relocation option is used, the easement compensation value will not include the value of the dwelling and improvements to be relocated. 

(ii)  The EWP-FPE USPAP appraisal will identify the contribution of the dwelling and improvements to the appraised value.  The value of the dwelling and improvements will be subtracted from the value of the easement identified in the USPAP appraisal.  This adjusted value is the amount to be identified on the OATP.

(iii)  Relocation cost will be contracted as restoration costs, either through the sponsor or directly with the landowner.

(2)  Reimbursement for the following costs is authorized:

(i)  Comparable unfinished basement (if the original location included a basement)

(ii)  Detachment, movement, and placement of the home on a foundation or stem wall at the new location

(iii)  Replacement porch, sidewalk, and steps, when the original appurtenances cannot be relocated

(iv)  Grading of the lot and unpaved driveway (or a paved driveway of 200 feet or less when the original location had a paved driveway)

(3)  Reimbursement for the following eligible items may not exceed a total of $22,500, unless the Uniform Relocation Act authorizes a different level of reimbursement:

(i)  Decent safe and sanitary facilities, such as water and electric hookup fees, septic tank, and drain field

(ii)  Permit fees

(iii)  Moving expenses, including the expense to relocate the home and personal items

(iv)  Limited replacement of landscape materials, such as shrubs and lawn

(v)  Temporary quarters while the home is being dismantled and set up

(4)  The following expenses are ineligible for reimbursement:

(i)  Basement when the original location did not include a basement

(ii)  Paved driveway when the former residence did not include a driveway

(iii)  Additions, room enlargements, or remodeling beyond those repairs necessary as a result of the relocation of the home

(iv)  Garage or carport, porches, sidewalks, etc., when one did not exist at the original home location

(5)  The total cost to relocate a residence out of the floodplain and onto a lot certified to be outside of the 100-year floodplain may not exceed the appraised value of the home or residence, as determined by the NRCS-approved EWP-FPE USPAP appraisal.



   
   


    
    


[M_390___514_D_March 2014 - Amend. 4 - ]

Subpart E – Restoration
Subpart E – Restoration 


514.40  Restoration Process

The floodplain functions and values of the enrolled area will be restored to the natural conditions, to the maximum extent practicable.  For the purposes of EWP-FPE restoration planning, restoration of natural conditions should result in a close approximation or mimicry of conditions and functions that existed prior to the conversion or manipulation of the site so as to recover the floodplain functions of the site.  NRCS will work cooperatively with the landowner, with assistance from State and Federal agencies having wildlife and wetland expertise, to achieve maximum wetlands and floodplain protection, restoration and, when appropriate, enhancement.  NRCS will maximize wildlife habitat and wetland and floodplain functions and values on each acre enrolled, understanding that the restoration and practices used will be influenced by current conditions and disturbances within the watershed. 

(1)  Once the landowner has signed the APCE and the enrollment is moving towards the closing process, the final restoration plan should be developed, including all necessary field surveys and engineering designs that the State Conservationist (STC) determines are needed to ensure that there is an accurate estimate of restoration costs.  Restoration on floodplain easements will include all necessary conservation practices, measures, and activities required to restore the floodplain functions and values to the natural conditions to the greatest extent practicable. Any restoration of wetlands should be restricted to the wetland types that were present under natural conditions.

(2)  If the components of the final restoration plan vary significantly from those specified in the preliminary restoration plan, States must document in the case file the reason for the significant change in restoration approach.  For example, if the preliminary restoration plan called for vegetative practices only and the final restoration plan includes water control structures and other practices that might require future maintenance, States must document the basis for the change.

(3)  To the extent practicable, artificial infrastructure, such as power lines, fences, access roads, dikes, or water control structures, should be removed from the easement area.  Any infrastructure features allowed to remain on the easement area must have positive, minimal negative, or no impact on floodplain functions.  States must document the reasoning for allowing infrastructure features to remain on the easement area through the certificate of use and consent and maintain a copy of that information in the official EWP-FPE case file folder.  All buildings must be removed from the easement area.

(4)  When the final restoration plan has been developed and necessary final engineering designs have been completed, NRCS decides how to complete the restoration.  If restoration will be completed through a long-term contract with the landowner, Form AD-1154, “Long-Term Agreement”; Form AD-1155, “Conservation Plan Schedule of Operations”; and other appropriate documents are prepared.  See section 515.21 for links to these forms.  After these documents have been signed by the landowner and NRCS, funds are obligated for the restoration.

