Wildlife Habitat Incentives Program

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 636

RIN 0578-AA21

Wildlife Habitat Incentives Program

AGENCY: Natural Resources Conservation Service, United States

Department of Agriculture.

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service is issuing a final

rule for the Wildlife Habitat Incentives Program (WHIP). A proposed

rule for WHIP was published in the Federal Register on December 13,

1996 (61 FR 65485) and comments were solicited from the public. This

final rule establishes the process by which NRCS will administer WHIP,

responds to comments received from the public during the 45-day comment

period, and incorporates clarifications to improve implementation of

the program.

EFFECTIVE DATE: September 19, 1997.

ADDRESSES: This final rule may be accessed via Internet. Users can

access the Natural Resources Conservation Service (NRCS) homepage at

http://www.ftw.nrcs.usda.gov; select 1996 Farm Bill Conservation

Programs from the menu.

FOR FURTHER INFORMATION CONTACT: Warren M. Lee, Director, Watersheds

and Wetlands Division, Natural Resources Conservation Service, P.O. Box

2890, Washington, DC 20013-2890. 202-720-3534. Fax: 202-720-2143.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

The Office of Management and Budget (OMB) determined that this

final rule is significant and was reviewed by OMB under Executive Order

12866. Pursuant to section 6(a)(3) of Executive Order 12866, NRCS

conducted a benefit-cost assessment of the potential impacts associated

with this proposed rule and concluded from the benefit-cost assessment

that the overall impacts of WHIP will be beneficial. NRCS determined

that the development of partnerships to provide expert technical

assistance will ensure customers are afforded the best opportunity for

success. In this manner, NRCS believes that WHIP will provide for

wildlife habitat, help improve the quality of life for participants,

and have a neutral to positive impact on local economies. Copies of the

benefit-cost assessment are available upon request from Jeanne

Christie, Program Manager, Watersheds and Wetlands Division, Natural

Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-

2890.

Regulatory Flexibility Act

The Regulatory Flexibility Act is not applicable to this rule

because NRCS is not required by 5 U.S.C. 533 or any other provision of

law to publish a notice of proposed rulemaking with respect to the

subject matter of this rule.

Environmental Analysis

It has determined through an amendment to the ``Environmental

Assessment for the Wildlife Habitat Incentives Program, August 22,

1996'' that the issuance of this final rule will not have a significant

effect on the human environment. Copies of the Environmental

Assessment, the amendment, and the finding of no significant impact may

be obtained from Jeanne Christie, Watersheds and Wetlands Division,

Natural Resources Conservation Service, P.O. Box 2890, Washington, DC

20013-2890.

Paperwork Reduction Act

No substantive changes have been made in this final rule which

affect the recordkeeping requirements and estimated burdens previously

reviewed and approved under OMB control number 0560-0174. The

recordkeeping requirements and estimated burdens for WHIP were

transferred to OMB control number 0578-0013.

Executive Order 12988

This final has been reviewed in accordance with Executive Order

12988. The provisions of this final rule are not retroactive.

Furthermore, the provisions of this final rule preempt State and local

laws to the extent such laws are inconsistent with this final rule.

Before an action may be brought in a Federal court of competent

jurisdiction, the administrative appeal rights afforded persons at 7

CFR parts 614 and 11 must be exhausted.

Unfunded Mandates Reform Act of 1995

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

Pub. L. 104-4, NRCS assessed the effects of this rulemaking action on

State, local, and tribal governments, and the public. This action does

not compel the expenditure of $100 million or more by any State, local,

or tribal governments, or anyone in the private sector; therefore a

statement under section 202 of the Unfunded Mandates Reform Act of 1995

is not required.

Discussion of Program

The Federal Agriculture Improvement and Reform Act of 1996 (the

1996 Act) (Pub. L. 104-127, April 4, 1996) provides authority for

several conservation programs. Section 387 of the 1996 Act authorizes

the Wildlife Habitat Incentives Program (WHIP) under the supervision of

the NRCS. The primary purpose of WHIP is to help landowners ``develop

upland wildlife, wetland wildlife, threatened and endangered species,

fish, and other types of wildlife habitat.''

Section 387 of the 1996 Act provides that up to $50 million is

available to implement WHIP. These funds were formerly available to

implement the Conservation Reserve Program, 16 U.S.C. 3831-3836. WHIP

will be under the general supervision and direction of the Chief of

NRCS.

Through WHIP, NRCS will utilize CCC funds to provide cost-share

assistance to those landowners who wish to integrate wildlife

considerations into the overall management of their operations, or who

simply desire to do more for wildlife. NRCS will implement WHIP in

harmony with other programs to achieve more comprehensive advancement

of wildlife objectives.

WHIP offers an opportunity to encourage development of improved

wildlife habitat on eligible lands. As participants make decisions

about the wildlife habitat development plan for their land, they will

gain a greater awareness about their farming and ranching activities.

NRCS believes that the efforts made by participants in this program

will serve as a catalyst for improving wildlife conditions throughout

the Nation.

On December 13, 1996, a proposed rule was published with request

for comments. The proposed rule described the program requirements,

administrative processes, and eligibility criteria that NRCS would use

to implement WHIP. Nearly 53 individual responses containing about 377

specific comments were received during the 45-day comment period: 5

from agricultural organizations; 19 from environmental organizations;

18 from State and local agencies; and, 11 from individuals and other

organizations.

Additional responses were received from Federal agencies and

employees, but are not included in the following analysis of public

comments. These responses are being treated as inter-and intra-agency

comments and are being considered along with the public comments where

appropriate.

All comments received are available for review at United States

Department

[[Page 49359]]

of Agriculture, Room 6029-S, South Building, 14th and Independence

Ave., SW., Washington, DC., during regular business hours (8 a.m. to 5

p.m.) Monday through Friday.

Analysis of Public Comment

Overall, almost all respondents expressed appreciation with the

proposed rule and the various means by which the public could comment.

Many offered valuable suggestions for improving or clarifying specific

sections of the proposed rule. Some of these suggestions were group

efforts, whereas individual responses used similar or identical

language to identify and describe their interests, concerns, and

recommended modifications to the proposed rule.

The majority of comments centered on six major issues: the ranking

of projects; practices that required recurring implementation; cost-

share provisions; length of the contract; plan development; and, land

eligibility. Several comments either commended or criticized specific

statutory requirements. These comments were considered as part of the

rulemaking record to the extent that they were relevant to the

provisions of the rulemaking. Numerous minor editorial and other

changes in the text were suggested; these comments are not included in

the following analysis but all were considered, and many of the minor

changes were included in the final rule.

General Comments on 7 CFR Part 1470

Under the proposed rule, NRCS proposed to set out WHIP regulations

in CFR title 7, part 1470. However, NRCS later determined that it is

more appropriate to include the final rule in part 636. Therefore, NRCS

organized the comments according to the section number as found in the

proposed rule but in its responses provided the new section number as

found in the final rule where appropriate. The following summarizes

comments received on the proposed rule and NRCS' response to them.

1. Preamble Language in the Proposed Rule

Comment. Thirty-six comments expressed support for the WHIP program

as proposed. Of these, 10 comments indicated that there were existing

wildlife problems which WHIP could address. These wildlife problems

varied across the country. Four comments expressed concern that the

preamble did not give sufficient emphasis to the decline of wildlife

species in the southeast, while three other comments indicated that

wildlife has already benefited from existing USDA programs.

