Emergency Watershed Protection Program Floodplain Easements Disaster Relief Appropriations Act

The Emergency Watershed Protection - Floodplain Easement Program (EWP-FPE) provides an alternative measure to traditional EWP recovery where it is determined that acquiring an easement in lieu of recovery measures is the more economical and prudent approach to reducing a threat to life or property (see
7 CFR Part 624).

The easement must be restored to the extent practicable to the natural environment and may include both structural and nonstructural practices to restore the flood storage and flow, erosion control, and improve the practical management of the easement.

Structures, including buildings, within the floodplain easement must be demolished and removed, or relocated outside the 100-year floodplain or dam breach inundation area.

Agency - Department of Agriculture

Established in 1862, the Department of Agriculture serves all Americans through anti-hunger efforts, stewardship of nearly 200 million acres of national forest and rangelands, and through product safety and conservation efforts. The USDA opens markets for American farmers and ranchers and provides food for needy people around the world.

Office - See Regional Agency Offices.

For the list of NRCS state offices with telephone numbers and addresses, see the web site: http://www.nrcs.usda.gov/contact/.


Program Accomplishments

Not Applicable.

Uses and Use Restrictions

NRCS may bear up to 100 percent of costs related to easement acquisition and related acquisition costs.

NRCS will determine easement compensation in accordance with applicable regulation and other law.

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.

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 other designee may implement identified practices.

Restoration and enhancement efforts may include both structural and non-structural practices.

An easement acquired under this EWP-Floodplain Easement regulations shall provide NRCS with the full authority to restore, protect, manage, maintain, and enhance the functions and values of the floodplain.

EWP-FPE funds from this appropriation can only be spent on eligible Floodplain Easement projects that have suffered damage from Hurricane Sandy and are located within a Stafford ACT Designation.

(This means that a certain geographical area was declared a major disaster as a result of a Presidential Declaration).

Eligibility Requirements

Applicant Eligibility

For this appropriation, only applicants affected by Hurricane Sandy and only in those areas declared as a major disaster are eligible for assistance through the EWP-FPE program.
Pursuant to 7 CFR § 624.10(b)(2), NRCS may determine land is eligible under for EWP-FPE 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.


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.
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.

Beneficiary Eligibility

Private and non-federal landowners are eligible for EWP-FPE.

To be eligible for FPE, the NRCS 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.
For projects that include parcels with residential dwellings or other structures on nonagricultural lands (such as flood mitigation efforts intended to assist families in moving from flood-prone areas as part of EWP recovery efforts), a local sponsor will be identified and serve as the local cooperating entity for these efforts. A sponsor will be a local or State unit of government (city, county, conservation district, watershed conservancy district, or State agency) that has a local presence and staff available to assist in the implementation of the program.

Credentials/Documentation

The landowner must provide a copy of the vesting deed to the land. If the landowner is an entity, the entity must provide a list of the individuals who comprise the entity, including the percent of ownership for each individual, to the Farm Service Agency (FSA). The entity must provide documents to FSA and NRCS that show the entity to be legal and valid in the State and which members have the authority to sign contractual documents on behalf of the entity.

If funds are being requested for the purchase of easements on lands with residences or other nonagricultural structures, the State Conservationist (STC) must provide confirmation that the acquisition is part of a strategy that will facilitate the restoration of an 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. This program is excluded from coverage under OMB Circular No. A-87.

Aplication and Award Process

Preapplication Coordination

NRCS state offices in impacted states will submit an assessment of potential level of interest in areas with eligible lands.

An environmental impact statement is required for this program.

This program is excluded from coverage under E.O.

12372.

Application Procedures

This program is excluded from coverage under OMB Circular No. A-102. OMB Circular No. A-110 applies to this program. Landowners may only enroll land in the Emergency Watershed Protection for Floodplain Easements (EWP-FPE) Program through a permanent easement. Landowners apply for the EWP-FPE using the "Application for Long-Term Contracted Assistance."