(5)  If restoration will be completed using some other appropriate procurement method, the appropriate documents will be prepared.  When these documents have been signed by the STC or designee, the funds will be obligated directly to that procurement document, not to the individual easement.  It is possible that the restoration funds will not be obligated in the same fiscal year that easement purchase funds are obligated.

(6)  Removal of buildings is required and may be cost-shared.  Removal of other existing structures or infrastructure within the easement is an allowable restoration practice, if necessary to provide for ability of the floodplain to properly function during flood events.

(7)  Restoration will not be implemented when the primary purpose is wetland restoration or maximizing wildlife habitat benefits.

(8)  The cost share for restoration will be 100 percent of the actual cost of installing required restoration practices.

  


     
     


      
     


[M_390___514_E_March 2014 - Amend. 4 - ]

Subpart F – Management, Monitoring, and Enforcement
Subpart F – Management, Monitoring, and Enforcement   


514.50  Management, Monitoring, and Enforcement

A.  All Emergency Watershed Protection-Floodplain Easement (EWP-FPE) Program easements will be monitored in accordance with the current easement monitoring policy and procedures in Title 440, Conservation Programs Manual (CPM), Part 527, Subpart P.

B.  All EWP-FPE easements will be managed in accordance with the current management, compatible use, prohibited and noncompatible uses policy and procedures outlined in 440-CPM, Part 514, Subpart G, Sections 514.60 through 514.65.

C.  All EWP-FPE easements will be enforced in accordance with the violations and enforcement policy and procedures outlined in 440-CPM, Part 514, Subpart G, Sections 514.67 and 514.68.



    
    


     
   


[M_390___514_F_March 2014 - Amend. 4 - ]

Part 515 - Exhibits

Subpart A – Plans (Reserved)
Subpart A ­– Plans (Reserved)   


      


 
     


  
     


[M_390___515_A_March 2014 - Amend. 4 - ]

Subpart B – Definitions
Subpart B – Definitions  


515.10 Terms

 

 

Terms

 

Definitions

 

Committed Funds

 

EWP funds are considered committed when NRCS has agreed to fund a measure, States have been notified, and the sponsoring local organization has been advised, in writing, that they may proceed to acquire land rights and/or permits. Committed funds may include the following:

 

•      Financial assistance funds committed to the specific project, but held in a State Drawing Account.

 

•      Financial assistance funds committed to the specific sponsor within the project area.

 

•      Financial assistance funds committed to the specific project that has been allocated to the State.

 

Construction Cost

 

Construction cost is a part of project cost. Construction costs are associated with the installation of the facility including labor, equipment and materials. For construction contracts, it is the amount paid the contractor.

 

Consultation on Cultural Resources

 

Consultation is the legal responsibility of Federal agencies to seek advice, guidance and counsel from and to confer with authorized parties on program, project, and policy issues. These issues include all matters related to cultural resources compliance. Authorized parties include, but are not limited to, State Historic Preservation Officers, American Indian Tribes, Tribal Historic Preservation Officers, project partners, landowners, the Departmental Consulting Archeologist, the Advisory Council on Historic Preservation and interested members of the public.

 

For additional information on consultation on cultural resources, see the National Cultural Resources Procedures Handbook especially Subpart G, Appendices.  Special guidance on NRCS responsibilities for cultural resources consultation with American Indian Tribes is found in Appendix

601.62 “Guidance on NRCS Cultural Resources Consultation with American Indian Tribes in Accordance with the National Historic Preservation Act of 1966 and Other Related Authorities”



 

 

 

Terms

 

Definitions

 

Cultural Resources

 

Cultural Resources, in NRCS, are considered equivalent to "historic properties" as defined by the Advisory Council on Historic Preservation regulations for compliance with Section 106 of the NHPA. They include any prehistoric or historic district, site, building, structure or object listed in or eligible for listing in the National Register of Historic Places (maintained by the Secretary of the Interior). They also include all records, artifacts and physical remains associated with the historic properties. They may consist of the traces of all of the past activities and accomplishments of people. Cultural resources that are also protected under other authorities (such as the American Indian Religious Freedom Act) include:

 

(1)    Tangible traces such as districts, sites, buildings, structures and objects

 

(2)    Less tangible traces such as dance forms, aspects of folk life, landscapes and vistas, and cultural or religious practices

 

(3)    Historical documents

 

(4)    Some landscapes, vistas, cemeteries (if they have historic or cultural value) and lifeways. See the NRCS National Cultural Resources Procedures Handbook for further discussion of cultural resources and NRCS responsibilities

 

Defensibility

 

The selected alternative is defensible if the combined beneficial effects exceed the combined adverse effects and it is as follows:

 

•      In compliance with Federal, State, Tribal, and local laws.