Response. In the preamble to the proposed rule, NRCS did not intend

to provide an exhaustive description of the various wildlife declines

that each region has experienced or how programs of the Department have

helped to stem these declines. The NRCS recognizes that there exist

special wildlife concerns all across the country and hopes that

programs such as WHIP will help reverse these troubling trends.

Comment. Eight comments supported using partnerships to implement

WHIP. Four comments recommended that procedures should be kept simple

and that USDA should try to maximize landowner participation.

Response. The NRCS appreciates these comments and will adopt the

recommendations when possible. In developing the program, the NRCS

determined that a simple and flexible approach could best meet the

varied wildlife concerns that exist across the country. The final rule

provides the necessary flexibility to accommodate input from the

landowner and to obtain assistance from other entities with wildlife

expertise, and to address specific wildlife concerns.

Privacy

Comment. Nine comments focused on concern over privacy issues. Four

comments stated that pre-cost-share agreement information should be

confidential--specifically, if the cost-share agreement is not later

awarded. Two suggested that participants should be able to terminate

the cost-share agreement if the NRCS violated confidentiality with no

obligation to return dollars already expended. Two comments supported

full disclosure of all partners who would be involved in the cost-share

agreement prior to obtaining final signatures. Three comments requested

that the participant receive notification regarding any site visits by

any partners and access to any information gathered during the site

visit. One comment stated that the WHIP plan and cost-share agreement

should not be subject to FOIA or used in an environmental audit as part

of discovery.

Response. The public's concern with the confidentiality of

information made available to NRCS in connection with WHIP is

understandable. There is significant apprehension that compliance with

applicable Federal Statutes may hinder some uses of private lands.

NRCS' policy is to not release information obtained from WHIP

applicants or participants to other members of the public or other

Federal agencies unless required to do so by law. In practice, this

means that NRCS will not contact other Federal agencies offering

information it obtains from WHIP participants or regarding the

participant's land.

NRCS may be required to release information about threatened and

endangered or listed species or critical habitat pursuant to a request

made under the Freedom of Information Act or as part of NRCS'

Endangered Species Act (ESA) compliance requirements. In deciding

whether to participate in WHIP, prospective applicants will need to

consider whether the benefits of participating in the program outweigh

the concern that the potential release of information to the public

about listed species or habitat may lead to a legally mandated

restriction of any degree on the participant's land. NRCS will disclose

to WHIP applicants all public and private entities that may be involved

in a partnership in administering WHIP in a particular area.

Notification to prospective participants concerning the involvement

of partnership organizations will generally occur as part of the

application and planning process before NRCS enters into a cost-share

agreement with the applicant. After the cost-share agreement is signed,

NRCS will attempt to contact the participant before follow-up site

visits occur.

ESA and related Federal Law

Comment. Fifteen comments addressed the relationship of WHIP to

other Federal laws and regulations, 13 of these comments were directed

to concerns over compliance with the ESA. Two other comments raised

concerns that ESA compliance requirements could be triggered by the

identification of endangered species on an applicant's land, while two

different comments recommended that lands under contract with WHIP

should not be subject to ESA. Two comments stated that at the

conclusion of the contract participants should be allowed to return to

pre-contract conditions without regard to provisions of the ESA,

section 404 of the Clean Water Act (CWA) or any related laws, rules, or

regulations. Five comments suggested that WHIP should not be

implemented in critical habitats for threatened and endangered species

absent safe harbor agreement with the Fish and Wildlife Service, while

one comment suggested that such a safe harbor agreement should be

included as a component of the WHIP cost-share agreement. Even so, one

comment raised the concern that the rule failed to address incidental

take permits and

[[Page 49360]]

related ESA matters. The remaining three comments discussed the

relationship to section 404 of the CWA and the ineligibility provisions

for USDA programs under the Food Security Act of 1985, as amended.

Response. The public's interest in the relationship between WHIP

and other environmental statutes, particularly the Endangered Species

Act (ESA), is understandable in light of the public's general interest

in and concern about endangered species and WHIP's goal of developing

wildlife habitat. The United States Fish and Wildlife Service (FWS) is

responsible for administering the ESA and the Army Corps of Engineers

and Environmental Protection Agency is responsible for administering

section 404 of the CWA. Questions regarding the applicability of these

statutes to a WHIP participant's land, including questions about the

application of the statutes after a WHIP cost-share agreement expires,

should be addressed to the agency responsible for the statute. However,

NRCS intends to provide assistance to persons interested in WHIP and

therefore, offers to facilitate discussion with the applicable agency

when asked.

NRCS has no authority to issue safe harbor agreements for an

individual's land or issue incidental take permits (`incidental take

permits' allow for the incidental take of species or habitat incidental

to a Habitat Conservation Plan and section 10 of ESA). Therefore, NRCS

will refer applicants to the FWS on these important issues. NRCS will

satisfy its consultation responsibilities as required by ESA.

The WHIP will reflect a concern for threatened and endangered

species by providing for the termination of any WHIP cost-share

agreement if the participant unlawfully adversely modifies critical

habitat or otherwise harms a threatened or endangered species. The

adverse action may involve an area on the participant's farm that is

outside the site of habitat development specified in the cost-share

agreement. Section 636.11 of the final rule provides for cost-share

agreement termination if the State Conservationist determines that the

termination is in the public interest. NRCS believes it is in the

public's interest to terminate a WHIP cost-share agreement when the

program participant unlawfully harms a threatened or endangered

species.

NRCS will also support threatened or endangered species through

WHIP by not approving a cost-share agreement for a practice that may

help one threatened or endangered species but harm another.

Funding

Comment. The NRCS received thirteen comments on the subject of WHIP

program funding. These comments did not focus on any particular aspect

of funding but included such varied topics as the availability of

technical assistance moneys to NRCS and non-USDA entities, the policy

option to obligate the majority of WHIP program funds over the next two

years, and the suggested ability of NRCS to set a $5000 cap per year

per contract. One comment recommended that habitat conservation plans

receive priority for threatened and endangered species funding. One

comment suggested that conservation partners should donate technical

assistance. Another comment advised that NRCS should spend WHIP funds

on implementation of cost-share practice and not on technical

assistance.

Response. The NRCS did not address funding matters in the rule.

However, as a policy matter the NRCS recognizes the importance of using

WHIP funds to implement wildlife habitat practices that yield real

benefits for wildlife. NRCS will also work with other public and

private wildlife interests to provide assistance for the program from

other resources. This may include both technical assistance and funding

where there are voluntary and mutual interests between program

applicants, partners, and the NRCS. In addition, the 1996 Act provided

that $50,000,000 shall be made available to carry out WHIP. The NRCS

intends to distribute these funds to priority projects that maximize

environmental returns and participation in the program. Therefore, the

NRCS does not anticipate a need to set a $5000 per year limitation,

especially given the projected high demand for program funding.

However, NRCS does anticipate that most cost-share agreements will cost

less than $10,000 and will only enter in a cost-share agreement in

excess of that amount if superior wildlife habitat benefit warrants

greater Federal investment.

Paperwork Reduction Act

Comment. The Department received three comments on the Paperwork

Reduction Act during the public comment period for the proposed rule.