Award Procedures

1) States receive applications, gather landowner information, rank applications, conduct preliminary investigations, and determine land and landowner eligibility
2) The STC will list all applications received during the announced signup period in rank order, beginning with the highest-ranked easement first.
3) States will submit an Easement Request Package to NHQ that includes documentation of land eligibility, landowner eligibility, and evidence of damage related to Hurricane Sandy.
4) Easement Request Packages will be reviewed and project selection will be conducted by the Deputy Chief for Programs.
5) Selected applications will be notified, either through an intent to continue letter for projects that will be individually appraised or through the issuance of Option Agreement to Purchase for projects with easement compensation determined through the Area-wide Market Analysis and Geographic Area Rate Cap process.
6) When the OATP has been signed by the applicant and the STC, the acres are considered enrolled in the program. At this time, the funds are obligated to the landowner as the vendor for the easement purchase cost only. The landowner may choose to assign all or a portion of the easement acquisition payment to the closing agent through a properly executed assignment of payment provided to NRCS along with the signed OATP.
7) The effective period of the OATP may not exceed 12 months from the date of the STC s signature. The effective period may be extended when necessary using the Option Agreement to Purchase Amendment. The STC may delegate, in writing, the authority to sign the OATP (and amendments) to the State program manager. No further delegation of this authority is allowed.

1) In addition to the above described activities, for EWP-FPE applications on land with residences or other structures, NRCS will enter into a cooperative or project agreement with the project sponsors prior to the commencing of easement acquisition activities. The agreement must specify the reimbursable tasks to be carried out by the sponsor to expedite the easement acquisition process.
2) In order to reduce the administrative burden and easement management cost to NRCS, sponsors are required to purchase the fee simple title from the landowner and enroll properties in a strategic manner that increases the likelihood that the floodplain can be reconnected.
3) The 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.

Deadlines

Contact the headquarters or regional office, as appropriate, for application deadlines.

Authorization

Disaster Relief Appropriations Act, 2013 , Public Law 113-2, 127 Stat. 4.

Range of Approval/Disapproval Time

Timeline is dependent upon when funding is appropriated. The FPE program is not a line-item funded program and is reliant upon emergency supplemental appropriations.

Appeals

Only NRCS decisions relating to eligibility for the EWP-FPE Program can be appealed. These decisions may be appealed in accordance with 7 CFR Part 614 and 7 CFR 11, as applicable.

Renewals

Not Applicable.

Assistance Considerations

Formula and Matching Requirements

Statutory formulas are not applicable to this program.
Matching requirements are not applicable to this program.
MOE requirements are not applicable to this program.

Length and Time Phasing of Assistance

EWP - Floodplain easements are a long-term solution and exist for perpetuity. After initial eligibility and project selection, easement acquisition phase requires 12 to 18 months on average. Following easement acquisition phase, restoration implementation phase requires 1 to 3 years until all practices are installed and vegetative practices are considered established. Continues until all EWP-FPE Program measures are installed (relocation or demolition of structures and/or floodplain restoration practices). Maintenance and monitoring of floodplain easements continues in perpetuity. Method of awarding/releasing assistance: lump sum.

Post Assistance Requirements

Reports

Program reports are not applicable.

Cash reports are not applicable.

Easement milestones include enrollment, closing, recording, restoration completion, and monitoring.

These milestones are tracked in the National Easement Staging Tool (NEST).

NEST reports will be generated quarterly to track milestones.

Expenditure reports are not applicable.

Landowners are required to comply with the terms of the easement, comply with all terms and conditions of any associated agreement.

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.

Audits

This program is excluded from coverage under OMB Circular No. A-133. The count and condition of closed easements is reported annually in the agency s financial statement pursuant to requirements of the Statements of Federal Financial Accounting Standard 29.

Records

Easements are recorded in the public records and case files are maintained in the appropriate NRCS State Offices.

Financial Information

Account Identification

12-1072-0-1-301.

Obigations

(Salaries) FY 12 $0; FY 13 est $60,500; and FY 14 est $9,936,700. (Direct Payments for Specified Use) FY 12 $0; FY 13 est $0; and FY 14 est $39,900,000

Range and Average of Financial Assistance

N/A.

Regulations, Guidelines, and Literature

7 CFR Part 624; National Emergency Watershed Protection Program Manual.

Information Contacts

Regional or Local Office

See Regional Agency Offices. For the list of NRCS state offices with telephone numbers and addresses, see the web site: http://www.nrcs.usda.gov/contact/.

Headquarters Office

Jessica Groves Easement Programs Division
14th and independence Avenue, SW.
Room 6812
, Washington, District of Columbia 20250 Email: Jessica.Groves@wdc.usda.gov Phone: 202-720-1067

Criteria for Selecting Proposals

States are required to develop and administer ranking criteria that assign point values to each application based on the potential benefits of each project.



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