 

•      Acceptable to affected individuals and communities.

 

•      Effective in restoring and/or protecting the natural resources.

 

•      Complete with all necessary components included.

 

•      Efficient in achieving the desired outcome. This includes the consideration of the following criteria or issues from the DSR:

 

-    Economic

 

-    Environmental

 

-    Social

 

-    Technical Feasibility

 

Drawing Account

 

Funding account held at NHQ that is committed to a specific EWP project in a State.  Funds are withdrawn upon request by the STC.

 

DSR Team

 

An interdisciplinary team that determines and documents eligibility for EWP assistance.



 

 

 

Terms

 

Definitions

 

Emergency Measures

 

Actions implemented in order to safeguard life or property by removing or reducing hazards created by a natural disaster

 

Exigency

 

A situation that demands immediate action to avoid potential loss of life or property, including situations where a second event may occur shortly thereafter that could compound the impairment, cause new damages or the potential loss of life if action to remedy the situation is not taken immediately.

 

Federal-Aid Highway

 

Any public highway, roadway, or other road eligible for the Emergency Relief Program administered by the Federal Highway Administration of the Department of Transportation. The Emergency Relief (ER) Program will help State and local highway agencies pay the unusually heavy expenses of repairing serious damage to the Federal-aid system resulting from President-declared natural disasters or catastrophic failure.

 

Floodplain Easement

 

A reserved interest easement, which is an interest in land, defined and delineated in a deed whereby the landowner conveys all rights and interest in the property to the grantee, but the landowner retains those rights, title, and interest in the property which are specifically reserved to the landowner in the easement deed

 

Imminent Threat

 

A subsequent natural occurrence event that would cause significant damage to property and/or threaten human life.

 

Improved Property

 

Permanent improvements such as homes, businesses, farmsteads, roads, bridges, utilities, and enduring conservation practices.

 

Installation Costs

 

All costs associated with the physical application of a recovery measure and include site preparation, earth work, and structural materials, including costs associated with required mitigation.

 

Levee

 

An embankment built to prevent high water from flooding the adjacent land.



 

 

 

Terms

 

Definitions

 

Limited- Resource Area

 

An area (usually a county or parish), where all of the following are present:

 

•      Housing values are less than 75 percent of the State housing average value.

 

•      Per capita income is 75 percent or less than the median income of the Nation.

 

•      Unemployment is twice the U.S. average over the past three years based upon the most recent national census information available.

 

A unit of government or a group of people within a bounded geographical area who interact within shared institutions and who possess a common sense of interdependence and belonging where―

 

(1)    Housing values are less than 75 percent of the State housing value average.

 

(2)    Per capita income is 75 percent or less than the National per capita income.

 

(3)    Unemployment is at least twice the U.S. average over the past three years based upon the annual unemployment figures.

 

NRCS will use the most recent National census information available when determining (1) and (2) above.

 

National EWP Wait List

 

EWP projects not funded will be placed on a national wait list until such time funding is made available for the projects.

 

Natural Occurrence

 

Includes, but is not limited to, floods, fires, windstorms, hurricanes, ice storms, typhoons, tornadoes, earthquakes, volcanic actions, slides, and drought.

 

Obligated Funds

 

EWP funds are considered obligated when a project agreement is signed for a locally awarded contract (or force account) or a Federal contract is awarded.

 

Operation and Maintenance

 

See National O&M Manual

 

Outreach

 

Ensuring that the public is informed of the availability of the EWP program and its purpose of supplying assistance in recovery work.

 

Partner

 

An entity that works in conjunction with NRCS and is responsible for, or involved in, local emergency activities.



 

 

 

Terms

 

Definitions

 

Plan of Operations

 

A written plan that describes the resources required and time line to complete the work.  The plan of operation includes a detailed the cost for employees’ time, equipment type and time, and type and quantity of materials needed to accomplish the work. The plan of operation provides a schedule (dates) for accomplishing various phases of the work.

 

Project Costs

 

Project costs include both the initial capital cost and the subsequent operation and maintenance costs. The capital cost for a construction project includes the expenses related to the initial establishment of the facility and includes:

 

Land acquisition, including assembly, holding and improvement Planning and feasibility studies

Architectural and engineering design Contract administration

Construction, including materials, equipment and labor Field supervision of construction

Construction financing

 

Insurance and taxes during construction Owner's general office overhead

Equipment and furnishings not included in construction Inspection and testing

For EWP, costs for sponsor costs related to permits and land rights are not eligible costs for reimbursement.