These comments expressed concern regarding: the level of bureaucracy

involved with the local work groups; the need to simplify the

paperwork; and that a greater amount of technical assistance will be

needed to implement the program.

Response. The NRCS has striven to simplify the process for the

participant by only requiring the minimum of paperwork, assuming most

of the administrative burden, and providing flexibility to incorporate

the Wildlife Habitat Development Plan (WHDP) into other conservation

plans that the participant may have. Based on the information currently

available, NRCS believes that its recordkeeping and reporting burden

estimates are valid, but will re-evaluate their accuracy after the

program is fully implemented.

2. Section-by-Section Comments on 7 CFR Part 1470

Several modifications to improve the clarity of the rule have

resulted in some of the section numbers being redesignated in the final

rule. The following discussion of the public comments relates to the

section numbers as indicated in the proposed rule.

Section 1470.1 Applicability

Comment. One comment supported the purpose of WHIP to ``help

participants develop habitat for upland wildlife, wetland wildlife,

threatened and endangered species, fish and other types of wildlife.''

Response. The purpose stated in the rule mirrors the statutory

purposes. The NRCS welcomes the opportunity to work with landowners to

improve wildlife habitats throughout the nation.

Section 1470.2 Administration

Comment. Under the proposed rule, section 1470.2 addressed the

general framework for WHIP implementation. The NRCS received 28

comments on this section. Ten of these comments expressed support for

the utilization of cooperative agreements with other entities with

interests in wildlife habitat while one comment disapproved of the use

of such arrangements. Three comments suggested the NRCS clarify whether

non-profit organizations or other entities could enter into agreements

under WHIP. One comment wanted the NRCS to delegate implementation

authority for the program to a State agency.

Response. The NRCS believes that the opportunity to work with other

Federal agencies, local and State partners, and the private sector,

will improve delivery of the program. The language in the proposed rule

encompassed many types of organizations who have wildlife concerns,

including non-profit organizations, land trusts, and hunting clubs. The

final rule language has been simplified regarding these agreements.

Comment. The NRCS received two other comments related to

cooperative agreements: one comment

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recommended that the rule expressly provide for agreements which

reimburse partners for salaries and expenses; and the other comment

recommended that a one-to five year time frame for agreements be

included in the rule.

Response. Any agreement the NRCS enters into must be in accordance

with the appropriate authorities.

Comment. Six comments supported a strong role for the State

Technical Committees, while two other comments supported review of

State Technical Committee membership by the NRCS National Office, and

two other comments recommended particular agencies for membership on

the State Technical Committee.

Response. Section 3861 of Title 16 of the United States Code

authorizes the establishment of State Technical Committees, describes

their advisory role, and describes the entities eligible to participate

on such a committee. NRCS intends to publish a rule on the structure

and purpose of the State Technical Committees in a separate rulemaking,

and shall consider these recommendations regarding committee

representation as it develops that rule.

Comment. One comment expressed concern that Habitat Conservation

Plans were not explicitly mentioned in this section.

Response. The term ``habitat conservation plan'' is a term of art

recognized under the ESA. As described above, the NRCS does not have

enforcement authority under the ESA and does not want to create any

confusion between such plans and the plans developed under WHIP. The

WHIP participant may use one plan or another method to satisfy this

requirement under both statutes.

Section 1470.3 Definitions

There were seven comments received on this section.

Authorized CCC Representative

Comment. One comment recommended adding a definition for this term

in the rule.

Response. The CCC is a government-owned and operated corporation,

chartered in the 1930s to help stabilize and support farm prices and

income, and to maintain balanced supplies and orderly distribution of

agricultural commodities. The 1996 Act expanded the mission of the CCC

to include the power to carry out conservation or environmental

programs authorized by law.

Although CCC will provide most of the funds to implement the

program, the NRCS has the administrative responsibility to manage the

program. The term ``authorized CCC representative'' has been removed

from the final rule.

Conservation Plan

Comment. One comment wanted this term defined within the rule and

clarification of its role in WHIP relative to other NRCS programs.

Response. The NRCS added a definition for ``conservation plan'' in

the final rule. However, the term ``Wildlife Habitat Development Plan

(WHDP)'', as found in this rule, can constitute an entire conservation

plan if the participant does not intend to implement any non-WHIP

practices, or the WHDP can constitute a component of a conservation

plan for a larger management unit or a broader set of conservation

activities under other programs.

Habitat Development

Comment. One comment wanted to narrow this definition based on the

assumption that a broader definition makes targeting more difficult.

Response. The NRCS believes that a broad definition is necessary to

encompass the range of possible program opportunities that merit

funding. Therefore, no change has been made to this definition.

Wildlife

Comment. Four comments were received indicating that this

definition should be changed. One of these comments suggested adding

amphibians and three of these comments recommended a less inclusive

definition while adding a definition for ``wildlife habitat''.

Response. The NRCS agrees with these recommendations and has

modified the definition for ``wildlife'' in the final rule to mean

``birds, fishes, reptiles, amphibians, invertebrates, and mammals,

along with all other animals' and has added a new definition for

``wildlife habitat'' to mean ``the aquatic and terrestrial environments

required for wildlife to complete their life cycles, including air,

food, cover, water, and spatial requirements.''

Cost-Share Agreement

To better reflect the nature of the relationship between NRCS and a

participant, the term ``contract'' has been changed to ``cost-share

agreement.''

Section 1470.4 Program requirements.

Section 1470.4 (a):

Comment. There were 19 comments regarding the length of contracts.

Ten comments supported the terminology within the proposed for a 10-

year minimum. One of these comments supported allowing cost-share

agreements to extend up to 15 years, similar to an existing state

wildlife program, and another of these comments supported perpetual

cost-share agreements. Nine comments supported shorter time-spans. Of

these, seven supported annual cost-share agreements and one comment

recommended tying the life of the practice to the length of the cost-

share agreements, as appropriate, ranging from three to five to ten

years.

Response. The NRCS decided to provide greater flexibility in the

length of the cost-share agreement. Therefore, the rule has been

revised to provide for cost-share agreement lengths of five to ten

years and in special emergency circumstance to provide the flexibility

to enter into one-year cost-share agreements. From a wildlife

standpoint, the longer wildlife habitat is retained on the landscape,

the greater the wildlife benefits. While certain wildlife species such

as birds, can find alternative nesting sites, many wildlife species are

much less mobile and will not be able to relocate. Even many bird

species display a strong preference for returning to the same site year

after year. Therefore, NRCS will continue to place priority on working

with applicants who express an interest in long-term cost-share

agreements. However, the cost-share agreement period applies to the

time that it takes to install a practice or practices and verify that

they have been successfully installed. For certain wildlife practice or

combinations of wildlife practices it may not require 10 years to

achieve desired benefits. In all cases, after completion of the cost-

share agreement period, program participants will still be required to

be in compliance with an associated operations and maintenance

agreement to maintain the WHIP practice or practices for the life of

each practice. Practice life varies, and may or may not extend beyond

the actual cost-share agreement period, but for some practices such as

impoundment structures, practice lifespans can range up to 20 or 30

years. This operations and maintenance agreement is consistent with the

way other Departmental programs, such as the Agriculture Conservation

Program, Great Plains Conservation Program, and Colorado River Basin

Salinity Control Programs operated in the past. All of these programs

had wildlife components. The NRCS believes the five to ten year cost-

share agreement period is appropriate because it allows NRCS to monitor

the wildlife practices on an annual basis for

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the first several years after the practice is installed and thus

evaluate whether they are providing the benefits anticipated. Wildlife

management is complex; wildlife science is changing as our

understanding of wildlife and its interactions increase. Successful

implementation of wildlife habitat practices requires ongoing

monitoring and the ability to respond by modifying the agreement where

appropriate and acceptable to the parties involved.

