[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Rules and Regulations]
[Pages 49358-49368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24768]



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Part III





Department of Agriculture





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Natural Resources Conservation Service



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7 CFR Part 636



Wildlife Habitat Incentives Program; Final Rule

Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / 
Rules and Regulations

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DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 636

RIN 0578-AA21


Wildlife Habitat Incentives Program

AGENCY: Natural Resources Conservation Service, United States 
Department of Agriculture.

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service is issuing a final 
rule for the Wildlife Habitat Incentives Program (WHIP). A proposed 
rule for WHIP was published in the Federal Register on December 13, 
1996 (61 FR 65485) and comments were solicited from the public. This 
final rule establishes the process by which NRCS will administer WHIP, 
responds to comments received from the public during the 45-day comment 
period, and incorporates clarifications to improve implementation of 
the program.

EFFECTIVE DATE: September 19, 1997.

ADDRESSES: This final rule may be accessed via Internet. Users can 
access the Natural Resources Conservation Service (NRCS) homepage at 
http://www.ftw.nrcs.usda.gov; select 1996 Farm Bill Conservation 
Programs from the menu.

FOR FURTHER INFORMATION CONTACT: Warren M. Lee, Director, Watersheds 
and Wetlands Division, Natural Resources Conservation Service, P.O. Box 
2890, Washington, DC 20013-2890. 202-720-3534. Fax: 202-720-2143.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    The Office of Management and Budget (OMB) determined that this 
final rule is significant and was reviewed by OMB under Executive Order 
12866. Pursuant to section 6(a)(3) of Executive Order 12866, NRCS 
conducted a benefit-cost assessment of the potential impacts associated 
with this proposed rule and concluded from the benefit-cost assessment 
that the overall impacts of WHIP will be beneficial. NRCS determined 
that the development of partnerships to provide expert technical 
assistance will ensure customers are afforded the best opportunity for 
success. In this manner, NRCS believes that WHIP will provide for 
wildlife habitat, help improve the quality of life for participants, 
and have a neutral to positive impact on local economies. Copies of the 
benefit-cost assessment are available upon request from Jeanne 
Christie, Program Manager, Watersheds and Wetlands Division, Natural 
Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-
2890.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because NRCS is not required by 5 U.S.C. 533 or any other provision of 
law to publish a notice of proposed rulemaking with respect to the 
subject matter of this rule.

Environmental Analysis

    It has determined through an amendment to the ``Environmental 
Assessment for the Wildlife Habitat Incentives Program, August 22, 
1996'' that the issuance of this final rule will not have a significant 
effect on the human environment. Copies of the Environmental 
Assessment, the amendment, and the finding of no significant impact may 
be obtained from Jeanne Christie, Watersheds and Wetlands Division, 
Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 
20013-2890.

Paperwork Reduction Act

    No substantive changes have been made in this final rule which 
affect the recordkeeping requirements and estimated burdens previously 
reviewed and approved under OMB control number 0560-0174. The 
recordkeeping requirements and estimated burdens for WHIP were 
transferred to OMB control number 0578-0013.

Executive Order 12988

    This final has been reviewed in accordance with Executive Order 
12988. The provisions of this final rule are not retroactive. 
Furthermore, the provisions of this final rule preempt State and local 
laws to the extent such laws are inconsistent with this final rule. 
Before an action may be brought in a Federal court of competent 
jurisdiction, the administrative appeal rights afforded persons at 7 
CFR parts 614 and 11 must be exhausted.

Unfunded Mandates Reform Act of 1995

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
Pub. L. 104-4, NRCS assessed the effects of this rulemaking action on 
State, local, and tribal governments, and the public. This action does 
not compel the expenditure of $100 million or more by any State, local, 
or tribal governments, or anyone in the private sector; therefore a 
statement under section 202 of the Unfunded Mandates Reform Act of 1995 
is not required.

Discussion of Program

    The Federal Agriculture Improvement and Reform Act of 1996 (the 
1996 Act) (Pub. L. 104-127, April 4, 1996) provides authority for 
several conservation programs. Section 387 of the 1996 Act authorizes 
the Wildlife Habitat Incentives Program (WHIP) under the supervision of 
the NRCS. The primary purpose of WHIP is to help landowners ``develop 
upland wildlife, wetland wildlife, threatened and endangered species, 
fish, and other types of wildlife habitat.''
    Section 387 of the 1996 Act provides that up to $50 million is 
available to implement WHIP. These funds were formerly available to 
implement the Conservation Reserve Program, 16 U.S.C. 3831-3836. WHIP 
will be under the general supervision and direction of the Chief of 
NRCS.
    Through WHIP, NRCS will utilize CCC funds to provide cost-share 
assistance to those landowners who wish to integrate wildlife 
considerations into the overall management of their operations, or who 
simply desire to do more for wildlife. NRCS will implement WHIP in 
harmony with other programs to achieve more comprehensive advancement 
of wildlife objectives.
    WHIP offers an opportunity to encourage development of improved 
wildlife habitat on eligible lands. As participants make decisions 
about the wildlife habitat development plan for their land, they will 
gain a greater awareness about their farming and ranching activities. 
NRCS believes that the efforts made by participants in this program 
will serve as a catalyst for improving wildlife conditions throughout 
the Nation.
    On December 13, 1996, a proposed rule was published with request 
for comments. The proposed rule described the program requirements, 
administrative processes, and eligibility criteria that NRCS would use 
to implement WHIP. Nearly 53 individual responses containing about 377 
specific comments were received during the 45-day comment period: 5 
from agricultural organizations; 19 from environmental organizations; 
18 from State and local agencies; and, 11 from individuals and other 
organizations.
    Additional responses were received from Federal agencies and 
employees, but are not included in the following analysis of public 
comments. These responses are being treated as inter-and intra-agency 
comments and are being considered along with the public comments where 
appropriate.
    All comments received are available for review at United States 
Department

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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

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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