 

Project Performance Time

 

The time allotted to complete construction. The time allotted is 220 days for emergencies and 10 days for exigencies from the date funds are made available. (Also referred to as time limits.)

 

Project Sponsor

 

A State government or a State agency or a legal subdivision thereof, local unit of government, or any Native American tribe or tribal organization as defined in Section 4 of the Indian Self-Determination and

 

Education Assistance Act (25 U.S.C. 450b), with a legal interest in or responsibility for the values threatened by a watershed emergency; is capable of obtaining necessary land rights; and is capable of carrying out any operation and maintenance responsibilities that may be required.

 

Property

 

Property is considered any man-made structure permanently affixed to land such as, but not limited to, houses, buildings, roads, utilities, structures, dams, etc.  Property does not include standing timber, growing crops, and other agronomic crops.



 

 

 

Terms

 

Definitions

 

Recovery Measure

 

Actions that restore the natural resources to either a stable or predisaster condition, that will not cause increased adverse impacts, and are technically adequate.

 

Service Costs

 

Costs associated with measure preparation and quality assurance and include field surveys, design, inspection, and contract award/administration

 

Tiering

 

40 CFR 1508.28 Tiering

 

"Tiering" refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basin-wide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is:

 

A.    From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis.

 

B.    From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation).

 

Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet rip.

 

Time Limits

 

The time allotted to complete construction. The time allotted is 220 days for emergencies and 10 days for exigencies from the date funds are made available. (Also referred to as project performance time.)

 

Watershed Emergency

 

Adverse impacts to resources exist when a natural occurrence causes a sudden impairment of a watershed and creates an imminent threat to life or property.

 

Watershed Impairment

 

The situation that exists when the ability of a watershed to carry out its natural functions is reduced to the point where an imminent threat to health, life, or property is created. This impairment can also include sediment and debris deposition in floodplains and upland portions of the watershed.

 

 

 

 

 

 

 

515.11 Acronyms

 

 

Acronyms

 

Descriptions

 

AC

 

Area Conservationist

 

ADR

 

Alternative Dispute Resolution

 

BAER

 

Burned Area Emergency Rehabilitation (USFS/BLM)

 

BLM

 

Bureau of Land Management

 

CD

 

Conservation District

 

CED

 

County Executive Director (FSA)

 

CFR

 

Code of Federal Regulations

 

COC

 

County Committee (FSA)

 

C/S

 

Cost-share

 

CWA

 

Clean Water Act

 

DC

 

District Conservationist or Designated Conservationist

 

DHS

 

Department of Homeland Security

 

DSR

 

Damage Survey Report

 

ECP

 

Emergency Conservation Program (administered by FSA)

 

EDR

 

Electronic Disaster Report

 

EFT

 

Electronic Fund Transfer

 

EIS

 

Environmental Impact Statement

 

EPA

 

Environmental Protection Agency

 

ERP

 

Emergency Recovery Plan

 

ESA

 

Endangered Species Act



 

 

 

Acronyms

 

Descriptions

 

EWP

 

Emergency Watershed Protection Program

 

FA

 

Financial Assistance

 

FEMA

 

Federal Emergency Management Agency

 

FOIA

 

Freedom of Information Act

 

FOTG

 

Field Office Technical Guide

 

FSA

 

Farm Service Agency

 

GAO

 

General Accounting Office

 

GM

 

General Manual

 

GPS

 

Global Positioning System

 

GR

 

Government Representative

 

HUD

 

Department of Housing and Urban Development

 

LTC

 

Long-term contract

 

NAD

 

National Appeals Division

 

NECH

 

National Environmental Compliance Handbook

 

NEPA

 

National Environmental Policy Act of 1970

 

NHQ

 

NRCS National Headquarters

 

NHPA

 

National Historic Preservation Act

 

NPPH

 

National Planning Procedures Handbook

 

NMFS

 

National Marine Fisheries Service

 

NWS

 

National Weather Service

 

NWM

 

National Watershed Manual

 

NRCS

 

Natural Resources Conservation Service

 

OGC

 

Office of the General Counsel

 

OIG

 

Office of the Inspector General



 

 

 

Acronyms

 

Descriptions

 

OMB

 

Office of Management and Budget

 

RD

 

Rural Development Agency

 

SHPO

 

State Historic Preservation Officer

 

STC

 

State Conservationist

 

SFR

 

State Forestry Representative

 

TA

 

Technical Assistance

 

THPO

 

Tribal Historic Preservation Officer

 

USACE

 

United States Army Corps of Engineers

 

USFS

 

U.S. Forest Service

 

USFWS

 