In addition, an emergency event may necessitate NRCS's quick

intervention to minimize or remove a threat to critical wildlife

habitat. For example, wildlife populations threatened with overcrowding

and disease because of a severe drought might require the

implementation of habitat practices which ameliorate the drought's

immediate and deleterious impacts. An emergency practice, such as the

pumping of water, may need to be in place for only one year to realize

its wildlife habitat goals, and therefore a five to ten-year cost-share

agreement requirement would eliminate such a critical opportunity from

funding.

NRCS believes it would prove more cost-effective to undertake

short-term practices which prevent the loss of wildlife habitat and

wildlife populations, than to undertake the expense of subsequent

efforts which would attempt to re-establish wildlife populations. This

concern applies particularly to wildlife species already in decline and

under consideration for nomination as a candidate, threatened or

endangered species listing under the Endangered Species Act.

NRCS anticipates the application of this provision will only occur

on a very limited basis. The State Conservationist, in consultation

with the State Technical Committee, must identify the existence of a

wildlife emergency and request authority from the Chief, or designee,

to enter into agreements for periods shorter than 5 years. If approved,

the State Conservationist may enter into emergency agreements during a

six-month time period. If there is a continuing need to enter into

agreements after the six-months has elapsed, then the State

Conservationist may request a six-month extension.

NRCS incorporated the ability to respond to emergencies into this

final rule. To improve the organization and clarity of the final rule,

the WHDP and cost-share agreements were reorganized into separate

sections.

Section 1470.4 (c):

Comment. There were 15 responses to land eligibility requirements.

Eleven comments supported limiting eligible lands primarily or

exclusively to private lands. One comment supported making State lands

ineligible along with Federal lands, while allowing local, tribal, and

private lands to remain eligible.

Response. The NRCS will focus the majority of WHIP funds towards

private lands. However, the NRCS State Conservationist, in consultation

with the State Technical Committee, can allow exceptions where

significant wildlife habitat gains can only be achieved by installing

practices on non-Federal public land. For example, practices for

aquatic habitat restoration may require such an exception because the

State owns the stream or lake bottom. In another case, it may be cost

effective to include State or local lands adjoining or interspersed

with a number of private lands enrolled in WHIP, particularly where

State agencies are providing significant in-kind or monetary resources

to the success of the overall project. In addition, Tribal lands,

regardless of their status in terms of Federal trust lands, continue to

be eligible and Federal lands are eligible in those very limited

circumstances where the benefit is primarily on the private lands, but

must include some Federal land to meet the WHIP objective. Therefore,

this section has been revised to clarify which lands are eligible.

Comment. One comment wanted the NRCS to obtain the State Fish and

Game agency's concurrence on all eligible land determinations. One

respondent requested clarification of whether Federal land is confined

to lands held in title by the U.S. or includes lands held by other

entities but originally purchased with Federal funds. One comment

requested clarification of the term ``other lands'' in

Sec. 1470.4(c)(3).

Response. The final rule provides the flexibility to work with

partners including State Fish and Game agencies in the implementation

of WHIP. Land eligibility determinations are derived from identifying

who holds title to the land. To specifically require concurrence on

eligible land determinations would add unnecessary administrative

complexity to the program without providing a specific benefit. The

term ``other lands'' in Sec. 636.4(c)(3) of the final rule refers to

the other lands offered for enrollment in WHIP at the time the

application is considered or in the future.

Section 1470.5 Application Procedures

Comment. The NRCS received three comments about application

procedures. One comment wanted partners to accept applications for

WHIP, one comment requested that only qualified biological

professionals should make wildlife habitat assessments, and one comment

recommended the release of existing information in a State's Natural

Heritage database to NRCS.

Response. Partners can provide copies of applications to interested

individuals, but should inform such prospective applicants of the need

to contact NRCS to complete and submit final applications. Acceptance

of applications will need a determination of land eligibility that will

generally require a visit to the NRCS field office before the

application can be processed. Persons trained in the appropriate

assessment procedures will conduct all the biological assessments, but

such professionals may not hold a degree in biology. Partners with

biological expertise can provide assessment assistance or information

to NRCS, including non-privileged information such partner may have

regarding the range or habitat requirements of a particular species. No

change was made in the rule in response to these recommendations.

However, Sec. 1470.5 in the proposed rule has been revised and divided

into two sections in the final rule: ``Sec. 636.7, The Wildlife Habitat

Development Plan'' and ``Sec. 636.8, Cost-share Agreements'' to improve

clarity.

Section 1470.6 Establishing Priority for Enrollment in WHIP

Sections 1470.6 (a) and (b):

Comment. The NRCS received 53 comments directed to establishment of

priorities for enrollment in WHIP. Forty-two of these comments

concerned the establishment of State and national priorities while 11

concerned establishment of criteria for evaluating individual

applications. Thirteen comments supported geographic targeting at

either the state or national level as proposed in the rule, while eight

comments opposed geographic targeting but supported instead targeting

by specific wildlife habitats, wildlife species, or wildlife practices.

Three comments supported placing national priorities in the final

rule, while one comment requested clarification about how national

priorities should be developed. Sixteen comments recommended particular

species or habitats for priority treatment: five comments recommended

fish as an equal priority to terrestrial species; seven comments

recommended grassland wildlife habitat in various parts of the country;

three recommend habitats for neotropicals; and one comment recommend

utilizing wellhead protection areas. Three comments stated that State

Fish and Game agencies should establish priorities.

Response. Although the Chief has been given the ability to target

or limit

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the scope of WHIP, the rule states that this is in response to national

and regional needs. These national and regional needs are identified in

part by the NCRS State office in consultation with the State Technical

Committee. Each NRCS State office has the ability to prioritize the

allocation made to its administrative area and has been given the

option of targeting by geographic areas, wildlife habitat types, or

specific wildlife practices.

NRCS intends to allow targeting based upon local priorities through

a locally-led process or by the State Technical Committee, and

therefore, has not included specific national priorities in the final

rule. In the locally-led process, local groups and individuals are

given the ability to identify any wildlife issue of concern,

terrestrial or aquatic. NRCS has explicitly included fish in its

definition of wildlife and believes that fish shall receive priority

treatment in many areas of the country.

WHIP provides an opportunity to prevent declines in wildlife

populations and to achieve stable and diverse wildlife habitats. The

NRCS believes the locally-led process will increase the likelihood of

the program meeting these Federal goals. Throughout the process, NRCS

will gain local knowledge, experience, and expertise from the

participating groups and individuals, and will benefit from their

involvement and commitment to program objectives. The proposed rule set

forth the flexibility for locally-identified priorities and no changes

were made in this regard in the final rule.

Section 1470.6(c):

Comment. Four comments supported the existing criteria found in

section 1470.6(c) with respect to the evaluation of individual

applications. Several comments recommended adding criteria to the list,

including emphasis upon declining species in the context of an

ecosystem approach (three comments); cost-share agreement duration (two

comments); public access for hunting (one comment); threatened and

endangered species habitat (one comment); and net improvement in on-

site wildlife habitat (one comment). Several comments recommended

either removing particular items as priority criteria or caution

regarding the application of existing criteria, including removing

sustainability and maintenance (one comment), cautioning that a

practice that benefits one species may harm other species (one

comment), and removing any priority dependent on the amount of cost-

share provided by the participant (one comment). One comment suggested

that the whole unit of land owned by the applicant must be included in

the WHIP contract to be the eligible for cost share funds.

Response. The NRCS believes that the criteria listed in the

proposed rule adequately focused WHIP funds towards the projects that

will most benefit the habitat needs of wildlife. The criteria in the

rule provides the NRCS with the flexibility to further refine criteria

as appropriate to achieve specific wildlife habitat goals identified as

important in specific areas. This flexibility will allow for the

development of ranking criteria to evaluate applications and to fund

those requests that will best address the specific wildlife concerns

identified by NRCS in consultation with the State Technical Committee

or through the locally led process. The criteria was revised to clarify

that wildlife habitat need was an overriding requirement. No other

additions or deletions were made to the list.

Section 1470.6(d): Comment. One comment recommended deleting this

section because its provisions are already covered in 1470.4.

Response. Though this paragraph refers to eligibility, the

paragraph serves as an administrative tool for eliminating projects

that are technically eligible but do not meet the wildlife habitat

goals of WHIP.

Comment. Another comment cautioned against placing WHIP cost-share

agreements on public land unless special criteria applied such as a

demonstration project.

Response. The NRCS intends to focus WHIP funds on private lands and

will only enroll public lands in special situations, such as aquatic

restoration, where the public land is a small component of a larger

habitat restoration effort, or where there is a direct private benefit.

The language was simplified to better describe the circumstances when

an application could be denied.

Section 1470.7 Cost Share Payments

The NRCS received a total of 97 comments on this section of the

rule.

Section 1470.7 (a): Comment. The NRCS received 13 comments on the

percentage of cost-share provided under WHIP: five comments stated the

cost-share percentage should not exceed 75 percent from any source;

three comments stated the cost-share percentage should not exceed 75

percent from Federal sources; two comments supported the cost-share

provisions in the rule; and, one comment stated that cost-share should

be allowed up to 100 percent. One comment suggested that in-kind

services such as time and labor could count toward the landowners 25

percent cost-share assistance and one comment recommended the

participants should receive graduated payments over the life of the

contract.

Response. The 1996 Act does not allow incentive payments under

WHIP. In response to comments, the final rule is revised to state that

WHIP shall not pay more than 75 percent of the cost for a habitat

development practice. In addition, WHIP payments, in combination with

other direct Federal sources, shall not exceed 75 percent of the cost

for a habitat development practice. For practices that receive funds

directly from other Federal sources, the WHIP cost-share payment shall

be reduced proportionately, except in special cases where circumstances

merit additional cost-share assistance to achieve the intended goals of

the project. Generally, other direct Federal sources such as the Fish

and Wildlife Service's Partners for Wildlife program can contribute

part of the 75 percent maximum direct Federal cost-share assistance.

The 25 percent cost-share assistance can be met from other sources such

as State, private, or nonprofit sources. This assistance may include

in-kind matches from the program participant, but such arrangements

must be worked out in development of the agreement and must be

appropriate to meeting the objectives of the project. The final rule

has been modified so that a participant may receive an incentive

payment for an activity from a different source. The NRCS recognizes it

will not fund some activities that are necessary to the restoration of

a particular habitat, and will not interfere with other organizations

assisting participants in those endeavors.

Section 1470.7(b): Comment. There were many concerns raised

concerning the adequacy of the standards and specifications for

wildlife practices currently used by NRCS. Eleven comments recommended

the State Wildlife Agencies approve wildlife standards and

specifications. In addition, seven comments stated the State Technical

Committees should approve all wildlife practices used in WHIP. Eighteen

comments referred to the NRCS Field Office Technical Guide (FOTG), nine

of which recommended updating the FOTG, one comment suggested adapting

NRCS Technical Notes as eligible wildlife practices in WHIP, and the

remaining eight indicated that some practices in the FOTG should not be

eligible for WHIP. Several other comments identified individual

practices that should be eligible for WHIP, including nesting

platforms, screening diversion channels to enhance water quality,

managing pesticides and nutrients, establishing

[[Page 49364]]

and sustaining biodiversity along field edges and rights of way,

managing early successional grasslands, leaving grain standing in the

field for wildlife, seasonal flooding of cropland for migratory birds,

and establishing crawfish impoundments. One comment suggested

developing WHIP practice guidelines for threatened or endangered

species.

Response. The NRCS National office is adding technical guidance for

the FOTG related to wildlife practices and management. These revisions

include adding a wildlife component to many existing practices and new

specifications designed to aid conservation planning. The NRCS State

Conservationist, in consultation with the State Technical Committee,

can develop interim standards and specifications for practices not

currently in the FOTG. Practices included in WHIP cost-share agreements

should focus on achieving benefits for wildlife, therefore, it is not

necessary to identify practices that are ineligible for WHIP in the

FOTG. NRCS Biological Technical Notes as well as existing standards and

specifications developed by State Wildlife Agencies or other suitable

sources may be used as the basis for developing interim wildlife

practices. The flexibility already exists to address the concerns

described above. Therefore, no changes were made in the final rule.

Comment. Five comments referred to the time frame for cost-share

payments, two of which supported the language as proposed, two of which

requested clarification whether payment will be made prior to or after

the installation of a practice, and one of which suggested prior

payment for limited resource farmers.

Response. As outlined in the proposed rule, cost-share payments

shall be made after the installation of a practice per WHIP

specifications and the submission of appropriate records and receipts.

Although there is no authority in the WHIP statute to offer advance

payments, WHIP payments are assignable to third parties and as such,

are able to be paid directly to vendors providing services. In

addition, many of the partnerships formed at the State level between

NRCS and those interested in having a successful WHIP in their

respective States, provide that certain financial or technical

assistance or services will be provided to participants by the

partners. In some cases, the partners will establish the practice at no

charge to the participant. No changes were made in the final rule in

response to these comments.

Comment. One comment provided that WHIP could provide significant

wildlife habitat improvements if allowed on CRP lands.

Response. The 1996 Act added a wildlife emphasis to the CRP and

provided substantial funds towards implementation. The NRCS does not

believe the limited WHIP funds should be used to obtain wildlife

benefits on acreage enrolled in a program established to achieve

similar benefits.

Section 1470.7 (c): Comment. Ten comments described how many

wildlife habitats require recurring practices (such as prescribed

burning, discing, or mowing) to mimic the natural events that formerly

maintained grassland habitats.

Response. The NRCS recognizes the special management needs of

critical grassland habitats and will provide cost-share for recurring

practices. Therefore, the NRCS has added a definition for ``recurring

practices'' in this final rule and has changed this section to make

funding of recurring practices possible.

Section 1470.7(d): Comment. The NRCS received 21 comments on this

paragraph related to incentive payments, eleven of which stated

incentive payments provided by partners should not be subject to the

limit that specifies a participant cannot receive in excess of 100

percent cost-share assistance for a practice, nine of which recommended

changing the rule to allow for incentive payments, and one comment

suggesting that Wallop-Breaux funds should be eligible for matching

with WHIP funds.