U.S. Fish and Wildlife Service

 

USDA

 

U.S. Department of Agriculture

 

USGS

 

U.S. Geological Survey

 



    
   


   
     


[M_390___515_B_March 2014 - Amend. 4 - ]

Subpart C – Forms
Subpart C – Forms   


515.20  EWP Recovery Forms

A.  Form NRCS-PDM-20A, “Electronic Disaster Report”

Click here for Form NRCS-PDM-20A 

B.  Form NRCS-PDM-20, “Damage Survey Report”

                  Click here for Form NRCS-PDM-20

C.  Form NRCS-PDM-XX, “Request for Establishment of an EWP Drawing Account”

Click here for Form NRCS-PDM-XX

D.  Form ADS-78, “Assurances Relating to Real Property Acquisition”

Click here for Form ADS-78       

E.  Form NRCS-PDM-23, “EWP Final Report”

Click here for Form NRCS-PDM-23

515.21  EWP-FPE Forms

A.  Form AD-1153, “Application for Long-Term Contracted Assistance”

Click here for Form AD-1153

B.  Form AD-XXXX, “Agreement to Purchase Conservation Easement” (New form is currently in review)

      No hyperlink until review is complete

C.  Form AD-XXXXA, “Agreement to Purchase Conservation Easement 1” (New form is currently in review)

      No hyperlink until review is complete

D.  Form NRCS-LTP-20, “Emergency Watersheds Protection Program Floodplain Warranty”

Click here for Form NRCS-LTP-20

E.  Form AD-1154, “Long-Term Agreement”

Click here for Form AD-1154

F.  Form AD-1155, “Conservation Plan Schedule of Operations”

Click here for Form AD-1155

G.  Form AD-1155A, “Conservation Plan Schedule of Operations”

                   Click here for Form AD-1155A



   
    


      
    


[M_390___515_C_March 2014 - Amend. 4 - ]

Subpart D – Statutes and Regulations
Subpart D – Statutes and Regulations 


515.30  Statutory Authority

Public Law 81–516, Section 216, as amended (33 U.S.C. Section 701b), states the following:

“The Secretary of Agriculture is authorized to undertake emergency measures, including the purchase of floodplain easements, for runoff retardation and soil-erosion prevention, in cooperation with landowners and land users, as the Secretary deems necessary to safeguard lives and property from floods, drought, and the products of erosion on any watershed whenever fire, flood, or any other natural occurrence is causing or has caused a sudden impairment of the watershed.”

515.31  Applicable Regulations

A.  Click here for a copy of 7 CFR Part 624, “Emergency Watershed Protection Program Regulation, Final Rule”

B.  Click here for a copy of 7 CFR Part 624, “Emergency Watershed Protection Program”        



      
      


  
 


[M_390___515_D_March 2014 - Amend. 4 - ]

Subpart E – Agreements
Subpart E – Agreements 


515.40  Agreements with Other Agencies

Click here for a copy of the Agreements with Other Agencies


  


  
    


[M_390___515_E_March 2014 - Amend. 4 - ]

Subpart F - Sample Letters


515.50  Sample Letter of EWP Recovery Measure Forms and a Request for EWP Assistance

Click here for a copy of the EWP Recovery Measure Form           

515.51  Sample Letter Requesting DSR Time Extension

Click here for a copy of the Sample Letter Request DSR Time Extension    

515.52  Sample Attorney’s Opinion Letter

Click here for a copy of the Sample Attorney's Opinion Letter     

515.53  Sample Letter Request for Time Extension

Click here for a copy of the Sample Letter Request for Time Extension    

515.54  Sample Letter of Tentative Acceptance

Click here for a copy of the Sample Letter of Tentative Acceptance     

[M_390___515_F - Amend. 3 - November 2010]

Subpart G - Floodplain Easement Guidance Documents

515.60  Business Process Flow Chart

    Click here for the Business Process Flow Chart
   

515.61  Appraisal Guidance

     Click here for the Appraisal Guidance

515.62  Land Survey Specifications for the Natural Resources Conservation Service Easement Programs

      Click here for the Land Survey Specifications for NRCS Easement Program 

515.63  Appraisal Specifications for Appraisals of Real Property for the Emergency Watershed Protection Program (EWPP)

     Click here for the Appraisal Specifications for Appraisals of Real Property for EWPP 

515.64  Hazardous Substance Examination Checklist

     Click here for the Hazardous Substance Examination Checklist 

[M_390___515_G` - Amend. 3 - November 2010]

Part 516 - Emergency Watershed Protection Program - Floodplain Easements (EWPP-FPE)