Response. The NRCS removed the language regarding the 100 percent

limitation to clarify that its terms apply only to 75 percent of the

cost-share payments received by a participant; and the remaining

provisions of Sec. 1470.7(d) were incorporated into Sec. 636.6(a).

Because the NRCS encourages cooperation between entities that share

wildlife objectives, the National office recommends that the WHIP

ranking system developed within a State not penalize an applicant's

ability to receive cost-share assistance from other sources.

Comment. One comment recommended clarifying the meaning of the

assistance versus payment so that the salaries of NRCS and other

partners are not included in the cost-share the landowner is required

to match.

Response. The NRCS resolves this concern with the revision

described above by addressing only the 75 percent cost-share provided

by NRCS or from direct Federal funds in Sec. 636.7(a).

Section 1470.8 The Wildlife Habitat Development Plan (WHDP)

Comment. Forty comments were received on the Wildlife Habitat

Development Plan (WHDP), thirteen of which expressed approval for the

inclusion of partners in the planning process. Two comments wanted

conservation district partners to have approval authority, one of which

felt that the approval authority should be more than a ``rubber

stamp''. One comment asked whether the NRCS would reimburse partners

for technical assistance provided during the planning process. Two

comments stated that hunting rights should not be affected by the

implementation of the WHDP. Six comments related to WHDP requirements,

two stated that hunting rights should remain unaffected, one stated

that the plan should address State priority goals, three indicated

there should not be requirements on adjacent land not subject to the

cost-share agreement. One of these six comments requested the NRCS not

to require a full Resource Management System. Six additional comments

wanted existing management plans (e.g. SWCD conservation plans,

Resource Management Systems, Stewardship Incentives Program, Forestry

Incentives Program, and Habitat Conservation Plans) to be allowed as

the basis for the WHDP, while one comment recommended integrating WHDP

with other NRCS conservation planning efforts. Two comments supported

the WHDP as described in the proposed rule.

Response. The NRCS supports using of conservation partners in all

aspects of WHIP, including assessments, planning, monitoring, and

evaluation activities. The NRCS also supports efficiency of efforts and

will adapt, as appropriate, for use in WHIP any plans developed which

provide the needed information. As stated earlier, the WHDP may be the

entire conservation plan or one of several components of a conservation

plan depending on the desires and priorities of the program

participant. In general, it is not anticipated that the NRCS will

reimburse partners for technical assistance during the planning

process. However, there may be special cases where such arrangements

are made. These arrangements will generally be subject to the

availability of NRCS resources. No change was made in the final rule

because the rule contains sufficient flexibility to address these

concerns as they are raised through the locally-led process and in

consultation with the State Technical Committee.

[[Page 49365]]

Comment. Seven comments were related to monitoring of the WHIP

plan, three of which stated that monitoring and evaluation were

important activities, two of which encouraged the use of partners in

monitoring and measure success of the program, one of which wanted

monitoring to be included in the plan, and the remaining comment wanted

monitoring to be conducted only by NRCS and restricted to ensure

compliance with Federal laws, rules, standards and specifications.

Response. The NRCS agrees that monitoring and evaluation are

important for measuring success and identifying failures. Initially,

each NRCS State office shall determine the monitoring method to use, as

appropriate for the different types of wildlife habitat enrolled in the

program. However, the NRCS has identified the need to develop a

national standard for measuring wildlife habitat improvement in order

to track wildlife habitat benefits achieved under the program. No such

methodology currently exists, and it is the intent of NRCS to work with

other wildlife interests to develop one. These comments are beyond the

scope of this rule and are being addressed more appropriately in a

broader context.

Section 1470.9 Modifications

Comment. Two comments were received concerning modifications to a

WHIP plan. One comment wanted to allow changes to a plan at anytime

based on unforeseen circumstances while the other comment wanted all

modifications approved by the local work group in conjunction with the

local conservation district.

Response. The local work group is comprised of Federal, State,

County, tribal or local government representatives at the local level.

The local work group serves as a recommending body only and will not

have approval authority of WHIP cost-share agreements or modifications

to such cost-share agreements. WHIP will accommodate, to the extent

that funding allows, unforeseen technical modifications to a plan. The

cost-share agreement modification provisions for WHIP are similar to

those in other USDA conservation programs. The program handbook will

provide procedural guidance for modifying cost-share agreements, and

will have the flexibility to enable a participant to modify a cost-

share agreement several years into its implementation as long as the

WHDP is revised according to program requirements.

Section 1470.10 Transfer of Interest in a Contract

Comment. The NRCS received four comments on this topic. Two

comments recommended funds should not be returned if a cost-share

agreement is terminated. One comment recommended the return of all or a

portion of the funds if a cost-share agreement is terminated through a

change in ownership. One comment requesting clarification of the terms

for a transfer of cost-share agreement and whether an easement was

involved.

Response. NRCS does not have the authority to acquire easements

from WHIP participants, and therefore there are no easements involved

in a WHIP cost-share agreement. The NRCS added language to this section

to include provisions when a subsequent owner is unwilling to assume

responsibility under the WHIP cost-share agreement.

Section 1470.11 Termination of cost-share agreements

Comment. The NRCS received six comments on this section of the

rule. Two comments requested clarification of the terms ``public

interest'' and ``severe hardship''. One comment wanted the ability to

end the cost-share agreement without obligation for the participant to

return any funds. One comment wanted less harsh language in this

section.

Response. The NRCS will utilize standard cost-share agreement

procedures in the implementation of this section. The ``public

interest'' and ``severe hardship'' standards have been implemented in

many Departmental programs and such standards require fact-intensive

determinations. A particular summary of such determinations would not

prove insightful. There were no changes made to this section.

Section 1470.12 Violations and Remedies

Comment. The NRCS received one comment on this section requesting

clarification of the terms ``reasonable notice'' and ``additional time

as CCC may allow.''

Response. Written notice mailed to the last known address of the

participant constitutes reasonable notice, but there exist other

methods that also qualify. The NRCS will allow additional time beyond

30 days to correct a violation in those cases where an extension is

determined reasonable, such as inclement weather, or other extenuating

circumstances. In addition, language was added to clarify the

difference between situations where the participant sought to come back

into compliance and those where the participant elected not to do so.

Section 1470.13 Misrepresentation and Scheme or Device

Comment. The NRCS received one comment on this section raising the

concern that a program participant could be penalized for unknowingly

violating the terms of the cost-share agreement.

Response. Section 636.13 in the final rule focuses upon

misrepresentations and knowing violations, and thus the NRCS considers

a person's state of mind when applying the terms of this section.

Language was added in Sec. 636.13 clarifying the outcomes possible

under this section.

Section 1470.15 Appeals

Language was added to this section identifying activities that are

not subject to appeal, consistent with the Department of Agriculture

Reorganization Act of 1994.

Accordingly, Title 7 of the Code of Federal Regulations, subchapter

D, is amended by adding a new part 636 to read as follows:

PART 636--WILDLIFE HABITAT INCENTIVES PROGRAM

Sec.

636.1 Applicability.

636.2 Administration.

636.3 Definitions.

636.4 Program requirements.

636.5 Establishing priority for enrollment in WHIP.

636.6 Cost-share payments.

636.7 The Wildlife Habitat Development Plan (WHDP).

636.8 Cost-share agreements.

636.9 Modifications.

636.10 Transfer of interest in a cost-share agreement.

636.11 Termination of cost-share agreements.

636.12 Violations and remedies.

636.13 Misrepresentation and scheme or device.

636.14 Offsets and assignments.

636.15 Appeals.

Authority: 16 U.S.C. 3836a.

Sec. 636.1. Applicability.

(a) The purpose of the WHIP is to help participants develop habitat

for upland wildlife, wetland wildlife, threatened and endangered

species, fish, and other types of wildlife.

(b) The regulations in this part set forth the requirements for the

Wildlife Habitat Incentives Program (WHIP).

(c) The Chief, NRCS may implement WHIP in any of the 50 states, the

District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin

Islands of the United States, American Samoa, and

[[Page 49366]]

the Commonwealth of the Northern Mariana Islands.

Sec. 636.2. Administration.

(a) The regulations in this part will be administered under the

general supervision and direction of the Chief, NRCS.

(b) The State Conservationist will consult with the State Technical

Committee in the implementation of the program and in establishing

program direction for the NRCS in the applicable State. The State

Conservationist has the authority to accept or reject the State

Technical Committee recommendation; however, the State Conservationist

will give strong consideration to the State Technical Committee's

recommendation.

(c) NRCS may enter into cooperative agreements with Federal

agencies, State and local agencies, conservation districts, local

watershed groups, and private entities to assist with program

implementation, including cost-share agreement execution, assistance,

planning, and monitoring responsibilities.

(d) NRCS may make payments pursuant to agreements with other

Federal, State, or local agencies, conservation districts, local

watershed groups, or private entities for program implementation,

coordination of enrollment of cost-share agreements, or for other goals

consistent with the program provided for in this part.

(e) NRCS will provide the public with reasonable notice of

opportunities to apply for participation in the program.

(f) Nothing in this part shall preclude the Chief of NRCS, or a

designee, from determining any question arising under this part or from

reversing or modifying any determination made under this part.

Sec. 636.3. Definitions.

Chief means the Chief of the Natural Resources Conservation Service

or the person delegated authority to act for the Chief.

Conservation district means a political subdivision of a State,

Native American Tribe, or territory, organized pursuant to the State or

territorial soil conservation district law, or Tribal law. The

subdivision may be a conservation district, soil conservation district,

soil and water conservation district, resource conservation district,

natural resource district, land conservation committee, or similar

legally constituted body.

Conservation plan means a record of a participant's decisions, and

supporting information, for treatment of a unit of land or water, and

includes a schedule of operations, activities, and estimated

expenditures needed to solve identified natural resource problems.

Cost-share agreement means the document that specifies the

obligations and the rights of any person who has been accepted for

participation in the program.

Cost-share payment means the payments under this part to develop

wildlife habitat.

Habitat development means the physical actions or practices

undertaken to establish, improve, protect, enhance, or restore the

present conditions of the land for the specific purpose of improving

conditions for wildlife.

Participant means an applicant who is a party to a WHIP cost-share

agreement.

Person means an individual, partnership, association, corporation,

cooperative, estate, trust, joint venture, joint operation, or other

business enterprise or other legal entity and, whenever applicable, a

State, a political subdivision of a State, or any agency thereof.

Practice means a specified treatment, such as a structural or land

management measure, which is planned and applied according to NRCS

standards and specifications.

Recurring practices means practices repeated on the same area over

the life of a cost-share agreement to achieve specific habitat

attributes.

State Conservationist means the NRCS employee authorized to direct

and supervise NRCS activities in a State, the Caribbean Area, or the

Pacific Basin Area.

State Technical Committee means a committee established by the

Secretary of the United States Department of Agriculture in a State

pursuant to 16 U.S.C. 3861.

Wildlife means birds, fishes, reptiles, amphibians, invertebrates,

and mammals, along with all other animals.

Wildlife habitat means the aquatic and terrestrial environments

required for wildlife to complete their life cycles, including air,

food, cover, water, and spatial requirements.

Sec. 636.4. Program requirements.

(a) To participate in WHIP, a person must:

(1) Develop and agree to comply with a WHDP, as described in

Sec. 636.7;

(2) Enter into a cost-share agreement for the development of

wildlife as described in Sec. 636.8;

(3) Provide NRCS with written evidence of ownership or legal

control for the life of the proposed cost-share agreement period;

however, an exception may be made by the Chief:

(i) In the case of land allotted by the Bureau of Indian Affairs,

tribal land, or

(ii) Other instances in which NRCS determines there is sufficient

assurance of control;

(4) Agree to provide all information to NRCS as determined to be

necessary to assess the merits of a proposed project and to monitor the

compliance of a participant with a cost-share agreement; and (5)Agree

to grant to NRCS or its representatives access to the land for purposes

related to application, assessment, monitoring, enforcement, or other

actions required to implement this part.

(b) Ineligible land. NRCS shall not provide cost-share assistance

with respect to practices on land:

(1) Enrolled in a program where wildlife habitat objectives have

been sufficiently achieved through other forms of assistance or without

assistance, as determined by NRCS.

(2) With on-site or off-site conditions which NRCS determines would

undermine the benefits of the habitat development or otherwise reduce

its value;

(3) Where NRCS determines that the wildlife habitat development

benefits attainable are of lessor value than would occur on other

lands; or

(4) Owned by the United States, except where there is a direct

Tribal, State, or private benefit; or

(5) On which habitat for threatened or endangered species would be

adversely affected.

(c) All other land except as provided in paragraph (b) of this

section is eligible.

Sec. 636.5 Establishing priority for enrollment in WHIP.

(a) In response to national and regional needs, the Chief may limit

program implementation in any given year to specific geographic areas

or to address specific habitat development needs of targeted species of

special concern.

(b) The State Conservationist, in consultation with the State

Technical Committee, may limit implementation of WHIP to address unique

species, habitats, or special geographic areas of the State. Subsequent

cost-share agreement offers that would complement previous cost-share

agreements due to geographic proximity of the lands involved or other

relationships may receive priority consideration for participation.

(c) NRCS will evaluate the applications and make enrollment

decisions based on the wildlife habitat need using some or all of the

following criteria:

(1) Contribution to resolving an identified habitat problem of

national, regional, or state importance;

[[Page 49367]]

(2) Relationship to any established wildlife or conservation

priority areas;

(3) Duration of benefits to be obtained from the habitat

development practices;

(4) Self-sustaining nature of the habitat development practices;

(5) Availability of other partnership matching funds or reduced

funding request by the person applying for participation;

(6) Estimated costs of wildlife habitat development activities; and

(7) Other factors determined appropriate by NRCS to meet the

objectives of the program.

(d) Notwithstanding the criteria set forth in paragraph (c) of this

section, the State Conservationist, in consultation with the State

Technical Committee, may deny an application if it is not cost

effective or does not sufficiently meet program requirements:

Sec. 636.6 Cost-share payments.

(a) NRCS may share the cost with a participant for implementing the

practices as provided in the WHDP; NRCS shall offer to pay no more than

75 percent of the cost of establishing such practices. The cost-share

payment to a participant shall be reduced proportionately below 75

percent to the extent that direct Federal financial assistance is

provided to the participant from sources other than NRCS, except for

certain cases that merit additional cost-share assistance to achieve

the intended goals of the program, as determined by the State

Conservationist.

(b) Cost-share payments may be made only upon a determination by

the NRCS that an eligible practice or an identifiable unit of the

practice has been established in compliance with appropriate standards

and specifications. Identified practices may be implemented by the

participant or other designee.

(c) Cost-share payments may be made for the establishment and

installation of additional eligible practices, or the maintenance or

replacement of an eligible practice, but only if NRCS determines the

practice is needed to meet the objectives of the program, or that the

failure of the original practice was due to reasons beyond the control

of the participant.

Sec. 636.7 The Wildlife Habitat Development Plan (WHDP).

(a) The participant develops a WHDP with the assistance of NRCS or

other public or private natural resource professionals, and the WHDP is

approved by the participant, NRCS, and the local conservation district.

A WHDP encompasses the parcel of land that has the wildlife habitat

conditions that are of concern to the participant.

(b) The WHDP forms the basis for the agreement and is incorporated

therein. The WHDP includes a schedule for installation of the wildlife

habitat development practices, maintenance, and related requirements to

maintain the habitat for the life of the cost-share agreement.

(c) The WHDP may be modified in accordance with Sec. 636.9.

Sec. 636.8 Cost-share agreements.

(a) To apply for WHIP cost-share assistance, a person must submit

an application for participation in the WHIP at a USDA office or to an

NRCS representative.

(b) A WHIP cost-share agreement shall:

(1) Incorporate all portions of a WHDP;

(2) Be for a period of 5 to 10 years, unless provisions of

paragraph (c) of this section apply;

(3) Include all provisions as required by law or statute;

(4) Specify the requirements for operation and maintenance of

applied wildlife habitat development practices;

(5) Include any participant reporting and recordkeeping

requirements to determine compliance with the cost-share agreement and

program;

(6) Be signed by the participant. When the participant is not the

owner, concurrence from the owner is required; and,

(7) Include any other provision determined necessary or appropriate

by the NRCS representative.

(c) The Chief may allow a cost-share agreement period for less than

five years in situations where wildlife habitat is threatened as a

result of a disaster and emergency measures are necessary to address

the potential for dramatic declines in one or more wildlife

populations.

Sec. 636.9 Modifications.

(a) NRCS, with the concurrence of the conservation district, may

approve modifications to a WHDP where such modifications are acceptable

to the parties.

(b) NRCS may approve modifications to the cost-share agreement

where such modifications are acceptable to the parties.

(c) Any modifications made under this section must meet WHIP

program objectives, and must be in compliance with this part.

Sec. 636.10 Transfer of interest in a cost-share agreement.

(a) (1) If the ownership or operation of the land changes during

the term of the cost-share agreement, NRCS shall modify the cost-share

agreement to reflect the new interested persons and new divisions of

payments. NRCS shall make eligible cost-share payments upon

presentation of an assignment of rights or other evidence that title

had passed.

(2) With respect to any and all payments owed to participants who

wish to transfer ownership or control of land subject to a cost-share

agreement, the division of payment shall be determined by the original

party and that party's successor. In the event of a dispute or claim on

the distribution of cost-share payments, NRCS may withhold payments

without the accrual of interest pending a settlement or adjudication on

the rights to the funds.

(b) (1) If such new owners or operators are not willing to assume

the responsibilities posed in an existing WHIP cost-share agreement,

NRCS shall terminate the cost-share agreement and may require that all

cost-share payments may be forfeited, refunded, or both.

(2) The signatories to the cost-share agreement shall be jointly

and severally responsible for refunding the cost-share payments

pursuant to paragraph (b)(1) of this section.

Sec. 636.11 Termination of cost-share agreements.

(a) The State Conservationist may, by mutual agreement with the

parties to the cost-share agreement, consent to the termination of the

contract where:

(1) The parties to the cost-share agreement are unable to comply

with the terms of the cost-share agreement as the result of conditions

beyond their control;

(2) Compliance with the terms of the cost-share agreement would

work a severe hardship on the parties to the contract; or,

(3) Termination of the cost-share agreement would, as determined by

the State Conservationist, be in the public interest.

(b) If a cost-share agreement is terminated in accordance with the

provisions of this section, the State Conservationist may allow the

participants to retain any cost-share payments received under the cost-

share agreement in a porportion appropriate to the effort the

participant has made to comply with the cost-share agreement, or, in

cases of hardship, where forces beyond the participant's control

prevented compliance with the cost-share agreement.

Sec. 636.12 Violations and remedies.

(a) (1) If NRCS determines that a participant is in violation of a

cost-share agreement or documents incorporated by reference into the

cost-share

[[Page 49368]]

agreement, NRCS may give the parties to the cost-share agreement

reasonable notice and an opportunity to voluntarily correct the

violation within 30 days of the date of the notice, or such additional

time as NRCS may allow.

(2) If the participant fails to cure the violation of a cost-share

agreement within the period provided under paragraph (a)(1) of this

section, NRCS may terminate the agreement and require the participant

to refund all or part of any assistance earned under that cost-share

agreement, plus interest, as well as require the participant to forfeit

all rights for future payment under the agreement.

(b) [Reserved].

Sec. 636.13 Misrepresentation and scheme or device.

(a) A person who is determined by NRCS to have erroneously

represented any fact affecting a program determination made in

accordance with this part shall not be entitled to cost-share agreement

payments and must refund all payments, plus interest as determined by

NRCS.

(b) A person who is determined to have knowingly:

(1) Adopted any scheme or device that tends to defeat the purpose

of the program;

(2) Made any fraudulent representation; or,

(3) Misrepresented any fact affecting a program determination shall

refund to NRCS all payments, plus interest as determined by NRCS, with

respect to all NRCS cost-share agreements. The person's interest in all

NRCS cost-share agreements may be terminated.

Sec. 636.14 Offsets and assignments.

(a) Except as provided in paragraph (b) of this section, any

payment or portion thereof to any person shall be made without regard

to questions of title under State law and without regard to any claim

or lien against the land, or proceeds thereof, in favor of the owner or

any other creditor except agencies of the U.S. Government. The

regulations governing offsets and withholdings found in part 3 of this

title shall be applicable to cost-share agreement payments.

(b) Any person entitled to any cash payment under this program, may

assign the right to receive such payments in whole or in part.

Sec. 636.15 Appeals.

(a) Any person may obtain reconsideration and review of

determinations affecting participation in this program in accordance

with part 614 Part C of this title, except as provided in paragraph (b)

of this section.

(b) In accordance with the provisions of the Department of

Agriculture Reorganization Act of 1994, Pub. L. 103-354 (7 U.S.C.

6901), the following decisions are not appealable:

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

(2) The designation of approved wildlife priority areas, habitats

or practices;

(3) NRCS program funding decisions;

(4) Eligible conservation practices; and

(5) Other matters of general applicability.

(c) Before a person may seek judicial review of any action taken

under this part, the person must exhaust all administrative appeal

procedures set forth in paragraph (a) of this section.

Signed at Washington, D.C. on September 12, 1997.

Gary A. Margheim,

Acting Chief, Natural Resources Conservation Service.

[FR Doc. 97-24768 Filed 9-18-97; 8:45 am]

BILLING CODE 3410-16-P